THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &

 Health Division			)  Docket No.SH-93192

	Plaintiff			)

		vs.			)  Citation No.8735-004-93


	Defendant			)  OPINION AND ORDER

	This proceeding under the Oregon Safe Employment Act (OSEA)
came to hearing on July 19, l994, in Bend, Oregon before Referee
Claudette Mirassou McWilliams.  The Oregon Occupational Safety
and Health Division (OR-OSHA) were represented by Assistant
Attorney General Norman F. Kelley and Certified Law Student,
Rick Lundblade.  Also present on behalf of OR-OSHA was Brian
Annis.  The Defendant, Pieratt Brothers Inc., was represented by
John A. Berge.  No affected employees appeared as parties.  The
court reporter was Pamela Rains Sylvester.


	At the time of hearing, Exhibits 1 through 12 were received
into evidence without objection.


	Defendant filed a timely Request for Hearing appealing Citation
No. A8735-004-93 issued on April 13, l993 (Ex. 1).  Its appeal
raises the following issues:

	1.  Whether Defendant committed the following alleged
violations of the OSEA:

	a.  Item No. 2-3:  Employees were not protected from cave-ins
in the six-foot deep trench, working on the sewer line on the
west side of 27th Street from the corner of Reed Market Road
North on March 18, l993, in violation of OAR 437-03-003; 29 CFR

	b.  Item No. 2-4:  Employees working in the trench on 27th
Street from the corner of Reed Market Road North, were exposed
to excavation hazards because no competent person was on site in
violations of OAR 437-03-001; 29 CFR 1926.651(k)(1).

	2.  Whether the penalties assessed in connection with each
alleged violation are reasonable and in compliance with the law.

                         FINDINGS OF FACT

	On March 18th and 19th of l993, the employer was engaged in the
installation of a sewer line at a site located on the west side
of 27th Street from the corner of Reed Market Road North in
Bend, Oregon.  The area of Central Oregon where the work site
was situated has volcanically-deposited "lava" rock which is
particularly porous.  It readily fractures and fissures.

	On the morning of March 18, l993, the owner of Pieratt
Brothers, Inc., Tom Pieratt, visited the work site.  Pieratt has
many years experience performing excavation work in Central
Oregon.  In the past, however, the employer has been
successfully cited for past violations of CFR 1926.652(a)(1) and
1926.651(k)(1) in l991 and l992.  

	Pieratt entered an open trench at that location after which he
inserted a screwdriver into the trench wall to more closely
examine the soil therein.  The remainder of the inspection
consisted of visual observation.  Based upon examination of the
soil extracted by the screwdriver and what he saw at the site,
Pieratt concluded that shoring was not necessary for the trench
to comply with OSHA regulations because the excavation was being
carried out in stable rock. 

	The depth of the trench exceeded six feet in places.  The
trench was situated less than ten feet from a roadway which was
in use subjecting the trench to the destabilizing results of
vibration.  Four-to-five feet from the trench, between it and
the roadway was a gas line which had been previously installed

	Inside the trench were rocks and deposits of sandy, loamy,
coarse soil which had sloughed from the sides of the trench
after digging by a rock saw.  In places, the trench sloped
inward, having been undercut.  The walls of the trench contained
layers of asphalt from prior road construction, pumice, roots
and large rocks.  The digging was not carried out in stable

	In close proximity to the trench was a spoils pile containing
the rock pulverized by the rock saw during the extraction

	On March 18, l993, OSHA safety officer, Brian Annis, inspected
the work site and talked with employees of the Defendant.  Tom
Pieratt was not at the job site when Annis arrived.

	Based upon his inspection, he issued Citation No. A735-004-93
alleging violations of 29 CFR 1926.652(a)(1) and 29 CFR
1926.651(k)(l).  The employer was also cited for violations
involving a worker's failure to wear the appropriate apparel
while flagging, the height of a ladder in the open trench, and
the proximity of the spoils pile to the open trench.  Because
the employer does not contest those violations they are not at
issue here.

	Annis returned to the site later in the day on March 18th with
his supervisor, Dan Barnes, who concurred in the issuance of the
citation.  The employer had not corrected previously-cited
violations by the time the safety officer returned to the job
site several hours later.

	Some time after the day the citation was issued, Charles A.
Rowles, P.E. of Sun Country Engineering & Surveying, Inc.,
visited the work site at the employer's request.  He was unable
to view that portion of the trench inspected by Annis because it
had been filled in by that time.

                   FINDINGS OF ULTIMATE FACT

	Employees were not protected from cave-ins in a six-foot trench
while working on a sewer line on the west side of 27th Street
from the corner of Reed Market Road North on March 18, l993.

