“SECRETARY OF LABOR,Complainantv.ZUNKER CONTRACTORS, INC.,Respondent.OSHRC Docket No. 82-0936_DECISION_BEFORE: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The basic issues are whether the judge erred in finding that ZunkerContractors, Inc., violated the trench support requirements at 29 C.F.R.? 1926.652(b),[[1\/]] and in assessing a $1,000 penalty. The twoCommissioners are at an impasse on the merits of the citation. Toresolve the impasse, and permit the parties to conclude this litigation,Chairman Buckley and Commissioner Arey agree to vacate the direction forreview. Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ?24,634 (No. 77-3040, 1980). Their respective positions on the merits ofthe citation are set forth below.Commissioner Arey would affirm the judge’s decision. The judgesummarized the basis for finding a serious violation of section1926.652(b) as follows:The evidence established that the sides of the trench were virtuallyvertical with no angle of repose of any significance. The trench wasapproximately 11 feet deep, 3 feet wide at its base and 6 to 8 feet wideat the top, and was excavated in average, soft and\/or unstable soil.Respondent had its employees, on a regular basis, enter into theunshored or unsloped 11-feet-deep trench to perform the leveling ofgravel, the installation of sewer pipe and the further covering of thesewer pipe with gravel . . . . Indeed it was . . . the president, ownerand operator of Respondent company, that directed the employees in theirduties and was supervising these employees in the trench five minutesprior to the side of the trench giving way, collapsing on, burying, andseriously [injuring] employee Borgwardt. . . .The judge found that Zunker knew or should have known that the soil wasunstable. He also rejected Zunker’s argument that the standard isunenforceably vague. He imposed the maximum penalty allowed for aserious violation. He based that assessment on his finding that Zunkerconsciously disregarded the cave-in hazard presented by thisinadequately sloped and wholly unsupported trench.Commissioner Arey would adopt those findings because they were based onthe judge’s evaluation of the credibility of the various witnesses, andthose credibility findings were proper. The basic principles governingCommission review of a judge’s credibility findings were restated in_Inland Steel Co.,_ 86 OSAHRC 39\/A3, 12 BNA OSHC 1968, 1986-87 CCH OSHD? 27,647 (No. 79-3286, 1986):Normally, we will accept the administrative law judge’s evaluation ofthe credibility of witnesses because it is the judge who has lived withthe case, heard the witnesses and observed their demeanor. . . .However, the judge should identify the conflicting testimony and explainthe reasons for failing to credit a witness’s testimony or for creditingthe testimony of one witness over that of another.12 BNA OSHC at 1978, 1986-87 CCH OSHD at p. 36,005 (citations omitted).The judge’s findings here that the trench walls were virtually vertical,and that the soil was unstable, were based on credibility findingsresolving conflicting testimony on those issues.[[2\/]] Commissioner Areyfinds that the judge identified the conflicting testimony and gaveproper reasons for his credibility findings. Therefore, underlongstanding Commission precedent, the judge’s credibility resolutionsare entitled to the Commission’s deference.The judge based his finding that the trench walls had no significantslope on the testimony of \”three disinterested on-the-sceneeyewitnesses\” (two paramedics and a volunteer fireman), who entered thetrench that collapsed. All three reported seeing identical conditions.The judge found the testimony of two corporate officers and two otheremployees of Zunker regarding the trench dimensions and sloping to be\”unreliable and indeed untruthful,\” stating as follows:The testimony of all these witnesses, each of whom had an interest inthe results of these proceedings, was at total odds with the testimonyof the [paramedics and fireman] who were disinterested and whotruthfully reported their observations at the work site, and inparticular at the site of the cave-in. The demeanor of [Zunker’switnesses] as well as their sworn testimony, leaves much to be desiredas having any probative value in determining the factual issues in thiscase. . . . What element of truth we do attribute to these witnessescomes from Respondent’s backhoe operator who indicated that it took him20 minutes to dig the trench. . . . [I]t would be virtually impossibleto excavate a trench in accordance with the dimensions testified to by[Zunker’s president] within a 20-minute period.(Citations omitted.) The judge also noted that the Superintendent ofPublic Works for the city (Sheboygan Falls, Wisconsin) and a cityinspector corroborated the testimony of the \”three disinterestedon-the-scene eyewitnesses\” concerning the dimensions of the trench thatcollapsed. The two city employees testified that, during their visits tothe worksite (the Superintendent had been to the jobsite 15 to 20times), the top width of Zunker’s trenches had never been more than fiveto eight feet. Thus, they had never seen a trench at the worksiteexcavated in the manner described by Zunker’s witnesses. The two cityemployees also testified that they had never seen shoring or trenchboxes in use for employee protection.As to the soil conditions, the judge found that he could resolve theissue without deciding between the conflicting views of the expertwitnesses. He noted that the eyewitnesses who entered the trench hadtestified that the soil was compacted clay which, when dry, was crumblyand fractured easily, turning to small particles or dust. This testimonywas corroborated by the soil survey submitted into evidence, a surveypublished by the United States Department of Agriculture, SoilConservation Service, which identified the soil in the area as mainly\”clay loam\” or \”silty clay loam glacial till.\”[[3\/]] The judge wasjustified in finding that the soil was \”soft or unstable\” under thecited standard, and \”average\” soil under Table P-1, on this basis alone.Nevertheless, the judge also credited the opinion of the Secretary’sexpert, Dr. Painter, that the soil was unstable, over the opinion ofZunker’s expert, Dr. Bosscher, that it was hard and stable.[[4\/]] Henoted that Dr. Painter had significant experience academically, as ageologist, and as a practicing soil and foundation engineer. He alsonoted that Dr. Painter, an assistant professor of soil mechanics at theUniversity of Wisconsin, had done soil research in the area and was\”particularly familiar with the soil structure and content in Wisconsinand in the area relevant to these proceedings[.]\”Respondent’s expert, [Dr.] Bosscher, a professor of civil engineering atthe University of Wisconsin, developed his expertise solely with theacademe and was without any real practical experience within the fieldof soil engineering. After carefully listening to the views of eachexpert, I find Complainant’s expert, Dr. Painter, to present more of arealistic, knowledgeable, and practical view, with precise conclusionsconcerning the condition of the soil in issue and how it got that way .. . . I find Dr. Bosscher’s testimony to lack that degree of precision,accuracy and reliability to have any persuasiveness or have impact upondeciding the issues in this case.