STOWE CANOE COMPANY

OSHRC Docket No. 2571

Occupational Safety and Health Review Commission

March 8, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, USDOL

Robert M. Hartt, President, Stowe Canoe Co., Inc., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

On March 1, 1974, Judge Jerome C. Ditore rendered his decision in this case, in which he affirmed the first 21 items and vacated item 22 of a citation alleging nonserious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Review was subsequently directed sua sponte by Commissioner Moran on the following issues:

(1) Did the Judge err in his handling of the penalties for items 3, 7, 16, 20 and 21 of the citation?

(2) Whether or not 29 C.F.R. 1910.157 is

(a) an appropriate occupational safety and health standard as defined in 29 U.S.C. 652(8), and

(b) a property protection requirement rather than an employee safety standard.

The second issue is directed towards items 7 and 8 of the citation, which alleged violations of 29 C.F.R. 1910.157(d)(3)(ii) and (a)(5) in that fire extinguishers were not replaced or properly mounted. We note that Respondent has not raised the issue at any stage of the proceedings, [*2] has not presented evidence on the issue, and has not argued it before us. In the circumstances the record is inadequate to decide the issue except in the abstract, and we therefore will not discuss it. n1

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n1 Commissioner Cleary adheres to his position that this Commission lacks authority to review the validity of the standard, even though a party must raise any objection it has of this kind before the Commission if it is to be preserved for possible judicial review. River Terminal Railway Company, No. 4419 (December 12, 1975), n. 4, BNA OSHC 1808, CCH OSHD para.    . See Arkansas-Best Freight Systems, Inc., 1974-1975, CCH OSHD, para. 19,326 2 BNA OSHC 1620 (No. 2375), aff'd, No. 75-1249 (8th Cir., January 2, 1976).

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With respect to issue 1, we have carefully reviewed the Judge's report and have concluded that there exist discrepancies in items 3, 7, 16, and 20 between the penalty figures discussed in the body of his report and those assessed in the order. We view the discrepancies to be inadvertent [*3] errors not involving any abuse of discretion and modify the order to assess the following penalties:

Item 3: $60

Item 7: $0

Item 16: $0

Item 20: $65

Finally, we find no error in the Judge's refusal to assess a penalty for item 21, which alleged a violation of 29 C.F.R. 1904.5(d)(1) based on Respondent's failure to post the annual summary of occupational injuries and illnesses at its workplace. The Secretary argues that section 17(i) of the Act dictates a mandatory penalty for a posting violation. We note first that terms of the cited regulation are permissive. In any event, section 17(i) requires the assessment of a penalty only where the posting requirements of the Act as contrasted with the requirements of the regulation cited in this case are violated.

Accordingly, the Judge's report as modified by the penalty adjustments made herein is affirmed. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I concur in the disposition of all items of the citation except items numbered 1, 5, 7, 8, 12, 13, 14 and 21.

Without citing any authority therefor, Mr. Barnako, in this decision, announces the following "rule":

"We note that Respondent has not raised the issue [the [*4] validity of items 7 and 8 of the citation] at any stage of the proceedings, has not presented evidence on the issue, and has not raised it before us. In the circumstances the record is inadequate to decide the issue except in the abstract, and we therefore will not discuss it."

This is directly contrary to the position taken by the Tenth Circuit Court of Appeals when confronted with similar circumstances:

"Although the manner in which the case is presented indicates no more than an effort by two governmental agencies to secure an advisory opinion, employer contested the citation and has not withdrawn that contest. Employer has an interest in the controversy even though it is un-willing to do anything to protect that interest. We have a case or controversy within the purview of the Constitution, Art. III, 2 . . . . Accordingly, we turn to the merits." Brennan v. OSAHRC, 505 F.2d 869 (10th Cir., 1974).

Mr. Cleary has chosen to follow the Barnako "rule," however, I took an oath to uphold the law. I therefore turn to the merits of this case.

Items 1, 5, 12, 13 and 14 allege failures to comply with the occupational safety standards codified at 29 C.F.R. 1910.213. n2 As [*5] 1910.213 were improperly promulgated under the Act because they did not include the limitations specified in the standard from which they were derived, ANSI 01.1-1954 (R 1961).

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n2 The specific standards are: 29 C.F.R. 1910.213(p)(3)(item 1); 29 C.F.R. 1910.213(a)(11)(item 5); 29 C.F.R. 1910.213(h)(1)(item 12); 29 C.F.R. 1910.213(h)(4)(item 13); and 29 C.F.R. 1910.213(p)(4)(item 14).

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Items 7 and 8 allege failures to comply with the occupational safety standards codified at 29 C.F.R. 1910.157(d)(3)(ii) and (a)(5), respectively.

When an agency of the United [*6] States exceeds the powers conferred on it by Congress in promulgating regulations, the regulations so promulgated are null and void. Utah Power & Light Company v. United States, 243 U.S. 389, 410-411 (1917). Such action presents a question of subject matter jurisdiction which may be raised by the Commission at any time irrespective of the fact that the parties failed to do so. See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v. Guaranty Trust Co. of New York, 117 F.2d 95, 97 (2d Cir. 1941); Secretary v. Stevens Equipment Company, 2 OSAHRC 1501, 1506 (1973); Fed. R. Civ. P. 12(h)(3).

It is my opinion, therefore, that since all of the aforementioned standards are not proper occupational safety and health standards under the Act, no violation of 29 U.S.C. 654(a)(2) can be predicated thereon.

I also disagree with the affirmance of item 21 wherein respondent was cited for failure to post an annual summary of occupational injuries and illnesses as required by 29 C.F.R. 1904.5(d)(1). Since there were no injuries or illnesses which were required to be entered on the annual summary, item 21 should be vacated. See Secretary v. Jack Shelton, [*7] d/b/a Jack Shelton Painting Contractor, 12 OSAHRC 197 (1974); Secretary v. La Biche's, Inc., 10 OSAHRC 159 (1974).

Furthermore, my colleagues' justification for affirming no penalty for this item is incorrect. The Act clearly requires that at least a nominal penalty be assessed where any posting violation has been established as it provides that:

"Any employer who violates any of the posting requirements, as prescribed under the provisions of this chapter, shall be assessed a civil penalty of up to $1,000 for each violation."

