“Docket No. 88-1877 SECRETARY OF LABOR, Complainant. v..WOOLSTON CONSTRUCTION CO, INC., Respondent.Docket No. 88-1877DECISION BEFORE: FOULKE, Chairman and WISEMAN, Commissioner. BY THE COMMISSION:Respondent, Woolston Construction Company, Inc., is a small construction subcontractor. InApril 1988, Woolston was assisting in the construction of a methane gas venting system ata landfill in Bordentown, New Jersey. Woolston was hired to dig trenches for othersubcontractors who would lay pipes that would vent the methane gas accumulating in thelandfill. A cave-in within a cutoff wall (a wall separating a \”cell\” of refusefrom the surrounding land) killed two employees who were working in the trench, anemployee of Woolston and an employee of Welfab, the subcontractor welding the pipe.As a result of the accident and a subsequent inspection by the Occupational Safety andHealth Administration (\”OSHA\”), Woolston Construction Co., Inc. was issued acitation that alleged a willful violation of section 5(a)(2) of the Occupational Safetyand Health Act of 1908, 29 U.S.C.{sym}664(a) (2), (\”the Act\”), for failure tocomply with 29 C.F.R. {sym}1926.652(b) [[1\/]] on the grounds that Woolston failed toadequately slope or support the trench in which employees were working.Administrative Law Judge Irving Sommer affirmed the citation and assessed a $10,000penalty. [[2\/]] Respondent filed a Petition for Discretionary Review that was granted bythe Commission. For the reasons that follow, we affirm the judge’s decision.I Alleged Violation of 29 C.F.R. {sym}1926.652(b) A. The TrenchOn April 13, 1988, Respondent was working at the Parkland Reclamation Site, a landfill inBordentown, New Jersey, owned by Waste Management of North America, Inc. Waste Managementhired Hart Engineers, Inc. to manage, monitor, and document the construction andinstallation of a methane gas control system, and Woolston to do the actual excavationwork. Woolston performed the excavation work with an excavator operated by its vicepresident and one of its principal share holders, David Woolston.The landfill consisted of \”cells,\” areas where garbage was placed and covered.Cut-off walls were erected from beneath the cell floor to ground level to separate onecell from another or to create a barrier from the landfill to the neighboring property.When an area was filled, the trash was covered with a clay cap and highly compacted byspecial compaction equipment.The trench began on the north side of the landfill and proceeded generally south. The pipedescended at a constant 2% slope as it went south, with the trench becoming deeper as itproceeded south. Road Crossing No. 1 provided a dividing line between the north and southparts of the trench. The trench was approximately 500 feet long. Approximately 125 feetlay north of the road, while the remainder ran to its south. The trench in the northernzone ranged from 5-10 feet deep. In the southern zone the trench became progressivelydeeper, eventually reaching 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 walls were nearly vertical,and were not sloped, shored, or otherwise braced. After receiving complaints from Hartinspector Reigart, Woolston cut a step into each side of the trench the day before theaccident. The steps began about 11-13 feet from the bottom of the trench, approximately2-3 feet below the ground and were about 3 feet wide. [[3\/]] Woolston did not dig outsteps in new areas of the trench as digging continued. Nor did it go back and add the stepto those areas already excavated.Because the soil was hard to dig in, it was necessary for the excavator to be equippedwith \”rock teeth\”. The compliance officer testified that soil samples from theeast wall, that sheared off in the fatal cave-in, appeared to be gray clay and wererepresentative of the type of soil in the trench walls. The soil samples were tested byDr. Alan Peck at OSHA’s Salt Lake City, Utah office. Dr. Peck testified that each samplewas a sandy, silty clay that would be classified as unstable under the OSHA standard. Thecritical slope for such soil, according to Dr. Peck was 32 degrees. He testified that, inorder to achieve such a slope, each trench wall would have had to have been sloped morethan 1.5 feet horizontally for each foot of depth.The east wall of the trench was crumbly. Periodically, small blocks of clay would sloughoff and fall into the trench. At times, the crews came to work in the morning to find thatlarge parts of the trench walls had fallen in overnight. Such a collapse took place theday before the fatal accident. Also, before the accident, there was a large crack on thesurface that ran along the length of the trench, near the trench opening. At some pointsthe crack was 16 inches wide. The crack was being monitored by Joel Reigart, theconstruction inspector for Hart Engineers. Other cracks occasionally appeared, due to theweight of the excavator 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 before the cave-in heheard material trickling through the walls of trash and ordered employees out of thetrench. The operation later continued with the excavator straddling the trench and diggingfrom that position. On the day before the accident, Wolverton noticed that the weight ofthe excavator had caused the west wall to bow. The excavator was removed from its straddleposition, and the employees resumed their work within the trench.The collapse of the east wall started in the northern part of the trench, and continued ina wave-like pattern approximately 50 feet to where the trenching had progressed in thesouthern end of the trench. The employees tried to outrun the collapsing wall, butapparently in their confusion they ran in different directions, collided with each otherand were buried by the collapsing trench. B. Establishing a ViolationTo establish a violation of a standard, the Secretary must show by a preponderance of theevidence that: (1) the standard applies to the cited conditions, (2) its terms were notmet, (3) employees had access to the violative condition, and (4) the employer knew orcould have known of the violative condition with the exercise of reasonable diligence.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 it lacked knowledgeof the conditions. However, it is undisputed that if the standard does apply, the trenchwas not sloped or otherwise supported within the terms of 29 C.F.R.{sym}1926.652(b).Similarly, there is no question of employee exposure.C. Applicability of the StandardThe judge found that the soil was \”soft and unstable.\” He also found that thesoil samples were representative of soil conditions at the trench and that each sample wascomprised of a sandy, silty clay that would be classified as unstable. Moreover, the judgefound that the testimony of persons at the site further established that the soil wascomposed of an unstable clay. He took particular note of Wolverton’s testimony: that heheard material trickling through the walls of the trench, one of the trench walls wasbowed due to the weight of the excavator, material was falling into the trench, and acrack appeared in the ground parallel to the trench.Respondent first argues that the evidence established that the soil that the trench wasdug in was hard and compact. Therefore, it contends, the judge erred in finding that thecited standard, which requires shoring or sloping of trenches dug in soft or unstablesoil, applied to the trench. Respondent argues that the judge overlooked evidence thatestablished that the site consisted of cells and cut-off walls, which are made by runningcompaction equipment over the garbage to compact the garbage within the cells. These cellsmust be highly compacted to meet New Jersey Department of Environmental Protection (NJDEP)requirements and are designed to limit the escape of any agent from the landfill.Respondent also points out that It was in the financial interest of the landfill owner tooptimize the use of its land by compacting the trash as much as possible. Moreover, evenwith rock teeth on the excavator, digging was so difficult that excavation could only beaccomplished by repeatedly scraping and scratching at the layers of material.Respondent’s arguments fail to recognize that {sym}1926.652(b) applies to trenches dug in\”unstable or soft\” soil. By its own terms, the standard would apply to unstablesoil, regardless of the hardness or compactness of the material.The evidence in this case overwhelmingly establishes that even though the landfill hadbeen mechanically compacted and the soil was not soft, it was highly unstable. First, acrack on the surface that ran along the length of the trench wall provided a fracturepoint that could have led to the collapse of the trench. [[4\/]] Second, on severalmornings the crew came to work to find that portions of the trench had caved-in overnight.The east wall of the trench was crumbly, and small blocks of clay would periodicallyslough off the trench walls and fall into the trench. Also, the weight of the excavatorstraddling the trench bowed its walls outward, revealing the intrinsic instability of thetrench. Moreover, Wolverton heard material trickling through the trench the day before thecollapse and fearing a collapse ordered employees out of the trench. Finally, thephotographs taken at the accident sight reveal that, below the clay cap, the trench wallswere laced with quantities of trash of varying types, including wood and paper products. Atrench wall composed of materials of differing strengths is only as stable as its weakestcomponent. 