BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
     Health Division			) Docket No:  SH-95164

					)

		Plaintiff,		)

					)

		vs.			)  Citation No:  B3184-032-95

					)

	CITY OF BEAVERTON		)

					)

		Defendant.		)  OPINION AND ORDER



	Hearing was held in Portland, Oregon, on Wednesday, November
15, 1995, with Harris reporting.  Or-OSHA was represented by
Marilyn Harbur, Assistant Attorney General.  George Fetzer, the
Risk Manager for the City of Beaverton, represented the
defendant.  Exhibits 1-12 were admitted into evidence.  The
record was closed on day of hearing.  



ISSUE:



	Whether the City of Beaverton was required to guard the
operating part of a paper drill under 29 CFR 1910.212(a)(3)
(ii), on appeal of item 2 of the citation?  At hearing, the
defendant withdrew its appeal of item 1 of the citation.



FINDINGS OF FACT:



	1.  At all relevant times, the City of Beaverton was an Oregon
employer, subject to the Or-OSHA standards.



	2.  On January 23, 1995, William Brumm, a safety compliance
officer with Or-OSHA conducted a routine safety inspection of
the City of Beaverton as an employer that came up on OSHA's
inspection list.  



	3.  While conducting his inspection, compliance officer Brumm
noticed that the paper drill did not contain a guard on the
drill operating area.  He prepared a violation report that
resulted in the issuance of citation No. B3184-032-95, with the
violation cited as Item 2.  



	4.  No penalty was assessed for violation of item 2 because of
the low probability of injury and the low seriousness of any
injury.



OPINION:



	OR-OSHA contends that the defendant was required to guard the
paper drill found in the defendant's reproduction area under
29CFR 1910,212(a)(3)(ii).  This standard provides:



"The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle."
A "guard" is defined by OAR 437-02-242 (32) as "a barrier that prevents entry of the operator's hands or fingers into the point of operation." The defendant contends that there was no exposure to danger because the paper drill had a motor driven drill, but was operated by a foot lever by the employee using the drill so that the operator controlled the operation, the paper in the machine was held down by a clamp so that there was no reason for an employee to put his hands in the drill and as a general rule, the employees did not put their hands near the drill during operation. The defendant further argued that after the inspection, it had tried a temporary cardboard guard, but it interfered with the drill's operation. The compliance officer said that from his experience with similar paper drills, they are guarded by Plexiglas that are mounted on the front of the machines, they do not interfere with the operation of the machine, and they protect workers from injuring their hands by a cuts or other minor injuries as when a worker would reach into the machine to straighten paper. Because the operator controlled the lowering of the drill by a foot pedal and because the likelihood of injury was low and the injury that would occur not likely serious, he assessed no fine. Even the defendant admitted that the manual for the machine and the notice on the machine warned people of the danger of injuring themselves with the drill. While the citation was for a general violation in guarding the point of operation of the machine and there was no specific standard for guarding the paper drilling machine, I find that OR-OSHA has shown that the employer did violate the general standard in that it did have an unguarded point of operation of the paper drill machine that would expose employees to danger of injury, however minor. ORDER: IT IS THEREFORE ORDERED that Citation No.B3184-032-95 is affirmed. 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 22, 1995 Workers' Compensation Board VINITA J. NEAL Administrative Law Judge