Docket No. 12767

SCHIAVONE CONSTRUCTION CO.

OSHRC Docket No. 12767

Occupational Safety and Health Review Commission

May 9, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Morris J. Levin, for the employer

OPINION:

DECISION

BARNAKO, Chairman:

A November 20, 1975 decision of Judge Seymour Fier is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Fier affirmed an amended serious citation alleging Respondent's failure to comply with the standard at 29 C.F.R. § 1926.28(a) in that an employee was working on the leads of a pile driving rig without personal fall protective equipment. He assessed a $1000 penalty.

Judge Fier also affirmed items two, three, and four of an amended nonserious citation. n1 Item two alleged Respondent's failure to comply with the standard at 29 C.F.R. § 1926.603(a)(9) in that an air hose was not secured to an air hammer by the use of a chain or cable. Item three of the citation alleged Respondent's failure to comply with the standard at 29 C.F.R. § 1926.350(a) in that a full oxygen cylinder did not have a protective cap on its valve. Item four alleged Respondent's failure to comply with the standard at 29 C.F.R. § 1926.350(a)(7) in that [*2] Respondent did not provide a steadying device for an oxy-acetylene burning set. The Judge assessed $250 penalties for each of the aforementioned nonserious items.

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n1 The Judge vacated item one of the citation, which alleged Respondent's noncompliance with the standard at 29 C.F.R. § 1926.603(a)(8). His ruling on that item is not on review.

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We affirm the § 1926.28(a) allegation, but modify the penalty assessment to $800. We affirm the § 1926.350(a) and § 1926.350(a)(7) allegations but modify the penalty assessments to $80 and $0, respectively. We vacate the Secretary's § 1926.603(a)(9) allegation.

Alleged Serious Violation of § 1926.28(a) n2

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n2 The standard reads:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to employees.

[*3]

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Respondent is a large New Jersey contractor that was engaged in the construction of an interstate highway when one of the Secretary's compliance officers inspected its worksite. The compliance officer observed one of Respondent's employees working on the leads of a pile driving rig. The employee was about fourteen feet above the rig's steel lead platform and about twenty feet above steel piles that protruded from an adjacent excavated area. He was holding onto the leads with one hand while leaning over in the direction of a malfunctioning air hammer. He was also, with his other hand, swinging a sledge hammer against a portion of the air hammer in an attempt to make repairs. The employee was not wearing a safety belt, lifeline, or any other kind of fall protection equipment.

On these facts, Respondent was issued a serious citation alleging Respondent's failure to comply with the standard at 29 C.F.R. § 1926.104(a). n3 By his complaint, the Secretary sought to amend the citation to include an allegation that 29 C.F.R. § 1926.28(a) was violated as well. Judge Fier concluded that Respondent had failed [*4] to comply with the standard at § 1926.28(a), and affirmed the amended citation.

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n3 The standard reads, in pertinent part:

Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. . .

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Respondent contends that the Judge erred for the following reasons: 1) The Secretary did not comply with Commission Rule of Procedure 33(a)(3), n4 29 C.F.R. § 2200.33(a)(3), in amending the citation in that he failed to set forth the reasons for his § 1926.28(a) amendment, and failed to state with particularity the circumstances of the alleged violation; 2) Section 1926.28(a) is unenforceably vague; 3) Section 1926.28(a) was invalidly amended as a safety standard when the word "or" in its present version was substituted for the word "and" in an earlier text; 4) The Secretary did not prove the existence of a hazard.

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n4 The Rule provides that "Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the changes sought."

[*5]

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We reject these arguments. Regarding the propriety of the amendment, both the citation and complaint contain essentially the same factual allegations. n5 The amendment in essence, only added another legal theory of the case. Such an amendment is generally permissible. J.L. Mabry Grading, Inc., 9 OSAHRC 1C3, BNA 1 OSHC 1211, CCH OSHD para. 15,686 (1973). See also, Henkels & McCoy, Inc., 76 OSAHRC 143/C2, BNA 4 OSHC 1502, CCH OSHD para. 20,944 (1976).

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n5 The citation alleges:

Pile Driving Rig, Lima 802, Marked: "Ratto Construction." Employee working aloft on the leads approximately 15 feet above the ground and/or vertically protruding pilings was not wearing any personal protective equipment to prevent his falling and thereby sustaining serious physical injury or death.

