BOISE CASCADE CORPORATION
OSHRC Docket No. 2047
Occupational Safety and Health Review Commission
May 6, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Robert A. Friel, Assoc. Reg. Sol., USDOL
Warren E. Jones, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On April 9, 1974, Administrative Law Judge Thomas J. Donegan issued his decision in this case, n1 affirming several items of a citation and finding respondent to have committed a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter "the Act"). On May 1, 1974, Commissioner Moran issued a sua sponte direction for review, inviting submissions on the following issue:
Was there sufficient evidence in the record to justify the Judge's findings that respondent was in violation of the Act because of its failure to comply with 29 CFR § 1910.219(d)(1); 29 C.F.R. § 1910.219(e)(1); and 29 C.F.R. § 1910.219(f)(3)?
The cover letter accompanying the direction stated that "submissions need not be limited to those issues . . . ."
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n1 This case had previously been consolidated with two other cases involving this respondent, docket Nos. 2057 and 2048. Pursuant to Commission Rule 10 (29 CFR § 2200.10), Nos. 2049 and 2048 were severed, and then decided, on October 31, 1975, and December 11, 1975, respectively.
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We hold that Judge Donegan's findings of fact, conclusions of law, and order reflect the clear preponderance of the evidence. Only a brief discussion of the issues is necessary. n2
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n2 Only items 2, 3, 4 and 5 of the citation for "serious" violation are on review before the Commission. In pertinent part, the citation reads as follows:
The following parts of power transmission machinery are not guarded in accordance with the requirements of 1910.219.
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2. The merry-go-round from the resaw has a double V-belt and pulley drive that is not guarded.
3. The resaw outfeed table has two chain drives with four sprockets and these chains and sprockets are not guarded.
4. The chip bin conveyor drive has an unguarded chain and two unguarded chain sprockets.
5. The short chain hog conveyor drive has an unguarded chain and two unguarded chain sprockets.
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With regard to item 2, the Judge correctly found that on the merry-go-round, the [*3] attached pieces of metal did not comply with 29 CFR § 1910.219(d)(1) because they did not in fact guard the machine, as required by the standard. n3 At the time of inspection, employees were observed working within 20 to 25 feet of the machine; there were also no barriers preventing access. See Gilles & Cotting, Inc., No. 504 (February 20, 1976) (on remand); Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032, 1039 (2d Cir. 1975). The Judge also concluded, based on his evaluation of the credibility of witnesses, that employees were actually exposed to this condition. The record supports the finding that the resaw operator would be adjacent to the merry-go-round to clear jam-ups while the machine was running. This finding should not be disturbed. See Evansville Materials, Inc., BNA 3 OSHC 1741, CCH 1975-76 OSHD para. 20,187 (No. 3444, November 28, 1975); Paul L. Heath Contracting Company, 20 OSAHRC 297, BNA 3 OSHC 1550, CCH 1975-76 OSHD para. 20,006 (No. 5467, September 24, 1975). Accordingly, the item will be affirmed. n4
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n3 We therefore need not resolve respondent's contention that 29 CFR § 1910.219(e)(1) does not apply to the conditions cited in item two. We note, however, that respondent contends that § 1910.219(e)(3) is the applicable standard. Even if this were so, it is possible that the pleadings could be amended under Fed. R. Civ. P. 15(b) to reflect noncompliance with that subsection. All the issues pertinent to § 1910.219(e)(3) were actually tried (i.e., whether there was guarding). See generally, D. Federico Company, Inc., BNA 3 OSHC 1970, 1972, CCH 1975-76 OSHD para. 20,422 (No. 4395, February 10, 1976).
n4 The Judge held that the item was not serious within the meaning of section 17(k) of the Act. The Secretary does not ask that we reverse this determination, and we do not consider the question.
[*4]
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With regard to item 3, a failure to comply with 29 CFR § 1910.219(f)(3) is clearly shown. The chains and sprockets were but partially guarded. The evidence of exposure and access is basically similar to that of item 2. The item was correctly affirmed as serious. Respondent knew or should have known of this condition; and if an injury had occurred, n5 amputation of any part of the body contacting the nip points of the sprocket wheels and chains would have been a substantially probable result. With regard to penalty assessment the Judge properly found that, in view of the minimal employee exposure, the low probability of injury, and the existence of precautions, albeit inadequate, this serious violation was nevertheless of low gravity. National Realty & Construction Co., 1 OSAHRC 731, BNA 1 OSHC 1049, CCH 1971-73 OSHD para. 15,188 (No. 85, September 6, 1972), rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973).
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n5 We note Boise-Cascade's argument that the citation was not serious within the meaning of section 17(k) because of the low likelihood of injury. It is now well-settled that the likelihood or frequency of injury is not considered in determining whether a violation is serious within the meaning of section 17(k) of the Act, but is a relevant considered in determining the gravity of the violation in the penalty assessment context. See generally, California Stevedore & Ballast Company, 4 OSAHRC 642, 644, BNA 1 OSHC 1305, 1307, CCH 1973-74 OSHD para. 16,520 at 21,364 (No. 14, September 4, 1973), aff'd and approved, 517 F.2d 986, 987-988 (9th Cir. 1975); Brady-Hamilton Stevedore Company, BNA 3 OSHC 1925, CCH 1975-76 OSHD para. 20,342 (No. 2265, January 26, 1976) and cases cited.
[*5]
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Items 4 and 5 were properly affirmed: both noncompliance and access were plainly proved. As to whether the item was serious, we note only that the Judge's finding of knowledge is supported by the record for the reasons he assigned. The gravity was correctly found to have been low.
In the assessment of penalties, the Judge took into account the low gravity of this serious violation, n6 the vacation of item one, as well as the other factors listed in section 17(j) of the Act; he vacated the Secretary's proposed penalty of $700, and assessed a $300 penalty instead. We find no error in that decision.
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n6 In its brief, respondent devotes much space in urging that if a violation is found, only one "serious" violation be sustained. Because only one such violation is found, we need not discuss the matter.
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Accordingly, the Judge's decision is AFFIRMED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The citation should be vacated because complainant [*6] failed to establish that any of respondent's employees were actually exposed to the unsafe conditions alleged therein. n7
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The merry-go-round and resaw outfeed table drives were located immediately adjacent to each other. The complainant's inspector at no time observed any of the respondent's employees in a position sufficiently close to either of these drives to be endangered thereby. He saw some workers in "this general area," but he did not observe anyone closer than 20 or 25 feet to the two machine drives, and there were no work stations located any closer thereto.
The inspector assumed that employees passing by the machinery would be exposed to the unguarded drives. Although he testified that there "was an open area" adjacent to these drives, he did not observe any employee [*7] using it as a passageway, nor was there any evidence that it had ever been used as such by any employee. On the contrary, there was evidence that the respondent's employees did not walk near the drives in the normal course of their duties.
The inspector also speculated that, in the event of a jam in the machinery, workers would have to come within close proximity of the drives to correct the problem. He agreed, however, that the machinery would probably be shut off if that happened. Other testimony indicated that it was customary to deactivate the machinery before removing an obstruction.
The two conveyor drives were located outside between the mill shop and sawmill and were positioned adjacent to one another. Here again the inspector did not see any of the respondent's employees exposed to the alleged hazards.
The evidence conclusively establishes that the operator of the conveyors was located sufficiently far away from the unguarded chains and sprockets to preclude his being endangered by them. However, the inspector was of the opinion that the maintenance and cleanup men and passersby might be subject to exposure.
In regard to the maintenance man, the inspector [*8] theorized that his duties might bring him "within fifteen feet" of the unguarded components. Other testimony places him closer to these parts as it indicates that he used two nearby control boxes in the performance of maintenance. These control boxes were not used to operate the conveyors, n8 and a person standing in front of them could not reach his hand out and touch the nearest sprocket. More importantly, the evidence indicates that the millwright would shut off the machinery before performing maintenance on it.
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n8 The record does not establish their function.
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Concerning the cleanup man, the inspector was told by the respondent's plant manager that his duties were performed while the machinery was running. Since there was no testimony as to how the cleanup function was performed, it is not established that he was exposed to the alleged hazards. Moreover, the plant manager's statement most probably pertained to the procedure followed when the machinery was properly guarded. Guards were available beside the [*9] conveyors at the time of the inspection, having been removed a few days before because extremely cold weather had created a problem which caused the chains to come off of their sprockets. It was necessary to remove the guards in order to replace the chains, and the millwright decided to leave the sprockets off during the cold spell in order to simplify chain replacement. The evidence, although conflicting, tends to indicate that the plant manager did not know that the guards had been removed until the time of the inspection. Therefore, his statement to the inspector probably related to the procedure that was followed when the guards were in place. He would not have known whether or not the machinery was deactivated for cleanup after the guards were removed.
