“Docket No. 90-1505 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 theCommission’s decision in the above matter, the Commission hereby amends its decision inthe following respect. \u00a0 The last sentence of the second paragraph of section\”I. Motion to Dismiss\” is amended to read:For her part, without conceding that TRG Drilling was correctlydecided or that a contumacy test applies here, the Secretary denies that the facts in thiscase reflect contumacious conduct.\u00a0 She expresses acquiescence in the application ofa contumacy test only to violations of purely procedural rules of the Commission which donot have a direct statutory origin, but argues that all others require a finding ofprejudice.SO ORDERED.Edwin G. Foulke, Jr. ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 29, 1992SECRETARY OF LABOR, Complainant,v.FORD DEVELOPMENT CORPORATION,Respondent.OSHRC Docket No. 90-1505DECISION BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:This action arose as a result of an accident occurring on March22, 1990, while a Ford Development Corporation (\”Ford\”‘) construction crew waslaying new drainage pipe along the side of a road in Ohio.\u00a0 On that day, the wall ofa newly dug trench shifted, trapping an employee’s foot between the pipe and the side ofthe trench. \u00a0 With the help of other employees and the local fire department, theemployee was freed.\u00a0 Shortly after the accident, Compliance Officers Stephen Brunetteand Dennis 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\”) issued three citations consisting of nine items.\u00a0 Fordcontested each item, and at the hearing before Review Commission Administrative Law JudgePaul L. Brady, moved to dismiss the Secretary’s complaint on the ground that she was latein forwarding Ford’s notice of contest (\”NOC\”) to the Commission.\u00a0 JudgeBrady denied Ford’s motion to dismiss, finding no prejudice to Ford or contumacy on thepart of the Secretary.\u00a0 The judge affirmed five and vacated four of the nine citationitems.[[1]]\u00a0 The direction for review involves four items and Ford’s motion.I. Motion to DismissFord challenges the judge’s denial of its motion to dismiss thecomplaint on the ground that the Secretary failed to transmit Ford’s NOC to the Commissionwithin fifteen working days, as required by the Commission Rule.[[2]]\u00a0 The Secretarystipulates that she failed to provide the Commission with timely notice of her receipt ofFord’s NOC. \u00a0 The Secretary explains that a regional office secretary, relatively newto her position, had apparently misunderstood the procedure for notifying the ReviewCommission, resulting in improper documentation and a late filing.\u00a0 As a result, theNOC was transmitted seven days late. Upon receipt by the Commission, the matter wasdocketed and the administrative process commenced.\u00a0 After conducting a hearing, thejudge found that this delay was \”innocuous… the result of a clerical error, plainand simple,\” and denied Ford’s motion.Ford contends that the citation should be vacated upon ashowing either that the employer was prejudice in preparing or presenting its defense orthat the Secretary’s conduct was contumacious, citing TRG Drilling Corp., 10 BNAOSHC 1268, 1981 CCH OSHD ? 25,837 (No. 80-6008, 1981) (after unexplained 39-day delay infiling complaint, contumacy found where Secretary requested no extension of time andignored employer’s motion to dismiss).[[3]]\u00a0 Though Ford claims no prejudice, it doesargue that the Secretary’s conduct in this case was \”contemptuous.\” [[4]] \u00a0For her part, without conceding that TRG Drilling was correctly decided, the Secretaryexpresses acquiescence in the application of a contumacy test, but denies that the factshere reflect contumacious conduct.Under Commission Rule 41[[5]], the standard of review that theCommission uses is whether the judge abused his discretion in denying a motion to sanctionthe Secretary by vacating the citation.\u00a0 Under this standard of review, in evaluatingthe propriety of a dismissal sanction as set forth in Duquesne Light Co., 8 BNA OSHC 1218,1980 CCH OSHD ? 24,384 (No. 78-5034, 1980) (consolidated cases), the Commission considersthe 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 contumaciousconduct;(6) whether there is a showing of willful default on the partof the plaintiff;(7) the rights of the defendants to be free from costly andharassing litigation; and (8) the time and energies of the court and the right ofwould-be litigants awaiting their turn to have other matters resolved.Id. at 1222, 1980 CCH OSHD at pp. 29,718-19 (citationsomitted).\u00a0 A demonstration of prejudice to the employer or contumacious conduct bythe Secretary are among the more significant factors to take into account.\u00a0 E.g.,Texas Masonry, Inc., 11 BNA OSHC 1835, 1983-84 CCH OSHD ?\u00a0 26,803 (No. 82-955, 1984)(no finding of contumacy after 45-day delay in transmittal of NOC during ongoingsettlement negotiations; case remanded to determine any prejudice) and Pennsylvania Elec.Co., 11 BNA OSHC 1235, 1983-84 CCH OSHD ? 26,449 (No. 80-5211, 1983) (no finding ofcontumacy after 7-month delay in transmittal due to failure of Secretary’s personnel tofollow proper procedure; case remanded to determine possible prejudice).The Commission will not condone the Secretary’s failure tocomply with Commission Rule 33.\u00a0 The Secretary’s 15-day transmittal deadline, likeother filing deadlines established under the Act and the Commission Rules, are intended tostreamline and expedite the administrative process by which hazards are adjudicated andabated.\u00a0 None shall be taken lightly.\u00a0 See, e.g., Chartwell Corp., 15 BNA OSHC1881, 1992 CCH OSHD ? 29,817 (No. 91- 2097, 1992), petition for review filed, No. 92-2338(4th Cir. October 26, 1992).\u00a0 Nevertheless, in the clear absence of any showing ofprejudice, we find that the conduct (a 7-day transmittal delay which has been establishedto have been inadvertent) falls short of that necessary to have the citation dismissed.\u00a0 Nor do any of the other factors in this case indicate that such a harsh sanctionwould be in order.\u00a0 Accordingly, while the Secretary is on notice that the Commissionexpects adherence to its rules, we find that here the judge did not abuse his discretionin denying Ford’s motion to dismiss.II. Hazard Commission StandardsA. Citation No. 1, Item 1Material Safety Data Sheets (MSDS)At issue is whether Ford committed a serious violation of thestandard at 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 hazardous materials on thesite) were not kept at the construction site but at Ford’s office, which employees usuallyvisited twice a week to get work assignments and their paychecks.\u00a0 The judge affirmedthe violation as serious.Ford admits that the sheets were not physically located on thejobsite during working hours but argues that its practice of making them available on aregular basis effectively fulfills the requirements of the standard.\u00a0 In thealternative, Ford acknowledges the potential applicability of Super Excavators, Inc., 15BNA OSHC 1313, 1991 CCH OSHD ? 29,498 (No. 89-2253, 1991), issued by the Commission afterthe judge’s decision in this case.\u00a0 In Super Excavators, the Commission held that thestandard was violated; there, the MSDS’s were kept at the employer’s main office, over 20miles away from the worksite.\u00a0 The Secretary cites both Super Excavators and ThomasLindstrom Co., 15 BNA OSHC 1353, 1991 CCH OSHD ? 29,526 (No. 90-1084, 1991), ascompelling a finding of violation.\u00a0 We agree with the Secretary that both cases arecontrolling in this circumstance.Ford maintains that if the Commission does find SuperExcavators applicable to this case, the violation ought to be downgraded toother-than-serious, as it was in Super Excavators, because the materialsat issue are \”common construction materials that pose no mystery as to their truecomposition or hazards.\”[[7]]We find the cases distinguishable, however.