The complaint describes the alleged violation as follows:

. . . respondent failed to provide personal protective equipment where an employee is working aloft on the leads of a pile driving rig approximately 15 feet above the ground . . .

[*6]

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In this case, the Secretary did not comply with Rule 33(a)(3) since he did not state a reason for the amendment. Respondent does not, however, claim that it was misled or prejudiced by the Secretary's failure to state the reason for seeking the amendment. Respondent claims only that the complaint and citation lack particularity because they fail to specify that a safety belt and lanyard are the types of personal protective equipment which the employee should allegedly have been using. It is also claimed by Respondent that the Secretary first introduced this theory of the case at the hearing.

Respondent's argument overlooks the fact that the only types of personal protective equipment to which § 1926.104(a), the originally cited standard, refers are safety belts, lifelines, and lanyards. Thus, upon receiving the serious citation, Respondent had only to read the cited standard therein to determine that the violation alleged was the failure to use a safety belt and lanyard. Furthermore, at the time Respondent received the serious citation it also received the four-item nonserious citation alleging [*7] Respondent's violation of § 1926.603(a)(8) (see n.1, supra). That alleged violation refers to the same pile driving rig as the serious citation, and provides, "Fixed leads did not have any rings or similar attachment points, so that the loft worker could, if he had worn personal protective equipment, engage his safety belt lanyard to the leads." (emphasis supplied). By reading the citations together, Respondent would have discovered that a safety belt and lanyard were the personal protective equipment allegedly required. Respondent's argument that the citation and complaint lack particularity in this respect is, therefore, rejected. See Gannett Corp., No 6352, BNA 4 OSHC 1383, CCH OSHD para. 20,915 (1976). Since Respondent was not prejudiced by the Secretary's failure to strictly comply with Rule 33(a)(3), we will allow the amendment. See Henkels & McCoy, Inc., supra.

Respondent's contentions that § 1926.28(a) was improperly amended and is unenforceably vague are also rejected. Although the amendment to the standard was made without resort to rulemaking proceedings, we have held that the amendment was not substantive, and that therefore the procedure [*8] followed was permissible. Island Steel and Welding, Ltd., 17 OSAHRC 143, BNA 3 OSHC 1101, CCH OSHD para. 19,545 (1975). We have also held that the standard is not so vague as to be unenforceable. B & B Insulation, Inc., No. 9985 (April 18, 1977). We have, however, said that the standard could be considered vague unless its scope is defined and limited by extrinsic means, such as other regulations or industry customs and practices. See Frank Briscoe, Inc., 76 OSAHRC 129/A2, BNA 4 OSHC 1729, CCH OSHD para. 21,162 (1976). In this regard we note that the standard at 29 C.F.R. § 1926.603(a)(8) n6 clearly suggests the use of safety belts by employees working on the leads of pile driving equipment. Thus, as applied to the facts of this case, § 1926.28(a) is not unenforceably vague.

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n6 The standard reads:

Fixed leads shall be provided with ladder, and adequate rings, or similar attachment points, so that the loft worker may engage his safety belt lanyard to the leads. If the leads are provided with loft platform(s), such platform(s) shall be protected by standard guardrails.

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Respondent also contends that the Secretary failed to prove the employee working on the leads was exposed to a fall hazard. In support of this contention, it cites the testimony of its two witnesses. Both stated that in their many years of experience they had never heard of an employee falling from the leads of a pile driving rig. The record here, however, reflects that the employee on the leads was in such an awkward position that he might well have lost his balance and fallen. The hazard seems obvious on the facts of this case. Furthermore, as noted above, the standard at § 1926.603(a)(8) itself suggests that employees on the leads of a pile driving rig may be exposed to a fall hazard. Consequently, we conclude that the Secretary did prove the existence of a hazardous condition within the meaning of § 1926.28(a).

Respondent further contends that any fall would not have resulted in death or serious harm. One of its witnesses testified that he knew of a carpenter who had fallen about twenty feet onto sand without sustaining serious injuries. In this case, however, the employee could have fallen at [*10] least fourteen feet onto either a steel platform or onto a protruding steel pile. It is substantially probable that such a fall would have resulted in death or serious physical harm. This portion of the citation is, therefore, properly designated as serious. California Stevedore and Ballast Co. v OSHRC, 517 F.2d 986, 987-988 (9th Cir. 1975).

