BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  DOCKET NO. SH92085

	Plaintiff,			)  CITATION NO. P680802091

					)

DITCH MASTERS, Defendant.		)  OPINION AND ORDER



Pursuant to notice, this matter was heard and closed on
Thursday, August 27, 1992, before Referee William H. Schultz.
Defendant appeared personally through Oskar Hess, owner of Ditch
Masters. The Plaintiff was represented by attorney Armonica M.
Gilford, Assistant Attorney General. Exhibits 1 through 17 were
offered and received into evidence and the proceedings recorded
by Harris Reporting Services.



                         ISSUES



The Department of Justice withdraws Item No. 2-5 from the
Citation. The remaining issues are the employer's challenge to
Items 1-1, 1-2, 1-3, 1-4 and 2-6 of the August 29, 1991 Citation
and Notice of Penalty (Ex. 1).



                    FINDINGS OF FACT



On October 2, 1991 defendant employer Ditch Masters was engaged
in hooking up a sewer from a residential property at 12301
Morris Street in Portland to the main city sewer line (Exs. 6,
11). Safety Compliance Officer William Vincent Powell conducted
an inspection of the work site on that date which resulted in
the issuance of a citation which the employer has appealed.



At the time Officer Powell arrived, at approximately 11:00 a.m.,
two Ditch Master employees were on the site working on a sewer
trench which was approximately 35 feet long and 10 to 12 feet
deep. On of the employees, David Olson, was operating a backhoe,
trying to find the city sewer line. The other employee, Aurelio
Martinez, was standing outside of the trench, assisting Mr.
Olson. Neither Mr. Olson nor Mr. Martinez had been in the trench
that day.



The soil in the trench had been previously disturbed and was
primarily loose and granular in nature except for the top couple
of feet which had been compacted.



At the time of the inspection, Mr. Hess, the owner of the
company, was not present. Neither of the other employees were
"competent" in terms of having sufficient expertise to determine
soil type and necessary shoring for the trench. Mr. Hess was
called to the scene by Mr. Olson and arrived within 10 to 15
minutes. (Mr. Hess is able to stay in contact with all of this
employees by way of a beeper and telephone system
installed in his trucks. When a phone call is made to a
particular job site, the system activates the vehicle's horn
thus notifying Mr. Hess or his workers of the call.)



As the competent person in charge of the job site, Mr. Hess had
inspected the trench the day before and advised his employees
how to shore the trench. On August 1, when Ditch Master
employees were actually working in the trench, the shoring was
placed approximately five feet apart and moved along the trench
as the employees laid the sections of pipe and made their
connections (Ex. 11-1). By the end of the work day on August 1,
the trench had been dug from the house to the street and the
pipe laid. However, the workers had still not located the city
sewer line which they were attempting to do on August 2, when
the inspection was held.



At the end of the work day on August 1, the Ditch Master
employees moved the shoring, without getting into the trench,
placing one piece near a gas meter next to the residence to
prevent it from being disturbed and spreading the other two
shoring pieces 10 to 12 feet apart (Ex. 6-1 through 6-6).



The shoring system used by Ditch Masters on the trench in
question was inadequate for the type of soil in the trench and
the depth of the trench. The trench should have been shored with
plywood to prevent cave-ins. The depth of the trench exceeded
the maximum allowable depth of the shoring units used by Ditch
Masters. Mr. Hess, however, had adjudged the soil to be "Type B"
and, therefore, did not feel that it was necessary to use
plywood.



As the work progressed, the material that was excavated from the
trench was placed onto a conveyor belt by the backhoe operator
and hauled back from the trench toward the street (Ex. 11-1,
11-2). On August 2, 1992 when Office Powell inspected the site,
a lot of the spoils from the trench had been placed along the
edge where they could easily roll back into the trench (Ex. 6-1,
6-2, 6-3, 6-5). Part of the trench, adjacent to the house, had
caved in (Ex. 6-5).



The three vertical shores used in the trench had 7 foot rails
and the spaces between them were 11 and 15 feet along the length
of the 35 foot long trench. Parts of the trench had been
excavated 1 to 3 feet deeper than allowed with the shoring that
was being used.



A 10 foot aluminum ladder was on the site for entering and
exiting the trench which was not long enough for workers to
safely enter and exit the deepest parts of the trench (Ex. 3-4).



                   ULTIMATE FINDINGS OF FACT



1. A competent person had not inspected the excavations,
adjacent areas and protective systems used at the job site on
August 2, 1992;



2. The trench was excavated to a depth greater than two feet
below the bottom of the vertical shores;



3. Protection of the work site was not provided by placing and
keeping the excavated materials at least two feet from the edge
of the excavation or by using retaining devices to prevent the
materials or equipment from falling or rolling into the
excavation;



4. An inadequate ladder was provided at the job site for safe
inqress and eqress of the trench;



5. Employees working in the trench were not protected from
cave-ins by an adequate protection system.



                     CONCLUSIONS AND OPINIONS



Based upon my observations of the demeanor of all of the
witnesses at hearing, I conclude that they were entirely
credible and straightforward in their testimony. Mr. Powell, Mr.
Hess, Mr. Hernandez and Mr. Martinez all testified in a direct,
spontaneous and straightforward manner. It bears mention, in
this regard, that the plaintiff makes no allegation nor does the
evidence support any allegation that Mr. Hess at any time
recklessly, willfully or intentionally placed his workers in a
position of peril. The job in question was being done under Mr.
Hess' direction and to the best of his knowledge based upon his
evaluation and analysis of what needed to be done. However, the
job demanded better safety precautions than were provided.