(Citations omitted.) Commissioner Arey concludes that the judge’sreasons for finding the soil to be \”soft or unstable\” within the meaningof the cited standard are well explained and that the finding issupported by the clear preponderance of the credible evidence. Shetherefore adopts that finding.Commissioner Arey also rejects Zunker’s contention that the standard isunenforceably vague. The Commission has held that the standard issufficiently clear to be enforceable. _Connecticut Natural Gas Corp.,_78 OSAHRC 60\/B3, 6 BNA OSHC 1796, 1798-99, 1978 CCH OSHD ? 22,874, pp.27,667-68 (No. 13964, 1978). Similarly, the United States Court ofAppeals that has jurisdiction in Wisconsin, where this case arose, hasheld that the standard is sufficiently clear to be enforceable. _SuperExcavators, Inc. v. OSHRC,_ 674 F.2d 592 (7th Cir. 1981), _cert.denied,_ 457 U.S. 1133, 102 S.Ct. 2958 (1982). Commissioner Arey wouldapply this precedent here.[[5\/]]Finally, Commissioner Arey would affirm the judge’s penalty assessmentdue to the high gravity of the violation and Zunker’s knowing disregardof the clear hazard presented by the unprotected trench. See 29 U.S.C. ?666(j).Chairman Buckley would reverse the judge’s decision and vacate thecitation because the evidence is at best evenly balanced about whetherthe sloping was inadequate, and the judge’s findings about the weightand credibility of the evidence are unjustified. As to the soilconditions, he notes that Zunker’s expert, Dr. Bosscher, actually wentto the jobsite after the accident and performed tests on the soil. TheSecretary’s expert, Dr. Painter, did not test the soil himself, butrelied on information developed by Dr. Bosscher and his generalknowledge of the soil in the area.Dr. Bosscher had a 9-foot-deep trench dug, with vertical walls. Heentered that trench, visually observed the walls, attempted to fracturethe soil with shovels, and took a series of readings with a \”pocketpenetrometer.\” He observed no cracks or fissures in the soil. Heconcluded from first-hand observation that the soil could becharacterized as \”hard clay,\” and that it was sufficiently cohesive thatthe trench at issue here should not have collapsed in the amount of timeit was open. The bases for his opinions were well-supported byscientific studies he discussed.There is no reason to prefer Dr. Painter’s second-hand observations toDr. Bosscher’s first-hand observations. Neither is there reason toprefer the necessarily hasty observations of paramedics or volunteerfiremen, performing a rescue operation in the trench that collapsed, toDr. Bosscher’s thorough study. As to the judge’s finding that theevidence preponderates against Dr. Bosscher’s position, that finding wasnot based on demeanor or factors peculiarly observable by the hearing judge.Here, we are in as good a position as the judge to evaluate thequalifications of the experts and weigh their testimony in light of theother evidence of record._All Purpose Crane Inc., _87 OSAHRC 24\/A3, 13 BNA OSHC 1236, 1239,1986-87 CCH OSHD ? 27,877, p. 36,550 (No. 82-284, 1987). Dr. Bosscher’stestimony is more persuasive than the Secretary’s evidence. It should benoted that the USDA soil survey relied on by the Secretary was ageneral-account of soil conditions over a wide area, and did notpinpoint the area where this trench was dug. Dr. Bosscher’s study wasprecise. That the soil in the general area may have been predominately\”silty clay loam\” does not show the condition of the actual soilinvolved here any better than Dr. Bosscher did. The Secretary failed toprove that the soil was \”soft or unstable.\”Based on Dr. Bosscher’s analysis, the trench would have been incompliance if sloped as provided for \”hard or compact soil\” under ?1926.652(c).[[6\/]] To summarize, that type of soil must be sloped 1\/2:1(an angle of 63? 26′) above the bottom five feet of the trench. Thebottom five feet need not be sloped or shored.Zunker’s witnesses testified to specific measurements they made of eachcritical dimension of the trench. Based on those measurements, thetrench was sloped in compliance with ? 1926.652(c). The Secretary’sevidence included no measurements. It consisted of recollections ofvisual estimates by various persons who either did not recollect theparticular trench at issue here, or clearly were concentrating onsomething else — the rescue of the injured worker.The specific measurements to which Zunker’s witnesses testified were asfollows. Zunker’s president and vice-president testified that theymeasured the width of the top of the trench immediately after theaccident, using a graduated surveying rod laid across the trench. Thetrench was 11 to 11 1\/2 feet wide at the east end and 12 feet wide atthe west end. They disagreed slightly about the depth of the trench. Onetestified that it was about 12 feet deep. The other testified that itwas 10 to 10 1\/2 feet deep. They agreed, however, that the trench was 21\/2 feet wide at the bottom, because that was the width of the backhoebucket used to dig the trench.The backhoe operator who dug the trench also testified that it was 12feet deep and about 12 feet wide at the top. He based his estimate onthe machine’s width, which he testified was a little over 11 feet wide,and testified that \”I was on the outside of either track with the top ofthe trench.\” Based on these measurements, the width of the trench atground level was sufficient under ? 1926.652(c).[[7\/]]However, the judge discredited all this testimony by Zunker’s witnesses.His reasons for doing so were inadequate, in Chairman Buckley’s view. Asnoted above, the \”disinterested on-the-scene eyewitnesses\” whoserecollections the judge credited were emergency personnel who clearlywere concentrating on the rescue instead of the trench dimensions. Also,the city inspector and Superintendent of Public Works merely recollectedrough visual estimates they had made of trenches Zunker had dug. Neitherclaimed to have seen the trench that collapsed. The measurements byZunker’s witnesses were certainly no less probative than therecollections of rough estimates by the Secretary’s witnesses.The judge’s stated reasons for discrediting Zunker’s witnesses were that(1) they \”had an interest in the results of these proceedings,\” (2)their demeanor \”leaves much to be desired,\” and (3) it would bevirtually impossible to excavate a trench like the one they described in20 minutes — the time the backhoe operator testified it took to digit. However, an employer’s officers and employees are not to bedisbelieved merely because of their employment. Also, the judge did notexplain what it was about their \”demeanor\” that left \”much to bedesired.\” Chairman Buckley would not accept such a blanket dismissal offour witnesses’ testimony based on \”demeanor,\” without furtherexplanation. As noted above, the judge should \”explain the reasons forfailing to credit a witness’s testimony,\” to merit acceptance of acredibility finding.