29 U.S.C. 666(h) (emphasis added).

Messrs. Barnako and Cleary distinguish between posting requirements of the Act and the regulation in concluding that section 666(h) is inapplicable in the instant case. n3 This is a distinction without a difference. The regulation here in question was issued by the Secretary of Labor pursuant to the powers vested in him under Chapter 15, Title 29, United States Code, just as all other enforceable occupational safety and health standards are issued. See generally 29 U.S.C. 655 and 657. Such regulations are therefore "prescribed under the provisions of this chapter." This interpretation is consistent [*8] with the Commission decision in Secretary v. C & R Cabinet Company, 18 OSAHRC 144 (1975) which affirmed a failure to comply with a posting regulation, rather than "posting requirements of the Act," and which my colleagues overrule by implication without the slightest reference thereto.

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n3 They also conclude that 29 C.F.R. 1904.5(d)(1) is permissive. I am unable to understand how they reach this conclusion as the regulation uses the word "shall" throughout. However, if they so believe, they should join me in holding that item 21 must be vacated.

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Since this decision does not deal with all matters covered in Judge Ditore's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Albert H. Ross, Regional Solicitor, U.S. Department of Labor and John S. Casler, for Complainant

Robert Hartt, President, Stowe Canoe Company, For the Respondent

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. [*9] 651, et seq., hereinafter called the Act), contesting a Citation issued by the Complainant against Respondent under the authority vested in Complainant by Section 9(a) of the Act.

The Citation alleged that as a result of the inspection of a work place under the ownership, operation or control of the Respondent, located at Stowe, Vermont, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation which was issued March 8, 1973, alleged that the violations resulted from Respondent's failure to comply with standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (36 F.R. 10466), republished on October 18, 1972 (37 F.R. 22102), and on July 2, 1971 (36 F.R. 2612), and codified in 29 C.F.R. 1910.22(b)(2), 1910.106(d)(2)(i), 1910.106(e)(2)(iv)(a), 1910.106(e)(6)(ii), 1910.132(a), 1910.133(a)(1), 1910.157(a)(5), 1910.157(d)(3)(ii), 1910.213(a)(11), 1910.213(h)(1), 1910.213(h)(4), 1910.213(p)(3), 1910.213(p)(4), 1910.215(a)(2), 1910.215(a)(3), 1910.215(a)(4), 1910.215(b)(9), 1910.219(e)(3)(i), 1910.242(a), [*10] 1910.242(b), 1910.308 and 309(a), and 1904.5(d)(1).

The descriptions of the above standard violations in the Citation, and the standards as promulgated by the Secretary are as follows:

Item 1 of Citation - 29 CFR 1910.213(p)(3).

"Failure to provide guard for disc sanding machine. (Canoe finishing room)"

Standard - "Each disk sanding machine shall have the exhaust hood, or other guard if no exhaust system is required, so arranged as to enclose the revolving disk, except for that portion of the disk above the table, if a table is used, which may be necessary for the application of the material to be finished."

Item 2 of Citation - 29 CFR 1910.133(a)(1).

"Failure to provide and require use of protective eye equipment (Tool room)

Standard - "(a) General. (1) Protective eye and face equipment shall be required where there is reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall [*11] be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards."

Item 3 of Citation - 29 CFR 1910.106(d)(2)(i).

"Failure to use approved containers for flammable liquids. (Canoe molding room)

Standard - "(2) Design, construction, and capacity of containers -- (i) General. Only approved containers and portable tanks shall be used. Metal containers and portable tanks meeting the requirements of and containing products authorized by Chapter I, Title 49 of the Code of Federal Regulations (regulations issued by the Hazardous Materials Regulations Board, Department of Transportation), shall be deemed to be acceptable."

Item 4 of Citation - 29 CFR Section 1910.106(e)(2)(iv)(a).

"Failure to keep flammable liquids in covered containers. (Canoe molding room and canoe finishing room)"

Standard - "(iv) Handling liquids at point of final use.

(a) Flammable liquids shall be kept in covered containers when not actually in use."

Item 5 of Citation - 29 CFR 1910.213(a)(11).

"Failure to provide grounded portable electric woodworking machinery. (Canoe finishing room)"

Standard - "(11) The frames [*12] and all exposed, non-current-carrying metal parts of portable electric woodworking machinery operated at more than 90 volts to ground shall be grounded and other portable motors driving electric tools which are held in the hand while being operated shall be grounded if they operate at more than 90 volts to ground. The ground shall be provided through use of a separate ground wire and polarized plug and receptacle."

Item 6 of Citation - 29 CFR 1910.242(a).

"Employer failed to keep tools in safe condition. (Tool room & canoe finishing room)"

Standard - "(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees."

Item 7 of Citation - 29 CFR 1910.157(d)(3)(ii).

"Failure to provide replacement fire extinguishers for those sent out for maintenance. (Canoe finishing room)"

Standard - "(ii) Extinguishers removed from the premises to be recharged shall be replaced by spare extinguishers during the period they are gone."

Item 8 of Citation - 29 CFR 1910.157(a)(5).

"Failure to have fire extinguishers installed on hangers or mounted in cabinets or [*13] set on shelves. (Canoe finishing room)"

Standard - "(5) Mounting of Extinguishers. Extinguishers shall be installed on the hangers of in the brackets supplied, mounted in cabinets, or set on shelves unless the extinguishers are of the wheeled type."

Item 9 of Citation - 29 CFR 1910.242(b).

"Failure to reduce compressed air pressure to less than 30 p.s.i. when used for cleaning. (Canoe finishing room)"

Standard - "(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment."

Item 10 of Citation - 29 CFR 1910.215(a)(2).

"Failure to provide guard that covers the spindle end and nut of abrasive wheel machinery. (Tool room)"

Standard - "(2) Guard design. The safety guard shall cover the spindle end, nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except . . . ."

Item 11 of Citation - 29 CFR 1910.215(a)(4).

"Failure to have work rests on abrasive wheel machinery set to maximum [*14] opening of 1/8" from wheel. (Tool room)"

Standard - "(4) Work rests. On Offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. The adjustment shall not be made with the wheel in motion."

Item 12 of Citation - 29 CFR 1910.213(h)(1).

"Failure to provide guards for sides of lower portion of Radial saw blade (Canoe finishing room)"

Standard - "(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, 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 [*15] 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."

Item 13 of Citation - 29 CFR 1910.213(h)(4).

"Failure to install Radial saw in such a manner that cutting head will return to starting position when released by operator. (Canoe finishing room)"

Standard - "(4) Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator."

Item 14 of Citation - 29 CFR 1910.213(p)(4).

"Failure to provide guards at nip points of belt sander. (Canoe finishing room)"

Standard - "(4) - Belt sanding machines shall be provided with guards at each nip point where the sanding belt runs on to a pulley. These guards shall effectively prevent the hands or fingers of the operator from coming in contact with the nip points. The unused run of the sanding belt shall be guarded against accidental contact."

