“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 11092\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPAR CONSTRUCTION COMPANY, INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBARNAKO, Chairman:\t\t\t\t\t\t\t\t\t\tAn order of Review Commission Judge Henry K. Osterman, dated July 28, 1975, is\t\t\t\t\t\t\t\t\t\tbefore this Commission for review pursuant to 29 U.S.C. \u00a7 661(i).\t\t\t\t\t\t\t\t\t\tOn review, Respondent argues 1) that the Judge\u2019s denial of Respondent\u2019s motion for\t\t\t\t\t\t\t\t\t\tproduction of documents was prejudicial error; 2) that the Judge erred in ruling that the citations\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\twere issued with reasonable promptness; 3) that the Judge erred in finding, on the evidence of\t\t\t\t\t\t\t\t\t\trecord, that Respondent violated the occupational safety and health standards at 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.652(b) and (h); and 4) that the existence of an operational Maryland state plan precluded\t\t\t\t\t\t\t\t\t\tthe issuance by Complainant of the citations.\t\t\t\t\t\t\t\t\t\tConcerning issues 3 and 4, we adopt the decision of the Judge for the reasons he\t\t\t\t\t\t\t\t\t\tassigned. As to issues 1 and 2, Respondent argues that the citations were not issued with\t\t\t\t\t\t\t\t\t\treasonable promptness and that production of the documents it requested was essential to its\t\t\t\t\t\t\t\t\t\tpresentation of this defense.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe citations were issued ten working days following the inspection of Respondent\u2019s\t\t\t\t\t\t\t\t\t\tworksite by Complainant\u2019s compliance officer. Respondent\u2019s motion sought production of the\t\t\t\t\t\t\t\t\t\tcompliance officer\u2019s inspection notes, his reports to his supervisors, and any other documents\t\t\t\t\t\t\t\t\t\tupon which Complainant relied in issuing the citations.\t\t\t\t\t\t\t\t\t\tUnder the circumstances of this case, however, the materials sought are not relevant to a\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t29 U.S.C. \u00a7 658(a) requires that a citation be issued with \u2018reasonable promptness.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tdetermination of whether the citations were issued with reasonable promptness. A citation\t\t\t\t\t\t\t\t\t\tissued an unreasonable length of time after alleged violations are discovered will be vacated if\t\t\t\t\t\t\t\t\t\tthe employer is prejudiced as a result of the delay. See Coughlan Construction Co., 20 OSAHRC\t\t\t\t\t\t\t\t\t\t641, BNA 3 OSHC 1636, CCH OSHD para. 20,106 (1975). Additionally, a citation can be\t\t\t\t\t\t\t\t\t\tvacated if the delay in its issuance is so unreasonable as to be unconscionable. Jack Conie &\t\t\t\t\t\t\t\t\t\tSons Corp., Docket No. 6794, BNA 4 OSHC 1378, CCH OSHD para. 20,949 (June 26, 1976)\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\t(concurring opinion). The record, however, shows that Respondent was not prejudiced by any\t\t\t\t\t\t\t\t\t\tdelay in the issuance of the citation, and it clearly cannot be said that the lapse of ten working\t\t\t\t\t\t\t\t\t\tdays between the inspection and the issuance of the citation is unconscionable. Therefore,\t\t\t\t\t\t\t\t\t\tassuming that the Judge erred in denying the motion for discovery, the error is harmless.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAccordingly, the Judge\u2019s decision is affirmed\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATE: OCT 15, 1976\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Dissenting:\t\t\t\t\t\t\t\t\t\tAll charges in this case should be vacated because of the unexplained 15 day delay in\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tAt the time this case was tried, a rule was in effect whereby a citation was deemed not issued\t\t\t\t\t\t\t\t\t\twith reasonable promptness, and therefore subject to vacation, if issued more than 72 hours after\t\t\t\t\t\t\t\t\t\tComplainant\u2019s authorized representative formed the opinion that a violation existed. Chicago\t\t\t\t\t\t\t\t\t\tBridge & Iron Co., 6 OSAHRC 244, BNA 1 OSHC 1485, CCH OSHD para. 17,187 (1974),\t\t\t\t\t\t\t\t\t\trev\u2019d 514 F.2d 1082 (7th Cir. 1975). Following the court\u2019s decision in Chicago Bridge & Iron,\t\t\t\t\t\t\t\t\t\tthe Commission decided to reject the rule