UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 13973
BIG ‘6’ DRILLING COMPANY,
August 1, 1977
Before: BARNAKO, Chairman and CLEARY, Commissioner.
This case is before the Commission by my order granting complainant’s petition for discretionary review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’]. The petition raised the following issues:
(1) Whether the Administrative Law Judge erred in concluding that the citations in this case are properly before the Commission for disposition?
(2) Whether the case should be remanded for further hearing for the purpose of receiving evidence concerning the alleged violations?
Having considered the parties’ submissions and reviewed the entire record, we conclude that the citations are properly before the Commission and remand the case for further hearing.
Respondent, Big ‘6’ Drilling Company, was issued two citations following a June 16, 1975, inspection of its oil and gas well drilling rig in Silsbee, Texas. The first citation alleged eight nonserious violations of section 5(a)(2) of the Act. The second citation alleged a serious violation of section 5(a)(1) of the Act. Penalties totaling $805 were proposed for three of the nonserious violations and the serious violation.
On July 1, 1975, respondent filed a pro se notice of contest stating in pertinent part:
. . . We have taken immediate steps to have all of these alleged violation corrected to the standards requested by your investigator. We believe we have everything in order.
We do, however, feel that your proposed penalties of $805 are excessive, and we would like to present our case at a hearing in an attempt to have this violation penalty waived. Our company is taking great pride in providing safe working conditions, and each month we spend several hundred dollars for safety awards to our employees . . ..
The Secretary’s complaint was duly filed. It explicitly stated that the violations were not in issue, and that ‘the violations have become a final order of the Commission by operation of section 10(a) of the Act.’ The complaint also included a ‘Notice to Respondent’ which informed the respondent, ‘ . . . you must plead or otherwise answer this complaint, either denying or admitting the allegations, within 15 days of your receipt of this complaint. Failure to do so may result in dismissal of your notice of contest.’
Respondent timely filed a pro se ‘answer’ consisting of a one paragraph letter stating in pertinent part as follows:
This letter is to ask for a hearing so that we may express our objections in connection with the inspection conducted June 16, 1975 and the resulting penalties. We provide a safe place for our employees to work and feel the penalty is not appropriate
At the hearing, complainant argued that only the penalties were at issue, the citations having become final by operation of law. Respondent was represented by counsel at the hearing. Respondent’s representative disputed the finality of the citations, arguing that both the notice of contest and answer had been written pro se and should therefore not be narrowly construed so as to preclude respondent from contesting the merits of the citations. Although at the time of the hearing Florida East Coast Properties Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973 74 CCH OSHD para. 17,272 (No. 2354, 1974) was the controlling precedent, the Administrative Law Judge never specifically ruled on the issue of the finality of the citations. The Judge remarked as follows:
Well, of course, in coming to the penalty question, there has to be a violation before any penalty can be assessed, so it has to be gone into, anyway.
Before Judge Brenton filed his decision in this case, we had decided Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975 76 CCH OSHD para. 20,221 (No. 7413, 1975), in which a divided Commission held that notices of contest that are limited to the penalty would be construed to include a contest of the citation if a respondent indicates in a later pleading that it was its intent to also contest the citation. Applying Turnbull to the instant case, the Judge, in his decision, referred to the language of respondent’s pro se answer requesting a hearing in order to express objection to the ‘inspection’ and ‘resulting penalties.’ He regarded this as an expression of respondent’s intent to contest the citation and found the citations to be before him for disposition. The Judge proceeded to affirm four of the nonserious violations and to vacate the remaining violations on the basis of the existing record.
In his petition for review, complainant argues that Turnbull is not dispositive of the instant case because respondent’s answer did not deny complainant’s allegation of the citation’s finality. Complainant maintains that the citations had become final by operation of law. Alternatively, complainant contends that, if the citations are properly before the Commission, the case should be remanded for further hearing because the Secretary was prejudiced in presenting his case by the Judge’s failure to rule on the scope of the notice of contest. Complainant asserts that the Judge’s failure to rule on the scope of the issues before him at hearing led complainant to limit his proof to evidence relevant to the proposed penalties.