\u00a0 The hazardousmaterials in Super Excavators were concrete, concrete pipe, PVC pipe, and waterplug; inThomas Lindstrom, acetylene and oxygen; in this case, they are cement and gasoline. \u00a0The nature of the materials here makes this case a hybrid of sorts.In Super Excavators, the Commission found that whilethe absence of an MSDS alone would not cause physical harm, it could result in anemployee’s being given inadequate or improper treatment for exposure to a hazardoussubstance.\u00a0 Noting three factors, (1) that the materials involved were notparticularly volatile, (2) that any harm would be superficial, and (3) that the Secretaryhad stipulated to the adequacy of the overall hazardous communication program, theCommission found that any harm to employees would not be so exacerbated by the absence ofan MSDS that serious injury would result.\u00a0 The Commission therefore reduced theserious characterization to other-than-serious.In Thomas Lindstrom, on the other hand, the materials werequite volatile and, if ignited, could cause more than just superficial harm to theemployees.\u00a0 The Commission noted that acetylene is a highly flammable and explosivechemical and that oxygen, by promoting combustion in other materials, can increase theseverity of fires.\u00a0 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 herewas serious.\u00a0 The nature of the hazardous material affects the characterization andassociated penalty.\u00a0 In Super Excavators, in addition to downgrading the violation toother-than-serious, the Commission reduced the proposed penalty because of the \”lowgravity\” of the violation.\u00a0 In Thomas Lindstrom, no penaltywas proposed and none assessed.\u00a0 In this case, the Secretary proposed a totalunallocated penalty of $500 for the failure to have the appropriate MSDS’s on the site.\u00a0 Since portland cement is a common construction material that poses no mystery as toits composition or the hazards it poses, we find that the failure to have the appropriateMSDS on site constitutes an other-than-serious violation for which we assess no penalty.\u00a0 Turning to the particular hazards associated with gasoline and applying the SuperExcavators factors (volatility, nature of expected harm, and adequacy of hazardcommunication program), we find that Ford committed a serious violation by failing to havethe MSDS for gasoline at the worksite and assess a penalty of $500.(B) Citation No. 3, Item 3Employee Information and Training on HazardousChemicalsAt issue is whether Ford committed a serious, repeatedviolation of the standard at 29 C.F.R. ? 1926.59(h)[[8]], requiring employers to provideemployees with information and training on hazardous chemicals in their work area.\u00a0The CO acknowledged that \”as a written program,\” Ford’s was adequate.\u00a0Although Ford had scheduled a number of training seminars and safety meetings designed tosupplement its written program, Ford’s program at the time of the inspection consisted ofnothing more than providing its employees with copies of its hazard communication program,and requiring them at one point to review the program as a condition of receiving theirpaychecks. \u00a0 The judge found that in so doing Ford complied with the standard, and hetherefore vacated the citation.The Secretary petitioned for review of that vacation, chargingthat Ford’s program fell short of compliance.\u00a0 Emphasizing the distinction betweeninformation and training, and contending that the judge here improperly combined the two,the Secretary argues that Ford’s efforts were most deficient in the training aspect of thestandard.\u00a0 According to the Secretary, unless an employer informs its employees ofthe specific hazards associated with workplace chemicals and tells them what protectivemeasures to take, it is not in compliance with section 1926.59(h).\u00a0 She cites ARALiving Centers of Texas, Inc., 15 BNA OSHC 1417, 1992 CCH OSHD ? 29,552 (No. 89-1894,1991).\u00a0 In that case, the Commission reversed a judge’s vacation of a similarcitation involving the parallel general industry standard, holding the employer inviolation for failure to inform and train nursing home employees using industrial-strengthcleaners and disinfectants containing certain hazardous chemicals.\u00a0 The evidenceindicated that employees had access to MSDS’s and product labels but that no writtenhazard communication program was in place, and the employees had not received anytraining.\u00a0 In this case, the Secretary introduced no evidence about the labels on thecement bags or gasoline containers.\u00a0 The evidence does establish that Ford failed toprovide ready access to the pertinent MSDS’s, and that it conducted no specific trainingon how to handle portland cement in its various forms or on how to clean up gasolinespills, or avoid and treat siphoning accidents, or prevent explosions or fires.\u00a0 Onthe other hand, unlike the employer in ARA, Ford did have an adequate written program, oneit 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, we conclude thatthe evidence of a possible skin rash is insufficient to establish a substantialprobability of serious physical harm within the meaning of section 17(k) of the Act.\”\u00a0 Id. at 1418, 1992 CCH OSHD at p. 39,957.\u00a0 If cement were the only substance athand in this case, the ARA case might provide more guidance in how to classify theviolation here.\u00a0 Because this case involves gasoline, however, a substantialprobability exists that death or serious physical harm could result if an accident withgasoline occurred.\u00a0 The Secretary alleged that this violation was serious. \u00a0Considering the same factors as we did in characterizing the MSDS violation above, we findthe information and training standard violation other-than-serious with respect to theportland cement and serious with respect to the gasoline.Proposing a penalty of $2,000, the Secretary claims that\”at the time of the alleged repeated violation there was a Commission final orderagainst the same employer for a substantially similar violation,\” citing PotlatchCorp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ?\u00a0 23,294, p. 28,171 (No. 16183, 1979).Ford resists the Secretary’s characterization of the violation as \”repeated,\”pointing to certain \”exculpatory\” language in the settlement agreement and finalorder introduced by the Secretary.\u00a0 For our purposes, the 1989 settlement agreementincorporated by the final order used to establish the \”repeated\” allegation inthis case contains several critical provisions:(1) \”Respondent hereby withdraws its notice ofcontest….\”(2) \”Nothing contained herein should be construed as anadmission by Respondent that it violated the Act….\”; and(3) \”The settlement is not to be taken as an admission offault or liability and shall not affect any rights or defenses in the future thatRespondent may have in any….proceeding other than one arising under the Act.\”Ford claims that under provision (2) above, the Secretary isprecluded from using the agreement\/order to establish a repeated violation in the instantcase.\u00a0 In other words, Ford argues that since the parties agreed that there was noviolation of the Act in 1989, the violation in this case cannot be considered a second,repeated violation.\u00a0 Ford warns that a Commission finding of a repeated violation inthis case would mean that settlements have no future force and effect and are to beignored, creating a \”chilling effect on the salutary goal of settlements.\”The Secretary, citing Stone Container Corp., 14 BNA OSHC 1757,1987-90 CCH OSHD ? 29,064 (No. 88-310,1990), argues that Ford’s withdrawal of its contestin provision (1) above constitutes an agreement to the affirmance of the citation andestablishes the existence of a violation of the cited standard. She emphasizes the clearlanguage of provision (3) above and adds that the settlement agreement was devoid of anylanguage expressly barring the use of the agreement in future citations.\u00a0 Cf.National Steel & Shipbuilding Co., 8 BNA OSHC 2023, 2023 n. 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 beutilized as or form the basis of a future repeat citation\”).We note that the settlement agreement language on which Fordrelies is similar to that in another case, Dic-Underhill, A Joint Venture, 8 BNA OSHC2223, 1980 CCH OSHD ? 25,959 (No. 10798, 1980).