BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92087 

 	Plaintiff 			)  Citation No E513800491 

		versus			)

STARK TRUCKING, INC., Defendant		)  OPINION AND ORDER



Pursuant to notice a hearing was held September 2, 1992 in
Salem, Oregon before Referee Howell. Defendant, employer, was
represented by its President, Duane Stark. Plaintiff, Oregon
Occupational Safety & Health Division, was represented by Eric
Stoop, a certified law student. The hearing was recorded by
Business Support Services.



                          ISSUE:



Whether defendant violated OAR 437-155-030 and, if so, whether
$105 is an appropriate penalty for such violation. (On January
10, 1992 plaintiff issued Citation No. E513800491. Item No. 1-1
of that citation asserted a violation of OAR 437-155-030.)



NOTE: At hearing plaintiff amended his January 10, 1992
citation. The penalty for each separate item in the citation was
reduced by 30 percent, based upon the defendant's low lost work
day cases incidence rate. See OAR 437-01-145(2)(b). As a result
of the reduction, the penalties for items number 2-2, 2-3, 2-4,
and 2-5 were less than $50 each and were suspended. See OAR
437-01-145(3). The penalty for item number 1-1 was reduced to
$105.



At hearing defendant withdrew its request for hearing with
respect to all violations cited and all penalties assessed, with
the exception of the violation and penalty noted as the issue,
above.



                 FINDINGS OF FACT:



Defendant operated a business in Salem, Oregon. Defendant
employed a number of workers. Two of defendant's employees spent
something less than full time working in a shop on defendant's
premises.



In defendant's shop where employees worked, various substances
were present. Included among those substances were gasoline,
diesel, automatic transmission fluid, motor and gear oils,
chassis lubricants, degreasers/solvents and bottles of
compressed carbon dioxide, oxygen and acetylene. Defendant
maintained Material Safety Data Sheets (MSDS's) for each of
those substances. See OAR 437-155-025.



On September 27, 1991 defendant did not have a written hazard
communication program for its work place. The defendant did
provide some safety training to new employees.



On September 27, 1991 a Senior Occupational Safety Specialist
for plaintiff inspected defendant's place of business. Citation
E513800491 was issued as a result of that inspection. Item No.
11 of that citation was included because defendant did not have
a written hazard communication program. However, defendant was
not cited for violation of the administrative rule which
requires employers to have such a program (OAR 437-155-015).
Instead, defendant was cited for violation of a rule setting
forth requirements for employee information and training (OAR
437-155-030)(Exhibits 14).



A penalty of $150, subsequently reduced to $105, was imposed for
the violation of OAR 437-155-030. That penalty was determined
based upon the Senior Occupational Safety Specialist's
assessment that the violation posed a low probability of injury
or illness but that the potential injuries or illness could
result in serious physical harm. See OAR 437-01-135 through
437-01-145 (Exhibits 1, 3 & 9).



                        ULTIMATE FACTS:



Defendant, employer, did not provide employees with information
which included the location and availability of a written hazard
communication program, including the required list of hazardous
chemicals, and Material Safety Data Sheets required by Division
155 of Oregon Administrative Rules, Chapter 437.



Defendant, employer, did not train employees in the details of a
hazard communication program developed by the employer,
including an explanation of the labeling system and the Material
Safety Data Sheets, and how employees could obtain and use the
appropriate hazard information.



                        CONCLUSION:



Defendant argues that Division 155 of the Oregon Administrative
Rules, Chapter 437 does not apply to it.



Division 155 applies to all employers that employ employees who
". . . may be exposed under normal conditions of use or in a
foreseeable emergency . . ." to any chemical in the work place.
OAR 437-155-004(2). A "chemical" is "(A)ny element, chemical
compound, or mixture of elements and/or compounds." OAR
437-155-005(3).



It is clear from the evidence in this record that employees [see
OAR 437-155-005(12)] of defendant could have been exposed to
chemicals, including oils, other lubricants, solvents and
compressed gases, during foreseeable employment circumstances.
See OAR 437-155-005(18). Therefore, Division 155 of Oregon
Administrative Rules, Chapter 437 applies generally to defendant.



Defendant next argues that the specific rule under which it was
cited, does not apply to it.



OAR 437-155-030 applies to "hazardous chemicals" in the "work
area" of employees. Defendant admitted that two employees
commonly worked in "(A) room or defined space in a work place
where . . . chemicals (were) produced or used . . ." See OAR
437-155-005(40), defining "work area." In other words, workers
worked in the defendant's shop, where chemicals were present.



