Docket No. 102

MIDVALE-HEPPENSTALL COMPANY

OSHRC Docket No. 102

Occupational Safety and Health Review Commission

March 7, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order to direct review of a decision rendered subsequent to a hearing by Judge Herbert E. Bates. By his order Judge Bates vacated that portion of the Secretary's citation which alleged that Respondent was in violation of the standard prescribed by 29 C.F.R. 1910.242(b) and of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter "the Act") because it used compressed air in excess of 30 p.s.i. in its press plant operation to remove slag from heated ingots and from a press die. In addition, Judge Bates affirmed that portion of the citation which alleged a violation of the same standard in Respondent's power plant. As to this last noted violation the Judge was informed that Respondent filed an application for a variance n1 after the citation was issued and that such application was still pending before the Secretary. n2 The Judge therefore ordered that the abatement period be extended until such time as the Secretary rendered his decision on the application for a variance. He also ordered the Area Director to determine the adequacy of interim safety measures, and he ordered reinstatement of the original period for abatement upon receipt by the Commission of an express determination of inadequacy.

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n1 See 29 U.S.C.A. 655.

n2 Respondent's counsel represented at trial that the application had been filed and was pending. From post trial memoranda it may be inferred that an application had not been filed or was not pending before the Secretary. The Secretary stood mute on the subject at trial, but in his post trial memoranda he indicated that he would concur in an extension pending action on the variance application so long as respondent implements effective interim safety measures. He requested that the interim measures be effected under the direction of his Area Director.

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Thereafter, the Secretary filed a petition for discretionary review. He maintains that Judge Bates committed reversible error in vacating the citation insofar as it alleged a violation in the press plant and insofar as it extended the abatement period for the violation found in the power plant. n3

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n3 It was through this petition that the Commission was first informed of the fact that the Secretary had denied Respondent's application for a variance. The denial was without prejudice and was transmitted to Respondent three months prior to the date of the hearing held in this case.

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We have reviewed the record, the Judge's decision and the briefs of the parties and hereby adopt the Judge's decision to the extent that it is consistent with this decision.

There can be no doubt that Judge Bates' order extending the abatement period is in error. As was made apparent after Judge Bates issued his order there is no application for a variance pending before the Secretary. If we permit the order to stand then Respondent would have no need to abate the violation or make application for a variance since on the facts the order gives Respondent an unlimited period in which to achieve abatement. Such result is not contemplated by the language of sections 9(a) and 10(c) of the Act, and clearly would be contrary to the declaration of congressional policy and purpose expressed by section 2(b) of the Act.

We turn now to the question of determining the abatement period. We note that the Secretary proposed a period of 14 days. However, neither party adduced any evidence regarding the question of what would be a reasonable abatement period in the circumstances. The record does contain a copy of a letter dated June 14, 1972 and signed by Respondent's attorney. The letter was addressed to the Area Director. It is there said the Respondent ". . . is presently using compressed air for cleaning purposes in its power plant at a pressure below 30 p.s.i." This constitutes abatement of the violation. It therefore appears that Respondent does not require any additional time to abate the violation of 29 C.F.R. 1910.242(b).

There being no other error it is ORDERED that:

(1) paragraph 4 of the Judge's order be struck in its entirety and the following be substituted in place thereof: Respondent shall abate the violation of 29 C.F.R. 1910.242(b) in its power plant immediately; and

(2) the Judge's decision and order as amended hereby be and the same is hereby affirmed.

CONCURBY: BURCH

CONCUR:

BURCH, COMMISSIONER, concurring: While I concur in the result reached by the majority, I feel it necessary to comment on two items.

The majority, in affirming the Judge's interpretation of the standard 29 CFR 1910.242(b) without comment, does not make clear whether it does so because it believes that the standard was inapplicable (because the descaling procedure used by respondent is not "cleaning" within the meaning of the standard) or because the inspecting compliance officer was unable to testify as to any probable hazards resulting. I believe that we should specifically find that the hose in use in respondent's press plant was an integral part of the manufacturing process and thus was not within the purview of the cited standard. Accordingly, I disassociate myself from that portion of the majority opinion which accepts the second alternative (i.e.: that a respondent may exculpate itself from liability by admitting that it failed to meet a cited standard and demonstrating that its failure created no hazard to employees). In the context of this case we do not have to decide whether the absence of a hazard is an affirmative defense where respondent admittedly failed to comply with a cited standard because the air hose in question was not being used for "cleaning" purposes. n4

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n4 I think it important to note that the primary intent of the standard is to protect employees from flying chips and debris. The standard appears to have been directed towards a prohibition against higher pressures when used for general "house-keeping" rather than to a very broad interpretation which would unnecessarily restrict the use of higher pressures for legitimate industrial purposes. To carry the standard further would lead to the result of finding numerous air powered, air operated cleaning operations commonly used in industry (e.g.: air turbines used for cleaning) to be violative. I cannot believe such a result was intended.

