__EXECUTIVE SUMMARY__

**OCCUPATIONAL SAFETY AND HEALTH**

**APPEALS BOARD**

**Summary of Delta Excavating, Inc. - DAR**

Under section 1541.1(c), the Division must determine which option Employer is utilizing and prove it did not comply with that option "or any of the other options." Options (2) through (4) are not stated as options so the burden is not on Employer to prove it complied with one of them. If the Division proves Employer didn't comply with Option (1); the Division still has to prove no compliance with the other options to establish a section 1541.1(c) violation. The Division failed to prove non-compliance with Options (2) through (4). The appeal was granted.

DELTA EXCAVATING, INC. **94-R1D5-2389**

August 10, 1999