BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket Nos. SH89276 &

	DIVISION			)              SH89275

		Plaintiff,		)  Citation: B791302989

		Vs.			)            B79130308

CRYSTAL SPRINGS PACKING			)

		Defendant		)  OPINION AND ORDER



	A hearing was held and the record closed on March 6, l990, in
Medford, Oregon, before the undersigned referee.  Oregon OSHA,
formerly known as the Accident Prevention Division, appeared
through its attorney, Tom Dzieman.  The employer appeared
through its attorney, Daniel Thorndike.  The court recorder was
Mike Ballard.



                           ISSUE



	l)  Whether the violations occurred as set forth in the two
citations



	2)  Whether the violation class and penalty are appropriate for
case No. SH89276.



                      FINDINGS OF FACTS



	Crystal Springs Packing Company, Inc., is in the business of
harvesting and packing fruit, and for that purpose it operates
farm labor camps for its employees at 243 Stage Road, Medford,
and 3028 Coleman Creek road, Medford.



	Oregon OSHA inspected the employer's labor camp at Stage Road
on September 28, 1989, and found no screen on one open window of
the building in which the farm laborers were housed for this
employer.  Each room of the building was equipped with a new
smoke detector.  The building consisted of six bedrooms with one
closet in each bedroom.  Several laborers occupied each bedroom.
 The employer  provided small metal lockers for each laborer but
the laborers did not want to use the metal lockers and instead
shared the built-in closets in each bedroom.  All of the windows
in the building had been painted shut for years but one window
without a screen was forced open by one of the laborers prior to
Oregon OSHA's inspection.



	Oregon OSHA inspected the employer's farm labor camp on Coleman
Creek road on September 28, 1989 and found raw sewage exposed in
an open trench approximately 20 feet from the trailers.  The
employer had no knowledge or notice of the sewage problem.
Apparently, when the septic tank became full, one of the
laborers, without informing the employer, pumped the raw sewage
out of the septic tank in the ground into an open trench 20 feet
away.  The smell from the raw sewage was not always detectable,
and the trench as overgrown and not openly visible.



	Oregon OSHA issued citation No. B791303089 to the employer on
October 20, 1989, for the raw sewage situation at the Coleman
Creek road location.  It also issued a second citation to the
employer on October 20, 1989, for (l) failing to provide screens
on a window of the building when flies and mosquitoes were
present, (2) for failing to equip the building with a mechanical
means of arousing the occupants in the event of a fire, and (3)
for failing to provide storage facilities such as wall lockers
in the building for each occupant or family unit.



	The employer conducts weekly inspections of its farm labor
camps and had no knowledge of the sewage problem or window
screen problem.  The building was equipped with smoke detectors
which were a mechanical means of arousing the occupants in the
event of a fire. The employer supplied metal lockers for each
farm laborer to put in the building.



                  CONCLUSIONS OF LAW AND OPINION



	This is a safety hearing and the plaintiff is the Oregon OSHA 
which contends that the facts support the issuance of both
citations to this employer.  The plaintiff has the burden of
proving its contentions by a preponderance of the evidence, OAR
436-85-820.



	OAR 437-147-040(7) requires the employer to supply storage
facilities such as wall lockers in the cabin for each occupant
or family unit.  The evidence is uncontradicted that the
employer did provide the metal lockers for each occupant but
that the laborers chose not to use them and left them outside
the building and instead used the built-in closet in each
bedroom.  The rule does not require the laborers to use the
lockers but only that they be supplied by the employer.  I
conclude that the employer here complied with the rule.



	OAR 437-147-045(1) provides that the employer must equip the
farm laborer camp with a mechanical means of arousing the
occupants in the event of a fire.  The evidence is
uncontradicted that the employer installed a new smoke detector
in each room of the building.  Although there was no standard
bell or other noise maker provided, I conclude that the smoke
detectors constitute mechanical means of arousing the occupants
in the event of a fire, and therefore the rule has been
satisfied by the employer.



	OAR 437-147-040(5) requires the employer to provide screens on
all doors and windows of cabins when flies and mosquitoes are
present.  There is no evidence that any flies or mosquitoes were
present.  The plaintiff asked to take judicial notice of the
presence of flies or mosquitoes; however, in late September
there may not have been any flies or mosquitoes.  I conclude
that the plaintiff has failed in its burden of proof.



	OAR 437-147-030(1) prohibits the exposure of raw sewage. Raw
sewage, when it is exposed, constitutes a serious health hazard.
The evidence is uncontradicted that raw sewage was exposed in an
open trench some 20 feet from the trailers in which some of the
farm laborers were staying.  It was held in the case of Sarvin
v. Accident Prevention Division, 32 Or App 109 (1978), that
there must be substantial evidence that the employer knew or
reasonably could be charged with knowing of the violation. 
Here, the employer inspected its labor camps once per week and
was never aware of the sewage problem.  The laborer who created
the problem never told anybody. The smell from the raw sewage
was not always detectable and the trench was not openly visible.
 Therefore, I conclude that there is not substantial evidence
that the employer reasonably could be charged with knowing of
the violation and the evidence is clear that the employer did in
fact not know of the violation.  Therefore, I conclude that the
plaintiff has failed in its burden of proof.  It follows that
both citations should be dismissed.



                             ORDER



	IT IS HEREBY ORDERED that Citations Nos. B7913030 89 and
B791302989 are dismissed with prejudice.



	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,
Third Floor, Justice Building, Salem OR  97310, pursuant to ORS
183.480, 482. 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.  Failure to mail such a
request for review within sixty (60) days after the mailing date
of this Order will result in LOSS OF RIGHT TO APPEAL FROM THIS
ORDER.



	Entered at Portland, Oregon on MAR 16 1990 



				By Gary N. Peterson, Referee