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, whoanalyzed the samples, testified that the tests revealed that the soil consisted of asandy, silty clay that would be classified as unstable under the OSHA standard. Thecritical slope for such soil, according to Dr. Peck, was 32 degrees. He testified that toachieve such a slope each trench wall should have been sloped more than 1.5 feethorizontally for each foot of depth. This would have required that a trench 12 feet deepand 6 feet wide at the bottom have a top width of approximately 40 feet.[[5\/]]Respondent challenges the probity of the soil samples. It argues that, although the judgefound that the samples were representative of the soil at the trench, two of the sampleswere taken from the cut-off wall on the side that collapsed and, therefore, weredisturbed, and it was not known where Robert Everton, Waste Management’s general manager,took his samples. Respondent contends that, where the clay only comprised a thin coverover the compacted trash, relying on soil analyses ignored the compaction of the garbageand grossly distorted the actual condition of the trench.Respondent’s argument have little merit. Dr. Peck testified that the samples he testedconsisted of both disturbed and undisturbed soil. Respondent’s reliance on Everton’sinability to identify where he obtained the sample is particularly disingenuous since thethrust of its argument is that the trench was uniformly hard, compact, and stable due tothe compaction of the soil and trash. If the argument has any validity, it should notmatter from which particular part of the trench the soil came. [[6\/]]D. KnowledgeWe also find that respondent knew or could have known that the trench was dug in unstablesoil. Respondent’s vice president David Woolston was at the site operating an excavatorthroughout respondent’s presence at the site. He was present when Wolverton heard materialtrickling through the 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, DavidWoolston knew or should have known that the large quantities of trash contained in thetrench reduced the cohesiveness of the material in the walls of the trench. From thesefactors, a reasonably diligent employer could have concluded that the trench was inherently unstable.Accordingly, we affirm the judge’s finding that Respondent violated 29 C.F.R.?1926.652(b).II Willfulness A. TestimonyRespondent next argues that the judge erred by finding that the violation was willful.Hart inspectors Thomas Hanna and Joel Reigart both testified that they warned DavidWoolston on numerous occasions before the accident about the need to slope the trench.Hanna testified that near the beginning of the project, he told David Woolston that theunsloped trench created an unsafe condition and pointed out the OSHA sloping requirements.Hanna was concerned that soil conditions were wet and slippery and soil was breaking offand falling into the trench. According to Hanna, Woolston replied that Hanna should worryabout his own job and that he would worry about safety. Hanna again testified that inMarch he told David Woolston 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 the site, however,the trench was never sloped.Reigart, who replaced Hanna as the inspector at the site, testified that when the trenchcrossed the access road and began to reach depths greater than five feet, he asked DavidWoolston how he planned to support the trench walls. According to Reigart, Woolstonreplied that he would be responsible for the trenching andReigart should concern himself with the piping. Reigart testified that he tried to discusstrench safety with Woolston on a daily basis, but Woolston did not respond to theinquiries. Reigart also testified that, a week before the accident, after the trenchentered the southern zone, he told Woolston that the trench would be reaching depths of15-20 feet and informed him about the OSHA shoring\/sloping requirements. Reigart testifiedthat Woolston replied that he would consider sloping. However, except for one step thatwas cut into a portion of each side of the trench, Reigart stated that he never noticedany shoring, sheeting, or sloping. Respondent’s employee, Wolverton, testified that a couple of days before the accident, hebegan to hear trash trickling through the walls of the trench, observed cracks in thewalls, and became concerned about the trench’s safety. He ordered the other two employeesout of the trench and expressed his concerns to David Woolston. He and Woolston thenapproached Reigart and proposed that they dig from the top of the trench, with theexcavator straddling the trench walls. Wolverton further testified that they stoppeddigging from the top because the weight of the excavator was causing the trench walls tobow and material began moving into the trench. They relocated the excavator to the westwall and pulled back the trench walls where they had buckled. Normal procedures resumedwith employees working inside the trench. Eventually, respondent stopped sloping in newlydug areas.Robert Everton testified that, the day before the accident, he observed that while thetrench was 10-15 feet deep, the walls were vertical. He noted that dump trucks in the areawere causing vibrations and that dirt was cracking off the top of the trench. Evertonordered the employees out of the trench and told David Woolston to widen the trench. Healso testified that, the day before the accident, part of the trench had collapsedovernight. B. Judge’s FindingsThe judge found that Woolston did take certain safety measures, such as cutting steps,digging from the top of the trench and placing excavated material a safe distance from thetrench walls. However, the judge also found that, despite being repeatedly warned that thetrench was unsafe, and having the OSHA trenching requirements brought to his attention,Respondent decided \”to forego the time and effort needed to slope or support thetrench walls as required. He took conscious and grave risks in that regard …. \”Accordingly, the judge concluded that David Woolston displayed an \”obstinate refusalto comply\” with and flouted OSHA’s trenching requirements.In finding the violation willful, the judge expressly credited the testimony of Evertonand Hanna. In crediting Everton, the judge noted that his testimony was uncontradicted byany competent evidence. The judge discounted Respondent’s assertion that Everton’sinability to properly locate critical areas on the worksite blueprints rendered him anincompetent witness, and attributed the failure to the pressure of cross-examination.The Judge also found the attacks on Hanna’s credibility to be unpersuasive. He stated thatHanna’s occasional inability to consistently recall measurements and dates did not negatethe essential points of his testimony. The judge noted that Hanna was no longer employedby Hart when he testified and was not at the site of the accident. He found that Hanna’stestimony was not motivated by ill-will toward either David Woolston or Respondent.The judge agreed with Respondent that there were problems with Reigart’s testimony. Henoted that Reigart made certain statements after the accident that were not consistentwith his hearing testimony. For example, Reigart told the investigating police officersthat he saw no cracks or other signs of danger before the trench collapse. At the hearing,however, he testified that he was monitoring a crack that ran parallel to the trench.Rather than resolve the credibility of Reigart’s testimony, the judge concluded that therewas sufficient evidence to establish willfulness without his testimony. Accordingly, thejudge did not rely on any of Reigart’s testimony that was unfavorable to Respondent.C. Prior HistoryRespondent first argues that, because it has no history of safety violations, it shouldnot be found to have willfully, violated the Act. The argument is without merit.A willful violation is a violation done voluntarily with intentional disregard for therequirements of the Act, or plain indifference to employee safety. United States SteelCorp., 12 BNA OSHC 1692, 1703, 1966 CCH OSHD (P) 27,517, p. 35,675 (No. 79-1998, 1986).The receipt of prior citations may be a factor in determining whether willfulness exists.However, a prior citation is not a necessary condition to finding willfulness. To holdotherwise would obliterate the distinction drawn in section 17(a) of the Act, 29 U.S.C.?666(a), between \”repeated\” and \”willful\” violations. National Steeland Shipbuilding Co. v. OSHRC, 607 F.2d 311 (9th Cir. 1979).D. Attempted ComplianceRespondent next argues that the measures it took to reduce the hazardous condition of thetrench precludes a finding of willfulness. We disagree.A willful charge is not justified if an employer has made a good faith effort to complywith a standard or to eliminate a hazard even though the employer’s efforts are notentirely effective or complete. Keco Industries, Inc., 13 BNA OSHC 1161, 1169, 1986-87 CCHOSHD (P) 27,860, p. 36,478 (No. 81- 