“Docket No. 82-0936 SECRETARY OF LABOR,Complainantv.ZUNKER CONTRACTORS, INC.,Respondent.OSHRC Docket No. 82-0936DECISIONBEFORE: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:The basic issues are whether the judge erred in finding thatZunker Contractors, Inc., violated the trench support requirements at 29 C.F.R. ?1926.652(b),[[1\/]] and in assessing a $1,000 penalty. The two Commissioners are at animpasse on the merits of the citation. To resolve the impasse, and permit the parties toconclude this litigation, Chairman Buckley and Commissioner Arey agree to vacate thedirection for review. 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 of the citation areset forth below.Commissioner Arey would affirm the judge’s decision. The judgesummarized the basis for finding a serious violation of section 1926.652(b) as follows:The evidence established that the sides of the trench werevirtually vertical 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 wide at the top, andwas excavated in average, soft and\/or unstable soil. Respondent had its employees, on aregular basis, enter into the unshored or unsloped 11-feet-deep trench to perform theleveling of gravel, the installation of sewer pipe and the further covering of the sewerpipe with gravel . . . . Indeed it was . . . the president, owner and operator ofRespondent company, that directed the employees in their duties and was supervising theseemployees in the trench five minutes prior to the side of the trench giving way,collapsing on, burying, and seriously [injuring] employee Borgwardt. . . .The judge found that Zunker knew or should have known that the soil was unstable. He alsorejected Zunker’s argument that the standard is unenforceably vague. He imposed themaximum penalty allowed for a serious violation. He based that assessment on his findingthat Zunker consciously disregarded the cave-in hazard presented by this inadequatelysloped and wholly unsupported trench.Commissioner Arey would adopt those findings because they werebased on the judge’s evaluation of the credibility of the various witnesses, and thosecredibility findings were proper. The basic principles governing Commission review of ajudge’s credibility findings were restated in Inland Steel Co., 86 OSAHRC 39\/A3, 12BNA OSHC 1968, 1986-87 CCH OSHD ? 27,647 (No. 79-3286, 1986):Normally, we will accept the administrative law judge’sevaluation of the credibility of witnesses because it is the judge who has lived with thecase, heard the witnesses and observed their demeanor. . . . However, the judge shouldidentify the conflicting testimony and explain the reasons for failing to credit awitness’s testimony or for crediting the testimony of one witness over that of another.12 BNA OSHC at 1978, 1986-87 CCH OSHD at p. 36,005 (citationsomitted). The judge’s findings here that the trench walls were virtually vertical, andthat the soil was unstable, were based on credibility findings resolving conflictingtestimony on those issues.[[2\/]] Commissioner Arey finds that the judge identified theconflicting testimony and gave proper reasons for his credibility findings. Therefore,under longstanding Commission precedent, the judge’s credibility resolutions are entitledto the Commission’s deference.The judge based his finding that the trench walls had nosignificant slope on the testimony of \”three disinterested on-the-sceneeyewitnesses\” (two paramedics and a volunteer fireman), who entered the trench thatcollapsed. All three reported seeing identical conditions. The judge found the testimonyof two corporate officers and two other employees of Zunker regarding the trenchdimensions and sloping to be \”unreliable and indeed untruthful,\” stating asfollows:The testimony of all these witnesses, each of whom had an interest in the results of theseproceedings, was at total odds with the testimony of the [paramedics and fireman] who weredisinterested and who truthfully reported their observations at the work site, and inparticular at the site of the cave-in. The demeanor of [Zunker’s witnesses] as well astheir sworn testimony, leaves much to be desired as having any probative value indetermining the factual issues in this case. . . . What element of truth we do attributeto these witnesses comes from Respondent’s backhoe operator who indicated that it took him20 minutes to dig the trench. . . . [I]t would be virtually impossible to excavate atrench in accordance with the dimensions testified to by [Zunker’s president] within a20-minute period.(Citations omitted.) The judge also noted that theSuperintendent of Public Works for the city (Sheboygan Falls, Wisconsin) and a cityinspector corroborated the testimony of the \”three disinterested on-the-sceneeyewitnesses\” concerning the dimensions of the trench that collapsed. The two cityemployees testified that, during their visits to the worksite (the Superintendent had beento the jobsite 15 to 20 times), the top width of Zunker’s trenches had never been morethan five to eight feet. Thus, they had never seen a trench at the worksite excavated inthe manner described by Zunker’s witnesses. The two city employees also testified thatthey had never seen shoring or trench boxes in use for employee protection.As to the soil conditions, the judge found that he couldresolve the issue without deciding between the conflicting views of the expert witnesses.He noted that the eyewitnesses who entered the trench had testified that the soil wascompacted clay which, when dry, was crumbly and fractured easily, turning to smallparticles or dust. This testimony was corroborated by the soil survey submitted intoevidence, a survey published by the United States Department of Agriculture, SoilConservation Service, which identified the soil in the area as mainly \”clayloam\” or \”silty clay loam glacial till.\”[[3\/]] The judge was justified infinding that the soil was \”soft or unstable\” under the cited standard, and\”average\” soil under Table P-1, on this basis alone.Nevertheless, the judge also credited the opinion of theSecretary’s expert, Dr. Painter, that the soil was unstable, over the opinion of Zunker’sexpert, Dr. Bosscher, that it was hard and stable.[[4\/]] He noted that Dr. Painter hadsignificant experience academically, as a geologist, and as a practicing soil andfoundation engineer. He also noted that Dr. Painter, an assistant professor of soilmechanics at the University of Wisconsin, had done soil research in the area and was\”particularly familiar with the soil structure and content in Wisconsin and in thearea relevant to these proceedings[.]