BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &  

  Health Division			)  Docket No  SH-93195

					)

	Plaintiff,			)

		vs.			)  Citation No:  T4194-010-93

  CITY OF SISTERS			)

	Defendant.			)  OPINION AND ORDER



	Pursuant to notice a hearing was held August 3, 1994 in Bend,
Oregon before Referee Howell.  Plaintiff, Oregon Occupational
Safety & Health Division (OR-OSHA), was represented by Norman
Kelly of the Department of Justice.  Defendant, City of Sisters,
was represented by Gary Frazee, Public Works Superintendent. 
The hearing was recorded by Business Support Services.  Exhibits
1-9 were received into evidence at hearing.



                         ISSUES:



	A)  Whether defendant violated 29 CFR 1926.651(k)(1) by failing
to have a "competent person" inspect an "excavation" for risks
to which defendant's employees were exposed.  (A May 13, 1993
citation issued to defendant by plaintiff alleged such a
violation in Item No. 1-1.)



	B)  Whether defendant violated 29 CFR 1926.652(a)(1) by failing
to provide exposed employees with approved protection from
cave-ins in an excavation.  (The May 13, 1993 citation cited
defendant for such violation at Item No. 1-2.)



NOTE:  The classification of the violation cited and the amount
of the penalty imposed were not at issue.



                         FINDINGS OF FACT:



	On April 15, 1993 employees of the defendant dug a trench in
order to install water pipe within the City of Sisters.  The
trench was dug by a backhoe.  However, one or more employees
worked in the trench doing hand work such as leveling the trench
and connecting sections of pipe.  



	The soil in which defendant dug the trench was in significant
part type C soil.  See 29 CFR 1926.652 Appendix A.  Defendant
did not slope or bench the sides of the trench it dug. 
Defendant did not use a support system, shield system or other
means of protecting employees in the trench from cave-in
(Exhibits 4 & 8).



	Gary Frazee supervised the work done to install the water pipe
on April 15, 1993.  Frazee had prior experience in water and
sewer pipe installation.  However, he was unfamiliar with safety
rules and regulations regarding excavations.



	F. David Thompson, a senior compliance officer with OR-OSHA,
inspected the site where defendant was installing water pipe on
April 15, 1993.  Thompson determined that Frazee was in charge. 
He questioned Frazee concerning the type of soil in which the
trench was dug.  Frazee did not know the soil type.  He was not
familiar with the soil classification system at 29 CFR 1926.652,
Appendix A (Exhibits 2-5).



	Thompson, with Frazee observing, measured the depth of the
trench in various locations.  Those measurements indicated a
trench depth ranging from five feet to five and one-half feet. 
Thompson also photographed that portion of the trench which was
uncovered at the time of the inspection (Exhibits 4, 5 & 8).



	On May 13, 1993 plaintiff cited defendant for violating 29 CFR
1926.651(k)(1) and 29 CFR 1926.652(a)(1) (Exhibit 1).



                         ULTIMATE FACTS:



	On April 15, 1993 employees of defendant were exposed to the
risk of cave-in working in an excavation in the City of Sisters.



	No "competent person" was present to make required inspections
at defendant's excavation on April 15, 1993.



	Defendant did not protect employees working in the excavation
on April 15, 1993 from cave-ins by any protective system.  



                        CONCLUSION:



	A)  Item 1-1 of the May 13, 1993 citation cited defendant for
violating 29 CFR 1926.651(k)(1).  That provision is a Federal
Regulation which has been adopted by Oregon (the Department of
Consumer and Business Services- Department) by administrative
rule.  OAR 437-03-001(16)(b).



	29 CFR 1926.651(k)(1) provides:



        
"Daily inspections of excavations, the adjacent 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 the 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." (emphasis added)
29 CFR 1926.650(b) defines "excavation" as ". . . any man-made cut, cavity, trench, or depression in an earth surface, formed by earth removal." The trench defendant dug on April 15, 1993 was an "excavation" for purposes of 29 CFR 1926.651(k)(1). The evidence indicates by a preponderance that employees of defendant worked in the excavation made on April 15, 1993. Hand tools used by employees in the trench and footprints on the just uncovered soil at the bottom of the trench were observed by the OR-OSHA inspector. Defendant does not deny that employees worked in the excavation prior to inspection on April 15, 1993. Defendant's employees were exposed to the risk of cave-ins in the excavation made on April 15, 1993. Defendant concedes that employee exposure was normal during such work activity. Defendant was, therefore, required to have the excavation inspected daily, prior to the start of work and as needed during work by a "competent person." 29 CFR 1926.650(b) states:
"Competent person means one who is capable of identifying existing and predictable hazards in the surrounding or working conditions which are usually hazardous or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them." (emphasis in original)
Frazee was in charge of supervising and inspecting the work on defendant's April 15, 1993 excavation. He had the authority to take prompt corrective action as needed. However, Frazee was unfamiliar with safety rules and regulations applicable to defendant's excavation. In particular, Frazee did not know when, or what, protective measures were required for work in excavations and he was unfamiliar with the means of testing and classifying soil types. Frazee did not know the type of soil in which defendant was excavating. A preponderance of the evidence indicates that Frazee was not a "competent person" to inspect defendant's excavation. See Secretary of Labor v. Ray Sumlin Construction Co., 16 OSHC 1356 (1993); Secretary of Labor v. Super Excavators, Inc., 14 OHSC 2003 (1991); and Secretary of Labor v. Super-Mason Enterprises, Inc., 14 OSHC 1446 (1993). No other individual was asserted to have made inspection of the excavation nor to have had authority to take corrective action. Because no "competent person" was available, it is clear that the inspections required by 29 CFR 1926.651(k)(1) could not have been performed. Defendant violated that regulation. B) Item 1-2 of the May 13, 1993 citation cites defendant for violation of 29 CFR 1926.652(a)(1). That regulation has been adopted by the Department at OAR 437-003-001(16)(c). 29 CFR 1926.652(a)(1) provides:
"Each employee in an excavation shall be protected from cave-ins by an 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 indication of a potential cave-in."
Defendant's employees were in an excavation on April 15, 1993. It is undisputed that defendant provided no protection for those employees from cave-ins by means described in 29 CFR 1926.652(b) or (c). It is also undisputed that the excavation in question was not made entirely in stable rock. Defendant argues that the excavation in which its employees worked on April 15, 1993 was less than 5 feet in depth and, therefore, exempt from the requirements for protection from cave-ins. First, defendant's argument is based upon a photograph, Exhibit 8, the length of a shovel similar to the one shown in the photograph, an estimate of the width of the trench and the Pythagorean theorem. I find the more persuasive evidence to be the actual measurements made the OR-OSHA inspector, under Frazee's direct observation. Those measurements indicated that the ditch was 5 feet or more in depth. Second, even if the excavation had been less than 5 feet in depth, 29 CFR 1926.652(a)(1)(ii) is phrased in the conjunctive. In other words, to be excepted from the protection requirements an excavation must be less than 5 feet in depth and it must be examined by a competent person. As noted above, no competent person was available to examine the excavation. Defendant violated 29 CFR 1926.652(a)(1). ORDER: IT IS THEREFORE ORDERED that Item 1-1 of Citation T4194-010-93 is affirmed. IT IS FURTHER ORDERED that Item 1-2 of Citation T4194-010-93 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, Supreme Court Building, 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 Salem, Oregon, August 24, 1994 Workers' Compensation Board John M. Howell Referee