“SECRETARY OF LABOR,Complainant.v..WOOLSTON CONSTRUCTION CO, INC.,Respondent.Docket No. 88-1877_DECISION_BEFORE: FOULKE, Chairman and WISEMAN, Commissioner.BY THE COMMISSION:Respondent, Woolston Construction Company, Inc., is a small constructionsubcontractor. In April 1988, Woolston was assisting in the constructionof a methane gas venting system at a landfill in Bordentown, New Jersey.Woolston was hired to dig trenches for other subcontractors who wouldlay pipes that would vent the methane gas accumulating in the landfill.A cave-in within a cutoff wall (a wall separating a \”cell\” of refusefrom the surrounding land) killed two employees who were working in thetrench, an employee of Woolston and an employee of Welfab, thesubcontractor welding the pipe.As a result of the accident and a subsequent inspection by theOccupational Safety and Health Administration (\”OSHA\”), WoolstonConstruction Co., Inc. was issued a citation that alleged a willfulviolation of section 5(a)(2) of the Occupational Safety and Health Actof 1908, 29 U.S.C.{sym}664(a) (2), (\”the Act\”), for failure to complywith 29 C.F.R. {sym}1926.652(b) [[1\/]] on the grounds that Woolstonfailed to adequately slope or support the trench in which employees wereworking.Administrative Law Judge Irving Sommer affirmed the citation andassessed a $10,000 penalty. [[2\/]] Respondent filed a Petition forDiscretionary Review that was granted by the Commission. For the reasonsthat follow, we affirm the judge’s decision.I_Alleged Violation of 29 C.F.R. {sym}1926.652(b)_A. _The Trench_On April 13, 1988, Respondent was working at the Parkland ReclamationSite, a landfill in Bordentown, New Jersey, owned by Waste Management ofNorth America, Inc. Waste Management hired Hart Engineers, Inc. tomanage, monitor, and document the construction and installation of amethane gas control system, and Woolston to do the actual excavationwork. Woolston performed the excavation work with an excavator operatedby its vice president and one of its principal share holders, DavidWoolston.The landfill consisted of \”cells,\” areas where garbage was placed andcovered. Cut-off walls were erected from beneath the cell floor toground level to separate one cell from another or to create a barrierfrom the landfill to the neighboring property. When an area was filled,the trash was covered with a clay cap and highly compacted by specialcompaction equipment.The trench began on the north side of the landfill and proceededgenerally south. The pipe descended at a constant 2% slope as it wentsouth, with the trench becoming deeper as it proceeded south. RoadCrossing No. 1 provided a dividing line between the north and southparts of the trench. The trench was approximately 500 feet long.Approximately 125 feet lay north of the road, while the remainder ran toits south. The trench in the northern zone ranged from 5-10 feet deep.In the southern zone the trench became progressively deeper, eventuallyreaching a depth of 15 feet. The trench was about 6 feet wide at thebottom and approximately 6-10 feet wide at the top. The trench wallswere nearly vertical, and were not sloped, shored, or otherwise braced.After receiving complaints from Hart inspector Reigart, Woolston cut astep into each side of the trench the day before the accident. The stepsbegan about 11-13 feet from the bottom of the trench, approximately 2-3feet below the ground and were about 3 feet wide. [[3\/]] Woolston didnot dig out steps in new areas of the trench as digging continued. Nordid it go back and add the step to those areas already excavated.Because the soil was hard to dig in, it was necessary for the excavatorto be equipped with \”rock teeth\”. The compliance officer testified thatsoil samples from the east wall, that sheared off in the fatal cave-in,appeared to be gray clay and were representative of the type of soil inthe trench walls. The soil samples were tested by Dr. Alan Peck atOSHA’s Salt Lake City, Utah office. Dr. Peck testified that each samplewas a sandy, silty clay that would be classified as unstable under theOSHA standard. The critical slope for such soil, according to Dr. Peckwas 32 degrees. He testified that, in order to achieve such a slope,each trench wall would have had to have been sloped more than 1.5 feethorizontally for each foot of depth.The east wall of the trench was crumbly. Periodically, small blocks ofclay would slough off and fall into the trench. At times, the crews cameto work in the morning to find that large parts of the trench walls hadfallen in overnight. Such a collapse took place the day before the fatalaccident. Also, before the accident, there was a large crack on thesurface that ran along the length of the trench, near the trenchopening. At some points the crack was 16 inches wide. The crack wasbeing monitored by Joel Reigart, the construction inspector for HartEngineers. Other cracks occasionally appeared, due to the weight of theexcavator on the trench. To protect employees, Woolston would place theexcavator bucket against the loose, cracked material.Respondent’s employee, Thomas Wolverton, testified that two days beforethe cave-in he heard material trickling through the walls of trash andordered employees out of the trench. The operation later continued withthe excavator straddling the trench and digging from that position. Onthe day before the accident, Wolverton noticed that the weight of theexcavator had caused the west wall to bow. The excavator was removedfrom its straddle position, and the employees resumed their work withinthe trench.The collapse of the east wall started in the northern part of thetrench, and continued in a wave-like pattern approximately 50 feet towhere the trenching had progressed in the southern end of the trench.The employees tried to outrun the collapsing wall, but apparently intheir confusion they ran in different directions, collided with eachother and were buried by the collapsing trench.B._Establishing a Violation_To establish a violation of a standard, the Secretary must show by apreponderance of the evidence that: (1) the standard applies to thecited conditions, (2) its terms were not met, (3) employees had accessto the violative condition, and (4) the employer knew or could haveknown of the violative condition with the exercise of reasonablediligence. See, e.g., Ormet Corp., 14 BNA OSHC 2134, 2135, 1990 CCH OSHD(P)29,254, p. 39,199 (No. 85-531, 1991).Respondent disputes the applicability of the standard and claims that itlacked knowledge of the conditions. However, it is undisputed that ifthe standard does apply, the trench was not sloped or otherwisesupported within the terms of 29 C.F.R.{sym}1926.652(b). Similarly,there is no question of employee exposure.C. _Applicability of the Standard_The judge found that the soil was \”soft and unstable.\” He also foundthat the soil samples were representative of soil conditions at thetrench and that each sample was comprised of a sandy, silty clay thatwould be classified as unstable. Moreover, the judge found that thetestimony of persons at the site further established that the soil wascomposed of an unstable clay. He took particular note of Wolverton’stestimony: that he heard material trickling through the walls of thetrench, one of the trench walls was bowed due to the weight of theexcavator, material was falling into the trench, and a crack appeared inthe ground parallel to the trench.Respondent first argues that the evidence established that the soil thatthe trench was dug in was hard and compact. Therefore, it contends, thejudge erred in finding that the cited standard, which requires shoringor sloping of trenches dug in soft or unstable soil, applied to thetrench. Respondent argues that the judge overlooked evidence thatestablished that the site consisted of cells and cut-off walls, whichare made by running compaction equipment over the garbage to compact thegarbage within the cells. These cells must be highly compacted to meetNew Jersey Department of Environmental Protection (NJDEP) requirementsand are designed to limit the escape of any agent from the landfill.Respondent also points out that It was in the financial interest of thelandfill owner to optimize the use of its land by compacting the trashas much as possible. Moreover, even with rock teeth on the excavator,digging was so difficult that excavation could only be accomplished byrepeatedly scraping and scratching at the layers of material.Respondent’s arguments fail to recognize that {sym}1926.652(b) appliesto trenches dug in \”unstable or soft\” soil. By its own terms, thestandard would apply to unstable soil, regardless of the hardness orcompactness of the material.The evidence in this case overwhelmingly establishes that even thoughthe landfill had been mechanically compacted and the soil was not soft,it was highly unstable. First, a crack on the surface that ran along thelength of the trench wall provided a fracture point that could have ledto the collapse of the trench. [[4\/]] Second, on several mornings thecrew came to work to find that portions of the trench had caved-inovernight. The east wall of the trench was crumbly, and small blocks ofclay would periodically slough off the trench walls and fall into thetrench. Also, the weight of the excavator straddling the trench bowedits walls outward, revealing the intrinsic instability of the trench.Moreover, Wolverton heard material trickling through the trench the daybefore the collapse and fearing a collapse ordered employees out of thetrench. Finally, the photographs taken at the accident sight revealthat, below the clay cap, the trench walls were laced with quantities oftrash of varying types, including wood and paper products. A trench wallcomposed of materials of differing strengths is only as stable as itsweakest component. CCI., Inc., 9 BNA OSHC 1169, 1173, 1981 CCH OSHD (P)25,091, p. 30,994, aff’d, 688 F.2d 88 (10th Cir. 1982).The soil samples support the judge’s finding that the soil was unstable.Dr. Peck, who analyzed the samples, testified that the tests revealedthat the soil consisted of a sandy, silty clay that would be classifiedas unstable under the OSHA standard. The critical slope for such soil,according to Dr. Peck, was 32 degrees. He testified that to achieve sucha slope each trench wall should have been sloped more than 1.5 feethorizontally for each foot of depth. This would have required that atrench 12 feet deep and 6 feet wide at the bottom have a top width ofapproximately 40 feet.