BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH89201

		Plaintiff		)  Citation No. M841205289

WILLAMETTE IND. INC., Defendant.	)  OPINION AND ORDER



	Pursuant to notice, a hearing was held in the above matter on
January 29, 1990 and April 18, 1990, in Salem, Oregon, before
Referee Donna Garaventa. The plaintiff, Oregon Occupational
Safety & Health Division (hereinafter OR OSHA), was represented
by Norm Kelley. The defendant, Willamette Industries, Inc., was
represented by E. Jay Perry. The hearing was recorded by Marlene
Cromwell of Business Support Services and David Gilmour.



	No affected employees elected to appear as parties pursuant to
OAR 438-85-411.



	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to 654.295 and 654.991.



                         ISSUE



	Defendant has appealed Item 1-1 in Citation No. M841205289,
issued by OR OSHA on April 25, 1989. The alleged violation
occurred at the BLM Rough Sow Sale, Road #49, 3 miles NE of
Vida, Oregon, 97488. Defendant denies the allegation and
disputes the reasonableness of the proposed penalty.



	OR OSHA submitted Exhibits 18. Defendants submitted Exhibits
911. All were received.



	Michael McCarthy and Marc Snook testified on behalf of OR OSHA.
Steve Gilbert, Burton Harris, Douglas Mocaby, and Dan Trueax
testified on behalf of Willamette Industries.



                          FINDINGS OF FACT



	On April 12, 1989, Michael McCarthy, a safety compliance
officer for OR OSHA, conducted a scheduled inspection of the
defendant's work site indicated on the citation which is within
the State of Oregon. There were 10 employees cable logging with
a live skyline system at this site, pursuant to Defendant's
contract with the Bureau of Land Management, a government entity.



	While standing on the landing, Mr. McCarthy noticed a tree
moving as a result of a guyline siwash. The guyline moved up and
down as a tower load was applied. From a distance of 35 to 40
feet, McCarthy estimated that the guyline was deflected B feet
out of alignment approximately 25 to 28 inches above ground
level of the tree which measured an estimated 140 to 170 feet
high and 39 inches in diameter at breast level. The root system
of the trees in the area was sound second growth which was
secure and well-rooted.



	At McCarthy's request, the guyline was rerouted to the other
side of the tree, and the problem was corrected, although the
guyline rubbed another tree after it was rerouted.



	If the rub tree had fallen, it would probably not have reached
the work site, but it could have forced other trees to fall onto
the landing.



	As a result of the inspection, Citation No. M841205289 issued
on April 25, 1989, alleging a violation of OAR 437-80-275(10)
and assessing a penalty of $1,200.



	Mr. McCarthy's measurements and judgment that the tree was in
danger were disputed by the employer. Based on measurements with
scientific instruments, Burton Harris, the Willamette Industries
safety director who holds Bachelors Degrees in Forest Management
and in Forest and Logging Engineering, determined the siwash to
be approximately 30 inches. According to an engineer's
calculations based on a worst-case scenario in which the car and
skyline are being supported totally by one guyline with a
30-inch offset, a lateral force of 1,400 pounds would be exerted
on the tree. It was Mr. Harris's opinion that a force in excess
of 25,000 pounds, probably closer to 40,000, would be required
to constitute danger to the tree. It was his opinion that the
degree of force exerted by a full load on a tree with a 30-inch
siwash at that height was not sufficient, given the root system
of sound second growth, to be of concern. In addition, if the
siwashed tree were to fall as a result of the pressure, it would
fall parallel to and then away from the landing.



                 CONCLUSIONS AND OPINION



	Item 1-1 of the Citation at issue alleges of violation of OAR
437-80-275(10), which requires that all trees that interfere
with proper alignment, placement or tightening of guylines shall
be felled. OR OSHA contends that, because the placement of the
involved tree caused a siwash, the quyline was not properly
aligned and the tree should have been falled.



	The Administrative Rules present no definition of the term
"improper alignment." Because the Safety Code is concerned with
employee safety, a logical definition of improper alignment
would be something that interfered with the operation of the
guyline such that a danger is presented to workers.



	Measurements by McCarthy were estimations made at a distance
and his estimation of the extent of the siwash was shown to be
physically impossible; the instruments used by Willamette
Industries officials resulted in more precise measurements and
showed the siwash to be less than half that estimated by
McCarthy.



	The Code may have been designed for use in the field, allowing
for estimations and professional judgment, as OR OSHA argues.
These estimations and judgments by investigators may be
sufficient to sustain a citation. However, when more precise
measurements and calculations are presented and are interpreted
by experts to demonstrate mathematically that the estimations
and interpretations of the investigator are inaccurate, the
citation should fail.



	McCarthy felt that, because the top of the tree was moving when
a load was placed on the guyline, that it was in danger of
falling; the calculations presented and explained by the
defendant demonstrate that the pressure on the tree caused by
the siwash was not sufficient to cause the tree to be in danger
of falling.



	The location of the tree in question did create a 30-inch
siwash. However, there is no evidence that the siwash interfered
with the proper operation of the guyline. The unrebutted
testimony was that, following placement of the guyline in that
position, the tower remained straight under the logging
operations and the guylines effectively offset the forces
applied by the loads. Further, the technical calculations
presented indicate that there was no excessive force imposed on
the tree by the siwash which would create the risk of fallinq
the tree and creating a danger to workers.



	I conclude, based on this record, which was thoroughly prepared
and presented by the parties, that the evidence is insufficient
to establish that the siwash created by the location of the tree
in question interfered with proper alignment so as to violate
OAR 437-89-275(10).



                             ORDER



	NOW, THEREFORE, IT IS HEREBY ORDERED Item l-l and the
associated $1,200 penalty of Citation No. M841205289, issued
April 25, 1989, are dismissed with prejudice. The remainder of
the Citation 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 18 MAY 1990 



				WORKERS' COMPENSATION BOARD

				By Donna Garaventa

				Referee