On review, respondent argues that it had not intended to admit the citation, but instead contested the citation when it asked for a hearing to consider ‘our case’ and a chance to ‘express our objections in connection with the inspection . . . and resulting penalties.’ Respondent also asserts that there should be no remand because complainant had fair notice of respondent’s intent to contest the citation by its notice of contest, answer, and oral representation at hearing, but instead chose to limit his proof to the ‘penalties’ issue.
We affirm the Judge’s decision that the citations are properly before us for disposition. This case is controlled by Turnbull Millwork Co., supra. Here, respondent elaborated upon its notice of contest in its answer by asking for a hearing ‘to express our objections in connection with the inspection conducted June 16, 1974 and the resulting penalties.’ We find that request to be an indication of respondent’s original intent to contest the citations.
We rule that complainant was prejudiced by the Judge’s failure to rule on the scope of the notice of contest at hearing, thereby resulting in complainant adducing evidence only as to the proposed penalty. Accordingly, we remand the case for further hearing so that additional evidence may be adduced concerning the alleged violations vacated by Judge Brenton. On remand, complainant shall be allowed to amend the citation for violation of section 5(a)(1) of the Act to allege a violation of the rule issued pursuant to the variance procedure of section 6(d) of the Act.
It is ORDERED that the Judge’s decision vacating the citations he reversed and the case remanded for proceedings consistent with this decision.
FOR THE COMMISSION:
William S. McLaughlin
DATED: AUG 1, 1977
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 13973
BIG ‘6’ DRILLING COMPANY,
February 10, 1976
DECISION AND ORDER
Allen Prince, Esq., of Dallas, Texas, for the Secretary of Labor
Elmer H. Jheis, Esq., of Houston, Texas, for the Respondent
This cause of action arose pursuant to the provisions of the Occupational Safety and Health Act of 1970 (29 USC 651).
On June 16, 1975, complainant, as authorized by § 8(a)(1) and (2) of this, Act, inspected one of respondent’s drilling rigs which was in operation on location near Sillsbee, Texas.
On June 20, 1975, in accordance with § 9(a) of this Act, complainant issued two citations to respondent alleging certain violations of the Act. On the same date, pursuant to § 10(a) of this Act, complainant issued to respondent a notification of proposed penalty for the alleged violations in the amount of $805.00. Whereupon, on July 2, 1975, complainant received respondent’s pro se notice of contest which was dated July 1, 1975. This notice briefly discussed the alleged violations, however, it purported to contest only the proposed penalty.
Complainant’s complaint was docketed on July 24, 1975, after which respondent on July 28, 1975, by letter answered, pro se, and therein and thereby requested a hearing so it could express its objections to the inspection and the resulting penalties.
Thereafter this cause came on for hearing in Houston, Texas, on October 22, 1975, at which time respondent appeared with counsel.
The issues are: (1) Jurisdiction. (2) Propriety to adjudicate the alleged violations. (3) If adjudication is proper did respondent violate the Act in any respect as alleged. (4) What amount, if any, should be assessed as an appropriate penalty for the violations, if any there be.
Jurisdiction to hear and decide a case may be raised at any stage of the proceedings, even after judgment.
This issue was presented to this tribunal in Secretary v. Ted Breihan, d/b/a Ted Breihan Electric Co., OSAHRC Docket No. 12459 under the same or similar facts and circumstances and is dispositive of this issue here. Inasmuch as Breihan, supra, may not have become a final order of the Review Commission at this writing the discussion and holding there is repeated here in this to wit:
The Review Commission, by electing not to review Secretary v. J. A. Walder, Inc., 2 OSAHRC 881, (March 14, 1973), has long ago settled the jurisdictional issue presented here. This case stands for the proposition that the Act is applicable to each and every business that has employees. This conclusion is based upon Congressional constitutional authority to enact the Act under clause 18 of Article I, par. eight of the United States Constitution which confers upon Congress the power to make all laws necessary and proper for carrying into execution its power to regulate interstate commerce. Thus, it has the power to regulate intrastate activities when necessary for protection of interstate commerce. Congress determined by § 2 of the Act that injuries and illnesses arising out of the work situation imposed a substantial burden upon interstate commerce. [Also see Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964); U.S. v. Darby, 312 U.S. 100 (1942); Lipinski v. U.S. 251 Fed 2nd 53 (1958)]
Where, as here, an activity falls within a class of activities and this class is within the reach of congressional plenary power then the fact that respondent’s activity may have been solely in intrastate commerce is not a bar to jurisdiction.
