“Docket No. 81-0992 SECRETARY OF LABOR ,Complainant,v.THE HORVITZ COMPANY,Respondent.OSHRC Docket No. 81-0992DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION:A decision of former Administrative Law Judge Jess D. Ewing is before theCommission under 29 U.S.C. ? 661(i).\u00a0 The Horvitz Company was installing andconstructing sewers and catch basins at a worksite in Cleveland Heights, Ohio.\u00a0 Ithad excavated a cavity that was approximately seven feet deep, nine feet wide and thirteenfeet long.\u00a0 The employer was issued a citation alleging a serious violation of thetrenching standard at 29 C.F.R. ? 1926.652(c).\u00a0 Before the hearing, the Secretary ofLabor moved to amend the citation to alternatively allege a violation of the excavationstandard at 29 C.F.R. ? 1926.651(c) in that the excavation was not shored or otherwiseprotected against the danger of \”moving ground.\”\u00a0 The motion to amend wasgranted by the judge over the employer’s objection.\u00a0 After a hearing, the judge founda serious violation of section 1926.651(c).\u00a0 On review, the employer argues that thejudge erred in allowing the pre-hearing amendment and affirming the citation.\u00a0 Wehave examined the entire record and find no prejudicial error in the judge’s decision.\u00a0 Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 MAR 30 1984ROWLAND, Chairman, Dissenting:I agree that the judge did not err in granting the Secretary’s motion for aprehearing amendment,[[1]] but I conclude that the Secretary did not by a preponderance ofthe evidence establish a violation of 29 C.F.R. ? 1926.651(c).\u00a0 Therefore, I dissentfrom the majority’s decision to affirm the judge.The standard at issue, section 1926.651(c),[[2]] requires that \”[t]hewalls and faces of all excavations in which employees are exposed to danger from movingground shall be guarded by a shoring system, sloping of the ground, or some otherequivalent means.\”\u00a0 In interpreting this standard, the Commission has previouslyheld that it requires specific proof by the Secretary of employee exposure to a dangerfrom moving ground.\u00a0 Pipe-Rite Utilities, Ltd., 82 OSAHRC 3\/B1, 10 BNA OSHC1289, 1982 CCH OSHD ? 25,877 (No. 79-234, 1982).\u00a0 The determination of whether sucha danger exists is a factual matter requiring consideration and evaluation of all theconditions at the worksite including any expert testimony.\u00a0 Seaward ConstructionCo., 77 OSAHRC 75\/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD ? 21,803 (No. 8684, 1977).In this case, the judge credited the compliance officer’s testimony that thesoil was clay and clay loam over the testimony of Respondent’s superintendent that theexcavation was dug in rock.\u00a0 He further found from the compliance officer’s testimonythat clay soil tends to lose stability when exposed to air due to loss of moisture andthat vibration from construction equipment and other traffic was a special circumstancesufficient to cause a danger from moving ground within the meaning of the standard. \u00a0In my view, while the judge properly recognized the Secretary’s burden to show a dangerfrom moving ground based on the particular conditions and circumstances existing at theworksite in question, he did not give proper consideration to Respondent’s testimonyregarding the composition of the soil.\u00a0 In addition, his finding on the dangerpresented by construction and other vehicles operating adjacent to the excavation is basedon unsupported opinion testimony showing only a possibility of a hazard, which in my viewis insufficient to satisfy the Secretary’s burden of proof.The compliance officer, Hutchison, took no soil samples and made no tests.\u00a0 His conclusion that the soil was clay and clay loam was based solely on visualobservation of the excavation.\u00a0 The record shows that other than two days’ trainingas a compliance officer, Hutchison’s only education in recognizing soil type was what hecharacterized as \”non-formal\” training by persons in the construction industry,who showed him various types of soils.\u00a0 Prior to his employment as a complianceofficer, his experience with determining soil type consisted of estimating the nature ofsoil for purposes of measuring its volume in cut-and-fill work.\u00a0 As a complianceofficer, he had inspected three clay excavations and one clay backfill excavation in thenortheast Ohio area, where the alleged violation at issue here occurred.In contrast, Respondent presented as a witness its superintendent, Carpenter,who had been with Horvitz over 30 years, has a degree in civil engineering, and had been aregistered engineer in Ohio for 26 years.\u00a0 Carpenter testified from his personalknowledge of the excavation that it was dug primarily in rock, with an upper layer ofshale mixed with soil.\u00a0 He stated that it had been very difficult to dig theexcavation, and that jackhammers had had to be used extensively.\u00a0 He furtherindicated that his characterization of the material as rock was consistent with theconfiguration of an existing pipe in the excavation.