BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH92236

					)

	Plaintiff			)

					)  Citation No:  B0163-016-92

ZIMBRICK LOGGING INC.			)

					)

	Defendant			)  OPINION AND ORDER



	Pursuant to notice, a hearing in the above matter was scheduled
to begin on March 15, 1993 in Salem, Oregon before Marilyn
Nichols, Referee.  The hearing was recorded by Business Support
Services.  OR-OSHA was represented by and through their
attorney, Norman Kelley.  Zimbrick Logging Inc. was represented
by and through their attorney, George Goodman.  Prior to the
date of the hearing, a conference call was held with the parties
and it was determined that the hearing would be bifurcated, and
the procedural issues would be decided before a hearing was held
on the merits because the procedural issues could be dispositive
of the entire matter.



	The following exhibits were submitted and received into the
record in this matter:  Exhibits 1 - 33, and A.  Some of the
exhibits were depositions that had deposition exhibits appended
to them.  Only specific pages of exhibits 16, 21, 25, and 26
were submitted into this record.



                            ISSUES



	The employer has raised several preliminary issues as a basis
for his motion to dismiss with prejudice the complete citation
that is the basis of this hearing.  They are:



	1)  The employer contends that OR-OSHA has no jurisdiction to
regulate safety related activities on federal land; therefore,
because this employer was engaged in logging on National Forest
land, jurisdiction lies with federal OSHA.



	2)  The employer contends that the citation is defective in
that it does not state facts upon which the second and third
item of the citation are based pursuant to ORS 654.071(2)(b). 
Additionally, if the motion is denied, the employer contends
that Items 1-2 and 1-3 are for the same action and Item 1-3
should be dismissed because the violation should be under the
rules relating to the specific occupation rather than the
general administrative rules.



	3)  The employer contends that OR-OSHA lacks authority to issue
the citation because the inspection which led to the citation
was improper and illegal in that:



	a) OR-OSHA did not follow the statutory requirements of ORS
654.067 and 654.071.



	b) OR-OSHA did not follow the mandatory administrative rule: 
OAR 437-01-080(1).



	c) OR-OSHA did not comply with the mandatory requirements as
set out in the Field Compliance Manual.



	d) OR-OSHA did not review Division 40 & 80 rules pursuant to
ORS 183.545.



	4)  The employer contends that the Referee should award an
attorney fee and exemplary damages based on OR-OSHA's egregious
conduct in this matter.  The employer cites OAR 438-85-800 and
438-85-805(12) as authority to make these awards.  



                         FINDINGS OF FACT



	The employer in this matter is a contract logger who was
involved in logging in the National Forest on a site called the
Crazy Pollard Sale.  Sometime in late November 1991, a Forest
Service employee called the office of OR-OSHA to report that he
had seen the employees of this employer riding the rigging on
the job site.  This report was handled as an anonymous tip.



	The tip was given to Diane Mekkers, a supervisor, who relayed
it to Bruce Brown, a safety compliance officer (SCO), and
instructed him to check out the information to see if the
violation was occurring.  No complaint file was set up at that
time.  



	Mr. Brown went to the job site on three separate days, staying
off that portion of the land that was part of the sale, but did
position himself where the workers could be observed.  On the
third day, he also saw the workers riding the rigging.  The next
day, he returned to the work site and did an opening conference
with Kirk Olsen, the representative of the employer that was on
the job site.  Mr. Olsen was one of the employees Mr. Brown had
seen riding the rigging the night before.



	After the opening conference, Mr. Brown did an inspection by
taking statements from the other workers at the job site.  No
representative of the employees was selected to accompany Mr.
Brown on this inspection.  The employees denied having ridden
the rigging.  Only one employee indicated that he had seen other
employees ride the rigging while working for this employer.  



