Docket No. 2896

OMNI-METAL CASTINGS, INC.

OSHRC Docket No. 2896

Occupational Safety and Health Review Commission

July 28, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Ben D. Worcester, dated January 11, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than one year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The Commission agrees that Judge Worcester properly vacated item 2 of the "Citation" on the ground that the evidence was insufficient to establish a violation of 29 C.F.R. § 1910.106(e)(2)(ii)(b)(2). However, the Commission is equally divided on whether the Judge correctly vacated item 1 of the "Citation" alleging a nonserious violation of 29 C.F.R. § 1910.94(b)(3)(ii) and the "Citation for Serious Violation" alleging noncompliance with 29 C.F.R. § 1910.93(a)(2). Accordingly, the Judge's decision on these items is affirmed by an equally divided Commission. As to these items, this decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

Chairman Moran agrees with the Judge's determination that [*2] there was no violation of 29 C.F.R. § 1910.94(b)(3)(ii) since the evidence did not establish the presence of air contaminants at levels prohibited by 29 C.F.R. § 1910.93(a). He notes that the recent change in 29 C.F.R. § 1910.94(b)(2) apparently indicates that the Secretary of Labor also agrees with the Judge's decision on this matter. See 40 Fed. Reg. 24521-24522 (1975).

Chairman Moran is also in agreement with Judge Worcester's finding that the evidence is insufficient to establish that the respondent violated 29 C.F.R. § 1910.93(a)(2).

Commissioner Cleary's views are set forth in his separate opinion.

CLEARY, COMMISSIONER: I would reverse the Judge's decision insofar as it vacates the citations for noncompliance with 29 C.F.R. § § 1910.93(a)(2) n1 and 1910.94(b)(3)(ii). n2

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n1 The citation for this serious violation reads as follows:

Failure to limit employee exposure to coal tar pitch volatiles' which include the hydrocarbons which volatize from the distillation residues of coal, petroleum, wood and other organic matters. Location: Set-up area.

n2 The citation for this nonserious violation reads as follows:

Failure to provide abrasive cutting-off wheel with minimum exhaust volume given in table G-4. Location: Finishing area.

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I. Respondent - An employer under the Act

As a preliminary matter, I find it necessary to express my view that the Judge erred in finding that the evidence fails to establish that respondent is an employer subject to the Act.

The Secretary of Labor, in his complaint, paragraph III, alleged the following:

Since on or about February 20, 1973, many of the materials and supplies used by respondent corporation were manufactured outside of the State of New York and the respondent corporation was and is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act n3

Appended to the Secretary's complaint is a "Notice to the OMNI-METAL CASTINGS, INC." which, in substance, informs the respondent that it has 15 days from the receipt of the complaint to "plead or otherwise answer" by "either denying or admitting the allegations." n4

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n3 Section 3(3) of the Act provides, in pertinent part, as follows:

The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof . . . of between points in the same State but through a point outside thereof.

Section 3(5), as applicable, provides:

The term 'employer' means a person engaged in a business affecting commerce who has employees. . .

Although the complaint does not specifically allege that respondent has employees, the record makes it abundantly clear that such is the case.

n4 This "notice" effectively summarizes the requirements of Rule 33(b) of the Rules of Procedure of this Commission, 29 CFR § 2200.33(b).

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The respondent timely filed its answer denying specific paragraphs of the complaint either in whole or in part. Paragraph III of the complaint, which alleges facts of interstate commerce was not denied. Allegations in the complaint which are not denied in the answer are deemed admitted by this Commission under Rule 33(b) of our Rules of Procedure. Thus, since factual allegations establishing respondent as one engaged in a business affecting commerce were not denied, I find that those facts have been admitted, even if this be a matter of the Secretary's burden of proof. cf. Anchorage Plastering Co., No. 3322 (June 9, 1975).

Factual allegations, once admitted, no longer present issues to be tried and decided. In this case, therefore, complainant need not produce evidence to prove facts that were no longer at issue.

