BOISE CASCADE CORPORATION

OSHRC Docket No. 2049

Occupational Safety and Health Review Commission

October 31, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: On April 9, 1974, Judge Thomas J. Donegan rendered his decision in this case n1 finding Boise Cascade Corp., respondent, in serious violation of the Act n2 for its failure to comply with the standards at 29 CFR 1910.265(e)(4)(ii)(b) and 29 CFR 1910.212(a)(1). The Judge assessed a total penalty of $300 for the violations.

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n1 This case, docket No. 2049, was consolidated with two other cases involving the same respondent, docket Nos. 2048 and 2047, for the purpose of issuing a single decision. The cases were heard separately in a "back-to-back" fashion by Judge Donegan. We are severing docket No. 2049 for the purpose of review.

n2 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

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The case was directed for review by Commissioner Moran and is before us pursuant to section 12(j) of the Act on the following issues:

1. Whether the standard set out at 29 CFR 1910.265(e)(4)(ii)(b) is unenforceably vague? [*2]

2. Whether the standard set out at 29 CFR 1910.212(a)(1) is unenforceably vague?

In his decision, Judge Donegan considered the validity of the standards and found them to be "not unenforceable or unreasonable on the grounds of vagueness" (footnote omitted). Commissioner Cleary continues to hold the view he expressed in United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (concurring opinion) that the Commission lacks the authority to review the validity of a standard promulgated by the Secretary of Labor. Assuming arguendo that the Commission does have such authority, Commissioner Cleary joins in affirming the Judge's disposition of the vagueness issues.

We have examined the remainder of the record pertaining to Docket No. 2049 and have found no prejudicial error. Accordingly, it is ORDERED that the decision of Judge Thomas J. Donegan be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, COMMISSIONER, Dissenting: The two citations in this case should be vacated because the two saw guarding standards which the respondent is charged with violating are unenforceably vague.

The first charge avers that the respondent failed to comply with 29 C.F.R. 1910.265(e)(4)(ii) (b) [*3] by not adequately guarding the left end saws (zero saws) on its board and cant trimmers. That standard simply provides that "[t]he end saws on trimmers shall be guarded."

Inadequate guarding of various components of a Bolter saw in contravention of 29 C.F.R. 1910.212(a)(1) is the basis of the second charge. That standard pertains to "[g]eneral requirements for all machines" and provides the following:

(a) Machine guarding -- (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.

The purpose of an occupational safety and health standard is to inform employers what they must do to avoid workplace hazards. Secretary v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973). To achieve this purpose, a standard must speak in definite terms and provide employers with fair warning of the conduct that is required to prohibited. See Jordan [*4] v. De George, 341 U.S. 223 (1951); Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962).

Regulations subject to arbitrary application and multiple interpretations cannot be the basis for employer liability. See Bowie v. City of Columbia, 378 U.S. 347 (1964). Thus, a standard "which [can] be applied . . . in accordance with the whims of public officials" is invalid. United States v. Cassiagnal, 420 F.2d 868, 873 (4th Cir. 1976). The testimony in this case clearly illustrates that the instant standards are subject to such arbitrariness.

Each of the end saws on the two trimmers were equipped with three guards. The top part of the saw blades were guarded by metal hoods that were suspended above them. The operatoirs of the trimmers stood behind deflector screens that were positioned on one side of the saws. A deflector that extended about 14 to 20 inches into the aisle on another side of the board trimmer saw precluded passersby from walking immediately baside the saw blade. The cant trimmer was equipped with a metal bumper which prevented employees from passing within 30 inches of its saw blade.

The Bolter saw had four guards. A metal strip was located [*5] over the upper front of "the in-feed dogs." A metal sheet which covered the top of the saw was positioned behind that strip. The chain and sprocket drive was covered on the front and top by a metal guard. The friction drive was covered with a wooden cover which provided protection from that component and acted as a barrier between passing employees and the chain and sprocket drive.

The complainant's inspector agreed in his testimony that all three saws were partially guarded. However, he expressed the opinion that the guarding was inadequate to comply with the standards. In this respect, his testimony was as follows:

Q In reaching your determination that the guards on the saws involved in this case did not comply with the standard, were you utilizing your opinion as to what the term 'guarded' means?

A That would be correct.

Q Might someone else disagree with you as to what that term means?

A Very definitely somebody would probably have a -- that is why we are here today.

The Judge apparently also concluded that the extent of the guarding required by the standards was a matter of subjective determination for he stated at the hearing that:

[T]he word 'guarded' . . . means [*6] nothing. It only means what the witness thinks it means. It also means what Mr. Jones thinks it means. It might mean what I think it means. It means what you think it means. All we have to go by is the word 'adequately guarded' or 'guarded' . . . .

