BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH89302

	Plaintiff			)  Citation No: C62202989

ROSS BROS. CONSTRUCTION, Defendant 	)  OPINION AND ORDER



This case went to hearing April 29, 1991 in Salem, Oregon before
Referee Bruce D. Holtan. The plaintiff, Oregon Occupational
Safety and Health Division (OR OSHA), was represented by Norman
Kelley, assistant attorney general. The defendant, Ross Bros.
Construction, Inc. (Ross Bros.), was represented by Jim Gibson,
safety director. Sue Miller of Business Support Services
recorded the proceedings.



                         ISSUES



OR OSHA issued Citation No. C622602909 on October 16, 1989 as a
result of a September 22, 1989 inspection at the SE Lester Drive
interchange with I205 in Portland, Oregon. The Citation listed
Item Nos. 1-1, 1-2, and 2-3 through 2-8. (Citation Item Nos. 23
through 28 were not contested by the defendant and will be
affirmed.)



1. Item No. 1-1 is classified as "serious" and involves a
penalty of $1,000. Item No. 1-1 describes a violation of OAR
437-03-100(1) as follows:



"The sides of all trenches, which were 5 feet or more in depth,
were not adequately shored, sloped or otherwise supported:

(a) For the two employees working in the trench installing 18
inch pipe at the Southeast Lester Drive interchange with I-205,
Portland, Oregon."



Item No. 1-2 is classified as "serious" and involves a penalty
of $1,000. Item No. 1-2 describes a violation of OAR 437-03-001,
29 CFR 1926.652(h), as follows:



"Employee(s) were required to be in the trench(es) which were
more than 4 feet deep, and an adequate means of exit, such as a
ladder or steps, was not provided, or located so as to require
no more than 25 feet of lateral travel:



(a) For the two employees of the firm working in the trench at
the Southeast Lester Drive interchange with I-205, Portland,
Oregon."



                         FINDINGS OF FACT



In September 1989, Ross Bros. was engaged in construction
activities at the SE Lester Drive interchange with I205 in
Portland, Oregon. Ross Bros. had dug a trench in order to
install an 18 inch sewer line. On September 22, 1989, Charles
Crawford, a senior safety compliance officer (SCO) for OR OSHA,
and "Buddy" Kloster, an SCO, inspected the trench and observed
two workers towards the deep end of the trench.



Mr. Crawford has worked 11 years for OR OSHA (formerly the
Oregon Accident Prevention Division). He has a BA in general
science, experience in chemistry lab work, and has taken courses
in shoring. His knowledge of soils analysis is quite limited.
Mr. Crawford did not perform or direct that specific soils
analysis tests be taken either at the site of the trench or
elsewhere. Mr. Crawford did not consult with a civil engineer
working for the state, although he had access to one, at any
time.



Mr. Kloster had completed only one eight hour class involving
trenching. The inspection on September 22 was his first
inspection of a trench site. Mr. Kloster's knowledge of
trenching safety was minimal.



Terry Guisinger, the project manager for Ross Bros., was a
registered civil engineer in both Oregon and Washington. Mr.
Guisinger has many years experience in construction positions,
such as laborer, equipment operator, estimator, structural
engineer, and project supervisor. He has an excellent
educational and working background in soils analysis, structural
shoring and sloping, and excavation safety. He had studied soil
density charts made by the Oregon Department of Transportation
regarding the "load bearing capacity" of the fill dirt used in
the trenching operation. (See Ex. 7.) Mr. Guisinger showed Mr.
Crawford and Mr. Kloster his credentials as a registered
engineer on site during their inspection.



The trench under inspection was 13 feet 8 inches deep at its
deepest end, approximately 4 feet wide at the bottom of the deep
end, and approximately 20 feet wide at the top of the deep end.
The trench gradually sloped downward over its length of over 50
feet. Two employees were installing sewer pipe near the deep end
of the trench. There was neither a ladder nor steps to provide a
means of exit from the trench within 25 feet of where the men
were working. The trench was well over 4 feet deep in its last
25 to 50 feet of length. Climbing up the sides of the trench was
not possible over the deepest 30 to 50 feet of its length. In
order to exit the trench, the employees were required to travel
30 to 50 feet in a lateral direction up and out of the trench.



The trench was sloped at an average of between one-half and
three-quarters to one throughout the last 50 feet of its length.
The sides of the trench were constructed of fill dirt compacted
to 92 percent. The fill dirt was compacted, laid, keyed, and
locked together in layers of one foot depth. The fill dirt was a
mixture of sand and clay without cracks or excess moisture. This
fill dirt comprising the sides of the trench formed a very hard,
dense mass.



                          ULTIMATE FACTS



No acceptable method of exiting the trench was available to
employees installing the sewer pipe within 30 to 50 feet of
where they were working on September 22, 1989. A cave-in could
have caused serious injury or death.



The trench was constructed of stable soil materials and sloped
in such a manner as to provide a safe working environment for
Ross Bros. employees.



                           OPINION



OR OSHA has the burden of proving by a preponderance of evidence
that the alleged violations occurred. If a violation occurred,
the probability and severity of the violation must be
established so that a correct penalty can be assessed. See OAR
437-01-135, 140, and 145.