Although the Judge found that "there is no evidence of record showing that the respondent is an employer as defined in section 3 of the Act," he did not conclude that respondent was not an employer under the Act. Instead, the Judge went on to decide the case on the [*5] substantive issues. I would find that respondent is an employer within the meaning of the Act and therefore subject to its provisions.

II. The alleged non-compliance with the standard at 29 CFR § 1910.93(a)(2)

The respondent has been cited for an alleged non-compliance with 29 CFR § 1910.93(a)(2) n5 for failure to limit the exposure of its employees to coal-tar pitch volatiles. The complainant proposed a penalty of $550 for this alleged serious violation. The Judge vacated the citation and proposed penalty finding that the complainant had failed to sustain his burden of proof.

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n5 The standard at issue is a subsection of § 1910.93 "Air contaminants." The standard provides as follows:

§ 1910.93 Air contaminants

An employee's exposure to any material listed in table G-1, G-2, or G-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section. (a) Table G-1:

(2) Other materials - 8-hour time weighted averages. An employee's exposure to any material in table G-1, the name of which is not preceded by "C," in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table. Coal tar pitch volatiles is a substance or material not preceded by "C" in table G-1.

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During the inspection of respondent's facility, the compliance officer employed a "MSA personnel monitoring pump" to sample the air in the employee's breathing area. The samples taken were properly sealed and sent to the NIOSH n6 laboratories in Salt Lake City, Utah, for analysis. The results of these laboratory tests were received into evidence at the hearing as complainant's exhibit 1 and provided the source for calculations made by the compliance officer. He testified that his computations revealed an 8-hour time weighted average of employee exposure in excess of the permissable exposure provided in table G-1 in non-compliance with the standard at 29 CFR § 1910.93(a)(2). n7 Respondent did not object to the receipt of the NIOSH laboratory reports into evidence nor did it offer any evidence of its own to rebut the findings of the compliance officer.

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n6 Section 22(a) of the Act established the National Institute for Occupational Safety and Health (NIOSH) within the Department of Health, Education, and Welfare in order to carry out the purposes and policies expressed in section 2 of the Act and to perform the functions of the Secretary of HEW under sections 20 and 21 of the Act.

n7 In its brief of this Commission, the respondent notes that the compliance officer, during his testimony, referred to the standard as 0.2 milligrams per cubic liter rather than cubic meter. I do not consider this significant since the exhibits properly received into evidence demonstrate that all computations were done using cubic meters.

[*7]

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In deciding whether respondent violated the Act by failing to comply with the standard at issue, Judge Worcester chose to disregard the NIOSH laboratory reports which were the basis for complainant's evidence. The Judge stated:

The NIOSH laboratory reports and the Analyst Worksheets [of NIOSH] are admissable for the purpose of showing why a violation was alleged . . . but the substance of this documentary evidence (Exhibit C-1) must be disregarded. The person or persons who compiled this data were not present for cross examination. Their qualifications are unknown . . . . The ultimate test of admissability is whether the proffered evidence is reliable, probative, and relevant . . . Hearsay evidence is admissable in a hearing subject to the Administrative Procedure Act but an administrative law judge is empowered to exclude or disregard evidence which is not of the kind on which responsible persons rely in serious affairs. (Decision at 8; footnotes omitted.)

Citing the Supreme Court in Richardson v. Perales, 402 U.S. 389 (1971), it has previously been stated that uncorroborated hearsay [*8] "is sufficiently probative to support a finding of a violation" under the Act. B & K Paving Co., No. 59 (September 5, 1974); Copperweld Steel Co., No. 5110 (February 8, 1975) (concurring opinion). In Richardson v. Perales, the respondent was a claimant in a disability benefits claim hearing under the Social Security Act. The only evidence adverse to the claimant, upon which the eventual finding was based, consisted of unsworn medical reports of doctors who had examined Perales, but were not present at the hearing. The reports were uncorroborated but not inconsistent. Addressing itself to the hearsay nature of the evidence, the Supreme Court stated:

. . . a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised [*9] his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. n8

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n8 402 U.S. at 402.