set forth in its prior decision. Coughlan Construction\t\t\t\t\t\t\t\t\t\tco., supra. Nevertheless, at the time the motion for discovery was made,\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tIn Jack Conie, the Commission members expressed differing views concerning the nature of\t\t\t\t\t\t\t\t\t\tthe reasonable promptness defense. Although the \u2018unconscionable delay\u2019 criterion represent only\t\t\t\t\t\t\t\t\t\tmy personal view, the net result will be that, absent prejudice to the employer, a reasonable\t\t\t\t\t\t\t\t\t\tpromptness defense will prevail if and only if a citation is issued following an unconscionable\t\t\t\t\t\t\t\t\t\tdelay. Commissioner Cleary adheres to the view he expressed in Jack Conie that prejudice to the\t\t\t\t\t\t\t\t\t\temployer is the only reason for vacating a citation on grounds of reasonable promptness.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tissuance of the citations involved. This delay is 12 days longer than was intended by Congress\t\t\t\t\t\t\t\t\t\twhen it mandated that citations be issued \u2018with reasonable promptness.\u2019 29 U.S.C. \u00a7 658(a).\t\t\t\t\t\t\t\t\t\t`Congressional intent in this matter is clear, as is noted in the following excerpt from the\t\t\t\t\t\t\t\t\t\tconference committee report:\t\t\t\t\t\t\t\t\t\t\u2018In the absence of exceptional circumstances any delay is not expected to exceed\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\t72 hours from the time the violation is detected by the inspector.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere has been no showing that the delay herein involved was due to unusual\t\t\t\t\t\t\t\t\t\tcircumstances that were beyond complainant\u2019s control. There were, therefore, no \u2018exceptional\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tcircumstances,\u2019 and the citations should be vacated. Contrary to the assertion in the majority\t\t\t\t\t\t\t\t\t\topinion, the statutory requirement that citations be issued with reasonable promptness is not\t\t\t\t\t\t\t\t\t\twaived in the absence of a showing of prejudice or a delay so unreasonable as to be\t\t\t\t\t\t\t\t\t\tunconscionable. It is a positive duty placed on the Secretary of Labor and a citation not so issued\t\t\t\t\t\t\t\t\t\tis void. I have discussed this in more detail in Secretary v. Jack Conie & Sons Corporation,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 6794, June 25, 1976, and Secretary v. Concrete Construction Corporation,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 2490, April 8, 1976.\t\t\t\t\t\t\t\t\t\tAnother issue before us on review, which is not addressed by my colleagues, involves the\t\t\t\t\t\t\t\t\t\tJudge\u2019s affirmance of the charge alleging a violation of 29 C.F.R. \u00a7 1903.2. The evidence\t\t\t\t\t\t\t\t\t\tindicates that an OSHA poster was not located at the construction worksite. The poster was,\t\t\t\t\t\t\t\t\t\thowever, posted at the home office where, the foreman testified, he normally went.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSection 1903.2 provides in pertinent part as follows:\t\t\t\t\t\t\t\t\t\t\u2018(a)(1) Each employer shall post and keep posted a notice or notices . . . informing\t\t\t\t\t\t\t\t\t\temployees of the protections and obligations provided for in the Act . . .. Such\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tThe inspection of respondent\u2019s worksite was conducted on October 21, 1974. The citations\t\t\t\t\t\t\t\t\t\twere not issued until November 5, 1974.\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tStaff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative\t\t\t\t\t\t\t\t\t\tHistory of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971).\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tAs my colleagues indicate in footnote 2, supra, the discovery question raised by respondent is\t\t\t\t\t\t\t\t\t\tmooted by the Seventh Circuit\u2019s rejection of the reasonable promptness test previously applied\t\t\t\t\t\t\t\t\t\tby the Commission. Brennan v. Chicago Bridge and Iron, 514 F.2d 1082 (7th Cir. 1975). Under\t\t\t\t\t\t\t\t\t\tthat ruling and subsequent Commission precedent, the question of when the area director formed\t\t\t\t\t\t\t\t\t\tan opinion regarding the existence of a violation is no longer relevant. In addition, as is noted\t\t\t\t\t\t\t\t\t\tabove, a citation must be issued within 72 hours of the detection of a violation unless exceptional\t\t\t\t\t\t\t\t\t\tcircumstances are demonstrated.