BOISE CASCADE CORPORATION

OSHRC Docket No. 2048

Occupational Safety and Health Review Commission

December 11, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

Warren E. Jones, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In this case n1 Complainant issued a citation alleging that Respondent had committed a serious violation of the Occupational Safety & Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to guard the blade of a radial saw as required by the provisions of 29 C.F.R. 1910.213. n2 Administrative Law Judge Thomas J. Donegal affirmed the citation and assessed a penalty of $250 therefor.

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n1 This case had previously been consolidated with two other cases involving this Respondent, docket nos. 2047 and 2049. Pursuant to Commission Rule 10 (29 C.F.R. 2200.10) we new sever docket no. 2048 for decisional purposes.

n2 In pertinent part subsection (h)(1) of this standard requires that "[t]he sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed."

[*2]

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In defense to the citation Respondent raised the same issue which has since been decided in Noblecraft Industries, Inc., Docket No. 3367 (11/21/75). We concluded that this standard had been adopted in conformity with the rulemaking provisions of the Act. In rejecting the defense in this case Judge Donegan correctly anticipated our reasoning in Noblecraft.

We also conclude that Judge Donegan properly disposed of the other issues before him and that his penalty assessment is appropriate on the facts. Accordingly, we affirm his decision.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

1910.213(h)(1) was improperly promulgated.

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