263, 1987).Respondent first calls attention to its efforts to cut steps into the trench. Thisstepping was undertaken to relieve pressure on the walls that had material sloughing intothe trench, but was not continued beyond the problem areas. Respondent also points outthat after Wolverton became concerned about the safety of the trench, David Woolstonstarted to dig the trench by straddling the trench with a backhoe. This procedureeliminated employee exposure during excavation because employees were moved out of thetrench when the backhoe was so positioned, and was stopped only when the weight of the34-ton excavator caused the sidewall to bow.Contrary to Woolston’s argument, Wolverton’s testimony high-lights Respondent’s failure totake reasonable measures to bring the trench into compliance with the standard. Respondentchooses to ignore the fact that employees who resumed working in the trench after theexcavator caused the trench walls to bow, were exposed to the same hazards presented bythe unsloped, unshored trench that prompted Woolston to evacuate them in the first place.Indeed, the evidence reveals that the measures taken by Respondent were done largely tofacilitate completion of the work rather than to comply with the Act or protect employees.The evidence clearly establishes that Respondent was aware of the dangerously unstablenature of the trench, yet failed to make any reasonable effort to comply with?1926.652(b). See Kehm Construction Co., 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 neitheras a good faith attempt to comply with the standard nor as an effort to eliminate thehazard to employees.E. Credibility of WitnessesRespondent challenges the credibility of Hanna, Everton and Reigart, as it did before thejudge. It points out that Hanna was confused about dates and measurements and almost brokedown from confusion when pressed to recollect how often he warned Woolston about the needto provide trench protection. Respondent also argues that Hanna admitted that he nevermentioned his problems with David Woolston, either in his personal log or to his superiorsat the site, and that Hanna’s testimony involved times when the trench, was still shallowand therefore was not relevant to the cited conditions.Similarly, Respondent argues, Waste Management’s general manager, Everton, was unable toidentify specific locations on the plans. The judge dismissed these failures asinadvertent error. Yet, Respondent argues, these errors misplaced events and locations byhundreds of feet. It also points out that Wolverton denied that Everton’s visit tookplace, even though Everton testified that Wolverton was there and within earshot of theconversation with Dave Woolston. Respondent further contends that Reigart’s testimony was dishonest and that the judge’srefusal to determine his credibility does it an injustice. It claims that the judge’srefusal to resolve Reigart’s credibility assumes that the testimony of witnesses isunconnected.Finally, Respondent argues that the judge ignored the fact that both Hart and WasteManagement are defendants in a wrongful death action. It claims that the desire to avoidcivil liability colors the testimony of the witnesses against Woolston. The Commission normally will not disturb a judge’s credibility finding. Kent NowlinConstruction Co., Inc., 8 BNA OSHC 1286, 1980 CCH OSHD (P) 24,459 (No. 76-191 and 76-192,1980); Otis Elevator Co., 8 BNA OSHC 1019, 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, only serious infirmities in acredibility finding have warranted its being overturned. See e.g., York Heel of Maine,Inc., 9 BNA 1803, 1981 CCH OSHD (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 notaccepted where judge failed to provide any justification for those findings in hisdecision); Archer-Western Contractors, 15 BNA OSHC 1013, 1991 CCH OSHD (P) 29,317 (No.87-1067, 1991.) (Judge’s subjective assessment of the probability of certain eventsoccurring not a credibility finding).We find that the judge justified his decisions to credit the testimony of Hanna andEverton. For example, the judge found that Everton’s testimony was uncontradicted and thathis inability to identify locations was the result of the pressure of cross-examination,and not relevant to Everton’s veracity. Similarly, the judge dismissed as unimportantHanna’s inability to recollect times and locations with precision. The judge also notedthat Hanna was neither currently employed by Hart nor directly involved in the accident,and displayed no ill-will toward any of the parties.We would note, however, that regardless of the testimony regarding David Woolston’sattitude, the undisputed facts establish that the violation was willful. The surfacecracks running parallel to the trench walls; the earlier collapse of portions of thetrench; and Wolverton’s detection of material trickling through the trench walls shouldhave provided ample warning to Woolston that the trench was inherently unstable and thatsteps to stabilize the trench were needed. However, even after it became clear that itcould not continue to excavate the trench by straddling the trench walls, Woolstonreturned to the original procedure that required employee presence in the trench eventhough it knew from the earlier collapse and Wolverton’s warnings that the trench wasinherently unstable and that the conditions that caused Wolverton to order employees fromthe trench were unchanged. Despite these incidents, Respondent neither shored, sloped nortook any other measure to protect the employees working within the trench. Under thesecircumstances, the exposure 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 the violation was willful.III. Motion for StayA. Procedural BackgroundBefore the hearing, Respondent learned that the Office of Regional Solicitor of theDepartment of Labor was considering recommending to the Justice Department that criminalprosecution under section 17(e) of the Act, 29 U.S.C. ?666(e), be filed againstRespondent. Respondent moved for a stay of proceedings on the grounds that, with criminalcharges possible, its principals would have to choose between testifying at theadministrative hearing or maintaining their Fifth Amendment right not to testify onmatters which could incriminate them. Respondent contends that if its principals chose notto testify at the hearing, its ability to defend itself would be seriously impaired. TheSecretary consented to the motion. Judge Sommer denied the motion on the grounds that thepublic interest in the speedy resolution of OSHA cases superseded the need for anindefinite stay where the possibility of criminal proceedings was \”inchoate\”.On February 14, 1989, Respondent received confirmation from the Secretary that theRegional Solicitor had made a written recommendation to the Justice Department toinstitute section 17(e) criminal proceedings. A teleconference was set up between thejudge and the parties 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 with the Commission.The petition was not granted and the hearing commenced on schedule. At the hearing,Respondent renewed its motion to postpone the hearing. The motion was denied. During thehearing, David Woolston, the only Woolston principal who was at the work site, assertedhis Fifth Amendment privilege and refused to testify.B. Factors in Determining Whether to Grant a StayRespondent argues that the judge’s refusal to grant the stay impaired its ability todefend against the charge that the violation was willful. The crux of respondent’sargument is that testimony adduced by the Secretary concerning David Woolston’s\”attitude\” went unrebutted because, facing criminal indictment, he chose toinvoke his Fifth Amendment privilege rather than testify.While a court may stay civil proceedings pending the outcome of parallel criminalproceedings, such action is not required by the Constitution. Federal Savings and LoanIns. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989.) There is no infringement ofeither the Fifth Amendment privilege against self-incrimination or the Due Process Clauseof the Fourteenth Amendment when a party to civil litigation, faced with parallel criminalproceedings, must choose between testifying at the civil 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-incrimination does not extend tocorporations. Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284 (1988); In ReMid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. 