BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH92034

	Plaintiff,			)  Citation No. A190503591

	vs.				)

N BERG LOGGING				)

	Defendant.			)  OPINION AND ORDER



Hearing convened and closed before Referee Mills in Portland,
Oregon, on April 23, 1993. The employer was represented by Jim
Branton, its safety consultant. Also present for the employer
was Nick Berg, the owner, and Wayne Bailey, an employee. ORORSHA
was represented by Assistant Attorney General Norm Kelley.
Safety compliance officer Steve Roberts was also present. Harris
Reporting recorded the proceedings. Exhibits 1 through 7 were
received into evidence.



                         ISSUES



The employer contests citation number A1905-035-91. The only
dispute is whether a violation for a danger tree took place.



                    FINDINGS OF FACT



On September 12, 1991, OROSHA safety compliance officer Steve
Roberts conducted an inspection where the employer was logging
off of Cow Creek Road. At the time of the inspection, the
employer was running a skidding operation. As part of that
operation, a Cat pulling cut logs with chokers would come out of
a trail onto a landing by the side of the road where the
operation was taking place. The Cat would come out of the woods
with its load following and make a tight right turn at the base
of a group of alder trees which are pictured in exhibit 5, page
1. There is an "X" on the tree in question. As the Cat would
make its turn around the base of those trees, it was cutting
into the soil, either with its track or the bulldozer blade in
front of the track or a combination of the two. Exhibit 5, page
3, shows the area where the soil was being cut away. There is no
indication that the roots were being exposed at that point.



In addition, at some point, probably earlier in the operation, a
Cat had come around with a lot of loads and hit the tree with a
log, causing the damage shown in the top photo of exhibit 5,
page 3. The tree was hit hard enough by a log to take off the
bark. This hit could have loosened the roots. On the other hand,
the fact that the tree took the hit without falling indicates
that there was some structural integrity to the root system. It
is hard to tell one way or the other what actually happens to
the root system under the ground, but there is physical damage
to the tree in terms of the bark being gone.



The alder tree was green, not dead. It did, however, lean a fair
amount. Most alder trees do lean. Exhibit 52 shows the amount of
lean. The red guide to the left is being held perpendicular to
the ground. The tree in question, with the "X" on it, is leaning
parallel with the logs on the landing and over the work area
where the Cat comes in from the trail. The Cat actually passes
by that point two times, once when it brings in the log load,
and once after it drops off the logs and circles around to push
them up further on the landing.



                    FINDING OF ULTIMATE FACT



This was a danger tree.



                    CONCLUSIONS AND OPINION



The sole issue in this case is whether the tree in question was
a danger tree. If it was, then the employer agrees that the
citation and fine should stand. If it was not, then the argument
is that the citation should be set aside.



There are two pertinent definitions. OAR 437-80-005, section 14
contained in Appendix 80A defines a danger tree as:



A standing live or dead tree, including snags, with evidence of
deterioration or physical damage to the root system, trunk or
stem. The degree and direction of lean is also an important
factor when determining if a tree is dangerous.



A danger tree must be taken down as provided in OAR 437-80-105
which provides in part as follows:



(1) 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 employees 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 area as listed in this rule.



The tree at issue in this case meets the definition of a danger
tree. Under section 14, there must be evidence of
physical damage to the root system or trunk. In this case, there
was evidence of damage to the trunk in that the bark had been
removed, presumably by its having taken a hit from a log being
pulled by a cat. The employer argues that only the bark was
removed and that since the bark does not hold up a tree, that
damage should not be considered to fall within the definition.
However, the definition does not distinguish between bark or
that portion of the tree underneath the bark. It simply looks
for damage to the trunk of a tree as evidence of damage or
deterioration to the tree. Damage removing the bark is damage to
the trunk of the tree, suggesting damage to the tree.



In addition, dirt had been removed from the base of the tree.
There is no evidence that the root system had as yet been
damaged by that removal of dirt. However, when the tree was hit
by the log, it is possible that the root system could have been
loosened. As the employer points out, it is also possible that
by taking that hit without falling down the structural integrity
of the tree was established. Obviously, there is no way of
knowing which is true. The point is that since the tree had been
hit, there was physical evidence of possible damage to the root
system.



The tree was clearly leaning as most if not all alders do. It
was leaning over a work area. It was not leaning necessarily
over the landing, but it was leaning over the area where the Cat
operator brought in the load and also where the Cat operator
again pulled around to push the log up onto the deck.



Employer argues that if the tree had fallen, it would have been
caught in the fir tree noted as "Y" on the bottom photo of
exhibit 5-1. In fact, when the tree was felled, it was directed
away from that tree but still caught its limbs on the way down.
However, to suggest that the tree was not dangerous because of
that fact is pure speculation. The tree may or may not have
gotten caught up in the fir and even if it had, it could still
have created a dangerous situation with falling limbs.



Thus, I conclude that there was some physical evidence of damage
to the tree. The tree was leaning over a work area. The
administrative rules require that it be felled.



I therefore approve the citation.



                         ORDER



IT IS HEREBY ORDERED that citation number A1905-035-91 is
approved.



NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing 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 MAY 21 1993  



				WORKERS' COMPENSATION BOARD

				By John Mark Mills Referee