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OSHRC Docket No. 76-530

Occupational Safety and Health Review Commission

November 26, 1980


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Willis A. Siegfried, Jr., for the employer

Larry H. Mall, Chairman, Safety Committee, United Steelworkers of America, District 23 - Local Union 5724, for the employees

John E. Pugh, United Plant Guard Workers of America, Local 65, for the employees




This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Before us is a decision by Administrative Law Judge Donald K. Duvall that has been directed for review pursuant to section 12(j) of the Act. n1 The judge, among other things, vacated a citation alleging that Respondent, Ormet Corporation, was in other than serious violation of the Act for its failure to provide machine guarding on conveyor belts. The judge also vacated a citation which alleged Respondent's failure to separate oxygen cylinders from fuel-gas cylinders. Further, the judge concluded that violation of a standard requiring the maintenance of storerooms in a clean and orderly manner was not a repeated violation of the Act [*2] as had been alleged. The Secretary of Labor ("the Secretary") petitioned for review of the judge's decision, and Chairman Cleary directed review on the issues raised in the petition including:

1. Whether the Administrative Law Judge erred in concluding that the standard at 29 CFR 1910.212(a)(1) "has no applicability to conveyors and the equipment . . . pertinent thereto;"

2. Whether the Administrative Law Judge erred by holding that flouting must be found before a "repeated" violation is proven; and

3. Whether the Administrative Law Judge erred in vacating the violation alleged by item 38(g) of citation 1 on the ground that the exposure of employees to the unseparated, out-of-doors storage of one oxygen and one acetylene cylinder does not involve sufficient exposure to the hazard contemplated by the standard at 29 CFR 1910.252(a)(2)(iv)(c). n2

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n1 29 U.S.C. 661(i).

n2 In addition, the Secretary asks the Commission to correct two errors in the judge's decision. The Secretary notes that, in his discussion, the judge finds a violation as to item 38(f) of citation 1, but that the order portion of the judge's decision vacates item 38(f). The judge's vacation of this item was inadvertent and Respondent has not objected to this correction. We therefore modify the judge's decision to affirm item 38(f), but assess no additional penalty.

The Secretary also points out that he moved at the hearing to amend citation 4 and the penalty proposed for that citation and that Respondent moved to withdraw its notice of contest to the amended citation. The judge granted these motions on the record, but his order vacated citation 4. After he filed his decision with the Commission, the judge attempted to amend his order to correct this error. Because the judge no longer had jurisdiction over the case, the amendment to his order had no effect. Boston Gear, A Division of Murray Co., of Texas, Inc., 79 OSAHRC 38/E3, 7 BNA OSHC 1414, 1979 CCH OSHD P23,595 (No. 76-967, 1979); Singleton Sheet Metal Works, 73 OSAHRC 6/F6, 1 BNA OSHC 1062, 1971-73 CCH OSHD P15,273 (No. 878, 1972). A review of the record discloses the intent of the parties and Respondent does not oppose the affirmance of the citation and proposed penalty as amended by stipulation at the hearing. Accordingly, we note that citation 4 was amended, that the penalty was reduced to $100, and that Respondent withdrew its notice of contest to the amended citation and notice of penalty. Accordingly, the judge's decision is corrected to reflect that fact.


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As the result of an inspection of Respondent's aluminum manufacturing plant in Hannibal, Ohio, the Secretary issued thirteen citations to Respondent. Respondent filed a timely notice of contest to several of the citations, and a hearing was held before Judge Duvall on the contested items. Because each directed issue deals with a different factual situation, they will be discussed separately.


Item 37 of other than serious citation 1 alleged several instances of failure to comply with the standard at 29 C.F.R. 1910.212(a)(1). n3 Respondent contested parts (c), (e), and (i) of that item. Part (c) alleged a failure to guard the place where a conveyor belt passes beneath a chute on the first level of the hammer mill, and part (e) alleged a similar failure to provide machine guarding at the first level of the ball mill. Part (i) alleged a lack of guarding at five other locations where conveyor belts pass under chutes.

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n3 The standard reads as follows:

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.


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The relevant facts pertaining to these three parts are undisputed. The chutes in question empty either aluminum ore or cryolite onto conveyor belts. Although the height of the belts varies, they are all approximately waist-high. While the cited areas are not identical, they are similar.

