BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
     Health Division			)  Docket No:  SH-93318

					)

	Plaintiff,			)

					)

	 vs.				)  Citation No:  L4218-033-93

					)

Banks Lumber Co				)

					)

	Defendant.			)  Opinion and Order



	This matter initially convened before Administrative Law Judge
Mills in Portland, Oregon on January 24, 25, 26 and 27, 1995. 
Plaintiff, OR-OSHA, was represented by its attorney, Armonica
Gilford.  Defendant, Banks Lumber Company, was represented by
its attorneys, Michael Bostwick and William Brewster.  Harris
Recording reported all of the proceedings.  Bill Dozhier, the
mill superintendent, was the employer representative.  Larry
Lee, the chief investigating compliance officer, was plaintiff's
representative.  



	Additional testimony was taken on August 1 through 4, 1995. 
During the two proceedings, the following exhibits were admitted
into evidence:  1 through 62 and 56A.



	During the interim between the two proceedings, defendant's
motion to dismiss was briefed and an interim order was issued on
May 31, 1995, denying the motion.  That interim order is
incorporated herein.



	Closing arguments were scheduled post-hearing.  Plaintiff's
closing argument was received on September 11, 1995. 
Defendant's argument was received on September 20, 1995.  No
rebuttal was received from plaintiff and plaintiff advised on
October 10, 1995 that it would not be filing a reply argument. 
The record was closed on that date.



ISSUES



	Defendant's request for hearing contests citation number
L4218-033-93 which was issued on August 13, 1993.  The citation
contains nineteen items, most of which are in dispute as
follows:  Items 1-5, 1-6 and 1-7 were conceded at the time of
hearing, both with respect to the violations having occurred and
the penalties assessed.  In closing argument, defendant conceded
items 1-1, 1-4 and 1-10, again both as to the violations having
occurred and the penalties assessed.  



	Defendant disputes items 1-8 and 1-9 as to whether the
violation occurred, but, if it is concluded that the violation
occurred, defendant does not dispute the penalty with respect to
those violations.



	Defendant contests both whether the violation occurred and the
penalty assessed with respect to the remaining items of the
citation, items 1-1,  2-12, 2-13, 3-14, 3-16, 3-17, 3-18 and
3-19.



FINDINGS OF FACT



	Investigators for OR-OSHA were dispatched to investigate a
fatal accident which occurred at Banks Lumber Company during the
graveyard shift running from February 17, 1993 in the evening
through February 18, 1993 in the morning.  William Cavinee was
killed in the accident.  



	Compliance officers, Bill Brumm and Lenore DeMenge, were the
first compliance officers on the scene.  They presented their
card credentials and passed out business cards to
representatives of the company, including Bill Dozhier, the
plant superintendent, Rick Scaggs, the swing shift supervisor,
and at least one owner of the company, Mr. Girard.  They were
later joined by Larry Lee, the chief investigator of the
accident.  He also did a brief opening in which he presented
credentials.



	During the course of the investigation, the circumstances of
Mr. Cavenee's death were examined.  Videotape was taken and
still photographs were taken, witness statements were taken
which were recorded and written statements were prepared which
were signed off by the witnesses.  The fatal accident
investigation led to a more general inspection for violations
which were discovered during the course of the investigation. 
Ultimately, this led to the issuance of the citation in dispute
in this case.



	Banks Lumber is a lumber mill located in Banks, Oregon, west of
Portland.  The company is co-owned by brothers, George and
Gordon Girard, and their father.  The mill has approximately 85
employees.  It has two separate buildings, one a sawmill, the
other a planer.  The mill operates in two shifts, day and swing.
The planer operates only during the day shift and is therefore
shut down after two o'clock p.m.  



	After the planer mill is shut down, it is cleaned by a clean-up
person during swing shift, who sweeps up and removes sawdust and
waste wood products.  These are loaded onto a conveyor that goes
to a chipper.  The conveyor is therefore run during this period
of time.  In general, the planer machinery is not running at
this point.



	During graveyard, five workers are on site including a
millwright, three persons working at the saw mill including an
oiler and two clean-up persons and one person working in the
planer as an oiler.  Mr. Cavanee was the oiler working in the
planer during graveyard shift.  There was no supervisor present
per se during the graveyard shift, although the swing supervisor
might be present during part of the beginning of the shift and
the mill superintendent would generally be present during part
of the end of the shift.  John Gamble was the millwright during
graveyard and he would generally have the most authority during
that shift, but he did not have any supervisory capacity over
other employees as such.  



	In October 1989, an informal complaint was sent to OR-OSHA
alleging violations of health and safety requirements at the
plant.  OR-OSHA sent a copy of the complaints to the employer. 
Those complaints included unguarded chains and sprockets and a
lack of a lock-out program.  On November 20, 1989, the mill
supervisor at the time, Larry Coffman, responded to OR-OSHA
indicating the chains and sprockets were being guarded and that
a lock-out program had been initiated, but not completed and
that parts were being awaited (ex. 21-5).  At the time of the
employer's response, OR-OSHA rules did not require both lock-out
and tag-out.  At that time, either a tag-out or a lock-out was
sufficient under the standards.  No inspection of the plant was
done at that time.  



	The current lock-out, tag-out standards became effective in
Oregon in March 1990.  Those standards require an energy control
system and employee training in that system.  The purpose of the
system is to provide that when equipment is to be maintained,
serviced, cleaned around or operated in some other manner where
it is unsafe for employees to be working on or around the
equipment while it is running, that the equipment must be shut
down so that all energy generating devices, whether they be air,
electrical or kinetic are shut down, locked out with a padlock,
and tagged out.  This controls the energy device so that the
employee working on or about the machinery is assured that it
will not be started up again while the work is being done and
that no stored energy remains within the device that will allow
the machinery to operate while it is being worked on or about.