[[8\/]]As to the estimate that the trench was dug in 20 minutes, that estimaterelied on by the judge was provided by the backhoe operator, whose othertestimony he discredited entirely. The judge did not explain hisapparently inconsistent treatment of that testimony. Also, such anestimate clearly is the kind of rough estimate that characterized thetestimony of the Secretary’s fact witnesses throughout the hearing.There is no indication that the backhoe operator looked at a watch orhad any other basis for his recollection.In any event, the specific measurement by Zunker’s witnesses were notvery different from the rough estimates testified to by the Secretary’switnesses based on their recollections.[[9\/]] Even assuming, forpurposes of argument, that the measurements Zunker’s witnesses testifiedto lack credibility, the Secretary only produced rough estimates thatthe top width of the trench was slightly less than required — 8 feet asopposed to 9 1\/2 or 10 feet. _See supra_ n. 7. Those rough estimatessimply are insufficient to rely on as exact enough to serve as the basisfor affirming this citation. Thus, Chairman Buckley would conclude thatthe Secretary failed to prove that Zunker violated either ? 1926.652(b)or (c).[[10\/]]As noted above, to resolve their impasse, the Commissioners agree tovacate the direction for review. Therefore, the judge’s decisionaffirming a serious violation of 1926.652(b), and assessing a $1,000penalty, becomes the final order of the Commission, and is accorded theprecedential value of an unreviewed judge’s decision. _E.g.,_ _Texaco,__supra_.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 27, 1989————————————————————————SECRETARY OF LABOR,Complainant.v.ZUNKER CONTRACTORS, INC.,A CorporationRespondent._DECISION AND ORDER_Appearances:FRANCIS X. LILLY, Esquire, Solicitor of Labor,JOHN SECARAS, Regional Solicitor,CYRUS A. ALEXANDER, Esquire, Office of the Solicitor,Chicago, Illinois, for Ford B. Ford, Under Secretary of Labor,U.S. Department of Labor, Complainant.THOMAS A. SCHUESSLER, Esquire,Strub, Woodworth, Quincey & BeckerBeaver Dam, Wisconsin, forZunder Contractors, Inc., RespondentBOBRICK, JudgeThis proceeding was commenced pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, _et seq.,_(hereinafter referred to as the \”Act\”), wherein Respondent, ZunkerContractors, Inc., contested a Citation issued by Complaint, Ford B.Ford, Under Secretary of Labor, U.S. Department of Labor.[[1]] TheCitation charged Respondent with a serious violation of the Excavations,Trenching, and Shoring Standard, 29 C.F.R. ? 1926.652(b), [[2\/]] asfollows:29 C.F.R. ? 1926.652(b) The side(s) of the trench(es) in unstable orsoft material which were more than 5 feet in depth, were not shored,sheeted, braced, sloped or otherwise supported in accordance with TablesP-1 and P-2:(a) Slope of south side of lateral trench excavation extending east fromthe north-south sanitary sewer trench, (adjacent to manhole 2 plus 32)located at Highway PP and Chippewa Trail, Sheboygan Falls, WI., was notlaid back adequately to protect employees from the potential hazard ofcave-in.The citation was issued as a result of an investigation made by theOccupational Safety and Health Administration, U.S. Department of Labor,which had been prompted by a report of a trench cave-in at Respondent’sjobsites in the Sheboygan Falls, Wisconsin, area (Tr. 128)._FINDINGS OF FACTS AND CONCLUSIONS OF LAW__FACTS OF CASE_Zunker Contractors, Inc., Respondent herein, is a Wisconsin Corporationengaged in sewer construction and related activities. On July 21, 1982,Respondent was digging trenches and laying sewer pipe in these trenchesat a subdivision development in Sheboygan Falls, Wisconsin.On July 21, 1982, Respondent was installing sanitary sewers, stormsewers, and water main installations at a subdivision known as K-MeadowsSubdivision, Highway PP and Chippewa Trails, for the City of SheboyganFalls, Wisconsin. This work was done pursuant to a bid and plansubmitted by Respondent and accepted by the City of Sheboygan Falls.Respondent’s contract with the city called for it to, among otherthings, provide and install main sewer lines and lateral sewer linesleading to the main line (Tr. II-395).[[3\/]] The area in which thisexcavation and sewer installation was to take place was a relativelyflat area where the soil consisted of red clay.The work carried out by Respondent involved the excavation of a largetrench in which the main sewer line would be installed. Smaller trenchesextending perpendicularly from both sides of the main trench wereexcavated and were to accommodate the installation of smaller sewerpipes which would connect to the larger sewer pipe. These smallertrenches in which the smaller sewer pipe was to be located were referredto as laterals. The main sewer line ran north and south and the smallerconnecting laterals were placed in an east-west direction from the mainsewer line. The excavation and placement of the sewer piping involvedthe digging of a trench to a specified depth, after which it would bebackfilled with gravel to a specified grade. The sewer pipe was thenplaced on the gravel bed after which additional gravel would be placedinto the trench to cover the pipe to a specific depth. Once the sewerpipe was completely covered with gravel the entire trench would then bebackfilled to ground level.With respect to the construction of the laterals, the work done byRespondent’s employees would involve the following: First, a backhoeoperator would begin to dig out the lateral trench starting from themain sewer. Once the lateral was dug to its specified depth, gravelwould be placed into the trench. This was accomplished with use of afront-end loader bringing gravel to the trench and dumping the gravelinto the trench. An employee would go into the trench and level thestone insuring that it met the designed grade and was of the appropriatethickness to form a proper resting surface for the sewer pipe. Once thestone was at the proper grade and depth, the sewer pipe was placed ontothe gravel bed and then checked for proper grade and slope. At least twoemployees would be in the trench installing the sewer pipe. After thesewer pipe was appropriately installed into the trench and connected tothe main sewer line, gravel was again dumped into the trench by thefront-end loader and again an employee would enter the trench and levelout the gravel insuring that the pipe was fully covered with gravel to apredetermined height. After that the trench would be backfilled andcompacted so as to be level with the surface of the area (Tr. II-190-195).Respondent began the work of installing the sanitary and storm sewerlines at the K-Meadows Subdivision on July 16, 1982. By July 21, 1982, alarge part of the main sewer line had been constructed. Additionally,approximately 11 or 12 lateral sewer lines had also been installed (Tr.II-164). It was on the morning of July 21, 1982, that a cave-in tookplace, burying an employee, said employee sustaining severe injuriesinvolving complete paralysis from his chest down (Tr. II-199).On July 21, 1982, the following sequence of events occurred.Respondent’s employees assembled at the work site at approximately 7:00a.m. to begin work. Mr. David L. Zunker, the president and owner ofRespondent, gave the work orders to several of his employees to installa