\u00a0 The language in the Ford agreementechoes the following language contained in the Dic-Underhill agreement:Respondent’s agreement to pay the proposed penalty, to take theproposed action and the signing of this agreement are not admissions by respondents of anyviolations of the Act or of the truth of any of the allegations …. [Nor are they to be]construed … as admissions of fault or liability in any claim or proceeding which existsor may arise and be pursued by any person … other than in any subsequent proceedingsbrought by the complainant before the [OSHRC] ….Id. at 2225,1980 CCH OSHD at p. 30,797 (emphasis added). \u00a0The Commission held in Dic-Underhill that the plain language of the settlement agreementallows it to be used in a later proceeding as the basis for finding a repeatedviolation.\u00a0 The same reasoning holds true the instant case.[[9]]\u00a0 Based on theexistence of a Commission final order for a violation of the same standard, we find thatFord’s serious violation of section 1926.59(h) is repeated.The Secretary proposed a penalty of $2,000 for this serious,repeated violation.\u00a0 Ford’s efforts to increase its safety training activities afterthe inspection are impressive; indeed, some of these activities were described as\”scheduled\” at the time of the inspection.\u00a0 In our opinion, this evidenceof good faith on Ford’s part justifies a further reduction in the penalty.\u00a0 SeeSouthern Indiana Gas & Elec. Co., 1 BNA OSHC 1569,1973-74 CCH OSHD ? 17,374 (No. 456,1974) (commending employer’s ongoing efforts to reduce noise hazard both before and afterinspection, assessing no penalty).\u00a0 We therefore assess a penalty of $1,000.Ill. Trench Standards A. Citation No. 3, Item 1Employee Training on Hazard Recognition and AvoidanceAt issue is whether Ford committed a serious violation of thestandard at section 1926.21(b)(2)[[10]], requiring employers to train each employee inhazard recognition and avoidance.\u00a0 On review, the Secretary concedes that thisviolation was not \”repeated\” as initially alleged and requests arecharacterization as \”serious.\”\u00a0 The Secretary cited Ford for failing toprovide its foreman, David Neu, with adequate training in excavation hazards, includingfailure to instruct Neu in appropriate methods of soil evaluation he was to follow as thedesignated \”competent person\” for the site.\u00a0 The term \”competentperson\” is defined in section 1926.650(b) as \”one who is capable of identifyingexisting and predictable hazards in the surroundings, or working conditions which areunsanitary, hazardous, or dangerous to employees, and who has authorization to take promptcorrective measures to eliminate them.\”Neu, employed by Ford for three years, testified that duringhis eight years with his prior employer, he learned, through on-the-job training, toobserve changes in the ground and to gauge the power the backhoe required in differenttypes of soil.\u00a0 He testified that he was aware of the 5-foot trench-protectionrequirement, but when asked why he had not shored the 6-foot trench, he replied, \”Thereason I didn’t use any shoring was because this ground … was hard to pull through as Idug it.\”\u00a0 Neu also testified that he had attended a 1-day OSHA seminar on trenchsafety about four years prior to the hearing, before he came to work for Ford.\u00a0 Headmitted, however, that he had not learned when or how to take any tests.\u00a0 Forinstance, he did not know that the standard contains requirements such as manual testingand soil sampling.\u00a0 Moreover, Neu testified that he had received no training duringthe three years he had been working for Ford.The Secretary argues that the standard provides no mechanismfor training received from past employers to be \”credited\” or carried over to anemployee’s current employer.\u00a0 Noting that the regulations governing excavations hadchanged during Neu’s tenure with Ford,[[11]] she cites Archer-Western Contractors, Ltd.,15 BNA OSHC 1013, 1020, 1991 CCH OSHD ? 29,317, p. 39,381 (No. 87-1067, 1991), aff’dwithout published opinion, No. 91-1311 (D.C. Cir. October 26, 1992) (employer’s duties aresatisfied when the employer instructs its employees about the hazards they may encounteron the job and about the regulations applicable to those hazards) and other cases [[12]]in support of her position that Ford violated the standard.Ford styles the Secretary’s dispute as being not with Mr. Neu’squalifications themselves, but with their source.\u00a0 Ford further asserts that to holdFord in violation for failing to duplicate the training Mr. Neu brought with him to thejob when he was hired is to exalt form over substance.The Commission has recently examined the requirements of thisstandard.\u00a0 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, the foreman testified that he hadnever been given instructions about soil mechanics or attended any lectures on soil, andthat all his knowledge had been gained through his 14 years’ experience working intrenches.\u00a0 Id. at 2010, 1991 CCH OSHD at p. 39,131.\u00a0 The Commission criticizedthe employer for relying too heavily on experience and on-the-job training of the crewinstead of providing specific trenching instructions and affirmed the alleged violation ofsection 1926.21(b)(2), citing H.C. Nutting v. OSHRC, 615 F.2d 1360 (6th Cir. 1980)(unpublished) and John R. Jurgensen Co., 872 F.2d 1026 (6th Cir. 1989) (unpublished)(evidence that employees were unaware of particular safety requirements, because of a lackof specific instruction, establishes a violation).Similarly, in R & R Builders, Inc., 15 BNA OSHC 1383, 1991CCH OSHD ? 29,531 (No. 88-282, 1991) (occasional correction of employees does not amountto systematic training) and Concrete Constr. Co., 15 BNA OSHC 1615, 1992 CCH OSHD ?\u00a029,681 (No. 89-2019, 1992) (employer that provides no training other than safety bookletviolates standard), the Commission made clear that while the standard does not limit theemployer in the method by which it may impart the necessary training, an employer thatplaces too much trust in the quality of experience and training an employee has alreadyacquired elsewhere runs the risk of violating the standard.The judge found not only that what little formal training Neuhad received years ago fell short of meeting the standard, but also that training by aprevious employer does not fulfill the requirements of the standard.\u00a0 He thereforeaffirmed the violation. We agree, while noting that our decision should not be read asrequiring employers always to demand that their employees undergo formalized training, noras compelling employers in every instance to gather written verification of job skillsfrom their employee’s formal employer’s.\u00a0 Here, the plain language of the standardrequires some positive action on the part of the cited employer, and none was taken inthis case.[[13]]\u00a0 The judge, still considering this violation as\”repeated,\” affirmed the proposed $3,600 penalty.\u00a0 While Ford continued toargue in its reply brief that no violation existed, it did not dispute that a violation,if found, could result in serious physical harm or death.\u00a0 We find that thisviolation is serious, but not repeated.\u00a0 Constrained by the former penalty structurethat places a maximum of $1,000 as applied to this case, we find a penalty in the amountof $1,000 to be appropriate.B. Citation No. 2, Item 1Trench Protective SystemAt issue is whether Ford committed a serious violation of thestandard at section 1926.652(a)(1) [[14]], essentially requiring trench protection systemsfor excavations 5 feet deep and over unless they are carved out of stable rock.The facts of the trench accident that prompted OSHA to conductthe inspection in this case are not entirely clear.\u00a0 A number of references are madeto the \”collapse\” and to the material that \”gave way\” or \”letloose.\”\u00a0 The only eye-witness to the accident who testified, foreman Neu,described the scene this way:I was running the hoe at the time of the accident…. The guywas down in the ditch, and we set the pipe and was just getting ready to plug it for thenight…. The bank did not fall in.\u00a0 The bank slid in, was sheared in…. [W]hen thebank started to slide, I hollered and the guy started to run.