	In May 1992, the plant's planer facility was shut down so that
the old  building could be demolished and a new planer mill
built in its place.  An inspection was performed by compliance
officer Mills on May 20, 1990 (ex. 20-36).  At that time, the
employees were knowledgeable about the hazards of working on
equipment, but a full lock-out, tag-out program was not in
place.  Instead, machines were being tagged out but not locked
out as was allowed under the old standards.  Accordingly, at
that time, the employer was cited for failing to have a
lock-out, tag-out program and was fined $150 (ex. 18-5).  The
employer was also cited at this time for failing to have
adequate machine guarding on some conveyors, saws and chains and
sprockets (ex. 18-5, 4 through 6).  At the time of the
inspection, the employer was provided documents describing a
lock-out, tag-out program.



	The documents were given to Mr. Coffman, the mill
superintendent at the time.  He had not previously prepared a
lock-out, tag-out program.  The swing shift supervisor, Mike
Christensen, had previously worked on a lock-out, tag-out
program.  Accordingly, Mr. Coffman assigned Mr. Christensen to
prepare a written lock-out, tag-out program.  Mr. Christensen
did so and this resulted in written procedures documents in
exhibit 49.  This program was a general lock-out, tag-out
program that was not machine specific.  The program was
communicated to employees during a plant-wide meeting in July
1992.  At that time, information on hazardous materials was also
given to the employees by Mr. Christensen.  The millwrights
received some locks and used them periodically to lock out
machines that were being worked on or around.  This was the
process being used in the summer and fall of 1992 for lock-out,
tag-out after the new planer mill was started up.  This was not
a totally sufficient system, but it did allow for the locking
out of machinery while it was being worked on or about.



	In the fall of 1992, a new plant superintendent was hired, Bill
Dozhier.  One of the reasons that Mr. Dozhier was hired, at
least from his perspective, was because of his prior experience
dealing with safety issues when he had previously worked for WTD
Industries.  Mr. Dozhier, for example, had more extensive
experience with lock-out, tag-out.  After Mr. Dozhier was hired,
he began improving the employer's safety proceedings.  He found
the lock-out, tag-out program to be inadequate because it was
not machine specific.  In other words, while the millwrights
were given locks and generally told to lock out machines while
they were being worked on or about, there was not a machine
specific procedure in writing for every energy-creating device
which would clearly allow lock-out, tag-out to be performed any
time those machines were being worked around.  During free time
and overtime and on Saturdays, Mr. Dozhier and other employees
such as Rick Scaggs, another supervisor, and Ryan Tarkington,
lead millwright, worked on upgrading the plant's lock-out,
tag-out program, both in the planer and saw mills.  



	This is not a program, which when done correctly, can be put
together overnight or even in a couple of weeks.  Particularly
in the saw mill, where the machinery and wiring was old, this
required a lot of tracing of wires in order to make sure that
where there was the ability to lock-out and tag-out at a control
panel, the power that was being shut down went to a correctly
identified machine.  Many of the machines were interlocking and
therefore the process was complicated.  Even in the new planer
mill, where the wiring and control boxes were new, the wiring
and controls had to be traced because they had not always been
correctly identified.  In any event, during the late fall and
into the winter of 1992, Mr. Dozhier and employees under him
were in the process of identifying all of the power sources and
setting up places where the power could be turned off so that a
lock-out, tag-out program could be implemented that was machine
specific.  This required the preparation of lock-out,  tag-out
boards which Mr. Dozhier was working on and carried in his car
so that he could also work on them at home.  



	During the same time period, Mr. Dozhier and employees under
him also addressed other safety concerns.  A safety committee
was formed and it began to meet on a regular basis.  The
committee had met sporadically prior to Mr. Dozhier's hire, but
met regularly on a monthly basis after he was hired.  Complaints
were brought to members of the safety committee regarding unsafe
situations and they were listed in the safety committee meeting
minutes.  Certain items were not repaired immediately or took
several attempts to take care of and therefore they are
periodically repeated in the safety committee meetings.  More
serious items were taken care of more immediately while other
less serious problems were taken care of on a lower priority
basis.



	Liberty Northwest was the employer's workers' compensation
carrier.  In 1987, there was a concern about the employer's
safety and loss prevention, as the employer was rated at below
average (ex. 52-14).  By July 1989, the employer's rating was
increased to average (ex. 52-32).



	In 1991, Phil Teubel was Liberty's loss prevention consultant
dealing with the employer.  The employer's rating was again
below average in 1991.  However, in the late summer and fall of
1992, when Mr. Teubel started working with Mr. Dozhier, he felt
that the employer was starting to move in the right direction in
terms of safety issues and, therefore, recommended that the
employer's rating be increased to average (ex. 52-57).  Mr.
Teubel consulted with Mr. Dozhier on issues involving lock-out,
tag-out, hazard communications and safety committee meetings. 
Mr. Teubel was in both mills on a number of occasions, saw
lock-out procedures being used, and generally did not observe
unsafe acts.  He did not feel that the employer was acting
indifferently to safety issues.  If he had felt that way, it
would have been his job to report it to the insurer's
underwriters.



	In addition, during this time period, the fall of 1992, Mr.
Dozhier started ordering metal in order to manufacture more
guards for unguarded machinery (ex. 60).  Ryan Tarkington, the
lead day shift millwright, also worked on the guards.



