BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92209

   Plaintiff				)  Citation No. G4174-008-92

					)  DOI N/A

	versus 				)  WCD File No. N/A

					)  SSN N/A

Julie R. Towry, dba 			)

TRUCK TOPS PLUS, Defendant 		)  OPINION AND ORDER



	Hearing was held in Medford, Oregon on March 5 and June 23,
1993.  The plaintiff, Oregon Occupational Safety and Health
Division was represented by Attorney Norm Kelley.  The employer,
Julie Towry, appeared pro se.  



	This is a contested case under the Oregon Safe Employment Act. 
The employer appealed a citation issued by plaintiff on May 19,
1992 for allegedly violating OAR 437-155-015 (1), promulgated by
the Director of the Department of Insurance & Finance pursuant
to the Director's authority under the Oregon Safe Employment Act
(ORS Ch. 654).  



                        FINDINGS OF FACT



	(1)  Following an inspection of October 4, 1991, Safety Health
Officer Giustino caused a citation to issue on October 31, 1991,
alleging a violation of OAR 437-155-015 (1), failure to develop
and/or implement a written Hazard Communication Program.  The
citation required correction by November 28, 1991 (Ex. 8).  



	(2)  Employer was not physically served with a copy of the
citation until November 27, 1991 (Ex. 12; testimony of Mr.
Leachman).  The return receipt was signed by Mrs. Collingsworth,
Ms. Towery's authorized representative.  Employer did not timely
request an extension of the correction date.



	(3)  On December 31, Mr. Giustino reinspected the premises and
found that employer still had not completed the Hazardous
Communication plan.  On May 15, 1992, 5 1/2 months after his
inspection, he caused to be issued a second citation, alleging a
repeat violation, bearing a penalty of $450 (Ex. 1).  



                   ULTIMATE FINDINGS OF FACT



	(1)  Employer did not have a hazard communication plan
developed or implemented on December 31, 1991.



	(2)  The violative act of October 31, 1991 was the same as the
violative act found October 4, 1991.



                            OPINION



	ORS 654.071 (1) requires a citation to issue "with reasonable
promptness" following inspection.  Subsection (3) prohibits
issuance of a second citation within 180 days of first knowledge
of a violation, except for an Order of Correction or a
subsequent violation.



	On December 31, upon learning that the employer still did not
have a hazard communication plan in effect, Mr. Gustino had only
two choices:  (a) issue an Order to Correct under ORS 654.071
(3), or;                                                     
(b) cite the employer for nonabatement under ORS 654.071 (4).  



	Since the omission was the same omission he had found October
4, he could not issue a citation for repeat violation.  Instead
of electing option (a) or (b) above, he chose a third:  wait for
the 180 days to elapse and cite for a repeat, invoking the
penalty matrix, with its multiplier.  OAR 437-01-145, 165.  



	In doing so, the agency violated the statute:  a five month
delay between inspection and issuance is not "reasonable
promptness."  The citation is invalid.  



                         ORDER



	IT IS HEREBY ORDERED that the citation and notice of penalty
number G4174-08-92 is set aside.



	NOTICE TO ALL PARTIES:  You are entitled to judicial review of
this Order.  Proceedings for review are instituted by filing a
petition in the Court of Appeals, Supreme Court Building, Salem,
OR  97310 within sixty (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 Medford, Oregon on July 16, 1993



				WORKERS' COMPENSATION BOARD

				Stephen D. Brown, Referee