“SECRETARY OF LABOR,Complainant,v.TRUMID CONSTRUCTION CO., INC.Respondent.OSHRC DOCKET NO. 86-1139DECISIONBefore: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:The issues before the Commission are (1) whether the Administrative LawJudge erred in vacating an alleged violation of a standard requiringsupport of trenches in \”unstable or soft\” soil, and (2) whether thatalleged violation, and another alleged violation involving an employeeworking in the trench without a hard hat, should be classified asserious. We find that the judge erred in vacating the trench supportviolation, and that both violations should be classified as serious.[[1\/]]Trumid Construction Co. was the excavation contractor for a condominiumconstruction project in Ossining, New York. It was responsible forgrading, digging trenches and laying pipe. On March 6, 1986, a Trumidemployee was fatally injured on the project when the side wall of atrench collapsed. Trumid failed to report the accident to OSHA asrequired by 29 C.F.R. ? 1904.8.OSHA received notice of the fatality when an insurance company contactedit in July 1986.[[2\/]] OSHA then investigated and issued a citationalleging several serious violations, including the two at issueherein.[[3\/]]_TRENCH SUPPORT ITEM_Trumid was cited for noncompliance with the safety standard at 29 C.F.R.? 1926.652(b), which provided:Sides of trenches in unstable or soft material, 5 feet or more in depth,shall be shored, sheeted, braced, sloped, or otherwise supported bymeans of sufficient strength to protect the employees working withinthem. See Tables P-1, P-2 . . . .Trumid disputes the Secretary’s allegation that this standard applies toTrumid’s excavation. Specifically, the parties disagree over whether thesides of the alleged \”trench\” were 5 feet or more in depth, and whetherthe alleged trench was in \”unstable or soft material.\” It is undisputedthat the sides of the trench were not shored, sheeted, or braced.A. _Whether the cited trenching standard applied to Trumid’s excavation_The dimensions and configuration of the excavation are shown in thefollowing cross-section diagram:The pictorial exhibit referred to above is not available in this format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX:202-606-5050; e-mail: [email protected] The dimensions given above are not disputed by the parties. To clarifythem verbally: the first cut into the soil was 18 to 20 inches deep.That cut was about 11 or 12 feet wide. A second, narrower cut was madedown the middle of the first cut. That cut resulted in a cavity about 4to 4 1\/2 feet deeper than the first cut. The second cut was about 3 1\/2feet wide at the bottom and 4 feet wide at the top (the \”bench\”level).[[4\/]] Pipe was laid in the cavity. (Here, the trench already hadbeen dug 700 to 800 feet.)Former ? 1926.652(b) applied only to trenches five feet or more indepth. However, the judge concluded that the standard was not applicableto the cited excavation because the trench portion was less than fivefeet deep, and thus he vacated this item. The judge ruled that thetrench’s depth should not be measured from the original ground level,but from the bottom of the first cut below ground (the benchlevel).[[5\/]] He stated that original ground level was a \”non-existentpoint\” that could not be used in determining the dimensions of the citedtrench.On review, the Secretary argues that under the standard’s plain wordingand intent, this trench should be measured from the original groundlevel. Trumid endorses the judge’s approach. It contends that to measurethe trench’s depth from the original ground level would requiremeasuring from an imaginary point in mid-air. Alternatively, it arguesthat if the area above the benches is considered, the excavation wouldnot be a trench, because it was wider at the top than it was deep.We reject Trumid’s argument that the original ground level must bemerely imagined in a trench such as this. The original ground level maybe ascertained by stretching a string or tape measure between the topsof the walls — here, specifically, the tops of the walls created by thebackhoe’s first cut. The depth of any trench with sloped walls must bemeasured from a point between the sides. Thus, such measurements are notuncommon.