358, 360 (D. Md. 1981). Moreover, noConstitutional violation results when a party is deprived of exonerating testimony becauseof a witness’ invocation of the Fifth Amendment, United States v. Turkish, 623 F.2d 769,773-74 (2d Cir. 1980); cert. denied, 449 U.S. 1077, 101 S.Ct. 856 (1981). Similarly, it isa settled rule that a party cannot assert 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 Fifth Amendment rights of itscorporate officers.Nonetheless, Respondent properly argues that although the Constitution does not requirethat civil proceedings await the completion of any parallel criminal action, federalcourts may defer civil proceedings when 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 indictment has been returned,SEC v. Dresser Industries, Inc., 628 F.2d at 1375-6, an indictment is not required. Whendetermining whether to grant a stay of civil proceedings, the courts have traditionallylooked to five factors:(1) The interest of the plaintiffs in proceeding expeditiously with the civil action asbalanced against the potential prejudice to the plaintiffs of a delay;(2) The burden which any particular aspect of the proceedings may impose on 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; White v. MAPCO GasProducts, Inc., 116 F.R.D. 498, 502 (E.D. Ark. 1987) ; In Re Mid- Atlantic ToyotaAntitrust Litigation, 92 F.R.D. at 359; Golden Quality Ice Cream Co. v. DeerfieldSpecialty 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’s inherent power tocontrol its docket. In Re Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. at 359. Assuch, the power to grant a stay is purely discretionary. In Re Mid-Atlantic ToyotaAntitrust Litigation, 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 the possibility ofcriminal proceedings was \”inchoate\”. Therefore, the Commission must determinewhether, in light of the factors outlined above, the judge abused his discretion byrefusing to grant the stay. Having examined the record, we find that although the judgefailed to provide adequate reasons, his denial of the stay did not amount to an abuse ofdiscretion.Because the statute of limitations for criminal proceedings under the Act is five years,18 U.S.C. ?3282, the Department of Justice has until April 13, 1993 to file chargesagainst Respondent. Given the rapid turnover of employees in the constructionindustry,[[7\/]] a stay of sufficient length to assure that Respondent’s defense witnessescould testify without fear of incriminating themselves would probably result in the lossof witnesses and a breakdown in the Secretary’s ability to continue with the case. As thejudge noted, however, the Department of Justice seldom pursues criminal charges, evenwhere the Secretary of Labor recommends indictment. Therefore, when presented with arequest for a stay pending the resolution of any criminal proceedings, the judge was facedwith the likelihood of years of delay, without any reasonable assurance that criminalproceedings would be initiated.A judge has the discretion to fashion an order to fit the circumstances of the case. Seegenerally Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 FRD at58-60 (Complete stay denied; discovery permitted in those areas not relevant to criminalproceedings or already revealed to grand jury). It has been the Commission’s experiencethat it is generally the Secretary who requests a stay of proceedings while a decision ismade whether to pursue criminal charges due to the difficulty of obtaining discovery fromemployees and corporate officials facing the possibility of criminal indictment. Becausethe decision to recommend criminal proceedings is in the Secretary’s control, theCommission has found it useful to grant a limited stay, requiring the Secretary to decide,within a given period of time, whether to pursue criminal charges. Here, the stay is beingsought by the employer who had been informed that the Secretary recommended to theDepartment of Justice that a criminal indictment be pursued. To grant a limited stay underthese circumstances would have been useless, since the stay would have had to have beencontinuously renewed until the Department of Justice either announced a decision not toprosecute or the statute of limitations expired.We also find that, under the circumstances of this case, any attempt by the judge to staythe case for a limited time would have been a futile exercise.Although the judge did not adequately articulate his reasons for denying the stay, therecord is clear that he was primarily concerned with the prospect of an interminable delayof the case. As has been noted, one of the factors usually considered in determiningwhether a stay should be granted is the convenience tothe court. Included in this consideration is the court’s interest in clearing its docket.Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d at 903. We find that the judgedid not abuse his discretion by finding that the problems associated with an indefinitestay of the case overshadowed the inconvenience to Respondent by not granting thestay.[[8\/]]Moreover, under the circumstances of this case, had we found that the judge had abused hisdiscretion by not granting the stay, the resultant error would have been harmless.Respondent contends that because David Woolston exercised his Fifth Amendment right not totestify, Respondent was deprived of the only witness capable of refuting testimony thatthe judge relied on in finding that Respondent had an obstinate attitude toward safety.However, as discussed supra, we do not rely on the disputed testimony of Hanna, Everton,or Reigart, regarding David Woolston’s attitude. Rather, we find that the willfulcharacter of the violation was largely established by facts not disputed by Respondent.Therefore, even if David Woolston had testified, the facts still would show thatRespondent displayed a careless disregard for the safety of its employees.[[9\/]]III. PenaltyIn his decision, the judge assessed the maximum $10,000 penalty for the willful violation.In assessing the penalty the judge applied the statutory factors set forth in section17(j) of the Act, 29 U.S.C. ?666(j). Finding no error in the judge’s application of thosefactors, we affirm the judge’s assessment.IV. OrderAccordingly, we affirm the citation for willful violation of 29 C.F.R. ?1926.652(b) andassess a penalty of $10,000.Edwin G. Foulke, Jr ChairmanDonald G. Wiseman CommissionerDated: June 28, 1991SECRETARY OF LABOR, Complainant. v..WOOLSTON CONSTRUCTION CO, INC., Respondent.Docket No. 88-1877APPEARANCES:FOR THE SECRETARY: Barnett SilversteinU. S. Department of Labor FOR 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 OSHAcitations, issued on behalf of the Secretary, regarding WCC’s trenching operations. WCCwas digging a trench and laying pipe for a methane gas venting system at a New Jerseylandfill. A section of the trench caved in, burying a WCC employee and a co-worker, whoboth died as a result.WCC was cited for a willful violation of the trench support standard at 29 C.F.R. {sym} ?1926.652 (b). That standard requires sloping to designated angles, or other adequatesupport, for \”[s]ides of trenches in unstable or soft material, 5 feet or more indepth.\”[[1\/]] WCC also was cited for serious violation of {sym}1926.652(h). Thatstandard requires adequate means of exit within 25 feet of where employees in trenches atleast 4 feet deep [[2\/]].A hearing on the issues was held in Camden, NJ, on April 7and 8,1989, and in Philadelphia, PA, on April 17 and 18,1989.Having reviewed the detailed evidence as set forth below, I find that the Secretary hasproven each of the charges, including the willfulness of the ? 652(b) item. Penalties inthe amount of $11,000 are assessed.A. JurisdictionWCC’s notice of contest was timely filed. WCC admits the Commission’s jurisdiction, andadmits that it \”is engaged in a business affecting commerce under the Act.\”(J-16) The Commission has jurisdiction over the parties and the subject matter.B. BackqroundThe work was performed at the Parkland Reclamation Site, a refuse disposal site inBordentown, NJ. The site’s owner, Waste Management of North America , Inc.(\”WMNA\”), hired Hart Engineers, Inc. (\”Hart\”) to manage, monitor anddocument the construction and installation of the gas control system. Hart also was toprovide necessary certifications to comply with regulatory requirements of the New JerseyDepartment of Environmental Protection (\”NJDEP\”). (Ex. R-8; Tr. 72- 73, 448-51)WMNA hired WCC to do the excavation work. (Ex. R-9; Tr. 454-57)The work began on the north side of the landfill and proceeded generally south. The pipehad to descend at a constant 2% slope as it went south, so the trench generally becamedeeper as it headed that direction.The dividing line between the northern and southern zones was Road Crossing No.1. (Tr.283-85, 558; Ex. R-6) For the first 125 feet or so south of Road Crossing No. 1 the pipe wasto be laid about 7 feet below ground level, according to the job blueprints (Ex. R-6). Theblueprints show that from there to the location of the accident — about 350 feet — thetrench was to become progressively deeper, with the pipe being laid 12 to 15 feet belowground level.[[3\/]] The testimony supported the accuracy of the estimated depths containedin the blueprints. The trench had to be dug 7\” or more below the pipe invert level toallow 6\” of bedding sand under the pipe. (Tr. 91- 92)The trench was dug with a backhoe (\”excavator\”), which usually was operated byDavid Woolston (\”Woolston\”) – He was in charge of WCC’s employees at the siteand was there every day while they were on the south side. (Tr. 587) Woolston wasvice-president and a principal shareholder of WCC. The other principal office andshareholder of WCC was David’s brother, Richard Woolston.The fatal cave-in occurred about 2:30 p.m. on Wednesday, April 13, 1988. It happenedwithin a cutoff wall (a wall separating a \”cell\” of refuse from the surroundingland). (J-16 at 2; Tr. 451) Two employees were in the trench leveling off the sand beddingfor the pipe. They were about 50-60 feet north of where the trenching had progressed. (Tr.573; Ex. C-14) Working alongside WCC’s employee was an employee of the pipe weldingcontractor, WelFab. (Tr. 85-86) The east wall caved in near where the employees wereworking. They tried to escape by moving south, but the cave-in continued in thatdirection. (Tr. 26, 34) They were buried about 15 feet north of the end of the trench.