THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH90013

		Plaintiff		)  CITATION NO. B921001789


		Defendant.		)  OPINION AND ORDER

	Pursuant to notice, a hearing was held in the above matter on
May 16, 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, Metal Fab, was represented by Arthur F. Schoenborn,
an authorized representative. Also present was the company
owner, Goy Garges. The hearing was recorded by Tina Duncan of
Business Support Services.

	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.

                   AMENDMENT TO CITATION

	At the outset of the hearing, OR OSHA moved to amend the
citation to delete Item 1-1A. That motion was granted.


1. Defendant challenges the validity of the inspection,
contending that the agency did not follow its own rules in
scheduling the inspection and that, therefore, the citation
issued is null and void.

2. Defendant has appealed Items 1-1B and 1-1C in Citation No.
B921001789, issued by OR OSHA on October 6, 1989. The alleged
violations occurred at 4195 Silverton Rd.,Salem, Oregon, 97302.
Defendant denies each and every allegation and disputes the
reasonableness of the proposed penalty.

	OR OSHA submitted Exhibits 18. Defendant submitted Exhibits 8
and ten. All were received.

	John Miller and Fran Birko testified on behalf of OR OSHA. Ken
Banks testified on behalf of Metal Fab.

                         FINDINGS OF FACT

	On July 20 and 21, 1989 and September 19, 1989, Fran Birko, a
health compliance officer for OR OSHA, conducted a scheduled
inspection at Metal Fab, located at 4195 Silverton Rd., Salem,
OR 97302. Metal Fab is business employing fewer than ten
employees and is involved in welding and metal fabrication.
Consequently, the employees are sometimes exposed to toxic
vapors, low oxygen levels, and a possibly explosive atmosphere.

	On the date of the inspection, there were three cylindrical
stainless steel fertilizer tanks approximately 12 feet long and
41/2 feet in diameter, present in the building. Each tank
provides access to the inside by means of a manhole in the
center of the top of the tank. Employees work inside the tanks
repairing cracked seams using welding equipment approximately
two to three occasions per year. While someone is in the tank, a
fellow employee always stands at the opening to assist the
welder. Lifelines to assist in removing an employee in trouble
or overcome by fumes are not used. It is anticipated that, if
necessary, an employee could be pulled out of the manhole by a
fellow employee.

	No employees were working in the tanks of the dates of the

	As a result of the inspection, Citation No. B921001789 issued
on October 6, 1989, citing several standards violated. A total
penalty of $700 was assessed for the violations of Items 1-1A,
1-1B, and 1-1C collectively.


Validity of Inspection

	Employer argues that the agency violated its own rules in
scheduling the inspection. Such and inspection, it argues is
illegal and, therefore, void. It relies on the February 1, 1990
letter of David L. Sparks, the Manager of Enforcement for OR
OSHA, which states that the number of employees is not a
consideration in determining the order of inspection.

	Although I find that the employer was justified in relying on
that representation, I find that Mr. Sparks' statement to Mr.
Garges was simply inaccurate. John Miller, the Health Supervisor
of Industrial Hygiene at the Salem Office, who is involved in
the scheduling, explained the process used in this particular

	OAR 437-01-057(2), which applies to scheduling health
inspections, lists the priorities and criteria to be used in
establishing health scheduled inspection lists. That rule places
as second on the priority list, places of employment where
conditions are thought to expose employees to health hazards
known to be associated with certain processes and where the
employer employs fewer than ten employees. Places with 11 or
more employees with similar conditions are placed higher on the
list and are inspected first.

	In this case, the employer had fewer than ten employees.
However, the list used for this inspection was more than one
year old, allowing inspections to reach further down the list
into employers with high hazard conditions but with fewer

	There is no evidence in this record that this place of
employment was inspected before other places of employment with
similar hazardous conditions and more than ten employees. I
conclude, based on Mr. Miller's testimony, that the inspection
was done in accordance with the scheduling rules set forth in
OAR 437-01-057(2), and that it was, therefore, valid.

OAR 437-66-070(1)

	Item 1-1B describes the violation of OAR 437-66-070(1) as
failing to provide a means for quick removal of the employee in
case of an emergency. This was described as a serious violation
with the possibility of death to an employee.