Item 15 of Citation - 29 CFR 1910.106(e)(6)(ii).

"Failure to provide means of electrically interconnecting nozzle [*16] and container when dispensing Class 1 flammable liquids. (Canoe room & Flammable Storage Room)"

Standard - "(ii) Grounding. Class I liquids shall not be dispensed into containers unless the nozzle and container are electrically interconnected. Where the metallic floor-plate on which the container stands while filling is electrically connected to the container during filling operations by means of a bond wire, the provisions of this section shall be deemed to have been complied with."

Item 16 of Citation - 29 CFR 1910.219(e)(3)(i).

"Failure to provide guards for inclined belts. (Two drums sander in canoe finishing room)"

Standard - "(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.

Items 17 and 18 of the Citation.

Respondent during the hearing withdrew its Notice of Contest to these violations, and they are not here in issue.

Item 19 of Citation - 29 CFR 1910.215(b)(9).

"Failure to provide periphery guard for abrasive wheel machinery which is adjusted to maximum 1/4" from wheel periphery. (Tool room)"

Standard - "(9) Exposure adjustment. Safety guards [*17] of the types described in subparagraphs (3) and (4) of this paragraph, where the operator stands in front of the opening, shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel. The maximum angular exposure above the horizontal plane of the wheel spindle as specified in subparagraphs (3) and (4) of this paragraph shall never be exceeded, and the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top shall never exceed one-fourth inch. (See figures O-18, O-19, O-20, O-21, O-22, and O-23.)"

Item 20 of Citation - 29 CFR 1910.215(a)(3).

"Failure to mount abrasive wheel between flanges. (Tool room)"

Standard - "(3) Flanges. Grinding machines shall be equipped with flanges in accordance with paragraph (c) of this section."

Item 21 of Citation - 29 CFR 1904.5(d)(1)

"Employee failed to post OSHA Form 102, no later than February 1."

Standard - This standard deals with the requirement that each employer compile an annual summary of occupational injuries and illnesses at his work place, on OSHA Form 102. A copy of this form is to be posted at the worksite. [*18]

Item 22 of Citation - 29 CFR 1910.132.

This alleged violation was withdrawn by Complainant during the hearing, and is not here in issue.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 8, 1973, from Francis R. Amirault, Area Director of the Northern New England Area, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess the following penalties for the violations alleged in the Citation:

CITATION

PROPOSED PENALTY

Item 1

$30.00

Item 2

 65.00

Item 3

 60.00

Item 4

Zero

Item 5

Zero

Item 6

Zero

Item 7

 35.00

Item 8

Zero

Item 9

 40.00

Item 10

 50.00

Item 11

Zero

Item 12

 45.00

Item 13

 50.00

Item 14

 30.00

Item 15

 50.00

Item 16

Zero

Item 17

Zero

Item 18

Zero

Item 19

Zero

Item 20

 65.00

Item 21

100.00

Item 22

 55.00

A hearing was held on the within action on August 1, 1973, at Burlington, Vermont.

ISSUES

1. Whether on February 20, 1973, Respondent's workplace was in violation of one, or more or all of the 22 Federal safety and health standards listed and described in the Citation issued to Respondent.

2. If one or more [*19] or all of the 22 violations existed at Respondent's workplace on February 20, 1973, was Respondent responsible.

3. If Respondent was responsible, whether the proposed penalty or penalties, where recommended, were proper and reasonable.

STATEMENT OF THE EVIDENCE

It was stipulated by the parties at the hearing that Respondent, Stowe Canoe Company, Inc., was a Vermont corporation having its principal office for business at Stowe, Vermont; that Respondent received materials from, and sold canoes, outside the State of Vermont; that Respondent employed eight full time and two part time employees; and that Respondent's gross income for the year 1972 was $68,000. (T.4; Court Exh. 1) *

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* Reference key: T - refers to pages of hearing transcript.

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On February 20, 1973, Compliance Officer Boyd H. Wilson, made an inspection of Respondent's workplace at Stowe, Vermont. He was accompanied on his walk-around by Robert Hartt, President of Stowe Canoe Company. Mr. Hartt cooperated fully with Mr. Wilson. (T.13, 19, 20)

1. [*20] Disc Sander - Item 1 of Citation - 29 CFR 1910.213(p)(3)

Officer Wilson observed in Respondent's canoe finishing room a 12 inch disc sander which was used by one employee to sand the ends of ten foot strips of wood. Each strip eventually became the keel of a canoe being manufactured. (T.24, 34, 25, 45) This was the only work done on this sander. (T.37) One and a half to two canoes a day were made. This required the sander to be used two or three times daily for several minutes each time. (T.41)

The machine consisted of a disc of sand paper mounted in the end of a shaft which was attached to a motor. (T.23, Exh. C-3) In using the machine to sand, the operator applied the end of the long wooden strips to the top part of the sander. The bottom or lower half of the sander was not used, and was unguarded in violation of 29 CFR 1910.213(p)(3). (T.24) Respondent admitted that the lower unused portion of the sander was not provided with a guard, and that the sander was used for woodworking purposes. (T.24; Exh. C-2. Admissions Nos. 1, 2) In addition to the operator of the sander, there were two other employees in the area about twenty feet from the sander. (T.52)

The hazard [*21] of an unguarded disc sander is the possibility of cuts and abrasions to the hands of employees. (T.25, 46)

The proposed penalty of $30.00 for this violation was arrived at by reducing the unadjusted penalty of $130.00 by 40% for size, prior history and good faith, and a further 50% for aabatement credit. (T. 28-32))

The factors which gave rise to the 40% and 50% reductions remain constant for all the violations which carry a proposed penalty. The unadjusted penalty factor varies with the gravity of the specific violations.

2. Double ended bench grinder. Items 2, 10, 11, 19, 20 of Citation - 1910.133(a)(1), 1910.215(a)(2), 1910.215(a)(4), 1910.215(b)(9), and 1910.215(a)(3).

a. 1910.133(a)(1)

This machine observed by Officer Wilson in Respondent's toolroom, gave rise to five separate violations of federal safety standards. (T.49, 50); Exh. C-5, T.52, Citation). Officer Wilson was told by Leo Touchette, Respondent's foreman, that the grinder was used to sharpen tools; that it was infrequently used, that he did the grinding on the machine; and that he used no safety glasses when operating the machine and none were provided by Respondent. (T.50, 53, 56-57, 78, 80) [*22]

Respondent admitted that it did not require the use of protective safety glasses in the tool room when grinding operations were taking place; and that Leo Touchette was the employee who regularly used the machine. (Exh. C-2, Admissions Nos. 3, 4, 5; T.64)

The hazard was the danger of flying particles of metal from the grinding operations, contacting and penetrating the operator's eyes. (T.53-54; Exh. C-2, Admission No. 6)

The unadjusted penalty based on the gravity of the violation was $138.00. This was reduced by statutory credits previously stated to a proposed adjusted penalty of $65.00. (T.54)

b. 1910.215(a)(2), 1910.215(a)(4), 1910.215(b)(9), and 1910.215(a)(3).