The 1910.265(e)(4)(ii) (b) standard is particularly vague as it does not specify how end saws are to be guarded or the hazardous effects, such as cuts or flying objects, that the guarding should be designed to prevent. The 1910.212(a)(1) standard is not quite so vague as it does list the hazards which are to be guarded and gives examples of protective devices that may be utilized by employers. However, the major infirmity in both standards is that they do not define the extent of the guarding required. They are therefore subject to arbitrary application and multiple interpretations by governmental enforcement officials. Accordingly, they are unenforceably vague on their face as well as "in light of the conduct to which [they are] applied." United States v. National Dairy Products Corp., 372 U.S. 29, 36 (1963). See McLean Trucking Company v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. [*7] v. Brennan, 497 F.2d 230 (5th Cir. 1974).

[The Judge's decision referred to herein follows]

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 violations of Section 5(a)(2) of the Act resulting from the alleged failure of the Respondent to comply with [*8] 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 Emment, 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 contested 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.

CITATION FOR SERIOUS VIOLATION

Citation Number 1 of 1; Date Issued -- December 22, 1972; EMPLOYER -- Boise Cascade Corp. (Plywood Plant)

ADDRESS -- P.O. Box 217 (City Emmett, State -- Idaho, Zip 83617

An [*9] inspection of a workplace under your ownership, operation, or control located at Emmett, Idaho and described as follows: Plywood Plant has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or

Date on which

regulation allegedly

alleged violation

violated

Description of alleged violation

must be corrected

29 CFR Part 1910

December 12, 1972

1910.213(h)(1)

The Comot Radial Arm Saw in the

January 22, 1973

warehouse area, is not fitted with

a guard that encloses the sides of

the lower half of the exposed saw

blade.

Area Director's Signature Eugene Harrower

The standard alleged to have been violated in this citation no. 1 for serious violation (docket 2048) provides as follows:

29 CFR 1910.213(h)(1)

1910.213 Woodworking machinery requirements

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end 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, [*10] 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).

CITATION FOR SERIOUS VIOLATION

Citation Number - 1 of 2; Date Issued -- December 22, 1972; EMPLOYER -- Boise Cascade (Sawmill Division)

ADDRESS -- (P.O. Box 217 (City Emmett, State Idaho Zip 83617;

An inspection of a workplace under your ownership, operation, or control located at Emmett, Idaho -- and described as follows: Sawmill Division been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in [*11] the following respects:

Standard or

Date on which

regulation al-

alleged violation

legedly violated

Description of alleged violation

must be corrected

29 CFR Part 1910

December 14, 1972

1910.265(e)(4)

The left hand end saws (zero

January 8, 1973

(ii)(b)

saws) on the board & cant trim-

mer & the trimmer saw on the

#2 Moore Stacker are next to

walkways.

The board & cant left hand end

saws (zero saws) are equipped

with hood guards that only

cover a small portion of space

above the saws. The trimmer saw

on the #2 Moore Stacker is

equipped with a hood guard that

only covers the upper half of the

saw blade.

The walkway side of these trimmer

saws are not guarded.

Area Director's Signature Eugene Harrower

CITATION FOR SERIOUS VIOLATION

Citation Number -- 2 of 2; Date Issued -- December 22, 1972;

EMPLOYER -- Boise Cascade (Sawmill Division)

ADDRESS -- (P.O. Box 217

(City -- Emmett State Idaho Zip 83617

An inspection of a workplace under your ownership, operation, or control located at Emmett, Idaho and described as follows: Sawmill Division has been conducted. On the basis of the inspection it is alleged that you have [*12] violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or

Date on which

regulation al-

alleged violation

legedly violated

Description of alleged violation

must be corrected

29 CFR Part 1910

December 14, 1972

1910.212(a)(1)

The Bolter Saw is equipped with

January 8, 1973

a top and a partial front guard at

the point of operation of the

infeed do type chains. The ingoing

nip points of the chain and

sprockets drive for the in and

out feed, are only guarded on

top and not on the right side.

Area Director's Signature Eugene Harrower

The standards alleged to have been violated in these citations, numbered 1 and 2, for serious violations (docket 2049) provide as follows:

Citation number 1:

29 CFR 1910.265(e)(4)(ii)(b)

1910.265 Sawmills.

(e) Log breakdown and related machinery and facilities --

(4) Trimmer Saws --

(ii) Guards.

(b) The end saws on trimmers shall be guarded.

Citation number 2:

29 CFR 1910.212(a)(1)

1910.212 General requirements for all machines.

(a) Machine Guarding --

(1) Types of guarding.

One or more methods of machine guarding shall be provided to protect the operator [*13] 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.