\u00a0 When he seen the bankwas coming in, he stepped [up] on the pipe…. He got his left foot up on top of the pipe,and he went to step 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]]actually occurred, the record belies Ford’s continual assertions in its brief that at notime was there a cave-in or failure of the soil.\u00a0 Normally, the fact that an accidentoccurred, let alone the details, is irrelevant to these proceedings.\u00a0 Here, however,the facts tend to establish a substantive point: the unavailability of the solid rockexception.\u00a0 The record 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 of the collapse seemsto demonstrate an instability at the scene of the accident. Bland Constr. Co., 15 BNA OSHC1031, 1991 CCH OSHD ? 29,325 (No. 87-992, 1991).It is undisputed that Ford made no efforts to comply with thestandard by sloping or shoring the sides of the trench.\u00a0 Ford contends that thestandard did not apply to the trench in this case because it was carved in stable rock andwas under five feet deep.\u00a0 Again, under Dover Elevator Co., see supra note 8, theparty claiming the benefit of an exception bears the burden of proving that its case fallswithin that exception.That the material at the site was hard clay and rock isundisputed.\u00a0 The Secretary argues that ground which is partly clay is not\”stable rock.\”\u00a0 She further notes that her reasonable interpretation of herown standard is entitled to deference and cites a number of Commission decisions withwhich her position is fully consistent.\u00a0 Bland Constr. Co. (all unstable materialsuch as fractured rock, clay, and topsoil must be sloped or shored); 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).\u00a0 Ford,on the other hand, claims that \”clay\” fits into the definition of \”stablerock\” in paragraph (b) of the standard’s Appendix A: \”natural solid mineralmatter that can be excavated with vertical sides and remain intact while exposed.\”\u00a0 Acknowledging that clay may not be rock, Ford suggests that clay is nonetheless anatural solid mineral matter and, as such, constitutes a sufficiently stable substance forpurposes of the term \”stable rock\” as used in the standard.\u00a0 The judge sawno merit in Ford’s argument, and we agree with the judge.The cited standard, when read in context with relateddefinitions and tables in the appendices to Subpart P, amply supports findings that clayis soil and that soil is not stable rock.\u00a0 \”Soil\” and \”stablerock\” are mutually exclusive, not interchangeable.\u00a0 For instance, \”stablerock\”– one of four categories of material in the standard–is a classificationseparate from the three soil types.\u00a0 Gravel, crushed rock, and unstable dry orsubmerged rock are all classified within one of the soil types, but stable rock is not.\u00a0 The evidence is that the composition of the ground at the site was some proportionof clay and rock.\u00a0 Therefore, we find that the trench in this case does not meet the\”stable rock\” exception.Ford also claims that the \”depth\” exception to thestandard applies to this case.\u00a0 This exception only applies if the trench measuresless than five feet deep and if a competent person who examines the ground finds noindication of a potential cave in.The evidence here indicates that the trench was too deep tomeet the terms of the exception.\u00a0 Both CO Brunette and foreman Neu testified that thetrench was approximately 6 feet deep.\u00a0 Even the specifications for the trench calledfor 3 1\/2 to 4 feet of cover on top of the 12-inch pipe, which in turn was to be laid on 6inches of sand, so the contract itself required a trench that was at the very least 5 feetdeep, not \”less than 5 feet,\” in the words of the standard.\u00a0 Theexplanation Ford offers, that since employees were supposed to stand on the pipe at alltimes their \”exposure\” was to the equivalent of a trench that was only 3 1\/2feet deep, is unpersuasive.\u00a0 The standard speaks of the depth of the trench, not ofthe position of employees in the trench.\u00a0 Therefore, the trench in this case does notmeet the depth exception to the standard.Ford has failed to establish that the trench in this case meetseither available exception.\u00a0 Hence, we affirm the judge in finding a violation of thetrench protection standard.\u00a0 The Secretary proposed a penalty of $10,000 for awillful violation of the standard.\u00a0 However, the judge found that Neu did not actwith reckless disregard for his crew’s safety, but believed in good faith that the soil’scomposition precluded the necessity for sloping or shoring.\u00a0 The judge reclassifiedthe violation as serious and reduced the penalty to $1,000.\u00a0 We defer to the judge’sassessment.\u00a0 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 CCHOSHD ? 22,481, p. 27,099 (No. 14249,1978).\u00a0 The judge’s findings are affirmed, and apenalty of $1,000 is assessed.IV. ConclusionAccordingly, Ford’s motion to dismiss is denied.\u00a0 Item 1of citation no. 1 is affirmed as modified by this decision, and a penalty of $500 isassessed.\u00a0 Item 1 of citation no. 2 is affirmed as serious, and a penalty of $1,000is assessed.\u00a0 Item 1 of citation no. 3 is affirmed as serious, and a penalty of$1,000 is assessed.\u00a0 Item 3 of citation no. 3 is affirmed as modified by thisdecision, and a penalty of $1,000 is assessed for this repeated violation.\u00a0 Hence, atotal penalty of $3,500 is assessed.Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma Montoya CommissionerDated: December 3, 1992SECRETARY OF LABOR, Complainant, v.FORD DEVELOPMENT CORPORATION,Respondent.OSHRC Docket No. 90-1505APPEARANCES:Kenneth Walton, Esquire, Office of the Solicitor, U. S.Department of Labor, Cleveland, Ohio, on behalf of complainant. Kenneth Seifried, Esquire, Holbrook and Poston, Cincinnati,Ohio, on behalf of respondent.DECISION AND ORDERBRADY, Judge: Ford Development Corporation (Ford) is aconstruction company whose principal place of business is located in Sharonville,Ohio.\u00a0 In March of 1990, Ford was under contract with the Cincinnati Water Works tolay a drainage pipe along Bridle Road, near Eight Mile Road, in Newton, Ohio (Tr. 22,320).\u00a0 On March 22, 1990, an accident occurred at the worksite.\u00a0 A Fordemployee’s foot was trapped between the drainage pipe and one wall of the trench in whichthe pipe was being laid.\u00a0 The fire department eventually freed the trapped employee(Tr. 26).As a result of this accident, OSHA compliance officers StephenBrunette and Dennis Collins inspected the worksite.\u00a0 Pursuant to their inspection,three citations were issued to Ford on May 2, 1990.\u00a0 Citation No. 1 alleged seriousviolations of 29 C.F.R. ?1926.59(g)(8) for failure to make material safety data sheets(MSDS’s) readily accessible 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) for failure toprovide warning vests to employees exposed to public vehicular traffic, and of 29 C.F.R.? 1926.651(k)(2) for failure to require a competent person to remove exposed employeesfrom hazardous excavations. 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 of unsafeconditions, of 29 C.F.R. ? 1926.59(e)(1) for failure to maintain at the workplace awritten hazard communication program, and of 29 C.F.R. ? 1926.59(h) for failure toprovide employees with information and training on hazardous chemicals in their work.FORD’S MOTION TO DISMISS BASED ON THE SECRETARY’SUNTIMELY NOTICE TO THE REVIEW COMMISSIONAt the start of the hearing Ford moved to dismiss theSecretary’s case based on her alleged failure to comply with 29 U.S.C. ? 659(c) byfailing to provide timely notice to the Review Commission.\u00a0 The motion was held inabeyance 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 tocontest a citation … the Secretary shall immediately advise the Commission of suchnotification…Rule 2200.33(a) of the Rules of Procedure of the OccupationalSafety and Health Review Commission provides:Within 15 working days after receipt of–(a) notification that the employer intends to contest acitation or proposed penalty under section 10(a) of the Act, 29 U.S.C.? 659(a) … theSecretary shall notify the Commission of the receipt in writing and shall promptly furnishto the Executive Secretary of the Commission the original of any documents or recordsfiled by the contesting party and copies of all other documents or records relevant to thecontest.The Secretary received Ford’s notice of contest on May 10,1990. The last working day which the Secretary could have provided the Review Commissionwith notice of her receipt of Ford’s notice of contest and be in compliance with ?2200.33(a) was May 28, 1990.