The grinder was also observed and found to be in violation of the above standards in that it was not equipped with a guard to cover the spindle end and nut. (Exh. C-5, marked "SN"; T.58) (1910.215(a)(2)); that the grinder's work rest was set at an opening greater than 1/8 inch from the wheel (Exh. C-5, marked "G"; T.65) (1910.215(a)(4)); that the grinder was not equipped with an adjustable periphery guard (T.67-69; Exh. C-5) (1910.215(b)(9)); and that one of the grinding wheels was not equipped with a flange [*23] to support the wheel. (T.70; Exh. C-5) (1910.215(a)(3)). Respondent admitted these violations. (Exh. C-2, Admissions Nos. 29, 30, 42, 43; T.64, 65, 67)

The hazard presented by the lack of a spindle end and nut guard was the danger of pieces of a fractured wheel penetrating the body of the operator. (T.59-61, 62) The unadjusted penalty of $170.00 based on the gravity of the violation was reduced by statutory credits to a proposed penalty of $50.00 (T. 61-62)

The hazard presented by the improperly set work rest was the danger of the operator's hand being drawn into contact with the grinding wheel. (T. 65-66) No penalty was proposed for this violation.

The hazard presented by the lack of periphery guards, and a flange was the danger of wheel fracturing causing flying pieces of the wheel to pierce the body of the operator. (T. 67-70, 71) No penalty was proposed for the failure to equip the machine with periphery guards. An unadjusted penalty of $230.00 based on the gravity of the violation for not providing a flange, was, after reductions of statutory credits, adjusted to a proposed penalty of $65.00. (T. 71-72)

The following violations of federal safety standards were observed [*24] by Officer Wilson during his inspection, and are admitted by Respondent. No penalties were proposed for these violations.

a. Item 4 of Citation - 1910.106(e)(2)(iv)(a)

Four cans containing acetone, a flammable material, were open when not in use in the canoe finishing and molding rooms. (Exh. C-8, marked "X", T. 113; T. 112, 113)

Respondent admitted this violation (T. 114; Exh. C-2, Admission No. 10) The hazard involved was one of fire.

b. Item 5 of Citation - 1910.213(a)(11)

Officer Wilson observed a Rockwell Sander and a Wren Sander in the canoe finishing room. These sanders were not grounded as required by the standard. (T. 122, 123, 124, 125, 127, 129) Respondent admitted that these sanders were not grounded with a separate ground wire, polarized plug and receptacle (Exh. C-2, Admissions Nos. 14, 15, 16, 17, 18, 19, 20; T. 122) The hazard involved was the possibility of electric shock to an employee using ungrounded electric tools. (T. 124)

c. Item 6 of Citation - 1910.242(a)

Respondent admitted that two 1/4 inch electric drills had current carrying wires which were exposed and chafing the drill handles. (T. 129-130; Exh. C-2, Admission No. 22). The [*25] hazard to an employee was electric shock.

d. Item 8 of Citation - 1910.157(a)(5)

Respondent admitted that a carbon dioxide portable fire extinguisher in the canoe finishing room was standing on the floor, and not mounted on brackets or hangers, or on a cabinet or shelf. (T. 141; Exh. C-2, Admission No. 26) The hazards were the possible inability of an employee to find the extinguisher quickly if needed to fight a fire; and a danger of the extinguisher "shooting" around the room if it fell over and dislodged its valve. (T. 142)

e. Item 16 of Citation - 1910.219(e)(3)(i)

Respondent admitted it did not have guards at the inrunning nip points of the sanding belts of a two drum sander in the canoe finishing room. (T. 181; Exh. C-2, Admission No. 33)

The hazard involved was the possibility of an employee's fingers or clothing being caught at the unguarded nip points. (T. 182)

f. Item 17 of Citation - 1910.308, 309(a)

Respondent withdrew its contest to this item during the hearing. (T. 184-186)

g. Item 18 of Citation - 1910.22(b)(2)

Respondent withdrew its contest to this item during the hearing. (T. 184-186)

The remaining violations are admitted by Respondent, [*26] except in one instance, and proposed penalties have been recommended.

a. Item 3 of Citation - 1910.106(d)(2)(i)

Officer Wilson observed flammable materials, acetone and resin paints, in the canoe molding room which were not stored in approved containers. (T. 81; Exh. C-6)

Acetone was stored in a "shell" can (See Exh. C-6), the other cans contained a resin paint. The flash paint of the acetone, as taken from the manufacturers label, was between 70 and 99 degrees. The resin paints were specified by the manufacturer as Class 1C flammable. (T. 81-83)

Respondent admitted that the acetone was not stored in an approved container; and that the acetone had a flash paint below 140 degrees F and a vapor pressure not exceeding 40 pounds per square inch at 100 degrees F. (T. 84; Exh. C-2), Admissions Nos. 7, 8, 9, 10, 11) Respondent attempted to establish that the flash paint of the resin paints did not bring it within the definition of a flammable liquid (29 CFR 1910.106(a)(19)) (T. 88-93, 110; Exhbs. R-1, R-2, R-3, R-4)

The hazard of flammable materials, acetone and resin paints being stored in unapproved containers is fire from accidental spillage. (T. 85)

The unadjusted penalty [*27] of $230.00 based on the gravity of the violation, was reduced by statutory and abatement credits to a proposed penalty of $60.00. (T. 86)

b. Item 7 of Citation - 1910.157(d)(3)(ii)

Respondent admitted that two Class A fire extinguishers removed from the canoe finishing room for maintenance were not replaced by spare extinguishers; and that there were no other Class A extinguishers in the canoe finishing room. (T. 131-132; Exh. C-2, Admissions Nos. 24, 25)

The hazard was the lack of Class 1A fire extinguishers when needed in case of fire. (T. 133)

The unadjusted penalty of $130.00 based on the gravity of the violation, was reduced by statutory and abatement credits to $35.00. (T. 135-136)

c. Item 9 of Citation - 1910.242(b)

