” STEPHEN ADAMOWICH dba TERRYVILLE SANITATION SERVICE, Docket No.2035var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘\u00a0Respondent also operated a small real estate firm in which he netted $2,000.00 for 1972. The net\\for his combined operations was a loss of $7,000.00 in 1972.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}hr{\theight: 0.0125in;\tbackground-color: black}td.table2column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table2column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column1{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column3{\tpadding-left: 0.075in;\tpadding-right: 0.075in}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}body{\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.075in;\tpadding-left: 0.1in}UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 2035STEPHEN ADAMOWICH dbaTERRYVILLE SANITATION SERVICE,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0ORDER OF REMANDFebruary 22, 1973Before MORAN, Chairman; VAN NAMEE and BURCH, CommissionersVAN NAMEE, COMMISSIONER:On January 23, 1973, Judge David H. Harris issued an order vacating Complainant\u2019scitation in the above-captioned matter. He based his order on the ground that the Complainanthad failed to forward Respondent\u2019s notice of contest to the Commission within seven days ofreceipt as required by Commission Rule 32 (29 CFR 2200.32).Pursuant to the authority vested in the members of the Commission by Section 12(j) ofthe Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq., 84 Stat. 1590,hereinafter referred to as \u2018the Act\u2019), I am herewith directing that the Judge\u2019s Order be reviewedby the Commission. For the reasons given hereinafter we reverse and remand.We have reviewed the record and note that the Respondent was issued a citation andnotification of proposed penalty dated December 7, 1972. Thereafter Respondent filed a noticeof contest which was received by the Complainant\u2019s Area Director on December 15, 1972. Thenotice of contest was not received by the Commission until January 12, 1973 and thus wasreceived outside the period prescribed by Rule 32.Complainant has now filed a motion for reinstatement of the above-captioned matter, aswell as a petition for discretionary review of the Judge\u2019s ruling. It represents that the subjectnotice of contest was properly transmitted to the Commission by placement in the United Statesmail on December 15, 1972, the same day it was received by the Area Director. Attached to itsmotion is a supporting affidavit executed by the employee of the Complainant who mailed thesubject notice of contest. She attests to the fact that the notice of contest was timely mailed to theCommission on December 15, 1972.It is further represented that the reason said notice of contest failed to reach theCommission until January 12, 1973 is unknown to the Complainant. Complainant offers thesuggestion that the only reasonable and plausible explanation for such a mailing delay wouldappear to be a Christmas seasonal misdirection.The Commission is of the opinion that the Complainant has established, by swornstatement, that the subject notice of contest was transmitted to the Commission within sevendays of receipt thereof and was thus timely filed. The delay in receipt of said notice of contest bythe Commission may be attributed to the vagaries of mail handling.Accordingly we find that the extreme sanction of vacation of the citation is inappropriatein the circumstances of this case.It is therefore ORDERED that the Judge\u2019s Order be and the same is hereby set aside andthe case is remanded for further proceedings consistent with this Order.\u00a0[The Judge\u2019s decision referred to herein follows]HARRIS, JUDGE, OSAHRC:The citations herein are dated December 7, 1972, one serious seeking $700.00 and theother non-serious seeking $105.00. The notice of contest, dated December 14, 1972, was servedon OSHA on December 15, 1972. OSHA filed its complaint on January 4, 1973, but did notforward the notice of contest until January 12, 1973. No excuse is offered. The citations areordered vacated since the notice of contest was not filed as required by the Act and theCommission\u2019s Rules. The complaint is likewise ordered dismissed.\u00a0Footnotes\u00a01Respondent also operated a small real estate firm in which he netted $2,000.00 for 1972. The netfor his combined operations was a loss of $7,000.00 in 1972.UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 2035STEPHEN ADAMOWICH dbaTERRYVILLE SANITATION SERVICE,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0August 30, 1973OSTERMAN, JUDGE, OSAHRC:This is a proceeding initiated pursuant to Section 10(c) of the Occupational Safety andHealth Act of 1970, 29 USC 651 et seq. (hereafter the Act) to contest Citations and a Notice ofProposed Penalty issued by the Secretary to Respondent on December 7, 1972. A hearing in thematter was held in Hartford, Connecticut, on April 5, 1973.The record discloses that Respondent was charged as follows:\u00a0\u00a0Abatement dateProposed penaltySerious violation:\u00a029 CFR 1926.652(b)Immediate $700.00[Failure to shore, brace, slopeor otherwise support sides oftrench 9 feet in depth]Immediate$700.00Non-Serious violation:\u00a029 CFR 1926.652(h)Immediate $105.00[Failure to provide ladder formeans of exit from ditch]Immediate$105.00\u00a0A Notice of Contest timely filed on December 15, 1972, challenged both the alleged violationsand the proposed penalties.At the hearing the parties stipulated that Respondent is engaged in the business ofinstalling sewer pipe; that Respondent regularly handles and works with goods which havemoved in interstate commerce such as sewer pipe which comes from Ohio and is thus engaged ina business affecting commerce within the meaning of Section 3 of the Act (Tr. 5\u20136).Testimony by witnesses at the hearing, including that