BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH92223

	Plaintiff,			)  Citation No. S736800392

		vs.			)

CITY OF PORTLAND			)

	Defendant			)  OPINION AND ORDER



Hearing sessions were held on January 26 and February 4, 1993 in
Portland, Oregon. The Occupational Safety and Health Division
(OSHD) was represented by J. Kevin Shuba. The City of Portland
(City) was represented by David L. Jorling. Upon receipt of
written closing arguments, the record was closed on March 19,



               BACKGROUND FACTS AND ISSUE



On October 1, 1991 at 4:37 a.m. Portland Fire Bureau fire truck
Quad 5 responded to a BR-3 (breathing difficulty/chocking) 911
call at Albertson's Food Center, 5415 SW Beaverton Hillsdale
Highway, Portland. They found a man who was having difficulty
breathing outside the store on the ground. Fire fighter EMT 4
Bell administered aid to the man.



Lieutenant Wayne Winter, who was in charge of the truck that
answered the call, began gathering information about the
individual and what had happened. The person having the
breathing difficulty was Joe Arguelles, an employee of
Albertson's.



The produce manager took Lt. Winter to where Arguelles was last
working, the produce prep room. As they were walking down an
aisle toward that area, the produce manager told Lt. Winter
Arguelles had been using a steam pressure washer. Lt. Winter
stepped inside the prep room and looked around. He was in the
prep room about 30 seconds and in the store about two to three
minutes.



An ambulance came and took Arguelles to the hospital. The fire
truck was ready for the next call at 4:51 a.m.



At approximately 6:45 a.m., the emergency room doctor called the
fire station and informed the EMT that Arguelles was suffering
from severe carbon monoxide (CO) poisoning.



The fire fighters returned to Albertson's. Several employees
were suffering from symptoms such as nausea, dizziness and
headaches and ~n~ were taken to the hospital. The store was
evacuated.



On the second visit to Albertson's the fire fighters determined
that the gas-operated pressure washer had been used inside the
store. This pressure washer produced the CO that affected
Arquelles and the other employees.



Oregon Occupational Safety and Health Code Division 151, which
applies to fire fighters, provides at Section 437-151-072(1):



"Approved self-contained breathing apparatus with full
facepiece, or with approved helmet or hood configuration, shall
be provided to and worn by fire fighters while working where
toxic atmospheres or an oxygen deficiency may be present."



Oregon OSHD cited the City for violating this standard based on
Lt. Winter entering Albertson's and the produce prep room on the
first visit without wearing a self-contained breathing apparatus.



City requested a hearing from this citation. City challenges the
charged violation and the associated $1,200 penalty.



               ADDITIONAL FINDINGS OF FACT



The Albertson's store on Hillsdale Highway is a large 34,500
square foot supermarket. See Exhibit 522 and 523 for a diagram
of the store. The store is open 24 hours a day. When the fire
truck arrived on the morning of October 1, 1991 there were
approximately 10 to 15 employees working in the store.



On the evening of September 30 morning of October 1, 1991,
Arguelles and other employees used a gas-operated pressure
washer to clean the produce area. The washer had a 40-foot hose.
The washer itself was inside the building while the cleaning was
being done.



about 2:00 a.m. they started cleaning the smaller produce prep
room. While working in the produce prep room, Arguelles became
dizzy and tired. Around 4:00 a.m. he went outside. Shortly after
that other employees saw him in front of the store on the ground
with breathing problems and when he didn't respond they called
911.



The information the firemen had en route was that there was a
person with a breathing problem. They didn't know anything more
about the physical problem or who the person was. When they
arrived the store was open to the public and the employees were
either working inside or attending to Arguelles.



The fire fighters learned that Arguelles was an Albertson's
employee. Arguelles had shortness of breath and the EMT did an
assessment and determined he was oriented. The EMT wasn't sure
what had happened and thought Arguelles may have been
hyperventilating. He gave him oxygen.



While the EMT was administering to Arguelles, Lt. Winter
gathered information to assist in the treatment and to determine
what happened. He went into the store with the produce manager
to see where Arguelles had been working. As they walked down the
aisle toward the produce prep room, the produce manager told Lt.
Winter Arguelles had been using a steam washer. The produce
manager did not tell Lt. Winter that the pressure washer machine
was used inside the store. Lt. Winter did not see the pressure
washer in the store.



The pressure washer had a label on it that it was not to be used
indoors. Lt. Winter was familiar with pressure washers and had
never seen or heard of them being used indoors. They have long
hoses so that the machine can be left outdoors while the work is
done inside a building. OROSHD's safety compliance officer had
observed pressure washers being used before, and this was the
first time she had seen one used indoors.



The gas-operated pressure washer emitted CO, which is an
odorless, colorless gas. This is what made Arguelles and the
other employees ill. Arguelles was hospitalized and released on
October 2, 1991. The other Albertson's employees were less
severely affected. Lt. Winter experienced a mild headache and
some nausea approximately 30 minutes to an hour after the first
visit to Albertson's.



Both the EMT and Lt. Winter are trained in determining when
hazardous conditions are apt to occur including exposure to CO
gas. They are also trained in detecting the symptoms of CO
poisoning. The fire crew had self-contained breathing apparatus
equipment with them on the truck. The fire truck was at the
scene from 4:37 a.m. to 4:51 a.m.



When the fire truck left Albertson's the first time, neither Lt.
Winter nor the EMT were aware the problem was CO poisoning. The
EMT thought Arguelles was suffering from hyperventilation.