[[3]]The judge, recognizing the conflict between the witnesses regarding thecomposition of the excavation, found Hutchison’s testimony more credible on the basis thatit was consistent with photographs taken during the inspection showing one wall of theexcavation. The judge made this finding despite Carpenter’s specific testimony that thelower five feet of the wall shown in the photographs consisted of rock with a facing oroverlay of dirt.\u00a0 The judge also did not mention Carpenter’s opinion that based onhis knowledge of soil determination it would not be possible to ascertain whether amaterial is clay by visual observation alone, and that normally tests would be performedto identify soil material by its particle size.\u00a0 Thus, not only did the judge merelyrely on the photographs without explaining how they supported the compliance officer’stestimony, but the judge made no findings as to whether clay can be detected by visualobservation alone.\u00a0 Nor, assuming such detection is possible, did the judge make anyfindings as to whether the photographs accurately presented the actual conditions in theexcavation.The Commission requires that a judge’s credibility finding be made in thelight of, and give consideration to, the entire record, as well as resolve importantsubsidiary factual issues.\u00a0 The Commission need not defer to a credibility finding bya judge that does not meet these criteria.\u00a0 C. Kaufman, Inc., 78 OSAHRC 3\/C1,6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD ? 22,481, pp. 29,099-100 (No. 14249, 1978).\u00a0 It is obvious that the judge’s credibility finding in favor of the Secretary inthis case is seriously deficient.\u00a0 Not only did the judge leave unresolved importantfactual issues raised by the testimony, but he failed to state any reasons for decliningto credit Carpenter’s testimony regarding the inadequacy of visual observation in thecircumstances presented here, despite the fact that Carpenter’s testimony on these matterswas unrebutted and uncontradicted.\u00a0 Accordingly, the Commission errs in accepting thejudge’s credibility findings.\u00a0 See P & Z Co., 77 OSAHRC 211\/F5, 6BNA OSHC 1189, 1192, 1977-78 CCH OSHD ? 22,413, p. 27,024 (No. 76-431, 1977).\u00a0 Inview of Carpenter’s professional qualifications, his extensive experience with excavationwork, his personal knowledge of the excavation in question, and the fact that his opinionis consistent with the location of the existing sewer pipe within the excavation, I wouldconclude that his testimony of the composition of the excavation is entitled toweight.[[4]]\u00a0 See my dissenting opinion in Kelly Springfield Tire Co.,82 OSAHRC 47\/B6, 10 BNA OSHC 1970, 1975, 1982 CCH OSHD ? 26,223, p. 33,115, (No. 78-4555,1982), petition for review filed, No. 82-4389 (5th Cir. Oct. 6, 1982).The record further shows that the worksite in question was located along thenorthern side of a four-lane divided highway.\u00a0 At the time of the inspection allregular vehicular traffic in both directions was restricted to the two southern lanes,with the northern traffic lanes reserved for the use of construction equipment.\u00a0 Afairly wide berm separated the two pairs of traffic lanes such that, as shown by ablueprint admitted into evidence, the southernmost traffic lanes were at a minimumdistance of approximately sixty feet from the excavation.\u00a0 According to Hutchison, heobserved several medium-sized trucks and a \”fair amount\” of automobile trafficon the south roadway, and he stated that a front-end loader and two trucks moved back andforth along the roadway between five and seven feet from the southern edge of theexcavation.\u00a0 Hutchison gave his opinion that because of vibration from theconstruction equipment and the vehicle traffic it would be \”possible\” that a\”piece\” of the excavation wall might become dislodged.Hutchison’s testimony indicates that he did not consider a collapse of theentire wall of the excavation even to be a possibility. Furthermore, his concern that apiece might fall was limited to the north wall of the excavation, that is, the sidefurthest from the roadway.[[5]]\u00a0 Considering that the excavation was nine feet inwidth, the construction equipment then could not have been any closer to the north wallthan fourteen feet.\u00a0 Furthermore, Hutchison conceded that the speed of the movingequipment might have an effect on the danger from vibration, but said he could not be sureof its effect.\u00a0 He stated that the speed of the construction vehicles was very slowand did not indicate the speed of the traffic passing along the southernmost lanes furtherdistant from the excavation.\u00a0 Nor did he state how frequently or, indeed, how manytimes the construction equipment moved past the excavation. Finally, he did not observeany ground move during the inspection, and the record does not indicate that he actuallyfelt any vibration while he was present on the jobsite.[[6]]In my view, in order to establish a violation of a standard such as the oneat issue here, which requires proof that a hazardous condition exists, the Secretary mustpresent more substantial evidence than a mere unsupported opinion that the hazard couldoccur. See Snyder Well Servicing, Inc., 82 OSAHRC 10\/C5, 10 BNA OSHC 1371,1380, 1982 CCH OSHD ? 