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In the case before us, the respondent did not object to the receipt of the NIOSH laboratory reports into evidence; it did not offer evidence of its own to oppose the findings of the compliance officer based upon those reports; and it did not exercise its right to subpoena the person or persons at NIOSH responsible for the laboratory reports. n9 In short, the respondent has not chosen to attack either directly or indirectly the NIOSH laboratory reports. See also, Rule 803(24) of the new Federal Rules of Evidence.

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n9 Rule 55 of the Rules of Procedure of this Commission, in pertinent part, provides:

(a) Any member of the Commission shall, on the application of any party directed to the Commission, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence . . . Applications for subpoenas, if filed subsequent to the assignment of the case to a Judge, shall be filed with the Judge . . . Applications for subpoenas may be made ex parte.

[*10]

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I find, therefore, that the reports from the NIOSH laboratories constitute substantial evidence that supports the finding of a violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR § 1910.93(a)(2).

Complainant's compliance officer testified that, in his experience as an industrial hygienist who has done research and reviewed the literature in the area of carcinogenic materials, coal tar pitch volatiles, the air contaminant at issue in this violation, "have been shown to produce cancer in individuals exposed to airborne concentrations . . ." above the permissable level of 0.2 milligrams per cubic meter. In addition, we have constructive notice under the Federal Register Act of the Department of Labor's Standard of Occupational Exposure to Coke Oven Emissions, Notice of Proposed Rule-Making published at 38 Fed. Reg. 26207 (1973). The proposed rule is based upon a NIOSH document containing the criteria and recommended standard on occupational exposure to coke oven emissions (containing coal tar pitch volatiles). The NIOSH publication referenced in the notice states [*11] that prolonged exposure to coke oven emissions may cause lung, skin, and kidney cancer.

A serious violation of the Act, as defined in section 17(k), is deemed to exist when (a) respondent has violated the Act by failing to comply with a standard, (b) this non-compliance creates a hazard that could result in injury to an employee, (c) there is a substantial probability that such an injury could result in death or serious physical harm, and (d) respondent knew or, with the exercise of reasonable diligence, should have known of the presence of the violation. Standard Glass & Supply Co., No. 585 (April 27, 1973); Automatic Elevator Corp., No. 1049 (July 20, 1973); Emory H. Mixon, No. 403 (December 11, 1973).

In light of the carcinogenic properties of coal tar pitch volatiles, I find the violation to be "serious" under the above requirements.

III. The alleged non-compliance with the standard at 29 CFR § 1910.94(b)(3)

During the investigation of respondent's facility, an odor associated with the grinding operation attracted the attention of the compliance officer. He testified that "upon investigating this particular situation," he found respondent's employee [*12] "grinding metal parts on the grinding wheel" and either metal from the part being worked on or metal from grinding wheel was being "propelled into the worker's breathing area and projected as far as six feet from the source." Samples of the air in the breathing zone of the employee were taken, properly sealed, and sent to the NIOSH laboratories for analysis. In addition, the compliance office conducted a test to determine if the ventilation at the grinding wheel installation met the minimum exhaust volume required in Table G-4 in the standard at 29 CFR § 1910.94(b)(3)(ii). n10 The NIOSH laboratory reports revealed that particles of iron, molybdenum, and manganese were present in the air samples but not in amounts exceeding the air contaminants standard at 29 CFR § 1910.93(a). The ventilation test, however, indicated that the total exhaust volume in units of cubic feet per minute was significantly below the minimum required exhaust volume in Table G-4 and thus not in compliance with the standard.

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n10 The standard, in pertinent part, provides as follows:

Table G-4 - Grinding And Abrasive Cutting-Off Wheels
Wheel diameter (inches)	Wheel Width (inches)	Minimum Exhaust V

		(feet 3/min.)
To 9	1 1/2	220
Over 9 to 16	2	390
Over 19 to 24	3	500

The wheel used by respondent's employee was less than 9 inches in diameter and approximately 1 inch wide thus requiring an exhaust volume of two hundred and twenty cubic feet per minute. The ventilation test conducted by the compliance officer indicated a total exhaust volume at the grinding wheel installation of seventy cubic feet per minute.