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tnotice or notices shall be posted by the employer in each establishment in a\t\t\t\t\t\t\t\t\t\tconspicuous place or places where notices to employees are customarily posted . .\t\t\t\t\t\t\t\t\t\t..\u2019\t\t\t\t\t\t\t\t\t\t\u2018(b) [W]here employers are engaged in activities which are physically dispersed . .\t\t\t\t\t\t\t\t\t\t. the notice or notices required by this section shall be posted at the location to\t\t\t\t\t\t\t\t\t\twhich employees report each day.\u2019 (Emphasis added.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tComplainant has failed to demonstrate that respondent\u2019s posting at the home office did not\t\t\t\t\t\t\t\t\t\tsatisfy the requirements of these regulations. The charge should therefore be vacated.\t\t\t\t\t\t\t\t\t\tCommission precedent indicates that posting at a main office is adequate. Secretary v.\t\t\t\t\t\t\t\t\t\tDanco Construction Company, 17 OSAHRC 170, 179\u2013180 (1975), Secretary v. Abdo S. Allen\t\t\t\t\t\t\t\t\t\tCompany, 14 OSAHRC 481, 487 (1974), Secretary v. Davis-McKee, Incorporated, 9 OSAHRC\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\t59, 80\u201381 (1974). Judge Osterman improperly allocated to respondent the burden of proving\t\t\t\t\t\t\t\t\t\tthat employees regularly reported to the home office. The rule on this matter is to the contrary.\t\t\t\t\t\t\t\t\t\tThe burden of proving each element of a violation rests with complainant. 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t2200.73(a). See also Brennan v. OSAHRC and Hendrix, d\/b\/a Alsea Lumber Company, 511 F.2d\t\t\t\t\t\t\t\t\t\t1139 (9th Cir, 1975).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\tIn view of the majority\u2019s reliance on the Judge\u2019s decision, it is attached hereto as Appendix A.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 11092\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPAR CONSTRUCTION COMPANY, INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tLouis Weiner, Regional Solicitor\t\t\t\t\t\t\t\t\t\tU.S. Department of Labor, Philadelphia, Pennsylvania by Howard K. Agran\t\t\t\t\t\t\t\t\t\tfor the Secretary of Labor\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCharles L. Widman, Esq.\t\t\t\t\t\t\t\t\t\tFor the Respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSTERMAN, Judge, OSAHRC\t\t\t\t\t\t\t\t\t\tThis is a proceeding initiated by the Respondent pursuant to Section 10(c) of the\t\t\t\t\t\t\t\t\t\tOccupational Safety and Health Act of 1970, 29 U.S.C. \u00a7 659(c), (hereafter the Act) in order to\t\t\t\t\t\t\t\t\t\tchallenge two Citations and a Notice of Proposed Penalty issued to Respondent on November 5,\t\t\t\t\t\t\t\t\t\t1974.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe record shows that on November 5, 1974 subsequent to an inspection conducted on\t\t\t\t\t\t\t\t\t\tOctober 21, 1974 Respondent was issued Citations charging a serious violation of 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1926.652(b), a non-serious violation of 29 C.F.R. \u00a7 1926.652(h), and a second non-serious\t\t\t\t\t\t\t\t\t\tviolation of 29 C.F.R. \u00a7 1903.2. A penalty of $550 was proposed for the serious violation. No\t\t\t\t\t\t\t\t\t\tpenalties were proposed for the non-serious violations. The Notice of Contest filed by\t\t\t\t\t\t\t\t\t\tRespondent challenges each item of the Citation and the penalty proposed for the one serious\t\t\t\t\t\t\t\t\t\tviolation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA Complaint and Answer were filed by the parties. In its Answer Respondent challenges\t\t\t\t\t\t\t\t\t\tthe authority of the Secretary of Labor to issue the Citations on a variety of grounds, including\t\t\t\t\t\t\t\t\t\tinter alia that the Citations were not issued with \u2018reasonable promptness\u2019 after the inspection;\t\t\t\t\t\t\t\t\t\tand that the Secretary having approved a plan submitted by the State of Maryland, no longer has\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tjurisdiction over the subject matter of this proceeding.