[[5\/]]Respondent challenges the probity of the soil samples. It argues that,although the judge found that the samples were representative of thesoil at the trench, two of the samples were taken from the cut-off wallon the side that collapsed and, therefore, were disturbed, and it wasnot known where Robert Everton, Waste Management’s general manager, tookhis samples. Respondent contends that, where the clay only comprised athin cover over the compacted trash, relying on soil analyses ignoredthe compaction of the garbage and grossly distorted the actual conditionof the trench.Respondent’s argument have little merit. Dr. Peck testified that thesamples he tested consisted of both disturbed and undisturbed soil.Respondent’s reliance on Everton’s inability to identify where heobtained the sample is particularly disingenuous since the thrust of itsargument is that the trench was uniformly hard, compact, and stable dueto the compaction of the soil and trash. If the argument has anyvalidity, it should not matter from which particular part of the trenchthe soil came. [[6\/]]D. _Knowledge_We also find that respondent knew or could have known that the trenchwas dug in unstable soil. Respondent’s vice president David Woolston wasat the site operating an excavator throughout respondent’s presence atthe site. He was present when Wolverton heard material trickling throughthe trench walls and ordered employees out of the trench. In addition,he was present when portions of the trench were found to have collapsed.Moreover, David Woolston knew or should have known that the largequantities of trash contained in the trench reduced the cohesiveness ofthe material in the walls of the trench. From these factors, areasonably diligent employer could have concluded that the trench wasinherently unstable.Accordingly, we affirm the judge’s finding that Respondent violated 29C.F.R. ?1926.652(b).II _Willfulness_A._Testimony_Respondent next argues that the judge erred by finding that theviolation was willful.Hart inspectors Thomas Hanna and Joel Reigart both testified that theywarned David Woolston on numerous occasions before the accident aboutthe need to slope the trench. Hanna testified that near the beginning ofthe project, he told David Woolston that the unsloped trench created anunsafe condition and pointed out the OSHA sloping requirements. Hannawas concerned that soil conditions were wet and slippery and soil wasbreaking off and falling into the trench. According to Hanna, Woolstonreplied that Hanna should worry about his own job and that he wouldworry about safety. Hanna again testified that in March he told DavidWoolston that the trench needed to be sloped at a 1:1 ratio. Woolstonreplied that he would slope the trench. During the time Hanna was at thesite, however, the trench was never sloped.Reigart, who replaced Hanna as the inspector at the site, testified thatwhen the trench crossed the access road and began to reach depthsgreater than five feet, he asked David Woolston how he planned tosupport the trench walls. According to Reigart, Woolston replied that hewould be responsible for the trenching andReigart should concern himself with the piping. Reigart testified thathe tried to discuss trench safety with Woolston on a daily basis, butWoolston did not respond to the inquiries. Reigart also testified that,a week before the accident, after the trench entered the southern zone,he told Woolston that the trench would be reaching depths of 15-20 feetand informed him about the OSHA shoring\/sloping requirements. Reigarttestified that Woolston replied that he would consider sloping. However,except for one step that was cut into a portion of each side of thetrench, Reigart stated that he never noticed any shoring, sheeting, orsloping.Respondent’s employee, Wolverton, testified that a couple of days beforethe accident, he began to hear trash trickling through the walls of thetrench, observed cracks in the walls, and became concerned about thetrench’s safety. He ordered the other two employees out of the trenchand expressed his concerns to David Woolston. He and Woolston thenapproached Reigart and proposed that they dig from the top of thetrench, with the excavator straddling the trench walls. Wolvertonfurther testified that they stopped digging from the top because theweight of the excavator was causing the trench walls to bow and materialbegan moving into the trench. They relocated the excavator to the westwall and pulled back the trench walls where they had buckled. Normalprocedures resumed with employees working inside the trench. Eventually,respondent stopped sloping in newly dug areas.Robert Everton testified that, the day before the accident, he observedthat while the trench was 10-15 feet deep, the walls were vertical. Henoted that dump trucks in the area were causing vibrations and that dirtwas cracking off the top of the trench. Everton ordered the employeesout of the trench and told David Woolston to widen the trench. He alsotestified that, the day before the accident, part of the trench hadcollapsed overnight.B. _Judge’s Findings_The judge found that Woolston did take certain safety measures, such ascutting steps, digging from the top of the trench and placing excavatedmaterial a safe distance from the trench walls. However, the judge alsofound that, despite being repeatedly warned that the trench was unsafe,and having the OSHA trenching requirements brought to his attention,Respondent decided \”to forego the time and effort needed to slope orsupport the trench walls as required. He took conscious and grave risksin that regard …. \” Accordingly, the judge concluded that DavidWoolston displayed an \”obstinate refusal to comply\” with and floutedOSHA’s trenching requirements.In finding the violation willful, the judge expressly credited thetestimony of Everton and Hanna. In crediting Everton, the judge notedthat his testimony was uncontradicted by any competent evidence. Thejudge discounted Respondent’s assertion that Everton’s inability toproperly locate critical areas on the worksite blueprints rendered himan incompetent witness, and attributed the failure to the pressure ofcross-examination.The Judge also found the attacks on Hanna’s credibility to beunpersuasive. He stated that Hanna’s occasional inability toconsistently recall measurements and dates did not negate the essentialpoints of his testimony. The judge noted that Hanna was no longeremployed by Hart when he testified and was not at the site of theaccident. He found that Hanna’s testimony was not motivated by ill-willtoward either David Woolston or Respondent.The judge agreed with Respondent that there were problems with Reigart’stestimony. He noted that Reigart made certain statements after theaccident that were not consistent with his hearing testimony. Forexample, Reigart told the investigating police officers that he saw nocracks or other signs of danger before the trench collapse. At thehearing, however, he testified that he was monitoring a crack that ranparallel to the trench. Rather than resolve the credibility of Reigart’stestimony, the judge concluded that there was sufficient evidence toestablish willfulness without his testimony. Accordingly, the judge didnot rely on any of Reigart’s testimony that was unfavorable to Respondent.C. Prior HistoryRespondent first argues that, because it has no history of safetyviolations, it should not be found to have willfully, violated the Act.The argument is without merit.A willful violation is a violation done voluntarily with intentionaldisregard for the requirements of the Act, or plain indifference toemployee safety. United States Steel Corp., 12 BNA OSHC 1692, 1703, 1966CCH OSHD (P) 27,517, p. 35,675 (No. 79-1998, 1986). The receipt of priorcitations may be a factor in determining whether willfulness exists.However, a prior citation is not a necessary condition to findingwillfulness. To hold otherwise would obliterate the distinction drawn insection 17(a) of the Act, 29 U.S.C. ?666(a), between \”repeated\” and\”willful\” violations. National Steel and Shipbuilding Co. v. OSHRC, 607F.2d 311 (9th Cir. 1979).D. _Attempted Compliance_Respondent next argues that the measures it took to reduce the hazardouscondition of the trench precludes a finding of willfulness. We disagree.A willful charge is not justified if an employer has made a good faitheffort to comply with a standard or to eliminate a hazard even thoughthe employer’s efforts are not entirely effective or complete. KecoIndustries, Inc., 13 BNA OSHC 1161, 1169, 1986-87 CCH OSHD (P) 27,860,p. 36,478 (No. 81- 263, 1987).Respondent first calls attention to its efforts to cut steps into thetrench. This stepping was undertaken to relieve pressure on the wallsthat had material sloughing into the trench, but was not continuedbeyond the problem areas. Respondent also points out that afterWolverton became concerned about the safety of the trench, DavidWoolston started to dig the trench by straddling the trench with abackhoe. This procedure eliminated