	Because of the inconsistency between what Mr. Brown saw and the
employees' statements, it was determined that additional
statements should be taken under oath.  The employer had
knowledge that these statements were to be taken prior to the
actual date of the questioning.  The inspection process was
closed in April 1992 and a citation was issued on April 15, 1992
listing three items with a total penalty of $30,000.  The
violations were listed as willful.



	Items 1-2 and 1-3 do not contain a plain statement of the facts
upon which the citation is based.  The only fact listed,
specifically to this employer, is the name of the employer.  The
citation does, however, cite the specific rules that have been
violated.  Division 80 rules which pertain to logging were last
amended in 1985, prior to the issuance of this citation. 
Division 40 rules were last amended March 1, 1991 and prior to
that in June 1990.  



               CONCLUSIONS OF LAW AND OPINION



Jurisdiction



	The employer contends that OR-OSHA does not have jurisdiction
to issue the citation in this matter because the alleged
violations occurred on National Forest land (federal land) over
which federal OSHA has jurisdiction.  I disagree.



	ORS 272.040 relates to legislation consenting to the
acquisition of state land by the federal government for National
Forests.  This legislation was originally adopted in 1935 and
amended in 1967.  OR Laws 1935 Ch 268.



	ORS 272.040(2) states in part:



	     
The State of Oregon retains a concurrent jurisdiction with the United States in and over lands so acquired: (a) So that civil processes in all cases, and such criminal processes as may issue under the authority of this state against any person charged with the commission of any crime without or within such jurisdiction, may be executed thereon in like manner as if this consent had not been granted.
This is also consistent with 16 USCA, Section 480 wherein the states retain criminal and civil jurisdiction in federal forest lands. The language of that section has been basically the same since it was adopted as Section 12 in 1911. The employer cited Labor and Industries v. Dirt and Aggregate, Inc., 120 Wn2d 49, 53 (1992), as support for its position that OR-OSHA does not have jurisdiction in this matter. I do not find that case to be persuasive in this matter because of the basic difference in the jurisdiction that was ceded back to the federal government. Mt. Ranier National Park was established by an Act of Congress in 1899. In 1901, the Washington Legislature ceded exclusive jurisdiction over all park lands to the federal government. When exclusive jurisdiction has been given to the federal government, state regulation of activities within the federal enclave may resume only with the express permission of Congress. In the instant matter, the Oregon Legislature retained concurrent jurisdiction over the national forest lands, which was consistent with the federal law. Where concurrent jurisdiction is retained, the state is not prohibited from regulating activities within such lands unless there has been a federal pre-emption of such regulation. If it could be argued that the adoption of federal OSHA has pre-empted the area of worker safety, that pre-emption was negated when the federal government approved Oregon's state plan. See OSHA Section 18(b) P.L. 91-596. Also, because the state occupational health and state standards are almost identical to the federal standards, it cannot be argued that there is a conflict in the laws which would give the federal regulations supremacy over the state regulations. Consequently, the state has retained concurrent jurisdiction over national forest lands and OR-OSHA was within its authority to issue the citation in this matter on the basis of jurisdiction. Defective citation The employer contends that those portions of the citation that are identified as Items 1-2 and 1-3 are defective and thus should be dismissed because there is no statement of facts pursuant to ORS 654.071(2)(b). Item 1-2 states that OAR 437-80-015(1) is the standard violated, but only gives a description of the rule and lists the name of the employer. Item 1-3 similarly states that OAR 437-40-030(1) was the standard violated without stating facts particular to this employer. Each item is listed as a willful violation and each carries a $10,000 penalty. ORS 654.071(2) requires a citation to contain:
(a) the date and place of the alleged violation, (b) a plain statement of the facts upon which the citation is based, (c) a reference to the law, regulation, rule, standard or order relied upon, (d) the amount, if any, of the proposed civil penalty, and (e) the time, if any, fixed for the correction of the alleged violation.
