THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  DKT NBR: SH89208


		Plaintiff,		)  CIT. NBR: K150304689


		Defendant.		)  OPINION AND ORDER

	Pursuant to notice, a hearing was held in the above matter on
October 12, 1989 and on March 21, 1990, in Salem, Oregon, before
Referee Donna Garaventa. At the session held on October 12,
1989, the plaintiff, Oregon Occupational Safety & Health
Division (hereinafter OR OSHA), was represented by Sharon
Schooley, Assistant Attorney General, and the defendant, Nelson
Logging, Inc., was represented by Matthew F. Denley. The court
recorder was Caroline Thomas of Business Support Services. At
the March 21, 1990 session, plaintiff was represented by Norm
Kelley, Assistant Attorney General, and the defendant was
represented by George W. Goodman. The court recorder was Angela
Trafton of Business Support Services. The record was closed on
May 21, 1990, following receipt of written closing arguments.

	No affected employees elected to appear as parties pursuant to
OAR 438-35-411.

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

                     AMENDMENT TO CITATION

	Prior to the presentation of the case, the parties stipulated
that the penalty assessed under Item 12 should be reduced from
$300 to S240. OR OSHA moved to amend the citation to so reflect.
The motion is granted.


	Defendant appeals Items 1-1 and 1-2 in Citation No. K150304689,
issued by OR OSHA on May 17, 1989. The alleged violations
occurred at Rooster Rock BLM 73E14.4, 25 miles east of Molalla,
Oregon 97038. Defendant denies each and every allegation and
disputes the reasonableness of the proposed penalties.

                         FINDINGS OF FACT

	Based on the stipulation of the parties, I make the following
findings of fact:

	Helen Linese Kilbourne, an occupational safety specialist for
APD, now known as OR OSHA, inspected the work site on April 13,
1989. A citation issued on May 17, 1989. The employer had
previously been cited for a violation of OAR 437-80-045(8). That
citation issued December 23, 1988. It was not contested and
became final by operation of law.

	Exhibit 8 includes photographs of the inspection site at
Rooster Rock, BLM 73E14.4, 25 miles east of Molalla, OR 97038.

	Based on the evidence received into evidence, I make the
following additional findings:

	On the date of the inspection, there were seven employees
present at the work site. Three workers were resettinq chokers
within reach of the trees cited.

	During the course of her inspection, Ms. Kilbourne observed
several trees in the area which, in her opinion, showed signs of
deterioration. She did not approach and personally inspect the
trees which were the subject of the citation. Rather, she
remained at the skyline and took photographs of those she
believed showed signs of deterioration. Those photographs are
part of the record.

	On the landing, the loader operator was operating a chain saw
to notch a log. He was not wearing chaps.

	As a result of the inspection, Citation No. K150304689 issued
on May 17, 1989, citing violations of OAR 437-80-105(1),
437-80-045(8), and 437-80-045(4). A penalty of $1,000 was
assessed for the violation of OAR 437-80-105(1), and an amended
penalty of $240 was assessed for violation of OAR 437-80-045(8).

                 Findings of Ultimate Fact

	There were several standing trees at the work site with
evidence of deterioration or physical damage to the trunk or

	The trees in question were within the work area and were not
leaning noticeably in any direction.

	The trees in question were not felled before the regular
operations began. Logging operations were not structured so that
employees were constantly in the clear.


OAR 437-80-105(1)

	OAR 437-80-105(1) requires that danger trees within reach of
landings, haul roads, rigging or work areas shall be felled
before the regular operations begin or work shall be arranged so
that employees will be constantly in the clear. Danger trees
leaning away from the landings or haul roads may be left if no
hazard exists from the trees falling, rolling or sliding into
the areas listed in the rule.

	For purposes of this rule, the term, "danger tree" is defined
in Appendix 80A of OAR Chapter 437. Subsection (14) of the
appendix defines danger tree as "[a] standing live or dead tree,
including snags with evidence of deterioration or physical
damage to the root system, trunk or stem. The degree and
direction of lean is also an important factor when determining
if a tree is dangerous."

	The employer argues that the individual trees were not shown to
present an actual hazard to the workers in the area. He
challenges the inspector's credibility and the sufficiency of
the experts' testimony. Whether or not the trees presented an
actual danger is not the relevant inquiry in determining whether
the rule has been violated, however. Neither is it determinative
that the supervisor at Nelson Logging did not feel that the
individual trees presented a hazard to the workers. Those
questions are relevant to the determination of the penalty once
a violation has been found.

	The purpose of the rules under Division 80 is to prescribe
minimum safety and health requirements for all employees
employed in the logging industry. OAR 437-80-005. In order to
ensure consistency in application of the requirements, certain
objective standards are defined in the rules.

	In this case, "danger tree" is specifically defined. If the
trees fall within the definition of "danger tree" as provided by
OAR 437-80-005, Appendix 80A(14), and they are not felled or the
work area arranged so that workers are constantly in the clear
as is required in OAR 437-80-105(1), then the standard is

	Evidence presented at hearing, particularly photographs which
the parties stipulated depicted scenes of the work site,
demonstrates that there were trees in the area with evidence of
deterioration in the trunk or stems. The trees were not leaning
in a direction and in a position so as to present no danger to
workers in the area. The employer did not fell the trees before
work commenced in the area, nor was the work area arranged so
that employees would constantly be in the clear. I conclude that
the trees identified by Ms. Kilbourne were danger trees within
the definition of the rule and that OAR 437-80-015(1) was

	With regard to the penalty, the inspector assessed the
probability of an accident occurring as a result of the
violation as low, with the highest severity rating because of
the risk of death if an accident should occur. The inspector
found no circumstances to justify a reduction of the $1,000

	The employer does not dispute the inspector's probability or
severity assessment. I conclude that the penalty was reasonable.

OAR 437-80-045

	OAR 437-80-045(8) requires any employees operating power chain
saws to wear protection which will protect the legs from the
thigh to below the knee from injury due to inadvertent and
accidental contact with a moving power saw chain.

	In this case, the undisputed evidence, including Ms.
Kilbourne's testimony and the photograph in evidence, persuades
me that, on the date of the inspection, the loader operator was
operating a power chain saw to notch a log, and that he was not
wearing leg protection as required by the rule. I conclude that
the standard has been violated.

	The parties stipulated that $240 was a reasonable penalty under
the rule should the violation be found to exist.


	NOW, THEREFORE, IT IS HEREBY ORDERED Citation Number K150304689
is modified to reflect a reduction of the penalty for violation
of OAR 437-80-045(8) from $300 to $240. In all other respects,
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

	Entered at Salem, Oregon JUN. 20 1990


				By Donna Garaventa