lateral sewer line to lot 29 of the subdivision. He was personally incharge of digging the laterals at the jobsite (Tr. II-157, 407, 408).The crew which was to perform the work consisted of Mr. Theodore C.Washnieski, the backhoe operator, Mr. Henry Conklin, Jr., the front-endloader operator, and Mr. Randy Borgwardt, the plumber who was to levelthe gravel and install and connect the sewer pipes. Mr. Washnieski beganthe work by digging out the trench. The excavation of this trench wasdone in a similar manner to all the other trenches which had been dugfor the installation of the lateral sewer pipe. The trench was tomeasure 27 feet in length and 12 feet in depth. The very bottom of thetrench was 30 inches wide. According to Mr. Washnieski, the width at thetop of the trench was 12 feet, and the sides above the 5-foot level ofthe trench were sloped outward to form the 12-foot width of the top ofthe trench (Tr. II-248-250). Mr. Washnieski indicated that it took him20 minutes to dig this trench (Tr. II-251). Once the trench was dug, Mr.Washnieski left the area and proceeded to excavate a second lateral trench.After the trench was fully excavated, Mr. Conklin, the front-end loaderoperator, brought gravel in his loader to the trench, dumping same intoit. Once the gravel was placed into the trench, Mr. Borgwardt thenentered the trench and leveled the gravel to the proper depth and gradeto accommodate the installation of the lateral sewer pipe (Tr. II-221,222). Once the gravel had been leveled and graded, Mr. Conklin went intothe trench to assist Mr. Borgwardt in installing the sewer pipe.Thereafter, Mr. Conklin returned to his front-end loader to bringadditional stone to the trench to be placed over the pipe (Tr.II-220-222, 412). Mr. Conklin, operating his front-end loader, broughtand placed additional gravel into the trench to cover the sewer pipe,whereupon Mr. Borgwardt went back into the trench to level off thissecond level of gravel which was to cover the sewer pipe (Tr. II-413,235, 245). It was at this point that Mr. Conklin reported that he sawMr. Borgwardt get into the trench, signaling his position in the trenchwith an upraised shovel, and then he suddenly lost sight of the shovel.At this point, Mr. Conklin became aware that something was wrong andthat a possible accident had occurred (Tr. II- 224-227). He left hisfront-end loader, ran to the edge of the trench and found that Mr.Borgwardt had been totally buried beneath a cave-in caused by part ofthe south wall of the trench giving way (Tr. II-231). Mr. Conklin thenyelled for help from other workers and jumped into the trench to beginuncovering the buried worker (Tr. II-164, 228-231). The manner in whichthe excavation was to be done and the work which was to take place inthe excavation was directed by David L. Zunker (Tr. II-153, 166, 408).It was merely five minutes prior to the cave-in that Mr. David L. Zunkerwas standing above the lateral trench observing the work being carriedout within it (Tr. II-164).Immediately after the cave-in emergency calls were made for medical andother emergency assistance. Responding to these calls were the OrangeCross Ambulance Service of Memorial Hospital, and the Fire Department ofthe City of Sheboygan Falls (Tr. I-82, 116, 157). Volunteer FiremanThomas S. De Pagter, upon arriving at the scene, was informed of thecave-in and that a man had been buried. He took his, oxygen breathingequipment to the area of the cave-in. Once at the site of the cave-in,he found the victim buried within, dirt had been removed from around thevictim’s head, but he was encased in solid earth from his chest to eachedge of the trench walls (Tr. I-157, 170). Mr. De Pagter saw that thenorth wall of the trench was virtually vertical, \”a straight cut with noangle or taper to it\” (Tr. I-159). He noticed that his oxygen linedangled straight down into the trench (Tr. I-157). He further noticedthat the trench was approximately ten feet deep where the victim wasstanding and at that depth the trench was only three to four feet wide.The top of the trench was only six to eight feet wide (Tr. I-163). Hefound that the soil in the trench appeared to be dense clay which waswell packed and hard to move (Tr. I-162).Two paramedics employed with the Orange Cross Ambulance Service, upontheir arrival at the work site, reported similar conditions to thatobserved by Mr. De Pagter, the volunteer fireman who arrived at thescene before they did.Mr. Larry Duenk, one of the paramedics at the scene, found a man buriedin a 12-feet-deep by 25-feet-long trench (Tr. I-83, 89). He observedthat the south wall of the trench had collapsed upon the victim and thata rescue operation was underway to dig the man out (Tr. I-82). Henoticed that the trench at the point of the cave-in was only six toeight feet wide (Tr. I-84, 89). He entered the trench to aid the victimand once in the trench he observed that the north wall of the trench was\”pretty much vertical\” with no sloping of any \”consequence\” (Tr. 1-84,94, 100). He could tell that the north wall was vertical since he alsonoticed that the oxygen tubing and oxygen mask, which had been placedinto the trench to aid the victim, were dangling from the edge of theside of the trench straight down as though they were a pendulum; it didnot touch the edge of the trench at all (Tr. 1-84). Once in the trenchhe found it to be extremely narrow, no more than four to five feet wide,with barely enough room for one person to render aid (Ex. C-17; Tr.1-89, 95, 99). He found the soil within the trench to be clay but of anunusual nature since it would pulverize and turn into a fine powder uponexerting any pressure upon the soil (Tr. 92, 93, 94, 99). In renderingemergency aid to the victim, Mr. Borgwardt, he found him to beunconscious with indications of serious injury (Tr. 113). He spentapproximately ten to fifteen minutes in the trench administeringappropriate emergency aid until the victim was extricated.The second paramedic, Mr. James W. Levi, an emergency medical technicianwith the Orange Cross Ambulance Service, observed similar conditions asthose observed by the two other emergency service personnel (Tr. 115).Mr. Levi reported that as he approached the trench he saw men diggingout the buried victim, earth had been removed from around the victim’shead and from the front part of his body (Tr. I-116, 118). He observedthat the south wall had collapsed upon the victim but that the northwall was still intact (Tr. I-116, 117). He further observed that thenorth wall was \”exactly vertical\” with no angle of repose to it (Tr.I-116, 117, 123). Once in the trench he found that the soil wouldcrumble easily under foot and that he could hardly hold his balance onit by reason of its instability. The soil would give way wherever hewould step (Tr. I-117, 122). The soil was of a clay-like texture withparticles the size of a hand and smaller (Tr. I-122).According to Mr. David L. Zunker and Mr. Wayne J. Zunker, owners andoperators of the Respondent business, once the injured employee had beenremoved from the trench and taken from the work site to the hospital,they measured the dimensions of the trench (Tr. II-411). According tothese two individuals, the basic