The applicable rule regarding the contents of the citation and this statute is found in OAR 437-01-205 which also requires a factual description of the nature and location of the violation. The employer contends that the citation does not contain a plain statement of facts upon which Items 1-2 and 1-3 are based and as such it had no notice or knowledge of how the violation occurred. The plaintiff, OR-OSHA, argued that the description of the violation was sufficient to give the employer notice regarding these specific items. The plaintiff further argues that there is a similar requirement in ORS 183.415(2)(d)and that the Court's holdings on that statute should be instructive to the Referee. OR-OSHA contends that under that statute, the employer would have to show that it was prejudiced by the lack of particularity in the pleadings before those portions of the citation could be dismissed and the employer has not shown that prejudice. The plaintiff additionally argues that the employer knew or had an opportunity to find out by pre-hearing discussions what the facts were and the failure of the SCO to fully state them is not fatal to the citation. The rules of practice and procedure for contested OR-OSHA cases are found in Chapter 438, Division 85 of the Workers' Compensation Board rules. A citation is considered to be the complaint and can be amended as a matter of right at any time prior to the Notice of Hearing being issued. OAR 438-85-526(1). After that, a pleading may be amended by motion to the Referee showing good cause. OAR 438-85-536. No amendment was made to the citation in this matter prior to the issuance of the Notice of Hearing and no motion has been received from the plaintiff in this matter to subsequently amend the citation. At the preliminary hearing the attorney did indicate that he may, at a later time, wish to conform the pleadings to the facts. OAR 437-80-015, which contains the rules that relate to logging, requires the employer to develop, implement, and maintain a formal accident prevention program. OAR 437-40-030 requires the employer to see that workers are properly instructed and supervised in the safe operation of machinery, etc. I agree with the employer that Items 1-2 and 1-3 do not contain a plain statement of the facts regarding the violation as required by the statute and to a lesser extent by the applicable rule. I, however, disagree with the employer that such a deficiency does result in a fatal flaw which should result in the dismissal of the citation. Because there is very little in the way of case law in OR-OSHA cases, cases that have been decided under ORS 183.415 may prove to be instructive, if not binding. There does appear to be a conflict between the rules adopted by the Board for the conduct of the hearings and the rules adopted by the Director which specifically adopts the Attorney General's Model Rules of Procedure pursuant to ORS 183.341. See OAR 438-85-006(3) and OAR 437-01-001. If there is a conflict in the rules, I am compelled to use the rules adopted by the Board based on ORS 656.726(2) and (4). *The statutes allow the agency to adopt its own rules or adopt the uniform rules, the Board has adopted its own rules to be used in contested safety case hearings. In Administrative law proceedings, the objective of the pleadings is fair notice. 1 Davis, Administrative Law, 523 Section 8.04. Professor Davis goes on to state that the key to pleading in the administrative process is nothing more than the opportunity to prepare. Pleading is only one of the many ways of providing opportunity to prepare. Deficiencies in a pleading may be cured by informal communication, by formal amendment, by a bill of particulars, by a pre-hearing conference, or by ample continuances at the hearing. OR-OSHA argued that several cases decided under Chapter 183 did apply to this case. In The Grog House v. OLCC, 12 Or App 426 (1973), the petitioner had been denied a renewal of his license to dispense liquor. He appealed and the denial was upheld. On his appeal to the Court of Appeals, the petitioner contended that his motion to make more definite and certain which had been denied was a denial of his due process rights. ORS 183.415(2). In this matter, the petitioner had been given time, after the OLCC presented its case, to prepare his defense. The Court held, that because claimant was given an opportunity to prepare a defense, its due process rights were not denied. A similar result was held in Campbell v. Board of Medical Examiners, 16 Or App 381 (1974). In that matter the petitioner had been denied reinstatement of his license to practice medicine. He alleged denial of due process in that the notice did not spell out in sufficient detail all conduct which was the basis of the Board's denial. The Court found that the petitioner had detailed advance knowledge and was fully aware of the specific facts and charges which formed the basis of the action taken in order to enable him to prepare his defense. See also Klein v. Real Est. Comm. Holbrook, 19 Or App 646 (1974). Failure on the part of the petitioner to show prejudice due to absence of specifics in the notice pursuant to