	Video taken by Mr. Lee and diagrams that were admitted at the
time of the hearing document the lay-out and operation of the
planer mill (exs. 37-2, 56, 56A, 57 and 58).  Rough cut lumber
is brought by forklift to the initial stage of the planer mill
operation shown at the bottom of exhibits 56 and 56A.  The
lumber feeds onto a descrambler where it is separated board by
board.  It then passes by an operator, who feeds it onto the lug
chains that take it into the trim saw.  There are rollers at
that point which bring the lumber towards the operator as the
lumber feeds into the trim saw where it is cut into different
lengths.  Waste wood from the trim saw falls beneath onto a
conveyor that takes it to the chipper.  The lumber then feeds
from the trim saw to an outfeed conveyor and onto a different
conveyor set up that takes it through the planer.



	The machinery and working surface of the planer operation is
all above ground.  The orange and yellow area set forth in
exhibit 56 reflects a catwalk that goes around the planer
operation which is where the employees work who operate the
planer machinery.  On the ground level, as reflected in exhibit
56A, there is barrier guarding, represented in red, that blocks
off the machinery, belts, conveyors, chains, pulleys and the
like that run below the deck level of the planer machinery.  The
guarding is reflected in exhibits 59-1 and 2.  There are two
openings in the guarding, one revealed in exhibit 59-1 has a
chain across it.  This opening was open during the video of the
cite after the accident.  It was opened in order to allow the
accident investigation to take place.  The other opening is to
the right of the infeed deck as one looks at it from the outside
where the forklifts bring the lumber.  It is reflected in
exhibits 3-17.  This opening is not chained or otherwise guarded.



	Within the area generally protected by the barrier guarding,
there remain five unguarded shafts, chains and/or sprockets that
are still in dispute involving items 1-11, 3-14 and 3-17 through
19.  



	There is no dispute that the machinery referenced above is
unguarded, and, if there is employee exposure, it needs to be
guarded.  Mr. Lee felt that all 85 employees of the employer
were exposed to this machinery.  He notes that there were
footprints in the area representing employee access.  However,
there is no way of knowing if those footprints were there
because of employees or because of the investigation.  He also
describes a natural walkway reflected in exhibit 36-45.  There
is no direct or inferential evidence that this pathway was used
as a walkway by employees.



	A number of witnesses, including Mr. Dozhier and Mr. King,
testified and I find that workers would not generally be under
the work area of the planer operation while the machinery was
running.  There are various lug chains and other equipment
moving in this area which would make it very unlikely that
anyone would go under there while the machinery was operating. 
Mr. Teubel also testified that when he was in the plant he never
saw anyone in that area.  Certainly, all of the employees were
not exposed to the unguarded machinery in that area.



	However, there was some employee exposure in the area.  Anyone
doing clean-up duty was exposed to the unprotected chipper
conveyor, an item which has now been conceded by the employer. 
Such a worker was also potentially exposed to the other
machinery because of the employer's failure to have an adequate
lock-out, tag-out program.  Bruce Sharon, a safety expert who
testified for the employer, indicated that barrier guarding was
adequate guarding in a situation such as this, but conditioned
his opinion on there being adequate lock-out, tag-out
procedures.  Employees, given the barrier guarding that was in
place, would not, while the planer mill was in operation, go
behind the barriers and expose themselves to the many pieces of
moving machinery in that area.  However, employees in limited
number were in the area when the machinery was not operating. 
Because the employer did not have an adequate lock-out, tag-out
program, there was nothing to prevent that equipment from being
activated or from uncontrolled energy resulting in the operation
of that equipment while there was employee exposure.  In
addition, because there was an opening from the outside to the
right of the planer, the barrier guarding was not complete.  In
particular, the sticker conveyor located in that area, item
3-17, was subject to a limited amount of employee exposure.  In
the videotape, one of the owners acknowledges that the sticker
conveyor chain and sprocket "obviously" needs guarding.



	The hazards from the unguarded machinery in items 3-17 and 3-18
were serious with the potential of death if an employee came in
contact with those unguarded chains and sprockets.  The
probability of such an accident, because of the limited
exposure, was low.



	With respect to items 1-11, 3-14 and 3-19, the exposure was
less serious with a potential injury of serious injury rather
than death.  Again, the probability of an injury was low.  



	Item 1-9 is a serious violation with a $5,000 penalty issued
based upon the allegation that Mr. Cavenee was allowed by the
employer to climb on and over the lug chain conveyor deck on the
infeed side of the trim saw in order to oil dry chains and
sprockets in that area.  There is no evidence that the employer,
through its owners or supervisors, knew that Mr. Cavenee was
engaged in this practice.  



	Mr. Cavenee apparently had the practice of oiling at least one
chain and sprocket while on top of the lug chain deck located on
the infeed side of the trim saw.  Mr. King, while he worked for
the employer, had turned on the chains in order to allow Mr.
Cavenee to do this.  At least two other co-workers, Mr. Gamble
and Mr. Haverland, saw Mr. Cavenee doing this.  Another
employee, Mr. Hill, also saw Mr. Cavenee in this area although
he may not necessarily have seen Mr. Cavenee engaged in the
oiling process while the lugs were running.



	While Mr. Lee initially assumed that Mr. Cavenee was on the
deck in order to oil the lug chains and other drive chains, it
is clear that the lug chains themselves would not be oiled, as
they come in contact with the wood and would ruin the wood if
they had oil on them.  In addition, the drive chains for the lug
chains are not accessible from the deck.  There is at least one
chain and sprocket, the timing chain, which is accessible from
the deck.  Mr. Cavenee, therefore, did some oiling from the deck
with the chains running, although the employer did not have
knowledge of this fact and it was prohibited by employee safety
rules (ex. 31, #3).  These rules were received by Mr. Cavenee.



	Mr. Cavenee was killed when he was drug or pushed through the
trim saws.  The trim saws themselves were not running, but when
Mr. Cavenee was found, the lug chains were.  Mr. Cavenee was in
the outfeed area past the trim saw with a lot of lumber.