measurements of the trench were 12 feetin width, approximately 11 feet in depth, with the sides sloping outafter the 5-foot level (Ex. R-8; Tr. II-158, 159, 160, 169, 408).On July 22, 1982, a Compliance Officer with the Occupational Safety andHealth Administration made an investigation of the conditions atRespondent’s work site at the K-Meadows Subdivision, in particular as tothose events occurring on July 21, 1982. When he arrived at the jobsitethe trench which had caved-in had been covered over and hisinvestigation concerned a general view of the area. Additionally, heinterviewed the president of Respondent, some of the on-scene witnesses,and took soil samples.As part of his investigation, the Compliance Officer consulted a soilsurvey of Sheboygan County, Wisconsin, made by the United StatesDepartment of Agriculture, Soil Conservation Service, and consulted witha soil engineer. From this, he determined that the soil at theRespondent’s work site was average soil, was of unstable nature, andultimately determined that the trenching standard, 29 C.F.R. ?1926.652(b), applied to the situation. Since his investigation revealedthat the sides of the trench were not sloped, but were vertical, thatshoring was not used and that the trench was approximately 11 to 12 feetin depth and 26 feet in length, he determined that a violation of thisstandard occurred. As a result of this determination, a Citation wasissued alleging a serious violation of 29 C.F.R. ? 1926.652(b)._ALLEGED VIOLATION OF THE EXCAVATIONS, TRENCHING, AND SHORING STANDARD _29 C.F.R. ? 1926.652(b)_A. CONDITION OF TRENCH_We find that the credible evidence submitted in this case overwhelminglyestablished that the sides of the trenches excavated by Respondent inwhich employees were required to work, one of which collapsed upon oneof its employees, had sides which were virtually vertical having nosloping component to them of any significance. We further reach theconclusion that the width of the trenches, in particular the one thatcollapsed, above their three-foot level were approximately five feet andthat the width of the trenches at their top ranged between six and eightfeet. In this case, it would be difficult to reach any other conclusionsince three disinterested on-the-scene eyewitnesses, who entered thetrench that collapsed, all reported seeing identical conditions, thatbeing that the sides of the trench were essentially vertical with nosloping of any consequence to them, and that the width of the trench atthe very top was six to eight feet, and no wider than that (Tr. I-84,86, 89, 94, 95, 100, 116, 117, 123, 158, 159, 163).We find the testimony of Mr. David Zunker and Mr. Wayne Zunker togetherwith two of its employees concerning the width of the trench, thedimensions of the trench, and the existence of sloping to be unreliableand indeed untruthful. The testimony of all these witnesses, each ofwhom had an interest in the results of these proceedings, was at totalodds with the testimony of the above discussed witnesses who weredisinterested and who truthfully reported their observations at the worksite, and in particular at the site of the cave-in. The demeanor ofMessrs. Zunker together with their two employees, as well as their sworntestimony, leaves much to be desired as having any probative value indetermining the factual issues in this case. Their testimony in chief isfound not credible or reliable and accordingly will be disregarded. Whatelement of truth we do attribute to these witnesses comes fromRespondent’s backhoe operator who indicated that it took him 20 minutesto dig the trench (Tr. 11-251). As was pointed out by Complainant’sexpert in soil engineering, who has significant practical experience aswell as significant technical and scientific expertise in soilengineering, and who had been associated with sewer line installation,it would be virtually impossible to excavate a trench in accordance withthe dimensions testified to by Mr. David L. Zunker within a 20-minuteperiod (Tr. ll-498). This view was confirmed by the Superintendent ofPublic Works for the City of Sheboygan Falls in that, although he hadbeen to the jobsite 15 to 20 times, he had never seen a trench that wasconstructed like that described by Mr. Kenneth Zunker and Mr. DavidZunker, each claiming that the sides were sloped and the trench width atits top was 12 feet (Tr. 11-503, 508, 510).Adding to the uncontroverted credible testimony of these emergencyservice witnesses was the testimony of the Superintendent of PublicWorks of the City of Sheboygan Falls, and one of its inspectors. Both ofthese individuals were regularly at the work site, had viewed theexcavation work and also found that the condition of the trench whichhad caved-in, as well as other trenches at the work site, was consistentwith that reported by the three emergency personnel who appeared at thecave-in scene. These two witnesses reported that throughout their visitsto the work site they never saw a lateral trench which was 12 feet wideat its top, and that the top width of the trenches, including the onethat caved-in, was no more than five to eight feet. Likewise, they neversaw a trench sloped in the manner as that described by Respondent’sowner; they had observed that the sides of the trenches excavated at thework site had virtually no slope to them (Tr. I-43, 52, 53, 55, II-503,509, 510, 511). Additionally, these witnesses reported seeing noutilization of shoring or trench boxes prior to the cave-in (Tr. I-449II-509).Having determined that the sides of the trench which caved-in, as wellas all other trenches excavated by Respondent at the work site, werestraight up and down, and that the dimensions of the trenches were asfollows: 2 1\/2 to 3 feet at its base, 6 to 8 feet at its top, and 11 to12 feet in depth, we now turn to the contested issue concerning thecondition of the soil in which the trench was dug.B. _CONDITION OF SOIL_Complainant in citing Respondent for a violation of 29 C.F.R. ?1926.652(b) maintained that the soil in which the trench was excavatedwas unstable or soft in nature. Respondent on the other hand maintainedthat the soil was hard and compact and thus, under 29 C.F.R. ?1926.552(c), it was required only to slope the sides of the trench abovethe five-foot level and that the angle of repose in the sloped portionof the sides of the trench, would be a 63 degree angle under a ratio ofone-foot rise to each half-foot horizontal. Respondent argues that itsconstruction of the trench, having a width of 12 feet, complied with therequirements of 29 C.F.R. ? 1926.652(c) and that it was improperly citedfor a violation of 29 C.F.R. ? 