BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:SH92353

		vs.			)

					)  Citation No.S042604092

	Defendant			)

DCS SANITATION MANAGEMENT		)  OPINION AND ORDER



Hearing convened and closed before Referee Mills in Pendleton,
Oregon on May 6, 1993. The employer was represented by its
representative, Ron Moore. Also present for the employer was
Mike Beem. OROSHA was represented by its attorney, Armonica
Gilford, Assistant Attorney General. Also present was safety
officer Corey Stengal. Business Support Services recorded the
proceedings. Exhibits 1 through 14 were received into evidence.



                         ISSUES



The sole issue concerning Citation No. S0426-040-92 is the
classification of the violations in Items 1-1 and 1-2 as
serious. the employer's position is that they should be
classified as general. The employer does not dispute the
violations or the fine, but only the classification of those two
items.



                      FINDINGS OF FACT



The employer is an Ohio company which provides sanitation
services for business such as meat cutting companies. On July 7,
1992 safety compliance officer Corey Stengal inspected Hill Meat
Company where the employer was cleaning.



At the time of the inspection four violations were observed and
a citation was issued. Items 1 and 2 have to do with an eyewash
which needs to be provided where hazardous, toxic or corrosive
materials are handled. In this case, the employer used chemicals
for cleaning, which, before dilution, could cause serious damage
to the eyes if they were splashed on the eyes. The probability
of that occurring was low because the person doing the mixing
used a face shield. However, the eyewash was some 42 feet from
where the chemicals were stored and it was not a direct line to
the eyewash. In addition, the eyewash itself had only one nozzle
while two would be necessary if both eyes were involved. In
addition, the water pressure at the eyewash was not high and
consistent. The eyewash had never been tested or inspected by
the employer to insure that it was operating properly.



                FINDINGS OF ULTIMATE FACT



The violations cited in Items 1-1 and 1-2 had a low probability
of causing serious physical harm.



               CONCLUSIONS AND OPINION



I note at the outset that, while not contesting the violations,
the employer did argue that under OAR 437-112-005(4) there is a
definition of reasonably accessible which is stated to mean that
"no more than 3 minutes travel time from any work location"
constitutes reasonably accessible. The employer apparently
understood that to mean that the eyewash had to be reasonably
accessible and therefore since it was within 3 minutes of the
chemicals there was no violation, or at least if there was a
violation, it should not be considered serious.



OROSHA correctly points out that that definition has nothing to
do with eyewashes. It is provided so that a different provision
of the Water and Sanitation Act is understandable. Under OAR
437-112-015(1) potable water must be provided in all places of
employment for drinking, washing, cooking and other use.
Subsection 2 of that provision provides that the water shall be
"reasonably accessible" to all employees. "Reasonably
accessible" in that circumstance means three minutes.



The provision dealing with eyewashes is in a different section,
436-112-050 which provides that: "Clean water under pressure
shall be immediately available wherever materials which are
hazardous, toxic, or corrosive are handled, and fixed work areas
or stations where such hazardous, toxic or corrosive materials
are handled shall have eyewash fountains and deluge showers
immediately available for use: . . ." (my emphasis).



Under that section it is clearly not enough to have eyewashes
reasonably accessible or within three minutes of the hazardous
materials. They must be "immediately accessible." That only
makes sense. While it was not likely, it was possible that Mr.
Beem, the worker who handled the non-diluted chemicals, could
splash them over or around his face mask and get them on both
eyes. If he did that, he would not want to have to stumble
through a couple of doorways and around a wall to get to an
eyewash with only one nozzle. He would want an eyewash with a
nozzle for each eye immediately available to him so he would not
suffer serious injury to his eyes.



Under OAR 437-01-015(50) serious physical harm is defined as,
"Injuries that could shorten life or significantly reduce
physical or mental efficiency by inhibiting, either temporarily
or permanently, the normal function of a part of the body."
Obviously damage from the alkaline chemical in this case, sodium
hydroxide, in its relatively non-diluted form, could cause
serious permanent or non-permanent damage to the eyes if it came
in contact with them. Serious physical harm was the risk.



Under OAR 437-01-145(5) where there is a low probability of
serious physical harm, as was true here, that constitutes a
serious violation as defined under the rules. Thus, even though
the chance of an accident with these chemicals was not high, and
therefore the probability of injury was low, the severity of the
injury was such that serious physical harm could have come
about. Where there is a low probability of serious physical
harm, the Administrative Rules provide that that violation is
considered serious.



Accordingly, the violations were properly characterized as
serious rather than general, and the citation will be approved
as issued.



                          ORDER



IT IS HEREBY ORDERED that Citation No. S0426-040-92 is approved
in its entirety.



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 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 on MAY 19 1993



				WORKERS' COMPENSATION BOARD

				By JOHN MARK MILLS, Referee