	The probability of serious injury or death resulting from
violation of CFR 1926.652(a)(1) on March 18, l993 was low.  The
employer had violated this provision of the OSEA in l991 and

	A competent person was not on the excavation site at 27th
Street from the corner of Reed Market Road North on March 18,

	The probability of serious injury or death resulting from
violation of CFR 1926.651(k)(1) on March 18, l993, was low. 
This provision of the OSEA had been violated by the employer on
two prior occasions in 1991 and 1992.


	1.  Violations

	a.  Item No. 2-3

	CFR 1926.652(a)(1) provides that:

	"(1)  Each employee in an excavation shall be protected from
cave-ins by adequate protective system designed in accordance
with Paragraph (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 and
examination of the ground by a competent person provides no
indications of a potential cave-in."  

The definition of stable rock is set forth in CFR 1926.650(b)
which provides, in pertinent part, that:

"Stable rock means natural solid mineral material that can be excavated with vertical sides and will remain intact while exposed. Unstable rock is considered to be stable when the rock material on the side or sides of the excavation is secured against caving-inor movement by rock bolts or by another protective system that has been designedby a registered professional engineer."
That same definition is used for purposes of soil classification which analyzes the stability of rock based on the properties and performance characteristics of the deposits and the environmental conditions of exposure. Those factors include consideration of whether: (1) the soil is fissured, (2) the soil is subject to vibration from heavy traffic, pile driving, or similar effects; (3) the soil has been previously disturbed; (4) the soil is sloped; (5) the soil is of a granular cohesionless nature such as silt, silt loam, or sandy loam; (6) the soil is granular in nature such as gravel, sand or loamy sand. CFR 1926.650-.652 Appendix A. The decisive question here is whether the soil in the trench which was inspected by OSHA Compliance Officer Annis on March 18, l993, was stable rock. Evidence pertinent to that issue comes from the safety officer, the owner of the cited employer, and an engineer retained by the owner (Ex. 12). The documentary evidence includes both photographs (Ex. 8) and a videotape (Ex. 9). After considering the greater weight of the testimonial and documentary evidence, I conclude that the soil in the trench inspected by Officer Annis was not stable rock. I reach this conclusion for several reasons. First, the visual representations of the trench demonstrate that rocks have chipped or fallen off the vertical side of the trench. The trench is located in an area of the state where volcanically-deposited "lava" rock is prevalent. Rock of that nature is especially porous and readily fractures. Second, the soil in the area adjacent to the trench has been previously disturbed during the course of road construction. That past activity accounts, in part, for the visible differences in the layers of soil. The soil was further disturbed by the placement of a gas line four-to-five feet from the trench between it and the roadway. Third, the traffic on 27th Street was within feet of the open trench which subjected it to potentially destabilizing vibration. Fourth, Pieratt's method of using a screwdriver to assess the stability of the soil does not fall within the manual methods authorized by the administrative rules. Those techniques involve use of a thumb penetration test, but not a screwdriver test. CFR 1926.652 Appendix A (d)(2). Fifth, the walls of the trench are uneven in spots, marked by protruding roots and sloping inward at places where there are signs of undercutting. Additionally, there are piles of loose material in the trench, as well as rocks, indicative of sloughing. In noting the sandy, gritty composition of the soil, I have totally disregarded the contents of the spoils pile. Instead, I have limited consideration to the deposits within the trench itself. The uncontroverted evidence indicates that during the course of its operation, the rock saw pulverizes the rock and soil which it is extracting from the trench. The material left after that process is not necessarily representative of the soil composition before introduction of the rock saw. Consequently, the appearance of the soil in the spoils pile is not probative. Separate from the observations and conclusions which I have made based upon the documentary and testimonial evidence are the expert opinions offered by Brian Annis and the Defendant's professional engineer. I am mindful of the fact that the instant citation was issued by an inexperienced safety officer who was conducting his fourth inspection after which he completed further training. The fact that his more experienced supervisor, Dan Barnes, concurred with his opinion is interesting, but not critical to my assessment of the case. See generally Pierce v. MVD, 125 Or App 79, 83-85 (l993). Under the right circumstances, the opinion of a registered engineer would be entitled to far greater weight than the opinion of an inexperienced inspector. Although Tom Pieratt testified that the area of trench observed by Charles Rowles, P.E. was very similar to that inspected by the safety officer, his comments do not contradict the observations and conclusions of Annis. Rather, his report states the advantage of using a rock saw with respect to minimizing soil disruption in comparison to a backhoe. Instead of affirming the stability of the trench which he inspected, however, he opines that: "So long as the bank surface as cut by the rock saw remains undisturbed or does not slough off, a 6 foot trench depth should not present a safety problem. However, where there is any kind of surface or cut bank failure, shoring will be required in accordance with O.S.H.A. standards. "As a requirement to work in these trenches, you