BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-93040

	Plaintiff,			)

		vs.			)  Citation No:  W4657-026-93

Fred Meyer, Inc				)

	Defendant.			)  OPINION AND ORDER



	Pursuant to notice, a hearing was convened and continued on
September 21, 1994, in Eugene, Oregon, before Referee Kirk
Spangler.  The plaintiff, Oregon Occupational Safety & Health
Division ("OR OSHA"), was represented by Assistant Attorney
General, Ms. Armonica Gilford.  The employer, Fred Meyer, Inc.,
was represented by Mr. Ronald Holloway, Attorney.  Exhibits A
through 18 were received in evidence.  The hearing was
reconvened and closed on November 17, 1994.  The proceeding was
recorded by Business Support Services.



                         ISSUE



	Item No. 1-1.  Whether exit access from the West Eugene Fred
Meyer store's stock/apparel room violated OAR 437-02-040, 29 CFR
1910.37(f)(5).



                         FINDINGS OF FACT



	In May 1992, OR OSHA cited the Fred Meyer North Coast store for
an alleged violation of OAR 437-02-040, 29 CFR 1910.36(b)(4). 
The following month, OR OSHA cited the Fred Meyer Grants Pass
store for the exact same violation.  Fred Meyer appealed both
citations.  A hearing was then set, which consolidated both
appeals.



	Thereafter, the parties reached a settlement.  Their agreement
was memorialized in a January 8, 1993 letter, which was signed
by the representatives and attorneys for each party.  The terms
of the agreement required Fred Meyer to install door signs ("NOT
A FIRE EXIT") and to provide personnel training in every one of
its stores throughout Oregon.  Consequently, Fred Meyer believed
that the settlement applied to all of its Oregon stores and that
OR OSHA would not cite any of  its other stores for the same
violation.



	The West Eugene Fred Meyer store opened in August 1983.  At the
time of construction, it complied with the Uniform Building Code
("UBC") and the Uniform Fire Code ("UFC").  The UBC limits
maximum exit travel distance to 200 feet.  The West Eugene
store's exit compliance was verified under the ARC and
triangular measurement methods.  Since 1983, the 200 foot
requirement has remained the industry standard, but the ARC and
triangular measurement methods have been gradually replaced by
the more conservative "line of travel" method.



	In February 1993, OR OSHA Safety Officer, David Wooley,
inspected the West Eugene Fred Meyer store.  Wooley inspected
the stock/apparel room.  He noted the locked exterior door with
the NOT A FIRE EXIT sign.  He then apparently used the "line of
travel" measurement method to measure the exit distance out of
the stock/apparel room.  His measurements revealed a distance of
something more than 200 feet, but less than 236 feet.  Ex. 3-5
and 7B.



	ORS 476.030 specifies that compliance with fire safety
regulations is to be determined under the UBC in effect at the
time of construction.  At the time of his inspection, Wooley was
apparently aware that the West Eugene store complied with the
UBC at the time of its construction.  Thus, he initially thought
that the West Eugene store was in compliance with OR OSHA's
Safety & Health Code.



	After returning to his office, however, Wooley spoke to his
supervisor, Mr. Loy Knutsen.  Knutsen informed him that OR
OSHA's rules were not based on the UBC.  He further stated that
OR OSHA was not concerned about exit distances, but was
concerned about exit hazards.  Consequently, Wooley returned to
the Fred Meyer store the following day and on March 2, 1993,
cited the employer for an exit hazard under CFR 1910.37(f)(5).



	Fred Meyer appealed the March 2, 1993 citation.  A hearing was
set and convened on September 21, 1994.  At the outset of the
hearing, Fred Meyer withdrew its appeal of Item No. 2-2, but
continued to dispute Item No. 1-1.



	Mr. Brian Roberts, an architect, was a general contractor prior
to becoming an architect.  He has worked as an architect for the
last 14 years.  In his capacity as an architect, he has worked
on several of the Oregon Fred Meyer stores.  Specifically, he
has been in charge of the exit studies.  He has a high degree of
knowledge and expertise in exit design and in the UBC.



	Mr. Gary Kennett, is a deputy fire marshall with the City of
Eugene.  He has worked in that capacity for over four years, and
has been a fireman for 23 years.  He has inspected the West
Eugene store's stock/apparel room on two occasions.  He has not
cited the West Eugene store for a violation of the UFC.



	Mr. David Wooley, a safety compliance officer, has worked for
OR OSHA in that capacity for nearly four years.



                    ULTIMATE FINDINGS OF FACT



	The exit access from the Fred Meyer West Eugene store's
stock/apparel room does not, on this record, necessitate travel
toward an area of high hazard occupancy in order to reach the
nearest exit.



                CONCLUSIONS OF LAW AND OPINION



	OR-OSHA has the burden of proof in this case.  Thus, it must
establish that a violation occurred.  Its citation was based on
29 CFR 1910.37(f)(5), which states:



	"Exit access shall be so arranged that it will not be necessary
to travel toward any area of high hazard occupancy in
order to reach the nearest exit, unless the path of travel is
effectively shielded from the high hazard location by suitable
partitions or other physical barriers."  (Emphasis added).