employee exposure during excavationbecause employees were moved out of the trench when the backhoe was sopositioned, and was stopped only when the weight of the 34-ton excavatorcaused the sidewall to bow.Contrary to Woolston’s argument, Wolverton’s testimony high-lightsRespondent’s failure to take reasonable measures to bring the trenchinto compliance with the standard. Respondent chooses to ignore the factthat employees who resumed working in the trench after the excavatorcaused the trench walls to bow, were exposed to the same hazardspresented by the unsloped, unshored trench that prompted Woolston toevacuate them in the first place. Indeed, the evidence reveals that themeasures taken by Respondent were done largely to facilitate completionof the work rather than to comply with the Act or protect employees. Theevidence clearly establishes that Respondent was aware of thedangerously unstable nature of the trench, yet failed to make anyreasonable effort to comply with ?1926.652(b). See Kehm ConstructionCo., 7 BNA 1976, 1979, 1979 CCH OSHD(P) 24,098, p. 29, 279 (No. 76-2154,1979). We therefore find that Respondent’s efforts qualified neither asa good faith attempt to comply with the standard nor as an effort toeliminate the hazard to employees.E. _Credibility of Witnesses_Respondent challenges the credibility of Hanna, Everton and Reigart, asit did before the judge. It points out that Hanna was confused aboutdates and measurements and almost broke down from confusion when pressedto recollect how often he warned Woolston about the need to providetrench protection. Respondent also argues that Hanna admitted that henever mentioned his problems with David Woolston, either in his personallog or to his superiors at the site, and that Hanna’s testimony involvedtimes when the trench, was still shallow and therefore was not relevantto the cited conditions.Similarly, Respondent argues, Waste Management’s general manager,Everton, was unable to identify specific locations on the plans. Thejudge dismissed these failures as inadvertent error. Yet, Respondentargues, these errors misplaced events and locations by hundreds of feet.It also points out that Wolverton denied that Everton’s visit tookplace, even though Everton testified that Wolverton was there and withinearshot of the conversation with Dave Woolston.Respondent further contends that Reigart’s testimony was dishonest andthat the judge’s refusal to determine his credibility does it aninjustice. It claims that the judge’s refusal to resolve Reigart’scredibility assumes that the testimony of witnesses is unconnected.Finally, Respondent argues that the judge ignored the fact that bothHart and Waste Management are defendants in a wrongful death action. Itclaims that the desire to avoid civil liability colors the testimony ofthe witnesses against Woolston.The Commission normally will not disturb a judge’s credibility finding.Kent Nowlin Construction Co., Inc., 8 BNA OSHC 1286, 1980 CCH OSHD (P)24,459 (No. 76-191 and 76-192, 1980); Otis Elevator Co., 8 BNA OSHC1019, 1980 CCH OSHD (P) 24,236 (No. 14899, 1980), appeal withdrawn, No.80-470 (2d Cir. May 15, 1980); C. Kaufman, Inc., 6 BNA OSHC 1295,1977-78 CCH OSHD (P) 22,481 (No. 14249, 1978). Historically, onlyserious infirmities in a credibility finding have warranted its beingoverturned. See e.g., York Heel of Maine, Inc., 9 BNA 1803, 1981 CCHOSHD (P) 25,351A (No. 78-5920, 1981)(Credibility determination based on age and sex of witness improper); P& Z Co., Inc., 6 BNA 1189, 1977-1978 CCH OSHD (P) 22,413 (No. 76-431,1977) (Credibility findings not accepted where judge failed to provideany justification for those findings in his decision); Archer-WesternContractors, 15 BNA OSHC 1013, 1991 CCH OSHD (P) 29,317 (No. 87-1067,1991.) (Judge’s subjective assessment of the probability of certainevents occurring not a credibility finding).We find that the judge justified his decisions to credit the testimonyof Hanna and Everton. For example, the judge found that Everton’stestimony was uncontradicted and that his inability to identifylocations was the result of the pressure of cross-examination, and notrelevant to Everton’s veracity. Similarly, the judge dismissed asunimportant Hanna’s inability to recollect times and locations withprecision. The judge also noted that Hanna was neither currentlyemployed by Hart nor directly involved in the accident, and displayed noill-will toward any of the parties.We would note, however, that regardless of the testimony regarding DavidWoolston’s attitude, the undisputed facts establish that the violationwas willful. The surface cracks running parallel to the trench walls;the earlier collapse of portions of the trench; and Wolverton’sdetection of material trickling through the trench walls should haveprovided ample warning to Woolston that the trench was inherentlyunstable and that steps to stabilize the trench were needed. However,even after it became clear that it could not continue to excavate thetrench by straddling the trench walls, Woolston returned to the originalprocedure that required employee presence in the trench even though itknew from the earlier collapse and Wolverton’s warnings that the trenchwas inherently unstable and that the conditions that caused Wolverton toorder employees from the trench were unchanged. Despite these incidents,Respondent neither shored, sloped nor took any other measure to protectthe employees working within the trench. Under these circumstances, theexposure of employees to the hazards present by the trench establishes,at a minimum, a careless disregard for employee safety.Accordingly, we find that the judge properly determined that theviolation was willful.III. _Motion for Stay_A. _Procedural Background_Before the hearing, Respondent learned that the Office of RegionalSolicitor of the Department of Labor was considering recommending to theJustice Department that criminal prosecution under section 17(e) of theAct, 29 U.S.C. ?666(e), be filed against Respondent. Respondent movedfor a stay of proceedings on the grounds that, with criminal chargespossible, its principals would have to choose between testifying at theadministrative hearing or maintaining their Fifth Amendment right not totestify on matters which could incriminate them. Respondent contendsthat if its principals chose not to testify at the hearing, its abilityto defend itself would be seriously impaired. The Secretary consented tothe motion. Judge Sommer denied the motion on the grounds that thepublic interest in the speedy resolution of OSHA cases superseded theneed for an indefinite stay where the possibility of criminalproceedings was \”inchoate\”.On February 14, 1989, Respondent received confirmation from theSecretary that the Regional Solicitor had made a written recommendationto the Justice Department to institute section 17(e) criminalproceedings. A teleconference was set up between the judge and theparties during which Respondent argued that the possibility of criminalproceedings were no longer \”inchoate.\” The judge responded that suchrecommendations are routinely denied and again denied the motion for a stay.Subsequently, Respondent filed a Petition for Interlocutory Appeal withthe Commission. The petition was not granted and the hearing commencedon schedule. At the hearing, Respondent renewed its motion to postponethe hearing. The motion was denied. During the hearing, David Woolston,the only Woolston principal who was at the work site, asserted his FifthAmendment privilege and refused to testify.B. _Factors in Determining Whether to Grant a Stay_Respondent argues that the judge’s refusal to grant the stay impairedits ability to defend against the charge that the violation was willful.The crux of respondent’s argument is that testimony adduced by theSecretary concerning David Woolston’s \”attitude\” went unrebuttedbecause, facing criminal indictment, he chose to invoke his FifthAmendment privilege rather than testify.While a court may stay civil proceedings pending the outcome of parallelcriminal proceedings, such action is not required by the Constitution.Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9thCir. 1989.) There is no infringement of either the Fifth Amendmentprivilege against self-incrimination or the Due Process Clause of theFourteenth Amendment when a party to civil litigation, faced withparallel criminal proceedings, must choose between testifying at thecivil trial or maintaining its silence. Gniotek v. City of Philadelphia,808 F.2d 241, 245 (3d Cir. 1986); cert. denied, 481 U.S. 1050, 107 S.Ct.2183 (1987).In any event, the Fifth Amendment privilege against self-incriminationdoes not extend to corporations. Braswell v. United States, 487 U.S. 99,108 S.Ct. 2284 (1988); In Re Mid-Atlantic Toyota Antitrust Litigation,92 F.R.D. 358, 360 (D. Md. 1981). Moreover, no Constitutional violationresults when a party is deprived of exonerating testimony because of awitness’ invocation of the Fifth Amendment, United States v. Turkish,623 F.2d 769, 773-74 (2d Cir. 1980); cert. denied, 449 U.S. 1077, 101S.Ct. 856 (1981). Similarly, it is a settled rule that a party cannotassert the Constitutional rights of another person. United States v.Municipal Bond and Coll. Services, Inc., 810 F.2d 46, 49 (3d Cir. 1987)Accordingly, Respondent does not have standing to assert the FifthAmendment rights of its corporate officers.Nonetheless, Respondent properly argues that although the Constitutiondoes not require that civil proceedings await the completion of anyparallel criminal action, federal courts may defer civil proceedingswhen the interest of justice requires such action. United States v.Kordel, 397 U.S. 1, 12 n.27, 90 S.Ct. 763, 770 n.27 (1970); SEC v.Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980).While the strongest case for granting a stay occurs when an indictmenthas been returned, SEC v. Dresser Industries, Inc., 628 F.2d at 1375-6,an indictment is not required. When determining whether to grant a stayof civil proceedings, the courts have traditionally looked to five factors:(1) The interest of the plaintiffs in proceeding expeditiously with thecivil action as balanced against the potential prejudice to theplaintiffs of a delay;(2) The burden which any particular aspect of the proceedings may imposeon defendants;(3) The convenience to the courts:(4) The interests of persons not parties to the litigation; and(5) The public interest.Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d at 903; Whitev. MAPCO Gas Products, Inc., 116 F.R.D. 498, 502 (E.D. Ark. 1987) ; InRe Mid- Atlantic Toyota Antitrust Litigation, 92 F.R.D. at 359; GoldenQuality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53,56 (E.D. Pa. 1980).The power of a court to stay proceedings is an offshoot of a court’sinherent power to control its docket. In Re Mid-Atlantic ToyotaAntitrust Litigation, 92 F.R.D. at 359. As such, the power to grant astay is purely discretionary. In Re Mid-Atlantic Toyota AntitrustLitigation, 92 F.R.D. at 359.C. _Did the Judge Abuse His Discretion?_The only reason given by the judge for denying the stay was that thepossibility of criminal proceedings was \”inchoate\”. Therefore, theCommission must determine whether, in light of the factors outlinedabove, the judge abused his discretion by refusing to grant the stay.Having examined the record, we find that although the judge failed toprovide adequate reasons, his denial of the stay did not amount to anabuse of discretion.Because the statute of limitations for criminal proceedings under theAct is five years, 18 U.S.C. ?3282, the Department of Justice has untilApril 13, 1993 to file charges against Respondent. Given the rapidturnover of employees in the construction industry,[[7\/]] a stay ofsufficient length to assure that Respondent’s defense witnesses couldtestify without fear of incriminating themselves would probably resultin the loss of witnesses and a breakdown in the Secretary’s ability tocontinue with the case. As the judge noted, however, the Department ofJustice seldom pursues criminal charges, even where the Secretary ofLabor recommends indictment. Therefore, when presented with a requestfor a stay pending the resolution of any criminal proceedings, the judgewas faced with the likelihood of years of delay, without any reasonableassurance that criminal proceedings would be initiated.A judge has the discretion to fashion an order to fit the circumstancesof the case. See generally Golden Quality Ice Cream Co. v. DeerfieldSpecialty Papers, Inc., 87 FRD at 58-60 (Complete stay denied; discoverypermitted in those areas not relevant to criminal proceedings or alreadyrevealed to grand jury). It has been the Commission’s experience that itis generally the Secretary who requests a stay of proceedings while adecision is made whether to pursue criminal charges due to thedifficulty of obtaining discovery from employees and corporate officialsfacing the possibility of criminal indictment. Because the decision torecommend criminal proceedings is in the Secretary’s control, theCommission has found it useful to grant a limited stay, requiring theSecretary to decide, within a given period of time, whether to pursuecriminal charges. Here, the stay is being sought by the employer who hadbeen informed that the Secretary recommended to the Department ofJustice that a criminal indictment be pursued. To grant a limited stayunder these circumstances would have been useless, since the stay wouldhave had to have been continuously renewed until the Department ofJustice either announced a decision not to prosecute or the statute oflimitations expired.We also find that, under the circumstances of this case, any attempt bythe judge to stay the case for a limited time would have been a futileexercise.Although the judge did not adequately articulate his reasons for denyingthe stay, the record is clear that he was primarily concerned with theprospect of an interminable delay of the case. As has been noted, one ofthe factors usually considered in determining whether a stay should begranted is the convenience tothe court. Included in this consideration is the court’s interest inclearing its docket. Federal Savings and Loan Ins. Corp. v. Molinaro,889 F.2d at 903. We find that the judge did not abuse his discretion byfinding that the problems associated with an indefinite stay of the caseovershadowed the inconvenience to Respondent by not granting the stay.[[8\/]]Moreover, under the circumstances of this case, had we found that thejudge had abused his discretion by not granting the stay, the resultanterror would have been harmless. Respondent contends that because DavidWoolston exercised his Fifth Amendment right not to testify, Respondentwas deprived of the only witness capable of refuting testimony that thejudge relied on in finding that Respondent had an obstinate attitudetoward safety. However, as discussed supra, we do not rely on thedisputed testimony of Hanna, Everton, or Reigart, regarding DavidWoolston’s attitude. Rather, we find that the willful character of theviolation was largely established by facts not disputed by Respondent.Therefore, even if David Woolston had testified, the facts still wouldshow that Respondent displayed a careless disregard for the safety ofits employees.[[9\/]]III. _Penalty_In his decision, the judge assessed the maximum $10,000 penalty for thewillful violation. In assessing the penalty the judge applied thestatutory factors set forth in section 17(j) of the Act, 29 U.S.C.?666(j). Finding no error in the judge’s application of those factors,we affirm the judge’s assessment.IV. _Order_Accordingly, we affirm the citation for willful violation of 29 C.F.R.?1926.652(b) and assess a penalty of $10,000.Edwin G. Foulke, JrChairmanDonald G. WisemanCommissionerDated: June 28, 1991SECRETARY OF LABOR,Complainant.v..WOOLSTON CONSTRUCTION CO, INC.,Respondent.Docket No. 88-1877APPEARANCES:FOR THE SECRETARY: Barnett SilversteinU. S. Department of LaborFOR THE RESPONDENT: Bruce L. Harrison, Esq. Capehart & Scatchard, P.A._DECISION AND ORDER_SOMMER, J.:This decision resolves the merits of a contest by the Respondent (\”WCC\”)of OSHA citations, issued on behalf of the Secretary, regarding WCC’strenching operations. WCC was digging a trench and laying pipe for amethane gas venting system at a New Jersey landfill. A section of thetrench caved in, burying a WCC employee and a co-worker, who both diedas a result.WCC was cited for a willful violation of the trench support standard at29 C.F.R. {sym} ? 1926.652 (b). That standard requires sloping todesignated angles, or other adequate support, for \”[s]ides of trenchesin unstable or soft material, 5 feet or more in depth.\”[[1\/]] WCC alsowas cited for serious violation of {sym}1926.652(h). That standardrequires adequate means of exit within 25 feet of where employees intrenches at least 4 feet deep [[2\/]].A hearing on the issues was held inCamden, NJ, on April 7and 8, 1989, and in Philadelphia, PA, on April 17and 18,1989.Having reviewed the detailed evidence as set forth below, I find thatthe Secretary has proven each of the charges, including the willfulnessof the ? 652(b) item. Penalties in the amount of $11,000 are assessed.A. _Jurisdiction_WCC’s notice of contest was timely filed. WCC admits the Commission’sjurisdiction, and admits that it \”is engaged in a business affectingcommerce under the Act.\” (J-16) The Commission has jurisdiction over theparties and the subject matter.B. _Backqround_The work was performed at the Parkland Reclamation Site, a refusedisposal site in Bordentown, NJ. The site’s owner, Waste Management ofNorth America , Inc. (\”WMNA\”), hired Hart Engineers, Inc. (\”Hart\”) tomanage, monitor and document the construction and installation of thegas control system. Hart also was to provide necessary certifications tocomply with regulatory requirements of the New Jersey Department ofEnvironmental Protection (\”NJDEP\”). (Ex. R-8; Tr. 72- 73, 448-51) WMNAhired WCC to do the excavation work. (Ex. R-9; Tr. 454-57)The work began on the north side of the landfill and proceeded generallysouth. The pipe had to descend at a constant 2% slope as it went south,so the trench generally became deeper as it headed that direction.The dividing line between the northern and southern zones was RoadCrossing No.1. (Tr.283- 85, 558; Ex. R-6) For the first 125 feet or sosouth of Road Crossing No. 1 the pipe was to be laid about 7 feet belowground level, according to the job blueprints (Ex. R-6). The blueprintsshow that from there to the location of the accident — about 350 feet– the trench was to become progressively deeper, with the pipe beinglaid 12 to 15 feet below ground level.[[3\/]] The testimony supported theaccuracy of the estimated depths contained in the blueprints. The trenchhad to be dug 7\” or more below the pipe invert level to allow 6\” ofbedding sand under the pipe. (Tr. 91- 92)The trench was dug with a backhoe (\”excavator\”), which usually wasoperated by David Woolston (\”Woolston\”) – He was in charge of WCC’semployees at the site and was there every day while they were on thesouth side. (Tr. 587) Woolston was vice-president and a principalshareholder of WCC. The other principal office and shareholder of WCCwas David’s brother, Richard Woolston.The fatal cave-in occurred about 2:30 p.m. on Wednesday, April 13, 1988.It happened within a cutoff wall (a wall separating a \”cell\” of refusefrom the surrounding land). (J-16 at 2; Tr. 451) Two employees were inthe trench leveling off the sand bedding for the pipe. They were about50-60 feet north of where the trenching had progressed. (Tr. 573; Ex.C-14) Working alongside WCC’s employee was an employee of the pipewelding contractor, WelFab. (Tr. 85-86) The east wall caved in nearwhere the employees were working. They tried to escape by moving south,but the cave-in continued in that direction. (Tr. 26, 34) They wereburied about 15 feet north of the end of the trench. (Tr. 578, 644)C. _Alleged trench support violation (? 