THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                              

Health Division			)  Docket No: SH93019

	Plaintiff		)

				)  CITATION NO.: D7110-047-92

		vs.		)



	Pursuant to notice, a hearing was held and closed on September
2, 1993 in Portland, Oregon before David D. Lipton, referee. 
Plaintiff, the Oregon Occupational Safety and Health Division,
was present and represented by Norman Kelley.  The defendant,
Malar Construction, Inc., did not appear.  The proceedings were
recorded by Harris Reporting.


	The employer requested a hearing protesting the September 25,
1992 Citation and Notice of Penalty, specifically Item Nos. 1-1,
1-2, 1-3, 1-4 and 2-5.  

                     FINDINGS OF FACT

	On June 22, 1992, compliance officers Duhon and Powell observed
an excavation in process at Southwest Taylors Ferry Road and
10th Street in Portland, Oregon.  They stopped to inspect the
excavation.  They observed workers inside the excavation.  They
subsequently noted that there was only one hydraulic shore
installed in the trench area, that there was no convenient means
for entering or exiting the excavation and that the excavation
around the manhole was unprotected.  After meeting the foreman,
the officers were informed that they would be required to obtain
a warrant in order to conduct an inspection. 

	The officers obtained a warrant and returned to the excavation
on the afternoon of June 22.  They met Jim Page who had not been
present when they arrived that morning.  The conditions at the
excavation remained the same.  They were informed by Mr. Page
that he could not answer any of their questions.  The officers
posted a "red tag warning" and left the construction site.  

	The officers and company personnel returned to the excavation
site on June 23.  After some discussion, the officers left the

	The officers returned to the excavation site on June 24, 1992. 
They again met with employees of the company.  At that time, it
was noted that the employer's injury log was not up to date.  It
was also determined that the fuel tank of a vehicle on the site
was half-full with diesel fuel but was not properly identified. 
After discussing the violations with the company's
representatives, the inspection was closed and the citation

	A competent person was not present on the job site to observe
the work in progress on the morning of June 22, 1992. The person
identified to be the "competent person" did not demonstrate that
he was in fact a "competent person."  The excavation site itself
did not have adequate protection to protect those employees
working within the excavation site from cave-ins.  There was no
safe means of entry or exit to the excavation, which was
approximately 12 feet deep and 36 feet long.  The fuel tank of
one of the vehicles in use at the work site was half-full with
diesel fuel and was not identified as such.  The employer did
not maintain a log of recordable on-the-job injuries and
illnesses at the work site.  

                  OPINION AND CONCLUSION

	The Oregon Occupational Safety and Health Division has the
burden of proving the allegations of its September 25, 1992
citation.  I find that the hazards identified during the
inspections of June 22, 23 and 24, 1992, violate Oregon's Safe
Employment Act as alleged in the citation and that the citation
and the penalties contained therein should be affirmed.


	IT IS HEREBY ORDERED that the September 25, 1992 citation
together with penalties in the amount of $4,250 are affirmed.

	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 SEP 30, 1993 


				David D. Lipton