(Tr. 578, 644)C. Alleged trench support violation (? 652(c)) 1. Trench dimensionsIn the area of the accident, the trench was about 14 or 15 feet deep.[[4\/]] The trenchwalls were nearly vertical (not more than an 80[DEG] slope) in general. The NJDEP bureauchief’s measurements so indicated, and WCC’s site foreman, Thomas Wolverton, who had beena laborer at the site at the time, so testified. (Tr. 362-63, 643) The police patrolmen’stestimony is to the same effect. (Tr. 34, 53, 59). Photographs in evidence, includingthose taken by OSHA’s inspector, Al Smith (Ex. C-4), illustrate the conditions. (Tr.484-89) The only walls that were not basically vertical were where special activities hadtaken place, such as the cave-in and rescue attempt.The trench generally was no more than 6 to 10 feet wide at the bottom in areas whereemployees worked during the week of the accident.[[5\/]] The trench dimensions clearly makeit a \”trench\” as defined in 29 C.F.R. ? 1926.653(n).2. Employee exposureWolverton acknowledged that WCC employees had worked in the trench daily. (Tr. 560,593-94, 624) The only exception was the period of time on Monday, August 11 (and early thenext morning, perhaps), when they worked from the top. Employees were in the\u00a0 trenchin both the cell area and the cutoff wall — which is where two were killed. (Tr. 571-74)They were exposed regularly to the conditions.3. Whether the soil was \”soft or unstable\”The cited standard applies only to \”sides of trenches in unstable or softmaterial.\” An OSHA scientist who performed strength tests on soil samples testifiedthat the trench walls were composed of \”unstable or soft\” soil. The testimony ofeyewitnesses supports this conclusion.However, WCC questions (1) whether the scientific tests were valid; (2) whether the OSHAscientist was qualified to do them; (3) whether the samples tested were the ones takenfrom the trench; and (4) whether the samples were preserved properly for testing. It alsorelies on evidence that the refuse was highly compacted, as well as the cutoff wallseparating the landfill from the surrounding land. I find that the soil was \”soft orunstable\” as alleged.a. Soil samplesThe Secretary must prove by a preponderance of the evidence that the samples tested werethe same ones taken from the worksite in question.[[6\/]] OSHA inspector Al Smith testifiedthat he took two soil samples from the area of the east wall that had sheared off in thefatal cave-in. That shear wall is depicted in Ex. C-4, p. 9, top photo. Smith took thefirst sample about 3 feet below ground level. He put it in a \”zip-loc\” bag andmarked it. He took the second sample from about 8 feet below ground level and followed thesame procedure. (Tr. 490-92)WMNA manager Everton got a third soil sample from approximately 12 feet below ground levelin the same location.[[7\/]] (Tr. 491-92) Smith bagged it and marked it following the sameprocedure. He took the samples to his office, made out the OSHA Form 91A that accompaniessuch samples, and sent them to OSHA’s Salt Lake City, Utah, laboratory by certified mail.Smith testified that those samples appeared representative of all the soil in the trenchwalls. It all appeared to him to be grey clay. (Tr. 155, 492) I find that the soil sampleswere representative of the soil at the site.The samples were picked up at the Salt Lake City post office by a clerk from the OSHA lab.Dr. Alan Peck, a soils analyst at the lab, received Smith’s Form 91A with the samples.(Tr. 155; Ex. C-7) As WCC notes, the inspection number listed on the Form 91A is not thesame inspection number referenced in the citation. (Tr. 210) Also, the field numbersassigned to the samples by Smith did not begin at one. They were \”AS4, AS5, andAS6.\” However, Dr. Peck explained that there is no normal practice by OSHA inspectorsto begin the field numbers at one. (Tr. 211-12)However, Dr. Peck testified that he had no doubt that his report referred to the samplesfrom WCC’s trench — AS4, AS5, and AS6. He explained that Smith had sent three other soilsamples from a different inspection along with the three samples from WCC’s trench. (Tr.238, 248-53) The samples from the other inspection were given field numbers AS1, AS2, andAS3. (Tr. 238). The Secretary sufficiently established that soil samples AS4, AS5 and AS6tested by Dr. Peck were from WCC’s trench.Dr. Peck performed the testing. As to his qualifications, he holds a Ph.D degree inmetallurgical engineering and mineralogy. He had been a research professor ofmetallurgical engineering at the University of Utah from 1968 to 1975, when he became aninorganic chemical analyst and asbestos analyst for OSHA. Previously, he had been ametallurgist for Kennecott 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 had analyzed about 400soil samples for OSHA. Since 1987, he had completed 21 credit hours of correspondencestudy with the U. S. Army School of Soil Engineering. (Tr. 150-52; Ex. C-6)Although Dr. Peck’s basic field until 1986 had been metallurgy and minerals, not soilengineering, the two fields are somewhat related. Dr. Peck explained that many of theanalytical tools for determining the properties and strength of metals apply to theanalysis of hard, compact soils as well. (Tr. 165-66) He was sufficiently qualified as anexpert, by reason of his training and education, to assist the Commission in determiningthe soil type and its stability. See FRE 702.[[8\/]]Dr. Peck testified that each sample was sandy, silty clay, and would be classified asunstable under the OSHA standard. (Tr. 180-81; Ex. C-8) In his opinion, the critical slopefor each sample (the steepest slope consistent with stability) would be 32[[DEG]]. (Tr.185-87) (To achieve a 32[[DEG]] slope, each trench wall would have to have been slopedmore than 1 1\/2:1 — 1 1\/2 feet horizontally for each foot vertically.)To make his determinations, Dr. Peck performed various tests. He focused principally onthe internal friction of the soil. That is the most important factor in a soil’s strength.(Tr. 175) Internal friction is the capacity of soils to bond together internally. (Tr.160-62) The chief determinant of internal friction is the size of the particles. Dr. Peckused a series of sieves to determine the percentage of different sized particles in eachsoil sample. (Tr. 156-57) The percentage of salt and clay particles ranged from 60% toabout 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 considered tomake it unstable. (Tr. 158)He also performed dry strength tests. Each sample was dried at 60[[DEG]] centigrade. ThenDr. Peck determined its resistance to breaking with his hands. (Tr. 226) He also used apenetrometer to determine the approximate cohesive strength of the samples. (Tr. 229)Dr. Peck acknowledged that soil borings could have been taken to produce completelyundisturbed samples, and that more sophisticated cohesion tests could have been performed.(Tr. 213, 229) However, he testified that those matters, and the others raised by WCC,would not affect his opinion as to the soil type and its critical angle. (Tr. 253) WCCpresented no scientific evidence or expert testimony on the subject. The tests Dr. Peckperformed were a valid and sufficient basis for his conclusions. The soil samples wereproperly preserved for testing. Those samples support the Secretary’s position that thetrench soil was soft and unstable.b. Observations of eyewitnessesThe testimony of numerous persons who saw the soil at the worksite support the conclusionthat it was clay, and was unstable. Wolverton testified that in the area north of thecutoff wall, the top three feet of the trench walls were clay, with compacted trash below.(Tr. 559- 60) Hart inspector Thomas Hanna, who monitored the trench work for months in thenorthern zone, and OSHA compliance officer (\”CO\”) Al Smith, who investigated theaccident, 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 the following Note: \”Clays,Silts, Loams or Non-Homogenous Soils Require Shoring and Bracing.\” Soils that requireshoring and bracing are \”unstable soils\” by definition under ? 