652(c))_1. _Trench dimensions_In the area of the accident, the trench was about 14 or 15 feetdeep.[[4\/]] The trench walls were nearly vertical (not more than an80[DEG] slope) in general. The NJDEP bureau chief’s measurements soindicated, and WCC’s site foreman, Thomas Wolverton, who had been alaborer at the site at the time, so testified. (Tr. 362-63, 643) Thepolice patrolmen’s testimony is to the same effect. (Tr. 34, 53, 59).Photographs in evidence, including those taken by OSHA’s inspector, AlSmith (Ex. C-4), illustrate the conditions. (Tr. 484-89) The only wallsthat were not basically vertical were where special activities had takenplace, such as the cave-in and rescue attempt.The trench generally was no more than 6 to 10 feet wide at the bottom inareas where employees worked during the week of the accident.[[5\/]] Thetrench dimensions clearly make it a \”trench\” as defined in 29 C.F.R. ?1926.653(n).2. _Employee exposure_Wolverton acknowledged that WCC employees had worked in the trenchdaily. (Tr. 560, 593-94, 624) The only exception was the period of timeon Monday, August 11 (and early the next morning, perhaps), when theyworked from the top. Employees were in the trench in both the cell areaand the cutoff wall — which is where two were killed. (Tr. 571-74) Theywere exposed regularly to the conditions.3. _Whether the soil was \”soft or unstable\”_The cited standard applies only to \”sides of trenches in unstable orsoft material.\” An OSHA scientist who performed strength tests on soilsamples testified that the trench walls were composed of \”unstable orsoft\” soil. The testimony of eyewitnesses supports this conclusion.However, WCC questions (1) whether the scientific tests were valid; (2)whether the OSHA scientist was qualified to do them; (3) whether thesamples tested were the ones taken from the trench; and (4) whether thesamples were preserved properly for testing. It also relies on evidencethat the refuse was highly compacted, as well as the cutoff wallseparating the landfill from the surrounding land. I find that the soilwas \”soft or unstable\” as alleged.a. Soil samplesThe Secretary must prove by a preponderance of the evidence that thesamples tested were the same ones taken from the worksite inquestion.[[6\/]] OSHA inspector Al Smith testified that he took two soilsamples from the area of the east wall that had sheared off in the fatalcave-in. That shear wall is depicted in Ex. C-4, p. 9, top photo. Smithtook the first sample about 3 feet below ground level. He put it in a\”zip-loc\” bag and marked it. He took the second sample from about 8 feetbelow ground level and followed the same procedure. (Tr. 490-92)WMNA manager Everton got a third soil sample from approximately 12 feetbelow ground level in the same location.[[7\/]] (Tr. 491-92) Smith baggedit and marked it following the same procedure. He took the samples tohis office, made out the OSHA Form 91A that accompanies such samples,and sent them to OSHA’s Salt Lake City, Utah, laboratory by certifiedmail. Smith testified that those samples appeared representative of allthe soil in the trench walls. It all appeared to him to be grey clay.(Tr. 155, 492) I find that the soil samples were representative of thesoil at the site.The samples were picked up at the Salt Lake City post office by a clerkfrom the OSHA lab. Dr. Alan Peck, a soils analyst at the lab, receivedSmith’s Form 91A with the samples. (Tr. 155; Ex. C-7) As WCC notes, theinspection number listed on the Form 91A is not the same inspectionnumber referenced in the citation. (Tr. 210) Also, the field numbersassigned to the samples by Smith did not begin at one. They were \”AS4,AS5, and AS6.\” However, Dr. Peck explained that there is no normalpractice by OSHA inspectors to begin the field numbers at one. (Tr. 211-12)However, Dr. Peck testified that he had no doubt that his reportreferred to the samples from WCC’s trench — AS4, AS5, and AS6. Heexplained that Smith had sent three other soil samples from a differentinspection along with the three samples from WCC’s trench. (Tr. 238,248-53) The samples from the other inspection were given field numbersAS1, AS2, and AS3. (Tr. 238). The Secretary sufficiently establishedthat soil samples AS4, AS5 and AS6 tested by Dr. Peck were from WCC’strench.Dr. Peck performed the testing. As to his qualifications, he holds aPh.D degree in metallurgical engineering and mineralogy. He had been aresearch professor of metallurgical engineering at the University ofUtah from 1968 to 1975, when he became an inorganic chemical analyst andasbestos analyst for OSHA. Previously, he had been a metallurgist forKennecott Copper Corp. and other private concerns, as well as the U.S.Bureau of Mines. He became a soils analyst for OSHA in 1986, and hadanalyzed about 400 soil samples for OSHA. Since 1987, he had completed21 credit hours of correspondence study with the U. S. Army School ofSoil Engineering. (Tr. 150-52; Ex. C-6)Although Dr. Peck’s basic field until 1986 had been metallurgy andminerals, not soil engineering, the two fields are somewhat related. Dr.Peck explained that many of the analytical tools for determining theproperties and strength of metals apply to the analysis of hard, compactsoils as well. (Tr. 165-66) He was sufficiently qualified as an expert,by reason of his training and education, to assist the Commission indetermining the soil type and its stability. See FRE 702.[[8\/]]Dr. Peck testified that each sample was sandy, silty clay, and would beclassified as unstable under the OSHA standard. (Tr. 180-81; Ex. C-8) Inhis opinion, the critical slope for each sample (the steepest slopeconsistent with stability) would be 32[[DEG]]. (Tr. 185-87) (To achievea 32[[DEG]] slope, each trench wall would have to have been sloped morethan 1 1\/2:1 — 1 1\/2 feet horizontally for each foot vertically.)To make his determinations, Dr. Peck performed various tests. He focusedprincipally on the internal friction of the soil. That is the mostimportant factor in a soil’s strength. (Tr. 175) Internal friction isthe capacity of soils to bond together internally. (Tr. 160-62) Thechief determinant of internal friction is the size of the particles. Dr.Peck used a series of sieves to determine the percentage of differentsized particles in each soil sample. (Tr. 156-57) The percentage of saltand clay particles ranged from 60% to about 74% in the three samples.Those particles are smaller than gravel or sand particles. (Tr. 156-59,185-86) More than a 14% of clay or silt content in a soil is consideredto make it unstable. (Tr. 158)He also performed dry strength tests. Each sample was dried at 60[[DEG]]centigrade. Then Dr. Peck determined its resistance to breaking with hishands. (Tr. 226) He also used a penetrometer to determine theapproximate cohesive strength of the samples. (Tr. 229)Dr. Peck acknowledged that soil borings could have been taken to producecompletely undisturbed samples, and that more sophisticated cohesiontests could have been performed. (Tr. 213, 229) However, he testifiedthat those matters, and the others raised by WCC, would not affect hisopinion as to the soil type and its critical angle. (Tr. 253) WCCpresented no scientific evidence or expert testimony on the subject. Thetests Dr. Peck performed were a valid and sufficient basis for hisconclusions. The soil samples were properly preserved for testing. Thosesamples support the Secretary’s position that the trench soil was softand unstable.b. _Observations of eyewitnesses_The testimony of numerous persons who saw the soil at the worksitesupport the conclusion that it was clay, and was unstable. Wolvertontestified that in the area north of the cutoff wall, the top three feetof the trench walls were clay, with compacted trash below. (Tr. 559- 60)Hart inspector Thomas Hanna, who monitored the trench work for months inthe northern zone, and OSHA compliance officer (\”CO\”) Al Smith, whoinvestigated the accident, also characterized the top 3 feet as clay.(Tr. 76, 513)Clay and silt soil generally is considered unstable under the standard.Table P-1, incorporated in the cited standard by reference, contains thefollowing Note: \”Clays, Silts, Loams or Non-Homogenous Soils RequireShoring and Bracing.\” Soils that require shoring and bracing are\”unstable soils\” by definition under ? 1926.653(a):\”Unstable soil\” — Earth material, other than running, that because ofits nature or the influence of related conditions, cannot be dependedupon to remain in place without extra support, such as would befurnished by a system of shoring.There was other testimony indicating instability in the trench walls.For example, WCC foreman Wolverton testified that he had felt unsafe inthe trench about two days before the accident. Wolverton testified thathe heard material trickling through the walls of trash, told the otheremployees to get out,and told Woolston and Hart inspector Joel Reigartthat it wasn’t safe. (Tr. 562-64)The employees began to work from the top. Wolverton explained that toallow that, Woolston operated the excavator with its crawler treadsstraddling the trench. However, the pressure on the trench walls causedby straddling resulted in cracking along the sidewalls. Thus, Woolstonstopped that effort the day before the accident, and employees returnedto the trench. (Tr. 564-67)Wolverton also testified that the day before the accident, he observedthe west wall bowing out into the trench, and material moving into thetrench. That occurred between 60 and 100 feet north of where the trenchstopped at the time of the accident. At that time, Wolverton got theemployees out of the trench again. He then noticed the cracks in thesidewalls and refused to have employees in the trench. (Tr. 566-69)WCC notes testimony that the refuse that lay below the top 3 feet ofclay in the cells of refuse was highly compacted, as was the soil in thecutoff wall. (e.g., Tr. 421-23, 451-52, 559-60) However, Dr. Pecktestified that, although compaction could increase the specific gravityof a soil, which could increase its strength, the soil he studied stillwould need to be sloped about 1 1\/2 : 1. (Tr. 253; cf. Tr. 235) Thatsoil was representative of the soil in the trench walls generally, asdiscussed above.