[[6\/]] In any event, the standard clearly contemplatesmeasuring the trench’s depth from the original ground level, wherepossible. _See_ 29 C.F.R. ? 1926.652(c) (overall depth of trenchincludes area above bench) Table P-1 (top of trench is identified asbeing the \”original ground line\”); former 29 C.F.R. ? 1926.653(n)(\”trench\” defined as a narrow excavation made \”below the surface of theground\”).[[7\/]] This trench’s depth is properly measured from originalground level.We also reject Trumid’s argument that if the portion above the benchesis considered part of the excavation, it was not a \”trench\” under theapplicable definition because the excavation would then be wider than itwas deep. That definition (former ? 1926.653(n)) stated:\”Trench\” — A narrow excavation made below the surface of the ground. Ingeneral, the depth is greater than the width, but the width of a trenchis not greater than 15 feet.The Commission has held that an excavation may be a trench even if it iswider than it is deep. _E.g.,_ _Heath & Stich. Inc.,_ _supra_, n. 7(trench 12 feet wide and 10 to 11 feet deep). _Accord_, _D. Federico Co.v. OSHRC,_ 558 F.2d 614 (1st Cir. 1977), aff’g, 3 BNA OSHC 1970,1975–76 CCH OSHD ? 20,422 (No. 4395, 1976) (trench 13 feet wide and 61\/2 feet deep).Also under Commission precedent, the width of a trench is to be measuredat its bottom, so that sloping is not taken into account. _Heath &Stich,_ _supra_.[[8\/]] The width at the bottom of this opening (3 1\/2feet) was less than its depth, regardless of whether the depth ismeasured from the bench mark or the original ground level.[[9\/]]Trumid neither addresses the cited precedent, nor indicates why in itsview it is incorrect. We have reconsidered that precedent and reaffirmit. Trumid was on notice of _Heath & Stich and D. Federico,_ becausethey predated the alleged violation by many years. Thus, we find thatTrumid’s excavation was a \”trench\” and that its sides were more than 5feet deep.It also bears noting that the new trenching standard, effective March 5,1990, states explicitly that: (1) a trench’s width is to be measured atthe bottom, not the top, and that (2) a trench is \”narrow\” in that itswidth is small in relation to its _length_, not its depth. 54 Fed. Reg.at 45,960 (to be codified at ? 1926.650(b)).[[10\/]] Thus, the newstandard is consistent with the former standard in these respects.B. _Whether the trench was dug in \”unstable or soft material\” _The standard cited here applies only where the ground is composed of\”unstable or soft material.\” See p. 2 supra. The judge found that thesoil was unstable because: (1) it was \”clay type,\” (2) \”ground water\”was present from thawing frost, and (3) the Secretary’s soil expert,Charles Shimel, testified that it was unstable.[[11\/]] Trumid arguesthat its employees’ eyewitness testimony established that the soil wasneither unstable nor soft. It also criticizes Shimel’s opinion testimonybecause it was based in large part on his examination of a soil map andon his visit to the worksite about a year after the accident.Having reviewed the record, we conclude that the evidence fully supportsthe judge’s finding that the soil was \”unstable or soft.\” Shimel’stestimony was detailed and authoritative. In particular, he explainedhow the photographs in evidence showed that the soil was unstable. Thosephotographs were taken just after the cave-in. They were stipulated intoevidence by the parties, were relied on by witnesses for both sides, andtheir accuracy was not questioned. Shimel explained that they showedcavities in the lower trench wall, caused by soil sloughing off. Heconcluded that the soil was unstable on that basis.To rebut the evidence of instability, Trumid points to the testimony ofits site supervisor when the cave-in occurred. That supervisor testifiedthat the soil was \”firm,\” \”solid\” and \”cohesive.\” Trumid also notes thatits witnesses were the only ones to see the trench. OSHA’s inspectorbegan his investigation four months after the accident. The trench hadbeen filled in. OSHA’s expert did not visit the worksite until a yearafter the accident.As indicated above, the reason why OSHA was unable to view the trenchfirst-hand was that Trumid failed to report the accident to the agencyas required. Thus, we do not fault OSHA for having only circumstantialevidence of the soil type here.