The Secretary proposed an $800 penalty. Judge Fier, however, assessed $1000. In so doing, he stated that Respondent's safety program was minimal. He also cited to Robbins Painting Service, 5 OSAHRC 719, BNA 1 OSHC 1482, CCH OSHD para. 17,045 (1973), apparently to indicate that he considered the gravity of the violation to be high. Respondent argues that the penalty assessment is inappropriately high, and we agree. The Secretary considered the shortcomings in Respondent's safety program in making his penalty proposal. The gravity of the violation is moderately high. Although only one employee was exposed, a serious accident could easily have occurred. Respondent is a large employer that has received three prior citations. We conclude that an $800 penalty is appropriate. See Dreher Pickle Company, 2 OSAHRC 497, BNA 1 OSHC [*11] 1132, CCH OSHD para. 15,470 (1973).

Alleged Nonserious Violation of § 1926.603(a)(9) n7

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n7 The standard reads:

Steam hose leading to a steam hammer or jet pipe shall be securely attached to the hammer with an adequate length of at least 1/4-inch diameter chain or cable to prevent whipping in the event the joint at the hammer is broken. Air hammer hoses shall be provided with the same protection as required for steam lines.

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The compliance officer observed a length of 3/4-inch manila rope on Respondent's pile driving rig, tied to an air hose at one end and an air hammer at the other end. The purpose of the manila rope was to keep the air hose from thrashing wildly about in the event of a failure in the system. The air hose was fifty feet long, three inches in diameter and ran through the rig's boom. The hose ran between a compressor and the air hammer. The Judge affirmed this portion of the citation. He found that the manila rope did not satisfy the cited standard's requirement for a "chain or cable" because [*12] metal chains and cables are decidedly stronger than manila ropes of the same width. He also concluded that if the standard had intended the use of manila ropes, it would have so stated.

Respondent argues that a manila rope is included in the definition of the term "cable" as it is used in the cited standard. In support of its argument, it offers the definition of the term "cable" from Macwhyte's WireRope Catalog of Data, Tables and Helpful Information, which reads, "A term loosely applied to wire ropes, wire strands, manila ropes and electrical conductors." Respondent also points to a definition of "cable" contained in Webster's New World Dictionary, Second College Edition -- "a thick, heavy rope, now often of wire strands."

The Secretary proffers a definition of "cable" used in another, unspecified version of Webster's dictionary. It reads:

A strong rope, orig. only of hemp or other fiber and of any thickness; now, a rope of 10 or more inches in circumference (smaller ones being called cablets, hawsers, etc.); by extension, a wire rope or a chain of great strength, used for hauling, for securing a ship to an anchor, for supporting the rods and roadway of a suspension bridge, [*13] etc.; loosely, any strong rope.

Respondent is entitled to fair notice of the conduct required by a standard. A standard should be construed so as to give effect to the natural and plain meaning of words. Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976). The definitions quoted above make it quite plain that a manila rope can be considered a "cable" as that term is used in the cited standard. Accordingly, we reverse the Judge, and vacate the Secretary's § 1926.603(a)(9) allegation.

Alleged Nonserious Violation of § 1926.350(a) n8

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n8 The standard at § 1926.350(a)(1) provides that "Valve protection caps shall be in place and secured."

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The compliance officer observed a full oxygen cylinder lying on the ground without a valve protection cap. He testified that pilings being dragged near the cylinder could have sheared off its valve and turned the cylinder into a projectile that could have injured nearby employees.

Respondent concedes that the cylinder did not have a valve cap as the cited standard [*14] requires but argues that only a de minimis violation was proven because a 4000-pound steel pile rested diagonally across the cylinder. Respondent contends that the weight of the pile would have prevented the cylinder from moving. The citation, however, alleges and the record shows that the pile had fallen on the cylinder on the morning of the inspection date. It is obvious that the steel pile was not intended to provide a means of stabilizing the cylinder, and that, on the contrary, its presence there could have triggered the hazardous result testified to by the compliance officer. Accordingly, we affirm the Judge, and find a nonserious violation of the standard.

Although the Secretary proposed an $80 penalty for this item, Judge Fier assessed $250. In light of the moderately low gravity of the violation, together with the factors of good faith, size, and prior history discussed above, we assess a penalty of $80.

Alleged Nonserious Violation of § 1926.350(a)(7) n9

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n9 The standard reads:

A suitable cylinder truck, chain, or other steadying device shall be used to keep cylinders from being knocked over while in use.