                  OPINION AND CONCLUSION



.The City is charged with violating OAR 437-151-072(1):



"Approved self-contained breathing apparatus with full
facepiece, or with approved helmet or hood configuration, shall
be provided to and worn by fire fighters while working where
toxic atmospheres or an oxygen deficiency may be present."



This rule applies to employees providing fire protection
services. OAR 437-151-004(1).



Under OAR 437-157-072(1)a, a fire fighter is obligated to wear a
self-contained breathing apparatus "while working where toxic
atmospheres or an oxygen deficiency may be present." This is a
rule for fire fighters and does not apply to employees in
general, who also may at times be exposed to toxic atmospheres.
The rule is a recognition of the hazardous nature of a fire
fighter's work and the frequency in which a fire fighter is
subjected to such dangers. In order to find a violation of OAR
437-151-072(1), a fire fighter must have a reasonable basis to
know that a toxic atmosphere or oxygen deficiency might be
present. To be in violation of the rule, the City must have
known or reasonably be charged with knowing of the occurrence of
the incident or that it failed to perform its duty under the
standard. Skirvin v. Accident Prevention Division, 32 Or App 109
(1978).



The conduct in question involves Lt. Winter entering the
Alberson's store without wearing a self-contained breathing
apparatus. The event occurred. Lt. Winter was in charge of the
fire truck and was the agent of the employer. OAR 436-01-015(6).
Employer knew of the occurrence.



When the fire fighters arrived at Albertson's they had no
information there might be a toxic exposure problem. The call
involved one person who had a breathing problem. The trained EMT
who administered the initial aid to Arguelles did not detect a
toxic poisoning problem and left the scene with the belief that
Arguelles probably had hyperventilated. This treatment did not
alert Winter to a toxic problem.



When the fire truck arrived Alberson's was open to the public
and 10 to 15 employees were working there. There is no evidence
that at the time any of them complained to Lt. Winter or other
fire fighters of physical problems. The store remained open when
the fire truck left. This circumstance did not provide Lt.
Winter evidence of a general atmosphere or toxic problem inside
the store.



Steam pressure washers are not to be used inside. This warning
is clearly marked on the washer that was used. The produce
manager did not tell Lt. Winter the washer was used inside the
building. Lt. Winter knew that pressure washers were not suppose
to be used inside buildings. He had used pressure washers to
clean his own bakery business: the washer was outside and the
cleaning work was done inside using a hose. The safety
compliance officer had never seen a pressure washer used inside
a building before. The brief reference to the steam washer by
the produce manager was insufficient, when considered with all
the other facts, to put Lt. Winter on notice that there might be
a toxic problem.



Lt. Winter stepped about three feet into the produce prep room
to look around. There was an odor in the room. CO is odorless
and this odor did not provide a clue to the problem.



Arguelles was taken to the hospital with what was thought to be
a hyperventilation condition. Everything at Albertson's appeared
normal and at 4:51 a.m., 14 minutes after arriving, the fire
truck returned to quarters. The evidence from Lt. Winter is that
he had no reason to believe the call at Albertson's involved CO
poisoning. The reference in his October 1, l991 report that he
made the duty paramedic aware of the possibility of CO
contamination was not contained in any other investigation
matter. EMT Bell denied that Lt. Winter said anything about CO
contamination. Bell was a credible witness. I conclude the
reference to CO contamination in Lt. Winter's October 1, 1991
report is in error and that the other evidence from Lt. Winter,
EMT Bell, the other witnesses and the surrounding facts is more
reliable.



Dr. Jonathan Jui, associate professor emergency medicine OHSU
and physician supervisor for the City of Portland Fire
Department, testified that from a medical standpoint there was
no indication that CO was involved as the primary manifestation
and that the EMT would not have expected it. Dr. Jui considered
the surrounding circumstances and concluded there was no warning
that CO was present.



Bruce Caldwell, a fire fighter for 24 years and currently fire
chief for the City of McMinnville and past president of the
Oregon Fire Chief's Association, was present at the hearing and
heard all the testimony. He concluded that Lt. .Winter acted in
a reasonably prudent manner. Caldwell considered the nature of
the 911 call, the visual evidence when the fire truck arrived
(the store was open with employees working inside) and the
absence of other people hurt and observed that Lt. Winter acted
appropriately.



I conclude the preponderance of evidence does not establish that
a reasonably prudent fire fighter should have known that a toxic
atmosphere might be present in the store. OSHD has not shown
that when Lt. Winter walked into Albertson's or was in the store
he knew or reasonably should have known that a toxic atmosphere
or an oxygen deficiency may have been present. The total
circumstances are insufficient to reasonably have alerted him to
put on his self-contained breathing apparatus. OAR
437-151-072(1) was not violated.



The City filed a motion to dismiss the citation on the ground
the cited rule is unconstitutionally vague. In its argument,the
City used the broadest possible interpretation of the word
"may."  Because of the decision, I need not address the motion
to dismiss.



                          ORDER



IT IS HEREBY ORDERED that Citation S7368-003-92 is set aside.



NOTICE TO ALL PARTIES;  You are entitled to judicial review of
this Order.  Proceedings for review are to be instituted by
filing a petition to the State Court Administrator, Record
Section, 1163 State St, 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 on April 6, 1993



				WORKERS COMPENSATION BOARD

				by Albert L. Menashe, Referee