1926.652(b). While we find Respondent’sargument purely academic in, nature, since we have determined thatRespondent constricted the trench with no angle of repose to its sidesat all, and thus even considering its argument, it would nonetheless bein violation of the standard it relies upon,_i.e.,_ 29 C.F.R. ?1926.652(c), we find that the standard cited by the Complainant isappropriate when considering the condition of the soil in which dug.With respect to the issue concerning the condition of the soil,_i.e.,_whether it was soft and unstable or whether it was hard and compact,both parties presented extended testimony of two soil engineeringexperts. Before reaching an assessment of the persuasiveness of eachexpert’s view and of their expertise and opinions concerning the issuesin this case, we find that we can resolve the basic issue as to thecondition of the soil from other testimony and documents submitted inevidence at trial.First, looking to the testimony of the eyewitnesses who entered thetrench, they each reported finding the soil compacted clay, which whendry was crumbly and fractured easily turning to small particles or dust(Tr. I-93, 94, 99, 117, 122, 162). This observation seems consistentwith the soil survey published by the United States Department ofAgriculture, Soil Conservation Service, which showed the soil to be ofaverage characteristics, made mainly of clay loam or silty clay loamglacial till (Ex. C-20, 21). In viewing the provisions of 29 C.F.R. ?1926.652(b) and (c), it is important to not that 1926.652(b), referringto Table P-1, specifically notes that clays, silts, and loams requireshoring and bracing, and furthermore is more in line with the definitionof average soil.In attempting to identify just what is hard and compact soil, we mustmake reference to 1926.653(h) which defines hard compact soil as \”allearth materials not classified as running or unstable.\” Furtherreferencing these regulations, 1926.653(q) entitled \”Unstable Soil\”defines such as \”earth material, other than running, that because of itsnature or the influence of related conditions, cannot be depended uponto remain in place without extra support, such as would be furnished bya system of shoring.\” By interpretation it is clear that by using TableP-1 in reference to clay, silt and loam, which requires shoring andbracing, we would have to hold that the clay found at the work sitewould fall within the term \”unstable soil\” as defined by the regulations.As above mentioned the evidence clearly portrayed the soil atRespondent’s work site and at the site of the trench which caved-in, asKewaunee type soil which is defined as silty clay loam. With the aid ofthe regulations, we must reach the conclusion that the soil was soft andunstable and that trenching standard 79 C.F.R. ? 1926.652(b) wasapplicable to the work site (Ex. R-6, C-20, C-21; Tr. 11-10).Additionally, both parties presented the expert testimony and opinionsof two soil engineers concerning the condition of the soil. Thecomplainant presented the testimony of Dr. William T. Painter, Ph.D.,P.E. Dr. Painter has significant experience within the academic area andas a geologist and as a practicing soil and foundation engineer. Hisexperience was multi-faceted and covered almost every avenue of soilmechanics in its practical sense (Ex. C-15; Tr. II-61-68, 69). As a soilengineer, he has been involved in a multitude of field works such asstabilization of landslides, construction of forest access ways,geological investigations associated with building construction orremedial construction, foundation engineering, excavations for sewer andother systems, as well as other activities dealing with the science ofsoil and foundation engineering (Tr. II-62-67, 69, 496). Dr. Painter’sacademic achievement follows his professional accomplishments in that hehas been involved in many learned studies dealing with soil research,soil mechanics and foundation analysis.Significantly, Dr. Painter was an assistant professor of soil mechanicswith the University of Wisconsin and in that capacity he did soilresearch in the, State of Wisconsin, and in particular within SheboyganCounty where Respondent’s work site involved In this matter was located.His geological investigations made him particularly familiar with thesoil structure and content in Wisconsin and in the area relevant tothese proceedings (Tr. II-66, 67, 71).Respondent’s expert, Mr. Peter J. Bosscher, a professor of civilengineering at the University of Wisconsin, developed his expertisesolely within the academe and was without any real practical experiencewithin the field of soil engineering. After carefully listening to theviews of each expert, I find Complainant’s expert, Dr. Painter, topresent more of a realistic, knowledgeable, and practical view, withprecise conclusions concerning the condition of the soil in issue andnow it got that way (Tr. II-107, 147). I find Dr. Bosscher’s testimonyto lack that degree of precision, accuracy and reliability to have anypersuasiveness or have impact upon deciding the issues in this case.We find reasonable and well founded Dr. Painter’s view of the geology ofthe Sheboygan County area as being created by glacial action and ingeological terms known as a glacial outwash plain (Tr. II-76). Anoutwash plain is one sheets that existed at the glacial period.Different types of soils were then deposited as a result of the streamsrunning off the glaciers. These deposits consisted of silt, clay, sandand gravel. The ice covering these deposits was approximately half milethick. Following the change of climates, the heating up of the area, andthe melting of the glacial ice, lakes were formed and streams picked upthe clay, silt, sand and gravel making deposits at particular areas.Coarser materials would be conveyed more distant from the source. Thelatter mentioned material makes up the soil in Sheboygan County andsurrounding areas.As the ice melted and water receded and evaporated, the glacial till wasallowed to dry out and fissures and small cracks developed within thesoil as the moisture evaporated away from the surface. Understandably,this process took many thousands of years (Tr. 73-80). As the soil driedout, it became fissured and granular in nature so that soil would breakinto many small pieces upon disturbance from an excavation. It is acharacteristic of this type of soil to have fractures when disturbed byexcavations (Tr. II-80).Without belaboring this opinion, Dr. Painter’s ultimate conclusion thatthe clay soil found in Sheboygan County is of low plasticity and as suchwould not usually remain intact when disturbed, would tend to crumble,and would not have much cohesion to it, is found to be a crediblematerial fact herein. [[4\/]] The various studies and geological data andsurveys made of the area were supportive of Dr. Painter’s conclusions.Dr. Painter further indicated that as one excavates in clay, such asthat found at respondent’s work site, stresses would be released in thesoil which would cause the soil to move toward the opening of theexcavation. Because of the tiny fissures which are present in the soil,this would cause very little strength to be exerted by the clay to holditself together and would tend not to stay intact but to lead to amassive collapse when excavated without safety procedures in place (Tr.II-82-85). In reviewing all of Dr. Painter’s testimony, we findconsiderable support and persuasiveness to his ultimate conclusions andaccept same to resolve the contested issues herein. [[5\/]] We find hisanalysis of the geologic makeup of the area in question precise,knowledgeable and well founded both from an academic standpoint and fromhis own practical and technical experience. We accept as fact hisopinion that the soil at the work site, and throughout Sheboygan Countyand surrounding areas, which is composed of silty loam clay to beunstable in nature. (See fn. 4, _supra_.) Accordingly, we again reachthe conclusion that any excavation into the clay soil in SheboyganCounty must be done in accordance with trenching standard 29 C.F.R. ?1926.652(b).C. _VIOLATION OF 29 C.F.R. ? 