BOISE CASCADE CORPORATION

OSHRC Docket No. 11630

Occupational Safety and Health Review Commission

September 2, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

Judith H. Soderblom, Boise Cascade Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On August 28, 1975, Administrative Law Judge Joseph Chodes rendered a decision affirming a citation alleging failure to comply with 29 CFR 1910.213(h)(1). n1 Respondent petitioned for review of the Judge's decision, excepting to the Judge's conclusion of law that 29 CFR 1910.213(h)(1) is an occupational safety and health standard duly promulgated under the provisions of section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. Commissioner Moran granted the petition on September 15, 1975, pursuant to section 12(j) of the Act.

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n1 29 CFR 1910.213(h)(1) provides:

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall bew constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

[*2]

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Both parties stipulated before the hearing that respondent's workplace in Springfield, Virginia, contained four radial saws that were not guarded to the full diameter of the blades by a device that automatically adjusts itself to the thickness of stock, while remaining in contact with the stock being cut. Therefore, there is no question that a violation of section 5(a)(2) n2 of the Act occurred if 29 CFR 1910.213(h)(1) is a valid standard.

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n2 Section 5 of the Act provides:

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or ar likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

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In Noblecraft Industries, Inc., BNA & OSHC 1727, CCH 1975-76 OSHD para. 20,168 (No. 3367, 1975), the Commission held, in a divided opinion, that 29 CFR 1910.213(h)(1) is a validly promulgated standard. n3

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n3 Commissioner Moran adheres to his individual view expressed in Noblecraft.

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Because no other question of fact or law is presented, we therefore order that the citation for a serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1910.213(h)(1) is affirmed. We also affirm the assessment of a $120 penalty.