Officer Wilson observed an air hose in the canoe finishing room. (T. 143) Wilson was told by Respondent's foreman that the air hose was used by one employee on Saturdays to clean dust and dirt out of motors and machinery. The pressure used in this cleaning operation was between 75 and 80 pounds. (T. 143, 149-151)

The hazard is the danger that dust and dirt subjected to high air pressure in a cleaning operation, can penetrate the body or eyes [*28] of an employee. (T. 144)

An unadjusted penalty of $140.00, based on the gravity of the violation, was reduced by statutory and abatement credits to $40.00. (Exh. C-4)

d. Item 12 of Citation - 1910.213(h)(1)

Officer Wilson observed a radial saw in the canoe finishing room which was not equipped with a guard to cover the lower exposed sides of the saw blade. The machine was used for woodworking purposes. (T. 151) Respondent admitted that the radial saw was not equipped with a guard for the lower exposed portion of the blade. (Exh. C-2, Admission No. 31)

The hazard was the danger of an operator's fingers or hands being cut or amputated by the unguarded exposed lower portion of the saw blade. An unadjusted penalty of $155.00 based on the gravity of the violation, was reduced by statutory and abatement credits to a proposed penalty of $45.00. (T. 152)

e. Item 13 of Citation - 1910.213(h)(4)

Officer Wilson further observed that the cutting head of the radial saw failed to return to its starting position when extended and released. (T. 160-161) Respondent admitted that this saw was used for woodworking purposes in the canoe finishing room; and that it was not installed [*29] to provide for the return of the cutting head to its starting position when released by the operator. (Exh. C-2, Admission No. 32; T. 160)

The hazard involved was possible cutting and amputation injuries to the hand or fingers of the operator. (T. 161) The unadjusted penalty of $170.00, based on the gravity of the violation, was reduced by statutory and abatement credits to $50.00. (T. 161)

f. Item 14 of Citation - 1910.213(p)(4)

Respondent admits this violation and questions only the proposed penalty of $30.00. (T. 170; Exh. C-2, Admission No. 33)

This machine (Exh. C-10), a belt sander, was seldom used. (T. 169) The hazard involved was the danger of an employee catching his fingers, hand or clothing at the unguarded nip points. (T. 167-168)

The unadjusted penalty of $100.00, based on the gravity of the violation, was reduced by statutory and abatement credits to $30.00. (T. 168)

g. Item 15 of Citation - 1910.106(e)(6)(ii)

Officer Wilson observed 55 gallon drums containing resin and acetone, Class 1 flammables, in the canoe molding room, and in a separate storage room. The flammable materials were transferred or decented from one container to another without [*30] the containers being electrically interconnected to neutralize possible static electric charges. (T. 174, 176) Respondent admitted that the containers were not electrically interconnected; and that the materials in the containers were flammables (Exh. C-2) (Admission Nos. 24-27). The hazard was the possibility of a static electric charge, not properly grounded, creating a flash fire when the flammable liquids were being poured from one container to another. (T. 176)

An unadjusted penalty of $170.00 based on the gravity of the violation, was reduced by statutory and abatement credits to a proposed penalty of $50.00. (Tr. 178)

h. Item 21 of Citation - 1904.5(d)(1)

Officer Wilson found, and Respondent admitted, that a copy of OSHA Form 102 (Annual Summary of Injuries and Illnesses) was not posted at the work site. (T. 186-188; Exh. C-2, Admission No. 44)

A mandatory penalty of $100.00 was proposed for the violation. (T. 189)

i. Item 22 of Citation - 1910.132(a)

This alleged violation was withdrawn by Complainant during the hearing. (T. 207)

OPINION

Respondent was cited for twenty-two violations of federal safety and health standards after an inspection of its [*31] workplace on February 20, 1973. Respondent contested the Citation and the proposed monetary penalties.

Respondent's basic argument is that its workplace has been free of accidents, injuries and sicknesses, and is safe. Therefore, Respondent should not be compelled to comply with federal safety and health standards unless the Complainant can establish that compliance with the standards would render Respondent's workplace safer than it is. If Complainant should fail to carry this burden, the safety and health standards should not be mandatory but should be a suggested optional way of providing a safe workplace. (Respondent's letter of July 13, 1973, Item J-8 of file; T.221)

Whatever merit this argument may have had prior to the passage of the Occupational Safety and Health Act, it has no merit now. The Act specifies that federal safety and health standards must be complied with by every employer who is engaged in a business affecting commerce, and who has employees. No one who is in the private sector of business and who comes within the definition of an "employer" is exempt from the Act, or the safety and health standards adopted by the Act.

Although compliance with safety [*32] and health standards is mandtory, a Respondent is not left without certain avenues of relief. Section 6(d) of the Act permits an employee to seek a variance from the Secretary of Labor, where the employer can establish at a hearing that the "conditions, practices, means, methods, operations or processes used or proposed to be used . . . will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard".

Further, at a hearing contesting a citation, an employer can, as an affirmative defense, establish by a preponderance of the evidence, that compliance with a federal safety and health standard would create conditions more hazardous for employees at the workplace than otherwise oxist.

Respondent neither sought a variance nor established at the hearing that compliance with the standard or standards at issue would create more hazardous conditions for its employees.

The Violations Cited

Respondent was cited with twenty-two nonserious violations of federal safety and health standards. These violations are [*33] set forth in the Citation as separate "items" numbered 1 to 22. The contest to items 17 and 18 which allege violations of 29 CFR 1910.308, and 309(a), and 29 CFR 1910.22(b)(2), was withdrawn by Respondent during the hearing, and are affirmed. Item 22 of the Citation which alleged a violation of 29 CFR 1910.132(a) was withdrawn by Complainant during the hearing, and is vacated.

The existence of the remaining violations is not seriously questioned and for the most part are admitted by Respondent.

A. Machine Violations

1. Disc Sander - Item 1 of Citation - 29 CFR 1910.213(p)(3)

Respondent admits that the disc sander in the canoe finishing room was not equipped with a guard enclosing the lower unused portion of the disc. (Exh. C-2, admissions Nos. 1, 2; Exh. C-3) Complainant's evidence also establishes this violation. (T. 22-28, 32-49)

This machine was used two or three times a day for several minutes each time by one employee. (T. 24, 34, 35, 41, 45) The hazard involved the possible accidental contact by the hand of the operator with the lower unguarded portion of the revolving disc, causing probable cuts and abrasions of the hand.

