BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91182

	Plaintiff,			)  Citation No.: H106910691 

		v.			)

DON WHITAKER LOGGING, INC., Defendant.	)  OPINION & ORDER



Pursuant to Notice, this matter came on regularly for Hearing
before Referee Stephen D. Brown on December 13, 1991, in
Roseburg, Oregon. The Plaintiff, Oregon Occupational Safety and
Health Division (OROSHA) was represented by Armonica Gilford,
Assistant Attorney General. The Defendant, Don Whitaker Logging,
Inc. (Whitaker Logging), appeared through, and was represented
by George W. Goodman, CUMMINS, BROWN, ET AL.



In his Request for Hearing, Defendant contested the validity of
all three citations issued to him by OROSHA. At Hearing,
Defendant conceded the validity of one of the citations and
moved to dismiss the other two, based on the testimony of the
SCO (Plaintiff's first witness). Defendant's Motions were
granted and the Hearing was recessed.



                          ISSUES



The issues are: 1) whether a safety compliance officer's failure
to document hazardous employee exposure in regard to an alleged
violation of OROSHA safety and health rules invalidates that
citation; 2) whether the destruction of investigative records by
OROSHA, without prior disclosure to the employer, invalidates a
citation based on that investigation.



                      FINDINGS OF FACT



Tom Hoffman, Sr. is a Safety Compliance Officer (SCO), employed
by OROSHA to inspect places of employment in Oregon subject to
the Oregon Occupational Safety Employment Act.



On or about April 18, 1991, Hoffman conducted a fatality
investigation of Whitaker Logging at the Burnt Canyon site, East
of Coos Bay, Oregon. In the course of his investigation, Hoffman
documented suspected violations, summarized his findings and
made certain recommendations. These materials (field notes) were
forwarded to Hoffman's supervisors for review. Two pages of
these field notes (including the SCO's summation and
recommendations) were destroyed (irretrievably discarded) by
Hoffman's supervisors, and he was then instructed to produce
acceptable replacements. Three citations subsequently issued for
violations of the following OROSHA rules:   1) OAR
437-80-310(4); 2) OAR 437-80-330(7); OAR 437-80-200(5).



The field notes contained no documentation of hazardous employee
exposure in regard to the citation for violation of OAR
437-80-310(4).



                   ULTIMATE FINDINGS OF FACT



1. Investigative records (including the SCO's summation and
recommendations) were irretrievably discarded (destroyed) by
OROSHA, without prior disclosure to the employer.



2. Hazardous employee exposure was not documented in regards to
the first citation regarding violation of OAR 437-80-310(4);



                 CONCLUSIONS OF LAW AND OPINION



At the outset of this discussion, I should observe that my
findings are based on the testimony of the compliance officer,
Tom Hoffman, whose testimony I find probative and credible.



The authority applicable to the disputed citations include:



ORS 654.120(1):



"The Department shall maintain, for a reasonable time, records
of all inspections, investigations, employee complaints,
employer reports, citations, hearings, proceedings and other
matters necessary for achieving the purposes of [the Oregon Safe
Employment Act]."



Field Compliance Manual, Chapter 4, Section A.3:



"Employee Exposure: A hazardous condition which apparently
violates an OROSHA rule or the general duty clause shall only be
cited when the employee exposure can be documented and
substantiated.



* * *



In fatality/catastrophe (or other 'accident') investigations,
employee exposure is established if the SCO/HCO determines,
through written statements or other evidence, that exposure to a
hazardous condition occurred at the time of the accident. * * "



Field Compliance Manual, Chapter 3, Section D.9.a:



"General Procedures: It is essential during the walk around for
the SCO/HCO to:



.(3) Record all facts pertinent to an apparent violation on the
appropriate compliance worksheets. N



Citation No. 1:



The issue is whether the failure of the compliance officer to
document hazardous employee exposure in regard to the first
citation for violation of OAR 437-80-310(4) invalidates that
citation.



Under the Oregon Safe Employment Act, a compliance investigation
is the necessary precursor to any OROSHA citation. ORS 654.067;
ORS 654.071. OSHA is required to document a hazardous exposure
to one or more employees in order to satisfy its burden of proof.



In regard to the first citation, Plaintiff failed to document
hazardous employee exposure in its investigation. Such
documentation is required by OSHA's own rules. Therefore,
Plaintiff has failed to meet its burden of proof at an elemental
level, resulting in the invalidity of the first citation. The
first citation based on OAR 437-80-310(4) must be dismissed.



Citation No. 2:



As discussed above, a valid investigation is an essential
element of a valid OROSHA citation. In turn, a valid
investigation includes documentation of relevant matters and the
preservation of all documentation, including original
documentation, in part for the benefit of the employer. See ORS
654.120(1). In this case, original field notes were destroyed by
OROSHA, without first providing a copy to the employer.
Consequently, OSHA's investigation in this matter is invalid due
to its past failure and present inability to provide required
documents to the employer. Because a valid investigation is an
essential element of any OSHA citation, and because the SCO's
testimony revealed this element can not be proved, Citation No.
2 for violation of OAR 437-80-330(7) must be dismissed.



Citation No. 3:



Defendant concedes the validity of Citation No. 3 for violation
of OAR 437-80-200(5).



ATTORNEY FEES



Given the disposition of this case, Defendant moved for an award
of costs and attorney fees. Defendant cited OAR 438-85-805(12),
a provision out of the Rules of Practice and Procedure for
Contested Cases under the Oregon Safe Employment Act, as
authority for granting attorney fees in this matter. OAR
438-85-805(12) reads as follows:



"It is the duty of the Referee to conduct a fair and impartial
Hearing and avoid delay. The Referee has the authority to:



* * *



(12) Take any other action necessary for full and fair
disposition of the case."



Under the equities of this case, I would make an award of
attorney fees and costs to the Defendant if I felt I had the
authority. However, OAR 438-85-805 does not provide specific
authority to do so. Absent such specific authority to award
attorney fees, I find granting Plaintiffs request is beyond the
scope of the power delegated to the Referee. The request is
therefore denied.



                           ORDER



IT IS HEREBY ORDERED that the first OROSHA citation under Report
No. Hl06916091 for violation of OAR 437-80-310(4) is dismissed;
the second OROSHA citation under Report No. H106916091 for
violation of OAR 437-80-330(7) is dismissed; and the third
OROSHA citation under Report No. H106916091 for violation of OAR
437-80-200(5) is affirmed.



IT IS FURTHER ORDERED that Defendant's request for costs and
attorney fees is denied.



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 in entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS
183.482.



	Entered in Roseburg, Oregon MARCH 2, 1992 



				WORKERS' COMPENSATION BOARD

				By Stephen D. Brown, Referee