Defendant disputes, however, that the chemicals present in the
work area were "hazardous." Both plaintiff's inspector and
defendant's president offered opinions regarding the hazards or
lack of hazards associated with the chemicals present in
defendant's shop. However, my determination of whether OAR
437-155-030 applies in this case is controlled by the provisions
of the applicable administrative rules.



OAR 437-155-005(20) provides this definition:



"Hazardous chemical: Any chemical which is a physical hazard or
a health hazard "



OAR 437-155-005(22) states:



"Health hazard: A chemical for which there is statistically
significant evidence based on at least one study conducted in
accordance with established scientific principles that acute or
chronic health effects may occur in exposed employees. The term
'health hazard' includes chemicals which are carcinogens, toxic
or highly toxic agents, reproductive toxins, irritants,
corrosives, sensitizers, hepatotoxins, nephrotoxins,
neurotoxins, agents which damage lungs, skin, eyes or mucous
membranes. Appendix A provides further definitions and
explanations of the scope of health hazards covered by this
division, and Appendix B describes the criteria to be used to
determine whether or not a chemical is to be considered
hazardous for purposes of this division."



Appendix A of Division 155 lists, among those things defined as
health hazards, "irritants" or chemicals which cause a
reversible inflammatory effect on living tissue. More
specifically, organic solvents are listed as hazardous to the
eye. Defendant had such solvents in the work area in which
employees worked.



OAR 437-155-005(31) provides:



"Physical hazard: A chemical for which there is specifically
valid evidence that it is a combustible liquid, a compressed
gas, explosive, flammable, an organic peroxide, an oxidizer,
pyrophoric, unstable (reactive) or water-reactive."



Defendant had compressed gases, including carbon dioxide, oxygen
and acetylene present in the work area. See OAR 437-155-005(8).
Each represented a physical hazard as defined above. Defendant
admitted that acetlyene was flammable, another physical hazard.
See OAR 437-155-005(16). Other flammable liquids, such as
gasoline, diesel, oils and solvents were present. Oxygen is, as
defined at OAR 437-155-005(30), an oxidizer and, therefore, a
physical hazard. See OAR 437-155-005(6) and 437-155-005(14).



The evidence establishes that a number of chemicals in a work
area of defendant's business were either a health hazard or a
physical hazard. Therefore, hazardous chemicals were present in
an employee work area. OAR 437-155-030 does apply to defendant.



It was clear from the plaintiff's evidence at hearing that Item
No. 11 of the citation issued to defendant was prompted by
defendant's failure to have a written hazard communication
program. Nevertheless, defendant was not cited for violation of
OAR 437-155-015, but for violating OAR 437-155-030.



The latter rule requires, among other things, that an employer
inform employees of the location of the written hazard
communication program. See OAR 437-155-030(1)(c). The evidence
does not establish the specific training given employees by
defendant. However, since defendant had no written hazard
communication program, it could not have, and did not, inform
its employees of the program's location.



Similarly, because no written hazard communication program had
been developed by defendant as of September 27, 1991, defendant
could not have satisfied the requirement of OAR
437-155-030(2)(d), to train employees in the details of the
program. See also OAR 437-155-003.



I conclude that a preponderance of the evidence establishes that
defendant was subject to, and violated, OAR 437-155-030.



Considering all relevant factors, I also agree with plaintiff
that the risk of injury or illness resulting from the employer's
violation was low. Only two employees were shown to have any
significant exposure to the hazardous chemicals in defendant's
shop. Exposure was intermittent and at least one of the two
employees exposed was trained and experienced in the use of some
or all of the hazardous chemicals present. See OAR 437-01-135.



I also agree that the severity of injury or illness from
foreseeable exposure to hazardous chemicals and a lack of
training regarding the location and details of a hazard
communication program in defendant's shop was, in some cases,
serious. See OAR 437-01-005(50) and 437-01-140. A failure to
train employees in the details of a hazard communication program
could foreseeably result in misuse of, or ignorance of the means
of correcting hazards resulting from, the various hazardous
chemicals in defendant's shop.



Under OAR 437-01-145, the penalty for a violation with a low
probability of injury or illness but the potential for serious
physical harm, is $150. Reduction by 30 percent is permissible
under OAR 437-01-145(2)(b).



I conclude that a penalty of $105 is proper for the employer's
violation of OAR 437-155-030.



                         ORDER:



IT IS THEREFORE ORDERED that defendant's request for hearing
with respect to Items No. 2-1, 2-2, 2-3,2-4, and 2-5 is
dismissed.



IT IS FURTHER ORDERED that Item No. 11 of Citation No.
E513800491, including the amended penalty assessed, is 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
183.482.



	ENTERED at Salem, Oregon on OCT. 1 1992 



				WORKERS' COMPENSATION BOARD

				BY John M. Howell, Referee