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The majority, with the advantage of hindsight, states "There can be no doubt that Judge Bates' order extending the abatement period is in error." This is harsh language. Respondent filed a combined notice of contest and petition for a variance. At the hearing the representation was made that the petition for variance was, at that time pending. It was on this basis that Judge Bates recommended extending the abatement period. Judge Bates issued his proposed decision and order on May 26, 1972. The first evidence that respondent's petition for a variance was defective in form was provided to the Commission as an attachment to the Secretary's Petition for Discretionary Review filed on June 12, 1972. Thus, Judge Bates issued his order upon the only evidence before him. In that context, I would find his order proper. It is only the subsequently submitted evidence which requires us to amend the Judge's order.

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: This is a proceeding under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, P.L. 91-596; 84 Stat. 1601; 29 U.S.C. 651 et seq. (hereinafter the Act) to review a Citation (non-serious) issued by the Secretary of Labor (hereinafter the Complainant) against Midvale-Heppenstall Company, Inc., (hereinafter Midvale, or the Respondent), pursuant to Section 9(a) of the Act, and proposed assessment of penalties upon such alleged violations pursuant to Section 10(a) of the Act.

The Citation and Notice of Proposed Penalty were issued on September 28, 1971, the Respondent filed its Notice of Contest with the Secretary by letter, dated October 15, 1971.

The issue were initially joined by the Complaint (Docket #5) received by the Commission on October 27, 1971, and an informal response thereto by the Respondent's Safety Engineer, John R. Alden, received by the Commission on November 10, 1971, and construed by the undersigned as an Answer to the said Complaint, at a time when the Respondent was unrepresented by counsel. The issues were further clarified by a response to the undersigned's "Notice of Hearing and Instructions" dated January 28, 1972, over the signature of J. Paul Martha which represented that he was acting as attorney for the Respondent, a capacity which was later formalized by a written entry of appearance. (H-8B)

The case having been assigned to the undersigned Judge, thereupon came on for hearing after due and proper notice to all parties, including the affected employees, on February 8, 1972, in Philadelphia, Pennsylvania.

Mr. Lewis H. Shoemaker, Federal Labor Union No. 18887, AFL-CIO, which union represents employees affected by the alleged violation, was present at the hearing, accorded the opportunity to participate therein, but chose to assume the role of an observer.

There exists no controversy that the Respondent is a corporation organized under the laws of the Commonwealth of Pennsylvania; maintaining its general office, and the workplace involved in this case, at 4320 Wissahickon Avenue, Philadelphia, Pennsylvania, where it employs approximately 1,230 employees; that it is, and at all times relevant to this proceeding has been, engaged in the business of manufacturing steel forgings at said workplace; that in the course of such business receives and ships products in interstate commerce.

It is further admitted by the Respondent that it is an employer engaged in a business affecting commerce who has employees as defined by Section 3(5) of the Act, and is subject to the regulations and standards promulgated thereunder, including 29 C.F.R. 1910.242(b), and that the Occupational Safety and Health Review Commission has jurisdiction of this matter under Section 10(c) of the Act.

The Complainant alleged that the Respondent violated Section 5(a)(2) of the Act, as evidenced by the Citation (Ex. P-1) issued to the Respondent on September 28, 1971, which alleged three items of violation, none of which were classified as "serious" within the meaning of Section 17(h) of the Act.

Item 1 charged the Respondent with violating 29 C.F.R. 1910.242(b) by operating "Four open-end air hoses used for cleaning purposes" on 80 p.s.i. pressure. The Respondent was directed to correct or abate these alleged air-hose violations by October 10, 1971, and a proposed penalty of $60.00 was assessed. The location of these four hoses was not specified in the Citation.

Item 2 charged the Respondent with a violation of 29 C.F.R. 1910.316(d) in that inspection revealed a "drop light cord contained splices." This condition was ordered corrected by October 3, 1971, and a proposed penalty of $15.00 was proposed therefor.

Item 3 charged the Respondent with a violation of 29 C.F.R. 1910.314(d) in that "The refrigeration cooling cabinet was not provided with proper ground." The Citation directed the Respondent to abate this condition by October 12, 1971, and a proposed penalty of $15.00 was assessed for said alleged violation.