[*13]

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Judge Worcester determined that the two standards, 29 CFR § 1910.93(a) - acceptable levels of specific air contaminants and 29 CFR § 1910.94(b)(3)(ii) - minimum exhaust level requirements, must be read in conjunction with each other. He concluded, therefore, that since the complainant was unable to prove the presence of air contaminants in sufficient quantities to be in non-compliance with subsection 1910.93(a), there can be no violation for non-compliance of the exhaust volume standard of subsection 1910.94(b)(3)(ii) even though, as the Judge stated, "a mathematical computation indicated that the velocity of ventilation was substandard." n11

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n11 Respondent, in its brief on review of the Judge's decision, contends that the standard at 29 CFR § 1910.94(b)(3)(ii) is "arbitrary and irrational." This argument was not made before or during the hearing and such an issue is not something jurisdictional to be raised at any stage of the proceedings. Cf. Puterbaugh Enterprises, Inc., No. 1097 (July 1, 1974).

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I do not agree. Nothing appears in either standard to indicate that they need be read conjunctively. Indeed, a fair reading of the exhaust volume provision indicates that its primary purpose is to prevent the precise situation observed by the compliance officer; that is, to prevent air contaminants from being thrown into the employee's breathing zone.

The standard, which is published at 29 CFR § 1910.94(b)(3)(ii) is a subdivision of paragraph 1910.94(b) prescribing generally standards for "Grinding, polishing, and buffing operations."

It is significant that section 1910.94(b) has as its source ANSI standard Z43.1-1966, Ventilation Control of Grinding, Polishing, and Buffing Operations. On the other hand section 1910.93 is taken from the Walsh-Healey regulations. See section 1910.99 showing the source of the standards. This is further indication that the standards should not be read together. The standards establish clearly separate obligations. Therefore, I would conclude that the complainant has met his burden of proof as to this citation, and find the respondent in non-compliance with [*15] the standard at 29 CFR § 1910.94(b)(3)(ii).

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises pursuant to a notice of contest filed by the Respondent, Omni-Metal Castings, Inc., under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. ) hereinafter called the Act. On April 28, 1973, a Citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act and the standards promulgated under the authority granted to the Secretary by the Act as hereinafter described. After the filing of a notice of contest by the Respondent, the Secretary's complaint and the Respondent's answer, the matter came on to be heard in New York, New York on September 5, 1973.

On February 20th and 28th 1973, Otto White, Jr. employed by the Secretary as an industrial hygienist made an inspection of the Respondent's foundry in Brooklyn, New York. He testified that he saw an employee in the finishing area using a grinding wheel which was neither covered nor ventilated sufficiently to prevent a harmful concentration of metal fragments from being propelled into [*16] the worker's breathing air. He also observed four 55 gallon drums containing an unspecified quantity of liquid which he assumed was flammable in a central location near what is known as the set up area.

Two nonserious violations were alleged based upon these observations and tests which were made by White. In Item 1 of the Citation and paragraph V(a) of the Complaint it was alleged that the Respondent had violated 29 CFR 1910.94(b)(3)(ii) through:

Failure to provide abrasive cutting-off wheel with minimum exhaust volume given in Table G-4. Location: Finishing Area.

This standard sets forth its requirements in the following manner:

(ii) Grinding wheels on floor stands, pedestals, benches, and special-purpose grinding machines and abrasive cutting-off wheels shall have not less than the minimum exhaust volumes shown in Table G-4 with a recommended minimum duct velocity of 4,500 feet per minute in the branch and 3,500 feet per minute in the main. The entry losses from all hoods except the vertical-spindle disc grinder hood, shall equal 0.65 velocity pressure for a straight takeoff and 0.45 velocity pressure for a tapered takeoff. The entry loss for the vertical-spindle disc [*17] grinder hood is shown in figure G-1 (following § 1910.94(b)). For any wheel wider than wheel diameters shown in Table G-4, increase the exhaust volume by the ratio of the new width to the width shown.

