THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92021

		Plaintiff		)  CITATION NO: C192513491


		Defendant		)  OPINION AND ORDER

	Pursuant to notice, a hearing was convened and closed on May
21, 1992, in Salem, Oregon, before the undersigned referee.
Plaintiff, Oregon Occupational Safety and Health Division ("OR
OSHA"), was represented by Mr. Kevin Shuba. Defendant, Mad Creek
Logging, was represented by Mr. George Goodman. Exhibits 1
through 8 were received in evidence. The hearing was recorded by
Business Support Services.


1. Whether defendant violated OAR 437-80-220(22).

2. Whether the defendant violated OAR 437-80-105(1).

3. Cross issue: Whether defendant is entitled to recover its
costs and attorney fees from OROSHA.

                        FINDINGS OF FACT

	On September 19, 1991, Mr. Rodney Cameron, a Safety Compliance
Officer, inspected defendant's work site. Defendant was engaged
in a yarding and loading operation. Specifically, defendant was
hired by another party to remove and load trees from the work
site. It was not defendant's job to cut down the trees. That had
already been done.

	To accomplish the yarding and loading, defendant utilized two
main pieces of equipment: (1) a yarder, or tower; and (2) a
loader. The tower was secured by guy wires, which were wound on
large spools.

	After arriving at the work site on the l9 th, Cameron observed
the spools. Ex. 51. The wire in the spools was wound improperly,
creating some degree of damage.

	Continuing his inspection, Cameron observed certain trees
marked as "wildlife" trees. Ex. 52 through 57. Marking trees in
that manner meant that they should remain standing. The trees
had apparently been marked by the party who had hired defendant.

	The "wildlife" trees were dead at the top and contained dead
limbs. The guy wires securing defendant's tower, were strung in
front and behind the "wildlife" trees. Some of defendant's
employees were working in close proximity to the "wildlife"

                    ULTIMATE FINDINGS OF FACT

	OROSHA did not prove that the improperly spooled wire exposed
defendant's employees to a hazard.

	OROSHA utilized inapplicable rule in attempting to cite
defendant for not removing danger trees.

	OROSHA's citation was not frivolous.


Item No. 1-1

OAR 437-80-220(22) states: "Wire rope shall be wound on drum spools in a manner to prevent excessive wear, kinking, chafing or fouling." Item Number 1-1 describes the alleged violation of OAR 437-80-220(22) as, inter alia: "On or about September 19, 1991, the following violation was noted: Guyline cable had not been spooled on the guyline drum to prevent kinking/crushing of the cable on the 071 Madill yarder." Ex. 13.
Here, defendant stipulates that the cable was looped improperly on the drum. It argues however, that OROSHA has failed to present any evidence of "employee endangerment." For authority, it relies on the January 1992 Cumulative Supplement to the Occupational Safety And Health Act, Volume 1. At Section 4.03[1], page 450, the Cumulative Supplement provides:
"A violation of this Act is not established unless there is evidence that employees of respondent have been exposed to hazard as a result of noncompliance with the requirements of an occupational safety and health standard . . . . The burden of so establishing is part of complainant's prima facie case." Quoting from Secretary v. Bechtel Corp., 2 O.S.H. Cas. (BNA) 1336, 1337 (1974).
It is axiomatic that OROSHA must present evidence of both noncompliance with a rule and employee exposure to a hazard. Here, neither the lay nor documentary evidence established any actual exposure to defendant's employees, as a result of the improperly spooled wire. At most, defendant presented evidence that the improperly spooled wire could result in a hazard. According to the testimony of Mr. David Wooley, however, even properly spooled wire could result in a hazard. Wooley further testified that without performing a "pull test," he could not estimate the degree of damage to the wire. Under such circumstances, I conclude that OROSHA has not proven employee exposure to a hazard. The alleged violation set forth in Item 1-1 and the $75 penalty must, therefore, be set aside. Item 1-2
OAR 437-80-330(1) provides: "Danger trees within reach of landings, haul roads, rigging or work areas shall be felled before the regular operations begin or work shall be arranged so that employes will be constantly in the clear. Danger trees leaning away from landings or haul roads may be left if no hazard exists from the tree falling, rolling or sliding into the areas listed in this rule."
Item 1-2 describes the alleged violation of OAR 437-80-330(1) as, inter alia: "On or about September 19, 1991, the following violation was noted: Danger trees (snags), marked as wildlife trees that would reach the work area, had not been felled, nor was work arranged so employees would be constantly in the clear."
Here, defendant was performing its yarding and loading operation in an area containing several standing dead trees. The trees had been marked as wildlife trees. Defendant argues that the rule cited by OROSHA is inapplicable to yarding and loading operations. Specifically, it argues that OAR 437-80-105(1) applies solely to timber cutting and other power saw usages. In its view, OAR 437-80-330(11) is the applicable rule. That rule provides: "When approaching or working around hang-ups, employes shall approach from above the hang-up, and be alert for the danger of logs rolling or sliding, widow makers and dangers trees." OROSHA, on the other hand, argues that any rule within Division 80 is applicable to the logging industry. It cites to OAR 437-80-003(1). I disagree with OROSHA. To be sure, Division 80 does generally apply to the logging industry. The analysis does not stop there, however. The logging industry encompasses many types of jobs and equipment. A plain reading of Division 80 reveals that it is organized by subject matter. Most of the subject matters have a "general requirement" section. Clearly, those "general requirement" sections apply to each subject matter in which they are contained, rather than the entirety of Division 80. The rule relied on by OROSHA, OAR 437-80-105(1), is encompassed under the subject matter: "Timber Cutting and Other Power Saw Usages." OAR 437-80-090, et . Yet, in this case, it is undisputed that defendant was engaged in yarding and loading; not timber cutting or sawing. There are rules, however, which fall under the subject matter: "Yarding, Swinging, and Loading." OAR 437-80-325, et seq. Those rules, not relied on by OROSHA in its citation, clearly apply to defendant. In sum, I conclude that the rule relied on by OROSHA in its citation, OAR 437-80-105(1), does not apply to defendant. Moreover, assuming arguendo that it did apply, it is well accepted that a particular provision shall control over a general provision. See ORS 174.020. In this case, given the scheme of Division 80, it is clear that OAR 437-80-330(11) is more specific to yarding and loading operations, like defendant's, than is OAR 437-80-105(1). Under such circumstances, I conclude that OROSHA has not proven a violation of OAR 437-80-105(1). The alleged violation set forth in Item 1-2 and the $750 penalty must, therefore, be set aside. Cross Issue Defendant seeks recovery of its costs and attorney fees. It does so on the grounds that OROSHA's citation was frivolous. As authority for such relief, it relies on OAR 438-858-00(12), which provides:
"It is the duty of the referee to conduct a fair and impartial hearing and avoid delay. The referee has the authority to: "(1-2) Take any other action necessary for a full and fair disposition of the case."
While I have set aside OROSHA's citation, I conclude that it was not frivolous. OROSHA simply did not prove the violations set forth in Items 1-1 and 1-2. Moreover, even if OROSHA's citation was frivolous, it is extremely questionable whether OAR 438-85-800(12) provides authority for the assessment of costs and attorney fees. Accordingly, defendant's cross request is denied. ORDER IT IS THEREFORE ORDERED that Items 1-1 and 1-2 in Citation Number C192513491, as well as the associated penalties, are set aside and disapproved. IT IS FURTHER ORDERED that defendant's cross request for the recovery of 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 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 JUNE 15 1992 WORKERS ' COMPENSATION BOARD By Kirk Spangler Referee