[[12\/]]In any event, the eyewitness testimony of Trumid’s employees does notrebut the conclusions that Shimel drew after examining the photographs.None of Trumid’s witnesses explained why his expert conclusions based onthe photographs were incorrect. In particular, the supervisor’sstatement that the soil generally appeared \”firm,\” \”solid\” and\”cohesive\” does not rebut the expert conclusion that some of it wassloughing off, and that the wall therefore was unstable.None of Trumid’s witnesses indicated that they were expert in theidentification of soil types. None denied that soil had sloughed offfrom the walls. One acknowledged that the soil was wet on top from rainor snow, and that it \”was just a little mushy maybe\” near the top of thetrench. The preponderance of the evidence fuIly supports the judge’sfinding that the soil was \”unstable or soft.\”The trench, with its undisputed dimensions, would have complied withOSHA’s requirements if the soil had been \”hard or compact.\” 29 C.F.R. ?1926.652(c). Trumid offered no reason why the trench would havecollapsed had it been dug in stable soil.Thus, the most plausible explanation for the cave-in is that the soilwas unstable.Shimel had other reasons for his conclusion that the soil was unstable.He consulted a U.S. Department of Agriculture map of the area, andtestified that it identified the soil type in the area where theaccident occurred as \”64 Paxton\”–an unstable soil for trenchingpurposes.[[13\/]] Based on the photographs, Shimel also testified thatthe frozen, wet and thawing condition of the soil contributed to itsinstability. In addition, Shimel relied on his visit to the worksiteexactly one year after the accident. At the time of that visit, theexcavation at issue had been closed for almost a year. Nevertheless,Shimel was able to observe the soil revealed by other excavations orbackfilling on the project, and he was therefore able to determine thatthe soil type generally conformed to \”64 Paxton\” soil.Although Trumid raises strong objections to the evidence based on thesoil map and Shimel’s visit,[[14\/]] this evidence must be viewed in thecontext of the entire record. The record evidence _in_ _toto _isprobative of the soil type at the accident site. As Shimel testifiedwithout contradiction, the information he used was \”the best informationthat [he] could obtain.\” Again, this is because Trumid failed to reportthe fatality as required. In the circumstances, the Secretary should beallowed to establish a violation based on the best evidence available.The soil map, soil report and worksite visit, about which Shimeltestified, constitute substantial evidence that the soil at the accidentsite more likely than not was unstable. That evidence corroborates hisunrebutted, expert conclusions based on the photographs in evidence. Asnoted above, the standard of proof in our proceedings is thepreponderance of the evidence. See n. 5 supra. In our view, the evidencehere clearly preponderates in favor of the conclusion that the soil was\”unstable or soft,\” as the judge found.C. _Whether the other elements of a violation have been established _The trench was not sloped or otherwise supported in compliance with thestandard’s requirements. Table P-1, incorporated by reference in thestandard, graphically depicts the required slopes for different types ofsoils. A slope no steeper than approximately 1:1 a 45? angle — wasrequired for \”average soils.\” \”Unstable or soft material\” would requireat least as much sloping as \”average soils.\”Shimel gave the only specific testimony regarding the proper dimensionsfor the excavation. In his opinion, the trench walls should have beensloped 1 1\/2 :1 — that is, 1 1\/2 feet horizontally for every footvertically — for stability. That would result in an opening at least 20feet wide at the top.[[15\/]] The actual opening was only 11 to 12 feetwide at the top.Sloping of either 1:1 or 1 1\/2 :1 would have resulted in considerablymore soil being removed from the trench walls than the benchconfiguration used by Trumid. Such sloping would thereby have reducedthe cave-in hazard at which the standard was directed. Trumid’s methodof benching did not provide protection that is equivalent to thatrequired by section 1926.652(b) for soft or unstable soil.