By stipulation at the hearing (Tr. 17) the Respondent admitted the violations charged in Items 2 and 3 of the Citation, and voiced no dispute as to the assessed penalties and abatement periods relating to those items.

Although the Citation was silent as to the specific locations of the four air hoses allegedly in violation of 29 C.F.R. 1910.242(b) (hereinafter the standard), the Respondent's response to the undersigned's notice (H-6) indicated that the air hoses allegedly in violation of the standard were located in the electric melt shop, the press plant (forging), the powerhouse and the machine shop.

At the commencement of the hearing (Tr. 17, 20) the Complainant withdrew its charge that the air hose in the electric melt shop violated the standard, since a review of the use of that hose at that location indicated (Tr. 47) that the air hose was not being used for "cleaning purposes" and therefore did not fall within the purview of the standard.

By stipulation, the Respondent (Tr. 19) admitted that the air hoses in the power plant and machine shop violated the standard, and that no dispute existed in regard to the abatement period and proposed penalty as they pertained to the machine shop. The Respondent, however, disputed the abatement period and proposed penalty relating to the admitted air hose violation in the power plant.

During the course of the entire hearing then, the only issue from the standpoint of violation of the standard, related to the air hose violation applicable to the hose located in the press plant forging area (incorrectly referred to throughout the transcript as "pressure" plant).

The Respondent additionally disputed as noted above, the abatement periods and penalties relating both to the press plant and the power plant air hoses.

However, after the hearing in this matter, the Respondent submitted with its Proposed Findings of Fact, a stipulation to additional issues of fact and law, agreed to by Petitioner (HE-10) to the effect that the undersigned also consider as a disputed issue the application of the standard (29 C.F.R. 1910.242(b)) to the open end compressed air hose located in Respondent's power plant, without requiring the record to be reopened or further testimony taken. Reserving for the moment, the question of whether sufficient evidence was adduced concerning this issue so belatedly raised, for the purposes of this determination at this juncture, the sole questions to be decided relate to the compressed air hoses located in the press plant and the power house, whether the use of these hoses is in violation of the standard set forth below (29 C.F.R. 1910.242(b)) and whether the abatement periods specified by the Complainant for the correction of the alleged violations, and the penalties assessed therefor, were reasonable and proper under the relevant facts and circumstances:

§ 1910.242 Hand and portable powered tools and equipment, general.

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

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

[As amended at 36 F.R. 15106, August 13, 1971]

Having heard the testimony of the witnesses and having considered the same together with the exhibits and stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the findings of fact listed under the appropriate headings below.

FINDINGS OF FACT

(The items set forth in sections 1 through 11 below, have been stipulated to by the parties and are not in dispute) (Ex. P-4).

1. The Respondent, Midvale-Heppenstall Company, is a corporation organized under the laws of the Commonwealth of Pennsylvania maintaining its general offices and place of business at 4320 Wissahickon Avenue, Nicetown, Philadelphia, Pennsylvania.

2. The Respondent is engaged in the business of manufacturing steel forgings, receiving and shipping products in interstate commerce. It is an employer engaged in a business affecting commerce who has employees as defined by Section 3(5) of the Act, and is subject to the regulations and standards promulgated thereunder including 29 C.F.R. 1910.242(b).

3. The alleged violation of 1910.242(b) as it pertains to the press plant, did not result in injury to any employee of Respondent or to any other person.

4. The Respondent owns and controls the use of, the open-end air hoses used in the forging press plant and in the power house of Respondent's business establishment.

5. The Respondent is approximately one-fourth the size of Allen Steel located in Conshohocken, Pennsylvania, and approximately one-fourth the size of Lukens Steel located in Coatsville, Pennsylvania.

6. Respondent's net worth for the year 1970 was approximately $13,000,000.

7. The Respondent has no prior history of violations under the Occupational Safety and Health Act.

8. The Respondent employed approximately 1,230 employees on or about September 24, 1971, the date of the inspection.

9. The Respondent has posted the citation and notice of hearing on the employee bulletin boards located in the main office building by the time clock and by the "time alley" which is used by employees for plant ingress and egress.

10. Proper service of the citation and notice of proposed penalties were made upon the Respondent and is not at issue.

11. The authenticity of the following documents are agreed to:

OSHA Form No. 2, citation issued September 28, 1971.

OSHA Form No. 3, notification of proposed penalties issued September 28, 1971.

OSHA Form No. 10, penalties assessment work sheet.

12. An inspection of Respondent's workplace was conducted on September 24, 1971, by officers of the Occupational Safety and Health Administration, Philadelphia area (Tr. 25). The inspector did not actually witness the use of the air hose in the press plant (Tr. 29).