Finally, the inspector's opinion as to the exposure of workers that might pass the conveyors is not factually supported by the record. In the inspector's opinion, a passing worker would come no closer than five feet from the unguarded chains and sprockets. To do this, a worker would have to be walking on the south lside of the conveyors. The plant manager testified, however, that the ordinary route of travel between the [*10] mill shop and the sawmill was to the north of the conveyors. The closest point to the conveyor drives along this route was about 30 feet away therefrom.
With the evidence in the state described above, I conclude that the complainant's case is fatally defective in that it fails to establish that any of respondent's employees were actually exposed to any of the conditions enumerated in the citation.
I also disagree with the assertion in footnote 3 of the lead opinion that the pleadings could be amended under Rule 15(b) of the Federal Rules of Civil Procedure.
Since the foregoing opinion does not address all of the matters covered by Judge Donegan's decision, the same is attached hereto as Appendix A.
Appendix A
DECISION AND ORDER
Ernest Scott, Jr., Office of the Regional Solicitor, United States Department of Labor, for the Complainant
Warren E. Jones, for the Respondent
R. G. Gib Walker, Business Representative, Blue Mountain District Council, Lumber Production [*11] and Industrial Workers, For the Authorized Employee Representative
Eugene Wright, President, Local 2816, Lumber Production and Industrial Workers, for the Authorized Employee Representative
Thomas J. Donegan, Judge:
At a pretrial conference it was determined that the above entitled cases would not be consolidated for purposes of hearing but would be heard back to back in the following order: dockets numbered 2048, 2049 and 2047. This order of hearing the cases was followed except for a lapse of time between the close of the hearing in docket 2049 and the start of the hearing in docket 2047. The three cases have common parties, including the authorized employee representative, and following the completion of the hearings it is appropriate that the cases be consolidated, which is being done, for the purpose of issuing this decision and order in dockets 2048, 2049 and 2047.
These are proceedings pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).
Under the authority vested in the Complainant by Section 9(a) of the Act, citations were issued to the Respondent for alleged [*12] violations of Section 5(a)(2) of the Act resulting from the alleged failure of the Respondent to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act. Notifications of proposed penalties were also issued to the Respondent for these alleged violations pursuant to the enforcement procedure set forth in Section 10(a) of the Act.
A plywood plant at Emmett, Idaho and the Barber Sawmill in Ada County. Idaho, under the operation and control of the Respondent, were inspected on December 12 and 14, 1972 by Richard C. Jackson, a compliance officer, in the employ of and acting as a representative of the Complainant.
The citations and proposed penalties in dockets 2048, 2049 and 2047, set forth hereafter, were timely contented by the Respondent.
As a result of the inspection of the plywood plant at Emmett on December 12, 1972 (docket 2048), the following citation no. 1 for a serious violation was issued to the Respondent, together with a notification of proposed penalty of $600 for the alleged violation.
[Form Omitted]
The standard alleged to have been violated in this citation no. 1 for serious violation (docket [*13] 2048) provides as follows:
29 CFR 1910.213(h)(1)
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§ 1910.213 Woodworking machinery requirements
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(h) Radial same. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the and of the saw arbor. The upper hood shall be 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.
The inspection of the Emmett plywood plant on December 14, 1972 (docket 2049) resulted in the issuance to the Respondent of the following two citations for serious violations and a notification of proposed penalties of $1200 for the alleged serious violations ($600 each for citations numbered 1 and 2).
[Form omitted]
The standards alleged to have been violated in these citations, numbered 1 and 2, for serious violations (docket [*14] 2049) provide as follows:
Citation number 1:
29 CFR 1910.265(e)(4)(ii)(b)
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§ 1910.265 Sawmills.
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(e) Log breakdown and related machinery and facilities --
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(4) Trimmer Saws --
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(ii) Guards.
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(b) The end saws on trimmers shall be guarded.
Citation number 2:
29 CFR 1910.212(a)(1)
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§ 1910.212 General requirements for all machines.
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(a) Machine Guarding --
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(1) Types of guarding.
One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.
Following the inspection of the Barber Sawmill on December 12, 1974 (docket 2047) the Respondent was issued the following citation no. 1 for serious violation and a notification of proposed penalty of $700 for the alleged serious violation.
[Form Omitted]
The standards alleged to have been violated in this citation no. 1 for serious violation (docket 2047) provide as follows:
29 [*15] CFR 1910.265(c)(22)
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§ 1910.265 Sawmills.
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(c) Building facilities, and isolated equipment --
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(22) Mechanical power-transmission apparatus. The construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements of § 1910.219.
(See Appendix A of this Decision and Order for the text of § 1910.219)
In the complaints filed in dockets 2048, 2049, and 2047 the citations were amdned by changing the assertion of the time of the alleged violations from the present to the past tense. The amendments were appropriate for the purpose of clarifying the time of the alleged violations and did not prejudice the Respondent. Issues were raised in the answers concerning these amendments but the Respondent subsequently withdrew objections to the amendments (docket 2047: Tr. 8-9).
Affirmative defenses were asserted in the Respondent's answers in dockets 2048, 2049 and 2047. The Respondent amended the answer filed in docket 2048 for the purpose of denying paragraph III of the complaint in this docket which in substance alleged that the Secretary of Labor duly issued and promulgated the standards involved [*16] pursuant to the authority vested in him by section 6 of the Act.
Mr. Walker, the authorized employee representative was present and participated in each hearing (dockets 2048, 2049 and 2047) except for part of the hearing in docket 2047 on August 9, 1973 (docket 2047: Tr. 165, 230). Mr. Wright of Union Local 2816 was also present at the hearings but did not participate except as a witness (docket 2048: Tr. 5 - 6; docket 2049: Tr. 362 - 389).
DISCUSSION
The Respondent asserts in the answers filed in dockets 2048, 2049 and 2047 that the Act provides for an unconstitutional delegation of legislative power in authorizing the United States Secretary of Labor to promulgate, publish and enforce standards and regulations under the Act; and that the standards which are alleged to have been violated in the citations contested in these dockets are the product of such unconstitutional delegation of legislative power and therefore are null and void.
It is well settled that the Commission does not have the power to pass on the constitutionality of the Act it administers, which the Respondent does not dispute (docket 2048: Tr. 73; Respondent's brief in docket 2048, page 7).
At the hearing [*17] in docket 2048 the Respondent contended that the Commission has the power to rule upon the validity of the power of the Secretary of Labor to promulgate the contested standard and to determine whether he exceeded the power delegated to him by Congress. More particularly, the Respondent contended that the lower guard on the radial saw which is required by the standard [29 CFR 1910.213(h)(1)] does not accomplish the purpose of the Act but in fact creates additional hazards to the operator thereby going beyond the delegation of power by Congress to the Secretary and consequently is a nullity (docket 2048: Tr. 72 - 81).
The testimony of Even Jeffries and Clifford Spencer is particularly concerned with showing that the standard requiring lower guarding on the radial saw does not accomplish the purposes of the Act but created additional hazards. This testimony does not constitute persuasive substantial evidence supporting a finding that the Secretary has failed in this instance to promulgate a standard reasonably necessary or appropriate to promote the safety of employees within the meaning of the Act (docket 2048: Tr. 110 - 111, 123 - 126, 142 - 145, 169 - 170, 181 - 182, 185 - 186). [*18]
Albeit the Secretary has failed to achieve a level of 100%, 50% or 25% of safety by promulgating this standard; there has been no showing that the standard fails to safeguard the operator of the saw in all instances - in fact, the evidence clearly shows that it does offer some degree of protection. There is no showing that the side guarding of the lower exposed portion of the blade of the radial saw creates an unacceptable hazard in all uses of the radial saw, or more particularly when the primary purpose is to cut dunnage (docket 2048: Tr. 162, 189, 195, 199).
The contention of the Respondent involving the constitutionality of the Secretary's standard in this instance does not involve issues concerning vagueness, n1 ambiguity, interpretation or application of the standard. It simply involves the wisdom of the Secretary of Labor in promulgating a standard for the guarding of the sides of the lower exposed portion of a radial saw blade. Perhaps the Secretary could have done much better in accomplishing the purposes of the Act by promulgating a standard which would have offered a greater degree of safety and a lesser degree of hazard n2 - but the judgment of the Secretary of Labor [*19] in this regard does not involve a constitutional issue that is within the jurisdictional authority of this Judge and it is not believed that Divesco Roofing & Insulation Company n3 cited in the Respondent's brief, holds differently.