	It is not clear what, if any, role the employer's failure to
have an adequate lock-out, tag-out program played in Mr.
Cavenee's death.  Since it was apparently Mr. Cavenee's practice
to do oiling on top of the deck while the lug chains were
running, a lock-out, tag-out procedure would not necessarily
have made any difference and he still could have had the
equipment operating while he oiled.  Since Mr. Cavenee was found
with a lot of lumber, it would appear that somehow the lumber on
the descrambler deck got loose and went through the lug chains
and that may have been what caused Mr. Cavenee to go through the
trim saw area.  It might be that if an adequate lock-out,
tag-out program was in effect that that would not have occurred.
However, whether Mr. Cavenee was taken through the trim saw area
because his pant leg got caught on a lug or because the wood
pushed him through is unknown.  Thus, whether the failure to
have a lock-out, tag-out program caused Mr. Cavenee's death is
unknown.  



	After Mr. Cavenee's death and the resulting inspection, Mr.
Dozhier communicated to Mr. Lee that he did have the lock-out,
tag-out program mostly complete.  The mill remained shut down
until the third business day after the fatality when the program
was completed and OR OSHA allowed the plant to continue
operations.  In citing the employer for a willful violation of
its obligation to have a lock out, tag out program, Mr. Lee gave
little weight to the fact that the program was virtually
complete at the time of his investigation.



	With respect to item 1-8, Mr. Lee's investigation revealed that
one employee, Mr. Hill, who operated the forklift that brought
wood to the planer mill, did not have adequate training to
operate the forklift.  When he was hired, he had had six years
of prior experience and was asked to perform some maneuvers with
the forklift which he was able to do.  Other than that, he did
not receive any training.



	However, while experienced, Mr. Hill exhibited a lack of
training with respect to the operation of his forklift.  He did
not know the maximum capacity for the machine nor did he know
that he was supposed to wear seatbelts while operating the
forklift.  In addition, Mr. Hill thought that he was supposed to
have rear view mirrors and back-up arms for the forklift when
those are not required.  Mr. Hill's training was inadequate.



	The employer was cited in item 1-3 for allowing oil to
accumulate throughout the mill causing slippery conditions.  Mr.
Lee indicates there was oil under the planer and conveyors and
that that is reflected in photographs.  The photographs in
exhibit 36 do not reflect such oil except where oil was spilled
by Mr. Cavenee in his accident.



	There is oil underneath a sawhorse that was apparently used for
oiling which is reflected in the videotape and in the photos. 
However, there is no evidence of any employee exposure to that
oil spill in that the sawhorse was in the way.  Mr. Dozhier
indicated that company policy was complied with and oil spills
were cleaned up.



	The employer was also cited in item 3-16 for failure to provide
adequate access because a sawhorse rather than a ladder was used
by Mr. Cavenee to oil underneath the lug chain conveyor and
descrambler area.  While Mr. Dozhier indicated that there was
also a ladder provided the purpose of oiling, he acknowledged in
the videotape that the sawhorse had been there since he started
working and since there was oil under the sawhorse the employer
should have known t was being used for oiling.  Mr. Cavenee was
the only employee exposed and there was a reasonable likelihood
that he could have fallen, especially since there was oil
spilled in the area.  This could have resulted in a serious
injury.



	Mr. Christensen no longer works for the employer.  This is also
true of Mr. King, who left the employer under less than pleasant
circumstances.  He received unemployment benefits contested by
the employer based on his allegation that he left work due to
safety concerns.  He also left because he was unhappy when
another worker, Mr. Gamble, was made lead when Mr. King wanted
that position.



CONCLUSIONS AND OPINION



Credentials



	As indicated in the introduction above, during the interim
between the two hearing sessions in this matter, the defendant
moved to dismiss the citation and an interim order regarding
that motion was issued.  One of the bases for the motion to
dismiss was that the employer had not been provided sufficient
credentials as required by ORS 656.654.067(1).  I have
previously held that a failure to credential may form the basis
for an order of dismissal and the Court of Appeals has approved
that reasoning in the recent case of OR-OSHA v. OSTLIE, 136 Or
App 284 (1995).



	As indicated in my interim order, I deny the motion to dismiss,
finding that the showing of credentials in this case were
adequate factually and legally.  As set forth in my findings of
fact above, I do find that the initial investigating compliance
officers, Mr. Brumm and Ms. DeMenge did provide credentials and
that Mr. Lee did so as well when he arrived on the scene.  That
credentials were presented is supported by the contemporaneous
opening conference notes prepared by the investigating officers.
See, e.g., exhibit 4, pp. 1, 2.  In the videotape, Mr. Lee
discusses that he has done an opening conference.  



	There was contrary testimony from employer witnesses.  I find
that those witnesses, to the extent that they indicated they did
not see credentials, are mistaken.  Mr. Scaggs, for example,
initially indicated that he had not seen any credentials.  He
later, however, acknowledged having seen a small black folder
with business cards.  That is where the inspecting officers have
their credentials.



	Mr. Dozhier also testified, but the essence of his testimony
was that it was possible that he saw credentials and had an
opening, but it is also possible that he did not.  Other than
that, there essentially is no evidence upon which I can form a
conclusion that credentials were not adequately presented.  For
these reasons, the employer's motion to dismiss was denied.



Willful Items



	The employer was cited for two willful items, numbers 2-12 and
2-13.  OR-OSHA has the burden of proving that the violations
occurred, were willful, and that the penalties assessed, $70,000
and $40,000, respectively, were appropriate.