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA stipulation read into the record relates to the correct name of the Respondent; the state\t\t\t\t\t\t\t\t\t\tof incorporation; the fact that no injuries resulted from the alleged violations; that there was no\t\t\t\t\t\t\t\t\t\thistory of previous violations; and that the average daily number of Respondent\u2019s employees is\t\t\t\t\t\t\t\t\t\tfifty (Tr. 3\u20134).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tEvidence given at the hearing discloses that on October 21, 1974 a compliance officer\t\t\t\t\t\t\t\t\t\temployed by the Secretary visited the Respondent\u2019s worksite at Andrews Air Force Base in\t\t\t\t\t\t\t\t\t\tMaryland in response to a complaint relating to an employer other than this Respondent (Tr. 8\u2013\t\t\t\t\t\t\t\t\t\t9). While conducting his inspection the compliance officer observed an open trench in the same\t\t\t\t\t\t\t\t\t\tarea. The compliance officer introduced himself to the employee in charge and stated that\t\t\t\t\t\t\t\t\t\talthough he was present in response to a complaint relating to another employer he intended to\t\t\t\t\t\t\t\t\t\tinclude the trenching area in his inspection of the site (Tr. 12). He paced off the trench and\t\t\t\t\t\t\t\t\t\tdetermined it to be approximately 30 feet long, 8 feet deep and 4 to 6 feet in width at the top with\t\t\t\t\t\t\t\t\t\tabout 5 feet of spoils from the trench piled up on either side. Three employees of the Respondent\t\t\t\t\t\t\t\t\t\twere working in the trench at the time of the inspection (Tr. 11, 12, 16, 19). He also took three\t\t\t\t\t\t\t\t\t\tphotos of the scene which were received in evidence as C\u20131, C\u20132, and C\u20133.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOn cross-examination the compliance officer conceded that he did not measure with a\t\t\t\t\t\t\t\t\t\ttape the dimensions of the trench. Regarding the depth thereof he stated that his estimate of 8\t\t\t\t\t\t\t\t\t\tfeet was made visually and supported by his observation that the employees in the trench were\t\t\t\t\t\t\t\t\t\tabout 6 feet tall and that the top of the trench was approximately two feet above their heads. I\t\t\t\t\t\t\t\t\t\taccept the implications of Respondent\u2019s argument that an actual measurement is more persuasive\t\t\t\t\t\t\t\t\t\tthan an \u2018estimate.\u2019 However, it is also clear from Exhibits C-2 and C-3 that the trench exceeded\t\t\t\t\t\t\t\t\t\tfive feet in depth. No shoring, sheeting or other measures were used to support the sides of the\t\t\t\t\t\t\t\t\t\ttrench which had not been sloped to meet the requirements of Table P\u20131 referred to in 29 C.F.R.\t\t\t\t\t\t\t\t\t\t\u00a7 1926.652 (Tr. 16\u201317). The evidence shows that the sides of the trench which were vertical had\t\t\t\t\t\t\t\t\t\tsloughed off in places and that the soil was loose and unstable and \u2018mushy\u2019 (Tr. 16\u201318, 43).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe compliance officer also testified without contradiction that Respondent had not\t\t\t\t\t\t\t\t\t\tprovided a ladder as an emergency means of exit from the trench and that a poster required by 29\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7 1903.2 was not posted at the worksite (Tr. 20\u201321, 50).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent has made a valiant effort to discredit the compliance officer\u2019s testimony and\t\t\t\t\t\t\t\t\t\tthe manner in which the inspection was conducted (Tr. 29\u201365, 82\u201384, 103\u2013115). With respect to\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tExhibits C\u20131, C\u20132, and C\u20133 Respondent urges that they be excluded from the record because the\t\t\t\t\t\t\t\t\t\tcompliance officer could not say with certainty when they had been taken (Tr. 30). I find,\t\t\t\t\t\t\t\t\t\thowever, that the compliance officer\u2019s method of conducting his inspection was basically correct\t\t\t\t\t\t\t\t\t\tand that any deviation from the 29 U.S.C. \u00a7 657(a) which may have occurred was harmless and\t\t\t\t\t\t\t\t\t\tdid not prejudice the Respondent or materially affect the accuracy of the compliance officer\u2019s\t\t\t\t\t\t\t\t\t\tobservations and report. It should be noted that Respondent\u2019s field superintendent, David\t\t\t\t\t\t\t\t\t\tSavage, conceded that the trench was at least 5 feet in depth as shown in Exhibit C\u20132 (Tr. 106).