[[16\/]]It is undisputed that Trumid employees worked in the inadequatelyprotected trench, and that it was aware of the conditions. Thus, all theelements of a violation have been established: the standard applied tothe conditions, its terms were violated, Trumid’s employees had accessto the hazards, and it had the requisite knowledge of theviolation._E.g._, _North Berry Concrete Corp.,_ 13 BNA OSHC 2055, 2056,1989 CCH OSHD ? 28,444, p. 37,643 (No. 86-163, 1989)._ALLEGED SERIOUSNESS OF VIOLATIONS_The next issue is whether the trench support violation and a hard hatviolation, as affirmed by the judge, were serious violations. Theapplicable provision of the Act is 29 U.S.C. ? 666(k), which provides:[A] serious violation shall be deemed to exist in a place of employmentif there is a substantial probability that death or serious physicalharm could result from a condition which exists,. . . . in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.Trumid had the requisite knowledge of the trench support violation, asfound above, and the judge correctly found that it was aware that itsemployee in the trench had no hard hat. The remaining question iswhether there was a \”substantial probability\” that serious consequences\”could result.\”We find that that test has been met. Supervisor LaBella testified thatJesus Ayala, the employee killed in the cave-in here, was bending over,apparently to retrieve an object, when the soil collapsed. After thesoil collapsed, it covered the bottom of the excavation to a height of 21\/2 feet. Ayala was not wearing a hard hat. The judge found the hard hatitem serious for the following reasons:The photographs show piles of excavated material along the outside ofthe trench– this material consisting of sand, stones and otherexcavated matter could slide down and strike the men [laying pipes] inthe trench causing possible serious head injuries. Actually, part of thetrench did collapse and cause the death of one of the workers.The fatality demonstrates the seriousness of the trench supportviolation. _See Simplex Time Recorder Co.,_ 12 BNA OSHC 1591, 1597,1984-85 CCH OSHD ? 27,456, p. 35,572 (No. 82-12, 1985). Also, we findthat there was a significant risk of serious head injury in the trenchunder the circumstances. Both violations properly are classified asserious. _See Communications, Inc._, 7 BNA OSHC 1598, 1602, 1979 CCHOSHD ? 23,759, p. 28,813 (No. 76-1924, 1979) (employees likely wouldsuffer serious physical harm from collapse of trench 6’2\” deep,particularly if they were in a bending position)._PENALTIES_In assessing penalties, the Commission gives due consideration to thesize of the business, the gravity of the violation, the employer’s goodfaith, and its history of previous violations. 29 U.S.C. ? 666(j). Therecord does not establish whether Trumid was a large or small employer,or whether it had a history of violations. However, the gravity of thetrench support violation is a factor that fully justifies the $480penalty proposed by the Secretary. Also, Trumid’s good faith is notunblemished, because it failed to report the fatality as required. Apenalty of $480 will be assessed.The judge assessed a penalty of $200 for the hard hat violation. Theparties do not dispute the appropriateness of that penalty on review.The judge’s assessment is affirmed.Thus, the alleged violation of ? 1926.652(b) is affirmed. That violationand the violation of ? 1926.100(a) found by the judge are classified asserious violations, with penalties of $480 and $200, respectively.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G.WisemanCommissionerDated: September 12, 1990————————————————————————SECRETARY OF LABORComplainantv.TRUMID CONSTRUCTION CO., INC.RespondentDocket No. 86-1139APPEARANCES: JANE SNELL BRUNNER, Esquire U.S. Department of Labor Office of the Solicitor New York, New York 10036 For the Complainant JAMES HARRINGTON, Esquire Kissam & Halpan, Esquires For the Respondent_DECISION AND ORDER_SOMMER, Judge:On July 25, 1986, Respondent was issued serious citation no. 1 allegingviolations of 29 C.F.R. 1926.100(a), 29 C.F.R. 1926.652(b) and 29 C.F.R.1926.652(h), with a total penalty proposed of $1,360. An other thanserious citation which was issued for an alleged violation of 29 C.F.R.1904.8 with no penalty proposed was not contested.A hearing was held in New York, N.Y. All parties