In the hammer mill (part (c)) and the ball mill (part (e)), cryolite is transported by conveyor to machines that reduce the material in size and then empty it onto conveyors to move it to the next operation. The locations referred to by part (i), CB-1 (tailend), CB-1A, CB-2 (tailend), CB-5, and CB-6, are all parts of a conveyor system used to transport aluminum ore from an ore dock on the Ohio River to dispersal points in the plant.

Respondent's employees work near the cited locations while they are performing maintenance work on the belts, sweeping up material on the floor that has overflowed the belts, or walking the aisleways adjacent to the conveyors. These employees are all exposed to the condition the compliance officer believed to be hazardous.

There is a rubber skirt around three sides of the metal bottom [*5] of each chute at issue to prevent the ore from spilling. Each skirt extends about 1 to 1 1/2 inches below the metal and are located on all sides of the chute except the "downstream" or "discharge" side, the direction in which the belt is moving. The edges of the conveyor belt are angled upward to prevent the material on the conveyor from spilling onto the floor. The conveyors can be stopped by pulling cables running along the conveyors. The cables are located about 8 to 14 inches below the belts.

At the hearing, the compliance officer who conducted the inspection testified that a moving conveyor belt passing beneath the bottom of a chute creates an "ingoing nip point" that is hazardous to employees. The compliance officer testified that, depending on the amount of material on the belt, there would be an opening of 1/2 inch to 2 inches between the bottom of the chute and the top of the material on the conveyor. He testified that, at the time of the inspection, Respondent's safety director had expressed the opinion that no hazard existed.

The chairman of the safety committee for the union that represents Respondent's employees testified that the metal bottom of the chute is [*6] about 3 inches above the highest part of the belt. Respondent's safety director estimated that same distance as approximately 4 to 5 inches. The union representative further testified that it was possible for a worker's hand to enter the cited area from the side while the conveyor belts were moving. There was no testimony from anyone to explain how an employee's hand entering the cited area could be caught or why it simply could not be pulled out. Respondent's safety director testified that the rubber skirt around the base of the chute would act as a bumper to prevent injury.

Judge Duvall vacated parts (c), (e), and (i) on the ground that the cited standard does not apply to conveyor belts. He relied on the decision of another administrative law judge in United States Steel Corp., 77 OSAHRC 192/B12 (No. 15500, 1976) (ALJ decision), which was then pending review before the Commission. In that case the judge determined that the cited standard was not applicable to conveyors. Further, Judge Duvall observed that, if the Commission did not affirm the judge's decision in United States Steel Corp., he would find that the Secretary had proved a violation.

In his petition for [*7] review, the Secretary excepts to the judge's conclusion that the cited standard does not apply to conveyor belts, arguing that section 1910.212(a) is a general machine guarding standard that applies to all machines. The Secretary argues on review that the belts are part of Respondent's manufacturing process. Respondent, on the other hand, argues that (1) the cited standard is not applicable to conveyors, (2) the belts were not part of its manufacturing process but were merely part of a transportation system not contemplated by the standard, and (3) there is no evidence that its employees were exposed to the type of hazard the standard is intended to prevent.

In United States Steel Corp., 77 OSAHRC 192/B5, 5 BNA OSHC 2063, 1977-78 CCH OSHD P22,269 (No. 15500, 1977), the Commission set aside the judge's decision and indicated that section 1910.212(a)(1) applies to conveyor belts used in the production and manufacturing processes. n4 In this case we find that the transportation of ores through the milling stages or to areas where they will be stored or used is an integral part of the manufacturing process for aluminum. We therefore agree with the Secretary that the standard at [*8] section 1910.212(a)(1) applies to the cited conditions.

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n4 In United States Steel Corp., the two member Commission remanded the case to the judge to permit the record to be supplemented and to allow the judge to initially determine the standard's applicability.

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In order to establish a violation of section 1910.212(a)(1), the Secretary must prove, among other things, the existence of a hazard. E.g., Papertronics, Division of Hammermill Paper Co., 78 OSAHRC 54/C6, 6 BNA OSHC 1818, 1978 CCH OSHD P22,898 (No. 76-3517, 1978); A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA 1096, 1977-78 CCH OSHD P21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978). He must do so by a preponderance of the evidence. Armor Elevator Co., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (Nos. 425, & 426, 1973).

The only evidence of a hazard to employees is the compliance officer's opinion that the "nip points" presented a danger. n5 There is no evidence that an employee's hand or arm could be [*9] caught or pulled into the areas between the conveyors and chutes. We conclude that the existence of a hazard requiring the use of machine guarding on the conveyors has not been proven by a preponderance of the evidence on this record. Accordingly, we affirm the judge's vacation of items 37(c), (e), and (i) of citation 1. Because we have decided this issue on the failure to prove the existence of a hazard, we need not reach other arguments raised by the parties.