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n1 At the hearing in docket 2049 the Respondent raised the defense of constitutional vagueness involving the standard (29 CFR 1910.265(e)(4)(ii)(b) cited in the contested violation. A determination is made concerning this defense under docket 2049 in this decision.
n2 The substantial evidence does not sustain a finding that the guarding of the sides of the lower exposed portion of the radial saw blade inhibits rather than augments the safety of the operator. Thus, the failure to comply with this standard does not come within the exception of Industrial Steel Erectors, Inc., Docket No. 703 (January 10, 1974).
n3 Divesco Roofing & Insulation Company, OSHRC Docket 345 (August 13, 1973).
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The Respondent raised the question of the constitutional validity of the contested standard [29 CFR [*20] 1910.213(h)(1)] only in docket 2048. This issue is not raised concerning the contested standards in dockets 2049 and 2047 (docket 2048: Tr. 226 - 227).
At the close of the hearing in docket 2048 the Respondent summarized the assertions concerning the issues of constitutionality including the contention that the enforcement of the standard involved in this case denies equal protection of law because the evaluation of the nature of the alleged violations of the standard differ in different jurisdictions (docket 2048: Tr. 222 - 225). It appears that the Respondent included this affirmative defense in the answers in dockets 2048 and 2049 (not in docket 2047) for the purpose of raising this constitutional issue in the event of an appeal (docket 2048: Tr. 223; docket 2049: Tr. 397; docket 2047: Tr. 384).
No substantial evidence n4 was presented at the hearings concerning this affirmative defense of the unconstitutional application of the Act, and it is not identified as an issue in the Respondent's briefs in dockets 2048, 2049 and 2047. Nevertheless, in the opinion of this Judge, differences from case to case in identifying the alleged violations of the same standard as serious or [*21] non-serious and differences in the penalties proposed for alleged violations of the same standard, do not support a finding of unconstitutionality in the Secretary's application of the Act.
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n4 The Compliance Officer testified that he has cited alleged violations of the standard as non-serious violations when there was partial guarding on the lower half of the blade of the radial saw and there was a low level of employee exposure to this lack of guarding. (Tr. 55 - 63)
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At pages 14 and 15 of the Respondent's brief in docket 2048 it is contended that the Secretary adopted the American National Standards Institute (ANSI) consensus standard on woodworking machinery as the sole source of the saw guarding standards in 29 CFR 1910.213, which includes the standard on radial arm saws. Reference is made to a note to the ANSI standard which is set forth in the brief as follows:
"NOTE: It is recognized that the standards for saw guards in this section are not universally applicable to all operations for which saws are used. [*22] The standards given are those which are generally accepted in the industry. Since there are a number of situations not satisfactorily covered by these standards, the enforcing authority should exercise latitude in allowing the use of other devices which afford adequate protection."
The Respondent claims the Secretary exceeded his statutory authority in not qualifying, in accordance with this ANSI note, the application of the OSHA standard to the radial arm saw. The radial saw standard promulgated by the Secretary is neither vague nor ambiguous. The ANSI note is cautionary rather than directive, and it is reasonable to conclude that this cautionary note was considered when the Secretary adopted and promulgated this standard [29 CFR 1910.213(h)(1)] as applicable to radial saws.
To hold that he exceeded his statutory authority in not qualifying the application of the guarding standard to the type of operation for which the radial saw is to be used, is to fault the wisdom and judgment of the Secretary in promulgating the standard. This Judge does not have the power to decide an issue within this constitutional ambit.
DOCKET 2048
The Compliance Officer testified that at the inspection [*23] of the Emmett, Idaho plywood plant of the Respondent on December 12, 1972, he observed a Comet radial arm saw in the warehouse area without a guard on the lower half of the blade. The radial saw was not in use at the time he observed it although the presence of sawdust and his observation that it was plugged in indicated it had been in use (Tr. 22-26). The saw had a hood over the upper half of the blade which covered the arbor (Exhibit S-1).
The allegations that this radial saw was operated by employees of the Respondent and was not fitted with a guard that enclosed the sides of the lower half of the exposed saw blade are not disputed and are supported by substantial evidence.
The additional issues to be resolved are concerned with the allegation that the violation is of a serious nature n5 and the penalty that is proposed for the violation.
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n5 Section 17(k) of the Act provides that ". . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
[*24]
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The Compliance Officer testified that the absence of a lower blade quard exposed an employee operating the saw to the hazard of amputation of some part of the body (Tr. 26 - 29, 82, 84 - 88). He stated that he considered the exposure of an employee and the severity of a possible accident as placing the violation in the category of a serious hazard (Tr. 32 - 33). On cross-examination the Compliance Officer said that he measured the minimum employee exposure as three employees operating the saw at different times during each working day (Tr. 52 - 55, 62 - 66).
It is concluded from the credible evidence that there was a substantial probability that serious physical harm could result from the lack of guarding of the radial saw blade, as alleged in the Citation, in the event the operator's hand came in contact with the lower side of the saw blade while it was in motion. Mr. Evan Jeffries, who testified as an expert in the operation and guarding of saws, agreed that an operator's hand could be cut if it came in contact with the moving saw blade as a result of the absence of the lower guard (Tr. 103 - 104; [*25] 106 - 108; 123 - 125).
It is reasonable to conclude from the evidence that the resulting injury to the hand of the operator could be of varying degrees of severity with a substantial probability of a serious injury such as an amputation of part of a hand or a severe laceration resulting in a permanent impairment of the functioning of part of the hand. Although there was a substantial probability of a serious injury, it is concluded that the gravity of the violation was low. The radial saw involved in the violation was not in use on a continuous production line. It was operated on an intermittent basis for the cutting of dunnage by a few employees (Tr. 188 - 189; 190 - 199).
In assessing an appropriate penalty for this violation, an evaluation has been made of the credible evidence as it relates to the criteria set forth in Section 17(j) of the Act. As a result it is determined that an appropriate penalty for this violation is $250.
DOCKET 2049
Compliance Officer Jackson testified that he inspected the sawmill division of Boise Cascade Corporation at Emmett, Idaho on December 14, 1972 and observed that the zero saws (Exhibit S-2, Photo A and Photo B) of the "board and cant [*26] trimmer" were next to walkways and were not adequately guarded. He also stated that the trimmer saw on the #2 Moore Stacker was adjacent to a walkway and was not adequately guarded (Exhibit S-1).
There are three saw blades involved in the violations alleged in Citation for serious violation number 1 of docket 2049 and there is no dispute that the three blades of these three saws were guarded to some degree (Tr. 21, 22, 25 - 39).
It is concluded from the credible evidence submitted at the hearing that the guarding of the zero saws of the "board and cant trimmer" was not sufficient to comply with the reasonably implied purpose of the standard that end saws on trimmers shall be adequately guarded to reduce the probability of injury.
The standard cited is not unenforceable or unreasonable on the grounds of vagueness. n6 This standard puts an employer on notice that certain identifiable types of saws shall be guarded. It would make the task of the Secretary, in adopting and promulgating standards, an impossible one, if he was required to specify the nature and extent of the guarding in this instance. n7 Ordinary human experience makes it clear that the guarding should be adequate to [*27] reduce to the lowest possible level the probability of an injury occurring to an employee if a part of his body should accidently come in contact with an unguarded part of the moving saw blades.
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(December 20, 1973)
n7 Peter J. Brennan, Secretary of Labor, Petitioner, v. OSAHRC and Gerosa, Incorporated, Respondents. (U.S. Court of Appeals for the Second Circuit, Docket No. 73-1428) (February 11, 1974)
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It is found that if a part of an employee's body should come in contact with an unguarded portion of one of these moving saw blades, there would be a substantial probability that a serious injury could result. There is substantial evidence that the saws involved in this violation were guarded to some extent, and the employee exposure was low. This violation was of a low degree of gravity (Tr. 111 - 114, 116 - 117; 191 - 196; 226 - 227).
A considerable amount of the testimony was concerned with the question of whether the standard cited [29 CFR 1910.265(e)(4)(ii)(b)] [*28] applied to the saw on the #2 Moore Stacker (Exhibit S-1). The standard states: "The end saws on trimmers shall be guarded." It must be concluded from the testimony of many credible witnesses, experienced in the lumber industry, that the saw on the #2 Moore Stacker is not an end saw on a trimmer and therefore the standard that is alleged to have been violated does not apply to the alleged violation (Tr. 180 - 182; 247 - 249; 281 - 285; 337 - 340; 392 - 393).
The Respondent is found to have been in violation of standard 29 CFR 1910.265(e)(4)(ii)(b) concerning the two zero saws of the "board and cant trimmer", and is found not to be in violation of this standard in the case of the saw on the #2 Moore Stacker.