were represented bycounsel who filed post-hearing briefs. No jurisdictional issues are indispute, the parties having pleaded sufficient facts to establish theRespondent is subject to the Act and the Commission has jurisdiction ofthe parties and of the subject matter._BACKGROUND_Trumid Construction Company, Inc. is a New York Corporation engaged inthe construction business. In March 1986 they were engaged in a pipelaying operation in Ossining, New York. The trench collapsed on one ofthe respondent’s employees resulting in a fatality. The ComplianceOfficer visited the site of the work activity and accident in July 1986and issued the citations werein based on his investigation. Since theaccident and work activity occurred in March 1986 the Compliance Officerobserved none of the alleged violations personally._Citation No. 1, Item 1 – Alleged violation of 29 C.F.R. __1926.100(a)_The standard which pertains to head protection for employees provides asfollows:Employees working in areas where there is a possible danger of headinjury from impact, or from the falling or flying objects, or fromelectrical shock and burns, shall be protected by protective helmets.The standard at issue requires that employees \”be protected byprotective helmets\” where there is \”a possible danger of . . . injuryfrom impact, or from falling or flying objects. . .\”The evidence demonstrates that two employees were working in a trenchlaying pipes without having head protection. This was known by therespondent’s superintendent. The photographs show piles of excavatedmaterial along the outside of the trench – this material consisting ofsand, stones and other excavated matter could slide down and strike themen working in the trench causing possible serious head injuries.Actually, part of the trench did collapse and cause the death of one ofthe workers. Any dislodging of material could strike men working in thetrench. In short, the record supports a finding that the respondent’semployees were subject to possible head injury while working in thetrench and were without protective helmets. Accordingly, I find thatthere was a violation of 29 C.F.R. 1926.100(a).The respondent alleges that the Secretary charged the violation of1926.100(a) was based on possible injuries to employees working in thetrench \”close to an operating 225 CAT Back hoe\” which was not proven andtherefore requires a dismissal of this allegation. This argument iswithout merit. While the Secretary failed to prove that the \”possibleinjury\” could occur due to the \”Back Hoe\”, the total evidence producedsubstantiates a violation of this section because of the possibility ofinjury as described aforesaid, and is considered an amendment of thecitation and complaint to allege the presence of the other possiblecauses of injury to the employees working without protective helmets.See Federal Rules of Procedure, section 15(b). It is well settled thatadministrative proceedings are \”liberally construed\” and \”easilyamended\”. _N.L.R.B. v. Fant Milling Co.,_ 360 U.S. 301, 79 S. Ct. 1179,3 L. Ed. 2d 1243 (1959); _Usery v. Marquette Cement Manufacturing Co.,_558 F2d 902, 906 (5 OSHC 1793, 1796) (2d Cir. 1977).As Professor Davis has stated, \”the most important characteristic ofpleadings in the administrative process is their importance. Andexperience shows that unimportance of pleadings is a virtue\”. 1 K.Davis, Administrative Law Treatise a Par. 8.04 at 523 (1958).The respondent failed to object to the introduction of the evidencerelevant to the unpleaded allegations, and it had every opportunity tomeet the allegations concerning this violation. In sum, the Secretary’senlargement or amendment of the allegations concerning a violation ofthis section was proper and the issue not raised by the pleading wastried by implied consent. Considering the circumstances herein, andconsistent with the criteria set forth in section 17(j) of the Act, apenalty of $200 is considered appropriate herein._Citation No. 1 – Item No. 2 – Alleged Violation of 29 C.F.R. 1926.652(b)_The trenching standard at 29 C.F.R. 1926.652(b) provides:Sides of trenches in unstable or soft material, 5 feet or more in depth,shall be shored, sheeted, braced, sloped, or otherwise supported bymeans of sufficient strength to protect the employees working withinthem. See