ORS 654.086(1)(c) provides that: Any employer who willfully or repeatedly violates such requirements may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for a willful violation.
A willful violation is not defined in ORS 654.086 or the general definitions of the Safe Employment Act. It is defined in the criminal penalty section of the act which indicates for the purpose of that subsection:
A violation is willful if it is committed knowingly by an employer or supervisory employee who, having a free will or choice, intentionally or knowingly disobeys or recklessly disregards the requirements of the regulation, rule, standard or order.
That definition of a willful violation is adopted by OR-OSHA in its rules at OAR 437-01-015(53)(b)(A), which provides that such a violation is:
A violation that is committed knowingly by an employer or supervisory employee who, having a free will or choice, intentionally or knowingly disobeys or recklessly disregards the requirements of the statute, regulation, rule, standard or order.
The only difference between the two definitions is the inclusion of the word "statute" in the administrative rule definition. Both parties in their briefs addressed the proper definition or test for a willful violation, relying on Federal Court cases discussing whether there is a good faith defense to a willful violation or whether OR-OSHA must establish that the employer acted with a bad purpose. I do not find that the federal cases cited and discussed provide any precedential guidance. The Federal Safety Act does not define a willful violation. Nor, as far as I can tell from the cases cited, is there an administrative rule that defines the term "willful violation." Accordingly, the federal cases on this issue are assessing and applying an undefined term. In contrast, the term is defined in the Oregon Safety Act. I, therefore, apply that definition to the facts which I have found to determine whether plaintiff has met its burden of proof. I note that there are no Oregon cases applying the willful violation definition. Item 2-12 In item 2-12, the employer is cited for failure to establish a lock out, tag out program along with employee training to ensure that employees working on equipment are not subject to injury from unexpected energizing, start-up or release of stored energy. Plaintiff's discretionary penalty rationale is set forth at exhibit 19 and in general it explains OR-OSHA's position as to why a willful citation was issued. Plaintiff argues that the company, through plain indifference and having a free will intentionally and knowingly disobeyed the requirements for lock out, tag out. Plaintiff notes that following the nonformal complaint procedure in 1989, the mill superintendent, Mr. Coffman, falsified documents by saying that parts were being awaited to complete the program. The plaintiff also points out that after the May 1992 citation the company did not implement the program. Plaintiff argues that this resulted in Mr. Cavenee's death. Finally, plaintiff argues that, given that the planer operation was shut down at the time of the May 1992 citation, it should not have been started again until a fully implemented lock out, tag out program was in place. Based upon my findings of fact, I do not find generally that the allegations to support this willful violation have been established by plaintiff. In addition, there are other factors that mitigate against a conclusion that the employer willfully violated the lock out, tag out requirements. First, there is insufficient, if any, evidence that the employer's prior mill superintendent, Mr. Coffman, falsified documents following the 1989 informal complaint. The extent of the evidence is that an informal complaint was made that there was no lock out, tag out, the employer was advised of that complaint and Mr. Coffman indicated that a program was being implemented and that parts were being awaited. Evidence in the record establishes that at the time of the informal complaint, the current lock out, tag out program requirements were not in place. Less strict requirements at that point required either lock out or tag out. The best evidence is that the employer did comply with those requirements. When Mr. Mills performed the 1992 inspection, he indicated that the employer was continuing to use tag out procedures. That was no longer adequate in 1992, but it was adequate in 1989 and was an appropriate response to the 1989 complaint. Under those facts, plaintiff has not proved that Mr. Coffman lied or falsified documents in 1989. Maybe Mr. Coffman was waiting for tags, maybe Mr. Coffman did lie and was suggesting that he was waiting for locks and did not get them. The point is that the plaintiff has the burden of proof on this issue and there is insufficient proof. Another basis for the willful violation is that, following the 1992 citation, the employer simply failed to implement a lock out, tag out program. That is not the case. Mr. Coffman was not experienced in lock out, tag out and, therefore, went to Mr. Christensen and asked him to put together a program. Mr. Christensen wrote out a program which was then typed out and distributed to the employees at a plant-wide meeting. Locks, at that point, were distributed and from that point forward locks were used by the millwrights to lock out. Obviously, this was not a totally adequate program and when Mr. Dozhier came on board he began to implement a machine specific program that would be adequate. However, the evidence does establish that, following the 1992 citation, the employer did not intentionally and knowingly disobey the lock out requirements. It did not act with reckless disregard to those requirements. It attempted to comply with the requirements, although its attempt may not have been adequate. I do not believe that a negligent failure to comply with requirements can constitute a basis for a willful violation. There is obviously a distinction between negligent conduct and intentional or recklessly indifferent conduct. The employer may have been negligent in its initial attempts to set up a lock out, tag out program after the May 1992 citation. It was not, however, acting intentionally to disregard those requirements or being recklessly indifferent towards them. Plaintiff also cites the fact that the employer's actions resulted in the death of an employee as a basis for the willful violation. Even if it is assumed that Mr. Cavenee's death had something to do with the employer's inadequate lock out, tag out procedures, that is not a basis for a willful violation. The question of whether there has been a willful violation is answered by looking at the employer's conduct, not by the harm that occurs. Moreover, as indicated in my findings of fact, the evidence does not at all make it clear that Mr. Cavenee's death was in any way related to the failure of the employer to have adequate lock out, tag out procedures. Finally, plaintiff argues that the employer acted willfully or with reckless disregard because it could easily have established adequate lock out, tag out procedures when the planer mill was shut down. As explained above, when the mill was shut down, at the point when the May 1992 citation issued, the employer did establish a lock out, tag out program and millwrights did lock out in the planer mill after that point. Again, as the employer, through