13. Following the aforesaid inspection, a citation was issued to the Respondent on September 28, 1971, alleging four items of violation (Ex. P-1).

14. A notification of proposed penalties with respect to the aforesaid citation was issued to the Respondent on September 28, 1971 (Ex. P-2).

15. Respondent by letter dated October 15, 1971, timely contested Item No. 1 of the citation including abatement dates and proposed penalties relating to four instances of violations of 29 C.F.R. 1910.242(b) contained in Item No. 1 of the citation only (Ex. P-3, Tr. 15-17).

16. The four areas in which the alleged violation of Item No. 1 of the citation occurred were: (1) the electric melt shop; (2) machine shop; (3) press plant; (4) power house (Tr. 19).

17. The Respondent did not contest the violation in the machine shop (Tr. 18-19), nor the abatement period with respect to the machine shop (Tr. 19).

18. The Secretary withdrew its allegation that the operation in the electric melt shop was a violation (Tr. 17, 20).

FACTS CONCERNING PRESS PLANT AIR HOSE USE

19. Concerning the Respondent's press plant operation, the preponderance of the evidence clearly reflects that the process involves the heating of steel ingots to a temperature of up to 2500 degrees farenheit, which are removed from the furnace in a plastic condition so that each ingot may be pressed and revolved, between an upper and lower die to achieve the shape desired for the end product. [Exhibits P-6(a) thru (e)]. As the diameter of the ingot is reduced, the ingot elongates to a point where eventually it has to be lifted off the die, so that the scale may be pushed and blown off the bottom of the die, and then the forging is placed on the die again and the process continues.

The aforementioned scale is of one or two inches in thickness, and results from the chilling of the ingot when it is removed from the furnace to the press plant die. The chilling causes the outside surface of the ingot to contract resulting in the said scale formation which is composed of iron oxides and impurities. The difference in temperature causes some of the scale to "pop" off the ingot, some scale adheres to the ingot and must be removed before the ingot is forged or pressed, which scale impregnation will cause a finished forging to be defective.

20. Two tons of scale is generated in the heating of a steel ingot, at a temperature in excess of 2200 degrees, part of which scale falls off of its own free weight on the way over to the press, because of the difference in coefficient of expansion which causes it to chill (Tr. 67).

21. When the ingot is placed in the press, the remaining scale which has not fallen off of its own free weight due to difference in temperature is removed by an employee using a pipe varying in length from 10 to 14 feet, said pipe extension being connected to a compressed air line with a down stream pressure of 80 p.s.i. (Tr. 26, 27; Exhibit P-6(e)).

22. Exhibit P-6(a) depicts in an accurate manner the procedure used to remove scale or slag from the revolving ingot (Tr. 27).

23. The air hose pipe is utilized by the operator to probe or blow the scale off the ingot; to chill adhering scale and cause it to "pop" off, and to push or blow scale off the lower "V" die (Tr. 54, 62) so that scale which falls on the surface of the lower "V" die [Exhibit P-6(h)] will not be pressed into the ingot being forged [Tr. 68, 69].

24. The ingot is pressed between an upper and lower die. The scaling falls off and some of it falls onto the "V" die, as depicted in Exhibit P-6(h), and on either side of it.

25. The pipe operator pushes the heavy scale off the surface of the lower die, or "V" die, but blows the lighter scale, such as Exhibit P-7, off the "V" die [Tr. 50, 69].

26. Most of the scale which falls on the bottom of the "V" is approximately the size of Exhibit P-7, with some scale perhaps slightly smaller (Tr. 59, 60).

27. Scale falls onto the bottom part of the press, the V-die, and unless it is removed and the die kept clean, the scale will be pressed into the subsequent forging and the finished product may be defective (Tr. 68).

28. If scale is permitted to become impregnated into the job under the 7500 tons of pressure utilized in the press plant, in many cases these impurities will cause the forging to be scrapped (Tr. 49).

29. Scale in the forging itself is detrimental and the finished product would not pass physical standards, and would not machine properly (Tr. 51).

30. The inspecting Compliance Safety and Health Officer did not witness the descaling operation (Tr. 29) and could not testify as to the hazard if any, that the descaling operation posed to any Midvale employees (Tr. 30) except to state that if a man is operating under a condition which gives him full protection of body, face "and so forth" it is probable that this man can be protected against it (hazard of air blown particles) (Tr. 32).

31. Most of the scaling falls on either side of the press, and accumulates in the lower section below the die which is a recessed area 18 inches below the floor as depicted in Exhibit P-6(i) [Tr. 65].