An appropriate penalty, considering the criteria of Section 17(j) of the Act for the violation involving the two zero saws of the "board and cant trimmer" is $200.
Citation number 2 for serious violation in docket 2049 states that the Bolter saw was equipped with a top and a partial front guard at the point of operation of the infeed dog type chains (Exhibit S-3 at m and g) and that the ingoing nip points of the sprocket and chain drive on the Bolter saw were only guarded on [*29] top and not on the right side (Exhibit S-4).
The standard that is cited [29 CFR 1910.212(a)(1)] requires that one or more methods of machine guarding shall be provided to protect the operator and other employees from various hazards, examples of which are given in the standard. The standard also gives some examples of types of guarding.
Compliance Officer Jackson testified that the point of operation of the Bolter saw, where the dogs hit the lumber (Exhibit S-3 at f), was completely open and there was a lack of guarding at the point of operation of these dogs (Exhibit S-3 at f). He also testified that the sprocket and chain drive of the Bolter saw (Exhibits S-3 at o, and S-4) were guarded on the top, on part of the face but not on either side. n8
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n8 It is noted that the Citation alleges that the sprocket and chain drive of the Bolter saw was not guarded on the right side (Exhibits S-3 and S-4), and for the purpose of deciding this issue the allegation of lack of guarding on the right side will only be considered.
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Mr. Jackson said that it was possible for a person to place his hand directly in the point of operation of the dogs and he envisioned that the dogs of the Bolter saw would grab a man's hand and actually pull him in the saw resulting in serious physical harm or ultimate death.
With reference to the chain sprocket and chain drive he envisioned amputation of part of the hand or arm from being caught up at the nip points of the sprockets and chains (Tr. 42 - 47; 57 - 64).
It is clear from the substantial and credible evidence that the Bolter saw is guarded to some extent at the point of operation of the dogs and at the nip points of the sprocket and chain drive. It is also clear from the evidence that additional guarding in accordance with the standard would reduce the probability of an employee suffering an injury at the point of operation of the dogs and at the ingoing nip points of the sprocket and chain drive. It is concluded that if a part of the body of an employee came in contact with the unguarded portions of these parts (while in motion) of the Bolter saw there would be a substantial probability of the employee suffering a serious injury. The substantial credible evidence [*31] requires a finding that the violation involving the Bolter saw is of a low order of gravity because of the considerable extent of the guarding in place on the machine (including some position guarding) at the time of the inspection, and the small extent of the employee exposure (Tr. 117 - 129; 144 - 148; 150 - 152; 198 - 202; 210 - 211).
As a result of considering the criteria of Section 17(j) of the Act it is determined that $100 is an appropriate penalty for the violation involving the Bolter saw named in Citation number 2 for serious violation.
DOCKET 2047
The issue in this docket is concerned with a Citation for a serious violation consisting of 5 separate items, and a proposed penalty of $700 for this alleged serious violation.
It is charged that the Respondent was in violation of standard 29 CFR 1910.265(c)(22) on December 12, 1972 because the following 5 parts of power-transmission machinery were not guarded in accordance with the requirements of 29 CFR 1910.219.
The particular parts of 29 CFR 1910.219 which were alleged to have been violated in the 5 items are not identified in the Citation or Complaint. At the hearing the Attorney for the Complainant identified the [*32] parts of 29 CFR 1910.219 violated in the 5 items without objection, and the identification of these parts are included in the following discussion of each of the 5 items (Tr. 23 - 29).
Item No. 1 - This item was identified at the hearing as involving a violation of Part 1910.219(o)(4). It alleges that the carriage drive cable drum (Exhibits S-1 and R-1) is in a room with open doors on the east and west side, and the cable drum is not guarded or barricaded.
It is clear that if there was a violation of the standard it must have been within the room enclosing the drum (Tr. 102). Compliance Officer Jackson testified that if the doors of the room had been closed and locked he would not have cited item no. 1 as a violation (Tr. 103, 105). On cross-examination, Mr. Jackson stated that he had viewed the drum and cable from the side of the room on which appears the sign "Danger Maintenance Personal(sic) Only" (Exhibit R-1) but he did not recall the sign (Tr. 84 - 85). The Compliance Officer testified in substance that the violation involved a lack of guarding of the nip points where the cable meets the drum and if the cable within the room had been guarded the nip points of the cable [*33] on the drum would not be exposed. He said that he believed the portion of the cable within the room should be guarded in accordance with 29 CFR 1910.219(o)(4) which is concerned with guards for overhead rope and chain drives (Tr. 102 - 109).
The standard which is cited as having been violated in item no. 1 is not applicable to the allegations of the violation (Tr. 149 - 156), and there is not a preponderance of credible evidence to support a finding that the nip points on the drum were not adequately guarded or barricaded.
Item No. 2 - This item was identified at the hearing as involving a violation of Part 1910.219(d)(1) and (e)(1). It alleges that the merry-go-round from the resaw has a double V-belt and pulley drive that is not guarded (Exhibit S-2). Part 1910.219(d)(1) is concerned with the guarding of pulleys and Part 1910.219(e)(1) with the guarding of horizontal belts and ropes.
The Compliance Officer qualified his testimony that the double V-belt and pulley drive of the merry-go-round were absent any type of guarding and completely exposed (Tr. 52 - 53). He agreed, on cross-examination, that two pieces of metal performed the function of a partial guard for the V-belts [*34] and stated the injury would not be from the double V-belts but from a contact with the double V-belts and one pulley (Tr. 111 - 114).
Mr. Jackson said that he did not recall which way the pulleys were turning or whether the nip points were at the top or bottom of the eight to ten inch pulleys (he said that the double V-belt and pulley drive was approximately 18 inches from the floor to the center of the shaft). In reply to a question he stated that although the skip plate is closer to the top of the pulley it would not be less likely that a person would get caught in the nip point of the belt and pulley if the nip point was at the top of the pulley (Tr. 114 - 116). Mr. Carr, the plant manager, testified that the belts and pulleys of the merry-go-round reverse and the nip point would be at the top and bottom an equal amount of time (Tr. 196, 203).
Mr. Jackson said that he did not know the RPM of the belts but the speed was fairly slow and the belts were taut (Tr. 109 - 111). Mr. Carr said the belts ran at a slow speed (80 feet per minute) and they were fairly loose (Tr. 196). Mr. Spencer, the plant engineer, testified that the belts are very loose and the RPM of the shaft was [*35] 37 -- the belts moved at about 40 feet per minute (Tr. 325 - 326).
From a review of all of the credible evidence concerning the alleged violation of item 2 it is concluded that the partial guarding of the double V-belt and pulley drive was not in conformance with the parts of the standard cited. It is found that this violation was of a low order of gravity.
Item No. 3 - At the hearing this item was identified as being concerned with a violation of Part 1910.219(f)(3) which, as applicable, states that all sprocket wheels and chains shall be enclosed unless they are more than seven feet above the floor or the platform. It is alleged that two chain drives and four sprockets of the chain drives of the resaw outfeet table (Exhibit S-2) were not guarded.
The chains and sprockets were not fully enclosed although it is clear from the evidence that there was partial guarding of these parts of the mechanical power-transmission apparatus of the resaw outfeed table (Tr. 56 - 59; 121 - 123), (Exhibit S-2).
The Compliance Officer testified that he envisioned the hazard as being such that if any part of the body came in contact with the nip points of the sprocket wheels and chains, it would [*36] result in an amputation of that part of the body (Tr. 59; 346 - 347).
The employee exposure to this violation was low and was of approximately the same measure of exposure as in item 2 (Tr. 58 - 59; 119 - 123; 205 - 206).
The credible evidence concerning item no. 3 requires a finding that the violation was of a low level of gravity.
Items No. 4 and No. 5 were identified as involving violations of 1910.219(f)(3) which requires all sprocket wheels and chains to be enclosed unless they are more than seven feet above the floor or the platform. It is alleged in item no. 4 that the chip bin conveyor drive (Exhibit S-3) had an unguarded chain and two unguarded chain sprockets. In item no. 5 it is alleged that the short chain hog conveyor drive (Exhibit S-3) had an unguarded chain and two unguarded chain sprockets.
The chip bin conveyor drive mechanism is in the lower left hand side of the photograph (Exhibit S-3) with the electric motor that powers the drive mechanism appearing in the lower center part of the photograph. Some snow and sawdust partially covers this electric motor.
The short chain hog conveyor drive is located in the center of the photograph (Exhibit S-3) with the [*37] electric motor which powers the chain and sprockets appearing in the center of the photograph above the electric motor which powers the chip bin conveyor.