\t\t\t\t\t\t\t\t\t\tOn balance I find that the basic facts relating to the dimensions of the trench, the type of soil in\t\t\t\t\t\t\t\t\t\twhich it was dug, and the lack of protection required by 29 C.F.R. \u00a7 1926.652(b) and (h) have\t\t\t\t\t\t\t\t\t\tbeen established by the Secretary.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAs to the alleged violation of 29 C.F.R. \u00a7 1903.2 the evidence shows that the required\t\t\t\t\t\t\t\t\t\tposter was on display at the Respondent\u2019s home office (Tr. 110). However, there was no\t\t\t\t\t\t\t\t\t\tevidence offered to show that all employees involved herein regularly reported to the home\t\t\t\t\t\t\t\t\t\toffice and had an opportunity to observe the said poster.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTwo other issues require resolution. On the question of \u2018reasonable promptness\u2019 in the\t\t\t\t\t\t\t\t\t\tissuance of the Citation, the record shows that the inspection was conducted on October 21,\t\t\t\t\t\t\t\t\t\t1974, and that ten (10) working days thereafter, on November 5, 1974 the Citations were issued.\t\t\t\t\t\t\t\t\t\tRespondent has failed to show any prejudice as a result of the elapsed time involved herein and I\t\t\t\t\t\t\t\t\t\ttake notice that in a reasonably active area office such a delay is not unreasonable, Cf: Secretary\t\t\t\t\t\t\t\t\t\tof Labor v. Chicago Bridge and Iron Company, \u2014\u2014 F.2d \u2014\u2014, Case No. 74\u20131214 7th Cir.\t\t\t\t\t\t\t\t\t\t1975.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe final issue is the effect of 29 C.F.R. \u00a7 1952.210 et seq. on the Secretary\u2019s jurisdiction\t\t\t\t\t\t\t\t\t\tto conduct an investigation of Respondent\u2019s worksite in Maryland and issue the Citations herein.\t\t\t\t\t\t\t\t\t\tBriefly stated, the Secretary is authorized by Section 18 of the Act to approve a state plan\t\t\t\t\t\t\t\t\t\tregulating the working conditions of employees in lieu of the Occupational Safety and Health\t\t\t\t\t\t\t\t\t\tAct of 1970 provided certain standards are maintained. During the development phase of an\t\t\t\t\t\t\t\t\t\tapproved state plan (a period of 3 years) the Secretary may exercise concurrent authority under\t\t\t\t\t\t\t\t\t\tSections 8, 9, 10, 13 and 17 of the Act until he determines that the criteria set forth in Section\t\t\t\t\t\t\t\t\t\t18(c) have been met. 29 C.F.R. \u00a7 1952.212 expressly states that the authority of the Secretary to\t\t\t\t\t\t\t\t\t\tenforce this regulation will not be diminished during the three-year developmental period of\t\t\t\t\t\t\t\t\t\tMaryland\u2019s program.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Maryland plan was given approval by the Secretary on June 28, 1973 (38 F.R., No.\t\t\t\t\t\t\t\t\t\t128, July 5, 1973, pp. 17834 et seq.) and until June 28, 1976 at the earliest, the Secretary retains\t\t\t\t\t\t\t\t\t\tjurisdiction to conduct inspections and enforce the health and safety regulations issued pursuant\t\t\t\t\t\t\t\t\t\tto the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent\u2019s contention that the legislative history of the Act supports a finding that the\t\t\t\t\t\t\t\t\t\tSecretary was ousted of general jurisdiction upon his approval of the Maryland plan is without\t\t\t\t\t\t\t\t\t\tmerit. Moreover, reference to legislative history is justified only when the language of a statute is\t\t\t\t\t\t\t\t\t\tambiguous. I find no ambiguity in either Section 18 of the Act or 29 C.F.R. \u00a7 1952.212 which\t\t\t\t\t\t\t\t\t\tcasts doubt upon the Secretary\u2019s authority to issue the Citations herein.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWith respect to the violation of 29 C.F.R. \u00a7 1926.652(b), I find that it was properly\t\t\t\t\t\t\t\t\t\tcharacterized as a \u2018serious\u2019 violation since the potential for serious injury or death in the event\t\t\t\t\t\t\t\t\t\tthat one or more sides of the trench should collapse while an employee was in the trench was\t\t\t\t\t\t\t\t\t\tever present. The penalty of $550 proposed for this violation is reasonable and appropriate under\t\t\t\t\t\t\t\t\t\tthe circumstances herein.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. Respondent Par Construction Company is a corporation organized and existing under\t\t\t\t\t\t\t\t\t\tthe laws of the State of Maryland.