\”Respondent’s expert, [Dr.] Bosscher, a professor of civil engineering at the University ofWisconsin, developed his expertise solely with the academe and was without any realpractical experience within the field of soil engineering. After carefully listening tothe views of each expert, I find Complainant’s expert, Dr. Painter, to present more of arealistic, knowledgeable, and practical view, with precise conclusions concerning thecondition of the soil in issue and how it got that way . . . . I find Dr. Bosscher’stestimony to lack that degree of precision, accuracy and reliability to have anypersuasiveness or have impact upon deciding the issues in this case.(Citations omitted.) Commissioner Arey concludes that thejudge’s reasons for finding the soil to be \”soft or unstable\” within the meaningof the cited standard are well explained and that the finding is supported by the clearpreponderance of the credible evidence. She therefore adopts that finding.Commissioner Arey also rejects Zunker’s contention that thestandard is unenforceably vague. The Commission has held that the standard is sufficientlyclear to be enforceable. Connecticut Natural Gas Corp., 78 OSAHRC 60\/B3, 6 BNA OSHC1796, 1798-99, 1978 CCH OSHD ? 22,874, pp. 27,667-68 (No. 13964, 1978). Similarly, theUnited States Court of Appeals that has jurisdiction in Wisconsin, where this case arose,has held that the standard is sufficiently clear to be enforceable. Super Excavators,Inc. v. OSHRC, 674 F.2d 592 (7th Cir. 1981), cert. denied, 457 U.S. 1133, 102S.Ct. 2958 (1982). Commissioner Arey would apply this precedent here.[[5\/]]Finally, Commissioner Arey would affirm the judge’s penaltyassessment due to the high gravity of the violation and Zunker’s knowing disregard of theclear hazard presented by the unprotected trench. See 29 U.S.C. ? 666(j).Chairman Buckley would reverse the judge’s decision and vacate the citation because theevidence is at best evenly balanced about whether the sloping was inadequate, and thejudge’s findings about the weight and credibility of the evidence are unjustified. As tothe soil conditions, he notes that Zunker’s expert, Dr. Bosscher, actually went to thejobsite after the accident and performed tests on the soil. The Secretary’s expert, Dr.Painter, did not test the soil himself, but relied on information developed by Dr.Bosscher and his general knowledge of the soil in the area.Dr. Bosscher had a 9-foot-deep trench dug, with vertical walls.He entered that trench, visually observed the walls, attempted to fracture the soil withshovels, and took a series of readings with a \”pocket penetrometer.\” He observedno cracks or fissures in the soil. He concluded from first-hand observation that the soilcould be characterized as \”hard clay,\” and that it was sufficiently cohesivethat the trench at issue here should not have collapsed in the amount of time it was open.The bases for his opinions were well-supported by scientific studies he discussed.There is no reason to prefer Dr. Painter’s second-handobservations to Dr. Bosscher’s first-hand observations. Neither is there reason to preferthe necessarily hasty observations of paramedics or volunteer firemen, performing a rescueoperation in the trench that collapsed, to Dr. Bosscher’s thorough study. As to thejudge’s finding that the evidence preponderates against Dr. Bosscher’s position, thatfinding was not 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 the other evidence ofrecord.All Purpose Crane Inc., 87 OSAHRC 24\/A3, 13 BNA OSHC1236, 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 be noted that theUSDA soil survey relied on by the Secretary was a general-account of soil conditions overa wide area, and did not pinpoint the area where this trench was dug. Dr. Bosscher’s studywas precise. That the soil in the general area may have been predominately \”siltyclay loam\” does not show the condition of the actual soil involved here any betterthan Dr. Bosscher did. The Secretary failed to prove that the soil was \”soft orunstable.\”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. The bottom five feet need not be sloped orshored.Zunker’s witnesses testified to specific measurements they madeof each critical dimension of the trench. Based on those measurements, the trench wassloped in compliance with ? 1926.652(c). The Secretary’s evidence included nomeasurements. It consisted of recollections of visual estimates by various persons whoeither did not recollect the particular trench at issue here, or clearly wereconcentrating on something else — the rescue of the injured worker.The specific measurements to which Zunker’s witnesses testifiedwere as follows. Zunker’s president and vice-president testified that they measured thewidth of the top of the trench immediately after the accident, using a graduated surveyingrod laid across the trench. The trench was 11 to 11 1\/2 feet wide at the east end and 12feet wide at the west end. They disagreed slightly about the depth of the trench. Onetestified that it was about 12 feet deep. The other testified that it was 10 to 10 1\/2feet deep. They agreed, however, that the trench was 2 1\/2 feet wide at the bottom,because that was the width of the backhoe bucket used to dig the trench.The backhoe operator who dug the trench also testified that itwas 12 feet deep and about 12 feet wide at the top. He based his estimate on the machine’swidth, which he testified was a little over 11 feet wide, and testified that \”I wason the outside of either track with the top of the trench.\” Based on thesemeasurements, the width of the trench at ground level was sufficient under ?1926.652(c).[[7\/]]However, the judge discredited all this testimony by Zunker’switnesses. His reasons for doing so were inadequate, in Chairman Buckley’s view. As notedabove, the \”disinterested on-the-scene eyewitnesses\” whose recollections thejudge credited were emergency personnel who clearly were concentrating on the rescueinstead of the trench dimensions. Also, the city inspector and Superintendent of PublicWorks merely recollected rough visual estimates they had made of trenches Zunker had dug.Neither claimed to have seen the trench that collapsed. The measurements by Zunker’switnesses were certainly no less probative than the recollections of rough estimates bythe Secretary’s witnesses.The judge’s stated reasons for discrediting Zunker’s witnesseswere that (1) they \”had an interest in the results of these proceedings,\” (2)their demeanor \”leaves much to be desired,\” and (3) it would be virtuallyimpossible to excavate a trench like the one they described in 20 minutes — the time thebackhoe operator testified it took to dig it. However, an employer’s officers andemployees are not to be disbelieved merely because of their employment. Also, the judgedid not explain what it was about their \”demeanor\” that left \”much to bedesired.\” Chairman Buckley would not accept such a blanket dismissal of fourwitnesses’ testimony based on \”demeanor,\” without further explanation. As notedabove, the judge should \”explain the reasons for failing to credit a witness’stestimony,\” to merit acceptance of a credibility finding.