Although the Judge actually affirmed this portion of the Secretary's citation as a failure to comply with 29 C.F.R. § 1926.350(a)(9), he did so inadvertently. The Secretary indicates in his complaint that the citation alleged a failure to comply with the latter standard only because of a typographical error, and that it was his intention to cite Respondent under § 1926.350(a)(7). Respondent did not object to this amendment. We grant the amendment.

[*15]

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The compliance officer also observed one of Respondent's employees using an oxy-acetylene burning set while welding on some pilings. The set was composed of one oxygen cylinder and one acetylene cylinder. Each cylinder had a regulator attached to it. The cylinders rested against pilings and were not restrained from falling by a steadying device.

Respondent does not dispute these facts but argues that only a de minimis violation is established. We disagree. The purpose of the standard is to prevent gas cylinders from being knocked or dragged down such that their valves become damaged, resulting in the cylinders becoming dangerous projectiles that could strike employees. Such a hazard is not de minimis. Compare Van Raalte Company, 76 OSAHRC 48/B8, BNA 4 OSHC 1151, CCH OSHD para. 20,633 (1976). Accordingly, we affirm this portion of the Secretary's nonserious citation.

The Secretary did not propose a penalty for this alleged violation. The Judge, however, assessed a $250 penalty. On the facts, the likelihood of an accident was low. We accept the Secretary's advice, and do not assess a penalty. [*16]

Accordingly, we affirm the Secretary's serious citation alleging noncompliance with the standard at § 1926.28(a), and assess an $800 penalty. We also affirm those parts of the Secretary's amended non-serious citation that allege noncompliance with the standards at § 1926.350(a) and § 1926.350(a)(7); we assess an $80 penalty for noncompliance with the former standard, but do not assess a penalty for noncompliance with the latter standard. We vacate the § 1926.603(a)(9) allegation.

CONCURBY: MORAN (In Part); CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the lead opinion except insofar as it affirms a citation for noncompliance with 29 C.F.R. § 1926.28(a). Not only is the allowance of the amendment improper, but the evidence is insufficient to establish that respondent failed to comply with § 1926.28(a).

The liberal amendment rules provided in Rule 15, Federal Rules of Civil Procedure, do not apply to the amendment of a job safety citation because it is a unique creature of statute to which Congress attached the particularity requirements enumerated in 29 U.S.C. § 658(a). n10 Considering those requirements, [*17] it is clear that at most only minor editorial changes are permissible under Commission Rule 33(a)(3). Obviously, the Commission cannot circumvent the intent of Congress by construing its own procedural regulations in a manner that conflicts with congressional intent. However, that is exactly what the Commission is doing by allowing complainant to add a totally new charge in the complaint as no citation has been issued which sets out that particular allegation.

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n10 Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

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Section 1926.28(a) itself is invalid in its present form because the Secretary of Labor failed to follow the rulemaking procedures required by 29 U.S.C. § 655(b) in promulgating the revised version thereof. Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143 (1975) (dissenting opinion). n11 Since the modified version of § 1926.28(a) is invalid, the original version remains in effect. Secretary v. Island Steel & Welding, Ltd., supra. [*18] That standard provides as follows:

"The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees." n12 (Emphasis added.)

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n11 Also see my dissenting opinions in Secretary v. Cornell & Co., OSAHRC Docket No. 9054, September 22, 1976; Secretary v. Kelly Construction Services, Inc., OSAHRC Docket No. 7102, July 26, 1976; Secretary v. Sweetman Construction Co., OSAHRC Docket No. 3750, March 2, 1976.

n12 The only difference in the two versions is that the word "or" was substituted for the word "and" in the revised version.

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In order to sustain his burden of proving noncompliance with the cited standard, complainant must establish (1) that there was employee exposure to a hazardous condition which warrants use of personal protective equipment, and (2) that there was a failure to use this equipment [*19] when such use was required elsewhere in Part 1926 of the regulations. This burden is consistent with that which was set forth by the Ninth Circuit in Hoffman Construction Co. v. OSAHRC, 546 F.2d 281 (9th Cir. 1976), where the Court considered the original version of § 1926.28(a). n13

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n13 The Court stated the following:

"Liability under 29 C.F.R. § 1926[.28(a)] as then written required proof of three elements: (1) that the employer did not require the wearing of protective equipment; (2) that there was exposure to hazardous conditions; and (3) that Part 1926 of the regulations indicated a need for protective equipment." 546 F.2d at 283.

