BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
   Health Division			)  Docket No  SH-92165 

					)

	 Plaintiff			)

					)

					)  Citation No:  L6260-021-92

					)

DAREN RICHARD OSTLIE 			)

					)

	Defendant			)  OPINION AND ORDER



	Pursuant to notice, a hearing convened February 15, 1994 in
Portland, Oregon, before Referee Michael V. Johnson and was
recorded by Sandy Madden of Harris Reporting Service. 
Plaintiff, Oregon Occupational Safety & Health Division
(OR-OSHA) was represented by Assistant Attorney General Kevin
Shuba.  Defendant, Daren Richard Ostlie, was represented by
Attorney George Goodman.



                         ISSUES



Citation No. L6260-021-92

(Ex. 1)



	Whether the entire citation should be dismissed as invalid
because it arose out of an improper inspection.  If the citation
is valid, whether the employer engaged in one or more unsafe
activities on or about January 16, 1991.



	The parties expressly agreed that the sole issue in this
session of the hearing would be the employer's Motion to
Dismiss, and that only if the Referee denied said motion would a
continued hearing on the merits be subsequently scheduled.



                         EXHIBITS



	At the outset of the hearing, exhibits 1-3, 5-11 were admitted
into evidence, but at the conclusion of the hearing the
employer's attorney moved to exclude Exhibits 2 through 6, which
request was ultimately granted on the theory that those exhibits
flowed from an incorrect inspection and, therefore, could not be
used as evidence.  During the hearing Ex. 12, 13 and A (the
Forest Service contract) were admitted into evidence.  Not
admitted was Ex. B, a "contract daily diary", which, of course,
continues in the record for purposes of appeal.



                     FINDINGS OF FACT



	Employer Daren Richard Ostlie was awarded a contract by the
U.S. Department of Agriculture Forest Service ("U.S. Forest
Service") to blast the tops of live conifer trees located solely
within the Mt. Hood National Forest on public lands owned by the
United States.  The purpose of this contracted service was to
create wildlife habitat.  The employer's performance of this
contract was overseen by the U.S. Forest Service contracting
officer's representative.  The contract specified certain safety
obligations of the employer.  The U.S. Forest Service had the
right to inspect employer's work and camp-site at any time and
did so.



	Daren Ostlie hired his younger brother, Jason Ostlie, to work
as an employee.  During operations on December 16, 1991, Jason
Ostlie was accidentally injured due to a premature detonation of
dynamite he had prepared in a tree located within the Mt. Hood
National Forest.  The employer was the first one on the scene
and immediately used a cellular telephone to send for an
ambulance.  An ambulance from Estacada, Oregon, responded and
stabilized employee Jason Ostlie.  A "life flight" was then
called for and soon the employee was flown to Emanuel Hospital
in Portland, Oregon.  By that time U.S. Forest personnel were on
the scene so the employer asked one Forest Service employee to
"secure" the dynamite and other blasting materials, which was
promptly done.  The employer left the premises by private
vehicle and traveled to the hospital.



	The Oregon Occupational Safety and Health Division ("OR-OSHA")
was notified of the accident on December 17, 1991 and OR-OSHA
Safety Compliance Officer ("SCO") Bruce Lawson arrived at the
Estacada Ranger Station at 2:30 p.m. that afternoon.  Guy Price,
Contract Office Representative for the U.S. Forest Service, and
William Cortain, Head Blaster for the Mt. Hood National Forest,
U.S. Forest Service were present.  Neither Daren Ostlie, nor
anyone employed by Daren Ostlie, was present at the Ranger
Station.  The U.S. Forest Service knew the injured worker had
been flown for emergency medical care at the Emanuel Hospital in
Portland.  The Forest service also knew the employer's address
and phone number and had frequently communicated with him during
the course of the contract, and knew the employer was probably
at his brothers side in the hospital.  No one made any effort to
locate the employer.  



	SCO Lawson presented his "credentials" and conducted an
"opening conference" with those individuals who were present at
the ranger station.  At approximately 3:00 p.m. that same day
SCO Lawson went to the accident site before attempting contact
with, or presenting credentials to, the employer.  Guy Price and
William Cortain accompanied SCO Lawson to the site.  SCO Lawson
first arrived at the accident site at approximately 3:30 p.m. 
Neither Daren Ostlie nor anyone employed by Daren Ostlie was at
the accident site at that time.  SCO Lawson took photographs and
interviewed Price and Cortain.  The artifacts of the accident
and the accident site were not disturbed.  SCO Lawson, Price and
Cortain left the accident site around 4:00 p.m. as night was
falling.  They returned to the Estacada Ranger Station.  SCO
Lawson then inquired about the best way to contact the employer,
Daren Ostlie.  Price contacted Daren Ostlie, and arranged a
meeting at the Estacada Ranger Station for the next day,
(December 18, 1991) at 1:00 p.m.  SCO Lawson then left to return
to Salem.