[[1]] The Secretary did not give notice to the ReviewCommission until June 8, 1990 (Ex. R-14, Tr. 358).In response to Ford’s interrogatories, the Secretary statedthat on June 1, 1990, she had notified the Review Commission of its receipt of Ford’snotice of contest (Ex. R-1, Tr. 188).\u00a0 Dennis Collins, the compliance officer whosigned the Secretary’s responses to interrogatories, based this response on information hereceived from his supervisor, Dennis Slessman, who based his information on a notationmade on his secretary’s calendar (Exs. R-3, R-4, Tr. 188, 189).\u00a0 Slessman’s secretarywas relatively new to her position at that time, and apparently was mistaken in herunderstanding of the procedure for notifying the Review Commission (Tr. 295).\u00a0 Theday before the hearing (in November of 1990), the Secretary supplemented its response,stating that based upon additional information, notice to the Review Commission was notsent on June 1, 1990.\u00a0 The new information indicated that the notice had been sentsometime between June 1 and June 11, 1990 (Ex. R-2, Tr. 190).At the hearing, Slessman stated that the week before thehearing 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 toprovide timely notice to the Review Commission of her receipt of Ford Development’s noticeof contest\” (Tr. 6-9).Ford contends that the Secretary’s delay in notifying theReview Commission of its receipt of Ford’s notice of contest is grounds for dismissing thecase. Ford does not claim that it was prejudiced in any way by the Secretary’suntimeliness.\u00a0 Rather, Ford contends that the motion to dismiss should be grantedbecause violation of the cited statute requires dismissal, and because the Secretaryengaged in \”contumacious\” conduct.Regarding the first argument, that violation of the statuterequires dismissal, reference must be made to OSHRC’s Rules of Procedure ? 2200.41(a)(Failure to Obey Rules):Sanctions.\u00a0 When any party has failed to plead orotherwise proceed as provided by these rules or as required by the Commission or Judge, hemay be declared in default either: (1) on the initiative of the Commission or Judge, afterhaving been afforded an opportunity to show cause why he should not be declared to be indefault; or (2) on the motion of a party.\u00a0 Thereafter, the Commission or Judge, intheir discretion, may enter a decision against the defaulting party or strike any pleadingor document not filed in accordance with these rules.\u00a0 (Emphasis added)As ? 2200.41(a) makes clear, dismissal of a case because ofprocedural errors is discretionary with the judge.\u00a0 Dismissal is not mandated by afailure to comply with the rules.Ford cites TRG Drilling Corporation (Mid-Continent Division),81 OSAHRC 108\/D10, 10 BNA OSHC 1268, 1981 CCH OSHD ? 25,266 (No. 80-6008, 1981), asstanding for the proposition that a citation should be vacated for failure to comply withthe Review Commission rules if there is either prejudice to the opposing party or if theSecretary engages in contumacious conduct.\u00a0 Actually what TRG states is: \”TheCommission precedent is clear – the Secretary’s failure to file a timely complaint doesnot justify vacating a citation absent a finding of contumacious conduct by the Secretaryor prejudice to the employer.\” Id., 10 BNA OSHC at 1269 (dissenting opinion). \u00a0Again, the discretionary aspect of the dismissal (here relating to the Secretary’scomplaint, not its notice to the Review Commission) is implied.In addition, Ford cites Secretary v. Barretto GraniteCorporation, 830 F.2d 396 (1st Cir. 1987), which also deals with the late filing of theSecretary’s complaint, and which states: \”The Secretary must file a complaint within20 days of the time the notice of contest has been received, and may be subjected todismissal of the case if an employer can establish that he was prejudiced by a delay infiling the complaint.\”\u00a0 Id., at 398.\u00a0 The noteworthy aspects of thisstatement are the discretionary power implicit in the phrase \”may be subjected todismissal\” and the mention of prejudice as the sole basis for dismissal. Barrettodoes little to bolster Ford’s argument.\”Contumacious\” is defined as \”obstinatelydisobedient or rebellious; insubordinate.\”\u00a0 The American Heritage Dictionary 319(2d College Ed. 1982).\u00a0 Even construed in the worst light, the Secretary’s actions infiling the notice to the Review Commission do not rise to the level of contumaciousness.\u00a0 Instead, the Secretary’s delay is attributable to miscommunication andinexperienced personnel, resulting in an innocuous clerical error.Despite Ford’s attempt to show otherwise, the recordestablishes only that a secretary, new to her position, did not forward the notice ofreceipt of Ford’s notice of contest to the Review Commission.\u00a0 This oversight was notcaught immediately, resulting in the notice being received by the Review Commission 11days outside of the time limit set by OSHRC Rule of Procedure ? 2200.33.\u00a0 This11-day delay did not prejudice Ford, nor was it the result of obstinately disobedient,rebellious, or insubordinate behavior by the Secretary.\u00a0 It was the result of aclerical error, plain and simple.Furthermore, the conduct which Ford characterizes ascontumacious has nothing to do with the cause of the delay itself.\u00a0 Rather, Fordfocuses on the subsequent events, when the Secretary attempted, in response to Ford’sinterrogatories, to ascertain the date that she gave notice to the Review Commission.\u00a0 Granted, the Secretary’s procedures in trying to pin down the date of the notice tothe Review Commission do not call to mind the precision of a finely tuned machine, butneither do they raise the suspicion of deliberate misrepresentations.The Secretary’s admitted untimely notice to the ReviewCommission of her receipt 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.\u00a0 Ford’s motionto dismiss for untimely notice is denied.VALIDITY OF INSPECTIONFord argues that its Fourth Amendment rights were violated bythe Secretary because OSHA’s compliance officers made the inspections, over Ford’sobjections, without a warrant (Tr. 63-65, 110).\u00a0 Although Collins subsequentlyobtained a warrant, the evidence on which the citations were based was gathered beforethat time.\u00a0 Ford contends that OSHA’s inspection was unconstitutional and that thecitations should be vacated.The site where the drainage pipe was to be laid was alongBridle Road, a public roadway.\u00a0 At each end of the road (the top and the bottom ofthe hill) there were large orange construction signs marked \”Road Closed\” (Tr.160, 263-264, 321).\u00a0 Despite these signs, local traffic was allowed on the road (Tr.164).\u00a0 It was estimated that 15 to 20 cars a day traveled on the road (Tr. 235).Ford’s argument is without merit.\u00a0 Under the \”openview\” exception to the warrant requirement, a warrant is not needed if the worksiteto be inspected is accessible to the public and open to view.\u00a0 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 OSHC1195, 1977 CCH OSHD ? 21,709 (No. 5324, 1977).In the present case, Bridle Road was open to the public,despite the \”Road Closed\” signs.\u00a0 Fifteen to twenty cars passed by theworksite on a daily basis. There is no evidence that anyone was ever turned away whodesired to travel on that road.\u00a0 Ford had no reasonable expectation of privacy on theroadway. The placing of signs, which limited the flow of traffic, did not convert a publicroad into a private one in this case.\u00a0 OSHA did not need a warrant to inspect thesite.CITATION NO. 1ITEM 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 materialsafety data sheets for each hazardous chemical in the workplace, and shall ensure thatthey are readily accessible during each work shift to employees when they are in theirwork area(s).OSHA compliance officer Dennis Collins spoke with Ford’sforeman, David New, on April 4, 1990.