THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91087

	Plaintiff			)  Citation No: B028308790


	Defendant			)  OPINION AND ORDER

	Hearing convened and closed in Roseburg, Oregon on July 18,
1991. The Oregon Occupational Safety and Health Division
(OROSHA) was represented by Assistant Attorney General Norm
Kelley. The employer, Twin Rivers Logging, was represented by
its president, Dale Bonell. Business Support Services recorded
the proceedings.


	The employer challenges OROSHA's Citation issued July 12, 1990
which assessed the employer a $250 penalty for an alleged
violation of OAR 437-80-315(12). The employer contends that it
did not violate the regulation. In the alternative, he contends
that the penalty imposed is not reasonable.

                        FINDINGS OF FACT

	On June 28, 1990 the employer's crew was logging at the U.S.
Forest Service Horseshoe Sale which was located about 35 miles
east of Glide, Oregon. On that day Bill Baumgarten, a Senior
Safety Compliance Officer with OROSHA, conducted an area
inspection which included this work place.

	During the course of the inspection which occurred sometime
after 8:30 am, Mr. Baumgarten observed that one of the two
guylines securing a PSY 200 Swing Yarder was attached to a stump
which had a chip and showed splitting. The Yarder had been
secured to the stump at the end of the previous day's shift and
was not inspected during the yarding work done that morning. The
yarder had performed about a half dozen turns (i.e.. lifted and
carried loads of logs to a landing) when Mr. Baumgarten
inspected it.

	The general practice in the industry is to check a guyline
anchor after one or two turns to make sure the anchoring stump
remains secure after stress has been placed on it.

	There was a low probability that a serious incident could
happen. The employer's crew corrected the problem immediately.
The employer has a lost workday incident rate which is
significantly lower than the average for the industry.


	OROSHA has the burden of proving both that the employer
violated the applicable regulation and that the penalty assessed
is reasonable. I conclude that it has carried its burden of
proof that the violation occurred; however, I conclude that it
has not carried its burden of proof as to the reasonableness of
the penalty. Accordingly, I reduce the penalty.

OAR 437-80-315(12) states:

	"Anchors shall be regularly inspected while the operation is in
progress. Insecure or hazardous anchors shall be immediately

	The evidence is uncontroverted that once the yarder was secured
to the stump the night before its use, it was never inspected. I
accept Mr. Baumgarten's testimony that this violates the
industry standard for regular inspections. I defer to Mr.
Baumgarten's expertise as a safety inspector and former logger.
He has inspected uncounted logging operations and is familiar
with the industry standard. Therefore, I find that the employer
violated the regulation.

	The amount of the penalty is calculated based on a matrix found
at OAR 437-01-145. The citation assessed a $250 penalty based on
the following factors: The violation was judged to be serious
and was judged to have a medium probability of an accident
actually happening. The matrix of these two factors yields a
$500 penalty. The penalty was reduced by 20 percent because the
violation was immediately corrected and was reduced by 3 0
percent because of the employer's low lost workday incidence
rate. The total reduction was 50 % yielding a total penalty of

	I agree with all factors used in calculating the penalty except
the probability rating. ORS 437-01-135 defines medium
probability as meaning that an accident is likely to occur. It
defines low probability as meaning it is unlikely that an
accident will occur.

	OROSHA has the burden of proof on this factor. It has not
carried its burden. Although Mr. Baumgarten examined the stump
and concluded based on his experience that it was likely to give
way, Mr. Bonnell examined the same stump and concluded that the
stump was unlikely to give way because the sides of the notch
were not compromised by the pitch ring which had caused the back
of the notch to chip away. Mr. Bonnell's assessment was backed
up by the assessment of Mr. Huffman, an experienced logging
operator, who examined the photographs of the stump.

	I do not denigrate Mr. Baumgarten's experience which is
significant. Nonetheless, Mr. Bonnell and Mr. Huffman each has
more logging experience than Mr. Baumgarten. I accept their
opinions that the guyline was unlikely to slip off the stump
over Mr. Baumgarten's opinion to the contrary. Therefore, I
concluded that there is a low probability.

	Under the matrix, a serious violation with a low probability of
accident yields a fine of $150. When that fine is reduced by 50%
the total fine is $75.


	The citation of July 12, 1990 is modified in part and affirmed
in part. The penalty is reduced to $75. The citation is
otherwise 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 JULY 22 1991  


				By Raymond W. Myers