Moreover, fact that respondent purchased and used goods and equipment that were in interstate commerce prior to its acquisition affects commerce within the meaning of § 3(3) of the Act.
Therefore, respondent is an employer within the meaning of § 3 (5) of the Act. Thus, the same conclusion reached in Breihan should be and is adopted in the instant case.
The citations in this case are properly before the Commission for disposition even though the notice of contest on its face is limited to the penalty.
As recently as December 15, 1975, the Commission in Secretary v. Turnbull, d/b/a Turnbull Millwork Co., OSAHRC Docket No. 7413, departed from its rule in Secretary v. Florida East Coast Properties, Inc. 6 OSAHRC 404 (1974) which is that where a notice of contest is clearly limited solely to the penalties, the citation itself becomes a final order of the Commission under § 10(a) of the Act. The rule announced in Turnbull, supra, is that a notice of contest which is limited only to the penalty will also be construed to include a contest of the citation, if a respondent indicates at a later time that it was his actual and true intent to also include a contest of the citation.
In the instant case it appears reasonable to conclude that the language used by respondent in its pro se answer of July 28, 1975, which is:
This letter is to ask for a hearing so that we may express our objections in connection with the inspection conducted June 16, 1975, and the resulting penalties.
expresses its actual and true intent to contest the citations.
Having determined that the Review Commission has jurisdiction to hear and decide this case and that respondent made its case for contest of the citations the charges as alleged and the duties proscribed by the Act hereby are, delineated.
Citation 1 charges respondent with eight non-serious violations of § 5(a)(2) of the Act which are described by complainant as follows:
Item 1. 29 CFR 1910.132(a) The employer failed to provide protective equipment for extremities, require its use and maintain same in a sanitary and reliable condition, where it was necessary by reason of chemical hazards capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact, mixing of dry caustic soda and water without impermeable gloves.
Item 2. 29 CFR 1910.219(e)(3)(i) Vertical and inclined belts were not properly guarded; i.e., the belt guard on the Gardner Denver Compressor (Serial No. 633711) located in the generator house.
Item 3. 29 CFR 1926.102(a)(1) Failure to provide eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.
Item 4. 29 CFR 1926.150(a)(3) All firefighting equipment provided by the employer was not conspicuously located; i.e., should be near drillers station on rig floor—should be near rig motors—should be near diesel tank.
Item 5. 29 CFR 1926.150(a)(4) All firefighting equipment was not periodically inspected and maintained in operating condition (nor was defective equipment immediately replaced); i.e., failure to periodically inspect and maintain in operating condition all firefighting equipment and immediately replace defective equipment.
Item 6. 29 CFR 1926.152(d)(2) A portable fire extinguisher having a rating of 20B units or more was not provided between 25 and 75 feet from flammable liquid storage areas at the following locations: i.e., failure to provide at least one portable fire extinguisher having a rating of not less than 20–B units, located not less than 25 feet, nor more than 75-feet, from and flammable liquid storage area located outside.
Item 7. 29 CFR 1926.500(d)(1) Failure to guard by a standard railing, or the equivalent, on all open sides except where there is entrance to a ramp, stairway or fixed ladder the open sided rig floor 6 feet or more above adjacent floor or ground level.
Item 8. 29 CFR 1926.500(d)(2) The runways 4 feet or more above floor or ground level were not guarded by a standard railing or the equivalent.
The standards alleged to have been violated by this citation provide as follows:
Item 1. Section 1910.132—General Requirements
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
Item 2. Section 1910.218—Mechanical Power-Transmission Apparatus
(e) Belt, rope, and chain drives.
(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.
Item 3. Section 1926.102—Eye and Face Protection
(1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.
