THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH92060

	Plaintiff,			)

					)  CITATION NO. P6808-042-91

		v.			)



	Pursuant to notice, a hearing was held and closed on July 1,
1993 in Salem, Oregon before David D. Lipton,referee.  The
Oregon Occupational Safety and Health Division (OR-OSHA) was
present and represented by Armonica Gilford.  The defendant,
Marv's Utility Specialists, was present and represented by David
Hittle.  The proceedings were recorded by Diane Bockmeier of
Business Support Services.  

	Exhibits 1 through 10 were admitted.  


	At the time of hearing, plaintiff, OR-OSHA, withdrew citation
items 1-1 and 2-7.  Furthermore, at the time of hearing,
defendant, Marv's Utility Specialists, admitted citation items
1-2, 1-4, 1-5 and 1-6, together with the penalties identified in
the citation for each violation.  Therefore, the remaining
issues before the referee are citation items 1-3 and 2-8.  

                        FINDINGS OF FACT

	On September 17, 1991, William Powell, OR-OSHA Enforcement
Officer, conducted an inspection of a pipe installation being
performed by employees of Marv's Utility Specialists at an
excavation at the intersection of Portland Avenue and Clackamas
Boulevard in Gladstone, Oregon.  

	In connection with this investigation, Officer Powell did not
enter the trench.  Based on his inspection, he cited the
defendant for a shoring system in which more than 2 feet of
unprotected soil extended below the bottom of the shoring system.

	Based on his measurements, he concluded that the two hydraulic
cylinders supporting the opposing plywood-backed vertical rails
were insufficient for what he identified as a Type C soil.  

Also based upon his inspection, Officer Powell cited the
defendant for using an incorrect type of support system for a
Type C soil, using an insufficient number of hydraulic cylinders
to support the plywood-backed vertical rails, and because the
shoring did not protect workers along the entire length of what
Officer Powell identified as the work area.  

	The pipe being installed was a 36 inch pipe sitting on a gravel
bed.  The vertical rails were 8 feet in length.  

	Marvin Ferris has owned Marv's Utility Specialists for 26
years.  He performed the soil classification and chose the
shoring system.  

	Officer Powell identified citation item 2-8 as a repeat
violation of item 1-3 on a citation issued June 10, 1991. 
However, by settlement approved May 18, 1992, item 1-3 was
withdrawn by OR-OSHA.  

	At the defendant's request, a soil inspection was performed on
September 26, 1991.  Charles R. Lane, Professional Engineer,
identified the soil on visual and manual inspection as a Type B

                  OPINION AND CONCLUSION

	Citation item 1-3 is based upon OAR 437-03-001 [29 CFR
1926.652(e)(2)(i)].  That section states:

"Excavation of material to a level no greater than 2 feet (.61m) below the bottom of the members of a support system shall be permitted, but only if the system is designed to resist the forces calculated for the full depth of the trench, and there are no indications while the trench is open of a possible loss of soil from behind or below the bottom of the support system."
I conclude that upon visual inspection of the photographs, the area of exposed soil below the bottom of the support system is 3 feet and not 4 feet. However, there being no evidence of possible loss of soil from beneath or below the bottom of the support system, I can only conclude that the excavation in excess of 2 feet is not in violation of the rule. Citation item 2-8 cites OAR 437-03-001 [29 CFR 1926.652 (a)(1)] which states:
"Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraphs (b) or (c) of this section except when: (i) "Excavations are made entirely in stable rock; or (ii) "Excavations are less than 5 feet (1.52m) in depth examination of the ground by a competent person provides no indication of a potential cave-in."
If citation item 1-3 is not a violation, citation item 2-8 is not a violation either because the number of cylinders used is adequate given an 8 foot vertical spacing. OAR 437-03-001 [29 CFR 1926.652 (a)(1) Appendix D, Table D-1.2. I therefore conclude that the support system used was appropriate unless the soil is a Type C. However, I conclude that the excavation was in a Type B soil based upon the testimony of Mr. Ferris, the opinion of the physical engineer and because the inspector based his rating upon the weakest layer which, according to the inspector, was the bottom 6 feet of the trench, but the inspector did not enter the trench to perform a close visual or manual test. Therefore, I conclude that the number of horizontal cylinders used was adequate for the distances involved both horizontal and vertical. Furthermore, to the extent areas of the trench outside of the work area were not supported, this contention is covered by other items to which the employer has admitted the violation. ORDER IT IS HEREBY ORDERED that in the citation issued October 15, 1991, items 1-1 and 2-7 are withdrawn, the defendant admits items 1-2 (for a penalty of $750), item 1-4 (for a penalty of $105), item 1-5 (for a penalty of $75), and item 1-6 (for a penalty of $75). I further find that items 1-3 and 2-8 have not been proven and shall be dismissed. 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, OR July 13, 1993 WORKERS' COMPENSATION BOARD David D. Lipton Referee