THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
Health Division				)  Docket No:  SH90091

	Plaintiff,			)  Citation No. N819702290

	 vs.				) 


	Defendant			)  OPINION AND ORDER

	This contested case came on under the Oregon Safe Employment
Act, pursuant to notice, in Portland, Oregon on September 24,

	Plaintiff was represented by Norman F. Kelley, Assistant
Attorney General. Defendant was represented by Michael J. Caro,
Attorney at Law. The court recorder was Jim Terrell.


	Both parties presented packets of exhibits. Both packets were

	Claimant's is numbered 1 through 7 plus 0-1 and 0-2. 0-1 is an
APD Inspection Report No. 105198931 dated September 17, 1989.
0-2 is an APD Inspection Supplement Report. Both are one page

	Defendant's exhibits are identified by its exhibit list of 101
through 107.


	Defendant disputes Items 1-1 and 1-2 of Citation No. NR197 

	The standard allegedly violated in Item 1-1 of the citation is
OAR 437-03-001 29 CFR 1926.058(f)(5)(i) for a serious violation
with a penalty of $150.

	Item 1-2 alleges a violation of OAR 437-03-001 29 CFR
1926.058(e)(6)(i), for a serious pressure violation with a
penalty of $150.

	The citation is reproduced in plaintiff's Exhibit 1, page 3.

	No issue of timeliness was raised. Defendant's March 26, 1990
appeal to the Department of Insurance and Finance was received
by OSHA on March 27, 1990. The file was transferred to Hearings
Division by May 9, 1990 letter. See pleadings.

                        FINDINGS OF FACT

	Defendant, Link-Osborn Company of Plymouth, Minnesota, is
involved with facilities that are equipped with asbestos in

	Plaintiff, the Oregon Occupational Safety and Health Division
of the Department of Insurance and Finance (OSHA) is the entity
in Oregon charged with enforcing occupational safety and health
in lieu of a federal entity.

	On January 24, 1990 Bryan Nelson, who holds a bachelor of
science degree and has been with plaintiff for some 21/2 years,
made a routine inspection of defendant's asbestos removal
project as the plaintiff's health compliance officer.

	The health compliance officer, after inspecting certain
defendant records, determined that defendant was submitting work
samples for analysis to determine the amount of asbestos in each
sample, but that defendant was not sending in concurrent blank
samples for comparison (Ex. 6, page 28, para. 11).

	It was observed that the asbestos removal workers were wearing
respirators but the workers could not shower after their shift
and therefore could inadvertently carry fibers home (29CFR
1926.58[f], Ex. 6, page 60). This was not made part of the
citation, but a coworker's belief that the asbestos removal was
without negative pressure was made a part of the citation. The
citation was as follows:

Item No. Violation Class Date Correction Required Penalty
1-1. Standard Violated: OAR 437-03-001 29CFR 1926.058(f)(5)(i)
Description of Violation:
All samples taken to satisfy the monitoring requirements of paragraph (f) of this section were not personal samples collected following the procedures specified in Appendix A: (a) Personal air samples taken at Agripac Plant #1 on January 22-24, 1990, did not include a minimum of two blanks for each set of samples submitted for analysis.
1-2. Standard Violated: OAR 437-03-001
29 CFR 1926.058(e)(6)(i)
Description of Violation:
Where feasible, the employer did not establish negative pressure enclosures before commencing asbestos removal, demolition, or renovation operations:
(a) Employees were using glove bag enclosures without negative pressure while removing asbestos pipe insulation which contained 6080 percent asbestos above cooker #1.
		 Total Penalty for This Citation:     $300.00

	The absence of a minimum of two concurrent blanks does not
affect the health and safety of the workers and, in fact, acts
to the detriment of the employer according to the record made at
this hearing. This is detrimental to no one else.

	The coworker thought employees were using glove bag enclosures
without negative pressure while removing asbestos pipe
insulation which contained 6080 percent asbestos above cooker
#1. The health compliance officer who issued the citation and
who testified at this hearing is not the same person who
allegedly observed this procedure. The health compliance officer
who testified for plaintiff and who issued this citation did not
go close enough to where the activity was taking place to wear a
respirator. He was outside the regulated area. A coworker who
did not testify and cannot be cross-examined made the
observation that resulted in Item 1-2.

	The citation should be dismissed.


	The defendant has provided a convincing 14 page closing
argument with citations, which is comparable to the notes of the
referee, appears to be accurate, and is adopted as Exhibit A and
made a Dart of this opinion.

	Both sides presented witnesses who testified in this case.
Plaintiff did not call the one witness which may have supported
Item No. 2 of its citation. Plaintiff provided hearsay in that
regard. Hearsay is allowed in appropriate circumstances in
safety cases. It was not appropriate to allow hearsay in this
case. Item No. 2 falls for that reason and for the reasons set
out in defendant's 14-page closing argument appended hereto.

	In item 1-1. there was no convincing rebuttal to the
defendant's position that the failure to provide concurrent
blank samples for comparison would only make the defendant's
statistics look worse on any particular job.

	The OSHA law was passed in the interest of assuring a safe,
healthy workplace by preventing occupational injuries. How this
purpose was violated by allegations contained in Item 1 of the
citation is not discernible by the undersigned.

	The testimony of defendant's witnesses is more convincing than
that of the plaintiff's witnesses. The testimony of Michael C.
Gardiner was to the effect that his method of removing asbestos
follows the appropriate rules, he has been observed by plaintiff
before removing asbestos in the same manner without any comment
from plaintiff. The testimony of Dan Osborn concerning
calculating of the fiber count is convincing that a serious
violation did not occur.

	The conclusion is that the health compliance officer who issued
the citation made assumptions that are not proven and not

	This is a technical operation which requires experience and
expertise which was adequately demonstrated by defendant. The
evidence presented at this hearing is convincing that there was
a misconception on the part of the issuer of the citation or of
the persons under his command which should have been realized
prior to hearing. The case should have been settled. Now it
should be dismissed.


	Citation N819702290 is dismissed with prejudice.

	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 Portland, Oregon on APR 18 1991 


				By James P. Leahy