Item 4. Section 1926.150—Fire Protection
(a) General requirements
(3) All firefighting equipment, provided by the employer, by the employer, shall be conspicuously located.
Item 5. Section 1926.150—Fire Protection
(a) General requirements
(4) All firefighting equipment shall be periodically inspected and maintained in operating condition. Defective equipment shall be immediately replaced.
Item 6. Section 1926.152—Flammable and Combustible Liquids
(d) Fire control for flammable or combustible liquid storage
(2) At least one portable fire extinguisher having a rating of not less than 20–B units shall be located not less than 25 feet, nor more than 75 feet, from any flammable liquid storage area located outside.
Item 7. Section 1926.500—Cranes and Derricks
(d) Guarding of open-sided floors, platforms, and runways
(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
Item 8. Section 1926.500—Cranes and Derricks
(d) Guarding of open-sided floors, platforms, and runways
(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.
The proposed penalties for these violations are $55.00 for item 3, $70.00 for item 5, $30.00 for item 8, and zero for each of the remainder.
Citation 2 charges respondent with a serious violation of § 5(a)(1) of the Act which is described by complainant as follows:
Item 1. § 5(a)(1) of the Occupational Safety and Health Act of 1970.
The employer failed to provide a place of employment which was free from a recognized hazard that was likely to cause death or serious physical harm, in that a safety climbing device was not installed on the ladder or derrick to protect the derrickman from the hazard of a fall while going to and from his work station on the monkey board.
§ 5(a)(1) of the Act which is alleged to have been violated by citation 2 provides as follows:
Item 1. ‘§ 5(a) Each employer—
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees:’
The proposed penalty for this alleged violation of this general duty clause is $650.00.
The non-serious charges will be discussed in sequence with respect to the order in which they appear in citation 1.
At the hearing complainant was given every opportunity by this tribunal, respondent’s vice-president, and respondent’s counsel, Mr. Theis, to present evidence with respect to the merits of the citations. Complainant insisted that the penalty was the sole issue to be considered nevertheless he did elicit evidence upon the merits of the citations except with respect to item 2 of citation 1.
In complainant’s attempt to justify the $55.00 proposed penalty for item 3 of citation 1 he included the alleged violation at item 1 because allegedly each had to do with exposure to a caustic material as it would be mixed. There is no evidence that he saw any employee so exposed on this job site. In fact there is no evidence that there was caustic or any other material on this location that when used would require hand and face protection. The most the evidence shows, is that upon inquiry by the inspector for complainant he was apparently told by someone, unidentified, that gloves [rubberized] were not provided. Moreover, even if a violation had been shown of either standard there is no evidence upon which to evaluate the gravity thereof if any there was.
Complainant simply failed to make a case for violation of 29 CFR 1910.132(a) or 29 CFR 1926.102(a)(1). His evidence for a penalty here, had there been a violation, was totally inadequate.
Even though complainant did not allude to the alleged violation of item 2 of citation 1, complainant was given unlimited opportunity to bring it out by respondent requesting the inspector to relate, in detail and in sequence, his procedures and findings during the entire course of his inspection of the drilling rig. At no time did the inspector mention any encounter with a compressor, belts, or guards although according to his testimony he spent at least 45 minutes in and about the generator house where these items were located according to the allegation of the citation.
Complainant ignored respondent’s letter of July 28, 1975, and its repeated intent to make issue on the citations at the hearing. Nevertheless due process of law was afforded complainant in that he had an opportunity to be heard upon this alleged violation but failed to avail himself thereof. Therefore, there being no proof of the charge under 29 CFR 1910.219(a)(1) it should be vacated.
Upon consideration of items 4, 5, and 6 of citation 1 the evidence shows that respondent’s fire extinguishers were stored in the tool house except one which had been allowed to lie outside and adjacent to the generator house. The evidence further shows that this latter part. ?? extinguisher was in a discharged condition and had not been recharged. This extinguisher had been used to consume a fire, however, whether respondent had been afforded a reasonable opportunity to make it operable thereafter is unknown, thus the better inference is that it did. Therefore, respondent should be found in violation of 29 CFR 1926.150(a)(4).