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Respondent cannot be found in violation of 29 C.F.R. § 1926.28(a) because it was not in violation of any other standard in Part 1926 of the occupational safety and health standards. My colleagues find respondent in violation of 29 C.F.R. § 1926.28(a) for failing to require the use of safety belts and lanyards. The tandard originally cited, 29 C.F.R. § 1926.104(a), "does not [*20] require the use of the protective equipment enumerated therein at any time." Secretary v. Underhill Construction Corporation, OSAHRC Docket No. 8096, October 6, 1976. The standard at 29 C.F.R. § 1926.105(a) probably comes closest to requiring safety belts and their accounterments, but it does not apply because respondent's employees were not working more than 25 feet above ground. Secretary v. Steel Erectors, Inc., 20 OSAHRC 287 (1975). The standard at 29 C.F.R. § 1926.603(a)(8), which, according to the lead opinion, "suggests the use of safety belts by employees working on the leads of pile driving equipment," does not require the wearing of safety belts. A further search through the standards in Part 1926 sends the reader on as "fruitless [a] search," as that made by the Court in the Hoffman case. 546 F.2d at 283.

Since this decision does not address all of the matters covered in Judge Fier's decision, his decision is attached hereto as Appendix A.

CLEARY, Commissioner: CONCURRING in part, DISSENTING in part.

I concur with the Chairman's disposition of items 3 and 4 n14 of the citation for nonserious violations. Although I agree with the affirmance of the [*21] § 1910.28(a) allegation, I do not join in the portion of his opinion stating that "the standard could be considered vague unless its scope is defined and limited by extrinsic means, such as other regulations or industry customs and practices."

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n14 The Chairman's discussion of item 4 is concerned with the issue on which respondent petitioned for review. In its brief on review, respondent seeks to expand that issue. The direction for review, however, limited issues on review to those included in respondent's petition.

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That statement is a reaffirmation of the Chairman's opinion that the two clauses of § 1926.28(a) are to be read in the conjunctive, requiring satisfaction of a two-step test before personal protective equipment is required. This approach to the application of the standard has never been adopted, either by the Commission or the courts. See, e.g., B & B Insulation, Inc., No. 9985 (April 18, 1977). In my view, the two clauses in the standard describe two separate circumstances under which [*22] the use of personal protective equipment is required: either (1) where there is an exposure to hazardous conditions, or (2) where Part 1926 specifically indicates the need for using such equipment. For a more detailed statement of my interpretation of the standard, see my concurring opinion in B & B Insulation, Inc., supra.

Here, respondent's employee was working about fourteen feet above the rig's steel lead platform and about twenty feet above steel piles protruding from a nearby excavated area without any type of fall protection. There was exposure to a "hazardous condition" that would obviously be alleviated by the use of a safety belt and lifeline, or other fall protection equipment. Accordingly, I would hold that § 1926.28(a) has been violated. See Isseks Bros., Inc.., 3 BNA OSHC 1964, 1975-76 CCH OSHD para. 20,361 (No. 6415, 1976); B & B Insultation, Inc., supra.

Finally, I would affirm item two of the citation for nonserious violations which alleged a failure to comply with the standard published at § 1926.603(a)(9). In my opinion, the standard clearly requires that the cable be made of metal. As Judge Fier properly observed in his decision: [*23]

It is obvious that if the intent was to permit the use of a manila rope the language of the standard would not have coupled the word cable with chain. A 'metal chain' is decidely stronger than a manila rope of the same width.

Respondent argues that § 1926.603(a)(9) requires only "equivalent" protection for air hammers and steam hammers. In its brief on review respondent concedes that the use of a manila rope would probably not be appropriate for a steam hammer because of its high operating temperatures. It argues, however, that a 3/4 inch manila rope, which assertedly has the equivalent strength of a 1/4 inch wire rope, provides the same protection for an air hammer as does a wire rope for a steam hammer. The argument is not meritorious. The standard requires that "same" protection for air and steam hammers, not "equivalent" protection. If, as respondent concedes, a wire rope is necessary for steam hammers, it must also be provided for air hammers. As stated, I would affirm the item on the basis of my reading "chain or cable" to require a metal cable.

Appendix A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor and Diane Zwerling, United States Department of [*24] Labor

Morris J. Levin, for the respondent

Fier, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), wherein respondent contests the citation and penalty for one serious and four nonserious violations. The citations dated March 13, 1975 were based on an inspection conducted March 10, 1975. The citations and proposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.