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n5 Despite the compliance officer's characterization, the places where the belts pass under the chutes are not ingoing nip points. The belts do not touch or intersect the bottoms of the chutes. The term "nip point" means "the point of intersection or contact of two opposed circular surfaces or a plane and a circular surface." American Society of Safety Engineers, Dictionary of Terms Used in the Safety Profession (1971).

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Citation 9 alleged a repeated violation of the standard at 29 C.F.R. 1910.22(a)(1) n6 for Respondent's failure to maintain storerooms [*10] in its Pierce warehouse department in a clean and orderly condition. The judge affirmed the violation but did not find it to be repeated as alleged. The only question before us on review is whether the violation is repeated within the meaning of section 17(a) of the Act. n7

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n6 That standard provides:

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

n7 Section 17(a), 29 U.S.C. 666(a), provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of note more than $10,000 for each violation.

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The record shows that the Pierce warehouse is actually two separate buildings, side by side, each of which is approximately 40 feet wide and 120 feet long. In the eastern end of the south building, there was electrical and [*11] mechanical equipment stored on wooden pallets 4 feet square. The pallets were pushed up against each other, and there were no aisleways between them to permit access to the equipment on the pallets in the rear. The equipment was not organized in any systematic way. There was no diagram at the site showing the location of specific equipment, so it was necessary to climb over the equipment in order to find a particular piece. The judge found that this condition constituted a violation of the standard at section 1910.22(a)(1).

The record contains a copy of a prior citation for noncompliance with section 1910.22(a)(1), alleging haphazard placement of equipment and materials in the Pierce warehouse. That citation was issued on April 2, 1974. Both the compliance officer and the chairman of the union's safety committee testified that the 1974 citation was uncontested. The union representative testified that the conditions underlying the two citations were similar. He said the same situation existed both times. The judge concluded that these facts did not justify a finding that the violation was repeated. Relying on Bethlehem Steel Corp. v. OSHRC and Brennan, 540 F.2d 157 (3d [*12] Cir. 1976), he concluded that the mere occurrence of a violation more than once did not constitute the "flaunting" necessary for a violation to be repeated.

The Secretary argues that the evidence leaves no doubt that the cited conditions constituted a violation. He argues that the working conditions covered by, and the standard cited by, the two citations were identical. He notes also that, inasmuch as the prior citation was uncontested, there was a prior final order for noncompliance with the same standard. The Secretary argues that this evidence is sufficient to find the violation repeated and that flouting of the Act need not be shown. Respondent argues that the situations covered by the two citations are not identical but were in different locations and involved different kinds of equipment. Respondent argues that two citations do not prove a "repeated" violation.

Subsequent to the issuance of the judge's decision, the Commission issued its decision in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979). There, the Commission stated, "A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated [*13] violation, there was a Commission final order against the same employer for a substantially similar violation." 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. Under Potlatch, the Secretary may make a prima facie showing of substantial similarity by proving that the violation alleged to be repeated and the antecedent violation were for noncompliance with the same standard. A respondent may then rebut this prima facie showing by introducing evidence that the violations are not substantially similar. The Commission recognized in Potlatch that some general standards may apply to a variety of working conditions and hazards, so that two violations of the same standard may not be, in fact, substantially similar. We observed that, when the Secretary has alleged a repeated violation of such a general standard, he normally would be expected to introduce other evidence to show that the violations were substantially similar.

Here, the record shows that there was a prior uncontested citation for violation of the same standard and that the prior citation had become a final order prior to the inspection in this case. The standard at 29 C.F.R. 1910.22(a)(1) is a general standard, [*14] but there is additional evidence that the violations are substantially similar. Both citations involved electrical equipment and machinery stored on wooden pallets in the Pierce warehouse with no open passageways for access to the equipment at the rear. In both cases forklift trucks were used to move the pallets on which the equipment was stored. Further, employee testimony supports the conclusion that the conditions were substantially similar. Respondent's evidence that the equipment covered by the prior citation was slightly different in size and type is not sufficient to rebut the evidence that the conditions and hazards involved were substantially similar. We find that the factual circumstances surrounding and the hazards created by the present and prior violations are substantially similar. Accordingly, the violation in this case has been shown to be repeated. n8

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n8 This case was heard and decided before our decision in Potlatch was issued. The Commission normally would offer the parties an opportunity to present additional evidence on an issue governed by precedent set after the case was tried. Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976). Whether this violation was repeated has been fully tried and argued by the parties. It is therefore unnecessary to remand this case because Respondent could not rebut the Secretary's prima facie showing. See J.L. Foti Constr. Co., 80 OSAHRC    , 8 BNA OSHC 1281, 1980 CCH OSHD P24,421 (No. 76-5049, 1980).