\u00a0 Collins asked New if he had copies of theMSDS’s for gasoline and portland cement, both of which were being used by the employees onthe site, available at the worksite.\u00a0 New responded that he did not (Tr. 123, 130).\u00a0 The MSDS’s for these materials were located at Ford’s office in Sharonville, Ohio(Tr. 131).Ford contends that the presence of the MSDS’s at itsSharonville office, where, Collins was told, employees went at least twice a week, meetsthe requirements of the standard (Tr. 197).\u00a0 Even a cursory reading of ?1926.59(g)(8) shows that this is not the case.The standard requires that the MSDS’s be \”readilyaccessible during each work shift to employees when they are in their work area(s)(emphasis added).\u00a0 If an employee only visits Ford’s company office twice a week,then the MSDS’s are not readily accessible to him during each work shift, and they are notaccessible to him when he is in this work area.\u00a0 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 inspectedprior to use on each shift and as necessary during its use to ensure that it is safe.\u00a0 Defective rigging equipment shall be removed from service.Collins observed a wire rope sling being used to lift and placethe drainage pipe into the trench.\u00a0 Some strands of the sling were broken and wereprotruding from it (Ex. R-13, Tr. 132, 133).Ford concedes that the strands were broken but argues that thebroken strands did not render the sling defective.\u00a0 The manufacturer’s specificationsfor the sling demonstrated that it had a 1,940 pound capacity (Ex. R-13, Tr. 329). \u00a0The pipe which was being used to hoist weighed 965 pounds (Tr. 330).\u00a0 The sling wasmade up of seven braids, each of which contained 19 wires (Tr. 339-340). \u00a0 Fordargues that a few broken strands would not cause the sling to be defective.The word \”defective\” is not defined in the safetystandards.\u00a0 Websters Third New International Dictionary (1971) defines\”defective\” as \”wanting in something essential: falling below an acceptedstandard in regularity and soundness of form … or in adequacy of function.\” \u00a0Id. at 591.\u00a0 The Secretary failed to establish that the few broken strands on thesling resulted in its being inadequate to hoist the pipe.\u00a0 Collins stated that thesling appeared to be functioning properly and that he could not say that the sling’sbuilt-in safety functions were exceeded in this case (Tr. 223, 224, 226).The Secretary’s basis for alleging that the sling was defectivewas the presence of a few broken strands.\u00a0 That, in light of the specifications forthe sling and the weight being lifted, is insufficient to support a finding that aviolation of the standard occurred.\u00a0 Ford was not in violation 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 providedwith, and shall wear, warning vests or other suitable garments marked with or made ofreflectorized or high-visibility material.None of Ford’s employees on the worksite wore warning vests orother reflectorized clothing (Tr. 133).\u00a0 Traffic passed by the employees as theyworked. Collins observed a saw operator who scored the pavement while standing near thecenter of the right lane while traffic used the left lane (Tr. 134).Ford argues that it was not in violation of the standardbecause it applies only to \”public vehicular traffic.\”\u00a0 Ford contends thatbecause the road was \”closed\”, public traffic did not travel on the road.As discussed earlier in this decision, the roadway was publicdespite the signs posted, and traffic on the roadway would be public.\u00a0 The vehicleswere driven by members of the public, and the employees were exposed to the same dangers,whether or not the \”Road Closed\” signs were posted.\u00a0 Ford was in violationof ? 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, andprotective systems shall be made by a competent person for evidence of a situation thatcould result in possible cave-ins, indications of failure of protective systems, hazardousatmospheres, or other hazardous conditions.\u00a0 An inspection shall be conducted by thecompetent person prior to the start of work and as needed throughout the shift. \u00a0Inspections shall also be made after every rainstorm or other hazard increasingoccurrence.\u00a0 These inspections are only required when employee exposure can bereasonably anticipated.David New was the designated competent person on the site (Tr.138).\u00a0 New made daily inspections of the excavation site (Tr. 139, 249).\u00a0 Newevaluated the soil by visually examining it and by noting how hard the backhoe had to workin order to dig the trench (Tr. 140).The Secretary argues that New’s inspection was inadequate tomeet the requirements of the standard because New did not conduct any manual tests of thesoil (Tr. 140-142, 249-250).\u00a0 Nowhere in the standard does it require manual tests ofsoil to be made.\u00a0 The standard requires only that \”daily inspections bemade\”, which New indisputably did.\u00a0 The Secretary’s allegation is without merit.\u00a0 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 thatcould result in a possible cave-in, indications of failure of protective systems,hazardous atmospheres, or other hazardous conditions, exposed employees shall be removedfrom the hazardous area until the necessary precautions have been taken to ensure theirsafety.The Secretary contends that as the designated competent person,New should have noticed hazardous conditions that could result in a cave-in and removedthe employees from the trench.\u00a0 New realized that the trench was increasing in depthand that the trench was progressing towards a culvert which would require the depth of thetrench to increase even more (Tr. 143, 245-246).Ford argues that the standard requires that employees beremoved \”where the competent person finds evidence of a situation that could resultin a possible cave in,\” and that there is no evidence that New did find suchevidence.\u00a0 New believed the soil was hard enough and that there was no danger of itscollapse (Tr. 260).\u00a0 The culvert to which the Secretary refers was not as deep asdepicted in the plans (Ex. C-12, Tr. 143).The Secretary has failed to establish that New was aware of anyevidence indicating the possibility of a cave in.\u00a0 New believed that the dirt inwhich the excavation was made consisted mostly of hard clay and rock, and he thought thetrench was \”okay\” (Tr. 143, 253).\u00a0 Ford was not in violation of ?1926.651(k)(2).CITATION NO. 229 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 natural solid mineral matter that can be excavated with vertical sections and remainintact while exposed.The area of the trench where the employee’s foot was trappedwas measured to be 7 feet, 7 inches deep (Tr. 45-46).\u00a0 The evidence was undisputed,however, that that area had been dug out by Ford’s crew in attempting to free the trappedemployee (Tr. 70-71).\u00a0 New testified that the depth of the trench at the time of theaccident was about 6 feet (Tr. 259).\u00a0 The sides of the trench were vertical; noattempt at sloping had been made (Tr. 50).The evidence established that the soil was composed of hardclay and rock (Tr. 176, 253).\u00a0 Ford argues that the hard clay and rock mixture meetsthe definition in Appendix A of stable rock.\u00a0 This argument is without merit. \u00a0In the words of Dennis Collins, \”Clay is not rock\” (Tr. 186).Clay is not what Appendix A means by \”natural solidmineral matter.\”\u00a0 The fact that a hand shovel was used to help dig out thetrench around the 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 orotherwise provide protection for a trench that was deeper than five feet and that was notexcavated in stable rock.\u00a0 We must now turn to the classification of the violation.A willful violation is one committed with intentional, knowingor voluntary disregard for the requirements of the Act, or with plain indifference toemployee safety. …It is differentiated from other types of violations by a\”heightened awareness\”–of the illegality of the conduct or conditions–and by astate of mind–conscious disregard or plain indifference.