Pursuant to section 10(c) of the Act, 29 U.S.C. 659(c), respondent through a letter dated March 27, 1975, from its Vice President, noted its timely contest of the citation and proposed penalty.

The citation for alleged nonserious violations sets forth the following:

Citation No. 1
			Abatement
Item	Standard	Description of Alleged Violation	Date
1	29 CFR	Pile driving rig, Lima 802,	April 3, 1975
	1926.603(a)(8)	Marked: "Ratto Construction."
		Fixed leads did not have any
		rings or similar attachment
		points, so that the loft worker
		could, if he had worn personal
		protective equipment, engage his
		safety belt lanyard to the leads. n1
No penalty was proposed.
2	29 CFR	Air hose leading to the air	April 3, 1975
	1926.603(a)(9)	hammer was secured with approxi-
		mately 3/4 inch manila line in
		lieu of the required, adequate
		length of at least 1/4 inch
		diameter chain or cable to prevent
		whipping in the event the joint at
		the hammer disconnected. Also air
		hose at the pipe connection had
		only a single approximately 1/2
		inch manila line to secure air hose
		at the point of attachment. n2
No penalty was proposed.
3	29 CFR	Ramp "A"
	1926.350(a)	A full oxygen cylinder on the	Immediately
		ground adjacent the employees	upon receipt
		work area did not have a value	of this
		protection cap to protect the	citation
		value. An approximately 4000
		pound steel pile approximately
		60 feet in length rested on the
		compressed gas fuel cylinder.
		Pile had fallen on to the cylinder
		earlier this date. An adjacent
		pile hoisted and skidded by the
		pile driving rig could have
		sheared off the value thereby creating
		a projectile subjecting employees
		to injuries. n3
A penalty of $80.00 was proposed.
4	29 CFR	A suitable cylinder truck, chain,	Immediately
	1926.350(a)(9)	or other steadying device was	upon receipt
		not provided for oxy-aceteylene	of this
		burning set which had regulators	citation
		attached and was in use. n4
No penalty was proposed.

[*25]

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n1 Fixed leads shall be provided with ladder, and adequate rings or similar attachment points, so that the loft worker may engage his safety belt lanyard to the leads. If the leads are provided with platform(s), such platform(s) shall be protected by standard guardrails.

n2 Steam hose leading to a steam hammer or jet pipe shall be securely attached to the hammer with an adequate length of at least 1/4 inch diameter chain or cable to prevent whipping in the event the joint at the hammer is broken. Air hammer hoses shall be provided with the same protection as required for steam lines.

n3 Transporting, moving, and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secured.

n4 Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or darried.

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The citation for alleged serious violations sets forth the following:

Citation No. 2
			Abatement
Item	Standard	Description of Alleged Violation	Date
1	29 CFR	Pile Driving Rig, Lima 802,	Immediately
	1926.104(a)	Marked: "Ratto Construction."	upon receipt
		Employee working aloft on the	of this
		leads approximately 15 feet	citation
		above the ground and/or vertically
		protruding pilings was not
		wearing any personal protective
		equipment to prevent his falling
		and thereby sustaining serious
		physical injury or death. n5
A penalty of $800.00 was proposed.

[*26]

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n5 Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding.

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In the complaint, the solicitor amended the citation to include the following serious violation.

Standard	Description of Alleged Violation	Abatement Date
29 CFR 1926.28(a)	Respondent failed to provide	Immediately
	personal protective equipment	upon receipt of
	where an employee was working	this citation
	aloft on the leads of a pile
	driving rig approximately 15
	feet above the ground. n6

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n6 The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[*27]

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ISSUES

1. Whether the respondent committed a violation of the Occupational Safety and Health Act as alleged?

2. Whether the motion to amend the citation was properly made?

3. Whether the standard 29 CFR 1926.28(a) is so vague as to be unforceable?

4. If the respondent is shown to have violated any of the standards as alleged, what penalty, if any, is appropriate?

STIPULATION OF FACTS

The respondent read into the record a statement indicating among other things, that it was engaged in the construction of a highway that would carry interstate commerce, and that it employed approximately 450 persons on an average day (Tr. 6). *

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* Transcript page.

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The stipulation also notes a prior history of violations including a penalty of $100.00 previously assessed for two nonserious violations. One of them was for cylinders not being secured; and the other concerned the non-use of metal safety cans for the storage of gasoline (Tr. [*28] 7, 8).