The gravity of the violation [*34] is deemed minimal taking into consideration that one employee is involved, that the machine is used for several minutes two or three times a day; that there is no history of any injuries caused by the machine; and that the probability of an injury is low. The proposed penalty of $30.00 is vacated and a zero penalty assessed.

2. Double Ended Bench Grinder - Items 2, 10, 11, 19, 20 of Citation - 29 CFR 1910.133(a)(1), 1910.215(a)(2), 1910.215(a)(4), 1910.215(b)(9), 1910.215(a)(3)

A double ended bench grinder in Respondent's tool room gave rise to the above five safety violations (Exh. C-5). Respondent admitted the violations (Exh. C-2, admissions Nos. 3, 4, 6, 29, 30, 42, 43).

The double ended bench grinder was infrequently used by Respondent's foreman, Leo Touchett, to sharpen tools. When using this machine, Mr. Touchett did not use safety glasses, and none were provided by Respondent. 29 CFR 1910.133(a)(1) requires that suitable eye protectors must be provided by an employer, and used by an employee when there is reasonable probability of eye injury which can be prevented by the use of such protectors. There is always the probability that in a tool grinding operation [*35] any injury to an employee's eyes is serious. The proposed penalty of $65.00 recommended and computed by Complainant on the basis of the gravity of the violation, Respondent's size, prior history and good faith, is accepted, and the penalty affirmed.

The violations of 29 CFR 1910.215(a)(2) and 1910.215(a)(3) involve the failure by Respondent to equip the double ended sander with a spindle end and nut guard, and a flange to support one of the grinding wheels. These violations carry, respectively, recommended proposed penalties of $50.00 and $65.00. The hazard is the same for both violations, to wit: fracturing of the grinder's wheel causing flying pieces of the wheel to contact and penetrate the operator's body.

Considering the limited and infrequent use of this machine by one employee, the absence of any injuries caused by the machine, and the low probability of any injury occurring, the gravity of these violations is deemed low. The low gravity, Respondent's small size, no prior history, good faith, and abatement, permits the proposed $50.00 penalty for the violation of 1910.215(a)(2) to be vacated, and the proposed $65.00 penalty for the violation of 1910.215(a)(3) to be affirmed [*36] to cover both violations.

No penalties were recommended for the violation of 1910.215(a)(4) and 1910.215(b)(9). Zero penalty recommendations are not contested, and are not here in issue.

3. Portable Electric Sanders - Item 5 of Citation - 29 CFR 1910.213(a)(11)

The evidence established and Respondent admitted that two electric portable sanders used in the canoe finishing room for woodworking purposes were not grounded as required by the standard. No penalty was recommended for this violation.

4. One-quarter Inch Electric Drills - Item 6 of Citation - 29 CFR 1910.242(a)

The evidence establishes and Respondent admits that a 1/4-inch electric drill used in the canoe finishing room, and one used in the tool room had current carrying wires which were exposed and in contact with the handles of the drills. No penalty was recommended for this violation.

5. Radial Saw - Items 12 and 13 of Citation - 29 CFR 1910.213(h)(1) and 1910.213(h)(4)

The evidence establishes, and Respondent admits that the lower exposed blade portion of a radial saw used for woodworking purposes in the canoe finishing room, was not equipped with a guard; and that the radial [*37] saw was not installed in such a manner as to permit the cutting head to return to its starting position when released by the operator.

Radial saws unless properly guarded and installed as required by the standards are dangerous to an operator. The hazard is the probability of finger and hand amputation, if an accident occurs due to the lack of blade guards or improper installation.

Due to the high gravity of the violation, the recommended penalty of $45.00 for the violation of 1910.213(h)(1), and the recommended penalty of $50.00 for the violation of 1910.213(h)(4) are accepted, and affirmed. In arriving at the penalties, the statutory factors, and abatement were considered. (Exh. C-4)

6. Belt Sanders - Item 14 of Citation - 29 CFR 1910.213(p)(4)

The evidence establishes and Respondent admits that a belt sander used for woodworking purposes in the canoe finishing room was not equipped with a guard at the nip points area of the sander. This machine is seldom if ever used. The hazard is the possibility of an employee catching his fingers, hand and clothing at the unguarded nip points area of the machine.

Considering the seldom use of this machine, the absence [*38] of any injuries caused by the machine, and the low probability of an accident occurring, the gravity of this violation is deemed low. The low gravity, Respondent's small size, prior history, good faith, and abatement permits the proposed penalty of $30.00 to be vacated and a zero penalty assessed.

7. Two Drum Sander - Item 16 of Citation - 29 CFR 1910.219(e)(3)(i)

The evidence establishes and Respondent admits that the inclined V-belts of a two drum sander in the canoe finishing room was unguarded at the in-running nip points. The hazard is similar to that for the belt sander, supra. No penalty was recommended for this violation.

B. Flammable Materials, and Fire Protection

1. Flammable Material Storage - Item 3 of Citation - 29 CFR 1910.106(d)(2)(i)

Officer Wilson observed five containers in the canoe molding room. (Exh. C-6) The "shell" can contained acetone. Respondent admitted that this container was not an approved container, and that the acetone came within the definition of flammable liquids (1910.106(a)(19)) required to be stored in an approved container.

The other four containers held a resin paint which was specified as a Class 1C [*39] flammable by the manufacturer. These containers were not approved containers for the storage of flammable liquids. The evidence established that the resin paints came within the flash point definition of a flammable liquid under OSHA testing, and were required to be stored in an approved container. (Exhs. R-1, R-4)

The hazard of storing flammable materials in unapproved containers is fire. Chemical fire hazards are most always serious, and Federal Standards must be complied with to minimize such hazards. Complainant's proposed penalty of $60.00 for this violation is based on the gravity of the violation, Respondent's size, prior history, good faith, and abatement. The penalty is accepted and affirmed.

2. Open Container Storage of Flammable Liquids - Item 4 of Citation - 29 CFR 1910.106(e)(2)(iv)(a)

The evidence establishes, and Respondent admits that acetone when not in use in the canoe finishing room and the canoe molding room, was stored in open containers. (Exh. C-8, marked "X") The hazard is fire. No penalty was recommended for this violation.

3. Ungrounded Containers of Flammable Liquids - Item 15 of Citation - 29 CFR 1910.106(e)(6)(ii)

The [*40] evidence establishes, and Respondent admits that 55-gallon drums of resin paints and acetone, Class 1 flammables, in the canoe molding room, and the storage room were not electrically interconnected with receiving containers when the liquids were decanted from one container to the other.