[[8\/]]As to the estimate that the trench was dug in 20 minutes, thatestimate relied on by the judge was provided by the backhoe operator, whose othertestimony he discredited entirely. The judge did not explain his apparently inconsistenttreatment of that testimony. Also, such an estimate clearly is the kind of rough estimatethat characterized the testimony of the Secretary’s fact witnesses throughout the hearing.There is no indication that the backhoe operator looked at a watch or had any other basisfor his recollection.In any event, the specific measurement by Zunker’s witnesseswere not very different from the rough estimates testified to by the Secretary’s witnessesbased on their recollections.[[9\/]] Even assuming, for purposes of argument, that themeasurements Zunker’s witnesses testified to lack credibility, the Secretary only producedrough estimates that the top width of the trench was slightly less than required — 8 feetas opposed to 9 1\/2 or 10 feet. See supra n. 7. Those rough estimates simply areinsufficient to rely on as exact enough to serve as the basis for affirming this citation.Thus, Chairman Buckley would conclude that the Secretary failed to prove that Zunkerviolated either ? 1926.652(b) or (c).[[10\/]]As noted above, to resolve their impasse, the Commissionersagree to vacate the direction for review. Therefore, the judge’s decision affirming aserious violation of 1926.652(b), and assessing a $1,000 penalty, becomes the final orderof the Commission, and is accorded the precedential value of an unreviewed judge’sdecision. E.g., Texaco, supra.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARY DATED: April 27, 1989SECRETARY OF LABOR,Complainant.v.ZUNKER CONTRACTORS, INC., A CorporationRespondent.DECISION AND ORDERAppearances: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., (hereinafterreferred to as the \”Act\”), wherein Respondent, Zunker Contractors, Inc.,contested a Citation issued by Complaint, Ford B. Ford, Under Secretary of Labor, U.S.\u00a0 Department of Labor.[[1]]\u00a0 The Citation charged Respondent with a seriousviolation of the Excavations, Trenching, and Shoring Standard, 29 C.F.R. ? 1926.652(b),[[2\/]] as follows: 29 C.F.R. ? 1926.652(b) The side(s) of the trench(es) inunstable or soft material which were more than 5 feet in depth, were not shored, sheeted,braced, sloped or otherwise supported in accordance with Tables P-1 and P-2:(a) Slope of south side of lateral trench excavation extendingeast from the north-south sanitary sewer trench, (adjacent to manhole 2 plus 32) locatedat Highway PP and Chippewa Trail, Sheboygan Falls, WI., was not laid back adequately toprotect employees from the potential hazard of cave-in.The citation was issued as a result of an investigation made bythe Occupational Safety and Health Administration, U.S. Department of Labor, which hadbeen prompted by a report of a trench cave-in at Respondent’s jobsites in the SheboyganFalls, Wisconsin, area (Tr. 128). FINDINGS OF FACTS AND CONCLUSIONS OF LAWFACTS OF CASEZunker Contractors, Inc., Respondent herein, is a WisconsinCorporation engaged in sewer construction and related activities. On July 21, 1982,Respondent was digging trenches and laying sewer pipe in these trenches at a subdivisiondevelopment in Sheboygan Falls, Wisconsin.On July 21, 1982, Respondent was installing sanitary sewers, storm sewers, and water maininstallations at a subdivision known as K-Meadows Subdivision, Highway PP and ChippewaTrails, for the City of Sheboygan Falls, Wisconsin. This work was done pursuant to a bidand plan submitted by Respondent and accepted by the City of Sheboygan Falls. Respondent’scontract with the city called for it to, among other things, provide and install mainsewer lines and lateral sewer lines leading to the main line (Tr. II-395).[[3\/]] The areain which this excavation and sewer installation was to take place was a relatively flatarea where the soil consisted of red clay.The work carried out by Respondent involved the excavation of alarge trench in which the main sewer line would be installed. Smaller trenches extendingperpendicularly from both sides of the main trench were excavated and were to accommodatethe installation of smaller sewer pipes which would connect to the larger sewer pipe.These smaller trenches in which the smaller sewer pipe was to be located were referred toas laterals. The main sewer line ran north and south and the smaller connecting lateralswere placed in an east-west direction from the main sewer line. The excavation andplacement of the sewer piping involved the digging of a trench to a specified depth, afterwhich it would be backfilled with gravel to a specified grade. The sewer pipe was thenplaced on the gravel bed after which additional gravel would be placed into the trench tocover the pipe to a specific depth. Once the sewer pipe was completely covered with gravelthe entire trench would then be backfilled to ground level.With respect to the construction of the laterals, the work doneby Respondent’s employees would involve the following: First, a backhoe operator wouldbegin to dig out the lateral trench starting from the main sewer. Once the lateral was dugto its specified depth, gravel would be placed into the trench. This was accomplished withuse of a front-end loader bringing gravel to the trench and dumping the gravel into thetrench. An employee would go into the trench and level the stone insuring that it met thedesigned grade and was of the appropriate thickness to form a proper resting surface forthe sewer pipe. Once the stone was at the proper grade and depth, the sewer pipe wasplaced onto the gravel bed and then checked for proper grade and slope. At least twoemployees would be in the trench installing the sewer pipe. After the sewer pipe wasappropriately installed into the trench and connected to the main sewer line, gravel wasagain dumped into the trench by the front-end loader and again an employee would enter thetrench and level out the gravel insuring that the pipe was fully covered with gravel to apredetermined height. After that the trench would be backfilled and compacted so as to belevel with the surface of the area (Tr. II-190-195).Respondent began the work of installing the sanitary and storm sewer lines at theK-Meadows Subdivision on July 16, 1982. By July 21, 1982, a large part of the main sewerline had been constructed. Additionally, approximately 11 or 12 lateral sewer lines hadalso been installed (Tr. II-164). It was on the morning of July 21, 1982, that a cave-intook place, burying an employee, said employee sustaining severe injuries involvingcomplete 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 7:00 a.m. to beginwork. Mr. David L. Zunker, the president and owner of Respondent, gave the work