STATEMENT OF EVIDENCE

On March 10, 1975, Compliance Officer, Thomas Marin, inspected the respondent's worksite at Route 22 in Newark, New Jersey. In the course of the inspection, he observed an oiler, identified as an employee of the respondent, aloft on a rig without a safety belt or line (Exh. 2, 3; Tr. 26-30). The compliance officer also observed that the rig did not have any rings or similar attachment to which the safety equipment could be attached (Tr. 18). The air lines were secured to the boom with a 3/4 inch manila line (Exh. 5; Tr. 20-24). On further inspection, the compliance officer noted an oxygen cylinder on the grounds without a protective cap with steel pilings resting on top of it. Employees of respondent were seen working within a few feet of the cylinder. In the same area, the compliance officer observed an oxy-acetylene burning set in use without a steadying device (Tr. 31, 32).

The respondent through the testimony of Mr. James McClemens, Jr., its Project Superintendent, stated that the rig was in use on the job site for about one month (Tr. 83). Counsel conceded that a worker was aloft on the rig without a safety belt and probably should have [*29] had one. However, counsel indicated that the risk was minimal (Tr. 86, 87). The air lines were secured by a 3/4 inch manila rope. The respondent asserts that "rope" and "cable" as used in the standard and as defined in Webster's Dictionary and Macwhyte Wirerope Catalog are synonymous. n7

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n7 (Resp.Exh.-1) Macwhyte Wirerope Catalog, page 224 -

Cable - a term loosely applied to wire ropes, wire strands, manila ropes and electrical conductors.

(Res.Exh.-2) Webster's Dictionary, page 196 -

Cable - 1. A thick, heavy rope, now often of wire strands.

(Solicitor's Exh.-7) Webster's Dictionary, page 370 -

Cable - 1. A strong rope, orig. only of hemp or other fiber and of any thickness; now, a rope of 10 or more inches in circumference (smaller ones being called cablets, hawsers, etc.) by extension, a wire rope or a chain of great strength; * * * *.

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The compliance officer also found a nonserious violation when he observed that an acetylene burning set was not secured by a steadying device and was resting [*30] against the pilings. At the time a welder was in the working area (Tr. 37, 38).

OPINION

We are concerned here with four nonserious and one serious violations. The evidence had shown that the rig did not have the fixed leads for attachment of safety lines as required under standard 29 CFR 1926.603(a)(8). However, counsel asserts that there were suitable alternate points that could be used to tie off a safety lanyard (T-33, 46, 47). A reading of the standard indicates, "or similar attachment points * * *." It is obvious that the testimony and the standard clearly support the respondent on this issue. The standard does not restrict the tying off of safety lines to rings, but also other suitable means. In addition, the testimony of the compliance officer also shows that he is in agreement as to the alternate locations of tying off. Accordingly, the violation is dismissed.

The violation of 29 CFR 1926.603(a)(9) is concerned with securing the steam hose to prevent whipping in the event the joint at the hammer is broken. The respondent has introduced evidence intended to show that it complied with the standard (T-49, 50). The use of a manila rope is not the same as a "chain [*31] or cable" as the words are used in the standard. It is obvious that if the intent was to permit the use of a manila rope the language of the standard would not have coupled the word cable with chain. A "metal chain" is decidedly stronger than a manila rope of the same width. A metal cable is similarly stronger than a manila rope of the same width. If there was an intent to include the use of manila rope in complying with the standard a reasonable conclusion is that it would have so stated. It must also be noted that no variance was sought in this regard. Accordingly, the violation must stand. A penalty of $250.00 under the circumstances is not unreasonable and is assessed.

The violation of 29 CFR 1926.350(a) relates to an oxygen cylinder on the ground without a valve cap as required. The evidence is not in dispute. The photograph clearly shows the violation (Exh.-4). The testimony indicates that respondent's employees were in the vicinity of the cylinder and exposed to the possibility of an accident. The respondent's contention that the danger was minimal because there were steel pilings resting on the cylinder is unacceptable to justify the fact that the violation was [*32] there. The possibility of an accident still existed. The record also notes that the respondent was previously assessed a penalty for a similar violation (T-7). Accordingly, it appears that a penalty of $250.00 is appropriate under the circumstances.