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The judge assessed a penalty of $25 for the violation. Considering the criteria under section 17(j) of the Act, 29 U.S.C. 661(i) n9 and because of the repeated nature of the violation, we find a penalty of $50 to be appropriate.

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n9 Section 17(j), 29 U.S.C. 661(i), provides:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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Item 38(g) of citation 1 alleged a violation for Respondent's failure to comply with the standard at 29 C.F.R. 1910.252(a)(2)(iv)(c). n10 The citation alleged that Respondent failed in two instances to separate oxygen cylinders from fuel-gas cylinders or combustible materials by a minimum distance of 20 feet or by a noncombustible [*16] barrier. The two locations specified were "adjacent maintenance lunchroom outside at ore dock" and "outside at the upper dock watch clock station."

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n10 The standard provides:

(c) Oxygen clyinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.

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At the hearing the compliance officer testified that at each of these outdoor locations there was one cylinder of oxygen and one cylinder of acetylene. Respondent presented testimony that outdoor storage of oxygen and acetylene was not hazardous because the two gases have different densities, so that one rises and the other falls. Thus, according to Respondent, the two gases do not mix. Even on a still day, Respondent's safety director testified, there is sufficient breeze to disperse the gases and render them harmless. Respondent presented testimony that there is no danger [*17] when there is only one cylinder of each gas. There was testimony that the cylinders at the watch clock station belonged to the barge company which delivered ore to Respondent, but that Respondent had the authority to order the cylinders removed from the premises.

The judge vacated this item. He concluded that the standard was meant to govern only multiple cylinders of oxygen stored together with multiple cylinders of fuel-gas and that the cited situations did not constitute a sufficient hazard to require separation of the cylinders.

In his petition for review, the Secretary contended that the judge erred when he held that multiple cylinders of each gas must be present in order to violate the standard. The Secretary argued that the standard prohibits specific conduct and that no independent showing of a hazard is required. Respondent argues that the standard clearly applies only to multiple cylinders of oxygen stored with multiple cylinders of fuel-gas. On review, Respondent for the first time argues that the testimony in the record leaves doubt that the cylinders were "in storage."

Although the standard speaks of "[o]xygen cylinders" and "fuel-gas cylinders," we note the general [*18] rule of construction that words importing the plural include the singular. See 1 U.S.C. 1. We therefore hold that the judge erred in concluding that there must be more than one oxygen cylinder and more than one fuel-gas cylinder in order for the standard to apply.

As to the judge's reasoning that there was an insufficient hazard shown, the Commission has held that the existence of a hazard is presumed when the terms of a specification standard are not met. Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977). In addtiion, the Commission has held that a construction safety standard requiring compliance with an American National Standards Institute standard identical to the general industry standard at section 1910.252(a)(2)(iv)(c) "contemplates a hazard when oxygen and fuel gas cylinders are stored closer than 20 feet or are not separated by the described fire resistant barrier" and that "the existence of a hazard is established by noncompliance with the express terms of the standard." n11 Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD P23,440 at p. 28,373 (No. 76-1480, [*19] 1979). By showing noncompliance with the express terms of section 1910.252(a)(2)(iv)(c), the Secretary established a violation. n12 Accordingly, we reverse the judge's vacation of item 38(g) of citation 1. Upon consideration of the factors specified in section 17(j) of the Act, we assess no additional penalty.

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n11 29 C.F.R. 1926.350, entitled "Gas welding and cutting," includes the provision:

(j) Additional rules. For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1-1967, Safety in Welding and Cutting, shall apply.

Section of ANSI standard Z49.1-1967 entitled "Safety in Welding and Cutting" provides:

3. Installation and Operation of Oxygen -- Fuel Gas Systems for Welding and Cutting.

* * * Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

n12 In its brief on review, Respondent suggests that the record leaves doubt that the cylinders were "in storage." A careful review of the record does not, however, disclose any testimony that the cylinders in these locations had ever been used or that they had been placed together so that they would be available for use. Respondent's safety director repeatedly referred to the cylinders as "stored together." We therefore find by a preponderance of the evidence that the cylinders were in storage.