orders toseveral of his employees to install a lateral sewer line to lot 29 of the subdivision. Hewas personally in charge 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, thebackhoe operator, Mr. Henry Conklin, Jr., the front-end loader operator, and Mr. RandyBorgwardt, the plumber who was to level the gravel and install and connect the sewerpipes. Mr. Washnieski began the work by digging out the trench. The excavation of thistrench was done in a similar manner to all the other trenches which had been dug for theinstallation of the lateral sewer pipe. The trench was to measure 27 feet in length and 12feet in depth. The very bottom of the trench was 30 inches wide. According to Mr.Washnieski, the width at the top of the trench was 12 feet, and the sides above the 5-footlevel of the trench were sloped outward to form the 12-foot width of the top of the trench(Tr. II-248-250). Mr. Washnieski indicated that it took him 20 minutes to dig this trench(Tr. II-251). Once the trench was dug, Mr. Washnieski left the area and proceeded toexcavate a second lateral trench.After the trench was fully excavated, Mr. Conklin, thefront-end loader operator, brought gravel in his loader to the trench, dumping same intoit. Once the gravel was placed into the trench, Mr. Borgwardt then entered the trench andleveled the gravel to the proper depth and grade to accommodate the installation of thelateral sewer pipe (Tr. II-221, 222). Once the gravel had been leveled and graded, Mr.Conklin went into the trench to assist Mr. Borgwardt in installing the sewer pipe.Thereafter, Mr. Conklin returned to his front-end loader to bring additional stone to thetrench to be placed over the pipe (Tr. II-220-222, 412). Mr. Conklin, operating hisfront-end loader, brought and placed additional gravel into the trench to cover the sewerpipe, whereupon Mr. Borgwardt went back into the trench to level off this second level ofgravel which was to cover the sewer pipe (Tr. II-413, 235, 245). It was at this point thatMr. Conklin reported that he saw Mr. Borgwardt get into the trench, signaling his positionin the trench with an upraised shovel, and then he suddenly lost sight of the shovel. Atthis point, Mr. Conklin became aware that something was wrong and that a possible accidenthad occurred (Tr. II- 224-227). He left his front-end loader, ran to the edge of thetrench and found that Mr. Borgwardt had been totally buried beneath a cave-in caused bypart of the south wall of the trench giving way (Tr. II-231). Mr. Conklin then yelled forhelp from other workers and jumped into the trench to begin uncovering the buried worker(Tr. II-164, 228-231). The manner in which the excavation was to be done and the workwhich was to take place in the 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. Zunker wasstanding above the lateral trench observing the work being carried out within it (Tr.II-164).Immediately after the cave-in emergency calls were made formedical and other emergency assistance. Responding to these calls were the Orange CrossAmbulance Service of Memorial Hospital, and the Fire Department of the City of SheboyganFalls (Tr. I-82, 116, 157). Volunteer Fireman Thomas S. De Pagter, upon arriving at thescene, was informed of the cave-in and that a man had been buried. He took his, oxygenbreathing equipment to the area of the cave-in. Once at the site of the cave-in, he foundthe victim buried within, dirt had been removed from around the victim’s head, but he wasencased in solid earth from his chest to each edge of the trench walls (Tr. I-157, 170).Mr. De Pagter saw that the north wall of the trench was virtually vertical, \”astraight cut with no angle or taper to it\” (Tr. I-159). He noticed that his oxygenline dangled straight down into the trench (Tr. I-157). He further noticed that the trenchwas approximately ten feet deep where the victim was standing and at that depth the trenchwas only three to four feet wide. The top of the trench was only six to eight feet wide(Tr. I-163). He found that the soil in the trench appeared to be dense clay which was wellpacked and hard to move (Tr. I-162).Two paramedics employed with the Orange Cross AmbulanceService, upon their arrival at the work site, reported similar conditions to that observedby Mr. De Pagter, the volunteer fireman who arrived at the scene before they did.Mr. Larry Duenk, one of the paramedics at the scene, found aman buried in a 12-feet-deep by 25-feet-long trench (Tr. I-83, 89). He observed that thesouth wall of the trench had collapsed upon the victim and that a rescue operation wasunderway to dig the man out (Tr. I-82). He noticed that the trench at the point of thecave-in was only six to eight feet wide (Tr. I-84, 89). He entered the trench to aid thevictim and 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 also noticed that theoxygen tubing and oxygen mask, which had been placed into the trench to aid the victim,were dangling from the edge of the side of the trench straight down as though they were apendulum; it did not touch the edge of the trench at all (Tr. 1-84). Once in the trench hefound it to be extremely narrow, no more than four to five feet wide, with barely enoughroom for one person to render aid (Ex. C-17; Tr. 1-89, 95, 99). He found the soil withinthe trench to be clay but of an unusual nature since it would pulverize and turn into afine powder upon exerting any pressure upon the soil (Tr. 92, 93, 94, 99). In renderingemergency aid to the victim, Mr. Borgwardt, he found him to be unconscious withindications of serious injury (Tr. 113). He spent approximately ten to fifteen minutes inthe trench administering appropriate emergency aid until the victim was extricated.The second paramedic, Mr. James W. Levi, an emergency medical technician with the OrangeCross Ambulance Service, observed similar conditions as those observed by the two otheremergency service personnel (Tr. 115). Mr. Levi reported that as he approached the trenchhe saw men digging out 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 observed that the south wallhad collapsed upon the victim but that the north wall was still intact (Tr. I-116, 117).He further observed that the north wall was \”exactly vertical\” with no angle ofrepose 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 on it by reason of itsinstability. The soil would give way wherever he would step (Tr. I-117, 122). The soil wasof a clay-like texture with particles the size of a hand and smaller (Tr. I-122).According to Mr. David L. Zunker and Mr. Wayne J. Zunker,owners and operators of the Respondent business, once the injured employee had beenremoved from the trench and taken from the work site to the hospital, they measured thedimensions of the trench (Tr. II-411). According to these two individuals, the basicmeasurements of the trench were 12 feet in width, approximately 11 feet in depth, with thesides sloping out after the 5-foot level (Ex. R-8; Tr. II-158, 159, 160, 169, 408).On July 22, 1982, a Compliance Officer with the OccupationalSafety and Health Administration made an investigation of the conditions at Respondent’swork site at the K-Meadows Subdivision, in particular as to those events occurring on July21, 1982. When he arrived at the jobsite the trench which had caved-in had been coveredover and his investigation concerned a general view of the area. Additionally, heinterviewed the president of Respondent, some of the on-scene witnesses, and took soilsamples.As part of his investigation, the Compliance Officer consulteda soil survey of Sheboygan County, Wisconsin, made by the United States Department ofAgriculture, Soil Conservation Service, and consulted with a soil engineer. From this, hedetermined that the soil at the Respondent’s work site was average soil, was of unstablenature, and ultimately determined that the trenching standard, 29 C.F.R. ? 