THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH 93220

    Plaintiff, 				)  Citation No. L6260-047-93 



  Defendant				)  OPINION AND ORDER

	Hearing was convened on August 25, 1994.  The plaintiff, Oregon
Occupational Safety & Health Division, appeared through
Compliance Officer, Bruce Lawson, and was represented by
Assistant Attorney General, Armonica Gilford.  The defendant,
Van Dorn Enterprises, Inc., appeared through its president
Dennis Van Dorn, and was represented by counsel, Richard Slezak.
 The proceedings were recorded by Karla Hawkins of Business
Support Services.  The record closed at the conclusion of the
hearing on August 25, 1994.


	The following exhibits were admitted into evidence at hearing: 
Exhibits 1 through 10 and 12.  Exhibit 11 was offered and
accepted as an offer of proof.


	The propriety of a May 10, 1993 safety citation and assessment
of a penalty, item 1-1, pertaining to violation of rule OAR
437-03-001, 29 CFR 1926.201(a)(1) 

                          FINDINGS OF FACT

	On the morning of April 1, 1993, Van Dorn Enterprises, Inc., a
sub-contractor, was performing utility work for Stayton
Telephone on the Kingston-Lyons Road.  The work crew consisted
of two men, a foreman and a laborer.  The work project involved
laying telephone cable underneath the roadway.  The job was
considered short term and estimated to be 15 minutes in

	To accomplish the task a backhoe was used to dig a 38 inchdeep
trench on both sides of the road up to the edge of the blacktop.
 In order to stabilize the backhoe outriggers were positioned. 
One of the outriggers extended into the roadway by 3 feet
leaving 19 feet of available roadway for traffic.   

	The work site was located on a relatively straight stretch of
the Kingston-Lyons Road, a two lane rural highway.  The speed
limit is 55 miles per hour.  The surrounding area is devoted to
farming.  Besides cars, log trucks, farm equipment, and heavy
equipment use the highway.  For traffic traveling east to west
the work site was visible at approximately 500 to 600 feet.  For
traffic traveling from west to east the work site visibility was
somewhat less.  The traffic on April 1, 1993 was considered
light.  The weather was rainy and windy.   

	Because the backhoe partially obstructed the roadway the work
site posed a hazard to vehicles and hence to the work crew.  In
response to the hazard the work crew positioned traffic control
devices at the following locations:  (1) one cone placed by the
outrigger, (2) one cone by the trench on the side the backhoe
was on, (3) two cones on the other side of the road by the
trench, and (4) two signs reading "Utility Work Ahead" were
placed on either end of the work site at approximately 300 yards.

	On the day in question the compliance officer performed a
safety inspection of the work site.  Believing the traffic
control devices used by the work crew were inadequate, the
compliance officer issued a safety citation and assessed a $600
penalty based on a probability of an accident low and severity
of the hazard serious.  This was a serious repeat violation of a
safety citation which issued on January 8, 1991.

	It is an industry guideline that there should be 10 feet of
usable road width per lane of traffic.


	The traffic control devices used by the employer on April1,
1993 did not provide the necessary protection from the hazard.  


	Rule OAR 437-03-420 states that adequate and appropriate
traffic controls shall be provided for all operations on or
adjacent to a highway, street, or railway.  Rule OAR 437-03-001,
29 CFR 1926.201(a)(1) further provides:  "When operations are
such that signs, signals, and barricades do not provide the
necessary protection on or adjacent to a highway or street,
flagmen or other appropriate traffic controls shall be
provided."  (Ex. 8 pages 291-292).

	The evidence shows that there existed a potential hazard at the
work site.  In order to accomplish the job the work crew
positioned an outrigger 3 feet into the adjacent roadway leaving
only 19 feet available for both lanes of traffic.  It was the
unrebutted testimony of the compliance officer that it was an
industry guideline that there should be at least 10 feet of
usable space for each lane.  Thus, the space available for
traffic was inadequate by 1 foot.  Testimony suggesting that two
cars or two trucks passing simultaneously at the critical
juncture could do so safely is speculative.  Therefore, I find
that the backhoe outrigger was an obstruction which partially
closed one lane of the highway.  As a consequence traffic was
forced to enter the opposing lane of traffic in order to avoid
hitting the outrigger.  

	In addition, the shoulders of the highway were compromised in
that a 38 inch deep trench was dug that lead up to the edge of
the blacktop on both sides of the highway.  Conceivably, a
vehicle attempting to avoid the outrigger by driving onto the
shoulder could end up in one of the trenches.  As a consequence
of these adverse conditions an accident could occur resulting in
bodily injury to the work crew and vehicle occupants. 

	The evidence further shows that the employer was aware of the
above hazards.  In response the work crew positioned numerous
traffic control devices.  Three cones were placed on either side
of the road where the trench met the blacktop.  A cone was also
placed by the extended outrigger.  Finally, "Utility Work Ahead"
signs were positioned approximately 300 yards from the work
site.  (Ex. 7).  

	The question here is whether or not the employer's actions
provided the "necessary protection" required by the rule.  Based
on the evidence I find it did not.  As previously discussed the
evidence is clear that there was an obstruction in the highway
that resulted in inadequate spacing and coupled with the
additional hazard of no available shoulder.  Although traffic
was light, such traffic would have been traveling at a high rate
of speed.  In addition, because of the rural nature of the area
it should have been expected that large trucks would be
traveling this highway.  It is not remote that vehicles might
pass each other at the point where the outrigger extended into
the road.  

	The Manual on Uniform Traffic Control Devices for Streets and
Highways states that it is to be presumed that traffic will not
reduce speed unless there is a clearly perceived need to do so. 
(Ex. 10 page 6A-4).  By failing to warn traffic that the lane
was obstructed it was simply not reasonable for the work crew to
assume that drivers would slow down or otherwise be prepared to
react to the hazard.  

	The prudence course of action was to treat the obstructed lane
as effectively closed and to set up traffic controls
accordingly.  In dealing with such a situation the compliance
officer testified that the employer had three viable options: 
(1) remove the hazard; (2) place three staggered signs in each
direction indicating in sequence "Road Work Ahead," "One Lane
Road Ahead," and "Yield To Oncoming Traffic;" or (3) use a
combination of the signing described in (2) with use of
flagging.  (See also Ex. 12 pages 8-9 and 12-13).  Here, the
employer chose none of these options.    

	It was the judgement of the compliance officer that the traffic
control devices utilized by the employer was inadequate and
inappropriate given the nature of the hazard.  I find the
evidence supports the finding reached by the compliance officer.
 I further find the evidence supports the additional findings
that the probability of injury was low and that the severity
factor should be rated serious for an assessed penalty of $600. 
Therefore, I conclude that the state has carried its burden of
proof in this matter, and that the safety citation and
assessment of a penalty should be affirmed in its entirety.   


	Item 1-1 of the May 10, 1993 safety citation and assessment of
a penalty pertaining to violation of OAR 437-03-001, 29 CFR
1926.201(a)(1) is affirmed in its entirety.  

	NOTICE TO ALL PARTIES:  If you are dissatisfied with this
Order, you may, not later than sixty (60) days after the mailing
date on this Order, request a review by the Court of Appeals,
State Court Administrator, Record Section, 1163 State Street,
Salem, OR 97303.  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 after the mailing date of this Order will

ENTERED at Portland, Oregon, on September 22, 1994  


				Abigail L. Herman