The violation of 29 CFR 1926.350(a)(9) pertains to the use of a steadying device for oxy-acetylene burning equipment. The testimony indicates that the equipment was being used by a worker at the time (T-31, 32, 75). The evidence shows that respondent's employees were exposed to the possibility of an accident. It is obvious that the violation of the standard has been established. An appropriate penalty of $250.00 under the circumstances is not inappropriate.

The original violation of 29 CFR 1926.104(a) was amended in the complaint by adding thereto a violation of 29 CFR 1926.28(a). This is permissible where it is timely made and without prejudice to the respondent. Secretary v. Murro Chemical Company, Inc., 12 OSAHRC 364 (1974). The facts in the instant case show that the amendment was within a reasonable period of time from the date of the issuance of the violation.

The motion if granted, would still leave a charge [*33] of a violation of a companion standard. It is not necessary in the instant case that a violation of one standard rest on the establishment of a violation of another standard. The amendment of the complaint adopting 29 CFR 1926.28(a) is appropriate and designed to lend clarity and brevity. For the aforesaid reasons the motion to strike 29 CFR 1926.104(a) is granted. Secretary v. Chicago Bridge and Iron Company, 9 OSAHRC 233 (1974). The facts of the citation are undisputed. The respondent's employee was working on the rig without safety equipment. This is in violation of the standard charged. The respondent seeks to mitigate the seriousness of the violation by asserting that the danger was minimal. This argument is unpersuasive. The seriousness of an accident by a fall can be fatal in this instance. It is apparent from the evidence that the safety program of the respondent designed to provide a safe place for workers, is at most, minimal. Accordingly, a penalty of $1,000.00 is not inappropriate under the circumstances. Secretary v. Robbins Painting Service, 5 OSAHRC 719 (1973).

The respondent's motion to vacate on the ground of vagueness is unsupported [*34] by the evidence, testimony, or case precedents. The Review Commission stated:

"We specifically approve the Judge's determination that the standard at 29 CFR 1926.28(a) is reasonable, definite, and enforceable. "Secretary v. Eichelay Corporation, 15 OSAHRC 635 (1975).

Accordingly, the respondent's motions to dismiss because of vagueness of the standards are denied (T-77). All other motions not previously disposed of are denied (T-78).

In passing on all of the above matters the statutory factors set forth in section 17(j) of the Act have been duly considered.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent, Schiavone Construction Co., is in the construction business and receives and handles goods that move in interstate commerce (T-6).

2. Stipulations as to prior citations have been made a part of the record (T-5).

3. The evidence of record shows that there were alternate means by which to attach lines of personal protective equipment on the rig.

4. The evidence of record shows that the air hose leading to the joint of the air hammer was not secured with [*35] the required 1/4 inch diameter chain or cable as provided in the standard 29 CFR 1926.603(a). Further, a manila rope of 3/4 inch diameter has not been established as an acceptable substitute for the requirements of the standard.

5. The evidence of record shows that the oxygen cylinder was without a valve cap as required by the standard.

6. The evidence of record shows that the oxy-acetylene burning set was in use without a suitable steadying device as required by the standard.

7. The evidence of record shows that respondent's employee was working aloft approximately fifteen feet from the platform or twenty feet from the ground without any personal protective equipment as required in the standard (T-39).

8. In all of the above findings, the criterion set forth in section 17(j) of the Act were considered.

CONCLUSIONS OF LAW

1. The respondent is and was at all times herein engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent was not in violation of 29 USC [*36] 654(a)(2) by allegedly failing to comply with 29 CFR 1926.603(a)(8) of the standard. Citation 1, item no, 1, is vacated.

4. Respondent violated 29 USC 654(a)(2) by failing to comply with 29 CFR 1926.603(a)(9) of the standard. Citation 1, item no. 2, is affirmed. A penalty of $250.00 is assessed.

5. Respondent violated 29 USC 654(a)(2) by failing to comply with 29 CFR 1926.350(a) of the standard. Citation 18 item no. 3, is affirmed. A penalty of $250.00 is assessed.

6. Respondent violated 29 USC 654(a)(2) by failing to comply with 29 CFR 1926.350(a)(9) of the standard. Citation 18 item no. 4 is affirmed. A penalty of $250.00 is assessed.

7. Respondent violated 29 USC 654(a)(2) by failing to comply with 29 CFR 1926.28(a) of the standard. Citation 2, item no. 1, is affirmed. A penalty of $1,000.00 is assessed.

SO ORDERED.

Dated: November 20, 1975

New York, New York

SEYMOUR FIER, JUDGE, OSAHRC