Item 1-1 of the plaintiff's citation alleges a violation of OAR
437-03-001 which requires that a "competent person" inspect the
job site prior to each day's work to insure that the work would
be performed in a safe manner. Although Mr. Hess instructed his
employees on August 1, 1992 how to install the shoring, he was
not present to inspect the trench on August 2 before the work
began. If he had been, he would have noticed that the trench had
partially caved in, that spoils were being piled to close to the
edge of the trench and that the depth of the trench exceeded the
safe depth of the shoring that was being used. Although no
workers had yet been in the trench on August 2, 1992 and
although there is clear evidence from the photographs taken by
Mr. Hess the day before the inspection that the spacing of the
shoring was more than adequate (5 feet apart), plywood should
have been used, given the looseness of the soil (type C), the
depth of the trench and the fact that there had been a cave-in
already. I agree with the defendant's characterization of this
violation as serious.



Item 1-2 of the citation alleges a violation of OAR
437-03-001 which prohibits excavation of material to a level
greater than 2 feet below the bottom of the shores. The evidence
in this case was that the trench was 10 to 12 feet depth whereas
the shoring that was used only had 7 foot rails. Therefore, that
shoring was only adequate and safe for a depth of 9 feet.
Setting aside the issue of the inadequacy of the shoring system
itself, the vertical rails that were being used were not long
enough for the depth of the trench. OROSHA concluded that this
too was a serious violation for the obvious reason that the
inadequate shoring could lead to a cave-in and serious bodily
injury or death. I must, therefore, affirm the penalty in this
violation as well.



Item 1-3 is a violation of OAR 437-03-001 which prohibits the
placing and keeping of excavated or other materials or equipment
within 2 feet of the edge of the excavation unless a retaining
device is used to keep material and equipment from falling in.
The photographs taken by defendant show that the excavated
material was initially pulled back and away from the trench but
as soon as the trench extended into a more open area, between
the house and the road, the spoils were then piled too close to
the edge. Photographs clearly depict a large number of large,
loose rocks which had fallen back into the trench, any one of
which could have caused serious bodily harm to a worker.
Therefore, the plaintiff's categorization of this violation as
serious must also be affirmed.



Item 1-4 is a violation of OAR 437-03-001 which requires
adequate stairways, ladders, ramps or other safe means of egress
from the trenches. The ladder on this site was only 10 feet long
whereas the trench was up to 12 feet deep. The ladder should
have been long enough to extend at least 2 feet above the edge
of the trench to allow safe access. The danger posed by having a
ladder that is too short is that a worker might slip or trip
getting in and out. Officer Powell categorized the risk posed by
this safety violation in the low/serious range and accessed a
$105.00 penalty which is appropriate.



The most significant violation is found in Item 2-6 of the
citation which alleges a repeat violation of OAR 436-03-001.



Defendant was previously cited and did not timely appeal the
citation (see Exs. 55, 58, 510). OAR 437-03-001 requires that
each employee in an excavation be protected from cave-ins by an
adequate protection system. The failure to comply with this
regulation has obvious consequences including serious injury or
death. The workers working in and installing the trench at the
job site in question were not provided adequate protection from
cave-ins. The three 7 foot long vertical shoring devices are not
adequate given the looseness of the soil and the depth of the
trench. Vertical hydraulic shores cannot be used in Type C soil.
Additional shoring should have been in place. The shoring
that was used created a medium level probability of
causing serious physical harm or death justifying the
$3,000.00 penalty.



                          ORDER



IT IS HEREBY ORDERED that:



1. Citation No. P680802091 is affirmed in its entirety with the
exception of the deletion of Item 25. The total penalty imposed
by this citation is, therefore, $5,155.00.



NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, not later than sixty (60) days from the mailing date of
this Order, request a review by the Court of Appeals, State
Court Administrator, Records Section, 1163 State Street, Salem,
OR 97310. Any such request for review shall be mailed to the
Court of Appeals at the above address with copies of such
request mailed to all other parties to this proceeding. The
procedure for such judicial review is prescribed by ORS 183.480
and ORS 183.482. Failure to mail such a request for review
within sixty (60) days of the mailing date of this Order will
result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER.



	ENTERED at Portland, Oregon, SEP 2 4 1992 



				WORKERS ' Compensation Board

				By WILLIAM H. SCHULTZ