Complainant predicates his case for violation of 29 CFR 1926.150(a)(3) upon the proposition that respondent’s firefighting equipment was not accessible on the rig floor, to the rig motors, and to the diesel tanks. The command of this standard is that they shall be conspicuously located which means located so they may be easily seen. Accessible is not synonymous with conspicuous. The former means easily reached whereas the latter means easily visible. The fact that these extinguishers may not have been easily reached from these locations does not prove that they were also not readily visible from their location. They were approachable, thus access to them was maintained. Accordingly under the evidence here neither 29 CFR 1926.150(a)(3) nor 29 CFR 1926.150(a)(2) was violated by respondent.
Respondent did maintain diesel fuel in tanks on or about the rig. Because of the fire fighting equipment being housed in the tool house and the fact that respondent, during the time of the inspection, located the extinguishers in accordance with the inspector’s wishes, it may reasonably be inferred therefrom that none had been located less than 25 feet, nor more than 75 feet, from such flammable liquid. This then is a violation of 29 CFR 1926.152(d)(2).
The proposed penalty determination by complainant was predicated upon these three alleged fire hazards although the notice thereof places the penalty for violation of 29 CFR 1926.150(a)(4). In any event complainant was not impressed that an injury to an employee by fire was likely to occur. Rather he would expect that, if there was any inability to fight a fire, the fire area would be vacated. In this situation the degree of probability of an injury by fire because this one extinguisher was inoperable is in all common probability non-existent. Likewise with respect to the violation of 29 CFR 1926.150(d)(2). The $70.00 proposed penalty for this item of the citation is inappropriate and should be vacated.
The rig floor was guarded with a standard railing, however, at the time of the inspection one end had been removed to permit materials to be transported to the floor above, and had not been immediately replaced. Exposure from this opensided floor was a fall of 10 or 12 feet. A runway was not guarded at one end which could expose an employee to a fall, but the record is void as to the height of this runway above floor or ground level. There is a dearth of evidence concerning these alleged fall hazards, nevertheless it is apparent that the parties did not consider the height of this runway from floor or ground as an issue and therefore it may properly be inferred that it was four or more feet. Moreover, there is also a dearth of evidence as to the exposure to either of these hazards. The only evidence pertaining to rig floor exposure is the inspector’s observation of one employee on the rig ladder thus it may be inferred that this employee had to mount the rig floor to ascend this ladder and could have been exposed. Inasmuch as the runway was there it may properly be inferred that it was used for some purpose, thus since the end had never been guarded it is reasonable to conclude that a fall would be possible.
Although the evidence on these two falling alleged violations is extremely skimpy there is just enough to tip the scales by a preponderance to make a case for violation in each instance. It is otherwise, however, with regard to the $30.00 proposed penalty for violation of 29 CFR 1926.500(d)(2). Complainant’s testimony on this point was given by an experienced witness with skill and knowledge concerning the operations on and about drilling rigs. He said, ‘a fall in either of these locations is unlikely.’ (Tr. 48). Therefore, the gravity of the violation is nil which makes any amount inappropriate as a penalty for the violation.
Citation 2 is an alleged general duty clause violation of the Act. Complainant based his grounds for violation thereof on the proposition that because respondent had been granted a variance from complying with the regulations at 29 CFR 1910.27(b)(1)(i), (ii), (iii), and (c)(4) it was required by § 5(a)(1) of the Act to require its employees to use ladder safety devices as mentioned in 29 CFR 1910.27(d)(5). Complainant did not at any time specifically allude to 29 CFR 1910.27(d)(5). He was bent on bringing out the variance which he had granted to members of International Association of Drilling Contractors which became effective on October 17, 1973, as published in the Federal Register, Vol 38, No. 201. His stated purpose for introducing this evidence was to show that respondent, being a member of the Association, had knowledge thereof. Further, because the variance required ladder safety devices on derrick ladders respondent could not avoid having knowledge that each derrick ladder, exempt from the provisions of 29 CFR 1910.27(b)(1)(i), (ii), (iii), and (c)(4), was a recognized hazard in the drilling industry when used without the installation of a ladder safety device.