Tables P-1, P-2 (following paragraph (g) of this section).In order to prove non-compliance with section 1926.652(b) the Secretarymust prove by a preponderance of the evidence that the sides of thetrench were: (1) in unstable or soft material; (2) five feet or more indepth; and (3) not shored, sheeted, braced, sloped, or otherwisesupported by means of sufficient strength to protect the employeesworking within them.The three witnesses (Labella, Della-Donna and Brajas) who personallyobserved the condition and make up of the soil agreed that it was of aclay type. Moreover, the presence of ground water from thawing frostcontributed additionally to the instability of the soil. Shimel, theSecretary’s witness testified that based on his perusal of aerialphotographs of the land topography in the vicinity of the trench plusinterpretations made thereon by the U.S. Departments of Interior andAgriculture, the soil in the trench area was unstable; however, thisopinion was watered down by his admission that the soil type couldchange within a short distance (500 feet) (T102). In short, the totalityof the credible evidence substantiates that the soil in the trench wasof a clay composition with some wetness present. Under 29 C.F.R.1926.652(b), this type of soil is unstable, and I so find.However, the Secretary failed to sustain his burden of proving that thesides of the trench were 5 feet or more in depth. Since the trenchingviolation allegedly occurred in March 1986 and the OHSA investigationtook place in July 1986 when the trench was filled in and the land backto normal the Compliance Officer had no personal knowledge of the scene.LaBella, the superintendent testified to varying depths of the trenchranging from 4 feet to 6 feet (T14, 20). Shimel, another witness guessedat the trench depth being \”anywhere from eight to ten feet\” (T69).Scott, the Compliance Officer testified from what LaBella told him \”itwas between four and a half to five, maybe five and a half feet to thebenchmark\”. Shimel based his estimate on the depth from the very bottomof the trench to some non-existant point where the ground lie before thecut started which is patently erroneous. The trench line starts from thearea where the men are standing (see C-5) and the ground is flat astridethe cut, not some non-existant sphere. LaBella testified that the trench\”was only filled in a little more than two feet\” after the cave in, anda three foot shovel inserted in the trench shovel \”six or eight inchesof the top\”. Thus hereto there is a distinct possibility of less than afive foot trench being herein.In short the evidence as constituted is insufficient to prove thisnecessary element of the violation. The opinions advanced by thewitnesses are speculative and are not persuasive as to the depth of thetrench. The varying estimates do not constitute the substantial evidencerequired to make a finding that the trench sides were 5 feet or more indepth.The proof must be clear and convincing, not presumed or inferred._Ellison Electric, _1 OSHRC 547, 1 BNA OSHC 3034, 1971-3 CCH OSHD Par.15,133 (No. 412, 1972); not based on speculation, _Edison Lampworkes,_ 7BNA OSHC 1818, 1979 CCH OSHD Par. 23,913 (No. 76-484, 1979); or mereconjecture, _Franklin Lumber Company, Inc.,_ 74 OSHRC 46 E\/3, 2 BNA OSHC1077, 1079, 1973-4 CCH OSHD Par. 18,206 (No. 900, 1974). Since it wasnot established that the trench was five feet or more in depth, I findthere was no violation of 29 C.F.R. 1926.652(b)._Citation No. 1 – Item No. 3 – Alleged Violation of 29 C.F.R. 1926.652(h)_The standard provides as follows:When employees are required to be in trenches 4 feet deep or more, anadequate means of exit, such as a ladder or steps shall be provided andlocated so as to require no more than 25 feet of lateral travel.The Secretary alleged that the respondent violated 29 C.F.R. 1926.652(h)because it failed to maintain an adequate means of exit from the trench.The undisputed evidence established that the trench was 40-42 feet longand over four feet in depth. There was a ramp or slope in the groundprovided which was used by the two employees for entrance and egresswhich was located 40-42 feet away where the employees were firststarting to lay pipe. The employees were laying pipe in the trench, lackof 12 1\/2 foot sections. Thusly, it is apparent that while laying thefirst of the pipe lengths these workmen were over 25 feet away fromtheir point of exit. The evidence of record fully establishes that therewas a violation of the standard as alleged. Since an exit had beenprovided for the employees, though not within the required distance,under the circumstances herein, I find that the violation wasnon-serious and assess a penalty of $50._FINDINGS OF FACT_All findings of fact relevant and necessary to a determination of thecontested issues have been found specially and appear in the decision.