25,943, p. 32,515 (No. 77-1334, 1982) (concurring and dissentingopinion).\u00a0 In this case, the compliance officer was not shown to have had anyexpertise or familiarity with vibration from equipment at trench or excavation worksites.\u00a0 There is no indication that his opinion that a hazard of moving ground could existwas based on any consideration of the distance of the construction equipment and othertraffic from the excavation or the speed and frequency of movement of those vehicles.\u00a0 On this record, his opinion clearly is utterly speculativeand, as such, is not entitled to dispositive weight.\u00a0 H.E. Weise, Inc., 82OSAHRC 18\/A2, 10 BNA OSHC 1499, 1510-11, 1982 CCH OSHD ? 25,985, pp. 32,618-19 (No.78-204, 1982) (dissenting opinion).Furthermore, Hutchison’s testimony does not establish that a danger frommoving ground would have existed at any time that an employee was working within theexcavation,[[7]] nor does it show that the employee in the excavation would necessarilyhave been endangered by the movement of simply a \”piece\” of the excavation wall,as described by Hutchison.[[8]]\u00a0 Therefore, the citation should also be vacated forfailure to show employee exposure to moving ground, as required by the terms of thestandard.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] The Secretary filed his motion to amend approximately one week after Respondent, ina discussion between counsel, asserted that the wrong standard had been cited.\u00a0 Thefiling date also was two days after the judge ordered a continuance due to theunavailability of the compliance officer to testify, and it appears Respondent receivedthe motion two weeks prior to the rescheduled hearing date.\u00a0 As I stated in mydissenting opinion in United Cotton Goods, Inc., 82 OSAHRC 8\/A2, 10 BNA OSHC 1389,1982 CCH OSHD ? 25,928, (No. 77-1894, 1982), leave to amend under Federal Rule of CivilProcedure 15(a) is within the discretion of the trial judge, and may be denied for undueor unjustified delay where the movant had sufficient prior opportunity to amend.\u00a0 Inthe circumstances of this case, it cannot be said that the Secretary acted with unduedelay, and, therefore, the judge did not abuse his discretion in allowing the amendment.Respondent, however, also contends that it was engaged in settlementnegotiations with the Secretary, and to allow the Secretary’s pretrial motion to amendwould frustrate the settlement process.\u00a0 The Secretary, however, would not have beenprecluded from citing both standards in the alternative in the first instance. \u00a0Furthermore, the Commission has previously held that in situations where a challenge ismade to the applicability of the cited standard, the preferred practice is that theSecretary make a timely motion to amend to alternatively allege a violation of anotherarguably applicable standard so as to afford the judge the opportunity to consider theissues presented. J.L. Manta Plant Services Co., 82 OSAHRC 61\/A2, 10 BNA OSHC 2162,1982 CCH OSHD ? 26,303 (No. 78-4923, 1982).[[2]] The judge found this standard more appropriate than the trench standard originallycited, section 1926.652(c).\u00a0 Neither party took exception to this finding, and reviewwas not directed on any issue relating to the applicability of the excavation standard.[[3]] Carpenter explained that Respondent was installing new catch basins inseveral locations along a roadway to join with an existing outlet sewer pipe.\u00a0 Atsome point during this work, the rock layer was encountered.\u00a0 Because of theresistant nature of the rock layer, the existing sewer pipe had been installed at ashallower depth than at those locations where there was no rock.\u00a0 At the location atissue in this case, it had been necessary for Respondent to install a brick foundation tobring the catch basin up to the level of the pipe.[[4]] I note that the judge did not purport to discredit Carpenter on those factors suchas demeanor, memory, perception, or narration, that are most effectively analyzed by thetrier of fact.\u00a0 Asplundh Tree Expert Co., 79 OSAHRC 109\/A2, 7 BNA OSHC 2074,2078 (No. 16162, 1979).[[5]] Hutchison explained that the south wall of the excavation, the sideclosest to the roadway, was sloped.\u00a0 The judge erroneously found that none of thesides of the excavation was shored or sloped.[[6]] He stated that he had inspected other worksites where pieces of a wallrather than the entire wall had collapsed.\u00a0 However, he specified no details fromwhich we could conclude that conditions on those other worksites were in any way similarto those presented here.[[7]] On review, Respondent contends that the judge erred in finding that anemployee had been working in the excavation.\u00a0 While Hutchison did not observe anyonein the excavation, I agree with the judge that the record does establish that an employeehad been in the excavation doing masonry work at some time prior to Hutchison’sobservation.\u00a0 It appears that this employee had taken no more than one hour toperform this work.[[8]] Indeed, Hutchison characterized the conditions as showing a\”potential hazard.\””