BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH91174

 		PLAINTIFF		)  CITATION NO H178807791

		VS			) 

F.E. WARD INC				)

		DEFENDANT		)  OPINION AND ORDER



	Pursuant to notice, this matter was heard and closed on
November 1, 1991, in Portland, Oregon, before Albert W. Hoguet,
Referee.  The Oregon Occupational Safety & Health Division
(OSHA) of the Department of Insurance and Finance was
represented by J Kevin Shuba, Assistant Attorney General.  F. E.
Ward Inc.,(Ward) was represented by Ted Aadland, Vice President.
 The proceedings were recorded by Jan Nelson of Harris
Reporting.  Exhibits 1 through 9 were admitted into evidence.



                             ISSUES



	Ward appeals OSHA's Citation and Notice of Penalty No.
H178807791.



                         FINDINGS OF FACT



	As of April 2, and 3, 1991, Ward was in the process of
repairing the John Day River Bridge on I-84 near Rufus, Oregon. 
An OSHA senior safety compliance officer inspected the project
on both days.  As a result of this inspection Citation and
Notice of Penalty No H178807791 issued from which Ward appealed.



	The OSHA senior safety compliance officer and Ward's vice
president testified at hearing regarding the facts surrounding
Ward's bridge repair project and OSHA's inspection thereof on
April 2 and 3, 1991. There is really no significant dispute
regarding the senior safety compliance officer and Ward's vice
president as my findings of fact in this case.  They are
recorded of record and need not be repeated here.



                     CONCLUSIONS AND OPINION



	OSHA's Citation and Notice of Penalty No H178807791 is based on
a claimed violation of ORS 654.010 and OAR 437-56-270(6).  Ward
has denied that it was in violation of either law.  OSHA has the
burden of proving these denied violations by a preponderance of
the evidence.  OAR 438-85-820.



	Both OSHA and Ward presented strong cases at hearing.  The
safety program implemented by Ward and the safety program
proposed by OSHA, I conclude, were equally reasonable under the
circumstances as they existed at the time of OSHA's inspection. 
Since OSHA has the burden of proof, I must further conclude,
based on the entire record and for the reasons stated on record
at hearing that OSHA has failed to meet its burden of proof.  
Since OSHA has failed to prove the violations as alleged, I have
no alternative but to set aside the Citation and Notice of
Penalty.  If OSHA had met its burden of proof I would have
approved the proposed penalty as properly assessed and
reasonable.  The validity and reasonableness of the proposed
penalty was not questioned by Ward at hearing.



                           ORDER



	IT IS HEREBY ORDERED that Citation and Notice of Penalty No.
H178807791 is hereby set aside.



	No further relief is granted.



	NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order.  Proceedings for review are to be instituted by
filing a petition to the State Court Administrator, Record
Section, 1163 State Street, 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 183.482.



	Entered at Portland, Oregon on NOV. 21, 1991 



				WORKERS COMPENSATION BOARD

				ALBERT W. HOGUET, REFEREE