ORS 183.415(2) is a deciding factor in finding that there has not been a denial of due process. See Turnquist v. Employment Division, 72 Or App 105 (1985); Stadler v. Bd. of Medical Examiners, 37 Or App 853 (1978). The Court has further held that if the petitioner has an opportunity to continue the matter to cure the surprise when the notice lacks specificity, petitioner is not denied due process and the matter should not be set aside. Campbell v. Bd. of Medical Examiners, Supra.; George's Gold Coin v. OLCC, 24 Or App 457 (1976). I find the reasoning of the Court in the above cases to be instructive. Based on a Due Process argument, I do not find that the citation, the pleading in this matter, should be dismissed. Based on the rules of procedure contained in Chapter 438, Division 85, I do not find a basis for a dismissal of any portion of the citation. It may have made a difference if the matter had gone to hearing on the merits; however, that has not happened and the right to amend in the future is not prohibited. Instead, I find that in the alternative, the employer's motion should be considered a motion to make more definite and certain so that when, and if, the hearing on the merits is held in this matter, the employer will be adequately informed as to the basis of the violation and can be prepared to defend against those items it contends are improperly pleaded. Because I have indicated that those portions of the citation that are identified as Items 1-2 and 1-3 should not be dismissed, the alternative issue must be addressed. The employer contends that according to ORS 654.025(3)(c), there can be an assessment of only one penalty when the "state of facts" constitute a violation of more than one rule or regulation. The employer argues that Division 80 is a vertical code and if there is a rule contained in that Division for a specific subject, like training and supervision, OR-OSHA should not go outside that Division and cite for the same violation in another division. It would appear that OR-OSHA contends that the employer did not maintain adequate training and supervision over its employees. I agree with the employer that both Items 1-2 and 1-3 are based on the alleged failure of the employer to provide this training and supervision. According to statute, only one penalty can be assessed for this alleged violation. Therefore, one of the items cannot be pursued. Logically, the alleged violation from the specific code as opposed to the general code should remain. Consequently, Item 1-3 will be dismissed as duplicitous of Item 1-2. Improper Inspection The employer contends that OR-OSHA lacks authority to cite the employer because the inspection was improper and illegal in that:
a) OR-OSHA did not follow the statutory requirements of ORS 654.067 and 654.071. b) OR-OSHA did not follow the mandatory administrative rule: OAR 437-01-080(1). c) OR-OSHA did not comply with the mandatory requirements as set out in the Field Compliance Manual. d) OR-OSHA did not review Divisions 40 and 80 rules pursuant to ORS 183.545.
The employer contends that the inspection began when the SCO was first assigned to go to the area of the logging site and view the work in progress to see if the basis of the complaint could be established. The SCO did go to the area and watched the work in progress on November 26 and 27th, and on December 2, before beginning, what has been described as the official inspection, on December 3, 1991. ORS 654.067 relates to inspections which the Director, or his authorized representative (SCO), is entitled to do after the presentation of credentials to the owner. Because credentials were not presented in this matter until December 3, 1993, after the SCO had observed the workers riding the rigging, the employer contends that the citation based on what was seen on December 2, 1993 was illegal. The rule, specifically OAR 437-01-080, allows for an inspection without an opening conference, in which the credentials are presented, if the employer or employer representative is absent or declines to participate. The rule further states that no inspection will be made if neither the employer, employer representative, nor employees are present at the place of employment, except when executing an inspection warrant or when posting a Red Warning. At the time of the off-site viewing,there was both an employer representative and employees on site. The SCO testified that he was not executing an inspection warrant nor was he posting a Red Warning. The employer contends that the rules and the Field Compliance Manual required OR-OSHA to handle this matter in a different manner. The employer argues that this failure to follow the outlined procedure was so gross as to require that the citation be dismissed. OR-OSHA received a referral from a Forest Service employee regarding the alleged violation. The violation, if true, would be an imminent danger because it could result in death or serious physical