1926.652(b),applied to the situation. Since his investigation revealed that the sides of the trenchwere not sloped, but were vertical, that shoring was not used and that the trench wasapproximately 11 to 12 feet in depth and 26 feet in length, he determined that a violationof this standard occurred. As a result of this determination, a Citation was issuedalleging a serious violation of 29 C.F.R. ? 1926.652(b).ALLEGED VIOLATION OF THE EXCAVATIONS, TRENCHING, AND SHORINGSTANDARD 29 C.F.R. ? 1926.652(b)A. CONDITION OF TRENCHWe find that the credible evidence submitted in this caseoverwhelmingly established that the sides of the trenches excavated by Respondent in whichemployees were required to work, one of which collapsed upon one of its employees, hadsides which were virtually vertical having no sloping component to them of anysignificance. We further reach the conclusion that the width of the trenches, inparticular the one that collapsed, above their three-foot level were approximately fivefeet and that the width of the trenches at their top ranged between six and eight feet. Inthis case, it would be difficult to reach any other conclusion since three disinterestedon-the-scene eyewitnesses, who entered the trench that collapsed, all reported seeingidentical conditions, that being that the sides of the trench were essentially verticalwith no sloping of any consequence to them, and that the width of the trench at the verytop 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 Zunkertogether with two of its employees concerning the width of the trench, the dimensions ofthe trench, and the existence of sloping to be unreliable and indeed untruthful. Thetestimony of all these witnesses, each of whom had an interest in the results of theseproceedings, was at total odds with the testimony of the above discussed witnesses whowere disinterested and who truthfully reported their observations at the work site, and inparticular at the site of the cave-in. The demeanor of Messrs. Zunker together with theirtwo employees, as well as their sworn testimony, leaves much to be desired as having anyprobative value in determining the factual issues in this case. Their testimony in chiefis found not credible or reliable and accordingly will be disregarded. What element oftruth we do attribute to these witnesses comes from Respondent’s backhoe operator whoindicated that it took him 20 minutes to dig the trench (Tr. 11-251). As was pointed outby Complainant’s expert in soil engineering, who has significant practical experience aswell as significant technical and scientific expertise in soil engineering, and who hadbeen associated with sewer line installation, it would be virtually impossible to excavatea trench in accordance with the dimensions testified to by Mr. David L. Zunker within a20-minute period (Tr. ll-498). This view was confirmed by the Superintendent of PublicWorks for the City of Sheboygan Falls in that, although he had been to the jobsite 15 to20 times, he had never seen a trench that was constructed like that described by Mr.Kenneth Zunker and Mr. David Zunker, each claiming that the sides were sloped and thetrench width at its top was 12 feet (Tr. 11-503, 508, 510).Adding to the uncontroverted credible testimony of theseemergency service witnesses was the testimony of the Superintendent of Public Works of theCity of Sheboygan Falls, and one of its inspectors. Both of these individuals wereregularly at the work site, had viewed the excavation work and also found that thecondition of the trench which had caved-in, as well as other trenches at the work site,was consistent with that reported by the three emergency personnel who appeared at thecave-in scene. These two witnesses reported that throughout their visits to the work sitethey never saw a lateral trench which was 12 feet wide at its top, and that the top widthof the trenches, including the one that caved-in, was no more than five to eight feet.Likewise, they never saw a trench sloped in the manner as that described by Respondent’sowner; they had observed that the sides of the trenches excavated at the work site hadvirtually no slope to them (Tr. I-43, 52, 53, 55, II-503, 509, 510, 511). Additionally,these witnesses reported seeing no utilization of shoring or trench boxes prior to thecave-in (Tr. I-449 II-509).Having determined that the sides of the trench which caved-in,as well as all other trenches excavated by Respondent at the work site, were straight upand down, and that the dimensions of the trenches were as follows: 2 1\/2 to 3 feet at itsbase, 6 to 8 feet at its top, and 11 to 12 feet in depth, we now turn to the contestedissue concerning the condition of the soil in which the trench was dug.B. CONDITION OF SOILComplainant in citing Respondent for a violation of 29 C.F.R.? 1926.652(b) maintained that the soil in which the trench was excavated was unstable orsoft in nature. Respondent on the other hand maintained that the soil was hard and compactand thus, under 29 C.F.R. ? 1926.552(c), it was required only to slope the sides of thetrench above the five-foot level and that the angle of repose in the sloped portion of thesides of the trench, would be a 63 degree angle under a ratio of one-foot rise to eachhalf-foot horizontal. Respondent argues that its construction of the trench, having awidth of 12 feet, complied with the requirements of 29 C.F.R. ? 1926.652(c) and that itwas improperly cited for a violation of 29 C.F.R. ? 1926.652(b). While we findRespondent’s argument purely academic in, nature, since we have determined that Respondentconstricted the trench with no angle of repose to its sides at all, and thus evenconsidering its argument, it would nonetheless be in violation of the standard it reliesupon, i.e., 29 C.F.R. ? 