Mr. Dozhier, admits, that lock out, tag out program was inadequate. But, the employer was attempting to comply. Thus, it does not make sense to argue that the employer should not have reopened the planer mill until it had a lock out, tag out program in place. It did have such a program in place by July 1992. I would also point out that by the time the citation for the May 1992 inspection was issued, the mill had already reopened. After the mill reopened, a lock out, tag out program was developed. Mr. Dozhier began to improve the program when he came on board. Under those circumstances, I do not find that the employer acted intentionally or knowingly to disregard lock out, tag out requirements by failing to shut down the mill and finish up Mr. Dozhier's lock out, tag out program. There are other factors that mitigate against defining that the employer willfully violated the lock out, tag out programs. After the May 1992 citation, the compliance officer gave the employer documents and Mr. Christensen subsequently developed his program. After Mr. Dozhier came on board, with the help of Mr. Teubel from Liberty Northwest, Mr. Dozhier got more documents on lock out, tag out during the process of developing his program. Those facts are inconsistent with the argument that the employer was intentionally disregarding it obligations. It is also very important to note that, at the time of the inspection at issue in this case, the currently used lock out, tag out program that Mr. Dozhier was working on, which no one argues is inadequate, was nearly complete. The employer was able to implement its program within a couple of days of the investigation to OR-OSHA's satisfaction. The employer's safety expert testified that it would take many months to put together an effective lock out, tag out program. While OR-OSHA contested that, its expert did acknowledge that it would take a couple of months. Under either scenario, that evidence establishes that a lot of work had been done on getting the lock out, tag out program in place and that is inconsistent with an argument that the employer was acting intentionally or disregarding its obligations. In sum, I do not find that plaintiff has sustained its burden of proving a willful violation under item 2-12. One issue that was considered during the hearing and is addressed in my Interim Order has to do with whether the item must be dismissed if the violation is not proved as willful or if it can be recategorized as a serious violation. In my Interim Order, I concluded that the item could be recategorized and I adhere to that ruling. However, under the facts of this case, I do not believe that such a recategorization is appropriate. Item 2-12 is a willful violation of OAR 437-02-140 requiring an energy control devices procedures and training. Item 1-1, which has now been conceded, is a violation of exactly the same standard. There is no different factual basis for the violation under 2-12 than that which forms the basis for the violation at 1-1. Under ORS 654-025(3)(c), only one citation and penalty can be based upon the same stated facts or condition. Therefore, since item 1-1 deals with the same facts and condition and has been conceded, I approve that item, but dismiss item 2-12. Item 2-13 Item 2-13 charges the employer with a willful violation for failing to see that its workers were instructed or supervised in safe operation and practices as required by OAR 437-40-030(1). Again, plaintiff makes a number of arguments to support the violation as being willful. First, the employer argues that the facts having to do with the failure to have lock out, tag out support the violation. I do not consider this factor for two reasons. First, I have already found above that the employer's actions with respect to the lock out, tag out program do not fall within the definition of a willful violation. Second, one basis enumerated in item 2-12 for that willful violation is the failure to provide training or instruction in the lock out, tag out program. Under ORS 654.025(3)(c), plaintiff cannot use the same facts of a failure to supervise or instruct in two different citations for two different penalties. I note that this duplication issue was addressed in the Interim Order and I indicated that items 2-12 and 2-13 were not duplicative. I do not change that opinion. To the extent that item 2-13 is based upon failure to instruct and supervise with respect to allegations other than those having to do with lock out, tag out, it is not duplicative of item 2-12. However, it is duplicative with respect to the lock out, tag out issue. Plaintiff acknowledges in its closing argument that the failure to instruct and supervise with respect to lock out, tag out is the key to the alleged willful nature of item 2-13. I agree and since I do not consider that failure, both because it has not been established as set forth above and because it is duplicative, the basis for this willful violation loses most of its weight from the onset. Plaintiff does make other arguments to support this violation. The penalty rationale at exhibit 19 suggests that employees were not required to followed the company's own safety and health policies and procedures for a number of reasons. First, the victim was allowed to walk on and oil the moving conveyor belt. My findings of fact establish that neither the employer nor any supervisory employee had any knowledge that Mr. Cavenee was engaged in this practice. Accordingly, that cannot form a basis for a willful violation. There is an allegation that the employer totally ignored safety complaints. The evidence does not establish that fact. Safety complaints were brought to the employer through its safety committee which was required to meet monthly once Mr. Dozhier came on board. The safety committee meetings do document that certain concerns repeated themselves from meeting to meeting. But, the evidence establishes that it was because it took some time to correct problems and, therefore, they would appear on more than occasion. They did not continue to appear because they were being ignored. The penalty rationale also indicates that the employer falsified comments, referring to Mr. Coffman's letter. What that has to do with supervision and training I have no idea. In any event, the evidence does not establish a falsification. Finally, there is a general allegation that the employer simply did not supervise on issues of safety such as climbing on top of conveyors. There is simply insufficient proof that the employer or its supervisory employees had knowledge that employees were engaging in unsafe acts and failed to supervise to avoid dangerous situations. Mr. Dozhier did tell employees on at least one occasion to stay off moving chain decks. I, therefore, do not find that plaintiff has sustained its burden of proving that item 2-13 was willful. The question remains whether I can recharacterize the violation as serious and find that plaintiff has established that violation. There is an admitted failure to supervise with respect to lock out, tag out that is already the subject of a conceded violation and, therefore, that fact pattern cannot form the basis for this violation. There is also an admitted failure to provide sufficient information with respect to hazard communications and that act cannot be considered with respect to this violation. With respect to the