1926.653(a):\”Unstable soil\” — Earth material, other than running, that because of itsnature or the influence of related conditions, cannot be depended upon to remain in placewithout extra support, such as would be furnished by a system of shoring.There was other testimony indicating instability in the trench walls. For example, WCCforeman Wolverton testified that he had felt unsafe in the trench about two days beforethe accident. Wolverton testified that he heard material trickling through the walls oftrash, told the other employees to get out,and told Woolston and Hart inspector JoelReigart that it wasn’t safe. (Tr. 562-64)The employees began to work from the top. Wolverton explained that to allow that, Woolstonoperated the excavator with its crawler treads straddling the trench. However, thepressure on the trench walls caused by straddling resulted in cracking along thesidewalls. Thus, Woolston stopped that effort the day before the accident, and employeesreturned to the trench. (Tr. 564-67)Wolverton also testified that the day before the accident, he observed the west wallbowing out into the trench, and material moving into the trench. That occurred between 60and 100 feet north of where the trench stopped at the time of the accident. At that time,Wolverton got the employees 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 of clay in the cells ofrefuse was highly compacted, as was the soil in the cutoff wall. (e.g., Tr. 421-23,451-52, 559-60) However, Dr. Peck testified that, although compaction could increase thespecific gravity of 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) That soil wasrepresentative of the soil in the trench walls generally, as discussed above.[[9\/]]Also, the evidence did not indicate that the top 3 feet of clay in the cells had beencompacted. It had hazardous cracks in it. Employees had worked in the trench regularlyduring the week before the accident at depths of 12 to 15 feet in the cell area, beneaththe unstable 3 feet of clay on each side.[[10\/]] That exposure in itself establishes aviolation.D. Means of exit (? 652(h))There was no ladder or other device provided at any time for employees to exit the trench.(Tr. 479-80, 632, 650) They had to climb the trench walls to get out at all times. Whatthe standard requires is not merely a place to pull oneself out of the trench, but a readymeans of exit, comparable to a ladder or steps, in the event of danger.[[11\/]] Such meansof exit are required within 25 feet of where employees are working at all times. Thestandard are violated.E. Seriousness and knowledgeBoth violations were quite serious, as the fatalities illustrate. WCC had the requisiteknowledge of the violations, because they were in Woolston’s plain sight and had existedfor a long time. See 29 U.S.C. ? 666(k).F. Alleged willfulness of trench support item1. Legal standardsUnder Commission precedent, a willful violation is one committed with intentional, knowingor voluntary disregard for the requirements of the Act, or with plain indifference toemployee safety. E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCHOSHD (P) 27,893, p. 36,589 (Rev. Comm. No. 85-355, 1987). It is differentiated from othertypes of violations by a \”heightened awareness — of the illegality of the conduct orconditions — and by a state of mind — conscious disregard or plain indifference.\”Id. A finding of willfulness is not justified if an employer has made a good faith effortto comply with a standard, even though the employer’s efforts are not entirely effectiveor complete. Id. Also, a violation is not will if the employer had a good faith opinionthat the violative conditions conformed to the requirements of the cited standard.\u00a0 However, the test of good faith for these purposes is an objective one — whetherthe employer’s belief concerning a was reasonable under the circumstances.\u00a0 Id. 13BNA OSHC at 1259, 1986-87 CCH at p. 36,591This case arises within the jurisdiction of the U.S. Court of Appeals for the ThirdCircuit.\u00a0 That circuit has held that:Willfulness connotes defiance or such reckless disregard of consequences as to beequivalent to a knowing, conscious, and deliberate flaunting [sic, flouting] of the Act.\u00a0 Willful means more than merely voluntary action or omission — it involves anelement of obstinate refusal to comply.Frank Irey, Jr. v. OSHRC, 519 F.2d 1200, 1207 (Id Cir. 1974).\u00a0 However, that courtalso has stated that there is little, if any, difference between its approach and the\”intentional disregard, plain indifference\” standard employed by other courtsand the Commission.In our way of thinking, an \”intentional disregard ofOSHA requirements\” differs little from an \”obstinate refusal to comply\”;nor is there in context much to distinguish \”defiance\” from \”intentionaldisregard.\” \”Flaunting the act\” or \”flouting it,\” as some wouldsay, again carries the same meaning.Babcock & Wilcox Co. v. OSHRC.\u00a0 622 F 2d 1160, 1165 (3d Cir. 1980).\u00a0 SeeCedar Construction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978, (comparing Third Circuittest with that if the court.2. EvidenceThe Secretary relies on the testimony of Hart’s inspectors, Thomas Hanna and Joel Reigart.They testified that they warned David Woolston before the accident numerous times of theneed for more sloping, and specifically mentioned the OSHA standards to him .The Secretaryalso relies on the testimony of WCC employee Wolverton and WMNA general manager RobertEverton that they alerted Woolston to safety problems in the trench during the two daysbefore the accident.WCC argues that the testimony of the Hart inspectors and Everton is not credible. Itasserts that they had a strong motive to distort the facts, because Hart and WMNA are co-defendants with WCC in lawsuits brought by the deceased employees’ survivors. WCC alsoargues that there are inconsistencies in their testimony that affect its credibility.According to WCC, CO Smith, who recommended issuing the citation as willful, ignoredimportant facts contrary to those he relied on. It also asserts that the numerous safetymeasures taken by David Woolston negate any inference of willfulness.Even leaving aside the testimony of the Hart inspectors and Everton, the preponderance ofthe evidence indicates that David Woolston knew about cave-in hazards and relevant OSHArequirements well before the accident. The witness who might have contradicted thatevidence was Woolston himself. 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. The Secretary had referredthe case to the Justice Department for passable criminal prosecution. Although noprosecution was commenced by that Department in this case or other OSHA cases generally,the Fifth Amendment privilege was available. [[12\/]] However, the evidence of recordestablishes willfulness on Woolston’s part. His actions properly are imputed to WCC.[[13\/]]a. Testimony of Wolverton and CO SmithThe discussion above of Wolverton’s observations of the soil’s instability also shows thathe informed Woolston at least twice before the day of the accident that he considered thetrench unsafe. CO Smith testified without contradiction that Woolston \”said he knewOSHA standards\” when Smith spoke to him after the accident. (Tr. 481) Smith alsotestified that he inferred that Woolston was aware of OSHA’s sloping requirements becausehe kept talking about 2:1 sloping.[[14\/]] (Tr. 483)[[15\/]] This evidence indicated thatWoolston knowingly disregarded the applicable requirements of the Act, and thus actedwillfully.As WCC notes, Woolston took certain measures to reduce the cave-in hazards after warningson the two days before the accident. However, the changes were not a good faith effort atcompliance — they bore no reasonable relationship to OSHA’s requirements.Woolston’s changes were as follows. After Wolverton removed the employees from the trenchtwo days before the accident, Woolston had them work from the top the rest of the day.(Tr. 560-66) However, the next 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 sloped the westwall slightly for about 40 feet (from about 60 to 100 feet north of where trenchingstopped). (Tr. 360, 567-69; Ex. C-4, p. 4, bottom photo; Ex. C-14)[[16\/]] However, thereis no indication that the east wall, which later collapsed in that area, was sloped. Underthe OSHA standard, both trench walls must be sloped back to their angle of repose.Also, after being warned on the 12th, Woolston began cutting a step into the top portionof the trench walls. However, the stepping was incomplete and inadequate, as discussedabove. Even if Woolston had believed that the cutoff wall and the refuse below the clay inthe cells were 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 (about 63[[DEG]]) above the5-foot level. The partial stepping did not remotely approach compliance with thatrequirement.WCC took certain other safe measures. It placed the excavated material a safe distancefrom the trench. (Tr. 433; Ex. C-4) It used a remote control compactor, which eliminatedthe necessity for having an employee in the trench when it was being backfilled. (Tr. 129,540-41) It also may have kept extraneous machinery away from the trench.[[17\/]]However, those factors do not negate the willfulness of Woolston’s decision to forego thetime and effort needed to slope or support the trench walls as required. He took consciousand grave risks in that regard, contrary to known OSHA requirements. No good faith effortto meet OSHA’s requirements was shown. The testimony of Wolverton and Smith leads to theconclusion that there was an obstinate refusal by Woolston to heed OSHA’s trench supportrequirements, and a flouting of those requirements.b. Testimony of EvertonWMNA general manager Everton testified that he observed the trenching the day before theaccident at about 11:30 a.m. According to Everton, the trench was about 6 or 7 feet wideat both top and bottom and was about 10 to 12 feet deep. He could see dirt \”crackingoff the top a little bit,\” although he did not see surface crack in the sidewalls.The two employees who later died were at the bottom of the trench. Everton testified thathe stopped the job temporarily by ordering the employees out of the trench and orderingthat the dump trucks in the area not be brought near the trench, to avoid vibrations.Everton also testified that he ordered David Woolston to widen the trench walls. (Tr.444-46) [[18\/]] Everton’s testimony is uncontradicted by any competent evidence and Icredit that testimony.