The hazard is the possibility of an ungrounded static electric charge igniting the flammable liquid when it is decanted from storage container to receiving container.

A recommended penalty of $50.00 based on the gravity of the violation, Respondent's size, prior history, good faith and abatement, is accepted and affirmed.

4. Portable Class A Fire Extinguishers - Item 7 of Citation - 29 CFR 1910.157(d)(3)(ii)

The evidence establishes and Respondent admits that two Class A fire extinguishers which were removed from the canoe finishing room for maintenance were not replaced by spare extinguishers. There were no other Class 1A extinguishers in the canoe finishing room. There was one in an adjoining room about 45 to 50 feet away. The hazard involved the loss of time in seeking a removed extinguisher in case of fire.

A proposed penalty of $40.00 is recommended. Although time wasted [*41] looking for a fire extinguisher that had been removed and not replaced can be serious in case of fire, the gravity of the instance violation is low. There was another Class 1A extinguisher 45 to 50 feet away, and there was a Class 1C extinguisher in the room. Considering the low gravity, Respondent's size, prior history, good faith and abatement, the proposed penalty is vacated and a zero penalty assessed.

5. Carbon Dioxide Portable Extinguisher - Item 8 of Citation - 29 CFR 1910.157(a)(5)

Respondent admits that a carbon dioxide portable fire extinguisher in the canoe finishing room was not mounted on brackets or hangers, or on a cabinet or shelf. No penalty was recommended for this violation.

D. Miscellaneous Violations

1. Air Pressure Hose - Item 9 of Citation - 29 CFR 1910.242(b)

The evidence establishes that an air hose located in the canoe finishing room, was used by one employee on Saturdays to clean dust and dirt from motors and machinery. The air pressure used for the cleaning was between 75 to 80 p.s.i., and the employee doing the cleaning was not protected by personal protective equipment.

The hazard was the probability that particles [*42] of dust, dirt or metal chips blown about by excessive air pressure could penetrate the body and eyes of the air hose operator.

A recommended penalty of $40.00 based on the gravity of the violation, Respondent's size, prior history, good faith and abatement, is accepted and affirmed.

2. OSHA Form 102 - Item 21 of Citation - 29 CFR 1904.5(d)(1)

The evidence establishes and Respondent admits that a copy of OSHA Form 102 (annual summary of injuries and illnesses) was not posted at the workplace. The form if posted would have been blank as there were no injuries or illnesses to report. The proposed penalty of $100.00 for this violation was mandatorily set without considering the statutory factors set forth in 17(j) of the Act. The proposed penalty is therefore vacated as contrary to the provisions of the Act.

Considering Respondent's size, prior history, good faith, and the de minimus gravity factor of the violation, no penalty is assessed for this violation.

Complainant has carried his burden of proof and established all the violations contested. The proposed penalties vacated relieve Respondent of the burden of paying a penalty but does not relieve Respondent of [*43] the duty of complying with the standards involved.

FINDINGS OF FACT

The credible evidence and the record as a whole establish substantial proof of the following specific findings of fact.

1. Respondent, Stowe Canoe Company, Inc., is incorporated in the State of Vermont Corporation, and has its principal office for business at Stowe, Vermont. (T. 14; Court Exh. 1)

2. Respondent received materials from, and sold manufactured goods, outside the State of Vermont. (T. 4; Court Exh. 1)

3. At all times relevant herein, Respondent employed eight full-time employees and two part-time employees. (T. 4; Court Exh. 1)

4. Respondent's gross income for the year 1972, was $68,000. (T. 4; Court Exh. 1)

5. At all times relevant herein Respondent owned, controlled or operated the workplace, and the machinery located therein.

6. Respondent's workplace at Stowe, Vermont was inspected by Occupational Safety and Health Compliance Officer, Boyd H. Wilson, on February 20, 1973. (T. 13)

7. The following violations existed at Respondent's workplace on February 20, 1973.

a. A disc sander in the canoe finishing room was not equipped with a guard over the lower unused portion of the [*44] revolving disc. (T. 22-26, Exh. C-3; Exh. C-2, admissions Nos. 1, 2)

b. The operator of a double ended bench grinder was not supplied with, and required to use, protective eye glasses when operating the machine to sharpen tools. (T. 50-54, 57, Exh. C-5; Exh. C-2, admission Nos. 3, 4, 6)

c. The double ended bench grinder was not equipped with a guard to cover the spindle end and nut. (Exh. C-5; Exh. C-2, admission No. 29)

d. The double ended bench grinder had work rests which were set at an opening greater than 1/8-inch from the grinding wheel. (Exh. C-2, admission No. 30)

e. The double ended bench grinder was not equipped with a periphery guard which could be adjusted to a maximum of 1/4-inch from the wheel periphery. (Exh. C-2; admission No. 42)

f. One wheel of the double ended bench grinder was not equipped with a flange. (Exh. C-2, admission No. 43)

8. Acetone and resin paints, flammable materials, were not stored in approved containers in the canoe molding room. (T. 80-101, 108, 109; Exhs. R-1, R-2, R-3, R-4, Exh. C-2, admission Nos. 7, 8, 9)

9. Acetone, a flammable material, when not in use in the canoe molding room, was stored in open containers. (T. 109-122, [*45] Exh. C-8; Exh. C-2, admission Nos. 9, 10, 11, 12, 13)

10. Two Class A fire extinguishers were removed from the canoe finishing room and not replaced by spare extinguishers. (T. 131-141, Exh. C-2, admission Nos. 24, 25)

11. A carbon dioxide portable fire extinguisher in the canoe finishing room was not mounted on a hanger or brackets, or on a shelf or cabinet. (Exh. C-2, admission No. 26)

12. A Rockwell sanuer and a Wren sander in the canoe finishing room operated at more than 90 volts to ground, were not grounded with a separate wire, and polarized plug and receptacle. (T. 122; Exh. C-2, admission Nos. 14, 15, 16, 17, 18, 19, 20)

13. Two 1/4-inch portable electric drills used in the canoe finishing room had exposed current carrying wires chafing the drill handles. (T. 129-130; Exh. C-2, admission Nos. 22, 23)

14. A radial saw in the canoe finishing room was not installed to permit the cutting head to return to its starting position when released by the operator, and was not equipped with a guard to cover the lower exposed portion of the saw blade. (T. 160-161, 151; Exh. C-2, admission Nos. 31, 32)

15. A compressed air hose in the canoe finishing room, used for cleaning [*46] motors and machinery, was operated at pressures greater tha 30 p.s.i. (T. 143-151; Exh. C-2, admission No. 27)

16. A belt sander in the canoe finishing room was not equipped with a guard at the nip points area. (T. 166, Exh. C-10; Exh. C-2, admission No. 33)

17. An inclined double V-belt on a two drum sander was not enclosed by a guard at the nip point area. (T. 181-182)

18. Flammable acetone, and resin paints were dispensed from 55-gallon drums into receiving cans without electrically interconnecting the dispensing nozzles with the receiving cans. (T. 174-181; Exh. C-2, admission Nos. 34-37)

19. OSHA Form 102 (annual summary of injuries and illnesses) was not posted at Respondent's workplace. (T. 186-188; Exh. C-2, admission No. 44)

20. Respondent at the hearing withdrew its Notice of Contest to items 17 and 18 of Citation. (T. 184-186)

21. Complainant withdrew at the hearing, item 22 of the Citation. (T. 207)

CONCLUSIONS OF LAW

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

2. The Occupational Safety and Health Review [*47] Commission has jurisdiction over the subject matter of, and parties to, this action.