Table G-4-Grinding and Abrasive
Cutting-Off Wheels

	Wheel	Minimum
Wheel diameter (inches)	width	exhaust
	(inches)	volume
		(feet<3>/min.)
To 9	1-1/2	200
Over 9 to 16	2	390
Over 16 to 19	3	500
Over 19 to 24	4	610
Over 24 to 30	5	880
Over 30 to 36	6	1,200

White concluded visually that there was material being propelled into the worker's breathing area. In order to verify this conclusion, he used a testing device known as a Talnor junior velometer which measures liter velocity. He transmitted the test results and sample to the Federal testing laboratories in Salt Lake City, Utah for analysis. The report received from the laboratory revealed that particles of iron, molybdenum and manganese were present but not in sufficient quantities to constitute a violation of Section 93(a) which pertains to air contaminants. He did conclude, however, that test results showed that there was inadequate ventilation to [*18] keep employees' breathing area free of harmful airborne metallic material. It is not clear from White's testimony how he concluded that even though there was an absence of proof that the amount of airborne material present was not in excess of the limits specified in Section 93(a) and presumably, for that reason, not harmful to employees, that there was inadequate ventilation. The standard itself is vague. White obviously assumed that he must first ascertain that harmful air contaminants were present. If none were present, there would be no violation of Section 93(a). He admitted that the test results he received (although confirming his assumption that metal particles were present in the breathing area) showed that there was an insufficient quantity of foreign matter to be hazardous to employees under the provisions of Section 93(a) which specifies what the tolerable limits are. It follows that there was no exposure of employees working at the grinding wheel to metal particles in harmful quantities even though a mathematical computation indicated that the velocity of ventilation was substandard. An employer cannot be charged with failure to protect employees from [*19] hazards which don't exist.

In Item 2 of the Citation for nonserious violation of 29 CFR 1910.106(e)(2)(ii)(b)(2) it was alleged that there was:

Failure to limit the quantity of Class IB, II and III liquids to 120 gallons in one fire area of the building. Location: Liquid storage area left of Set-up Area.

This standard contains the following provisions:

(2) Incidental storage or use of flammable and combustible liquids-(i) Application. This subparagraph shall be applicable to those portions of an industrial plant where the use and handling of flammable or combustible liquids is only incidental to the principal business, such as automobile assembly, construction of electronic equipment, furniture manufacturing, or other similar activities.

(ii) Containers. Flammable or combustible liquids shall be stored in tanks or closed containers.

(b) The quantity of liquid that may be located outside of an inside storage room or storage cabinet in a building or in any one fire area of a building shall not exceed:

(2) 120 gallons of Class IB, IC, II, or III liquids in containers.

In paragraph V(b) of the Complaint it was alleged that the Respondent "failed to limit the quantity of [*20] Class IB, II and III liquids to 120 gallons."

The testimony of White reveals that this allegation is supported solely by his own conclusions. White was never asked to explain what Class IB, IC, and II liquids are, so there is no basis upon which to find that there were any such liquids present. He was never asked to define the word "flammable" n1 nor did he explain how he knew that the liquid was flammable. He didn't ascertain what the amount of liquid in the containers was. He just assumed that each was full for computation purposes and concluded that there was 220 gallons of liquid in one area because he saw four 55 gallon containers. He said:

The materials stored in this area consisted of acitone and silibonid or siliband -- I'm not certain which one it was, but it is a brand name or ethel silcate, and other materials which are indicated in the report. These materials were classified and it was determined that they represented a violation of Section 106, which limits 220 gallons, the amount of flammable combustible material which fall into the category of Class IB, II and III.

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n1 29 CFR 1910.106(e)(2) pertains to storage of flammable liquids.

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In the case of Secretary of Labor v. Deering Milliken, Inc.,

As 29 CFR 1910.262(pp) addresses itself exclusively to caustics and acids, the basic fact in issue in this case was whether the drums in question contained either one of those substances. Instead of offering proof of chemical analysis and expert testimony relating thereto, or some other equally acceptable proof, the Secretary chose to rely solely on the conclusion of the compliance officer, who admittedly was not a chemist, that the drums contained caustics because of the warning on the labels. While evidence of this conclusion was admissible to show why the charge was alleged, the conclusion, amounting, as it does, to an opinion on a scientific matter by a witness not qualified to render the opinion, literally collides head-on with basic rules governing the admissibility of opinion evidence and can be accorded no weight whatsoever on the basic fact in issue (see generally 32 CJS 438 thru 572; Richardson on Evidence, 9th Ed., Chap. XXII; see also Bridger v. Union [*22] Railway Co., 355 F2d 382 (6th Cir., 1966), Hausman Co., Inc. v. United States, 260 F. Supp. 860 (1966), and Brown and Root, Inc. v. Gragg et al, 444 SW 2d 656 (C.A. Tex., 1969)).

