SECRETARY OF LABOR,
Complainant,

v.

PLAINS COOPERATIVE OIL MILL, INC.,
Respondent.

OSHRC Docket No. 81-0481

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

This case is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  Administrative Law Judge Dee C. Blythe found that Respondent, Plains Cooperative Oil Mill, Inc. ("Plains") violated 29 C.F.R. § 1910.212(a)(1)[[1/]] by failing to adequately guard screw conveyer in its cotton seed mill.

Plains petitioned for review of Judge Blythe's decision and Chairman Rowland directed review on the following questions:

1)  Whether the judge erred in concluding that the conveyor in issue constitutes a "machine" within the meaning of 29 C.F.R. § 1910.212,
2)  Assuming 29 C.F.R. § 1910.212 is applicable, did the judge err in concluding that Respondent violated the Act by failing to comply with the requirements of that standard,
3)  Assuming the judge did not err in concluding that Respondent knew or could reasonably have known of the hazardous condition, did he nevertheless err
a)  in concluding that in the circumstances of this case, Respondent may be held responsible for the safety of employees of an independent contractor,
b)  in finding Respondent in violation on the basis that its own employees were exposed to a hazard.

We have reviewed the record and have considered the parties' arguments, which are essentially the same arguments they made to the judge.  We conclude that the judge properly found that Plains failed to comply with the machine guarding standard for the reasons he assigned and, as modified below, we adopt the judge's decision.  See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶ 22,737 (No. 14281, 1977).

In particular, we reemphasize our precedent that an employer violates the Act if it fails to comply with a safety or health standard and its own employees or employees of another are exposed to the resulting hazard.  H.B. Zachry Co. (International), 80 OSAHRC 69/A2, 8 BNA OSHC 1669, 1980 CCH OSHD ¶ 24,588 (No. 76-2617, 1980); Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHD ¶ 23,830 (No. 76-1408, 1979).  We continue to believe that worker safety and health are best promoted by this interpretation of the Act.

Judge Blythe's decision is affirmed.  SO ORDERED.

BY THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  MAR 31 1983

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FOOTNOTES:

[[1/]] The pertinent parts of section 1910.212 provide:

§ 1910.212  General requirements for all machines.
(a) Machine guarding -- (1) Types of guarding.
One or more methods of machine guarding shall be provided to protect the operator 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.