32. Most of the scaling is heavy, can't be moved very well, and does not go too far for that reason due to its weight and size (Tr. 55). It is so heavy that it does not fly very far and is caught in the recessed area (Tr. 65).

33. Witness has never seen small pieces of scale fly in the descaling process, most of the pieces are so heavy it takes a lot of pressure to move them (Tr. 62).

34. The descaling process, (including the use of the 80 p.s.i. air pipe) is an industry wide method for scaling, and removing scales from the ingot, and an integral part of the forging operation (Tr. 70, 72).

35. Due to the factor of intense heat which remains about 2000 to 1900 degrees, the operator of the pipe descaling device cannot get closer to the ingot than 10 to 12 feet (Tr. 55).

36. The 2200 degrees radiant heat (from the ingot) is enormous (Tr. 68) necessitating that the pipe operator use 10, 12, 14 feet of pipe extension the opening of which is always pointed away from him (Tr. 62).

37. The intense heat compels the pipe operator to wear a large plastic and mesh face mask (Tr. 61) aluminized and asbestos suits and further protective equipment (Tr. 36, 81, 83 and Exs. P-6(a), (b), (d), (e)).

38. No unauthorized personnel enter the press plant area, and even if an interloper did enter, the heat emanating from the descaling operation would not permit him to get close enough to be in danger (from flying scale) (Tr. 88).

39. There has been no incident associated with the use of the air hose in the press plant for 20 years (Tr. 82).

40. Witness with 36 years of employment with Midvale, and 10 years on Midvale's Safety Committee, never heard of an accident in the descaling operation and never had occasion to investigate a complaint involving volving an injury allegedly resulting from the descaling or blowing process at the forging press (Tr. 57). No information has ever been communicated to him concerning "horseplay" on the part of the air hose operators, nor has he ever had to caution any such personnel for "fooling around" with the 80 p.s.i. hose (Tr. 63).

41. In every department in the plant, including the press plant, there is a large bulletin board entitled "General Safety Rules," one item of which relates to "horseplay" (Tr. 84-85).

42. The structure of the press itself affords an extensive degree of physical barrier or protection against the movement of particles to a distance. If there is any arc of movement of flying scale particles it is necessarily limited by the structure of the press (Tr. 83).

FINDINGS OF FACT RELATIVE TO POWER HOUSE AIR HOSE

(As noted above, the Respondent initially admitted by stipulation (Tr. 19) that the air hoses in the power plant and machine shop violated the standard, but Respondent disputed the abatement period and proposed penalty concerning the admitted power plant air hose violation. After the hearing in this case, the Respondent submitted a superseding stipulation dated March 13, 1972, agreed to by the Petitioner (HE-10) that the trier of the facts also consider as a disputed issue the application of the standard to the open end compressed air hose in the power plant, without requiring the record to be re-opened or further testimony taken. Since this was not in issue at the hearing, the facts will be necessarily sparse.)

43. An open end air hose was used twice a week in the power plant to clean the windings of a motor generator set. The pressure of this hose was in excess of 30 p.s.i. The hose was used to remove accumulation of dust and dirt, to keep the temperature of the windings down and prevent their deterioration (Tr. 27, 90).

44. Respondent admits the use of the power plant air hose was cleaning of machinery, and that it did not know whether the machinery could be cleaned properly by air hoses using 30 p.s.i. (Tr. 90, 91).

45. Respondent applied for a variance for the power plant air hose, but has not, as of the date of hearing, received a reply from the Department of Labor (Tr. 91).

46. Respondent's counsel stated that in regard to the power plant air hose, no finding of fact is needed, as it is an open end hose used for cleaning purposes, and it is operated in excess of 30 p.s.i. (Tr. 94).

47. The Acting Area Director, in proposing a penalty concerning the air hose violations considered the gravity of the alleged violation, the good faith of the Respondent, its size and its past history of violations. He determined with respect to Item No. 1 of the citation, that the likelihood of an injury occurring was moderate; that the degree of injury that could be reasonably expected was moderate, and would be expected to require a doctor's treatment; and that the extent of violations was at a maximum since all the air hoses used for cleaning were in violation. The fact that the Secretary withdrew one item did not affect the gravity criteria. He also specifically determined that it was not a serious violation (Tr. 41). An unadjusted penalty of $200 was proposed (Tr. 41, Ex. P-5). This was reduced by 20%, the maximum credit allowable, for history, since the Respondent had no previous history of violations under the Act, 0% credit for size since Respondent employed in excess of 100 employees, and 20% credit, the maximum amount allowable for good faith, since the Respondent had an effective safety program. These credits reduced the penalty to $120. This amount was further reduced by 50% for abatement, which resulted in a proposed adjusted penalty of $60 (Tr. 41).