\”\u00a0 [WilliamsEnterprises, 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 thecited standard with either an intentional disregard for the requirements of the Act, orwith plain indifference to employee safety.\u00a0 New testified credibly that he believedthe soil in which the trench was being excavated was hard enough so as not to requiresloping.\u00a0 The depth of the trench for the most part was four and a half feet (Tr.180-181).New’s belief that the trench did not require sloping waserroneous, but his testimony is convincing that he believed in good faith that the soil’scomposition precluded the necessity for sloping.\u00a0 The violation of ?1926.652(a)(1)is appropriately classified as serious.CITATION NO. 3ITEM 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 recognitionand avoidance of unsafe conditions and the regulations applicable to his work environmentto control or eliminate any hazards or other exposure to illness or injury.New never received any training in trench safety from Ford (Tr.242).\u00a0 He had received one day of training from a former employer four and a halfyears prior to the hearing (Tr. 242-243).\u00a0 Even if such minimal training at such adistant time was adequate (it is not), the training would not comply with the standard,which specifies that \”[t]he employer [Ford] shall instruct each employee\” insafety training.\u00a0 Training by a previous employer does not fulfill the requirement ofthe standard.\u00a0 Ford was in violation of ?1926.21(b)(2).The citation and complaint allege that Ford was previouslycited for a violation of ?1926.21(b)(2) on June 22, 1987, and that the citation became afinal order on July 23, 1987.\u00a0 No documentary evidence was adduced to support thisallegation, but Ford does not dispute it.\u00a0 Accordingly, the violation will beclassified 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 theworkplace, a written hazard communication program for their workplaces which at leastdescribes how the criteria specified in paragraphs (f), (g), and (h) of this section forlabels and other forms of warning, material safety data sheets, and employee informationand training will be met, and which also includes the following:At the time of the inspection, Ford had a written hazardcommunications program, which it maintained at its company office in Sharonville, Ohio(Tr. 197). Collins stated that the written program was adequate to meet the requirementsof the standard (Ex. R-5, Tr. 196).\u00a0 The written program was not maintained at theworksite (Tr. 149).\u00a0 Copies of the program were distributed to Ford’s employeesseveral weeks prior to the OSHA inspection (Ex. R-6, Tr. 198-199). Ford contends thatmaintaining the 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 the workplace.\”\u00a0 There is a reason for this requirement.\u00a0 If anemployee at the worksite should need to consult the program for information regarding ahazardous material that he is about to use, or has used, or that has been spilled orotherwise caused an emergency situation, the program does him no good if it is locatedmiles away at the company office.\u00a0 Distributing personal copies to employees is agood idea, but there is no guarantee that they will bring them to work each day, or thatthey memorized the program’s contents.\u00a0 Ford was in violation of ?1926.59(e)(1).In order to establish a repeated violation, the Secretary mustshow that, at the time of the alleged repeated violation, there was a Commission finalorder against the employer for a substantially similar violation.\u00a0 PotlachCorporation, 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294 (No.16183, 1979).The Secretary introduced into evidence copies of four citationsissued to Ford on September 18, 1989, containing allegations of violations of?1926.59(e)(1) and (h) (Ex.C-15).\u00a0 She also introduced a copy of a settlementagreement entered into by the Secretary and Ford, disposing of the citations (Ex. C-14).Judge Edwin G. Salyers issued an order approving the settlementon February 26, 1990.\u00a0\u00a0 In the settlement agreement, the parties agreed thatItems 1 and 3 of Citation No. 3 \”shall be affirmed\” with a penalty assessed of$100.00 for each item.Ford strenuously objected to the admission of Exhibits C-14 andC-15.\u00a0 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 or standards promulgatedthereunder…Ford contends that this exculpatory language prohibits theSecretary from using the settlement agreement as the basis for a repeated violation.\u00a0 But the quoted language does not function as Ford claims.A repeat violation requires a final order against the employerfor a substantially similar violation.\u00a0 In the present case, the previous citationwas for the same standard at issue here, ?1926.59(e)(1).\u00a0 The Judge’s order was afinal order of the Commission; and it was undoubtedly an order against the employer,regardless of the language in paragraph 10.\u00a0 The three items of Citation No. 3 wereaffirmed and penalties were assessed for them.\u00a0 The exculpatory language states thatnothing in the agreement \”shall be construed as an admission\”, that it violatedthe standards, but such an admission is not necessary to base a repeated violation on theagreement.\u00a0 In a contested case that goes to hearing, the employer seldom admits itviolated a standard at issue, yet if the judge affirms the citation, the final order canserve as a predicate to a repeated violation.In its brief, Ford argues that \”since in that Agreementthe parties agreed that no violations of the Act had occurred, there was no final Orderupon which a repeat citation could have been based\” (Ford’s Brief, p. 34). \u00a0Nothing in paragraph 10 of the settlement agreement can be construed as an agreement bythe Secretary that no violations had occurred.The last sentence of the paragraph states: \”The settlementis not to be taken as an admission of fault or liability and shall not affect any rightsor defenses in the future that Respondent may have in any other proceeding other than onearising under the Act\” (emphasis added).\u00a0 This sentence can only be read to meanthat in proceedings arising under the Act (such as the case at bar), Ford’s rights ordefenses can be affected by the settlement agreement.\u00a0 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 trainingon hazardous chemicals in their work area at the time of their initial assignment, andwhenever a new hazard is introduced into their work area.Ford established that it had provided its employees with copiesof its hazard communications program (Exs. R-5, R-6).\u00a0 Employees were required toreview the program in order to receive their paychecks (Tr. 306).\u00a0 The Secretary hasfailed to establish that these efforts were inadequate to meet the requirements of thestandard.\u00a0 Ford was not in violation of ?1926.59(h).PENALTIES Under 17(j) of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, the gravity ofthe violation, the good faith of the employer, and the history of previous violations indetermining the assessment of an appropriate penalty.\u00a0 No evidence was adducedconcerning the size of the employer’s business.Upon due consideration of the other relevant factors, it isdetermined that the following are appropriate penalties: CITATION NO. 1\u00a0 Item Penalty 1 $500.00 3 700.00 CITATION NO. 2 Item Penalty 1 $1,000 CITATION NO. 3 Item Penalty 1 $3,600.00 2 500.00 \u00a0FINDINGS OF FACT AND CONCLUSIONS OF LAWThe foregoing decision constitutes the findings of fact andconclusions of law in accordance with Federal Rule of Civil Procedure 52(a).ORDER It is hereby ordered that the citations and their items will bedisposed of as follows:\u00a0 Citation No. 1 Penalty Item 1 [29 C.F.R. ?1926.59(g)(8)] Affirmed $500.00 Item 2 [29 C.F.R. ?1926.251(a)(1)] Vacated 00.00 Item 3 [29 C.F.R. ?1926.651(d)] Affirmed 700.00 \u00a0 Item 4 [29 C.F.R. 1926.651(k)(1)] Vacated 00.00 Item 5 [29 C.F.R. 1926.651(k)(2)] Vacated 00.00 \u00a0Citation No. 2\u00a0 Item 1 [29 C.F.R. ?1926.652(a)(1) Affirmed as Serious 1,000.00 \u00a0 Citation No. 3 Item 1 [29 C.F.R. ?1926.21(b)(2)] Affirmed 3,600.00 Item 2 [29 C.F.R. ?1926.59(e)(1)] Affirmed 500.00 Item 3 [29 C.F.R. ?1926.59(h)] Vacated 00.00 \u00a0PAUL L. BRADYJudgeDate: May 28, 1991FOOTNOTES: [[1]] Of those vacated, the Secretary petitioned only forreview of the section 1926.59(h) employee information and training item, and that item wasdirected for review.