ARMCO STEEL CORPORATION

OSHRC Docket No. 11764

Occupational Safety and Health Review Commission

May 6, 1977

[*1]

Before BARNAKO, Chairman; CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

Walter R. Gleason, Armco Steel Corporation, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman;

The issue in this case is whether Review Commission Judge Louis J. Rubin properly affirmed a citation which alleged a violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The citation charged Respondent with failure to comply with the housekeeping standard at 29 CFR 1910.22(a)(2) n1 in that seven areas of Respondent's workplace allegedly contained excessive accumulations of oil, water or grease. Judge Rubin affirmed the first five of the seven subitems and assessed a penalty of $125. Having considered the entire record, we affirm the judge's decision.

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n1 1910.22(a)(2) provides:

"The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable."

[*2]

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It is undisputed that in each of the five areas for which the judge found a violation, employees had reason to walk in or near at least some accumulations of oil, water or grease. However, Respondent argues on review that the Secretary did not show that the accumulations were excessive. Respondent contends that the accumulations were inherent and, therefore, inevitable results of the nature of the operation, and/or that they were temporary conditions which were corrected within a reasonable time. Respondent further asserts that its employees were not exposed to any safety hazard resulting from these conditions.

Respondent's contentions are essentially the same as those it made before the judge. Judge Rubin, after considering and weighing the evidence fairly, concluded that a hazard existed as a result of the accumulations and that the areas in dispute were not maintained in as dry a condition as possible. n2 Where the evidence supports the judge's finding, we will not normally reweigh the evidence on review. Okland Construction Company, 76 OSAHRC 30/F4, 3 OSHC 2023, 1975-76 OSHD para. 20,441 [*3] (1976). Accordingly, we conclude that Respondent violated the cited standard.

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n2 With regard to subitems 1 and 5, the judge found that Respondent's cleaning program could be more fully implemented in the areas concerned. Under subitem 2, the judge rejected Respondent's argument that the spot was easily avoidable by employees, and found that the area was a normal walking area. As to subitem 3, the judge concluded that additional boards would provide a dry standing place. As to subitem 4, the judge stated that an additional drain and better maintenance would alleviate the condition.

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Respondent also argues that the citation lacked sufficient particularity. n3 Respondent contends that the citation did not adequately describe the locations of the alleged violations and that the term "excessive" as used in the citation is improperly vague. Respondent made these same arguments before the judge. We find that the judge properly disposed of them for the reason he assigned.

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n3 Section 9(a) of the Act reads, in pertinent part:

"Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated."

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Having considered the gravity of the violation, Respondent's size, good faith, and history of prior violations, we find the judge's assessment of a $125 penalty to be appropriate.

Accordingly, the judge's decision is affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I agree with the disposition concerning the alleged violation of the standard published at 29 CFR 1910.22(a)(2).

I have previously commented upon the accretions to Okland Constr. Co., supra, in recent Commission decisions. Derr Constr. Co., No. 4170 (April 15, 1977) (Cleary, concurring in part, dissenting in part) and Zidell Explorations, Inc., No. 12408 (May 2, 1977) (dissenting opinion). I understand the Okland case to hold that the Commission will generally accept judges' decisions based on credibility [*5] findings. See Evansville Materials, Inc., 3 BNA OSHC 1740, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975). Therefore, in my view some discussion of respondent's contentions on the issues of fact is appropriate.

Respondent's contention concerning the No. 4 pump pit is unconvincing. In crediting the testimony of the compliance officer, the Judge correctly concluded that the accumulation of water was excessive. The testimony relied upon by respondent that there was a leak in a high pressure water system explains the existence of the excessive water hazard rather than negating the hazard.

Respondent's contention concerning water present on the floor of the roughing mill (subitem 4) asks us to upset what is essentially a credibility finding by the Judge as to the amount of water that was present. We decline to alter this finding.