The Complainant has failed to sustain the burden of proof that the Respondent exposed its employees to quantities of flammable liquids in excess of the limits fixed by 29 CFR 1910.106(e)(2)(ii)(b)(2).

III

The Respondent was also charged with a serious violation of 29 CFR 1910.93(a)(2) through:

Failure to limit employees exposure to "coal tar pitch volatiles" which include the hydrocarbons which volatilize from the distillation residues of coal, petroleum, wood and other organic matters. Location: Set-up Area.

This standard contains the following provision:

§ 1910.93 Air contaminants.

An employee's exposure to any material listed in table G-1, G-2, or G-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(a) Table G-1:

(1) Materials with names preceded by "C" - Ceiling Values. An employee's exposure to any material in table G-1, the name of which is preceded by a "C" (e.g., C Boron trifluoride), shall at no [*23] time exceed the ceiling value given for that material in the table.

(2) Other materials-8-hour time weighted averages. An employee's exposure to any material in table G-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

The Secretary put this Citation in issue through an allegation in paragraph V of the Complaint which repeats the language of the standard almost word for word in this manner:

(c) On or about February 20, 1973 and on or about February 28, 1973 at 51st Street and 1st Avenue, Brooklyn, New York, the respondent corporation violated title 29 C.F.R. Part 1910.93(a)(2) in that the respondent corporation failed to limit employees' exposure to any material in table G-1 the name of which is not proceeded by "C" in any 8 hour work shift or a 40 hour workweek to a limit not in excess of the 8 hour time weighted average given for that material in the table.

The Complainant has failed to sustain the burden of proof that there was such a violation. The Citation alleged that there was exposure to "coal tar pitch volatiles." There must be proof that [*24] such an air contaminant was present. According to White the Respondent denied that coal tar pitch volatiles were produced by any manufacturing process utilized in its foundry. White, without ever defining the term "coal tar pitch volatiles," testified that on his first inspection he noticed that there was generation of smoke and fumes in the wax mold assembly area. He fastened an MSA personnel monitoring pump on two employees working in this department. This device, by means of a silver membrane filter, samples the air in the worker's breathing area. Upon completion of the sampling, the samples were sealed and sent to NIOSH laboratories in Salt Lake City, Utah. The Sample Identifications Sheets and Analyst Worksheets received from NIOSH laboratories were identified and admitted in evidence as Complainant's Exhibit 1. Two of the samples were taken on February 20, 1973. White testified that due to a power failure which interrupted testing on that day, these findings were disregarded. The other three samples (Sample Nos. X-9789, X-9790, and X-9791) were taken on February 28, 1973.

The NIOSH laboratory reports and the Analyst Worksheets are admissable for the purpose [*25] of showing why a violation was alleged (Secretary of Labor v. Deering Milliken, Inc. supra) but the substance of this documentary evidence (Exhibit C-1) must be disregarded. The person or persons who compiled this data were not present for cross examination. n2 Their qualifications for making these computations are unknown. The methods used (such as Parma standard method 1013) are not explained. There is no proof that the equipment used by White had been tested for accuracy before use. The ultimate test of admissibility is whether the proffered evidence is reliable, probative and relevant. n3 When the Administrative Procedure Act was under consideration by the Congress, Senator McCarran said:

You may go outside and get what would be secondary evidence, or hearsay; . . . but when you write your decision it must be based upon probative evidence and nothing else. If in the formation of your decision you consider other than probative evidence, your decision will be subject to being set aside by a court of review. n4

Hearsay evidence is admissible in a hearing subject to the Administrative Procedure Act but an administrative law judge is empowered to exclude or [*26] disregard evidence which is not of the kind on which responsible persons rely in serious affairs n5

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n2 Williapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 691 (9th Cir. 1949).

n3 "Abuses in admitting remote hearsay and irrelevant or unreliable evidence there surely have been; but the Committee, within the limits of its resources, has found no general pattern of departure from the basic principles of evidence among administrative agencies. The ultimate test of admissibility must be whether the proffered evidence is reliable, probative and relevant. The question in each case must be whether the probability of error justifies the burden of stricter methods of proof.