\u00a0 Ford petitioned for review of the judge’s rulings on the FourthAmendment issue, the motion to dismiss and the five items affirmed.\u00a0 Directed forreview were four of those five citation items and the motion to dismiss.\u00a0 TheSecretary subsequently withdrew the citation item for failure to maintain a written hazardcommunication program at the workplace under section 1926.59(e)(1), leaving three affirmeditems and one vacated item on review.[[2]] Ford claims that two alternative bases exist fordismissing the Secretary’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 the Commission).\u00a0 However, Ford does notseriously challenge the rule itself as a reasonable interpretation of the statute.Therefore, especially in light of the Secretary’s stipulation that transmittal wasuntimely, we treat both statutory and regulatory grounds as one.[[3]] Ford also argues that the Secretary’s late transmittaldeprives the Commission of jurisdiction over the matter.\u00a0 Ford cites no precedent tosupport its argument, however, and the Commission has not generally considered theSecretary’s failure to transmit the NOC within the allotted period to be a jurisdictionalquestion.[[4]] In its motion to dismiss, Ford mainly focuses not on the7-day transmittal delay, but on the Secretary’s conduct later, during the pretrialdiscovery process.\u00a0 Six weeks elapsed between the day Labor Department staff memberserroneously responded to Ford’s interrogatory about the transmittal date and the day theybecame sufficiently aware of the existence, cause, and duration of the initial 7-day delayto respond accurately to that interrogatory.\u00a0 It is the Secretary’s behavior duringthis six-week period which Ford claims sank to the level of contumacy.\u00a0 That theSecretary mentioned right in her cover letter accompanying the complaint that the untimelyNOC transmittal date could pose a problem suggests good faith, not–as Ford would haveit–an attempt to cover up her error.\u00a0 The record or this point does not indicateobstinate disobedience or disrespect for the Commission, and even if it did, theappropriate response on Ford’s part would have been to seek discovery sanctions.[[5]] Rule 41 provides in part:(a) Sanctions.\u00a0 When any party has failed to plead orotherwise proceed as 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.\u00a0 Thereafter, the Commission or Judge, in theirdiscretion, may enter a decision against the defaulting party or strike any pleading ordocument not filed in accordance with these rules.(b) Motion to set aside sanctions.\u00a0 For reasons deemedsufficient by the Commission 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 materialsafety data sheets for each hazardous chemical in the workplace, and shall ensure thatthey are readily accessible during each work shift to employees when they are in theirwork area(s).[[7]] Ford did not raise, and we do not address, thepossibility that the gasoline on its site may not have constituted a \”hazardousmaterial\” under the exception in section 1926.59(a)(6)(vii) or that some otherexception like section 1910.1028(a)(2)(i) might apply.\u00a0 To quality for the\”normal consumer use\” exception, for example, the employer must demonstrate thatits employee’s use and exposure is comparable to a consumer’s.\u00a0 The record shows onlythat Ford employees used \”gasoline for some of the equipment, includingcompactors.\”\u00a0 The Commission has held that the party claiming the benefit of anexception bears the burden of proving that its case falls within that exception. \u00a0Dover Elevator Co., 15 BNA OSHC 1378, 1381, 1991 CCH OSHD ? 29,524, p. 39,849 (No.88-2642, 1991).\u00a0 Ford has not shown that any exception applies.[[8]] The standard provides:?1926.59 Hazard Communication.(h) Employee information and training.\u00a0 Employers shallprovide employees with information and training on hazardous chemicals in their work areaat the time of their initial assignment, and whenever a new hazard is introduced intotheir work area.(1) Information. Employees shall be informed of:(i) The requirements of this section;(ii) Any operations in their work area where hazardouschemicals are present; and,(iii) The location and availability of the written hazardcommunication program, including the required list(s) of hazardous chemicals, and materialsafety data sheets required by this section.(2) Training.\u00a0 Employee training shall include at least;(i) Methods and observations that may be used to detect thepresence or release of a hazardous chemical in the work area (such as monitoring conductedby the employer, continuous monitoring devices, visual appearance or odor of hazardouschemicals when being released, etc);(ii) The physical and health hazards of the chemicals in thework area;(iii) The measures employees can take to protect themselvesfrom these hazards, including specific procedures the employer has implemented to protectemployees from exposure to hazardous chemicals, such as appropriate work practices,emergency procedures, and personal protective equipment to be used; and(iv) The details of the hazard communication program developedby the employer, including an explanation of the labeling system and the material safetydata sheet, and how employees can obtain and use the appropriate hazard information.[[9]] The record contains no testimony that Fordrepresentatives involved in the 1989 settlement were misled into believing that theSecretary could not use that agreement as the basis for a \”repeated\” violationin the future.\u00a0 On the other hand, we can see how a pro se employer with an untrainedeye might focus exclusively on the favorable, exculpatory language instead of reviewingthe document as a whole.\u00a0 We would therefore admonish the Secretary that even theperception among employers that settlement agreements contain \”hidden\” traps maydeter employers 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 therecognition and avoidance of unsafe conditions and the regulations applicable to his workenvironment to control or eliminate any hazard or other exposure to illness or injury.[[11]] The revised excavation standards became effective onMarch 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 the standard isbroad but clear, not void for vagueness) and H.C. Nutting Co. v. OSHRC, 615 F.2d 1360 (6thCir. 1980) (unpublished) (standard does not outline any particular requirements, butrequires that an employer inform employees of safety hazards addressed by specific OSHAregulations).[[13]] We note the distinction between the training standardhere and the one the Commission recently considered in Trinity Indus., Inc., 15 BNA OSHC1788,1992 CCH OSHD ? 29,773 (No. 89-1791, 1992).\u00a0 The standard in Trinity provided:?1910.178 Powered industrial trucks(1) Operator training.\u00a0 Only trained and authorizedoperators shall be permitted to operate a powered industrial truck.\u00a0 Methods shall bedevised to train operators in the safe operation of powered industrial trucks.The Trinity standard implies that it is employers who are to\”permit\” and to \”devise.\”\u00a0 The standard is the instant case, onthe 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.\u00a0 (1) Eachemployee in an excavation 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 andexamination of the ground by a competent person provides no indication of a potentialcave-in.[[15]] Section 1926.650 (b) defines \”cave-in\” as\”the separation of a mass of soil or rock material from the side of an excavation, orthe loss of soil from under a trench shield or support system, and its sudden movementinto the excavation, either by falling or sliding, in sufficient quantity so that it couldentrap, bury, or otherwise injure and immobilize a person.\”[[1]] That is, 15 days plus 3 days for service by mail. \u00a0OSHRC Rule of Procedure ? 2200.4.[[2]] At the hearing, Ford moved to dismiss Citation No. 2.\u00a0 That motion was held in abeyance and is hereby denied (Tr. 285-288).”