(See Rule 52(a) of the Federal Rules of Civil Procedure). Any proposedfindings of fact and conclusions of law that are inconsistent with thisdecision are denied._CONCLUSIONS OF LAW_1. Trumid Construction Co. Inc., at all times material to thisproceeding, was subject to the requirements of the Act and jurisdictionof the Commission.2. The record establishes by a preponderance of the evidence that Trumida) Committed a serious violation of 29 C.F.R. 1926.100(a)b) Did not violate 29 C.F.R. 1926.652(b) and said allegation is vacatedc) Committed a non-serious violation of 29 C.F.R. 1926.652(h).3. The penalty for violation of 29 C.F.R. 1926.100(a) is $200 and thepenalty for violation of 29 C.F.R. 1926.652(h) is $50, both of which areappropriate and reasonable._ORDER _Based upon the findings of fact, conclusions of law, and the entirerecord, it is ORDERED1. A violation of 29 C.F.R. 1926.100(a) is affirmed and a penalty of$200 ASSESSED2. A violation of 29 C.F.R. 1926.652(b) is vacated3. A violation of 29 C.F.R. 1926.652(h) is AFFIRMED as non-serious and apenalty of $50 is ASSESSED.SO ORDERED.IRVING SOMMERJudge, OSHRCDATED: July 22, 1987Washington, D.C.FOOTNOTES:[[1\/]] The cited trench support standard has been superseded by therevised excavation standards, 29 C.F.R. Part 1926, Subpart P, effectiveMarch 5, 1990. _Excavations, Final Rule,_ 54 Fed. Reg. 45,894, 45,959(Oct. 31, 1989); 54 Fed. Reg. 53,055 (Dec. 27, 1989). However, the citedstandard was in effect when the alleged violations took place.[[2\/]] Trumid was cited under ? 1904.8 for not reporting the accident toOSHA within 48 hours, but it did not contest that citation. OSHA’scompliance officer, David Scott, testified that OSHA received no noticeof the fatality until the insurance company contacted it.[[3\/]] The Commission has the discretion to review the entire judge’sdecision once it is directed for review. Commission Rule 92(a);_Hamilton Die Cast, Inc._, 12 BNA OSHC 1797, 1986-87 CCH OSHD ? 27,576(No. 83-308, 1986). However, the other issues decided by the judge werenot expressly directed for review. Nor do we see any other reason toreview the judge’s disposition of those issues. As to those issues, thejudge’s decision is a final order of the Commission, with theprecedential value of an unreviewed judge’s decision. _LeoneConstruction Co_, 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ? 20,387, p.24,322 (No. 4090, 1976).[[4\/]] A \”bench\” is a squared-off section of soil below ground,resembling a bench in appearance, such as the areas on each side of thesecond cut here.[[5\/]] The judge erred in stating that the proof of a violation must be\”clear and convincing.\” The standard of proof in our proceedings is thepreponderance of the evidence. _E.g._, _Astra Pharmaceutical Products,Inc.,_ 9 BNA OSHC 2126, 2131, 1981 CCH OSHD ? 25,578, p. 31,901, (No.78-6247, 1981), _aff’d on other grounds_, 681 F.2d 69 (1st Cir. 1982).The judge stated that the evidence about the trench’s depth wasspeculative, unpersuasive and insubstantial. However, that statement wasbased on the judge’s view that the trench’s depth should be measuredfrom the bench level, not the original ground level. He did not disagreewith the trench dimensions discussed above, which are essentiallyundisputed on review.[[6\/]] Trumid also argues that the Secretary’s proposed \”original groundlevel\” basis of measurement conflicts with her own inspector’s actualapproach. It claims that Compliance Officer Scott originally estimatedthe depth of the trench from the bench mark, not the original groundlevel. However, the evidence does not indicate that Scott knowinglycalculated the trench’s depth differently than the Secretary nowadvocates. Thus, Trumid’s claim is rejected.To explain, Scott’s estimates were made before the citation was issued,based on the photos and what Trumid’s supervisor told him.There is notevidence that Scott knew about the benches when he made those estimates.