	Because of the nature of their work, employees working inside
the tanks run the risk of exposure to toxic fumes and vapors.
OAR 437-66-070(1) requires that, where a welder must enter a
confined space, means shall be provided for quickly removing
him/her in case of emergency.

	Although Ms. Birko did not actually observe the hazardous
condition, there is other evidence in the record which permits
an inference that the hazard is one to which employees are
exposed and that the code has been violated. See Accident Prev.
Div. v. Stadeli Pump, 18 Or App 357 (1974).

	In this case, the testimony establishes that employees do, on
occasion, work in the confined area inside the tanks and that
they are exposed to potentially toxic vapors. The only rescue
procedure contemplated is that, if the employee inside the tank
is overcome by fumes or is otherwise in danger and is unable to
remove himself/herself from the tank, the attendant will reach
into the tank through the manhole and physically lift and remove
the employee in danger.

	Considering that the tank is 12 feet long and the only exit is
6 feet away from each end, that the diameter of the tank is 41/2
feet, and that the manhole is located at the top of the tank, I
find that an employee removing the person in danger might not be
able to reach the worker without entering the tank himself and
putting himself in immediate danger. Additionally, the space is
so confined and the exit is in such a location that maneuvering
in such an area with a person who has been overcome and removal
of such a person could not be done by this method. Considering
all of the factors involved, I find that the procedure planned
for removing employees is not sufficient to ensure a quick
removal of the employee in danger. Thus, Item 1-1B in the
citation was appropriate.

OAR 437-66-070(3)

	OAR 437-66-70(3) requires that an attendant with a preplanned
rescue procedure be stationed outside the confined space to
observe the welder at all times and be capable of putting rescue
operations into effect.

	The investigator found a violation of this rule based on her
discussions with the owner of the business. He indicated that
there was no "backup" person stationed at the opening at all

	Ms. Birko's testimony surrounding the definition of the term,
"backup person," suggests that that term was not correctly
equated with the term "attendant" required by the rule. Based on
the testimony of Ken Banks, an employee, I find that there was
an attendant present at the opening of the tank at all times who
would be capable of putting rescue operations into effect.

	Also required of the rule is that there be a "preplanned rescue
procedure." Although I have concluded that the preplanned rescue
procedure did not satisfy OAR 437-66-070(1), there was a
procedure in existence. To find otherwise would be to penalize
the employer twice for the same infraction.

Proposed Penalty

	Employer argues that, because Item 1-1A was withdrawn, but the
penalty was not reduced accordingly, the penalty is excessive.
In addition, the employer requests, by implication, that if
either proposed violation is set aside, that the penalty be
reduced accordingly.

	OAR 437-01-145 sets the penalties for violations of the Code.
That rule requires the assessment of a penalty for any serious
violation. Section (2) allows for penalty adjustments of a 30
percent reduction based on efforts made during the inspection to
correct the violation and on the employer's lost workday cases
incidence rate for the previous calendar year.

	Section (4) requires that grouped violations of the same rule
be calculated by computing the penalty and possible adjustment
for each subpart making up the group and by adding these to
establish the total penalty for the group.

	In this case, each violation in Items 1-1A, 1-1B, and 1-1C was
considered to be a serious violation with the possibility of
death, but with a low probability of occurring. Based on the
penalty schedule provided in OAR 437-01-145, the penalty for
each violation is $1,000. That being reduced 30 percent for
having lost no workdays during the previous calendar year,
results in a penalty of $700 for each violation.

	OR OSHA did not explain why it did not add the mandatory
minimum penalty for each violation cited. However, OAR
437-01-145(2) prohibits a penalty adjustment which reduces the
penalty to less than the mandatory minimum penalty established
by rule.

	In this case, only one of the contested violations is affirmed.
The minimum penalty after adjustments is $700.



1. Item 1-1B in Citation No. B921001789 is affirmed. The
proposed penalty of $700 for violation of OAR 437-66-070(1) is

2. Item 1-1C in Citation No. B921002789 is set aside.

3. In all other respects, Citation No. B921001789 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. 8 1990 


				Donna Garaventa Referee