[[9\/]]Also, the evidence did not indicate that the top 3 feet of clay in thecells had been compacted. It had hazardous cracks in it. Employees hadworked in the trench regularly during the week before the accident atdepths of 12 to 15 feet in the cell area, beneath the unstable 3 feet ofclay on each side.[[10\/]] That exposure in itself establishes a violation.D. _Means of exit (? 652(h))_There was no ladder or other device provided at any time for employeesto exit the trench. (Tr. 479-80, 632, 650) They had to climb the trenchwalls to get out at all times. What the standard requires is not merelya place to pull oneself out of the trench, but a ready means of exit,comparable to a ladder or steps, in the event of danger.[[11\/]] Suchmeans of exit are required within 25 feet of where employees are workingat all times. The standard are violated.E. _Seriousness and knowledge_Both violations were quite serious, as the fatalities illustrate. WCChad the requisite knowledge of the violations, because they were inWoolston’s plain sight and had existed for a long time. See 29 U.S.C. ?666(k).F. _Alleged willfulness of trench support item_1. _Legal standards_Under Commission precedent, a willful violation is one committed withintentional, knowing or voluntary disregard for the requirements of theAct, or with plain indifference to employee safety. E.g., WilliamsEnterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD (P)27,893, p. 36,589 (Rev. Comm. No. 85-355, 1987). It is differentiatedfrom other types of violations by a \”heightened awareness — of theillegality of the conduct or conditions — and by a state of mind –conscious disregard or plain indifference.\” Id. A finding of willfulnessis not justified if an employer has made a good faith effort to complywith a standard, even though the employer’s efforts are not entirelyeffective or complete. Id. Also, a violation is not will if the employerhad a good faith opinion that the violative conditions conformed to therequirements of the cited standard. However, the test of good faithfor these purposes is an objective one — whether the employer’s beliefconcerning a was reasonable under the circumstances. Id. 13 BNA OSHC at1259, 1986-87 CCH at p. 36,591This case arises within the jurisdiction of the U.S. Court of Appealsfor the Third Circuit. That circuit has held that:Willfulness connotes defiance or such reckless disregard of consequencesas to be equivalent to a knowing, conscious, and deliberate flaunting[sic, flouting] of the Act. Willful means more than merely voluntaryaction or omission — it involves an element of obstinate refusal to comply.Frank Irey, Jr. v. OSHRC, 519 F.2d 1200, 1207 (Id Cir. 1974). However,that court also has stated that there is little, if any, differencebetween its approach and the \”intentional disregard, plain indifference\”standard employed by other courts and the Commission.In our way of thinking, an \”intentional disregard of OSHA requirements\”differs little from an \”obstinate refusal to comply\”; nor is there incontext much to distinguish \”defiance\” from \”intentional disregard.\”\”Flaunting the act\” or \”flouting it,\” as some would say, again carriesthe same meaning.Babcock & Wilcox Co. v. OSHRC. 622 F 2d 1160, 1165 (3d Cir. 1980). SeeCedar Construction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978,(comparing Third Circuit test with that if the court.2. _Evidence_The Secretary relies on the testimony of Hart’s inspectors, Thomas Hannaand Joel Reigart. They testified that they warned David Woolston beforethe accident numerous times of the need for more sloping, andspecifically mentioned the OSHA standards to him .The Secretary alsorelies on the testimony of WCC employee Wolverton and WMNA generalmanager Robert Everton that they alerted Woolston to safety problems inthe trench during the two days before the accident.WCC argues that the testimony of the Hart inspectors and Everton is notcredible. It asserts that they had a strong motive to distort the facts,because Hart and WMNA are co- defendants with WCC in lawsuits brought bythe deceased employees’ survivors. WCC also argues that there areinconsistencies in their testimony that affect its credibility.According to WCC, CO Smith, who recommended issuing the citation aswillful, ignored important facts contrary to those he relied on. It alsoasserts that the numerous safety measures taken by David Woolston negateany inference of willfulness.Even leaving aside the testimony of the Hart inspectors and Everton, thepreponderance of the evidence indicates that David Woolston knew aboutcave-in hazards and relevant OSHA requirements well before the accident.The witness who might have contradicted that evidence was Woolstonhimself. However, he did not testify. Rather, he invoked his FifthAmendment constitutional privilege against self-incrimination.No adverse inferences are drawn from his failure to testify. TheSecretary had referred the case to the Justice Department for passablecriminal prosecution. Although no prosecution was commenced by thatDepartment in this case or other OSHA cases generally, the FifthAmendment privilege was available. [[12\/]] However, the evidence ofrecord establishes willfulness on Woolston’s part. His actions properlyare imputed to WCC. [[13\/]]a. _Testimony of Wolverton and CO Smith_The discussion above of Wolverton’s observations of the soil’sinstability also shows that he informed Woolston at least twice beforethe day of the accident that he considered the trench unsafe. CO Smithtestified without contradiction that Woolston \”said he knew OSHAstandards\” when Smith spoke to him after the accident. (Tr. 481) Smithalso testified that he inferred that Woolston was aware of OSHA’ssloping requirements because he kept talking about 2:1 sloping.[[14\/]](Tr. 483)[[15\/]] This evidence indicated that Woolston knowinglydisregarded the applicable requirements of the Act, and thus actedwillfully.As WCC notes, Woolston took certain measures to reduce the cave-inhazards after warnings on the two days before the accident. However, thechanges were not a good faith effort at compliance — they bore noreasonable relationship to OSHA’s requirements.Woolston’s changes were as follows. After Wolverton removed theemployees from the trench two days before the accident, Woolston hadthem work from the top the rest of the day. (Tr. 560-66) However, thenext day (the 12th) they were back in the trench. (Tr. 566-69, 444-46)Then, about mid- day on the 12th, after another warning, Woolston slopedthe west wall slightly for about 40 feet (from about 60 to 100 feetnorth of where trenching stopped). (Tr. 360, 567-69; Ex. C-4, p. 4,bottom photo; Ex. C-14)[[16\/]] However, there is no indication that theeast wall, which later collapsed in that area, was sloped. Under theOSHA standard, both trench walls must be sloped back to their angle ofrepose.Also, after being warned on the 12th, Woolston began cutting a step intothe top portion of the trench walls. However, the stepping wasincomplete and inadequate, as discussed above. Even if Woolston hadbelieved that the cutoff wall and the refuse below the clay in the cellswere the equivalent of hard and compact soil, he was required under ?1926.652(c) to shore or brace them, or slope each wall 1\/2:1 (about63[[DEG]]) above the 5-foot level. The partial stepping did not remotelyapproach compliance with that requirement.WCC took certain other safe measures. It placed the excavated material asafe distance from the trench. (Tr. 433; Ex. C-4) It used a remotecontrol compactor, which eliminated the necessity for having an employeein the trench when it was being backfilled. (Tr. 129, 540-41) It alsomay have kept extraneous machinery away from the trench.[[17\/]]However, those factors do not negate the willfulness of Woolston’sdecision to forego the time and effort needed to slope or support thetrench walls as required. He took conscious and grave risks in thatregard, contrary to known OSHA requirements. No good faith effort tomeet OSHA’s requirements was shown. The testimony of Wolverton and Smithleads to the conclusion that there was an obstinate refusal by Woolstonto heed OSHA’s trench support requirements, and a flouting of thoserequirements.b. _Testimony of Everton_WMNA general manager Everton testified that he observed the trenchingthe day before the accident at about 11:30 a.m. According to Everton,the trench was about 6 or 7 feet wide at both top and bottom and wasabout 10 to 12 feet deep. He could see dirt \”cracking off the top alittle bit,\” although he did not see surface crack in the sidewalls. Thetwo employees who later died were at the bottom of the trench. Evertontestified that he stopped the job temporarily by ordering the employeesout of the trench and ordering that the dump trucks in the area not bebrought near the trench, to avoid vibrations. Everton also testifiedthat he ordered David Woolston to widen the trench walls. (Tr. 444-46)[[18\/]] Everton’s testimony is uncontradicted by any competent evidenceand I credit that testimony.