	On the morning of December 18, 1991, SCO Lawson, together with
fellow SCO Fritz Schukar, returned to the Estacada Ranger
Station, reviewed the U.S. Forest Service contract folder, and
then returned to the accident site to take measurements.  SCOs
Lawson and Schukar were again accompanied to the site by Price
and Cortain.  No representative of the employer had been invited
to go to the site with SCO Lawson.  No representative  of the
employer was present.  On this second visit to the site, the
wires and other evidence which related to the blast were moved
from their positions, thereby obscuring whatever might have been
the original condition of those wires and items.



	Returning to the Estacada Ranger Station at 1:00 p.m. on
December 18, 1991, SCOs Lawson and Schukar met with Daren Ostlie
for the first time.  They presented their credentials, conducted
an opening conference, and interviewed Daren Ostlie.



	Following the investigation by SCOs Lawson and Schukar, OR-OSHA
issued a citation to the employer for seven violations of the
Oregon Safe Employment Act for alleged activities of the
employer arising out of the employer's performance of the
employer's contract with the U.S. Forest Service.  Employer's
activities that gave rise to the citation took place solely on
public lands of the United States within the Mt. Hood National
Forest.  These federal lands were located within the boundaries
of the state of Oregon.  The employer has appealed the citation.



                         OPINION



APPLICABLE LAW



	OR-OSHA, like any other agency, is "a creature of statute whose
authority extends as far as the statutes extend and no further."
Ochoco Construction v. Department of Land Conservation and
Development, 56 Or App 36, 641 P2d 49, 53 (1982).  The
provisions of the agency's enabling statute are protection
against arbitrary or inadequately informed government conduct. 
Dika v. Department of Insurance and Finance, 312 Or 106, 109,
817 P2d 287, 288 (1991).



ORS 654.067 provides:

