BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH92014
Plaintiff ) CITATION NO: C963303191
NAUMES, INC. )
Defendant ) OPINION AND ORDER
Pursuant to notice, a hearing was convened and closed on August
6, 1992, in Medford, Oregon, before the undersigned referee.
Plaintiff, Oregon Occupational Safety and Health Division ("OR
OSHA"), was represented by Mr. Norman Kelley, Assistant Attorney
General. Defendant, Naumes, Inc., was represented by Mr. Peter
Naumes and Mr. Royal Inman. Exhibits 1 through 8, including A
and 5A, were received in evidence.
ISSUE
Whether defendant violated OAR 437-1470-20(1), as set forth in
Item 1-1.
PRELIMINARY MATTERS
At the beginning of the hearing, the parties informed me that
OR OSHA was rescinding and withdrawing the alleged violation set
forth in Item 2-2. Furthermore, defendant clarified that it was
not contesting and admitted to the violation set forth in Item
2-3.
FINDINGS OF FACT
Defendant owns and operates five farm labor camps. The camp at
South Stage Road has a well. The well is the source of drinking
water. On August 9, 1991, defendant hired a consultant to test
the purity of the water. The test results indicated that the
water was not contaminated. Ex. A.
On or about August 19, 1991, the camp was occupied by farm
workers for the harvest season. An OR OSHA scheduled inspection
of the camp's water supply took place on September 12, 1991. The
inspection was conducted by OR OSHA Safety Officer, Ms. Garnet
Cooke. At the time of the inspection, 33 farm laborers were
working at the camp.
The sample of water taken by Cooke underwent laboratory
analysis by a consultant. The test results indicated bacterial
contamination from both coliform and fecal coliform. Ex. 412.
After learning that its water was contaminated, defendant
promptly remedied the situation. On October 7, 1991, it
commissioned another water purity test. The test results
revealed that the contamination was no longer present. Ex. 5A.
OR OSHA cited defendant on October 24, 1991. Defendant was
unaware of the Oregon Administrative Rules set forth in Chapter
437, Division 112.
STIPULATIONS
1. Cooke is an expert in Industrial Hygiene.
2. Peter Naumes, if called as a witness, would have testified
that: (1) defendant took the prior occupancy water sample and it
passed; (2) as soon as defendant was notified by OR OSHA that it
had failed the September 12, 1991 water purity test, defendant
found the problem and remedied it; and (3) defendant was
operating under Oregon Administrative Rules, Chapter 437,
Division 147. It did not have a copy of Division 112, however,
and does not see that Division 112 required it to obtain two
water sample tests.
3. On or about August 19, 1991, the camp was occupied by farm
labor workers for the harvest season.
CONCLUSIONS OF LAW AND OPINION
OAR 437-147-020(1) states:
"All domestic water furnished at labor camps shall conform to
the required standards for purity as required in OAR, Chapter
437, Division 112, Water and Sanitation, which sets specific
limits on the presence of certain substances in water supplies."
Likewise, OAR 437-112-020(2) provides:
"If the presence of coliform organisms are detected during the
bacteriological analysis of a water sample, the water supply
from which the sample was taken shall be considered
contaminated."
Here, there is no dispute that coliform organisms were detected
in the September 12, 1991 water samples of defendant's water
supply. It, therefore, was contaminated and, in violation of OAR
437-147-020(1), did not conform with the required standards for
purity.
Defendant argued that it was conscientious and did not act
unreasonably. I agree. However, the reasonableness of
defendant's actions are not at issue. State of Oregon safety
rules require operators of farm labor camps to ensure safe
drinking water. Although defendant made reasonable efforts to
comply with those rules, it fell short. Its water supply was, in
fact, contaminated. A citation and penalty is one of the hazards
of doing business.
Accordingly, I conclude that defendant violated OAR
437-147-020(1) as set forth in Item 1-1. I further conclude
based on the credible and reliable testimony of Cooke, that the
violation was serious. Therefore, the $150 penalty was
appropriate.
ORDER
IT IS THEREFORE ORDERED that Item 1-1 in the October 24, 1991
Citation and the associated $150 penalty, are approved and
upheld.
IT IS FURTHER ORDERED that OROSHA has rescinded and withdrawn
the alleged violation set forth in Item 2-2 in the October 24,
1991 Citation.
IT IS FURTHER ORDERED that Item 2-3 in the October 24, 1991
Citation and the associated $75 penalty, are upheld and approved.
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
183.482.
ENTERED at Salem, Oregon, on Sept. 3, 1992
WORKERS' COMPENSATION BOARD
By KIRK SPANGLER, REFEREE