CITATION FOR SERIOUS VIOLATION

Citation Number -- One of One; Date Issued -- January 2, 1973;

EMPLOYER -- Boise Cascade Corporation

(Street P.O. Box 200

ADDRESS -- (City Boise State Idaho Zip 83701;

An inspection of a workplace under your ownership, operation, or control located at 4901 Warm Springs Avenue Barber sawmill), Boise, Idaho and described as follows: Sawmill has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or

Date on which

regulation al-

alleged violation

legedly violated

Description of alleged violation

must be corrected

December 12, 1972

29 CFR 1910.

The following parts of power trans-

January 16, 1973

265(c)(22)

mission machinery are not guarded

in accordance with the require-

ments of 1910.219.

1. The carriage drive cable drum

under the mill is in a room with

open doors on the east and west

side and the cable drum is not

guarded or barricaded.

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 un-

guarded chain sprockets.

5. The short chain hog conveyor

drive has an unguarded chain and

two unguarded chain sprockets.

[*14]

Area Director's Signature Eugene Harrower

The standards alleged to have been violated in this citation no. 1 for serious violation (docket 2047) provide as follows:

29 CFR 1910.265(c)(22)

1910.265 Sawmills.

(c) Building facilities, and isolated equipment --

(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 amended 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 [*15] of denying paragraph III of the complaint in this docket which in substnace alleged that the Secretary of Labor duly issued and promulgated the standards involved 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 in 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 [*16] 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 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 -- 8).

The testimony of Evan 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 [*17] 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).

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 [*18] 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 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, OSAHRC Docket 345 (August 13, 1973).

[*19]

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The Respondent raised the question of the constitutional validity of the contested standard [29 CFR 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 [*20] 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 nonserious 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 [*21] 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. 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 [*22] 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 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."

[*23]

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The Compliance Officer testified that the absence of a lower blade guard 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; [*24] 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 law. 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 [*25] and cant 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 bearing 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 its instance. n7 Ordinary human experience makes it clear that the guarding should [*26] be adequate to reduce to the lowest possible level the probability of an injury occurring to an employee if a part of his body should accidentally come in contact with an unguarded part of the moving saw blades.

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n6 Santa Fe Trail Transport Company, (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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A considerable amount of the testimony was concerned with the question of whether the standard cited [29 CFR 1910.265(e)(4)ii(b)] 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. [*27] 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 of the Bolter saw were only guarded on 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 [*28] 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 [*29] caught up at the nip points of the sprockets and chains (Tr. 42 - 47; 57 - 67).

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 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 [*30] Section 17(i) 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 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 items 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 [*31] 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 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), [*32] 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 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 [*33] 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 the 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 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. [*34] 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 outfeed 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 - 128), (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 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 [*35] 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 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, [*36] 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).

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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 chins and sprockets (Exhibit S-3) were seldom used and only by maintenance people. The electrical [*37] 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, 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 whe they were taken off, were unanswered (Tr. 135 - 136).

Irvin E. Freudenthaler, head millwright, [*38] 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, 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 [*39] 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 conlerence 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 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 [*40] 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 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 [*41] 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 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 [*42] 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 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 [*43] 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 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 [*44] $600 be vacated and a penalty of $250 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.

APPENDIX A

29 CFR 1910.219

1910.219 Mechanical power-transmission apparatus.

(a) General requirements. (1) This section covers all types 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) falt 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) [*45] 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 nippoint belt and pulley guard.

(3) For the Textile Industry, because of the presence of excessive deposits of lint, which constitute a serious fire hazard, 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 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 rails placed not less than fifteen [*46] (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 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 [*47] 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 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 [*48] 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 by 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 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 [*49] 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 nonrotating 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:

(1) The basement, tower, or room occupied by transmission equipment is locked against unauthorized 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, firm, and level.

(v) The route followed by the oiler is protected in such manner as to [*50] 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 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 [*51] 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 powerdevelopment rooms, a guardrail may be used in lieu of the guard required by subdivision (i) of this subparagraph.

(2) Overhead horizontal 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 [*52] 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 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 [*53] 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. (i) The cone belt and pulley shall be equipped with a belt shifter so constructed as to the 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 [*54] 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 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 encased as to prevent accident.

(f) Gears, sprockets, and chains -- (1) Gears. Gears shall be guarded in accordance with one of the following methods:

(i) [*55] 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 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 [*56] 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 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 [*57] 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 facilities 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, 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. [*58] A bearing support immediately adjacent to a friction clutch or cutoff coupling shall have self-lubricating bearings requiring attention at infrequent intervals.

(1) 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 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 [*59] positions and the machine is at a standstill when clutch handle is in the neutral or center position.

(2) Belt shippers and shipper poles. The use of belt poles 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 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 [*60] 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. 3/4-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 rivets or bolts spaced not more than five (5) inches center to center. In case of expanded metal or wire mesh, metal strips or trips 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 [*61] 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.