[[19\/]]c. Testimony of HannaThomas Hanna was Hart’s first inspector on the job, from December, 1987to about the beginning of April, 1988. He was present at the trenchdaily. (Tr. 99) He testified that employees were in the trench when itswalls were at least 7 feet, and vertical. The job blueprints (Ex. R-6)are consistent with that estimate. Hanna testified that he told DavidWoolston that the trench was unsafe and that he felt that a 1:1(45[[DEG]]) slope was required. His understanding of Woolston’s answerwas that Woolston would worry about safety in the trench, and that Hannashould confine himself to whether the pipe was put in properly. (Tr. 93-99)In March, Hanna testified, he spoke to Woolston about what precautionsto take when the trench got to the deepest section (where the accidentoccurred). Hanna testified that he suggested to Woolston sloping thetrench 1: 1 or using a trench box. According to Hanna, Woolston repliedthat he would slope the trench, although. he did not say how much. (Tr.104-05) During the four months that he was at the site, Hanna testified,WCC never sloped the trench and never used a trench box.Hanna testified generally that \”whenever we had unsafe conditions, Iwould bring it up\” to Woolston in some manner. He developed a sense thattalking to Woolston about trench safety was becoming fruitless. (Tr.101-03), He never told anyone besides Woolston about the safetyproblems, even though he believed that WCC was under WMNA’s supervision.(Tr. 143, 146) However, he was not required to make such reports.The testimony of Everton and Hanna strongly corroborates the defiantattitude Woolston had toward following trench support requirements. Aswith Everton, I credit Hanna’s essential testimony on the disputedissues. WCC’S attacks on his credibility are unpersuasive.[[20\/]] Also,Hanna no longer was employed by Hart at the time of his testimony, andhe was not directly involved in the accident, having left the site aboutten days before. (Tr. 69, 79) No ill will toward Woolston or WCC seemedto motivate Hanna’s testimony.[[21\/]]d. _Testimony of Reigart_Joel Reigart succeeded Hanna as Hart’s inspector on the project in thefirst week of April, 1988. (Tr. 256-57) The digging still was in thenorthern zone. Reigart was at the site every day full-time, except for afew days when he was at another landfill for a few hours. (Tr. 262-63)Reigart’s testimony corroborates that of the other witnesses on theessential facts, and adds certain details. For example, he testifiedthat about a week before the accident, he mentioned to David Woolstonthat the trench would be getting 15 or 20 feet deep. Reigart askedWoolston what kind of shoring or support he would use. Reigart testifiedthat he explicitly mentioned OSHA’s trench support requirements andadvised Woolston to use 2:1 sloping (2 feet of horizontal slope for eachvertical foot on each trench wall). According to Reigart, Woolston saidthat his preference was for sloping, but also said that \”he [Woolston]was going to be responsible for the trenching and I [Reigart] shouldmaintain the pipe and the inspection of it…\” (Tr. 274-78, 297-99)Reigart also testified that many times before the accident he askedWoolston if he considered the walls properly sloped, and that Woolstonnever gave him a direct answer (Tr. 300, 302) According to Reigart,Woolston was aware of the surface crack, which ran parallel to thetrench for its entire length, and warned employees frequently to be verycautious near it. Reigart also corroborated Everton’s testimony that hetold the employees to leave the trench the day before the accident. (Tr.310-11)WCC attacks Reigart’s credibility on numerous grounds. As it notes,Reigart made certain statements just after the accident that may beinconsistent with parts of his hearing testimony.[[22\/]] However,Reigart’s testimony would not affect the outcome. In the circumstances,I will not attempt to resolve WCC’s attacks on his credibility. I havenot relied on any of Reigart’s testimony that is unfavorable to WCC.Regardless of Reigart’s testimony, the evidence shows that DavidWoolston displayed an \”obstinate refusal to comply\” with OSHA’s trenchsupport requirements, and flouted them.G. _Penalties_The conscious disregard of OSHA trench support requirements by WCC oversuch a long period of time in the deep trench merits the penalty askedby the Secretary — $10,000, the maximum for a willful violation. See 29U.S.C. ? 666(a). Similarly, the failure over the same period to providea ladder or other adequate means of exit from the trench merits themaximum penalty for a serious violation — $1,000. In assessing thesepenalties, I have considered the fact that WCC had no previousviolations in its four-year history, and that it was a small companywith less than 10 employees.(Tr.108) Also, I have considered the factthat it took certain safety measures at the site. However, theconditions were so serious and the warnings so clear, that the maximumpenalties are appropriate, even considering those factors. See 29 U.S.C.? 666(j).H. _Findings of Fact and Conclusions of Law_The findings of fact and conclusions of law have been made above. SeeFed. R. Civ. P. 52(a)._ORDER_1. The alleged willful violation of 29 C.F.R. ? 1926.652(b) is affirmed,and a penalty of $10,000 is assessed.2. The alleged serious violation of 29 C.F.R. {sym}1926.652(h) isaffirmed, and a penalty of $1,000 is assessed.IRVING SOMMERJudge, OSHRCDATED: OCT 23 1989Washington, D. C.FOOTNOTES:[[1\/]] On October 31, 1989, the Secretary completely revised theconstruction industry trenching standards. At the time of the citation,however, the cited standard stated in relevant part:{sym}1926.652 Specific trenching requirements.(b) Sides of trenches in unstable or soft material, 5 feet or more indepth, shall be shored, sheeted, braced, sloped, or otherwise supportedby means of sufficient strength to protect the employees working withinthem.[[2\/]] Judge Sommer also affirmed a citation that alleged a seriousviolation of 29 C.F.R.{sym}1926.652(h), for failure to provide employeeswith an adequate means of exiting the trench. Respondent has not takenexception to that portion of the judge’s decision and it will not bereviewed by the Commission. See Trumid Construction Co., 14 BNA OSHC1784, 1785, n..1, 1990 CCH OSHD (P) 29,078, p. 38,855[[3\/]] The record does not indicate the length of the step.[[4\/]] Wolverton testified that he first noticed a crack as it began tofracture, leading to the trench collapse. The evidence does notestablish; however,whether this was a new crack or the same one observedby other witnesses.[[5\/]] The evidence indicates that, even in those areas where steps werecut into the trench wall, the top of the trench was only approximately10-14 feet wide.[[6\/]] Even if the test results were discounted, the eyewitnesstestimony is sufficient to establish that the soil was unstable.Scientific testing and analysis is not a prerequisite for determiningthe stability of soil in order to establish noncompliance with thetrenching requirements. Duane Meyer d\/b\/a D.T. Construction Co, 7 BNA1560, 1563, 1979 CCH OSHD (P) 23,742 at p.28,793 (No. 16029, 1979)[[7\/]] We note, for example, that at the time of the hearing, ThomasHanna had already left the employ of Hart Engineers.[[8\/]] We would also note that, as a general principle, the Commissionlooks with disfavor upon motions for stays. Commission rule 63(a), 29C.F.R. 2200.63(a)[[9\/]] Respondent argues that despite his statement to the contrary, thejudge implicitly drew an adverse inference regarding David Woolston’sattitude from his failure to testify. Because we find the violationwillful regardless of David Woolston’s attitude, we need not determinewhether the judge properly drew such an adverse inference. We note,however, that the Supreme Court has stated that the drawing of anadverse inference from a party’s failure to testify in a civil case dueto a Fifth Amendment self-incrimination privilege is not a violation ofthat privilege. Baxter v. Palmigiano, 425 U.S. 308, 316-18, 96 S.Ct.1551, 1557-8 (1976).[[1\/]] The standard provides in full: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).[[2\/]] That standard provides in full: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.[[3\/]]The depths shown on the blueprints are to the invert elevation ofthe pipe (the bottom of the pipe on the inside)[[4\/]] Two Bordentown police patrolmen who arrived on the scene withinan hour of the accident so testified. (Tr. 29, 59) Measurements takenthe day after the accident under the supervision of the bureau chief whoinvestigated the accident for the New Jersey Department of EnvironmentalProtection (\”NJDEP\”) confirm that depth. (Tr. 354-57, 478; Ex. C-15)(See also Ex. R-6, p. 2)[[5\/]] The NJDEP bureau chief’s measurements and those of CO Smith soindicated. Wolverton testified to the same effect. (Tr. 363, 445, 493,589-91, 633-34; Ex. R-10.[[6\/]] Rule 901 of the Federal Rules of Evidence (\”FRE\”) covers thisquestion (The FRE apply in Commission proceedings. 29 C.F.R.{sym}2200.71) Rule 901 provides in pertinent part:(a) General provision. — The requirement of authentication oridentification as a condition precedent to admissibility is satisfied byevidence sufficient to support a finding that the matter in question iswhat its proponent claims.Rule 901(a), unlike prior authentication rules, applies to real anddemonstrative evidence generally — not just writings. United States v.Zink, 612 F.2d 511 (10th Cir. 1980).