	OR OSHA argues that Fred Meyer's economic decision to lock the
exterior exit door in its stock/apparel room creates an undue
risk to its employees.  Namely, that in the event of a fire, the
only means of escape would be back into and through the retail
area.  Fred Meyer asserts several defenses, including actual
compliance, economic unfeasibility, res judicata, estoppel, and
improper rule making.  In particular, Fred Meyer believes that
it had reached a statewide agreement with OR OSHA, which the
agency later reneged.



	Much of the hearing and argument in this case has concerned the
various methods of measuring exit distances.  OR OSHA does not
dispute that it used the conservative "line of travel" method. 
Fred Meyer argues that utilization of the "line of travel"
method was never validly adopted as an administrative rule.  OR
OSHA responds that the "line of travel" method originated in the
1970 Life Safety Code, which in 1990 was incorporated by
reference into Subdivision E of its Safety and Health Code.  Ex.
9-13.



	Curiously, however, nothing in CFR 1910.37(f)(5) refers to the
"line of travel" method.  In fact, after searching the record, I
find no reference to the "line of travel" method in either the
Life Safety Code, the Safety and Health Code, the UBC, or the
UFC.  Whether the method of measuring set forth in Section 5-119
of the Life Safety Code is the "line of travel" method, is not
clear.



	I conclude, however, that I need not address whether it was
proper for OR OSHA to utilize the "line of travel" method.  That
is, OR OSHA has cited Fred Meyer for allegedly violating CFR
1910.37(f)(5), which prohibits exiting through an area of "high
hazard occupancy."  To that end, Wooley testified that:  "[My
supervisor] told me that our rules were not based on the Uniform
Building Code.  That our concern was not  with measurements,
but in exiting."   (Emphasis added).



	Thus, I examine the phrase "high hazard occupancy." 
Subdivision E of the Safety and Health Code defines various
types of hazards.  For example, CFR 1910.35(e) through (g)
define low, ordinary, and high hazard "contents."  Here,
however, OR OSHA's citation  does  not  address hazardous
"contents."  Rather, it addresses hazardous "occupancy."  I,
therefore, turn my attention to an examination of that
particular type of hazard.



	The plain and ordinary meaning of "occupancy" is as follows: 
"the act of taking and holding possession; the act of becoming
an occupant; the state of being an occupant; the condition of
being occupied."  Webster's New Collegiate Dictionary, 1981. 
Next, looking to the context of Subdivision E, subsection (d)
addresses "Egress capacity and occupant load."  (Emphasis
added).  In so doing, subsection (d)(1) states:  "The occupant
load shall be the maximum number of persons that may be in the
space at any time."  (Emphasis added).



	Accordingly, viewing both the ordinary meaning of  "occupancy,"
as well as the context of Subdivision E, I conclude that the
phrase "high hazard occupancy" is a clear reference to a highly
hazardous number of persons in a given area -- not the distance
of travel.  It follows, therefore, that to prove a violation of
CFR 1910.37(f)(5),  OR OSHA must put on some evidence regarding
the number of persons in the area of travel.  I find virtually
no evidence of that kind, however.  While I make no conclusion
concerning what precise type of occupancy evidence was required
by OR OSHA, the following would seem probative:  (1)  the number
of occupants, either customers or employees, that are typically
in the area of travel during an average work day; and (2) the
occupant load of the area of travel.



	Moreover, what minimal evidence there is on the issue of
occupancy does not reveal a hazard, let alone a high one. 
Exhibit 3A-4 includes a photograph of the interior door from the
stock/apparel room into the retail area.  Although the date and
time in which the picture was taken is not known, I detect what
appears to be only one person near the end of the aisle.



	In addition, the weight of the expert testimony suggests that
the exit path is not an area of "high hazard occupancy."  First,
Roberts testified that:  "I disagree that [the stock/apparel
room exit configuration] can be considered * * * a high hazard."
 Second, Kennett testified that:  "Nothing here violated the
Uniform Fire Code.  So there is no fire hazard."  Last, Wooley
testified that he had estimated whether a hazard existed on the
basis of his inspection, as well as on Division 1 of the Safety
and Health Code.  Nothing in his testimony or his field notes,
however, reveal any inspection findings to support  his
estimation that the exit pathway created a hazard.  Thus, it
appears that Wooley reached the following conclusion:  inasmuch
as the exit pathway from the stock/apparel room leads into the
retail area, it is necessarily a hazard.  While that conclusion
could be true, in the context of litigation, like here, it must
be proved.  Here, Wooley provided no data, facts, or reasoning
for his estimation



	Furthermore, Wooley never explained why he believed the hazard
was "high," as opposed to "medium" or "low," or why he believed
that there was a problem with "occupancy."  Yet, those are some
of the necessary elements to prove a violation of CFR
1910,37(f)(5).  As far as I can tell, the only specific hazard
that Wooley identified was exposure to smoke.  Smoke exposure,
however, is not a violation under CFR 1910.37(f)(5). 
Accordingly, I conclude that Wooley's expert opinion is not
persuasive.



	For all of the aforementioned reasons, I conclude that OR OSHA
has not met its burden of proving that Fred Meyer violated CFR
1910.37(f)(5).



                           ORDER



	IT IS THEREFORE ORDERED that Item 1-1 of OR OSHA's
citation 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 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,  12/16/94



				Workers' Compensation Board

				Kirk Spangler

				Referee