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Accordingly, the judge's decision is corrected to note that item 38(f) of citation 1 is affirmed and that citation 4 as amended is affirmed. The judge's decision is affirmed as to the vacation of items 37(c), (e), and (i) of citation 1, for the reasons given above. The judge's decision is modified to find that the violation described in citation 9 was repeated and a penalty of $50 is assessed. The judge's decision is reversed as to item 38(g) of citation 1. That item is affirmed but no additional penalty is assessed.




BARNAKO, Commissioner, Concurring:

I agree with my colleagues to affirm the citation item alleging a violation of 29 C.F.R. 1910.252(a)(2)(iv)(c) and to vacate the citation item alleging a violation of 29 C.F.R. 1910.212(a)(1) although my reasons for vacating this citation item differ from those given by my colleagues. Additionally, I would enter a conditional order as to the alleged repeated violation of 29 C.F.R. 1910.22(a)(1).

I do not agree with the majority that the standard at 29 C.F.R. 1910.212(a)(1) n1 is applicable to the cited condition. [*21] As the majority states, the conveyor belts in question transport material to and from machines which perform a processing function by reducing the size of the material and also transport the material to a storage and dispersal area. There is no evidence that the conveyor belts themselves perform any sizing or other processing function. Therefore, in my view the conveyor belts are not part of a manufacturing process. Since the belts are not part of the manufacturing process, they are not covered by the cited standard.

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n1 The text of 29 C.F.R. 1910.212(a)(1) appears at note 3 of the lead opinion.

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In reaching this conclusion, I note that section 1910.212(a)(3)(iv) defines the types of machines to which section 1910.212 applies:

The following are some of the machines which usually require point of operation guarding:

(a) Guillotine cutters

(b) Shears

(c) Alligator shears

(d) Power presses

(e) Milling machines

(f) Power saws

(g) Jointers

(h) Portable power tools

(i) Forming rolls and calenders

In United [*22] States Steel Corp., 77 OSAHRC 192/B5, 5 BNA OSHC 2063, 1977-78 CCH OSHD P22,269 (No. 15500, 1977), the Commission addressed section 1910.212(a)(3)(iv) and concluded that it was relevant to determining the applicability of the guarding requirement which is at issue in the case now before us:

The standard at 1910.212(a)(1) is clearly directed toward machines which are or can be used in the production or manufacturing process. The examples of machines listed in 1910.212(a)(3)(iv), although specifically directed toward point of operation guarding, are illustrative of the type of machine for which other types of guarding are required.

77 OSAHRC 192/B5, p. 4, 5 BNA OSHC at 2064, 1977-78 CCH OSHD P22,269 at 26,812, quoting Allis-Chalmers Corp., 76 OSAHRC 142/C3, p. 4, 4 BNA OSHC 1876, 1977, 1976-77 CCH OSHD P21,341 at 25,629 (No. 8274, 1976).

All of the machines listed in section 1910.212(a)(3)(iv) are machines that perform processing functions to alter material or a product in some way. Since the record in this case demonstrates that Respondent's conveyor belts do not perform any such processing operation but rather are used solely for transportation, I would affirm the judge's [*23] decision to vacate this citation item on the basis that the cited standard is inapplicable. n2

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n2 Assuming that the standard may properly be considered applicable, I agree with the majority for the reasons they state that the Secretary failed to prove the existence of a hazard.

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My views as to whether Respondent repeatedly violated 29 C.F.R. 1910.22(a)(1) differ in some respects from my colleagues. My test for finding a repeated violation is set forth in my separate opinion in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979). I agree with my colleagues that the violation at issue in this case is substantially similar to the violation in the prior uncontested citation. Both violations involve the same standard, hazard and method of abatement. Moreover, contrary to Respondent's assertion, the prior citation involved some materials which would require handling by machanical handling equipment; the same kind of equipment is involved in the citation for repeated violation [*24] here.

In my view, an employer should be able to defend against an alleged repeated violation by demonstrating that it made good faith efforts after the entry of a final order to prevent the recurrence of a substantially similar violation. Since this case was tried prior to the issuance of Potlatch, supra, Respondent was not on notice as to the good faith efforts defense and such defense has not been established on the record as it currently exists. See Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979). Therefore, I would enter a conditional order, affirming the citation as repeated, but would afford Respondent 10 days from the issuance of this decision to move that the case be reopened for the taking of additional evidence as to the steps Respondent took after the first citation became a final order to prevent occurrence of a substantially similar violation.