other allegations of inadequate supervision, I have found that the evidence does not support those allegations. Therefore, I do not find that a general violation for failure to supervise has been established. I, therefore, set aside this item of the citation. Item 1-2 In item 1-2, the employer is charged with a serious violation carrying a $5,000 penalty for failure to correct defective equipment and unsafe conditions. The basis for this violation is that employees told the employer about unsafe conditions, that the employer put these on the back burner and did not follow up or take care of them. My findings of fact establish that the factual allegations by plaintiff are not supported. Employees such as Mr. Christensen, who I found to be a completely credible witness, testified and established that, particularly after Mr. Dozhier came on board, the safety committee met regularly, received complaints and addressed those complaints. He, at one point, told Mr. Lee that things were put on the back burner at times. What he meant by that was that safety items were prioritized with the more serious ones being done first and others with less priority being done later. I gather that Mr. Lee took that to mean that everything that was not life threatening or serious was left uncorrected. There is no evidence of that that is persuasive. There is contrary evidence. The record establishes that when Mr. Dozhier came on board, there were still some unguarded chains and sprockets which he felt were unsafe and he proceeded to order metal and have guards built. He felt the lock out, tag out was inadequate and proceeded to resolve that situation. The safety rules require clean up of oil and it was a general practice to clean up oil by putting sawdust on it and then doing a clean-up. The only real contrary evidence comes from Mr. King, an employee who no longer works for the employer. Mr. King was the millwright who often worked with Mr. Cavenee and turned on the machinery so that Mr. Cavenee could oil it while it was running. Mr. King testified that he left work because he was sick and tired of the employer ignoring safety issues and he testified that the employer did not take care of safety concerns. I did not find Mr. King's testimony particularly persuasive for a number of reasons. First, Mr. King indicates that he left work because he was worried about safety issues. I note that he received unemployment benefits based upon that allegation and that fact carries some probative weight. However, I had the opportunity to view Mr. King while he testified as well as the opportunity to view other witnesses who testified with regard to Mr. King's credibility. Mr. King left work shortly after it was determined that Mr. Gamble would be the lead instead of Mr. King. Brian Tarkington, who I found to be credible and who was not impeached, indicates that Mr. King told him that he quit because of the Gamble situation. There was other evidence to that effect. On cross-examine, Mr. King, who initially denied having a problem with not having gotten the promotion, finally acknowledged that it did make him a little mad. Based upon his demeanor and manner while testifying, I concluded at the time of his testimony that it made Mr. King a little more than mad. He was not happy with the situation and, therefore, has a potential bias against the employer. I, therefore, do not assign much persuasive value to most of his testimony having to do with unsafe acts engaged in by the employer despite employee complaints. I would also note that it is a little inconsistent for Mr. King to be taking the position that he left the employer because so many things were unsafe there when he was the one regularly turning on the machine so Mr. Cavenee could oil it when everybody involved in this case acknowledges that it was unbelievably dangerous for Mr. Cavenee to engage in that practice. In sum, I do not find that the employer failed to repair defective equipment or deal with unsafe conditions. I, therefore, set aside item 1-2. Item 1-3 In item 1-3, the employer is charged with failing to remove hazardous materials, specifically oil, from floors. I do not find that this violation has been established for a number of reasons. First, the violation in part is based upon Mr. King's testimony that there was oil everywhere and it was never cleaned up. For the reasons set forth above, I do not find that evidence persuasive. In addition, it is inconsistent with other testimony from Mr. King, indicating that, in accordance with company rules and Mr. Dozhier's instructions, he cleaned up oil by putting sawdust on it. Second, the notes from Mr. Lee indicate that there are photographs establishing spills of oil under chains and sprockets. I reviewed the photographs and did not see any such evidence. Finally, there are oil spills documented in the video and in some of the photos. The oil spills in the photos have to do with the oil that Mr. Cavenee spilled as a result of the accident and obviously those have nothing to do with this violation. The only obvious oil spill in the videotape that I can see is underneath the saw horse where Mr. Cavenee was apparently doing some oiling. That oil did not present an employee hazard, since the saw horse was always left in that location and no one could slip on it except Mr. Cavenee who was standing on the saw horse. As will be set forth below, I approve the violation having to do with the saw horse and, therefore, the fact that there was danger to Mr. Cavenee from oil on the saw horse is duplicative of that violation and cannot form the basis for this violation. Item 1-8 In item 1-8, the employer was charged with violating OAR 437-63-300 by failing to train operators of a powered industrial truck, specifically Mr. Hill, who was interviewed as a result of the investigation and who operated a forklift. The investigation reports and Mr. Hill's testimony establishes that Mr. Hill was hired by the employer with six years of prior experience as a forklift driver. He was not given any training, but rather was watched while he performed a couple of maneuvers and then hired. His lack of training is established by the fact that he did not know the maximum load for his forklift and did not realize he was supposed to be using seatbelts. He also thought incorrectly that his rig was supposed to have side view or rearview mirrors and a horn for use when he backed up. Thus, there was no training for Mr. Hill and his on-the-job experience was apparently unsatisfactory based upon his knowledge. I, therefore, find that plaintiff has established this violation. The employer does not dispute the classification of the violation or the penalty. Accordingly, item 1-8 is approved. Item 1-9 In item 1-9, the employer is charged with violating OAR 437-63-090(8) for failing to provide a walkway or bridge where Mr. Cavenee was walking over the lug chain conveyor deck. The employer has a rule against crossing moving chains or conveyors. Mr. Cavenee was not supposed to be on the conveyor deck. The employer and its supervisory employees did not know that Mr. Cavenee was on the deck. Under those circumstances, the employer had no obligation to put a bridge or walkway over that deck. Nobody was supposed to be there. This violation has not been established. Item 3-16 In item 3-16, the employer is charged with violating OAR 437-02-044(2)(a) for