Addressing Item No. 1-1, I conclude OR OSHA has failed to carry
its burden of proving a violation. OAR 437-03-100(1) provides:



"The sides of all trenches, which are 5 feet or more in depth,
shall be adequately shored, sloped, or otherwise supported,
unless the trench is cut in solid rock or hard shale."



Over a 25 foot length of the trench was 5 feet to 13 feet, 8
inches in depth. The trench was not cut in solid rock or hard
shale. No shoring or other support, for example, a steel trench
box, was in place.



Nevertheless, I conclude the sloping of the trench provided
adequate safety in compliance with the administrative  rule for
three main reasons: First, Mr. Guisinger's opinion that the
trench was safe is persuasive; the opinions of Mr. Crawford and
Mr. Kloster lacked probative weight. Mr. Guisinger is a civil
engineer with excellent education, training, and experience. He
explained convincingly why the trench was safe. Neither the
professional credentials, training, education, nor experience of
the safety compliance officers compares with that of Mr.
Guisinger.



(This is not a finding that an employee with credentials
superior to those of OR OSHA's safety compliance officers will
prevail in cases other than this one. OR OSHA had access to a
state civil engineer, and/or a soils testing laboratory. Either
or both of these resources could have been used, but were not.)



Second, the sides of the trench were stable at an average slope
of one-half or three-quarters to one. The soil was
well-compacted, free from cracks or excess moisture, and was
"locked" into place in one foot layers. Its "load bearing
capacity" was high, as measured by the Oregon Department of
Transportation.



Third,  1926.652(g)(2) Table P1 on page 255 of Division 3 of the
Oregon Code does not set forth absolute requirements for the
sloping of sides of trenches. Instead, by its own terms, it
provides an "approximate angle of repose for sloping of sides of
excavations." It is a "guide in sloping of banks." See 
1926.652(a).



Table Pl may be helpful in determining code compliance, but the
actual code governing sloping in this case, and the code listed
in the Citation, is OAR 437-03-100(1). Under that code, the
trench was "adequately sloped." This finding is based on the
facts present at the scene and the thorough analysis provided by
Mr. Guisinger.



Item No. 1-1 will be deleted from the Citation. The
determinations of "probability," "severity," and the correct
"penalty" are rendered moot by the conclusion that no violation
occurred.



Addressing Item No. 1-2, I conclude OR OSHA has carried its
burden of proving a low probability, serious violation of OAR
437-03-011, warranting a $1,000 penalty. OAR 437-03-OOl(h)
provides:



"When employees are required to be in trenches 4 feet deep or
more, an adequate means of exit, such as a ladder or steps,
shall be provided and located so as to require no more than 25
feet of lateral travel."



Ross Bros. does not contest the fact that the employees were
ordered to work in a trench more than 4 feet deep. Ross Bros.
does not contest that neither a ladder nor steps were provided
for exit. The employees' only exit from the deeper area of the
trench was to walk or run 30 to 50 feet in a lateral direction,
up and out of the trench. Therefore, a code violation occurred.



Ross Bros. does not contest the "probability" rating given the
violation. The probability rating assigned by OR OSHA was "low,"
which is the least probability listed in OAR 437-01-135.



Ross Bros. does contest the evaluation of the "severity" of the
violation. The severity rating was designated "serious physical
harm," meaning a violation could cause a serious injury. OAR
437-01-040(1). Ross Bros. argues that the ladder or steps
mandated by the code are primarily a convenience or efficiency
measure, rather than a safety requirement. The code provision,
itself, does not address this argument directly.



I reject Ross Bros.'s position for three reasons: First, the
purpose of the Oregon Safe Employment Act is ". . . to assure,
as far as possible, safe and healthful working conditions for
every employee in Oregon, to preserve our human resources and to
reduce the substantial burden which is created by occupational
injury and disease." OAR 437-01-010(2). The Act is a safety act,
not a convenience or efficiency measure.



Second, "The Act . . . shall be liberally construed to
accomplish the preventative purposes expressed in the Act." OAR
437-01-025. The preventative purpose of the Act is best
accomplished by a finding that the exit rule was designed to
promote safety.



Third, a cave-in of this particular trench could certainly cause
serious injury or death due to thousands of pounds of dirt that
might crush or smother a worker. I offer no opinion as to
whether running out of the trench, as argued by Ross Bros.,
versus climbing up a ladder or steps, as argued by OR OSHA, is
the quickest way out of the trench. This question is not before
me. A literal reading of the code indicates that this code
provision was violated.



When the penalty table is entered using low probability and
serious physical harm, a penalty of $1,000 is fixed.



Citation Item No. 1-2 will be affirmed.



                             ORDER



NOW, THEREFORE, IT IS HEREBY ORDERED as follows:



1. Item No. 1-1 of Citation No. C622602989 is deleted from the
Citation. No violation occurred.



2. Item No. 1-2 of Citation No. C622602989 is affirmed. Ross
Bros. is ordered to pay a penalty of $1,000.



3. Item Nos. 2-3, 2-4, 2-5, 2-6, 2-7, and 2-8 of Citation No.
C622602989 are affirmed. Ross Bros. is ordered to pay the
penalties listed for those item numbers.



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 183. .
482.



	Entered at Salem, Oregon APRIL 10 l992 



				WORKERS' COMPENSATION

				By Bruce D. Holtan Referee