The Compliance Officer testified that the chain and two sprockets of the chip bin conveyor drive were less than seven feet from the ground level and were not guarded or barricaded (Tr. 63). He said that his observations, at the time of the inspection, concerning the absence of guarding on the chain and sprockets of the short chain hog conveyor drive were the same as in the case of the chip bin conveyor drive (Tr. 67).
Employees engaged in clean-up and maintenance and employees traveling between the shop and mill were described as being exposed to the hazards of this unguarded power-transmission machinery, particularly from the possibility of slipping on the snow, with resulting serious injury to a part of the body which might be caught-up in the nip points of the sprockets and chains (Tr. 64 - 69; 351). n9
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n9 The chip bin conveyor and hog conveyor are located outdoors in the yard outside the sawmill building (Exhibit S-3 and Exhibit R-2).
[*38] - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The chains and sprockets of the chip bin conveyor drive and the short chain hog conveyor drive were partially guarded (Tr. 123 - 127; 133 - 134; 207 - 208).
The electrical controls in the area of the chains and sprockets (Exhibit S-3) were seldom used and only by maintenance people. The electrical controls for the operations of the conveyors are located at a distance of approximately 20 feet from the conveyors (Tr. 128 - 129; 209 - 210).
The credible testimony requires a finding that the path of employees traveling between the mill and shop would not be in an area closer than 20 feet to the chains and sprockets of these two conveyors (Tr. 129 - 131; 210 - 218; 330 - 331).
The clean-up man, for a period of approximately 20 minutes daily, and the millwright, when maintenance work was necessary, were the employees exposed to the chains and sprockets of the conveyors. When the millwright worked on the conveyor the power was shut off (Tr. 218 - 219). The testimony concerning the extent to which employees were exposed to the chains and sprockets of the conveyors, in walking between the shop and the sawmill, [*39] is largely based on conjecture (Tr. 129 - 131).
When the Compliance Officer was making the inspection of the conveyors he found the guards, which had been on the chains and sprockets, frozen in the snow. His inquiries, at the time of the inspection, as to when and why they were taken off, were unanswered (Tr. 135 - 136).
Irvin E. Freudenthaler, head millwright, who maintains the machinery at the plant testified that he removed the guards on either the 7th or 8th of December 1972 because woodchips, sawdust and bark were freezing in the conveyors and the removal of the guards facilitated removing and replacing the chains for the purpose of cleaning out the frozen debris. The guards had been installed on the machinery several years previously on the recommendation of the Respondent's safety man (Tr. 354 - 357; 381 - 382). Mr. Freudenthaler said he removed the guards of his own volition and the plant manager and mill boss could see that the guards had been removed. He was satisfied that the mill boss knew about the removal of the guards (Tr. 365). The guards were not put back on the conveyors after the inspection. In place of the guards, a barricade was erected around the motor, [*40] closest to the ground, some two weeks after the guards had been removed by Mr. Freudenthaler (Tr. 363 - 376).
The substantial credible evidence requires a finding that there were violations as alleged in item 4 and item 5, of which the Respondent could have been aware with the exercise of reasonable diligence. The employee exposure to the hazards arising from the violations was low and hence the gravity of the violations was low.
In the answer, the Respondent contends that the Citation fails to specify how the violations, alleged in the five items, combine to create a single serious violation. There was considerable discussion at the pre-hearing conference and at the hearing concerning this matter (Tr. 12 - 24; 385).
In his brief, Mr. Scott, Attorney for the Claimant, states that only one serious violation has been charged and items 1 through 5 are allegations of fact rather than allegations of the occurrence of five individual non-serious violations. (Complainant's Brief After Trial, paragraph V, page 9)
Mr. Jones, Attorney for the Respondent, in his brief, asserts that the complaint alleges only one serious violation and the Complainant must establish that one of the items [*41] constitutes a serious violation or the result must be that there is no violation or, at most, a single non-serious violation.
The assertions of Mr. Scott and Mr. Jones concerning this matter do not appear to be in conflict and are consistent with the resolution of the issues in docket 2047.
It is found that failure to guard chains and sprockets of power-transmission machinery can result in a substantial probability of serious injury if a part of the body of an employee is caught-up in the in-going nip points of the chains and sprockets. Items numbered 3, 4 and 5 are concerned with chains and sprockets of power-transmission machinery and involve one serious violation as alleged. The V-belt and pulley drive violation of item 2 is not of a serious nature.
Taking into consideration the findings concerning the allegations of Citation Number 1 for serious violation (docket 2047), and the criteria of Section 17(j) of the Act; it is determined that $300 is an appropriate penalty.
After considering the entire record in each one of the dockets, consolidated for the purpose of issuing this decision, and the briefs and proposed findings filed by the attorneys for the parties; it is concluded [*42] that the findings of fact and conclusions of law set forth in this decision are supported by the substantial credible evidence of record.
FINDINGS OF FACT
1. The Respondent, Boise Cascade Corporation, is engaged in the production and distribution of wood products and maintained places of employment under its supervision and control at Emmett, Idaho and in Ada County, Idaho.
2. The Respondent is engaged in business affecting interstate commerce.
3. The Respondent's worksites were inspected by an authorized representative of the Occupational Safety and Health Administration, U.S. Department of Labor, as follows:
Sawmill at Emmett, Idaho on December 12, 1972 (docket 2048)
Sawmill at Emmett, Idaho on December 14, 1972 (docket 2049)
Barber Sawmill in Ada County, Idaho on December 12, 1972 (docket 2047)
4. The Respondent is a large corporation which is one of the major companies engaged in the production and distribution of wood products. It employed over 100 persons at the worksites inspected on December 12 and 14, 1972.
5. As a result of the inspections on December 12 and 14, 1972, Citations and Notifications of Proposed Penalties were issued to the Respondent in dockets [*43] 2048, 2049 and 2047.
6. The Citations and Notifications of Proposed Penalties at issue were timely contested by the Respondent.
7. The Respondent has raised constitutional issues in these proceedings concerning the Act and the related enforcement procedures of the Secretary of Labor.
8. The findings of fact concerning the violations alleged in the contested citations of dockets 2048, 2049 and 2047 are set forth in the "Discussion" part of this decision.
9. The Respondent did not have a history of previous violations and is found to support the purposes of the Act in good faith.
CONCLUSIONS OF LAW
1. The Respondent, Boise Cascade Corporation, was, at all times material to this proceeding, an employer engaged in business affecting interstate commerce within the meaning of Section 3 of the Act.
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding in accordance with Section 10 of the Act.
3. On December 12 and 14, 1972, inspections were made of the Respondent's worksites at Emmett, Idaho and in Ada County, Idaho, by an authorized employee of the Secretary of Labor in accordance with Section [*44] 8 of the Act.
4. The constitutional issues raised by the Respondent do not come within the jurisdictional authority of this Administrative Law Judge.
5. The Respondent was in violation of Section 5(a)(2) of the Act on December 12 and 14, 1972 as a result of not being in compliance with the standards and regulations of the Secretary of Labor as set forth in the "Discussion" part of this decision.
6. The Respondent was not in violation of Section 5(a)(2) of the Act on December 12 and 14, 1972, in the instances wherein the Respondent was found not to have been in violation of the standards and regulations of the Secretary of Labor as set forth in the "Discussion" part of this decision.
7. In all instances wherein a violation was found to be of a serious nature, this finding was made pursuant to the provisions of Section 17(k) of the Act.
8. The assessments of penalties, as set forth in the "Discussion" part of this decision, were made pursuant to the provisions of Section 17(j) of the Act.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
1. In docket 2048:
That Citation number 1 for serious violation be, and is affirmed.
That the [*45] proposed penalty of $600 be vacated and a penalty of $250 be assessed, and the same are hereby vacated and assessed.
2. In docket 2049:
That Citation number 1 for serious violation be modified to delete the allegation concerning the trimmer saw on the #2 Moore stacker, and the Citation, as so modified, is affirmed.
That the proposed penalty of $600 be vacated and a penalty of $200 be assessed, and the same are hereby vacated and assessed.
That Citation number 2 for serious violation be, and is affirmed.
That the proposed penalty of $600 be vacated and a penalty of $100 be assessed, and the same are hereby vacated and assessed.
3. In docket 2047:
That Citation number 1 for a serious violation be modified to delete the allegation in item 1 concerning the carriage drive cable drum, and the Citation, as so modified, is affirmed.
That the proposed penalty of $700 be vacated and a penalty of $300 be assessed, and the same are hereby vacated and assessed.
Date: April 9, 1974
Seattle Washington
THOMAS J. DONEGAN, Judge, OSAHRC
APPENDIX A
29 CFR 1910,219
§ 1910,219 Mechanical power-transmission apparatus.