failing to provide adequate access because Mr. Cavenee used a saw horse to oil. There does not appear to be any dispute that Mr. Cavenee did use the saw horse to oil, since the saw horse was under an area that needed to be oiled and since there was oil on the saw horse. Mr. Cavenee should have been using a ladder. The employer suggests that ladders were available and that Mr. Cavenee should have been using them, apparently arguing that there was no employer knowledge that Mr. Cavenee was not being safe. The problem with that argument is that in the videotape there is a discussion about the saw horse in which Mr. Dozhier acknowledges that the saw horse had been in the same location since he began working at the mill. If that was the case, Mr. Dozhier, as plant supervisor, would have had numerous occasions to see the saw horse and should reasonably have known that it was there for a reason and could easily have determined that it was being used for oiling. Employer knowledge is established. The employer also contests the penalty which was based upon a medium probability of serious injury. The employer argues that the probability should be low since only Mr. Cavenee was exposed to a fall. I agree that only Mr. Cavenee was exposed, however, there was still a reasonable likelihood that he could be injured, given that, not only was he working on the saw horse in lieu of a ladder, but the saw horse had oil on it. A medium probability rating was appropriate. I, therefore, approve item 3-16. Items 1-11, 3-14, 3-17, 3-18, 3-19 All of the above-referenced items have to do with unguarded chains and sprockets which, as explained in my findings of fact above, are located in the area underneath the decked working area of the planer operation. There is no dispute that these shafts, chains and sprockets are unguarded. The employer's position is that there is no proof of employee exposure, in particular because there was adequate perimeter guarding in the area. As set forth in my findings of fact, I conclude that there was employee exposure to these unguarded shafts, chains and sprockets. There was perimeter guarding, but it was not totally complete, as there was at least one access to the area. In addition, defendant's own expert testified that perimeter guarding was dependent upon an adequate lock out, tag out program. The employer concedes that its lock out, tag out program was incomplete and inadequate. Therefore, even though it is true that no reasonable employee would have been in the area while these chains, sprockets and shafts were moving, it was possible for a limited amount of employees to be exposed at a time when, because there was inadequate lock out, tag out, the machines might have either had energy restored or had stored energy released. I, therefore, find that there was employee exposure and that, therefore, all of the violations have been established. The employer makes a number of arguments with respect to penalties. First, with respect to item item 1-11, this violation was classified as serious, rated as low serious, and a $600 penalty was assessed. Under OAR 437-01-145(5), the correct penalty for a low serious violation is $300. It would appear that this violation could have been cited as a repeat which would have justified a $600 penalty. However, it was not. Therefore, the maximum penalty would be $300. The employer also argues that the evidence does not establish that there was any risk of serious physical harm. I agree. The relevant standard provides that where there is a projecting shaft off of an electric motor, the shaft end cannot project more than one-half of the diameter of the shaft. In this case, the shaft was two and three-eighths in diameter, meaning that the maximum projection would have one and three-sixteenths inches. Here, the shaft projected one and three-eighths inches, or three-sixteenths inches more than allowed. Exhibit 36-40 is a photograph of this protruding shaft which is nearly surrounded by metal, although it is not adequately guarded to prevent all contact. I do not believe that it is reasonably foreseeable that serious injury could result from this unguarded shaft, given the minimal excess protrusion, its smoothness, and the fact that it is partially guarded. I, therefore, reduce the penalty to zero for a low, other than serious, severity rating. With respect to items 3-17, 3-18 and 3-19, the employer makes a couple of arguments with respect to the penalty. First the employer argues that the violations should have been combined under OAR 437-01-015(53)(c) and OAR 437-01-145(b), presumably resulting in only one penalty. I do not interpret those provisions in that manner. OAR 437-01-015(53)(c) defines a combined violation as multiple violations which have been combined as one violation to indicate an overall lack of compliance. It says nothing about whether the violations must be combined or what impact that combination may have on a penalty. OAR 437-01-145(b) is mandatory, but it does not limit the violation to one penalty. It specifies otherwise, that penalties for combined violations shall be calculated by computing the penalty for each subpart of the violation and then adding those to establish a total penalty. Thus, it is not necessary to cite the similar violations as combined and even where it is done in that manner, the penalties are added. The employer's other argument is that items 3-17 and 3-18 were incorrectly rated as involving a high probability of death. I agree that the high probability of an incident with respect to those unguarded chains and sprockets is unreasonable. Both of the chains and sprockets are in the area around the infeed and descrambler deck where there was minimal employee exposure. Mr. Lee assumed that 85 employees were exposed. That is obviously not the case. At most, given my findings of fact, one or two employees who were working in the area might have been exposed and that was an unlikely occurrence, thus low probability is the appropriate rating. Plaintiff does not dispute that there was a possibility of death and, therefore, the violations are properly rated as low death which, since they are repeat violations, leads to a penalty of $3,000, rather than the $10,000 assessed. ORDER IT IS HEREBY ORDERED that citation number L4218-033-93 is approved and modified as follows: Item 1-1: Approved as to violation and penalty. Item 1-2: Disapproved. Item 1-3: Disapproved Item 1-4: Approved as to violation and penalty. Item 1-5: Approved as to violation and penalty. Item 1-6: Approved as to violation and penalty. Item 1-12: Approved as to violation and penalty. Item 1-8: Approved as to violation and penalty. Item 1-9: Disapproved. Item 1-10: Approved as to violation and penalty. Item 1-11: Approved as to violation, but $600 penalty vacated. No penalty. Item 2-12: Disapproved. Item 2-13: Disapproved. Item 3-14: Approved as to violation and penalty. Item 3-15: Approved as to violation and penalty. Item 3-16: Approved as to violation and penalty. Item 3-17: Approved as to violation, but $10,000 penalty reduced to $3,000. Item 3-18: Approved as to penalty, but $10,000 penalty reduced to $3,000. Item 3-19: Approved as to violation and penalty. Total penalty: $20,200 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 Portland, Oregon, November 2, 1995 Workers' Compensation Board John Mark Mills Administrative Law Judge