and a local sewer inspector for theTown of Plymouth, Connecticut, and a police officer of the Plymouth Police Department,disclosed that on November 21, 1972, one John Langer an employee of the Respondent wasassisting Respondent in laying a sewer pipe on South Eagle Street, Terryville, Connecticut.Respondent Stephen Adamowich was operating a back-hoe while Langer\u2019s job was to get intothe ditch being dug and lay the pipe in the correct position (Tr. 10\u201311, 24). The ditch in whichLanger worked was approximately 20 feet long and 9 feet in depth (Tr. 11, 25, 43, 55, Exh. C\u20134,C\u20135); 3 feet wide at the bottom and 4\u20136 feet wide at the top (Tr. 11\u201320, 43, 55). Water seepedinto the excavation from the sides (Tr. 11, 44); the soil was loam and clay with some gravel (Tr.11, 25); and unstable in character (Tr. 56). The sides of the trench lacked any kind of support andwere not sloped to prevent a cave-in (Tr. 13\u201314, 25, 43). There was no ladder provided forescape from the excavation (Tr. 12, 25, 44).During the pipe-laying operation the sides of the trench collapsed burying Langer, theRespondent Adamowich, and Robert Draper, the sewer inspector up to their chins in soil (Tr.13\u201314, 27). They remained buried in this position for approximately 35 minutes and wererescued by members of the Terryville Police who worked more than an hour to free them (Tr.13\u201314, 43). All three were taken to the local hospital for examination (Tr. 14, 27). Respondentwas severely injured.The uncontradicted testimony given by Respondent indicates that his sewer constructionwork is primarily a one-man operation in which the Respondent personally performs most of thenecessary labor (Tr. 76); that Respondent\u2019s gross income from his sewage construction workamounted to $40,000.00 in 1972; and that his expenditures in this activity were $49,000.00 for anet loss of $9,000.00. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); }The evidence is conclusive that on November 21, 1972, the Respondent violated thesafety standards in question and that the Citation is fully supported by the evidence. With respectto the proposed penalty, however, I find that it is excessive when measured against theRespondent\u2019s size and ability to pay.FINDINGS OF FACT1. Respondent, STEPHEN ADAMOWICH d\/b\/a TERRYVILLE SANITATIONSERVICE is engaged in business which involves the installation of sewer pipe. Respondent\u2019sprincipal office is located at 40 Allen Street, Terryville, Connecticut.2. Respondent regularly purchases, handles and works with goods which have moved ininterstate commerce.3. On November 21, 1972, Respondent had in his employ one John Benjamin Langerwho assisted Respondent in a sewer pipe installation job at a worksite located at 45 South EagleStreet, Terryville, Connecticut.4. At various times in the summers Respondent has employed his son to assist him in hissewer construction activities.5. On November 21, 1972, Respondent was engaged in digging a trench and laying asewer pipe in that trench. He was assisted by John Langer.6. Langer\u2019s duties included getting into the trench and locating the sewer pipe properly atthe bottom thereof.7. The dimensions of the trench dug by Respondent were approximately 20 feet long, 9feet deep, 3 feet wide at the bottom, and 4 to 6 feet wide at the top.8. The soil in which the said trench was dug consisted of gravel, clay and loam and wasmade further unstable by water seepage from a nearby well.9. On November 21, 1972, Respondent failed to shore, sheet, brace, slope or otherwisesupport the sides of the said trench as required by 29 CFR 1926.652(b).10. On November 21, 1972, Respondent failed to provide a ladder extending from thefloor of the trench excavation to at least three (3) feet above the top of the trench.11. On November 21, 1972, while Respondent, an employee, and a sewer inspector werestanding inside of the trench, a cave-in occurred which required rescue operations by the localpolice department and which injured all three persons.12. Respondent\u2019s gross income from his sewer construction business amounted to$40,000.00 in 1972. In the same year his business expenses were $49,000.00.13. As a result of an inspection of a worksite located at 45 South Eagle Street, Terryville,Connecticut, by an authorized representative of the Complainant, Respondent on December 7,1972, was issued a Citation charging a serious violation [29 CFR 1926.652(b)] and a secondCitation charging a non-serious violation [29 CFR 1926.652(h)]. A Notice of Proposed Penaltieswas also issued on the same day proposing a $700 penalty for the serious violation and a $105penalty for the non-serious violation.14. The penalties proposed by the Complainant, while giving due consideration to thecriteria set out in Section 17(j) of the Act are excessive in view of Respondent\u2019s size andfinancial status.CONCLUSIONS OF LAW1. Respondent, Stephen Adamowich, d\/b\/a Terryville Sanitation Service is engaged inbusiness as a sewer contractor.2. Respondent at all material times was an \u2018employer\u2019 engaged in a business \u2018affectingcommerce\u2019 as those terms are defined by Section 3 of the Act.3. On November 21, 1972, Respondent was in violation of 29 CFR 1926.652(b) [aSerious Violation] and 29 CFR 1926.652(h) [a NonSerious Violation].ORDERPursuant to Section 10(c) of the Act and Rule 66 of this Commission\u2019s Rules ofProcedure it is ORDERED.1. That the Citations issued by the Complainant against Respondent on December 7,1972, be and they hereby are, AFFIRMED.2. That the penalty of $700.00 proposed for violation of 29 CFR 1926.652(b) and thepenalty of $105.00 proposed for violation of 29 CFR 1926.652(h) be, and they hereby are,VACATED.3. That a penalty of $350.00 be assessed for violation of 29 CFR 1926.652(b) and apenalty of $50.00 be assessed for violation of 29 CFR 1926.652(h).\u00a0″