THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91310 

	Plaintiff,			)  CITATION NO. J851905991

		 v.			)


Pursuant to notice, this matter was heard and closed July 2,
1992, before Referee Gilah Tenenbaum. Defendant appeared
personally and was represented by attorney Roger Luedtke. The
Plaintiff was represented by attorney J. Kevin Shuba. Exhibits
AC, E-H, 1-5, and 12-14 were admitted into evidence. The
proceedings were recorded by Harris Reporting Services.


The Department of Justice withdraws item 1-2 from the citation;
employer withdraws its challenge to items 1-3 and 2-4. The
remaining issue is employer's challenge to item 1-1 of the
August 15, 1991 Citation and Notice of Penalty.


In its underground utility work, employer digs trenches in which
its employees must work. It is required to employ shoring or
sloping systems to protect the integrity of the excavations from
cave-ins for the safety of its workers.

At the time and place alleged, on July 10, 1991, employer had an
excavation site underway. The option the employer chose for a
protective system was shoring, the design of which was required
to be approved by a registered professional engineer (RPE). OAR
ch. 437, subd. P, sec. 1926.652.

The design approved by the employer's RPE Jack Mills specified
that it was to be used only in excavations not deeper than eight
feet. It was designed to be made with 4 x 8' sheets of
structural grade plywood, plus horizontal 2 x 12' whalers. The
approved design specifically required that assistance with
special shoring design be obtained for excavations greater that
8 feet deep, and that no substitutions of material or design
alterations be made without prior RPE approval. This design was
for type C soil, the least stable. The soil in question may have
been type B, but no soil tests were performed ahead of time.

This excavation was deeper than 8', approximately nine to ten
feet. Two by twelve's were placed vertically in a place where
the design called for panels. One side panel of the excavation
had only one whaler, where the design called for two levels of
walers. The approved design was altered on site without prior
approval of a RPE. No one on site had tabulated data to support
the safety of these modifications at the time they were made.
Until the employer's RPE, James Erspamer, came personally to the
site and performed certain calculations based on altered depth
and materials, the safety of the shoring could not be guaranteed.

The shoring system in use at the time of the OSHA inspection was
neither designed in accordance with then existing tabulated data
nor approved prior to use by a registered professional engineer .

The violation was more than de minimis.


To establish the validity of the citation, the Department must
prove that the employer failed to provide each employee in the
excavation protection from cave-ins by an adequate protective
system. The employer did not choose to implement a sloping and
benching system, leaving the option of design by a registered
professional engineer, or reliance upon tabulated data. The data
must be available, or the design approved, before the system is
implemented. I conclude that the employer did not comply with
these requirements.

Much evidence was presented by the employer to demonstrate the
safety in fact of the shoring system as it was when the OSHA
inspector arrived, and of the system as modified after her
arrival. However, the critical inquiry is whether the shoring
system was known to be safe when installed. The fact that it may
have been determined in hindsight to have been safe does not
satisfy the preventative purpose or language of the statute and

Employer's witnesses acknowledge that the modifications made to
the approved design were not and could not have been known to be
safe until further on site calculations were done after the
inspector's arrival. The fact that Mr. Mills thought that the
original design notes would allow use of the shoring system for
depths up to ten feet is immaterial, even if correct. The
shoring design that was ultimately approved did not so provide,
and no one other than a registered professional engineer was
qualified to make that judgment or to approve any modifications.

There is no doubt that the shoring system in use did not match
the approved drawing and instructions, and this failure was a
serious violation. To conclude otherwise would gut the
preventative purpose of the regulations.

Employer argues, alternatively, that any violation was de
minimis. I do not agree. In Phoenix Roofing Inc. v. Dole, 874 F.
2d 1027 (5th Cir., 1989), cited by employer as authority for
this proposition, the employer's safety precaution was not in
technical compliance with the regulations, but in fact provided
protection which was equal to or greater than that imposed by
the regulation. There is no proof that such is the case here,
nor do I conclude it to be.

Finally, I concur with the compliance officer's calculations of
the penalty, based on her assessments of severity and
probability and mitigating factors.

I conclude the citation should be upheld.


Item 1-2 of the citation is withdrawn. The remainder of the
citation, items 1-1, 1-3 and 2-4 are upheld. The requested
penalties are ordered.

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 July 23, 1992 


				By Gilah  TENENBAUM