[[7\/]] Everton was unable to recollect whether he got the clump from theshear wall or from the bottom of the trench, where further excavationhad been done by the backhoe. (Tr. 467-68)[[8\/]] Rule 702 provides:If scientific, technical, or other specialized knowledge will assist thetrier of fact to understand the evidence or to determine a fact inissue, a witness qualified as an expert by knowledge, skill, experience,training, or education, may testify thereto in the form of an opinion orotherwise.See Dychalo v. Copperloy Corp., 78 F.R.D. 146, 149 (E.D. Pa. 1978)(metallurgical engineer permitted to testify on principles of mechanicalengineering known to him by education). The expert’s opinion must simplybe sufficient to convince the trier of fact that its version of whatoccurred is more likely correct than not. Alexander Hamilton Life Ins.Co. v. Gov’t of V. I., 757 F.2d 534, 542-43 (3d Cir. 1985).[[9\/]] Contrary to WCC’s claim, the references in Table P-1 to compactedmaterial do not indicate that the soil here could properly be slopedmore steeply than 1 1\/2 :1. The Table states that \”compacted angulargravels\” may be sloped 1\/2 : 1 (about 63[[DEG]] ). However, the soilhere was not angular gravel. The only other reference to compaction inTable P-1 is that \”compacted sharp sand\” must be sloped at least 1 1\/2:1 (about 33[[DEG]] ) The evidence showed that the soil here was no morestable than compacted sharp sand.[[10\/]] As WCC notes, following the discussion of safety the day beforethe accident, Woolston began to cut a step about 3 feet wide and 3 feetdeep in the trench walls. (Tr. 303-06, Ex. C-12) That may have relievedthe problem of the top 3 feet of soil in the area where the step was cutHowever, the step was not used consistently. There was no step in thearea where the employees tried to escape the fatal cave-in (the \”D\” areaon Ex. C-14, sketch 2). (Tr. 650-51) Also, there was no stepping northof where the work stopped on the 12th. Employees were exposed to acave-in hazard there, as they had been during the preceding week. Thestandard was violated on that basis as well.WCC’s counsel elicited from CO Smith that there is some possibility thatground water contributed to the cave-in. (Tr. 522-26) It also ispossible that WCC did not know, and had no reasonable way of knowing,about the ground water. However, the employee protection was inadequateunder the standard, regardless whether there was ground water.[[11\/]] WCC asserts that the slightly sloped portion of the west wall,60 to 100 feet north of where the trenching stopped, could have been anadequate means of exit. This is unfounded. That high wall was not evensloped properly, considering the unstable soil within it. Much less wasit an appropriate exit ramp. No other means of exit was suggested within80 feet of the employees who died in the cave-in.[[12\/]] WCC’s motion for a stay of the proceedings pending JusticeDepartment review was denied. (E.g., Document J-10) Its Petition forInterlocutory Review of that ruling was denied by the Commission byorder of March 24, 1989. (Document J-25) That order stated, \”TheRespondent has not yet shown the need for a stay to avoid prejudice toany right against self-incrimination.\” WCC showed no such need for astay during the hearing. Its asserted need for a stay was based on thepossibility of adverse inferences being drawn from David Woolston’sfailure to testify. (E.g., Tr. 655-57) As discussed above, no suchinferences are being drawn. It is noted that the case law on thepropriety of drawing adverse inferences from the assertion of a FifthAmendment privilege is not totally uniform.[[13\/]] See Dun-Par Engineering Form Co. 12 BNA OSHC 1962, 1965-66 (Rev.Comm. No. 82- 928, 1986).[[14\/]]Although WCC does not question this testimony specifically, itattacks CO Smith’s investigation generally. It asserts that he wasgullible in believing Hanna, Reigart and Everton, and that he failed tofollow up sufficiently on the Woolstons’ statements contrary to theirs.However, the evidence did not show any deliberate or careless failure toinvestigate on Smith’s part. In any event, the sufficiency of Smith’sinvestigation is not properly in issue. WCC had the opportunity topresent those facts that support its position on the citations.[[15\/]]Wolverton testified that he knew the OSHA standard about sloping.(Tr. 630)[[16\/]] Wolverton testified that the trench also was widened outsomewhat where it curved to the southeast, between 30 and 60 feet northof where trenching stopped. (Tr. 570-71) However, the west wall wasessentially vertical in that area. (E.g., Ex. C-4)[[17\/]] WCC had done other excavation work at the landfill for WMNApreviously, and Everton had heard no safety complaints about thatprevious job. (Tr. 446 – 47) There were no time pressures on the work.(E.g., Tr. 455-56)[[18\/]] WCC asserts that Everton’s testimony that he stopped the workfor safety reasons was contradicted by other evidence. It citesWolverton’s testimony. However, Wolverton merely said he did not recallEverton coming and speaking about safety. There was no evidence thatWolverton necessarily would have known if Everton had discussed safetywith Woolston. Wolverton’s testimony does does not contradict Everton’s.WCC also notes the CO’s acknowledgment that the Woolstons told himbefore the citations were issued that they disputed Everton’s statementthat he had stopped the job for safety reasons. (Tr. 498) However, WCCpresented no witness to contradict Everton’s testimony at the hearing.The Woolstons’ out-of-court statements are admissible to show notice tothe CO of matters to investigate. This was apparent purpose for WCC’sintroducing those statements. However, they may not be relied on toprove the truth of the matters asserted. Those statements do not havethe \”circumstantial guarantees of trustworthiness\” which justify therecognized exceptions to the rule against admission of hearsay evidence.Cf. FRE 803 (24) . Those statements, by themselves, would not havesignificant probative value even if admissible.[[19\/]] WCC apparently attacks Everton’s credibility by noting that whenhe was asked to mark on the job blueprints the place where he stoppedthe work, Everton’s mark was too far north by 100 to 200 feet . (Tr.459-62) However, that error is insignificant. The difference is only 2to 4 inches on the blueprints. (Ex. R-6) There is no indication that hiserror was anything more than an inadvertent one made under the pressureof attempting to read the complex blueprints during his cross-examination.[[20\/]] As WCC notes, Hanna did not display an entirely consistentrecall of trench measurements and dates. However, those recollectionproblems do not negate the essential points of his testimony. Hetestified at first that the trench had been 12 feet deep in places. (Tr.84) He corrected that, however, to say that the 12-foot depth related tothe horizontal collection system, and that no employees entered it untilit had been backfilled to 6 feet deep or less. (Tr. 92-93) He also gavespecific estimates that employees were in the trench at depths of 7 to10 feet. (Tr.93-94, 116 ) Those estimates are consistent with the depthsestimated in the job blueprints (Ex. R-6), considering that the trenchwas dug out some distance below the pipe.WCC also attacks Hanna’s credibility on the ground that he testifiedthat he spoke to Woolston about trench safety in January, 1988. WCCclaims that it did not begin work until February 9, 1988. Whether Hannacorrectly recollected in April, 1989, that the conversation was inJanuary rather than February, 1988, is not important.[[21\/]] To show a possible motive by the Hart inspectors to testifyfalsely, WCC argues that they were responsible for OSHA compliance byWCC, or for the safety of WCC’s employees generally. However, there wasno proof that they were. WCC notes that the general agreement betweenHart and WMNA states:The CONSULTANT his employees, agents, and representatives, shall at alltimes comply with all applicable laws, ordinances, statutes, rules, orregulations, including those relating to wages, hours, fair employmentpractices, antidiscrimination, and safety and working conditions.(Ex. R-7, Art. IX, emphasis added) However, that language seeminglyrelates only to the safety and working conditions of Hart’s ownemployees. WCC was not Hart’s employee, agent or representative, so faras this record show. It was directly hired by WMNA.Everton testified that in his opinion the responsibility for safety onthe job lay with \”the contractor [WCC] and the third party engineer[Hart]\” (Tr. 464-65) His testimony does not make clear whether hebelieved Hart was responsible for the safety of WCC’s employees ingeneral, or what the basis for such a belief would be.[[22\/]] Evertron testified that he spoke with Reigart on the afternoonof April 13, after the accident, and that Reigart told him the trenchwall involved in the accident had a 2:1 slope and that the trench was 10feet deep. (Tr. 466) Reigart then prepared a drawing of the site,containing the same information. (Tr. 433- 35, 466; Ex. R-2) CO Smithtalked to Reigart about the apparent inconsistencies in his statements.Reigart told him that his statements right after the accident were madeunder great emotional stress and strain, and he was no longer sure whathe had said or done. (Tr. 519)Also, the report concerning the accident by Bordentown PatrolmanO’Reardon contains statements attributed to Reigart that are at oddswith his hearing testimony. (Ex. C- 1, p. 2) Those statements concern alack of signs of danger before the accident, and the depth of thetrench. However, Reigart gave a plausible explanation of how his actualstatements had been misconstrued, which was corroborated in part byanother patrolman’s testimony. (Tr. 382, 44-45)”