3. Respondent, on February 20, 1973, at its workplace at Stowe, Vermont, was in violation of the following occupational safety and health standards which are set forth and described in the Citation issued to it on March 8, 1973:

Item 1 29 CFR 1910.213(p)(3)

Item 2 29 CFR 1910.133(a)(1)

Item 3 29 CFR 1910.106(d)(2)(i)

Item 4 29 CFR 1910.106(e)(2)(iv)(a)

Item 5 29 CFR 1910.213(a)(11)

Item 6 29 CFR 1910.242(a)

Item 7 29 CFR 1910.157(d)(3)(ii)

Item 8 29 CFR 1910.157(a)(5)

Item 9 29 CFR 1910.242(b)

Item 10 29 CFR 1910.215(a)(2)

Item 11 29 CFR 1910.215(a)(4)

Item 12 29 CFR 1910.213(h)(1)

Item 13 29 CFR 1910.213(h)(4)

Item 14 29 CFR 1910.213(p)(4)

Item 15 29 CFR 1910.106(e)(6)(ii)

Item 16 29 CFR 1910.219(e)(3)(i)

Item 17 29 CFR 1910.308, 309(a)

Item 18 29 CFR 1910.22(b)(2)

Item 19 29 CFR 1910.215(b)(9)

Item 20 29 CFR 1910.215(a)(3)

Item 21 29 CFR 1904.5(d)(1)

4. Respondent was not in violation of 29 CFR 1910.132(a) (item 22 of Citation) on February 20, 1973, at its workplace at Stowe, Vermont.

5. The following proposed monetary penalties computed and assessed pursuant to the requirement [*48] of Section 17(j) of the Act for items 2, 3, 7, 9, 12, 13, 15, 20, are proper and reasonable:

Item 2 of Citation -penalty $65.00

Item 3 of Citation - penalty $65.00

Item 7 of Citation - penalty $35.00

Item 9 of Citation - penalty $40.00

Item 12 of Citation - penalty $45.00

Item 13 of Citation - penalty $50.00

Item 15 of Citation - penalty $50.00

Item 20 of Citation - penalty $65.00

5. Complainant having withdrawn the Citation (item 22) for a violation of 29 CFR 1910.132(a), the proposed penalty of $55.00 for that violation is vacated.

6. Complainant, computed and assessed a proposed penalty for a violation of 29 CFR 1904.5(d)(1) (item 21 of Citation) contrary to the provision of the Act. The recommended penalty of $100.00 is vacated. Based on the statutory factors set forth in Section 17(j) a zero penalty is assessed for this violation.

7. The proposed penalties of $30.00 and $50.00 respectively, recommended for the violations of 29 CFR 1910.213(p)(3) (item 1 of Citation), and 29 CFR 1910.215(a)(2) (item 10 of Citation) are not accepted as reasonable and proper. The penalties for these violations upon cosideration of the statutory factors in Section 17(j) of the Act, [*49] are reduced to zero.

8. The proposed penalty of $30.00 for the violation of 29 CFR 1910.213(p)(4) (item 14 of the Citation) is not accepted as resonable or proper. A zero penalty is assessed upon consideration of the statutory factors of Section 17(j) of the Act.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the following violations of the occupational safety and health standards listed and described in the Citation issued on March 8, 1973, to Respondent by Complainant are affirmed:

Item 1 29 CFR 1910.213(p)(3)

Item 2 29 CFR 1910.133(a)(1)

Item 3 29 CFR 1910.106(d)(2)(i)

Item 4 29 CFR 1910.106(e)(2)(iv)(a)

Item 5 29 CFR 1910.213(a)(11)

Item 6 29 CFR 1910.242(a)

Item 7 29 CFR 1910.157(a)(3)(ii)

Item 8 29 CFR 1910.157(a)(5)

Item 9 29 CFR 1910.242(b)

Item 10 29 CFR 1910.215(a)(2)

Item 11 29 CFR 1910.215(a)(4)

Item 12 29 CFR 1910.213(h)(1)

Item 13 29 CFR 1910.213(h)(4)

Item 14 29 CFR 1910.213(p)(4)

Item 15 29 CFR 1910.106(e)(6)(ii)

Item 16 29 CFR 1910.219(e)(3)(i)

Item 17 29 CFR 1910.308, 309(a)

Item 18 29 CFR 1910.22(b)(2)

Item 19 29 CFR 1910.215(b)(9)

Item 20 29 CFR 1910.215(a)(3)

Item 21 29 CFR 1904.5(d)(1); it [*50] is further

ORDERED that the specific penalties recommended for the following violations of the Citation are affirmed:

Item 2 $65.00

Item 3 $65.00

Item 7 $35.00

Item 9 $40.00

Item 12 $45.00

Item 13 $50.00

Item 15 $50.00

Item 16 $65.00; it is further

ORDERED that the recommended penalty of $100.00 for item 21 of the Citation is vacated, and a zero penalty assessed; it is further ORDERED that the recommended penalty of $30.00 for item 1 of the Citation is vacated and a zero penalty assessed; it is further ORDERED that the recommended penalty of $50.00 for item 10 of the Citation is vacated, and a zero penalty assessed; it is further

ORDERED that the Citation for a violation of 29 CFR 1910.132(a) (item 22), and the proposed penalty of $55.00 for the alleged violation, are vacated, it is further

ORDERED that the proposed penalty of $30.00 for the violation of 29 CFR 1910.213(p)(4) (item 14) is vacated, and a zero penalty assessed.

JEROME C. DITORE, JUDGE, OSAHRC

Dated: March 1, 1974

New York, New York