(a) General requirements. (1) This section covers all types [*46] and shapes of power-transmission belts, except the following when operating at two hundred and fifty (250) feet per minute or less: (i) Flat belts one (1) inch or less in width, (ii) flat belts two (2) inches or less in width which are free from metal lacings or fasteners, (iii) round belts one-half (1/2) inch or less in diameter; and (iv) single strand V-belts, the width of which is thirteen thirty-seconds (13/32) inch or less.
(2) Vertical and inclined belts (paragraphs (e)(3) and (4) of this section) if not more than two and one-half (2 1/2) inches wide and running at a speed of less than one thousand (1,000) feet per minute, and if free from metal lacings or fastenings may be guarded with a nip-point belt and pulley guard.
(3) For the Textile Industry, because of the presence of excessive deposits of lint, which constitute a serious fire hasard, the sides and face sections only of nip-point belt and pulley guards are required, provided the guard shall extend at least six (6) inches beyond the rim of the pulley on the in-running and off-running sides of the belt and at least two (2) inches away from the rim and face of the pulley in all other directions.
(4) This section covers [*47] the principal features with which power transmission safeguards shall comply.
(b) Prime-mover guards -- (1) Flywheels. Flywheels located so that any part is seven (7) feet or less above floor or platform shall be guarded in accordance with the requirements of this subparagraph:
(i) With an enclosure of sheet, perforated, or expanded metal, or woven wire;
(ii) With guard ralls placed not less than fifteen (15) inches nor more than twenty (20) inches from rim. When flywheel extends into pit or is within 12 inches of floor, a standard toeboard shall also be provided;
(iii) When the upper rim of flywheel protrudes through a working floor, it shall be entirely enclosed or surrounded by a guardrail and toeboard.
(iv) For flywheels with smooth rims five (5) feet or less in diameter, where the preceding methods cannot be applied, the following may be used: A disk attached to the flywheel in such manner as to cover the spokes of the wheel on the exposed side and present a smooth surface and edge, at the same time providing means for periodic inspection. An open space, not exceeding four (4) inches in width, may be left between the outside edge of the disk and the rim of the [*48] wheel if desired, to facilitate turning the wheel over. Where a disk is used, the keys or other dangerous projections not covered by disk shall be cut off or covered. This subdivision does not apply to flywheels with solid web centers.
(v) Adjustable guard to be used for starting engine or for running adjustment may be provided at the flywheel of gas or oil engines. A slot opening for jack bar will be permitted.
(vi) Wherever flywheels are above working areas, guards shall be installed having sufficient strength to hold the weight of the flywheel in the event of a shaft or wheel mounting failure.
(2) Cranks and connecting rods. Cranks and connecting rods, when exposed to contact shall be guarded in accordance with paragraphs (m) and (n) of this section, or by a guardrail as described in paragraph (o)(5) of this section.
(3) Tail rods or extension piston rods. Tail rods or extension piston rods shall be guarded in accordance with paragraphs (m) and (o) of this section, or by a guardrail on sides and end, with a clearance of not less than fifteen (15) nor more than twenty (20) inches when rod is fully extended.
(4) Governor balls. Governor balls six (6) feet or less [*49] from the floor or other working level, when exposed to contact, shall be provided with an enclosure extending to the top of the governor balls when at their highest position. The material used in the construction of this enclosure shall conform to paragraphs (m) and (o) of this section.
(c) Shafting -- (1) Installation. (i) Each continuous line of shafting shall be secured in position against excessive endwise movement.
(ii) Inclined and vertical shafts, particularly inclined idler shafts, shall be securely held in position against endwise thrust.
(2) Guarding horizontal shafting. (i) All exposed parts of horizontal shafting seven (7) feet or less from floor or working platform, excepting runways used exclusively for oiling, or running adjustments, shall be protected by a stationary casing enclosing shafting completely or on a trough enclosing sides and top or sides and bottom of shafting as location requires.
(ii) Shafting under bench machines shall be enclosed by a stationary casing, or by a trough at sides and top or sides and bottom, as location requires. The sides of the trough shall come within at least six (6) inches of the underside of table, or if shafting [*50] is located near floor within six (6) inches of floor. In every case the sides of trough shall extend at least two (2) inches beyond the shafting or protuberance.
(3) Guarding vertical and inclined shafting. Vertical and inclined shafting seven (7) feet or less from floor or working platform, excepting maintenance runways, shall be enclosed with a stationary casing in accordance with requirements of paragraphs (m) and (o) of this section.
(4) Projecting shaft ends. (i) Projecting shaft ends shall present a smooth edge and end and shall not project more than one-half the diameter of the shaft unless guarded by nonretating caps or safety sleeves.
(ii) Unused keyways shall be filled up or covered.
(5) Power-transmission apparatus located in basements. All mechanical power transmission apparatus located in basements, towers, and rooms used exclusively for power transmission equipment shall be guarded in accordance with this section, except that the requirements for safeguarding belts, pulleys, and shafting need not be complied with when the following requirements are met:
(i) The basement, tower, or room occupied by transmission equipment is locked against unauthorized [*51] entrance.
(ii) The vertical clearance in passageways between the floor and power transmission beams, ceiling, or any other objects, is not less than five feet six inches (5 ft. 6 in.).
(iii) The intensity of illumination conforms to the requirements of ANSI A11.1-1965 (R-1970).
(iv) The footing is dry, flrm, and level.
(v) The route followed by the oiler is protected in such manner as to prevent accident.
(d) Pulleys -- (1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.
(2) Location of pulleys. (i) Unless the distance to the nearest fixed pulley, clutch, or hanger exceeds the width of the belt used, a guide shall be provided to prevent the belt from leaving the pulley on the side where insufficient clearance exists.
(ii) Where there are overhanging pulleys on line, jack, or countershafts [*52] with no bearing between the pulley and the outer end of the shaft, a guide to prevent the belt from running off the pulley should be provided.
(3) Broken pulleys. Pulleys with cracks, or pieces broken out of rims, shall not be used.
(4) Pulley speeds. Pulleys intended to operate at rim speed in excess of manufacturers normal recommendations shall be specially designed and carefully balanced for the speed at which they are to operate.
(5) Composition and wood pulleys. Composition or laminated wood pulleys shall not be installed where they are subjected to influences detrimental to their structural composition.
(e) Belt, rope, and chain drives -- (1) Horizontal belts and ropes. (i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table O-12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section.
(ii) In powerplants or power-development rooms, a guardrail may be used in lieu of the guard required by subdivision [*53] (i) of this subparagraph.
(2) Overhead horisontal belts. (i) Overhead horizontal belts, with lower parts seven (7) feet or less from the floor or platform, shall be guarded on sides and bottom in accordance with paragraph (o)(3) of this section.
(ii) Horizontal overhead belts more than seven (7) feet above floor or platform shall be guarded for their entire length under the following conditions:
(a) If located over passageways or work places and traveling 1,800 feet or more per minute.
(b) If center to center distance between pulleys is ten (10) feet or more.
(c) If belt is eight (8) inches or more in width.
(iii) Where the upper and lower runs of horizontal belts are so located that passage of persons between them would be possible, the passage shall be either:
(a) Completely barred by a guardrail or other barrier in accordance with paragraphs (m) and (o) of this section; or
(b) Where passage is regarded as necessary, there shall be a platform over the lower run guarded on either side by a railing completely filled in with wire mesh or other filler, or by a solid barrier. The upper run shall be so guarded as to prevent contact therewith either by [*54] the worker or by objects carried by him. In powerplants only the lower run of the belt need be guarded.
(iv) Overhead chain and link belt drives are governed by the same rules as overhead horizontal belts and shall be guarded in the same manner as belts.
(v) American or Continuous System rope drives so located that the condition of the rope (particularly the splice) cannot be constantly and conveniently observed, shall be equipped with a telltale device (preferably electric-bell type) that will give warning when rope begins to fray.
(3) Vertical and inclined belts. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.
(ii) All guards for inclined belts shall be arranged in such a manner that a minimum clearance of seven (7) feet is maintained between belt and floor at any point outside of guard.
(4) Vertical belts. Vertical belts running over a lower pulley more than seven (7) feet above floor or platform shall be guarded at the bottom in the same manner as horizontal overhead belts, if conditions are as stated in subparagraphs (2)(ii) (a) and (c) of this paragraph.
(5) Cone-pulley belts. [*55] (i) The cone belt and pulley shall be equipped with a belt shifter so constructed as to adequately guard the nip point of the belt and pulley. If the frame of the belt shifter does not adequately guard the nip point of the belt and pulley, the nip point shall be further protected by means of a vertical guard placed in front of the pulley and extending at least to the top of the largest step of the cone.