[[19\/]]c. Testimony of HannaThomas Hanna was Hart’s first inspector on the job, from December, 1987 to about thebeginning of April, 1988. He was present at the trench daily. (Tr. 99) He testified thatemployees were in the trench when its walls were at least 7 feet, and vertical. The jobblueprints (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 wasrequired. His understanding of Woolston’s answer was that Woolston would worry aboutsafety in the trench, and that Hanna should confine himself to whether the pipe was put inproperly. (Tr. 93-99)In March, Hanna testified, he spoke to Woolston about what precautions to take when thetrench got to the deepest section (where the accident occurred). Hanna testified that hesuggested to Woolston sloping the trench 1: 1 or using a trench box. According to Hanna,Woolston replied that 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 slopedthe trench and never used a trench box.Hanna testified generally that \”whenever we had unsafe conditions, I would bring itup\” to Woolston in some manner. He developed a sense that talking to Woolston abouttrench safety was becoming fruitless. (Tr. 101-03), He never told anyone besides Woolstonabout the safety problems, 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 defiant attitude Woolston hadtoward following trench support requirements. As with Everton, I credit Hanna’s essentialtestimony on the disputed issues. WCC’S attacks on his credibility areunpersuasive.[[20\/]] Also, Hanna no longer was employed by Hart at the time of histestimony, and he was not directly involved in the accident, having left the site aboutten days before. (Tr. 69, 79) No ill will toward Woolston or WCC seemed to motivateHanna’s testimony.[[21\/]]d. Testimony of ReigartJoel Reigart succeeded Hanna as Hart’s inspector on the project in the first week ofApril, 1988. (Tr. 256-57) The digging still was in the northern zone. Reigart was at thesite every day full-time, except for a few days when he was at another landfill for a fewhours. (Tr. 262-63) Reigart’s testimony corroborates that of the other witnesses on theessential facts, and adds certain details. For example, he testified that about a weekbefore the accident, he mentioned to David Woolston that the trench would be getting 15 or20 feet deep. Reigart asked Woolston what kind of shoring or support he would use. Reigarttestified that he explicitly mentioned OSHA’s trench support requirements and advisedWoolston to use 2:1 sloping (2 feet of horizontal slope for each vertical foot on eachtrench wall). According to Reigart, Woolston said that his preference was for sloping, butalso said that \”he [Woolston] was going to be responsible for the trenching and I[Reigart] should maintain the pipe and the inspection of it…\” (Tr. 274-78, 297-99)Reigart also testified that many times before the accident he asked Woolston if heconsidered the walls properly sloped, and that Woolston never gave him a direct answer(Tr. 300, 302) According to Reigart, Woolston was aware of the surface crack, which ranparallel to the trench for its entire length, and warned employees frequently to be verycautious near it. Reigart also corroborated Everton’s testimony that he told the employeesto leave the trench the day before the accident. (Tr. 310-11)WCC attacks Reigart’s credibility on numerous grounds. As it notes, Reigart made certainstatements just after the accident that may be inconsistent with parts of his hearingtestimony.[[22\/]]\u00a0\u00a0 However, Reigart’s testimony would not affect the outcome.In the circumstances, I will not attempt to resolve WCC’s attacks on his credibility. Ihave not relied on any of Reigart’s testimony that is unfavorable to WCC. Regardless ofReigart’s testimony, the evidence shows that David Woolston displayed an \”obstinaterefusal to comply\” with OSHA’s trench support requirements, and flouted them.G. PenaltiesThe conscious disregard of OSHA trench support requirements by WCC over such a long periodof time in the deep trench merits the penalty asked by the Secretary — $10,000, themaximum for a willful violation. See 29 U.S.C. ? 666(a). Similarly, the failure over thesame period to provide a ladder or other adequate means of exit from the trench merits themaximum penalty for a serious violation — $1,000.\u00a0 In assessing these penalties, Ihave considered the fact that WCC had no previous violations in its four-year history, andthat it was a small company with less than 10 employees.(Tr.108) Also, I have consideredthe fact that it took certain safety measures at the site. However, the conditions were soserious and the warnings so clear, that the maximum penalties are appropriate, evenconsidering those factors. See 29 U.S.C. ? 666(j).H. Findings of Fact and Conclusions of LawThe findings of fact and conclusions of law have been made above. See Fed. 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) is affirmed, and a penaltyof $1,000 is assessed.IRVING SOMMER Judge, OSHRCDATED: OCT 23 1989 Washington, D. C.FOOTNOTES: [[1\/]] On October 31, 1989, the Secretary completely revised the construction industrytrenching standards. At the time of the citation, however, the cited standard stated inrelevant part:{sym}1926.652 Specific trenching requirements.(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall beshored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength toprotect the employees working within them.[[2\/]] Judge Sommer also affirmed a citation that alleged a serious violation of 29C.F.R.{sym}1926.652(h), for failure to provide employees with an adequate means of exitingthe trench. Respondent has not taken exception to that portion of the judge’s decision andit will not be reviewed by the Commission. See Trumid Construction Co., 14 BNA OSHC 1784,1785, 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 to fracture, leadingto the trench collapse. The evidence does not establish; however,whether this was a newcrack or the same one observed by other witnesses.[[5\/]] The evidence indicates that, even in those areas where steps were cut into thetrench wall, the top of the trench was only approximately 10-14 feet wide.[[6\/]] Even if the test results were discounted, the eyewitness testimony is sufficient toestablish that the soil was unstable. Scientific testing and analysis is not aprerequisite for determining the stability of soil in order to establish noncompliancewith the trenching requirements. Duane Meyer d\/b\/a D.T. Construction Co, 7 BNA 1560, 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, Thomas Hanna had alreadyleft the employ of Hart Engineers.[[8\/]] We would also note that, as a general principle, the Commission looks with disfavorupon motions for stays. Commission rule 63(a), 29 C.F.R. 2200.63(a)[[9\/]] Respondent argues that despite his statement to the contrary, the judge implicitlydrew an adverse inference regarding David Woolston’s attitude from his failure to testify.Because we find the violation willful regardless of David Woolston’s attitude, we need notdetermine whether the judge properly drew such an adverse inference. We note, however,that the Supreme Court has stated that the drawing of an adverse inference from a party’sfailure to testify in a civil case due to a Fifth Amendment self-incrimination privilegeis not a violation of that 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 by means of sufficient strength to protectthe employees working within them. See Tables P-1, P-2 (following paragraph (g) of thissection).[[2\/]] That standard provides in full:When employees are required to be in trenches 4 feet deep or more, an adequate means ofexit, such as a ladder or steps, shall be provided and located so as to require no morethan 25 feet of lateral travel.[[3\/]]The depths shown on the blueprints are to the invert elevation of the pipe (thebottom of the pipe on the inside)[[4\/]] Two Bordentown police patrolmen who arrived on the scene within an hour of theaccident so testified. (Tr. 29, 59) Measurements taken the day after the accident underthe supervision of the bureau chief who investigated the accident for the New JerseyDepartment of Environmental Protection (\”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 so indicated. Wolvertontestified 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 this question(The FRE apply in Commission proceedings. 