1926.652(c), we find that the standard cited by theComplainant is appropriate 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, bothparties presented extended testimony of two soil engineering experts. Before reaching anassessment of the persuasiveness of each expert’s view and of their expertise and opinionsconcerning the issues in this case, we find that we can resolve the basic issue as to thecondition of the soil from other testimony and documents submitted in evidence at trial.First, looking to the testimony of the eyewitnesses who enteredthe trench, they each reported finding the soil compacted clay, which when dry was crumblyand fractured easily turning to small particles or dust (Tr. I-93, 94, 99, 117, 122, 162).This observation seems consistent with the soil survey published by the United StatesDepartment of Agriculture, Soil Conservation Service, which showed the soil to be ofaverage characteristics, made mainly of clay loam or silty clay loam glacial till (Ex.C-20, 21). In viewing the provisions of 29 C.F.R. ? 1926.652(b) and (c), it is importantto not that 1926.652(b), referring to Table P-1, specifically notes that clays, silts, andloams require shoring and bracing, and furthermore is more in line with the definition ofaverage soil.In attempting to identify just what is hard and compact soil, we must make reference to1926.653(h) which defines hard compact soil as \”all earth materials not classified asrunning or unstable.\” Further referencing these regulations, 1926.653(q) entitled\”Unstable Soil\” defines such as \”earth material, other than running, thatbecause of its nature or the influence of related conditions, cannot be depended upon toremain in place without extra support, such as would be furnished by a system ofshoring.\” By interpretation it is clear that by using Table P-1 in reference to clay,silt and loam, which requires shoring and bracing, we would have to hold that the clayfound at the work site would fall within the term \”unstable soil\” as defined bythe regulations.As above mentioned the evidence clearly portrayed the soil atRespondent’s work site and at the site of the trench which caved-in, as Kewaunee type soilwhich is defined as silty clay loam. With the aid of the regulations, we must reach theconclusion that the soil was soft and unstable and that trenching standard 79 C.F.R. ?1926.652(b) was applicable to the work site (Ex. R-6, C-20, C-21; Tr. 11-10).Additionally, both parties presented the expert testimony andopinions of two soil engineers concerning the condition of the soil. The complainantpresented the testimony of Dr. William T. Painter, Ph.D., P.E. Dr. Painter has significantexperience within the academic area and as a geologist and as a practicing soil andfoundation engineer. His experience was multi-faceted and covered almost every avenue ofsoil mechanics in its practical sense (Ex. C-15; Tr. II-61-68, 69). As a soil engineer, hehas been involved in a multitude of field works such as stabilization of landslides,construction of forest access ways, geological investigations associated with buildingconstruction or remedial construction, foundation engineering, excavations for sewer andother systems, as well as other activities dealing with the science of soil and foundationengineering (Tr. II-62-67, 69, 496). Dr. Painter’s academic achievement follows hisprofessional accomplishments in that he has been involved in many learned studies dealingwith soil research, soil mechanics and foundation analysis.Significantly, Dr. Painter was an assistant professor of soilmechanics with the University of Wisconsin and in that capacity he did soil research inthe, State of Wisconsin, and in particular within Sheboygan County where Respondent’s worksite involved In this matter was located. His geological investigations made himparticularly familiar with the soil structure and content in Wisconsin and in the arearelevant to these proceedings (Tr. II-66, 67, 71).Respondent’s expert, Mr. Peter J. Bosscher, a professor ofcivil engineering at the University of Wisconsin, developed his expertise solely withinthe academe and was without any real practical experience within the field of soilengineering. After carefully listening to the views of each expert, I find Complainant’sexpert, Dr. Painter, to present more of a realistic, knowledgeable, and practical view,with precise conclusions concerning the condition of the soil in issue and now it got thatway (Tr. II-107, 147). I find Dr. Bosscher’s testimony to lack that degree of precision,accuracy and reliability to have any persuasiveness or have impact upon deciding theissues in this case.We find reasonable and well founded Dr. Painter’s view of thegeology of the Sheboygan County area as being created by glacial action and in geologicalterms known as a glacial outwash plain (Tr. II-76). An outwash plain is one sheets thatexisted at the glacial period. Different types of soils were then deposited as a result ofthe streams running off the glaciers. These deposits consisted of silt, clay, sand andgravel. The ice covering these deposits was approximately half mile thick. Following thechange of climates, the heating up of the area, and the melting of the glacial ice, lakeswere formed and streams picked up the clay, silt, sand and gravel making deposits atparticular areas. Coarser materials would be conveyed more distant from the source. Thelatter mentioned material makes up the soil in Sheboygan County and surrounding areas.As the ice melted and water receded and evaporated, the glacialtill was allowed to dry out and fissures and small cracks developed within the soil as themoisture evaporated away from the surface. Understandably, this process took manythousands of years (Tr. 73-80). As the soil dried out, it became fissured and granular innature so that soil would break into many small pieces upon disturbance from anexcavation. It is a characteristic of this type of soil to have fractures when disturbedby excavations (Tr. II-80).Without belaboring this opinion, Dr. Painter’s ultimateconclusion that the 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 havemuch cohesion to it, is found to be a credible material fact herein. [[4\/]] The variousstudies and geological data and surveys made of the area were supportive of Dr. Painter’sconclusions.Dr. Painter further indicated that as one excavates in clay, such as that found atrespondent’s work site, stresses would be released in the soil which would cause the soilto move toward the opening of the excavation. Because of the tiny fissures which arepresent in the soil, this would cause very little strength to be exerted by the clay tohold itself together and would tend not to stay intact but to lead to a massive collapsewhen excavated without safety procedures in place (Tr. II-82-85). In reviewing all of Dr.Painter’s testimony, we find considerable support and persuasiveness to his ultimateconclusions and accept same to resolve the contested issues herein. [[5\/]] We find hisanalysis of the geologic makeup of the area in question precise, knowledgeable and wellfounded both from an academic standpoint and from his own practical and technicalexperience. We accept as fact his opinion that the soil at the work site, and throughoutSheboygan County and surrounding areas, which is composed of silty loam clay to beunstable in nature. (See fn. 4, supra.) Accordingly, we again reach the conclusionthat any excavation into the clay soil in Sheboygan County must be done in accordance withtrenching 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 wasnot sloped or shored as prescribed by the cited standard, 29 C.F.R. ? 