THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety & 

    Health Division			)  Docket No: SH91211

	Plaintiff,			)  Citation No. D537603091

		vs.			)


	Defendant			)  OPINION AND ORDER

A hearing was held on December 31, 1991, and on January 2, 1992,
in Portland, Oregon, before the undersigned Referee. The
plaintiff, Oregon OSHA, appeared through its attorney, Norman
Kelley. The defendant, Fletcher Trucking Inc., appeared by and
through Kenneth Fletcher. The court recorder was Vicki Gottner.
The record closed on January 2, 1992. Exhibits 1 through 16 were
all received into evidence.


The only issue is whether item 1-1 of Citation #D537603091 is

                     FINDINGS OF FACTS

In 1991, Fletcher Trucking Inc. constructed a large building at
2233 NE 244th, Troutdale, Oregon. The building was located in
close proximity to a PGE high voltage power line.

On February 12, 1991, the design consultant for PGE went to the
building construction site and found the concrete slab finished
for the foundation and floor of the building. The design
consultant for PGE was told by Fletcher Trucking Inc. that the
highest peak of the building closest to PGE's power line would
be 19 feet high. PGE then took measurements to establish that
the power line was 1 foot 4 inches horizontally from the north
edge of the building slab and 26 feet 8 inches vertically from
the power line to the concrete slab level. Thereupon PGE advised
Fletcher Trucking Inc. not to construct the north end of its
building until something was done with the power lines because
construction of the north end of the building would violate the
10-foot safety rule. Despite the warning, Fletcher Trucking Inc.
proceeded to erect its building.

The representative of PGE returned to the job site on February
27, 1991, and found the frame work of the building completed and
construction in progress. PGE reported this information to
Oregon OSHA who went out to the job site later that day and
found some of the employees for Fletcher Trucking Inc. sitting
and walking on the top of the building structure during the
construction work. The northern peak of the building was 7 feet
9 inches from the PGE power line which cared 7,200 volts of
electricity. There was a low probability of any worker
contacting the power line but there was a potential of death to
any worker who might come in contact with the power line. Upon
notice from Oregon OSHA, Fletcher Trucking Inc.. immediately
moved its workers away from the danger area and the power line
was moved the following day.

Citation #D537603091 was issued to Fletcher Trucking Inc. by
Oregon OSHA on March 25, 1991, alleging that "operations were
performed where it was possible to bring objects within 10 feet
of high voltage lines" and levied a penalty of $500.

The citation should be approved.


The defendant, Fletcher Trucking Inc., requested a hearing and
OAR 438-85-820 provides that Oregon OSHA has the burden of
proving by a preponderance of the evidence that a safety
violation occurred and that the penalty is reasonable. The only
argument made by the defendant is that the building was not
within 10 feet of PGE's power line. Here, the evidence was that
the safety inspector for Oregon OSHA estimated the northern peak
of the building to be 7 or 8 feet from the power line and Mr.
Fletcher estimated that the northern peak of the building was 12
feet from the power line; if this were all of the evidence
presented, the plaintiff would have failed in its burden of
proof to establish that the building was in fact 7 feet 9 inches
from the power line. No one, in fact, measured the actual
distance between the power line and the closest point of the
building. However, the representative from PGE did make
measurements from the power line to the ground and from the
corner of the slab of the building so as to be able to calculate
that the northern peak of the building was in fact 7 feet 9
inches from the power line. I conclude that the combination of
the testimony of Mr. Darvey and Mr. Fox create a preponderance
of evidence to establish that the building in fact was 7 feet 9
inches from the power line.

The argument by Fletcher Trucking Inc. that its building was 12
feet away from the power line rather than 7 feet 9 inches away
from the power line, misses the point of the violation. The
safety standard generally provides that no employer shall
require or permit any employee to enter or perform any function
in proximity to high voltage lines. Specifically, OAR
437-03-047(2)(a) provides that "the operation, erection, or
transportation of any tools, equipment, or any part thereof
capable of movement; the handling, transportation, or storage of
any materials, or the moving of any building, near high voltage
lines, is prohibited, if at any time it is possible to bring
such object within 10 feet of high voltage lines." The point of
this safety rule is not where the building is at but rather the
proximity of the worker to the power line. As shown in Exhibit
152, the defendant's workers occasionally stood on top of the
structure of the building during the construction process. Even
if I were to accept the defendant's contention that its building
was 12 feet from the power line, a 6-foot tall worker standing
on the peak of the building would only be 6 feet away from the
power line and his handling of tools or long pieces of metal
could possibly touch the power line. Therefore there would be a
violation even if I were to find that the building was 12 feet
from the power line. More importantly, because I have found that
the power line in fact was 7 feet 9 inches from the northern
peak of the building, a 6-foot worker standing on the peak at
that point could just about touch the power line with his bare
hand. This is obviously what the safety rule was meant to

Although the defendant made no arguments as to the
reasonableness of the penalty, I find that the penalty was
reasonable based upon the guidelines found at OAR 437-01-140 and
145. The preponderance of the evidence leads me to conclude that
the citation and penalty are appropriate.


IT IS HEREBY ORDERED that Citation #D537603091 is approved in
its entirety.

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 State Court Administrator, Record
Section, 1163 State Street, 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 183.482.

	Entered at Portland, Oregon on JAN 6 1992 


				Gary N. PETERSON,