NEWSPAPER PRINTING CORP.
OSHRC Docket No. 14427
Occupational Safety and Health Review Commission
September 6, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
James R. Jessup, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
Respondent (Newspaper Printing) was charged with failing to timely abate violations of several OSHA safety standards. It contends that various discussions between its general manager and OSHA representatives misled it into thinking it was not required to abate within the time specified in our order, and that it should therefore not be penalized. Judge Robert N. Burchmore rejected the argument and assessed a penalty of $400. We conclude that the Judge correctly found that Newspaper Printing failed to abate the violations as alleged, but reduce the penalty to $100.
Newspaper Prining was issued citations alleging one serious and twenty nonserious violations following an OSHA inspection of its worksite on April 22 and 24, 1975. The citations were issued on May 7, 1975 and an abatement date of June 23, 1975 was specified. The citations were not contested and became final orders of this Commission. n1 All violations except items 7, 11, 17(d), 17(e), and 18 n2 were [*2] abated on or before June 23. On July 15, and OSHA compliance officer reinspected the plant, and Newspaper Printing was subsequently charged with failing to abate items 7, 11, 17(d). and 17(e).
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n1 29 U.S.C. 659(a).
n2 Item 18 is not involved in the present case. Shortly after the inspection, Newspaper Printing determined that the violation alleged in item 18 could not be abated by June 23. It therefore filed a written request for an extension of the abatement date, which the Secretary granted.
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Item 7 alleged that Newspaper Printing failed to equip the runway platforms adjacent to its printing presses with standard railings. At the time of the original inspection, Newspaper Printing was planning to install new presses, with adequate railings, in a building adjacent to its existing worksite. The new presses were installed and in operation before June 23, but problems with them occurred, and Newspaper Printing was forced to use the old presses on several occasions. At the time of the reinspection, the old presses [*3] were in operation.
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n3 See 29 C.F.R. 1910.23(c)(2).
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Item 11 involved the lack of suitable eye wash facilities in an area of the plant containing a nitric acid bath. n4 Newspaper Printing ordered an eye wash fountain immediately after the first inspection, and the supplier said that it could be delivered in thirty days. Later, however, the supplier told Newspaper Printing that the fountain could not be obtained before June 23. Newspaper Printing contacted two other companies in attempting to comply by June 23, but the fountain was not received before the July 15 reinspection.
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n4 See 29 C.F.R. 1910.151(e).
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Item 17(d) and (e) alleged that drive belts on certain routers were unguarded. n5 By June 23, Newspaper Printing had obtained new routers with suitable guards, and told its employees not to use the old routers except in emergencies. When the plant [*4] was reinspected, however, the old routers were being used.
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n5 See 29 C.F.R 1910.219(e)(1)(i).
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Newspaper Printing's general manager, Fleming, spoke with various local OSHA officials several times between receiving the citation and the June 23 abatement date, telling them of the plans which Newspaper Printing had for abating the violations at issue, and informing them of the problems they were encountering. According to Fleming, the OSHA officials expressed understanding with those problems, and led him to believe that they thought Newspaper Printing's abatement efforts were sufficient. Fleming said that the officials did not advise him he should file a written request for extension of the abatement date, and he believed OSHA would be satisfied as long as the violations were abated as soon as possible. According to Newspaper Printing:
Complainant by its silence implied to Respondent that no formal request for extension was needed; that Complainant understood the unfortunate circumstance which prevented compliance [*5] within the original time specified and that so long as Respondent continued its good faith efforts to correct the deficiencies cited at the earliest obtainable time it would be deemed to have complied with the tenor and spirit of the OSHA regulations.
Judge Burchmore rejected the argument that the discussions between Fleming and OSHA representatives excused Newspaper Printing from complying with the abatement date ordered by the citation. He noted that our rules require that a petition for modification of the abatement period must be in writing, n6 and that Newspaper Printing was aware of that requirement, as shown by its having filed a written request for extension of the abatement date for item 18 (see n. 2, supra). He also found that the OSHA representatives did not mislead Newspaper Printing in any way. n7 We agree with the Judge's reasoning and with his conclusion that Newspaper Printing failed to timely abate the violations at issue.
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n6 29 C.F.R. 2200.34
n7 See Atlantic Maring, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975).
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We also conclude, however, that Newspaper Printing showed considerable good faith by its diligent efforts to abate the violations. Under the circumstances, a substantial penalty is not warranted. We conclude that a total penalty of $100 is appropriate.
Accordingly, the Judge's decision is modified to reflect a penalty assessment of $100 and, as so modified, is affirmed.