"In order to carry out the purposes of ORS 654.001 to 654.295 and 654.750 to 654.780, the director, upon presenting appropriate credentials to the owner, employer or agent in charge, is authorized: (a) to enter without delay and at reasonable times any place of employment and (b) to inspect and investigate during regular working hours ***any such place of employment***. ***(4)A representative of the employer ... shall be given the opportunity to accompany the director during the inspection of any place of employment for the purpose of aiding such inspection." ORS 654.067(4) (emphasis added).
ORS 654.071(1) provides:
If the director or an authorized representative of the director has reason to believe, after inspection or investigation of a place of employment, that an employer has violated any State occupational safety or health law, regulation, standard rule or order, the director or the authorized representative shall with reasonable promptness issue to such employer a citation, and notice of proposed civil penalty, if any to be assessed under this chapter and affix a reasonable time for correction of the alleged violation." (emphasis added).
OR-OSHA is not only bound by its enabling legislation, but is also equally bound by applicable Administrative Rules APD v. Asana, 110 Or App 103, 107, 821 P2d 432 (1991); Moore v. Oregon State Penitentiary, Correction Division, 16 Or App 536, 537, 519 P2d 389 (1974). Administrative Rules and regulations, once properly promulgated, have the same force and effect as statutes enacted by the Legislature. Bronson v. Moonen, 270 Or 469, 476, 528 P2d 82, 85 (1974); Harsh Investment Corporation v. State Housing Division, 88 Or App 151, 744 P2d 588 (1987). OAR 437-01-065(2) requires:
"A Compliance Office, if possible, shall present his/her credentials to an employer or employer's representative to establish the Compliance Officer's right of entry."
OAR 437-01-015(24) defines "employer representative as :
"An individual selected by the employer, to serve as spokesperson, or, in the absence of a selected spokesperson, the person in charge of the place of employment at the time of the inspection."
OAR 437-01-075 requires that
"the Compliance Officer shall, if possible, conduct a joint opening conference with the employer or a representative, and a representative of the employees, if any ***"
OAR 437-01-080(3) provides:
"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 as provided in ORS 654.216(2) or when posting a Red Warning Notice as provided in ORS 654.082."
DECISION The employer argues that OR-OSHA violated statutes and rules in (1) presentation of credentials, (2) conducting the opening conference, and (3) in the inspection. Since all alleged errors basically arose out of the same fact pattern I do not break down the government conduct for purposes of analysis. The SCO presented his credentials to those U.S. Forest Service employees at the Estacada office. The SCO failed to present credentials at any time prior to the inspection to the employer or an employer representative at any time prior to the inspection. The SCO made no effort to conduct an opening conference with the employer. OR-OSHA conducted an inspection, without a warrant, of the work site while the employer and all of his employees were absent. In fact, both inspections of the employer's place of employment were completed prior to the SCOs first meeting with an employer representative. Exceptions The rules, and perhaps even the statutes, grant some leeway in the requirements regarding presenting credentials to an employer, conducting an opening conference, and obtaining the employer's presence during the inspection. The next question is whether the conduct of OR-OSHA, though ostensibly not in compliance with the law, falls under any of those slight exceptions. Owner The evidence established that the Safety Compliance Officer made no effort to contact the employer, but rather, believed that the U.S. Forest Service was the owner of the premises per ORS 654.067, and therefore, was a bona fide party to whom credentials could be presented and with whom an opening conference could be held in lieu of the actual employer or employer representative. I disagree with that opinion. I understand the statute to require that, regardless whether the owner is presented with credentials, the employer or the employer's agent in charge must be presented. I have the same opinion regarding conducting the opening conference and the inspection. Person in Charge OR-OSHA further argues that, pursuant to OAR 437-01-015(24), the U. S. Forest Service was a correct party in the absence of the employer since it was "...the person in charge of the place of employment at the time of the inspection," and, therefore was the employer representative. However, I don't feel the Forest Service was "in charge of the place of employment". If it had been in charge, perhaps it should have been cited for operating an unsafe place of employment! No, actually its' role was as a contractor who had contracted for a bona fide employer to come onto its premises and perform certain contracted-for tasks. It had the normal contractual remedies if Daren Ostlie failed to perform, but was not the employer of Ostlie, nor an insurer he would perform well and/or safely. The fact that the work was performed on its premises did not make the U.S. Forest Service "in charge of the place of employment" any more than a typical landlord would be in charge of whatever business occupied a rented business premise. The government had some jurisdiction over the employer as an occupant of public lands as it would any other camper or occupant, but not over the employers' status as an employer. Not Impossible I conclude that this is not a case in which it was truly impossible to communicate with the employer and to see whether he desired to accompany the Safety Compliance Officer during the inspection--in fact, it probably would not have been even particularly difficult to make such arrangements. Not only had the U.S. Forest Service been in regular communication with the employer and knew his current address and phone number, but the Forest Service also knew of the whereabouts of the employer's injured brother (employee Jason Ostlie), and should reasonably have supposed that the employer would be available at that location, as well. Because the SCO had ample opportunity to discuss this matter with the U S. Forest Service before actually embarking upon the first inspection, it probably would have been relatively simple for the SCO to arrange to meet with the employer before credentials were presented and, of course, before the inspections took place. Therefore, the fact that the inspection was conducted without the mandatory presentation of credentials and conducting of an opening conference cannot be excused on the grounds of impossibility. Not emergency This was no longer an emergency situation. The SCO testified that they were concerned that snow might obliterate part of the evidence at the injury site, but I do not find that to be the sort of emergency which might possibly justify conducting an inspection without even an effort to communicate with the employer. Arguably, there may have been instances in history when it was correct to proceed with a prompt and even emergency inspection when other employees were continuing to be at risk because of a given hazard, but this certainly was not one of those cases. The SCO knew that any remaining dynamite and other blasting apparatus had been "secured" and did not present a threat to any other employees or the general public. Results of incorrect OR-OSHA conduct My conclusion, based upon the foregoing reasoning, is that there was no proper presentation or opening or inspection. The next question then is what effect, if any, does that have upon the citation which issued. The employer argues that the statutory use of the word "shall" is clearly mandatory, and I agree. The employer then argues that OR-OSHA actions outside of the scope of its rules are invalid. See Georgia-Pacific Corp. v. Kight, (91-09579; CA A79871) (1994) (reversing the Workers' Compensation Board's decision to grant a continuance because such action was inconsistent with its own mandatory rules). I agree that the conduct of OR-OSHA was incorrect and that the government entity cannot be allowed to proceed through hearing on the basis of the citation which was incorrectly obtained, and also to use the evidence obtained in the faulty inspection to carry its burden of proof in the relation to the citation. Something must be done, the only question is what is the correct action to be taken. The employer presented two models of how to deal with an invalid inspection: (1) to simply exclude all evidence garnered as a result of an incorrect and, therefore, invalid inspection; or (2) to outright dismiss the resultant citation. At hearing, I initially ruled that the correct remedy was to simply exclude all evidence, but after re-thinking that decision, I reversed my ruling and decided that the correct remedy was to completely invalidate, or vacate, the faulty citation. The reasons for that change were clearly set forth at the hearing and will not be repeated at this time. However, one reason for an out-right vacation is that the evidence was physically tampered with (albeit innocently) when the employer was not there, so he has been hopelessly prejudiced from that moment onward. ATTORNEY FEE Once the ruling was made at hearing to vacate the citation, there still remained the question whether OR-OSHA should be required to somehow compensate claimant because of the attorney's fees claimant incurred in defending against what turned out to be an invalid citation. The employer's attorney cited the time and expense for which that attorney had billed the employer in defending against the citation, particularly focussing upon the fact that at one point it seemed that it would be possible to conduct the procedural aspect of the hearing strictly based upon "stipulated facts", and obviate the necessity of any individual traveling to a hearing and yet OR-OSHA finally would not consent to proceeding in that particular fashion. Although it does appear that the employer's legal costs were increased because OR-OSHA did not agree to stipulated facts, I know of no remedy available to employer which would assuage the expense of the attorney's fees. Therefore, that portion of the employer's motion is denied. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED as follows: (1) The February 7, 1992 citation, Optional Report No. L6260-021-92 is hereby vacated. (2) There being no pending citation, this forum has no jurisdiction, and the matter is dismissed. (3) OR-OSHA shall not be required to reimburse the employer for any attorney fees incurred in defense against said citation. 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, on April 4, 1994 WORKERS' COMPENSATION BOARD Michael V. Johnson Referee