(ii) If the belt is of the endless type or laced with rawhide laces, and a belt shifter is not desired, the belt will be considered guarded if the nip point of the belt and pulley is protected by a nip point guard located in front of the cone extending at least to the top of the largest step of the cone, and formed to show the contour of the cone in order to give the nip point of the belt and pulley the maximum protection.
(iii) If the cone is located less than 3 feet from the floor or working platform, the cone pulley and belt shall be guarded to a height of 3 feet regardless of whether the belt is endless or laced with rawhide.
(6) Belt tighteners. (i) Suspended counterbalanced tighteners and all parts thereof shall be of substantial construction and securely fastened; the [*56] bearings shall be securely capped. Means must be provided to prevent tightener from falling, in case the belt breaks.
(ii) Where suspended counterweights are used and not guarded by location, they shall be so encassed as to prevent accident.
(f) Gears, sprockets, and chains -- (1) Gears. Gears shall be guarded in accordance with one of the following methods:
(i) By a complete enclosure; or
(ii) By a standard guard as described in paragraph (o) of this section, at least seven (7) feet high extending six (6) inches above the mesh point of the gears; or
(iii) By a band guard covering the face of gear and having flanges extended inward beyond the root of the teeth on the exposed side or sides. Where any portion of the train of gears guarded by a band guard is less than six (6) feet from the floor a disk guard or a complete enclosure to the height of six (6) feet shall be required.
(2) Hand-operated gears. Subparagraph (1) of this paragraph does not apply to hand-operated gears used only to adjust machine parts and which do not continue to move after hand power is removed. However, the guarding of these gears is highly recommended.
(3) Sprockets and chains. All [*57] sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.
(4) Openings for oiling. When frequent oiling must be done, openings with hinged or sliding self-closing covers shall be provided. All points not readily accessible shall have oil feed tubes if lubricant is to be added while machinery is in motion.
(g) Guarding friction drives. The driving point of all friction drives when exposed to contact shall be guarded, all arm or spoke friction drives and all web friction drives with holes in the web shall be entirely enclosed, and all projecting belts on friction drives where exposed to contact shall be guarded.
(h) Keys, setscrews, and other projections. (1) All projecting keys, setscrews, and other projections in revolving parts shall be removed or made flush or guarded by metal cover. This subparagraph does not apply to keys or setscrews within gear or sprocket casings or other enclosures, nor to keys, setscrews, or oilcups in hubs of pulleys [*58] less than twenty (20) inches in diameter where they are within the plane of the rim of the pulley.
(2) It is recommended, however, that no projecting setscrews or oilcups be used in any revolving pulley or part of machinery.
(i) Collars and couplings -- (1) Collars. All revolving collars, including split collars, shall be cylindrical, and screws or bolts used in collars shall not project beyond the largest periphery of the collar.
(2) Couplings. Shaft couplings shall be so constructed as to present no hazard from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will, however, be permitted where they are covered with safety sleeves or where they are used parallel with the shafting and are countersunk or else do not extend beyond the flange of the coupling.
(j) Bearings and jacilities for oiling. Self lubricating bearings are recommended and all drip cups and pans shall be securely fastened.
(k) Guarding of clutches, cutoff couplings, and clutch pulleys -- (1) Guards. Clutches, cutoff couplings, or clutch pulleys having projecting parts, where such clutches are located seven (7) feet or less above the floor or working platform, [*59] shall be enclosed by a stationary guard constructed in accordance with this section. A "U" type guard is permissible.
(2) Engine rooms. In engine rooms a guardrail, preferably with toeboard, may be used instead of the guard required by subparagraph (1) of this paragraph, provided such a room is occupied only by engine room attendants.
(3) Bearings. A bearing support immediately adjacent to a friction clutch or cutoff coupling shall have self-lubricating bearings requiring attention at infrequent intervals.
(l) Belt shifters, clutches, shippers, poles, perches, and fasteners -- (1) Belt shifters. (i) Tight and loose pulleys on all new installations made on or after August 31, 1971, shall be equipped with a permanent belt shifter provided with mechanical means to prevent belt from creeping from loose to tight pulley. It is recommended that old installations be changed to conform to this rule.
(ii) Belt shifter and clutch handles shall be rounded and be located as far as possible from danger of accidental contact, but within easy reach of the operator. Where belt shifters are not directly located over a machine or bench, the handles shall be cut off six feet six [*60] inches (6 ft. 6 in.) above floor level.
(iii) All belt and clutch shifters of the same type in each shop should move in the same direction to stop machines, i.e., either all right or all left. This does not apply to friction clutch on countershaft carrying two clutch pulleys with open and crossed belts, respectively. In this case the shifter handle has three positions and the machine is at a standstill when clutch handle is in the neutral or center position.
(2) Belt shippers and shipper polas. The use of belt poles as as substitutes for mechanical shifters is not recommended. Where necessity compels their use, they shall be of sufficient size to enable workmen to grasp them securely, (A two-inch (2 in.) diameter or 1 1/2 by 2 inches cross-section is suggested.) Poles shall be smooth and preferably of straight grain hardwood, such as ash or hickory. The edges of rectangular poles should be rounded. Poles should extend from the top of the pulley to within about forty (40) inches of floor or working platform.
(3) Belt perches. Where loose pulleys or idlers are not practicable, belt perches in form of brackets, rollers, etc., shall be used to keep idle belts away from [*61] the shafts. Perches should be substantial and designed for the safe shifting of belts.
(4) Belt fasteners. Belts which of necessity must be shifted by hand and belts within seven (7) feet of the floor or working platform which are not guarded in accordance with this section shall not be fastened with metal in any case, nor with any other fastening which by construction or wear will constitute an accident hazard.
(m) Standard guards -- general requirements -- (1) Materials. (i) Standard conditions shall be secured by the use of the following materials. Expanded metal, perforated or solid sheet metal, wire mesh on a frame of angle iron, or iron pipe securely fastened to floor or to frame of machine.
(ii) All metal should be free from burrs and sharp edges.
(iii) Wire mesh should be of the type in which the wires are securely fastened at every cross point either by welding, soldering, or galvanizing, except in case of diamond or square wire mesh made of No. 14 gage wire, 2/4-inch mesh or heavier
(2) Methods of manufacture. (i) Expanded metal, sheet or perforated metal, and wire mesh shall be securely fastened to frame by one of the following methods:
(a) With [*62] rivets or bolts spaced not more than five (5) inches center to center. In case of expanded metal or wire mesh, metal strips or clips shall be used to form a washer for rivets or bolts.
(b) by welding to frame every four (4) inches.
(c) By weaving through channel or angle frame, or if No. 14 gage 3/4-inch mesh or heavier is used by bending entirely around rod frames.
(d) Where openings in pipe railing are to be filled in with expanded metal, wire mesh or sheet metal, the filler material shall be made into panels with rolled edges or bound with "V" or "U" edging of No. 24 gage or heavier sheet metal fastened to the panels with bolts or rivets spaced not more than five (5) inches center to center. The bound panels shall be fastened to the railing by sheet-metal clips spaced not more than five (5) inches center to center.
(e) Diamond or square mesh made of crimped wire fastened into channels, angle or round-iron frames, may also be used as a filler in guards, Size of mesh shall correspond to Table O-12.
(ii) Where the design of guards requires filler material of greater area than 12 square feet, additional frame members shall be provided to maintain panel area within [*63] this limit.
(iii) All joints of framework shall be made equivalent in strength to the material of the frame.
(n) Disk, shield, and "U" guards -- (1) Disk guards. A disk guard shall consist of a sheet-metal disk not less than No. 22 gage fastened by "U" bolts or rivets to spokes of pulleys, flywheels, or gears. Where possibility of contact with sharp edges of the disk exists, the edge shall be rolled or wired. In all cases the nuts shall be provided with locknuts which shall be placed on the unexposed side of the wheel.
(2) Shield guards. (i) A shield guard shall consist of a frame filled in with wire mesh, expanded, perforated, or solid sheet metal.
(ii) If area of shield does not exceed six (6) square feet the wire mesh or expanded metal may be fastened in a framework of 3/8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle iron or metal construction of equivalent strength. Metal shields may have edges entirely rolled around a 3/8-inch solid iron rod.
(3) "U" guards. A "U" guard consisting of a flat surface with edge members shall be designed to cover the under surface and lower edge of a belt, multiple chain, or rope drive. It shall be constructed of [*64] materials specified in Table O-12, and shall conform to the requirements of paragraphs (o)(3) and (4) of this section. Edges shall be smooth and, if size of guard requires, these edges shall be reinforced by rolling, wiring, or by binding with angle or flat iron.
