THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No. SH91078 

	Plaintiff,			)  Citation No. Vl58903591

		vs .			)


	Defendant			)  OPINION AND ORDER

	A hearing was held on July 12, l991 in Portland, Oregon. Oregon
OSHA was represented by Armonica M. Gilford. Lester E. Wendell
appeared as the authorized representative for Wendell's


	Defendant challenges all items, except l4, of citation No.
Vl58903591 issued following a February l, l991 inspection of an
excavation project at 77th and S. E. Powell in Portland, Oregon.
The citation (Exhibit A) is attached for reference.


	Lester E. Wendell owns Wendell's Construction. He dug the
trench in question on February l, l991. It was approximately 35
feet long, 9 feet deep and 3 to 5 feet wide. Wendell had at
least two employees on site.

	The inspection by Oregon OSHA occurred at 1:00 p.m. on February
l, l991. Neither Wendell nor his employees had been in the
trench before the inspection. They were in the process of
installing shoring at the time of the inspection. The one
aluminum hydraulic shore that was in place was installed from
the top without anyone being in the trench.

	An aluminum ladder was in the trench. It had bent rungs And did
not extend 36 inches above the top of the excavation.

	Wendell did not have a valid certificate in first aid training
and was not aware if any of his employees did.


Items l-l 1-2 and 1-3

	Items 1-1, 1-2 and 1-3 concern whether someone from Wendell's
Construction was in the trench and the manner of installing
shoring, the type of shoring required and the proper location of
soil removed from the trench.

	Wendell and the two employees who were working on the trench
project stated the ditch had just been dug and no one from
Wendell's Construction had been in the ditch; that they were in
the process of shoring and had adequate shoring on site; and
that the soil was to moved back away from the top (see Exhibit
5, Item 1-2) after the shoring was in place.

	The safety compliance officer stated Wendell told him he had
been in the hole and that he was not familiar with the code.
Wendell replied that someone from the City, which was doing
trenching close by, had been in the trench but nobody from his
company. The safety officer did not see anyone in the trench.

	I have no reason to disbelieve Wendell and the two workers.
They were direct, forthright and didn't overstate. Their
testimony shows Wendell's Construction was in the process of
shoring and moving the soil when the inspection took place.

	The testimony from the three individuals that no one got in the
trench to install the shoring and the explanation of how it is
designed to be installed from the top, persuasively overcomes
evidence to the contrary. The weight of evidence does not show
violation of Item l-l.

	Additional shoring was going to take place. The testimony of
Wendell's lack of knowledge of the code is insufficient to
establish that when the shoring was completed the standard would
be violated. Wendell's testimony that the soil should not be
moved back until the shoring was in place was not rebutted. The
work had not progressed to the point where the soil would be
moved back away from the top of the trench. At the time of the
inspection, it was premature to conclude that the standards
listed in Items l-2 and l-3 were violated.

	I find the preponderance of evidence does not establish
violations of the standards charged in Items l-1, l-2 and l-3.

Item l-5

	The standard alleged to be violated in this item requires that
in the absence of an infirmary, clinic, hospital or physician
that is reasonably accessible in terms of time and distance,
which is available to treat injured workers. a person who has a
valid certificate in first aid training from the U. S. Bureau of
Mines, The American Red Cross, or equivalent training that can
be verified by documentary evidence, shall be available at the
work site to render first aid.

	Neither Wendell nor the two employees who were working with him
had a valid certificate in first aid training. Wendell testified
that a plumber he had working in the apartment adjacent to the
trench had a valid certificate. It is apparent from the
testimony, however, that at the time of the inspection Wendell
did not know the plumber had a certificate. In approaching the
excavation project he had not determined that someone properly
trained was available should an accident occur. Moreover, the
general testimony about the plumber is insufficient to establish
he had the specific type of certificate required by the standard.

	I find by a preponderance of evidence that the standard charged
in Item l-5 was violated. The probability of an accident was
low, but if one did occur the absence of a trained person could
result in serious physical harm. The proposed penalty is

Item 2-6

	Wendell acknowledged the ladder had bent and damaged rungs. The
charged standard was violated.


	IT IS HEREBY ORDERED that in Citation No. Vl58903591:

l) Items l-2 and l-3 are vacated.

2) Items l-4, l-5 and 2-6 are affirmed.

	NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court of Appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS

	Entered at Portland, Oregon on JULY 24 1991 

				BY Albert L. Menashe, Referee