Although counsel for respondent was brought into this case a few days prior to the hearing and thereby was forced to grope along his way in defense it is apparent that, in effect, on behalf of respondent, he defended against the allegations of a § 5(a)(1) of the Act violation on the proposition that a variance rule applied. Whereas complainant, although he insisted that the only matters at issue were the penalty considerations, maintained without any deviation that the general duty clause applies. At no time did he advocate the applicability of a standard, rule, or regulation upon which his proposed penalty would properly apply for the violation alleged.
The variance rule granted respondent became an Occupational Safety and Health Standard on October 17, 1973, in accordance with the definition of this kind of a Standard, under § (3)(8) of the Act. It was in full force and effect on June 16, 1975. Therefore, inasmuch as complainant’s evidence shows that the derrick ladder in question was one of the kind contemplated by the variance rule, as promulgated under § 6(d) of the Act, and further that an employee was permitted to ascend this ladder without a ladder safety device attached, this conduct of respondent is a § 5(a)(2) violation of the Act.
Under the facts and circumstances here the parties did not try the issue of a violation of this standard nor the issue of the proposed penalty as applicable to this standard by either express or implied consent.
The Review Commission has held that Congress did not intend that the general duty clause be used when a standard applies. Further, when this is the case then, unless Rule 15(b) of the Federal Rules of Civil Procedure may be invoked, the citation is invalid and both it and the proposed penalty should be vacated. Secretary v. Godwin Bevers Co., Inc., 14 OSAHRC 723.
FINDINGS OF FACT
1. Respondent’s intrastate activities affect interstate commerce.
2. Respondent’s pleadings, written and oral, after filing its notice of contest to the proposed penalty expresses its intent to contest the citations.
3. There was no evidence that respondent mixed dry caustic soda or any caustic material at or upon this job site.
4. Respondent’s fire fighting equipment was approachable within the tool house. There was no evidence that it could not be easily seen within that house.
5. One fire extinguisher was inoperable.
6. A portion of the guard rail on the rig floor had been removed and not immediately replaced.
7. One end of a runway was not guarded by a standard railing or equivalent.
8. Complainant maintained throughout the entire proceedings the applicability of § 5(a)(1) of the Act to citation 2 alleging a serious violation for failure to provide ladder safety device on the fixed derrick ladder.
9. The effect of respondent’s defense to the alleged general duty clause violation was to assert the applicability of a violation of the variance granted by the Secretary.
10. The degree of probability of any injury occurring because of any existing violation was miniscule.
CONCLUSIONS OF LAW
1. The Review Commission has jurisdiction to hear and decide this case.
2. Where respondent’s pleadings, subsequent to his notice of contest which is limited to the penalty, shows its intent to contest the citations the initial notice will be construed to include a contest of the citations.
3. Respondent did not violate 29 CFR 1910.132(a) nor 29 CFR 1926.102(a)(1).
4. Failure by complainant to prove up a case for violation of 29 CFR 1910.219(e)(3)(i) subjects same to being vacated.
5. The proof failed to show a violation of 29 CFR 1926.150(a)(3).
6. Respondent violated 29 CFR 1926.150(a)(4), 29 CFR 1926.152(d)(2), 29 CFR 1926.500(d)(1), and 29 CFR 1926.500(d)(2).
7. The variance granted respondent by the Secretary on October 17, 1973, was, by virtue of the provisions of § 3 (8) of the Act, an occupational safety and health standard in full force and effect on June 16, 1975.
8. A charge for violation of the general duty clause of the Act will not lie where there exists a standard which is applicable.
9. An amendment to the pleadings in order to make an issue conform to the evidence will not lie where the parties have not demonstrated on the record that such issue was tried by consent.
Wherefore it is Ordered that:
Items 1, 2, 3, and 4 of citation 1 be and each hereby is, vacated.
Items 5, 6, 7, and 8 of citation 1 be and each hereby is, affirmed.
Citation 2 be and it hereby is, vacated.
The notification of proposed penalty to be assessed in the amount of $805.00 be and it hereby is, vacated.
J. Paul Brenton
Date: February 10, 1976
 Former Commissioner Moran issued a direction for review that did not specify any issues.