29 C.F.R. {sym}2200.71) Rule 901 provides inpertinent part:(a) General provision. — The requirement of authentication or identification as acondition precedent to admissibility is satisfied by evidence sufficient to support afinding that the matter in question is what its proponent claims.Rule 901(a), unlike prior authentication rules, applies to real and demonstrative evidencegenerally — 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 the shear wall orfrom the bottom of the trench, where further excavation had been done by the backhoe. (Tr.467-68)[[8\/]] Rule 702 provides:If scientific, technical, or other specialized knowledge will assist the trier of fact tounderstand the evidence or to determine a fact in issue, a witness qualified as an expertby knowledge, skill, experience, training, or education, may testify thereto in the formof an opinion or otherwise.See Dychalo v. Copperloy Corp., 78 F.R.D. 146, 149 (E.D. Pa. 1978) (metallurgical engineerpermitted to testify on principles of mechanical engineering known to him by education).The expert’s opinion must simply be sufficient to convince the trier of fact that itsversion of what occurred 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 compacted material do notindicate that the soil here could properly be sloped more steeply than 1 1\/2 :1. The Tablestates that \”compacted angular gravels\” may be sloped 1\/2 : 1 (about 63[[DEG]]). However, the soil here was not angular gravel. The only other reference to compactionin Table 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 more stable thancompacted sharp sand.[[10\/]] As WCC notes, following the discussion of safety the day before the accident,Woolston began to cut a step about 3 feet wide and 3 feet deep in the trench walls. (Tr.303-06, Ex. C-12) That may have relieved the problem of the top 3 feet of soil in the areawhere the step was cut However, the step was not used consistently. There was no step inthe area where the employees tried to escape the fatal cave-in (the \”D\” area onEx. C-14, sketch 2). (Tr. 650-51) Also, there was no stepping north of where the workstopped on the 12th. Employees were exposed to a cave-in hazard there, as they had beenduring the preceding week. The standard was violated on that basis as well.WCC’s counsel elicited from CO Smith that there is some possibility that ground watercontributed to the cave-in. (Tr. 522-26) It also is possible that WCC did not know, andhad no reasonable way of knowing, about the ground water. However, the employee protectionwas inadequate under the standard, regardless whether there was ground water.[[11\/]] WCC asserts that the slightly sloped portion of the west wall, 60 to 100 feetnorth of where the trenching stopped, could have been an adequate means of exit. This isunfounded. That high wall was not even sloped properly, considering the unstable soilwithin it. Much less was it an appropriate exit ramp. No other means of exit was suggestedwithin 80 feet of the employees who died in the cave-in.[[12\/]] WCC’s motion for a stay of the proceedings pending Justice Department review wasdenied. (E.g., Document J-10) Its Petition for Interlocutory Review of that ruling wasdenied by the Commission by order of March 24, 1989. (Document J-25) That order stated,\”The Respondent has not yet shown the need for a stay to avoid prejudice to any rightagainst self-incrimination.\” WCC showed no such need for a stay during the hearing.Its asserted need for a stay was based on the possibility of adverse inferences beingdrawn from David Woolston’s failure to testify. (E.g., Tr. 655-57) As discussed above, nosuch inferences are being drawn. It is noted that the case law on the propriety of drawingadverse inferences from the assertion of a Fifth Amendment privilege is not totallyuniform.[[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, it attacks CO Smith’sinvestigation generally. It asserts that he was gullible in believing Hanna, Reigart andEverton, and that he failed to follow up sufficiently on the Woolstons’ statementscontrary to theirs. However, the evidence did not show any deliberate or careless failureto investigate on Smith’s part. In any event, the sufficiency of Smith’s investigation isnot properly in issue. WCC had the opportunity to present those facts that support itsposition 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 out somewhat where it curvedto the southeast, between 30 and 60 feet north of where trenching stopped. (Tr. 570-71)However, the west wall was essentially vertical in that area. (E.g., Ex. C-4)[[17\/]] WCC had done other excavation work at the landfill for WMNA previously, andEverton had heard no safety complaints about that previous job. (Tr. 446 – 47) There wereno time pressures on the work. (E.g., Tr. 455-56)[[18\/]] WCC asserts that Everton’s testimony that he stopped the work for safety reasonswas contradicted by other evidence. It cites Wolverton’s testimony. However, Wolvertonmerely said he did not recall Everton coming and speaking about safety. There was noevidence that Wolverton necessarily would have known if Everton had discussed safety withWoolston. Wolverton’s testimony does does not contradict Everton’s.WCC also notes the CO’s acknowledgment that the Woolstons told him before the citationswere issued that they disputed Everton’s statement that he had stopped the job for safetyreasons. (Tr. 498) However, WCC presented no witness to contradict Everton’s testimony atthe hearing. The Woolstons’ out-of-court statements are admissible to show notice to theCO of matters to investigate. This was apparent purpose for WCC’s introducing thosestatements. However, they may not be relied on to prove the truth of the matters asserted.Those statements do not have the \”circumstantial guarantees of trustworthiness\”which justify the recognized exceptions to the rule against admission of hearsay evidence.Cf. FRE 803 (24) . Those statements, by themselves, would not have significant probativevalue even if admissible.[[19\/]] WCC apparently attacks Everton’s credibility by noting that when he was asked tomark on the job blueprints the place where he stopped the work, Everton’s mark was too farnorth by 100 to 200 feet . (Tr. 459-62) However, that error is insignificant. Thedifference is only 2 to 4 inches on the blueprints. (Ex. R-6) There is no indication thathis error was anything more than an inadvertent one made under the pressure of attemptingto read the complex blueprints during his cross-examination.[[20\/]] As WCC notes, Hanna did not display an entirelyconsistent recall of trench measurements and dates. However, those recollection problemsdo not negate the essential points of his testimony. He testified at first that the trenchhad been 12 feet deep in places. (Tr. 84) He corrected that, however, to say that the12-foot depth related to the horizontal collection system, and that no employees enteredit until it had been backfilled to 6 feet deep or less. (Tr. 92-93) He also gave specificestimates that employees were in the trench at depths of 7 to 10 feet. (Tr.93-94, 116 )Those estimates are consistent with the depths estimated in the job blueprints (Ex. R-6),considering that the trench was dug out some distance below the pipe.WCC also attacks Hanna’s credibility on the ground that he testified that he spoke toWoolston about trench safety in January, 1988. WCC claims that it did not begin work untilFebruary 9, 1988. Whether Hanna correctly recollected in April, 1989, that theconversation was in January rather than February, 1988, is not important.[[21\/]] To show a possible motive by the Hart inspectors to testify falsely, WCC arguesthat they were responsible for OSHA compliance by WCC, or for the safety of WCC’semployees generally. However, there was no proof that they were. WCC notes that thegeneral agreement between Hart and WMNA states:The CONSULTANT his employees, agents, and representatives, shall at all times comply withall applicable laws, ordinances, statutes, rules, or regulations, including those relatingto wages, hours, fair employment practices, antidiscrimination, and safety and workingconditions.(Ex. R-7, Art. IX, emphasis added) However, that language seemingly relates only to thesafety and working conditions of Hart’s own employees. WCC was not Hart’s employee, agentor representative, so far as this record show. It was directly hired by WMNA.Everton testified that in his opinion the responsibility for safety on the job lay with\”the contractor [WCC] and the third party engineer [Hart]\” (Tr. 464-65) Histestimony does not make clear whether he believed Hart was responsible for the safety ofWCC’s employees in general, or what the basis for such a belief would be.[[22\/]] Evertron testified that he spoke with Reigart onthe afternoon of April 13, after the accident, and that Reigart told him the trench wallinvolved in the accident had a 2:1 slope and that the trench was 10 feet deep. (Tr. 466)Reigart then prepared a drawing of the site, containing the same information. (Tr. 433-35, 466; Ex. R-2) CO Smith talked to Reigart about the apparent inconsistencies in hisstatements. Reigart told him that his statements right after the accident were made undergreat emotional stress and strain, and he was no longer sure what he had said or done.(Tr. 519)Also, the report concerning the accident by Bordentown Patrolman O’Reardon containsstatements attributed to Reigart that are at odds with his hearing testimony. (Ex. C- 1,p. 2) Those statements concern a lack of signs of danger before the accident, and thedepth of the trench. However, Reigart gave a plausible explanation of how his actualstatements had been misconstrued, which was corroborated in part by another patrolman’stestimony. (Tr. 382, 44-45)”