injury to the employee. OAR 437-01-015(36). When an imminent danger referral has been made to the department, the rules indicate that an inspection shall be made as soon as possible after notification to the department. OAR 437-01-055(1). An inspection is defined as an official examination of a place of employment by a Compliance Officer to determine if an employer is in compliance with the Act. OAR 437-01-015(37). The observing of the employer's job site prior to the day that the credentials were presented was an official examination of a place of employment. The purpose of the observation was to catch the employees doing activity that would be a violation of the safety rules. It is that observation that has resulted in the basis for the issuance of the citation. The rules and the statute require the SCO to present credentials before the inspection can take place, absent certain exceptions that are not relevant in this matter. This differs from a drive-by inspection in that in those situations the SCO notices some violation, and immediately confronts the employer while generally the unsafe conduct or situation continues. In this matter, the SCO observed the unsafe conduct on the third day of his viewing of the logging site. He did not immediately go onto the site and begin an opening conference, nor did he post a Red Warning to close down the site until he could meet with the employer the next day. The Field Compliance Manual, which is a guide to the procedures the SCOs are to follow, indicates that a complaint that alleges an imminent danger, shall be inspected the same day received, where possible, but not later than the employer's next working day. The SCO, and his supervisor, received a referral of a complaint of an imminent danger several days before the formal inspection was made. See Chapter 9 A. 6. Chapter 7, on imminent dangers, requires the immediate inspection of any alleged imminent danger situation. Chapter 7 C. 1. When an imminent danger inspection cannot be accomplished the day the report is received or the employer's next working day, the SCO is required to contact the employer immediately and attempt to eliminate the danger. See Chapter 7 B. 1. e. and C. 2. a. and c. 3. The SCO in this matter, did not follow the steps outlined in the Field Compliance Manual, which standing alone does not carry any rights to the employer. However, the SCO also did not follow the rules that were adopted by the agency in that the inspection took place before the credentials were presented and there were no relevant exceptions. The procedure followed by the SCO in observing prior to the inspection and not inspecting immediately after the violation occurred does not meet the apparent intent of the statute. Agency rules are adopted to give the general public an idea of what to expect from the agency. The rules and especially the Field Compliance Manual appears to provide for ways in which this matter could have been handled differently so that the inspection would have been properly within the rules. Failure to follow the rules in this matter makes the observation, that occurred prior to the formal inspection, invalid and improper. Since the citation was based on the violation that was observed prior to the inspection, the portions of the citation that deal with the riding of the rigging or failure to train and supervise as evidenced by this unsafe work practice shall be dismissed. Because I have found that the citation should be dismissed in its entirety, I need not address the employer's argument that Divisions 40 and 80 rules are not valid because they were not timely reviewed pursuant to ORS 183.545. Attorney Fees and exemplary damages The employer requests that the Referee award an attorney fee and exemplary damages if the motion to dismiss is successful. The employer argues that the conduct of OR-OSHA is so egregious in this matter that it should have to pay for the employer's costs to defend this matter. The employer cites OAR 438-85-800 and 438-85-805 (12) in support for its position. The rules cited by the employer are rules adopted by the Board for the practice and procedure of contested cases in safety hearings. The authority of the Board does not extend to making rules that could be used as a basis for attorney fees without some explicit statutory authority. There is no authority under which an award of attorney fees could be made nor under which an award of exemplary damages could be granted. Claimant argues that OR-OSHA should be penalized for this matter. It argues that the actions by OR-OSHA in this matter were particularly egregious. The employer's argument may have some merit, but I do not have the authority to grant its request. Therefore, ORDER IT IS HEREBY ORDERED that the citation that was issued in this matter on April 15, 1992 is dismissed. 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 AUGUST 20, 1993 WORKERS' COMPENSATION BOARD By Marilyn E. Nichols Referee