will have to check the material in the bank for stability. If any of the soil or rocks do peel out under their own weight when felt or bumped, shoring will be required, as mentioned above. Or, the depth of material in excess of 5 feet will have to be shelf excavated in accordance with O.S.H.A.'s regulations." (Ex. 12). The report is noteworthy for what it fails to state, especially after an inspection of a trench which the employer considered to be similar to the one giving rise to the citation. The engineer's report does not acknowledge the stability of the soil inspected, but discusses contingencies mandating compliance with the safety regulations. The existence of those contingencies has been established by the greater weight of the evidence. Moreover, the engineer concludes that a trench less than six-feet deep should not present a safety hazard (Ex. 12). Because the inspected trench exceeded that depth, his opinion is without probative value. Having reviewed the testimonial and documentary evidence, I conclude that the cited violation did occur as alleged. Consequently, the citation should be affirmed with respect to Item No. 2-3. b. Item No. 2-4 Item No. 2-4 is predicated upon violation of 29 CFR 1926.651(k)(1) which mandates that: "(1) Daily inspections of excavations, theadjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions. An inspection shall be conducted by a competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazard increasing occurrence. These inspections are only required when employee exposure can be reasonably anticipated." A competent person is one who: "* * * is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has the authorization to take prompt corrective measures to eliminate them." CFR 1926.650(b). In this case, the employer has identified Tom Pieratt as the competent person on the job off Reed Market Road North. Given his position as owner of the company, there wouldn't seem to be a question concerning his authorization to take prompt corrective measures. The fact that violations had not been corrected when the compliance officer later returned to the work site does, however, suggest that he either didn't issue corrective instructions, or was unable to effectuate compliance with them. More important than the question of authorization is the issue of whether Tom Pieratt is "capable" within the meaning of CFR 1926.650(b). Because the alleged violation, CFR 1926.651(k)(1) pertains only to inspections of excavation sites, I am not persuaded that the mere occurrence of other safety violations on the site renders Pieratt per se incompetent (despite raising questions regarding his authority). Hence, I have essentially disregarded the fact that the employer did not contest those portions of the citation involving ladder size, flagging apparel and the proximity of the spoils pile to the open trench. Neither am I persuaded by the fact that the violations continued throughout the day means that the competent person was not on the job site as needed to assess the circumstances surrounding excavation. The uncontradicted evidence is that Tom Pieratt, in his own fashion, conducted an inspection before work began that morning. The fact that he reached the wrong conclusion does not mean that he should have repeatedly engaged in that decison-making process. The record does not contain evidence of a change in circumstances through the day from those present at the time of the morning inspection which would have necessitated other inspections. There is no indication that there was a rainstorm or that a fluid-carrying pipe was struck, or anything of that nature which might affect the stability of the trench took place after the initial inspection. Past violations of the same provisions regulating excavations are, however, pertinent as they reflect upon the employer's past actions in either failing to conduct the necessary inspections or having made the wrong decision regarding soil classification. Similar violations of CFR 1926.652(a)(1) occurred in both January of l991 (Ex. 7) and April of l992 (Ex. 6). Those violations call into question Tom Pieratt's ability to form accurate conclusions regarding soil classification under OSHA regulations. Further undermining Pieratt's ability to effectively serve as a competent person is the fact that he does not employ testing techniques approved by OSHA. Pieratt testified that he goes into the trench and uses a screwdriver to penetrate the trench wall for inspection of its cohesiveness. He does not use the thumb print, hand-operated shearvane or pocket penetrometer recognized by the rules. CFR 1962.652(d) Appendix A. Considering Pieratt's deficient methodology and past failure to correctly assess excavation conditions, I conclude that despite his many years of experience, he did not qualify as a competent person in March, l992. Accordingly, Item 2-4 should be affirmed. 2. Reasonableness of Penalties The employer has not precisely identified the basis for its contention that the penalties levied in association with the cited violations are incorrect or unreasonable. Nor am I able to determine the basis for a valid attack on this record. Rather, the undisputed evidence establishes both the occurrence of prior violations of each offense in l991 and l992, as well as the requisite probability of harm essential to the validity of the assessed penalty. Consequently, I find the assessed penalties to be both correct and reasonable. Modification is not, therefore, appropriate. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED THAT: Citation No. A8735-004-93 is 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 in the Court of Appeals, Supremem Court Building, Salem, Oreogn 97310, within 60 days following the date this Order is entered and served as shown hereon. The procedure for such judicial raeview is prescribed by ORS 183.480 and ORS 183.482. Entered at Eugene, Oregon 10/05/94 WORKERS' COMPENSATION BOARD Claudette Mirassou McWilliams Referee