1926.652(b). Theevidence established that the sides of the trench were virtually vertical with no angle ofrepose of any significance. The trench was approximately 11 feet deep, 3 feet wide at itsbase and 6 to 8 feet wide at the top, and was excavated in average, soft and\/or unstablesoil. Respondent had its employees, on a regular basis, enter into the unshored orunsloped 11-feet-deep trench to perform the leveling of gravel, the installation of sewerpipe and the further covering of the sewer 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 was supervising theseemployees in the trench five minutes prior to the side of the trench giving way,collapsing on, burying, and seriously injurying employee Borgwardt (Tr. II-164, 166). Byreason of these facts, we find a serious violation of the cited standard and will affirmsame.AFFIRMATIVE DEFENSESA. 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 the standard is difficultfor an employer to understand especially in view of the provisions of 29 C.F.R. ?1926.652(c) which provides for an alternate method of sloping where hard soil is found.We fail to follow the rationale of respondent’s argument. Thecited standard has been considered by the Commission and has been found to be fullyenforceable. Marshall v. Connecticut Natural Gas Corp., 78 OSAHRC 60\/83, 6 BNA OSHC1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978). In that case, the Commission rejected theargument that the standard was vague stating \”when the various terms of section1926.652(b) are read in light of the other provisions of the trenching standards, theirmeaning is 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 the standard is vague, itwill likewise be rejected in this case.B. The Respondent Was Allegedly Unaware Of The SeriousCondition Respondent argues that there was no evidence to indicate thatthe soil was unstable and was likely to cave-in. It argues that there was no substantialprobability that death or serious harm could result from the manner in which it excavatedthe trench. It finds that the cave-in was an unforeseeable event caused by an enormouscomplexity of forces and factors affecting the soil structure, analogous to anunpredictable earthquake. We find respondent’s argument disingenuous at best.As pointed out by Dr. Painter’s eloquent and knowledgeablerecitation of soil dynamics in the cited area, it was just a matter of time before acave-in would occur because of the method of excavation chosen by Respondent. Theinstability of the soil was easily discernable to those who were interested in finding theexistence of that fact. As earlier discussed, we are not dealing herein with hard andcompact soil, and that fact was readily and reasonably apparent to all.Moreover, Respondent’s method of constructing the trenchinvited disaster. The sides of the trench were not sloped but were vertical; Respondentcaused employees to enter into this 11-foot trench, measuring 3 feet at the bottom and 6to 8 feet at the top, to perform numerous tasks. Indeed, five minutes prior to thecave-in, the owner and operator of Respondent, Mr. David L. Zunker, was at the edge of thedangerously constructed trench viewing and directing the activities of the employeeswithin the trench. We find Respondent’s motive for constructing the trench as it did allbut too clear that it was one of economics. The backhoe operator indicated that he spent20 minutes excavating the 25-feet-long by 12-feet-deep trench. As Dr. Painter pointed out,this is hardly enough time to cut a trench to those dimensions, let alone excavate atrench that would comply with the standard and indeed be anything close to that claimed tohave been done by the Respondent (Tr. II-496-499). Quite clearly Respondent chose tocreate a dangerous and hazardous workplace by excavating a trench whose walls werevertical not sloped nor shored, since this was a less expensive means of accomplishingcompletion of the project involving installation of the sever lines. We rejectRespondent’s argument in that we perceive from the evidence in this case that the safetyof employees was disregarded with reckless abandon on behalf of expediency and economy. Webelieve the evidence well establishes the fact that had Respondent complied with the citedstandard it would have prevented a cave-in and would have prevented the serious injuriesto Mr. Borgwardt. We find that the conduct of Respondent in failing to comply with the Actand the cited regulation, was a knowledgeable and voluntary one, and accordingly will becharacterized as serious, if not willful. Respondent’s argument in this regard isrejected.PENALTY We find in this case a conscious, if not willful, disregard byRespondent of the requirement of the Act and the cited standard. For obvious expediencypurposes, Respondent constructed a trench whose sides were neither sloped nor shored. Itwas obviously economically advantageous to Respondent to construct such a trench as itdid, than to construct one that complied with the Act and the cited standard. By reason ofthis conduct, a dangerous work condition was established. Respondent, with knowledge ofthis serious and dangerous condition, required its employees to enter into the 12-foottrench whose sides were neither shored nor sloped and whose sides were cut in unstablesoil. It was a just a matter of time before a cave-in would have occurred, and in fact onedid occur seriously injuring an employee. Keeping in mind the requirements of section17(j) of the Act, and due consideration being given to the serious nature and consequencesresulting from the violation, we find that a penalty of $1,000 is appropriate.ORDER Based upon the foregoing Findings of Fact and Conclusions ofLaw, as set out 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, 1985FOOTNOTES: [[1\/]] That standard provides:Sides of trenches in unstable or soft material, 5 feet or morein depth shall be shored, sheeted, braced, sloped, or otherwise supported by means ofsufficient strength to protect the employees working within them. See Tables P-1, P-2(following paragraph (g) of this section.)