1926.652(b)_As earlier discussed the trench constructed by Respondent was not slopedor shored as prescribed by the cited standard, 29 C.F.R. ? 1926.652(b).The evidence established that the sides of the trench were virtuallyvertical with no angle of repose of any significance. The trench wasapproximately 11 feet deep, 3 feet wide at its base and 6 to 8 feet wideat the top, and was excavated in average, soft and\/or unstable soil.Respondent had its employees, on a regular basis, enter into theunshored or unsloped 11-feet-deep trench to perform the leveling ofgravel, the installation of sewer pipe and the further covering of thesewer pipe with gravel (Tr. II-162, 192, 195, 222, 172, 412, 413).Indeed it was David L. Zunker, the president, owner and operator ofRespondent company, that directed the employees in their duties and wassupervising these employees in the trench five minutes prior to the sideof the trench giving way, collapsing on, burying, and seriouslyinjurying employee Borgwardt (Tr. II-164, 166). By reason of thesefacts, we find a serious violation of the cited standard and will affirmsame._AFFIRMATIVE DEFENSES__A. 29 C.F.R. ? 1926.652 Is Allegedly Vague And Unforceable _Respondent challenges the cited standard on the ground that theregulation is void by reason of vagueness and and by reason that thestandard is difficult for an employer to understand especially in viewof the provisions of 29 C.F.R. ? 1926.652(c) which provides for analternate method of sloping where hard soil is found.We fail to follow the rationale of respondent’s argument. The citedstandard has been considered by the Commission and has been found to befully enforceable._Marshall v. Connecticut Natural Gas Corp., _78 OSAHRC60\/83, 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978). Inthat case, the Commission rejected the argument that the standard wasvague stating \”when the various terms of section 1926.652(b) are read inlight of the other provisions of the trenching standards, their meaningis sufficiently precise to put employers on notice of what the standardrequires\” (6 BNA OSHC at 1799).Accordingly, since the Commission has rejected the argument that thestandard is vague, it will likewise be rejected in this case.B. _The Respondent Was Allegedly Unaware Of The Serious Condition _Respondent argues that there was no evidence to indicate that the soilwas unstable and was likely to cave-in. It argues that there was nosubstantial probability that death or serious harm could result from themanner in which it excavated the trench. It finds that the cave-in wasan unforeseeable event caused by an enormous complexity of forces andfactors affecting the soil structure, analogous to an unpredictableearthquake. We find respondent’s argument disingenuous at best.As pointed out by Dr. Painter’s eloquent and knowledgeable recitation ofsoil dynamics in the cited area, it was just a matter of time before acave-in would occur because of the method of excavation chosen byRespondent. The instability of the soil was easily discernable to thosewho were interested in finding the existence of that fact. As earlierdiscussed, we are not dealing herein with hard and compact soil, andthat fact was readily and reasonably apparent to all.Moreover, Respondent’s method of constructing the trench inviteddisaster. The sides of the trench were not sloped but were vertical;Respondent caused employees to enter into this 11-foot trench, measuring3 feet at the bottom and 6 to 8 feet at the top, to perform numeroustasks. Indeed, five minutes prior to the cave-in, the owner and operatorof Respondent, Mr. David L. Zunker, was at the edge of the dangerouslyconstructed trench viewing and directing the activities of the employeeswithin the trench. We find Respondent’s motive for constructing thetrench as it did all but too clear that it was one of economics. Thebackhoe operator indicated that he spent 20 minutes excavating the25-feet-long by 12-feet-deep trench. As Dr. Painter pointed out, this ishardly enough time to cut a trench to those dimensions, let aloneexcavate a trench that would comply with the standard and indeed beanything close to that claimed to have been done by the Respondent (Tr.II-496-499). Quite clearly Respondent chose to create a dangerous andhazardous workplace by excavating a trench whose walls were vertical notsloped nor shored, since this was a less expensive means ofaccomplishing completion of the project involving installation of thesever lines. We reject Respondent’s argument in that we perceive fromthe evidence in this case that the safety of employees was disregardedwith reckless abandon on behalf of expediency and economy. We believethe evidence well establishes the fact that had Respondent complied withthe cited standard it would have prevented a cave-in and would haveprevented the serious injuries to Mr. Borgwardt. We find that theconduct of Respondent in failing to comply with the Act and the citedregulation, was a knowledgeable and voluntary one, and accordingly willbe characterized as serious, if not willful. Respondent’s argument inthis regard is rejected._PENALTY _We find in this case a conscious, if not willful, disregard byRespondent of the requirement of the Act and the cited standard. Forobvious expediency purposes, Respondent constructed a trench whose sideswere neither sloped nor shored. It was obviously economicallyadvantageous to Respondent to construct such a trench as it did, than toconstruct one that complied with the Act and the cited standard. Byreason of this conduct, a dangerous work condition was established.Respondent, with knowledge of this serious and dangerous condition,required its employees to enter into the 12-foot trench whose sides wereneither shored nor sloped and whose sides were cut in unstable soil. Itwas a just a matter of time before a cave-in would have occurred, and infact one did occur seriously injuring an employee. Keeping in mind therequirements of section 17(j) of the Act, and due consideration beinggiven to the serious nature and consequences resulting from theviolation, we find that a penalty of $1,000 is appropriate._ORDER _Based upon the foregoing Findings of Fact and Conclusions of Law, as setout in my Decision and Order, and for good cause shown, it is ORDERED:1. That item one of Serious Citation No. 1 is AFFIRMED.2. That a penalty of $1,000 is ASSESSED.EDWARD A. BOBRICKJudge, OSHRCDated: May 2, 1985————————————————————————FOOTNOTES:[[1\/]] That standard provides:Sides of trenches in unstable or soft material, 5 feet or more in depthshall 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\/]] As Chairman Buckley suggests in his separate views, it is unusualfor a judge to make a credibility resolution that amounts to a \”blanketdismissal of four witnesses’ testimony.