(o) Approved materials -- (1) Minimum requirements. The materials and dimensions specified in this paragraph shall apply to all guards, except horizontal overhead belts, rope, cable, or chain guards more than seven (7) feet above floor, or platform. (For the latter, see Table O-13.)
[Table Omitted]
(i) Minimum dimensions of materials for the framework of all guards, except as noted in subdivision (i) (c) shall be angle iron 1 inch by 1 inch by 1/8-inch, metal pipe of 3/4-inch inside diameter or metal construction of equivalent strength.
(a) All guards shall be rigidly braced every three (3) feet or fractional part of their height to some fixed part of machinery or building structure. Where guard is exposed to contact with moving equipment additional strength may be necessary.
(b) The framework for all guards fastened to floor or working platform and without other support or bracing shall consist [*65] of 1 1/2-inch by 1 1/2-inch by 1/8-inch angle iron, metal pipe of 1 1/2-inch inside diameter, or metal construction of equivalent strength. All rectangular guards shall have at least four upright frame members each of which shall be carried to the floor and be securely fastened thereto. Cylindrical guards shall have at least three supporting members carried to floor.
(c) Guards thirty (30) inches or less in height and with a total surface area not in excess of ten (10) square feet may have a framework of 3/8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle, or metal construction of equivalent strength. The filling material shall correspond to the requirements of Table O-12.
(ii) The specifications given in Table O-12 and subdivision (i) of this subparagraph are minimum requirements; where guards are exposed to unusual wear, deterioration or impact, heavier material and construction should be used to protect amply against the specific hazards involved.
(2) Wood guards. (i) Wood guards may be used in the woodworking and chemical industries, in industries where the presence of fumes or where manufacturing conditions would cause the rapid deterioration of metal guards; [*66] also in construction work and in locations outdoors where extreme cold or extreme heat make metal guards and railings undesirable. In all other industries, wood guards shall not be used.
(ii) (a) Wood shall be sound, tough, and free from any loose knots.
(b) Guards shall be made of planed lumber not less than one (1) inch rough board measure, and edges and, corners rounded off.
(c) Wood guards shall be securely fastened together with wood screws, hardwood dowel pins, bolts, or rivets.
(d) While no definite dimensions are given under this heading for framework or filler materials, wood guards shall be equal in strength and rigidity to metal guards specified in subparagraphs (1)(i) and (ii) of this paragraph and Table O-12.
(e) For construction of standard wood railing, see subparagraph (5) of this paragraph.
(3) Guards for horizontal overhead belts. (i) Guards for horizontal overhead belts shall run the entire length of the belt and follow the line of the pulley to the ceiling or be carried to the nearest wall, thus enclosing the belt effectively. Where belts are so located as to make it impracticable to carry the guard to wall or ceiling, construction [*67] of guard shall be such as to enclose completely the top and bottom runs of belt and the face of pulleys.
(ii) The guard and all its supporting members shall be securely fastened to wall or ceiling by gimlet-point lag screws or through bolts. In case of masonry construction, expansion bolts shall be used. The use of bolts placed horizontally through floor beams or ceiling rafters is recommended.
(iii) Suitable reinforcement shall be provided for the ceiling rafters or overhead floor beams, where such is necessary, to sustain safely the weight and stress likely to be imposed by the guard. The interior surface of all guards, by which is meant the surface of the guard with which a belt will come in contact, shall be smooth and free from all projections of any character, except where construction demands it; protruding shallow roundhead rivets may be used. Overhead belt guards shall be at least one-quarter wider than belt which they protect, except that this clearance need not in any case exceed six (6) inches on each side. Overhead rope drive and block and roller-chain-drive guards shall be not less than six (6) inches wider than the drive on each side. In overhead silent chain-drive [*68] guards where the chain is held from lateral displacement on the sprockets, the side clearances required on drives of twenty (20) inch centers or under shall be not less than one-fourth inch from the nearest moving chain part, and on drives of over twenty (20) inch centers a minimum of one-half inch from the nearest moving chain part.
(iv) Table O-13 gives the sizes of materials to be used and the general construction specifications of guards for belts ten (10) inches or more in width. No material for overhead belt guards should be smaller than that specified in Table O-13 for belts ten (10) to fourteen (14) inches wide, even if the overhead belt is less than ten (10) inches in width. However, No. 20 gage sheet metal may be used as a filler on guards for belts less than ten (10) inches wide. Expanded metal, because of the sharp edges, should not be used as a filler in horizontal belt guards.
(v) For clearance between guards and belts, ropes or chains of various center to center dimensions between the shafts, see bottom of Table O-13.
(4) Guards for horizontal overhead rope and chain drives. Overhead-rope and chain-drive guard construction shall conform to the rules for overhead-belt [*69] guard construction of similar width, except that the filler material shall be of the solid type as shown in Table O-13, unless the fire hazard demands the use of open construction. A side guard member of the same solid filling material should be carried up in a vertical position two (2) inches above the level of the lower run of the rope or chain drive and two (2) inches within the periphery of the pulleys which the guard encloses thus forming a trough. These side filler members should be reinforced on the edges with 1 1/2-inch by 1/4-inch flat steel, riveted to the filling material at not greater than eight (8) inch centers; the reinforcing strip should be fastened or bolted to all guard supporting members with at least one 3/8-inch rivet or bolt at each intersection, and the ends should be secured to the ceiling with lag screws or bolts. The filling material shall be fastened to the framework of the guard and the filler supports by 3/16-inch rivets spaced on 4-inch centers. The width of the multiple drive shall be determined by measuring the distance from the outside of the first to the outside of the last rope or chain in the group accommodated by the pulley.
(5) Guardrails [*70] and toeboards. (i) Guardrail shall be forty-two (42) inches in height, with midrail between top rail and floor.
(ii) Posts shall be not more than eight (8) feet apart; they are to be permanent and substantial, smooth, and free from protruding nails, bolts, and splinters. If made of pipe, the post shall be one and one-fourth (1 1/4) inches inside diameter, or larger. If made of metal shapes or bars, their section shall be equal in strength to that of one and one-half (1 1/2) by one and one-half (1 1/2) by three-sixteenths (3/16) inch angle iron. If made of wood, the posts shall be two by four (2 X 4) inches or larger. The upper rail shall be two by four (2 X 4) inches, or two one by four (1 X 4) strips, one at the top and one at the side of posts. The midrail may be one by four (1 X 4) inches or more. The rails (metal shapes, metal bars, or wood), should be on that side of the posts which gives the best protection and support. Where panels are fitted with expanded metal or wire mesh as noted in Table O-12 the middle rails may be omitted. Where guard is exposed to contact with moving equipment, additional strength may be necessary.
(iii) Toeboards shall be four (4) inches [*71] or more in height, of wood, metal, or of metal grill not exceeding one (1) inch mesh. Toeboards at flywheel pits should preferably be placed as close to edge of the pit as possible.
(p) Care of equipment -- (1) General. All power-transmission equipment shall be inspected at intervals not exceeding 60 days and be kept in good working condition at all times.
(2) Shafting. (i) Shafting shall be kept in alignment, free from rust and excess oil or grease.
(ii) Where explosives, explosive dusts, flammable vapors or flammable liquids exist, the hazard of static sparks from shafting shall be carefully considered.
(3) Bearings. Bearings shall be kept in alignment and properly adjusted.
[Table Omitted]
(4) Hangers. Hangers shall be inspected to make certain that all supporting bolts and screws are tight and that supports of hanger boxes are adjusted properly.
(5) Pulleys. (i) Pulleys shall be kept in proper alignment to prevent belts from running off.
(ii) One or both pulleys carrying a nonshifting belt should have crowned faces.
(iii) Cast-iron pulleys should be tested frequently with a hammer to disclose cracks in rim or spokes. It should be borne in mind [*72] that the sound is usually the pulley.
(iv) Split pulleys should be inspected to ascertain if all bolts holding together the sections of the pulley are tight.
(6) Care of belts. (i) Quarter-twist belts when installed without an idler can be used on drives running in one direction only. They will run off a pulley when direction of motion is reversed.
(ii) Inspection shall be made of belts, lacings, and fasteners and such equipment kept in good repair.
(iii) Where possible, dressing should not be applied when belt or rope is in motion; but, if this is necessary, it should be applied where belts or rope leave pulley, not where they approach. The same precautions apply to lubricating chains. In the case of V-belts, belt dressing is neither necessary nor advisable.
(7) Lubrication. The regular oilers shall wear tight-fitting clothing and should use cans with long spouts to keep their hands out of danger. Machinery shall be oiled when not in motion, whereever possible.