48. The Acting Area Director determined the proposed penalty in accordance with directions and procedures in the compliance manual, issued by the Assistant Secretary of the Occupational Safety and Health Administration.

49. The Acting Area Director did not consider the question of Respondent's application for a variance in setting an abatement date.

DISCUSSION

As noted above, the issues to be resolved in this case are limited to whether the Respondent's use of open-end compressed air hoses (hereinafter, hoses) in excess of 30 p.s.i. pressure, in the press plant and power plant areas of the Respondent's workplace violated 29 C.F.R. 1910.242(b) (hereinafter, the standard) which forbids air pressure above 30 p.s.i. for "cleaning purposes" and requires use of 30 p.s.i. pressure for such purposes to be undertaken, "only with effective chip guarding and personal protective equipment."

The Respondent also disputes the reasonableness of the proposed penalties and the abatement periods specified for the rectifying of the alleged violations.

Turning first to the alleged hose violation in the press plant, which at first blush appears relatively minor in nature, it is important to note in the overall context of this discussion, that the record demonstrates the signal importance of this issue, not only to the Respondent but also to several other major steel fabricators whose forging operations incorporate use of a similar compressed air device and process for which the Respondent was cited (Tr. 63). Additionally, the preponderance of the evidence in this case indicates that an effective forging operation of the type herein involved, can not be carried out without the use of the hose which was found in violation of the standard by the Secretary (the description and use of which is fully outlined in the Findings of Fact above, and graphically illustrated in Exhibits P-6(a), (b), (d) and (e)). The record further indicates that if the Respondent were compelled to discontinue the use of this combination descaler and air hose device its production would be slowed down by half and eventually would come to a halt (Tr. 55-56). As grave as the foregoing considerations may appear to the Respondent (and indeed to other steel fabricators utilizing a similar device or devices) nevertheless they are referred to herein for background only, so that the issue may be placed in its proper focus, and such considerations were accorded no weight by the undersigned in arriving at the decision set forth below, which decision in essence pivots on the question of whether the descaling device in issue was used for "cleaning purposes" and therefore violative of the standard as the Complainant has charged.

For the reasons set forth below, the preponderance of the evidence compels a conclusion that the device as used in the press plant, was not primarily used for "cleaning purposes" as contemplated by the standard, but rather as a component and integral part of the forging process itself. At this juncture, it is noteworthy to observe, without more, that the Complainant came to a somewhat similar conclusion of its own volition in regard to another such hose, when at the commencement of the hearing it voluntarily withdrew its charge that the compressed air hose in the electric melt shop was not used for "cleaning purposes," (and therefore violated the standard) but was used as part of a process involving the lancing of electric furnaces for the end result of causing a "chemical reaction."

In the opinion of the undersigned a more careful analysis of the use of the press plant hose by the Respondent should have led to a similar conclusion by the Complainant that the hose was an integral part of a manufacturing process, and thus did not fall within the purview of a standard prohibiting excessive air pressure when used for cleaning purposes, and obviating the need for a contest on that issue.

In approaching the issue, it is conceded initially, that the descaling device was used inter alia to "clean" scale and chips off the lower "V" die, but this was not to clean off the die per se, (as a workman might use air pressure to clean off his bench) but as an integral part of the production process, designed to prevent to the greatest extent possible, the impregnation of the forging by scale or other impurities, which if allowed to remain on the lower "V" die would be pressed in to the forging causing it to be worthlessly defective. In my considered opinion this is not the type of cleaning which the standard contemplates.

In this regard, I would agree with the Respondent's witness, Alden, the Respondent's Safety Engineer, (whose background included extensive experience, as well as deep concern, with use and mis-use of air hoses) that the standard with which we are here concerned, envisioned use of air hoses for cleaning purposes in machine shop and woodworking operation rather than the use to which the Respondent put the hose in question, as reflected by the preponderance of the evidence outlined in the appropriate subheading under the "Finding of Facts" above.

In some part at least, Mr. Alden's position is supported by a National Safety Council publication, entitled, Accident Prevention Manual for Industrial Operations, 6th Edition, which at page 750 treats with the hazards resulting from the practice of using high pressure compressed air to blow chips from machines (especially drilling equipment) or workers clothing.

It would therefore appear that the standard's prohibition was mainly intended to apply to machine shops and woodworking operations so as to preclude workers therein from using air pressure exceeding 30 p.s.i. in cleaning their clothing or work space and thus prevent them from blowing chips or particles in to the eyes or unbroken skin of themselves or others, and forestall to the greatest extent possible, serious injury resulting from horseplay involving high pressure air hoses, a factor noted by the Complainant's witness, Carmany in his testimony (Tr. 33).

