THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-92190


	Plaintiff,			)  Citation No. H1788-030-92

		vs.			)




	 Defendant.			)  OPINION AND ORDER

	Pursuant to notice, the above-entitled matter was heard and
closed by the undersigned Referee in Portland, Oregon on June
22, 1994.  The defendant, West Coast Structures, did not appear.
 Plaintiff, Oregon Occupational Safety and Health Division, was
represented by Norm Kelly.  Exhibits 1 through 7 were received
into evidence.  Harris Reporting recorded the proceedings.


	Defendant appealed item 1-1 which imposed a penalty of $800 for
a serious violation of OAR 437-3-040(1). 

                       FINDINGS OF FACT

	On January 13, 1992, Chuck Herburger was working as an
inspector.  He is an OR-OSHA senior compliance officer and has
worked as an inspector for 20 years.

	On January 13, 1992, Mr. Herburger observed a crane and saw men
working up on a hill.  He observed the men working near the edge
of a near vertical bank on I-84.  The men were working
approximately 50 to 75 feet from the ground.  Mr. Herburger
spoke with the foreman, who was down on the ground near the
crane.  Mr. Herburger then crawled up the hill after using cat
trails to get to where the two men were working.

	The two men who were working up on the hill had been provided
both a rope and a safety belt.  The two men were not using
either the rope or safety belts.  

	One of the workers was using a chain saw to cut all the brush
and trees from the top of the hill back to approximately 10
feet.  One of the workers was wearing a standard body belt with
D rings.  The D rings were not attached.  When the D rings are
not attached, the belt does not provide fall protection.  If the
D rings had been attached, it would have been ANSI-approved for
fall protection.  The other man did not have a belt.

	The ground on which the men were working was wet due to recent
rains.  In addition, the men were working on a steep surface. 
The inspector felt that the men were in danger of slipping.  He
also felt that they were not using adequate safety precautions. 
The rope that was being used by the two men was a 5/8-inch
yellow polypro rope.  The worker had not wrapped the rope around
the tree while holding the rope to secure his co-worker.  The
rope was not ANSI-approved.  It did not meet code.  It was not
capable of carrying a 5,400 lb. shock load.  The rope was not
designed to be used as lifeline.  It could not have held 5,400

	The men were working at a vertical drop of at least 15 feet. 
There was also approximately another 50 feet down to the bottom
of the embankment.

	Photographs taken on January 13, 1992 reveal that the workers
were not tied off properly.  They were not using an approved
safety belt nor an approved safety system.

	On February 19, 1992, citation No. H1788-030-92 was issued.  It
included item 1-1 which imposed an $800 penalty for a violation
of OAR437-3-040(1).  The citation also penalized the employer
for another violation.  However, item 1-2 was not appealed.

	The two workers who were engaged in clearing brush on
January13, 1992 were not protected from fall hazards while they
were working on the unguarded surfaces which were more than ten
feet above the lower level and when they were exposed to a fall.


	The defendant employer, West Coast Structures, did not appear
at the hearing. The plaintiff, Oregon Occupational Safety and
Health Division, still has the burden of presenting a prima
facie case.  I conclude that plaintiff has met its burden of

	OAR 437-03-040 addresses fall protection.  It provides, in
part, that all employees shall be protected from fall hazards
while working on unguarded surfaces more than ten feet about a
lower level or at any height above dangerous equipment, except
under certain circumstances.  The exception is not applicable to
the case at bar.

	OAR 436-03-040(3)(a) provides that any lifeline, safety belt,
or lanyard actually subjected to in-service loading, as
distinguished from static load testing, shall be immediately
removed from service and shall not be used again for employees'
safe-guarding.  Sub-section B of the same OAR provides that
lifelines shall be secured above the point of operation to an
anchorage or structural member capable of supporting a minimum
deadweight of 5,400 lbs.

	OAR 437-03-040(3)(c) provides that lifelines used on
rocky-scaling operations, or in areas where the lifeline may be
subjected to cutting or abrasion, shall be a minimum of 7/8-inch
wire core manila rope.  For all other lifeline applications, a
minimum of 3/4-inch manila or equivalent, with a minimum
breaking strength of 5,400 lbs., shall be used.

	I conclude that on January 13, 1992, two workers of the
defendant employer were engaged in clearing brush and other
material from the top of a near vertical bank on I-84 while they
were not protected from fall hazards.  The evidence establishes
that the workers were not using the appropriate safety belts or
lifelines.  The rope which was available for their use was not
ANSI-approved and would not have met the minimum criteria.  The
ropes which the workers had available to them were not designed
for use as lifelines.  Furthermore, the workers were not tied
off properly. 

	I conclude that the two employees were not protected from fall
hazards during the course of their work on January 13, 1992.  I
conclude that there was a violation of OAR 437-03-040(1).

	Although the workers were apparently confident that they would
not fall, a hazard did exist and the employer had the ability to
know of the possible problem.  In addition, based on the
inspector's testimony, the employer in fact knew that the
workers were not using the safety system which had been provided
them.  Furthermore, the safety system which had bee provided
them was inadequate in that the rope was not designed for use as
a lifeline and would not have been adequate to perform that
function.  Finally, the workers did not use a proper anchor
point and did not use the safety belt.  I conclude that there
has been a violation.

	I am also persuaded that the $800 penalty which was assessed is
appropriate.  OAR 437-01-145(2)(a) provides for a penalty
reduction of 20 percent for each violation, when the employer
corrects the violation before the end of the inspection.  Table
1 of the penalty schedule provides for a $1,000 fine when there
is a serious violation.  Since a 20 percent reduction equals
$800, I conclude that the $800 penalty was appropriately
assessed because there was a low probability of death, but if
the workers had fallen, they would have been seriously hurt.


	IT IS HEREBY ORDERED that citation No. H1788-030-92 and the
penalty contained therein is approved.

	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 State Court Administrator, Record
Section, 1163 State Street, Salem, OR  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 July 21, 1994