TABLE O-12 -- TABLE OF STANDARD MATERIALS AND DIMENSIONS

Minimum

height of

Largest

guard from

Clearance from

mesh or

floor or

Material

moving part at

opening

Minimum gauge (U.S.

platform

all points

allowable

Standard) or thickness

level

Inches

Inches

Feet

Woven wire

Under 2

3/8

No. 16

7

2-4

1/2

No. 16

7

Under 4

1/2

No. 16

7

4-15

2

No. 12

7

Expanded

metal

Under 4

1/2

No. 18

7

4-15

2

No. 13

7

Perforated

metal

Under 4

1/2

No. 20

7

4-15

2

No. 14

7

Sheet metal

Under 4

No. 22

7

4-15

No. 22

7

Wood or

metal strip

crossed

Under 4

3/8

Wood 5/8 Metal No. 16

7

4-15

2

Wood 3/4 Metal No. 16

7

Wood or

metal strip

not crossed

Under 4

1/2 width

Wood 3/4 Metal No. 16

7

4-15

1 width

Wood 3/4 Metal No. 16

7

Standard rail

Min. 15

Max. 20

[*62]

(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 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 (1) 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 1/2-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 [*63] 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 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.)

(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 1/8 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 [*64] may be necessary.

(b) The framework for all guards fastened to floor or working platform and without other support or bracing shall consist 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 [*65] chemical industries, in industries where the presence of fumes or where manufacturing conditions would cause the rapid deterioration of metal guards; 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 [*66] 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 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 blet 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. [*67] Overhead rope drive and block and roller-chain-drive guards shall be not less than six (6) inclies wider than the drive on each side. In overhead silent chain-drive 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 [*68] 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 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 3/10-inch rivets spaced on 4-inch centers. The width [*69] 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 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 reade 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 panels [*70] 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 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 O-13 -- HORIZONTAL OVERHEAD BELTS, ROPES, AND CHAINS

7 FEET OR MORE ABOVE FLOOR OR PLATFORM

Width

From 10" to

Over 14" to

Over 24"

Material

14" inclusive

24" inclusive

MEMBERS

Framework

1-1/2X1-1/2

2"X2"X

3"X3"X

Angle iron.

X1/4"

5/16

2/3

Filler (belt guards)

1-1/2"X

2"X3/16"

2"X5/16"

Flat iron.

3/16"

Filler and vertical

No. 20

No. 18

No.

Solid sheet

side member

A.W.G.

A.W.G.

A.W.G.

metal.

Filler supports

2"X5/16"

2"X3/8"

2-1/2"X

Flat and angle.

flat iron

flat iron

2-1/2"X

1/4" angle

Guard supports

2"X5/16"

2"X3/8"

2-1/2"X

Flat iron.

3/8"

FASTENINGS

Filler supports to

(2) 3/16"

(2) 3/8"

(3) 1/2"

Rivets.

framework

Filler flats to

(1) 5/16"

(1) 5/16

(1) 3/8"

Flush rivets.

supports (belt

guards).

Filler to frame and

3/16" rivets

8" centers on

supports (chain

spaced

sides and 4"

guards).

centers on

bottom.

Guard supports to

(2) 3/8"

(2) 3/16"

(2) 3/8"

Rivets or bolts.

frame work.

Guard and supports

1/4"X3-1/2"

3/8"X4" lag

3/8"X6

Lag screws or

to overhead

lag screws

screws or

lag screws

bolts.

ceiling.

or 1/2" bolts.

1/2" bolts.

or 3/4"

bolts.

DETAILS -- SPACING,

ETC.

Width of guards

One-quarter

wider than

belt, rope,

or chain

drive.

Spacing between

20"C. to C.

16"C. to C.

16"C.

filler supports.

to C

Spacing between

2" apart

2-1/2 apart

2" apart

filler flats (belt

guards).

Spacing between

36"C. to C.

36"C. to C.

36"C.

guard supports

to C

OTHER BELT

GUARD FILLING

PERMITTED

Sheet metal

No. 20

No. 18

No. 16

Solid or per-

fastened as in

A.W.G.

A.W.G.

A.W.G.

forated.

chain guards.

Woven wire, 2"

No. 12

No. 10

No. 8

mesh

A.W.G.

A.W.G.

A.W.G.

CLEARANCE FROM OUTSIDE OF BELT, ROPE, OR CHAIN

DRIVE TO GUARD

Distance center

Up to 15'

Over 15' to

Over 25'

Over 40'.

to center of

inclusive

25' in-

to 40'

shafts.

clusive

inclusive

Clearance from

6"

10"

15"

20".

belt, or chain

to guard

[*71]

(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 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 [*72] 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, wherever possible.