Assuming arguendo that the Respondent's use of the press plant air hose was found to be principally for "cleaning purposes' and hence violative of the letter of the standard, at least, the undersigned confesses that he would experience great difficulty even then in affirming the Secretary's Citation in respect thereto. This is especially true in view of the evidence which demonstrates that the compliance inspector did not observe the actual use of the descaling device by the Respondent and was therefore unable to testify first-hand as to any probable hazards which might relate to the use of the device, such as the distance and velocity flying chips might attain when blown off the surface of the "V" die, whether the press itself represented to any degree an effective chip guarding device, and similar relevant factors. In contrast the evidence presented by the Respondent convincingly demonstrates that the device poses no actual hazard to its operator or to others in the vicinity of its use, and that no accidents relating to the device have been occasioned in the many years of its use. To fly in the face of this evidence, which coincides with the stated legislative intent of the act (i.e., assuring safe and healthful working conditions for men and women) and bottom a finding on a mere surface violation of the letter of the standard, without more, is unwarranted and unmerited. This is particularly evident where the Complainant failed to show either that the coverage of the standard applied to all cleaning operations without exception or specifically to the hose as used in the press plant. [In this respect see Section II of the Respondent's Reply Memorandum, HE-15, with which I am in accord.]

The remaining issue, belatedly raised by stipulation of the parties after the termination of the hearing, as previously detailed, relates to the use of a compressed air hose in the Respondent's power house, allegedly used for cleaning purposes with an air pressure exceeding 30 p.s.i.

The Respondent originally stipulated (Tr. 19) that this hose violated the standard and that it was used for "cleaning purposes" (Tr. 90, 91, 94), but reserved the right to dispute the reasonableness and propriety of the abatement period and the proposed penalty.

However, the superseding stipulation (H-10) requests that the question of whether the power house hose violated the standard be reviewed also "without requiring the record to be re-opened, or further testimony taken."

In view of this eleventh hour stipulation, and the necessarily sparse record relating to the power plant hose, the undersigned on the basis of the Findings of Fact numbered 43 through 46, above, is obliged to hold that the hose in question violated the applicable standard (29 C.F.R. 1910.242(b)) since it was used for "cleaning purposes" and its pressure exceeded the maximum of 30 p.s.i. permitted by the standard for such purposes.

The record at this point reflects that the Respondent's use of excessive air pressure in the power plant and machine shop hoses violated the applicable standard. In the Citation the Respondent was assessed a total penalty of $60.00 for alleged violation in those areas and in two other areas (the press plant and the electric melt shop, the press plant use was found not to violate the standard, and the charge of violation in the electric melt shop was formally withdrawn by the Complainant at the commencement of the hearing), this total penalty of $60.00 was not assessed at the rate of $15.00 per violation, but on the basis of a fixed uniform formula, which incorporated inter alia the criteria of probability and severity of injury and the extent to which the standard was violated. (Tr. 37-45).

While under the aforementioned formula, the $60.00 total penalty, may still be appropriately assessed, other considerations alluded to below, operate to persuade the undersigned to vacate the proposed $60.00 penalty assessment relating to the two air hoses out of three at issue here, which were in violation of the standard.

The first applicable consideration is Commission precedent. Under the principle of stare decisis, Commission precedent binds the undersigned and he must credit the decision of the Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Co., Inc., [OSAHRC Docket #123] wherein the Commission, while sustaining the Secretary's non-serious Citation of violation by the Respondent of seven job safety standards, reduced the proposed total penalty from $198.00 to zero, noting at the same time that the principal purpose of the Act is to obtain compliance with its requirements in order to insure a safe and healthful workplace, noting further that, "Relatively minor monetary penalties do little to effectuate this objective. We, therefore, will look carefully at cases involving such proposed penalties."

While the Commission's expression in Chilton provides impetus and support to the vacation of the $60.00 penalty, the undersigned in any event was persuaded to order the penalty vacated, on the further grounds that the Respondent has impressed the trier of the facts with its good faith efforts to comply with the applicable safety standards, that it has a good safety record and program, and from the common sense viewpoint that the compliance posture and attitude of a multi-million dollar corporation, (and concomitantly the safety and health of the employees in its workplace) most certainly will not be enhanced, or improved by the imposition of a mere $60.00 fine, which minor monetary penalty, may in fact have the opposite effect of diminishing and minimizing the normal degree of seriousness accompanying such cited violations, which unfortunate result weakens the thrust of the Act itself and blunts the legislative purpose of assuring to every working man and woman in the nation safe and healthful working conditions.