Discretion must be allowed to hearing commissioners just as it is to judges in equity proceedings; the latter are largely governed by principles of common sense and fairness. That strict adherence to standards of relevance and probative value should be observed needs no underscoring." Report of the Attorney General, Sen. Doc. No. 8, 77th Cong., 1st sess. 1941, p. 70.

n4 Senate Document No. 248, 79th Cong., 2nd sess., p. 320, (1946).

n5 Final Report of the Attorney General's Committee, page 50, Senate Document No. 8, 77th Cong., 1st sess. 1941; NLRB v. Remington Rand, Inc., 94 F.2d 862 (2d Cir. 1938, cert. den. 304 U.S. 576, 585 (1938).

[*27]

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The delay between inspection and citation was fully explained by White. The necessity of sending samples to Utah for analysis and the intervention of a major industrial accident which made OSHA personnel unavailable for immediate attention to the instant case show that there were exceptional circumstances which prevented more prompt action. For that reason, Respondent's Argument I must be rejected.

The Complainant's brief limits itself to the novel and unprecedented assertion that, unless both the Respondent and the court itself raise the issue of the Complainant's burden of proof before (emphasis added) the Complainant has concluded its case, the Government is relieved of this burden. It would be sufficient to say that the rule of law that a moving party must sustain the burden of proof is so well settled in all jurisdictions adhering to the principles of Anglo-Saxon jurisprudence for such a long time that, in the Elizabethan era, it was said that the memory of man runneth not to the contrary. There is no exception to this rule.

It is also well settled that the defendant in a cause of [*28] action may cure defects in the proceeding which deprive the court of jurisdiction of the person by appearing in open court. By so doing he has waived his right to deny jurisdiction. On the other hand a defendant cannot confer jurisdiction of the subject matter upon a court by consent. A court, if it finds that it lacks jurisdiction of the subject matter, is required to, sua sponte, dismiss the action at any stage of the proceeding. n6

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n6 United States v. B. & O.R.R. Co., 55 S. Ct. 268, 273 (1934).

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Having the burden of proof "the Secretary must be charged with these evidentiary deficiencies." n7 In the case at bar, although the Respondent did not deny the allegations of paragraphs I, II and III of the Complaint, the Secretary failed to adduce any proof that the Respondent is an employer engaged in commerce as defined in Sections 3(3) and 3(5) of the Act. The Respondent could not concede jurisdiction of the subject matter of this proceeding under the provisions of Section 10(c) through inaction (footnote [*29] 9 supra).

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n7 National Realty and Construction Company, Inc. v. Secretary of Labor, No. 72-1978, (D.C. Cir. December 13, 1973, at 17.)

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Upon consideration of the record as a whole, it is found and determined that:

1. There is no evidence of record showing that the Respondent is an employer as defined in Section 3 of the Act;

2. The Complainant has not sustained the burden of proof that the Respondent failed to provide its employees with safe and healthful working conditions on the 20th and 28th days of February, 1973, through exposure of its employees to excess amounts of air contaminants, fire hazards due to improper storage of flammable liquids; and excess amounts of air contaminants as alleged in paragraph V of the Complaint.

It is concluded, as a matter of law, that the Respondent did not violate Sections 1910.94(b)(3)(iii), 1910.106(e)(2)(ii)(b)(2), and 1910.93(a), Title 29, Code of Federal Regulations as alleged in the Complaint.

ORDER

It is therefore hereby ordered that the Citations and proposed [*30] penalty of $640.00 be vacated and that this proceeding be dismissed.