(For example, the photographs in evidence do not show benches, becausethe spoil piles were resting on them instead of being set back from thesides of the excavation.) Scott did not address this issue in histestimony. However, Charles Shimel, the Secretary’s expert on soiltypes, testified that he was not aware that benches had been createduntil Trumid’s employees testified, and that he had gotten theimpression from Trumid’s answers to interrogatories that only one cuthad been made.[[7\/]] _See also Heath & Stich, Inc.,_ 8 BNA OSHC 1640, 1643, 1980 CCHOSHD ? 24,580, p. 30,151 (No. 14188, 1980).[[8\/]] If width were measured at the top, many trenches would cease tobe trenches once they were properly sloped. _Sheesley and WintersConstruction Co., _3 BNA OSHC 1340, 1341-42 n.8, 1974-75 CCH OSHD ?19,756, p. 23,570 n.8 (No. 6824, 1975) (views of Commissioner Cleary).[[9\/]] Trumid argues that the correct approach to trench measurement wastaken by Chief Judge Coffin, who concurred in the First Circuit’sopinion in _D. Federico. _However, his opinion does not support Trumid.Judge Coffin did say that the much greater width (13′) than depth (61\/2′) of the cavity there precluded calling it a trench. 558 F.2d at617. However, that excavation was 13 feet wide _at the bottom,_ becauseit was not sloped. 3 BNA OSHC at 1970, 1975-76 CCH OSHD at p. 24,377.[[10\/]] The new definition states:_Trench_ (trench excavation) means a narrow excavation (in relation toits length) made below the surface of the ground. In general, the depthis greater than the width, but the width of a trench (measured at thebottom) is not greater than 15 feet (4.6 m). . . .[[11\/]] Shimel is a civil engineer who specializes in soils andfoundation engineering.[[12\/]] Shimel testified without contradiction that the information heused was \”the best information that [he] could obtain.\”[[13\/]] That soil type was described in the Westchester County, N. Y.soil survey interim report of October 1978. (The Ossining, N. Y.worksite was within Westchester County.) The description of \”64 Paxton\”soil in that report states, \”[s]idewalls in excavations are unstable inthe surface and subsoil and are subject to caving.\” Mr. Shimeltestified, based on the photos in evidence, that much of the soil wasconsistent with \”64 Paxton\” soil, though some was clay-like.[[14\/]] Trumid argues that the soil map was unreliable because Shimelacknowledged that soiI types may change within 100 to 150 feet. Onehundred feet represented only 1\/10-inch on the soil map. Trumid alsocriticizes reliance on the soil map because, as noted above, itsemployees testified from first-hand observation that the soil was\”firm,\” \”solid\” and cohesive.\” These are not characteristics of \”64Paxton\” as described in the soil survey (see n.13 _supra_). Trumidcriticizes reliance on Shimel’s visit to the worksite because the soilhe saw was between 400 feet and 1,500 feet away from the accident site.Trumid argues that those observations are not helpful because Shimelacknowledged that he has found changes in soil type within 100 to 150 feet.[[15\/]] We calculated this 20-foot width as follows. Trench sides had tobe sloped from the bottom, if sloping was used, under the citedstandard._E.g._, _Edward Kelly and Sons, Inc._, 10 BNA OSHC 1340, 1343,1982 CCH OSHD ? 25,884, p. 32,386 (No. 76-2802, 1982). Under Table P-1,the approximate angle of repose for \”average soil\” was 1:1 (a 45?angle), and less steep slopes were required for soils more unstable thanaverage. Here, each side of the excavation should have been sloped 8 1\/4feet horizontally (1 1\/2 times the 5 1\/2-foot vertical distance). Thus,the total trench width at the top should have been 3 1\/2 feet (width ofexcavation at bottom), plus 16 1\/2 feet, for a total of 20 feet.[[16\/]] The trench apparently would have been inadequate under the newexcavation standard as well. That standard provides specifications forpermissible benching. However, for the soil type involved here, whichShimel testified required sloping of 1 1\/2 :1, benches would not bepermissible. Appendix A to Subpart P, Figure B-1.3; 54 Fed. Reg. at 45,969.”