[[2\/]] As Chairman Buckley suggests in his separate views, itis unusual for 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 witnesses who, insofar as the disputedfactual issues are concerned, testified to two totally different, and largely mutuallyexclusive, sets of facts. The conflicting testimony for the most part could not bereconciled. Realistically, the judge had only two options: (a) to credit the Secretary’switnesses and discredit Zunker’s, or (b) to credit Zunker’s witnesses and discredit theSecretary’s. He chose option (a).[[3\/]] \”Unstable soil\” is defined at 29 C.F.R. ?1926.653(q) as \”[e]arth material, other than running, that because of its nature orthe influence of related conditions, cannot be depended upon to remain in place withoutextra support, such as would be furnished by a system of shoring.\” A note to TableP-1 of 29 C.F.R. ? 1926.652 states that \”clays, silts, loams ornon- homogenous soils require shoring and bracing.\” (Emphasis added). [[4\/]] Dr. Painter corroborated the testimony of the on-siteeyewitnesses concerning the tendency of the soil to crumble easily when disturbed. Hetestified that the type of soil found in the trench tends to break up when disturbed; thisis the natural result of the drying out process that occurs during excavation.[[5\/]] The direction for review included as an issue thequestion of whether the standard was not validly promulgated as an \”establishedFederal standard\” under 29 U.S.C. ? 655(a). The direction for review noted apossible ground for concluding that the standard is invalid. The basis for the standardbeing considered an \”established Federal standard\” was that it had beenpromulgated originally under the federal Construction Safety Act. Zunker argues, however,that it was not validly promulgated under the Construction Safety Act because it waspromulgated less than 30 days before its effective date (promulgated April 17, 1971, withan effective date of April 24, 1971).Commissioner Arey would reject this contention on the basis of Commission precedentholding that OSHA standards are not subject to attack during enforcement proceedings onthe ground that there may have been procedural defects during their previous adoptionunder other federal statutes. E.g., Daniel Construction Co., 81 OSAHRC41\/A2, 9 BNA 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), Congress authorized the Secretary tosummarily adopt established federal standards \”as soon as practicable;\” it didnot require the Secretary to examine whether there were procedural defects when thestandards were initially promulgated under other federal laws. General Motors Corp., GMParts 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, includingembankments, shall be 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 the trench above the5- foot level may be sloped to preclude collapse, but shall not be steeper than a 1- footrise 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. (As noted above, thebottom five feet could be vertical, consistent with ? 1926.652(c).) Assuming that thetrench was 12 feet deep (no witness testified that it was deeper), the top 7 feet wouldhave to be sloped 1\/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 would have to be 2 1\/2feet + 3 1\/2 feet + 3 1\/2 feet, or 9 1\/2 feet. Respondent’s witnesses testified that itmeasured 11 to 12 feet wide according to the surveying rod. Thus, it was wider thanrequired by 1926.652(c).[[8\/]] The grounds for a credibility finding based on\”demeanor\” were illustrated in Inland Steel, supra. There, thejudge discredited one witness’s testimony because his demeanor and manner of answeringquestions on cross- examination \”displayed bias\” against the employer. 12 BNAOSHC at 1278-79, 1986-87 CCH OSHD at pp. 36,005-06. He discredited certain other witnesseswhere \”on cross examination [their] account of particular events created a strongimpression that they were giving a wrong coloring to material facts so as to deprive themof credit.\” 12 BNA OSHC at 1982, 1986-87 CCH OSHD at p. 36,009. Those demeanorfindings were properly explained and were consistent with other evidence.[[9\/]] Because the trench dimensions claimed by the partieswere not very different, Dr. Painter’s testimony that a trench with the dimensions thatZunker claims could not have been dug in 20 minutes is unpersuasive.[[10\/]] Because of his opinion on the merits of the citation,Chairman Buckley does not need to address other arguments for vacating the citation,including the standard’s alleged vagueness and invalidity.[[1]] Jurisdiction of the parties and the subject matter herein is confirmed upon theOccupational Safety and Health Review Commission by Section 10(c) of the Act.[[2\/]] ? 1926.652\u00a0 Specific trenching requirements.(a) 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. See Tables P-1, P-2 (following paragraph (g) ofthis section).[[3\/]] Trial in this matter was held in two sessions, thetranscript of each session having its own page numbers starting with page 1. Accordingly,reference herein to the transcript will be- as follows: The transcript of the firstsession of March 24 and 25, 1983, will be cited as (Tr. I- ). The transcript of the secondsession 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 all of Sheboygan County, was a glacial outwash area. By reason of the earth’sheating, the soil left from the glacier lost its moisture and began to harden with cracksresulting internally due to shrinkage (referred to as desiccation) (Tr. II-77, 78). As thesoil further dried, fissures or cracks began to develop within the soil forming a networkof cracks through it and causing it to be granular in nature (Tr. II-79, 80), hence, thepowdery breakup of the soil mentioned by the paramedics. The soil had little plasticity toit. By reason of these factors, the soil in the work area became very unstable whendisturbed by an excavation (Tr. II-80-86). This type of soil, according to the scientificand technical expertise of Dr. Painter, could not be considered as hard or compact but atbest was average unstable soil (Tr. II-92). We find Dr. Painter’s conclusion decisive asto the issue of the nature of the soil at the cited work site.[[5\/]]We will not comment on Dr. Bosscher’s conclusion that thesoil at the work site was hard and compact and stable, except to say that such conclusionis contrary to the manifest weight of the considerable credible evidence herein showingotherwise. We find that his reliance on certain documents to be inappropriate and hisoverall experience something less than necessary in providing insight into undergroundconstruction activities and soil analysis. For those very same reasons pointed out by Dr.Painter’s review of Dr. Bosscher’s analysis, we find Dr. Bosscher’s conclusion withoutreliance or persuasion. and as such, are rejected in total.”