The remaining issue relates to the propriety of the abatement period allocated by the Secretary to rectify the power plant air hose violation, a period of approximately 15 days. At the hearing the Respondent represented that it has filed for a variance (Tr. 94) regarding this hose, and in its Post Hearing Memorandum (H-12) requests the Commission to grant an extension of the aforementioned abatement period, so that the Respondent may have sufficient time to apply for variance from the standard pursuant to applicable sections of the Act.

In its Rebuttal Memorandum (HE-14) the Complainant argues inter alia (and justifiably so) that such an extension should be granted only on the Area Director's determination that temporary alternative safety measures are available pending a decision on the variance.

While by now it would appear that sufficient time has elapsed for the rendering of a determination by the Secretary as to the variance relating to the power plant hose which the Respondent assertedly filed, in view of the Respondent's apparent good faith as reflected throughout this proceeding and the Respondent's concern with good safety practices, the undersigned is disposed to grant the requested extension until such time as the variance request is acted upon, this extension to be granted under the express condition, and subject to, a determination by the Area Director of the Occupational Safety and Health Review Commission that temporary alternative safety measures applicable to the use of the power plant air hose, are temporarily adequate and in continuous effect as an adjunct to the use of said air hose.

CONCLUSIONS OF LAW

Based upon all of the foregoing, and on the preponderance of the evidence in the record as a whole, the undersigned concludes that:

1. At all times mentioned herein, the Respondent was, and still is, an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and the Commission has jurisdiction of the parties and of the subject matter referred to herein.

2. The Respondent is, and at all times material hereto was, subject to the requirements of the Act and the standards promulgated thereunder.

3. The Respondent's operation and use of an open-end compressed air hose in excess of 30 p.s.i. pressure in its power plant and in its machine shop constituted violations of 29 C.F.R. 1910.242(b) as charged in Item 1 of the Citation.

4. The Respondent's operation and use of a de-scaling device which incorporated an open-end compressed air hose with pressure exceeding 30 p.s.i. in its press plant did not constitute a violation of 29 C.F.R. 1910.242(b) as charged in Item 1 of the Citation.

5. The Complainant's withdrawal of its charge in Item 1 of the Citation, that the Respondent's operation and use of a compressed air hose in the Respondent's electric melt shop violated 29 C.F.R. 1910.242(b) since its pressure exceeded 30 p.s.i., was properly effectuated.

6. The proposed penalty of $60.00 imposed for the violations of 29 C.F.R. 1910.242(b) as noted in Conclusion 3 above, was inappropriate and unsuitable under the circumstances herein.

7. The abatement period specified for the rectification of the machine shop air hose violation was reasonable and proper and is not disputed by the Respondent.

8. The abatement period specified for the correction of the air hose violation in the power plant, under the applicable facts and circumstances, was not reasonable or appropriate.

9. As conceded prior to the hearing by the Respondent Items 2 and 3 of the Citation, were violative of 29 C.F.R. 1910.316(d) and 29 C.F.R. 1910.314(d), respectively, nor does the Respondent dispute the applicable assessed penalties or abatement periods, which were reasonably and appropriately prescribed within the aforementioned concession and circumstances.

ORDER

In view of the foregoing, and good cause appearing therefor it is ORDERED that:

1. So much of Item 1 of the Citation charging that the use and operation by the Respondent of compressed air hoses in the Respondent's power plant and machine shop violated 29 C.F.R. 1910.242(b) is hereby affirmed.

2. So much of Item 1 of the Citation charging that the use and operation by the Respondent of compressed air hoses in the Respondent's press plant and electric melt shops violated 29 C.F.R. 1910.242(b) is hereby vacated.

3. The proposed penalty of $60.00 for the air hose violations in the power plant and machine shop is hereby vacated.

4. The prescribed abatement period of approximately 15 days to correct the power plant air hose violation is hereby extended until such time as the Complainant renders his determination on a variance request previously made relative thereto, such extension to be operative under the express condition precedent that the Occupational Safety and Health Review Administration Area Director determines that pending receipt by the Respondent of the variance decision, interim alternative safety measures applicable to the use of the said air hose are adequate to safeguard the health and safety of affected employees. If the Area Director determines the Respondent's alternative safety measures to be inadequate the original abatement period of 15 days shall become operative as of the date of receipt by this tribunal of the Area Director's determination thereof.

5. Items 2 and 3 of the Citation are hereby affirmed in all respects.