\” However, this is a rare case.In essence, the Secretary and Zunker presented two sets of witnesseswho, insofar as the disputed factual issues are concerned, testified totwo totally different, and largely mutually exclusive, sets of facts.The conflicting testimony for the most part could not be reconciled.Realistically, the judge had only two options: (a) to credit theSecretary’s witnesses and discredit Zunker’s, or (b) to credit Zunker’switnesses and discredit the Secretary’s. He chose option (a).[[3\/]] \”Unstable soil\” is defined at 29 C.F.R. ? 1926.653(q) as \”[e]arthmaterial, other than running, that because of its nature or theinfluence of related conditions, cannot be depended upon to remain inplace without extra support, such as would be furnished by a system ofshoring.\” A note to Table P-1 of 29 C.F.R. ? 1926.652 states that\”_clays,_ _silts_, _loams_ or non- homogenous soils require shoring andbracing.\” (Emphasis added).[[4\/]] Dr. Painter corroborated the testimony of the on-siteeyewitnesses concerning the tendency of the soil to crumble easily whendisturbed. He testified that the type of soil found in the trench tendsto break up when disturbed; this is the natural result of the drying outprocess that occurs during excavation.[[5\/]] The direction for review included as an issue the question ofwhether the standard was not validly promulgated as an \”establishedFederal standard\” under 29 U.S.C. ? 655(a). The direction for reviewnoted a possible ground for concluding that the standard is invalid. Thebasis for the standard being considered an \”established Federalstandard\” was that it had been promulgated originally under the federalConstruction Safety Act. Zunker argues, however, that it was not validlypromulgated under the Construction Safety Act because it was promulgatedless than 30 days before its effective date (promulgated April 17, 1971,with an effective date of April 24, 1971).Commissioner Arey would reject this contention on the basis ofCommission precedent holding that OSHA standards are not subject toattack during enforcement proceedings on the ground that there may havebeen procedural defects during their previous adoption under otherfederal statutes. _E.g.,_ _Daniel Construction Co.,_ 81 OSAHRC 41\/A2, 9BNA OSHC 1854, 1856, 1981 CCH OSHD ? 25,385, pp. 31,622-23 (No. 12525,1981). She notes that, in enacting 29 U.S.C. ? 655(a), Congressauthorized the Secretary to summarily adopt established federalstandards \”as soon as practicable;\” it did not require the Secretary toexamine whether there were procedural defects when the standards wereinitially promulgated under other federal laws. _General Motors Corp.,GM Parts Div.,_ 81 OSAHRC 13\/C10, 9 BNA OSHC 1331, 1336-37 1981 CCH OSHD? 25,202 (No. 79-4478, 1981).[[6\/]] That standard provides:Sides of trenches in hard or compact soil, including embankments, shallbe shored or otherwise supported when the trench is more than 5 feet indepth and 8 feet or more in length. In lieu of shoring, the sides of thetrench above the 5- foot level may be sloped to preclude collapse, butshall not be steeper than a 1- foot rise to each 1\/2-foot horizontal. . . .[[7\/]] Each trench wall would have to be sloped 1\/2:1 (1\/2 foothorizontally for every foot vertically) above the bottom live feet. (Asnoted above, the bottom five feet could be vertical, consistent with ?1926.652(c).) Assuming that the trench was 12 feet deep (no witnesstestified that it was deeper), the top 7 feet would have to be sloped1\/2:1. That means that each wall had to be sloped 3 1\/2 feethorizontally. The bottom width was 2 1\/2 feet. Thus, the top width wouldhave to be 2 1\/2 feet + 3 1\/2 feet + 3 1\/2 feet, or 9 1\/2 feet.Respondent’s witnesses testified that it measured 11 to 12 feet wideaccording to the surveying rod. Thus, it was wider than required by1926.652(c).[[8\/]] The grounds for a credibility finding based on \”demeanor\” wereillustrated in _Inland Steel,_ _supra._ There, the judge discredited onewitness’s testimony because his demeanor and manner of answeringquestions on cross- examination \”displayed bias\” against the employer.12 BNA OSHC at 1278-79, 1986-87 CCH OSHD at pp. 36,005-06. Hediscredited certain other witnesses where \”on cross examination [their]account of particular events created a strong impression that they weregiving a wrong coloring to material facts so as to deprive them ofcredit.\” 12 BNA OSHC at 1982, 1986-87 CCH OSHD at p. 36,009. Thosedemeanor findings were properly explained and were consistent with otherevidence.[[9\/]] Because the trench dimensions claimed by the parties were notvery different, Dr. Painter’s testimony that a trench with thedimensions that Zunker claims could not have been dug in 20 minutes isunpersuasive.[[10\/]] Because of his opinion on the merits of the citation, ChairmanBuckley does not need to address other arguments for vacating thecitation, including the standard’s alleged vagueness and invalidity.[[1]] Jurisdiction of the parties and the subject matter herein isconfirmed upon the Occupational Safety and Health Review Commission bySection 10(c) of the Act.[[2\/]] ? 1926.652 _Specific trenching requirements._(a) 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. See Tables P-1, P-2 (following paragraph (g) of this section).[[3\/]] Trial in this matter was held in two sessions, the transcript ofeach session having its own page numbers starting with page 1.Accordingly, reference herein to the transcript will be- as follows: Thetranscript of the first session of March 24 and 25, 1983, will be citedas (Tr. I- ). The transcript of the second session of May 2, 3, and 4,1983, will be cited as (Tr. II- ).[[4\/]] Viewing the specific cited work area, we find this area, like allof Sheboygan County, was a glacial outwash area. By reason of theearth’s heating, the soil left from the glacier lost its moisture andbegan to harden with cracks resulting internally due to shrinkage(referred to as desiccation) (Tr. II-77, 78). As the soil further dried,fissures or cracks began to develop within the soil forming a network ofcracks through it and causing it to be granular in nature (Tr. II-79,80), hence, the powdery breakup of the soil mentioned by the paramedics.The soil had little plasticity to it. By reason of these factors, thesoil in the work area became very unstable when disturbed by anexcavation (Tr. II-80-86). This type of soil, according to thescientific and technical expertise of Dr. Painter, could not beconsidered as hard or compact but at best was average unstable soil (Tr.II-92). We find Dr. Painter’s conclusion decisive as to the issue of thenature of the soil at the cited work site.[[5\/]]We will not comment on Dr. Bosscher’s conclusion that the soil atthe work site was hard and compact and stable, except to say that suchconclusion is contrary to the manifest weight of the considerablecredible evidence herein showing otherwise. We find that his reliance oncertain documents to be inappropriate and his overall experiencesomething less than necessary in providing insight into undergroundconstruction activities and soil analysis. For those very same reasonspointed out by Dr. Painter’s review of Dr. Bosscher’s analysis, we findDr. Bosscher’s conclusion without reliance or persuasion. and as such,are rejected in total.”