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Respondent is an \u2018employer\u2019 engaged in a business \u2018affecting commerce\u2019 as that term\t\t\t\t\t\t\t\t\t\tis defined by 29 U.S.C. \u00a7 653.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. Respondent employs a daily average of 50 persons.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4. Respondent has no history of previous violations of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5. No injuries resulted from the violations charged in the Citations issued to Respondent\t\t\t\t\t\t\t\t\t\ton November 5, 1974.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6. On October 21, 1974 Complainant conducted an inspection of a worksite at Andrews\t\t\t\t\t\t\t\t\t\tAir Force Base in Maryland. As a consequence, Respondent on November 5, 1974 was issued\t\t\t\t\t\t\t\t\t\ttwo Citations charging Respondent with one serious and two non-serious violations of the\t\t\t\t\t\t\t\t\t\tstandards promulgated by the Complainant pursuant to the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7. On the date of inspection three of Respondent\u2019s employees were observed working in a\t\t\t\t\t\t\t\t\t\ttrench. The trench was approximately 30 feet in length, 8 feet in depth, and 4 to 6 feet in width at\t\t\t\t\t\t\t\t\t\tthe top and had been dug by Respondent\u2019s employees in loose and unstable soil. Spoils from the\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\ttrench had been piled along the sides of the trench to a height of approximately 5 feet.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8. The said trench had been neither shored, sheeted, braced, sloped, or otherwise\t\t\t\t\t\t\t\t\t\tsupported as required by 29 C.F.R. \u00a7 1926.652(b).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9. Respondent did not on the date of inspection provide employees working in the trench\t\t\t\t\t\t\t\t\t\twith adequate means of egress from the said trench.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10. On the date of inspection Respondent did not have posted at the worksite the notice\t\t\t\t\t\t\t\t\t\trequired by 29 C.F.R. \u00a7 1903.2 and such a notice although posted at Respondent\u2019s home office\t\t\t\t\t\t\t\t\t\twas not available to all employees.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11. The penalty proposed for Respondent\u2019s violation of 29 C.F.R. \u00a7 1926.652(b) is not\t\t\t\t\t\t\t\t\t\tinconsistent with the criteria established by Section 17(j) of the Act.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. Respondent is an employer within the meaning of Section 3 of the Occupational Safety\t\t\t\t\t\t\t\t\t\tand Health Act of 1970.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Although the State of Maryland on June 28, 1973 received approval from the Secretary\t\t\t\t\t\t\t\t\t\tof Labor of a plan intended in the future to supersede the Act referred to above, the Secretary on\t\t\t\t\t\t\t\t\t\tOctober 21, 1974 did retain, and still does retain, jurisdiction to conduct inspections in Maryland\t\t\t\t\t\t\t\t\t\tand to enforce health and safety standards promulgated by the Secretary.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. On October 21, 1974 Respondent was in violation of 29 C.F.R. \u00a7 1926.652(b); 29\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7 1926.652(h); and 29 C.F.R. \u00a7 1903.2. Respondent\u2019s violation of 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1926.652(b) was a \u2018serious\u2019 violation within the meaning of Section 17(k) of the Act. The\t\t\t\t\t\t\t\t\t\tpenalty proposed for this violation is consistent with the provisions of Section 17(j).\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPursuant to 29 U.S.C. \u00a7 659(c) and Rule 66 of this Commission\u2019s Rules of Procedure, it\t\t\t\t\t\t\t\t\t\tis ORDERED:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. Respondent\u2019s motions to dismiss this proceeding are DENIED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. The Citations issued to the Respondent on November 5, 1974 and the penalty proposed\t\t\t\t\t\t\t\t\t\tfor the serious violation charged therein are AFFIRMED in all respects.\t\t\t\t\t\t\t\t\t\tHENRY K. OSTERMAN\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\tDated: JUL 28, 1975\t\t\t\t\t\t\t\t\t\tHyattsville, Maryland\t\t\t”