AMORY COTTON OIL COMPANY

OSHRC Docket No. 10330

Occupational Safety and Health Review Commission

January 6, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Norman Winston, Associate Regional Solicitor, USDOL

Michael Malski, Michael Malski Law Office, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue before us in this case is whether Administrative Law Judge John S. Patton erred in denying Complainant's motion at trial to amend his citation and complaint alleging that Respondent violated the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). For the reasons given below we reverse the judge's ruling and remand.

Respondent processes cottonseed. To this end the seed is transported by a screw conveyor located in the floor of Respondent's seed-house. The conveyor is not covered during the seed moving process. Seed is fed to the conveyor manually, i.e., an employee either stands or kneels at a conveyor opening and pushes the seed in with a large fork. The conveyor openings were not guarded in any fashion.

After an employee was fatally injured while feeding seed into the conveyor in this manner Complainant issued a citation alleging that Respondent had failed to comply with the standard published at 29 C.F.R. [*2] 1910.219(c)(2)(i). n1 The citation and subsequent complaint in addition contained the following parenthetical phrase: "See also Sections [sic] 1910.23(c)(3) and 1910.212(a)(1)." n2 Upon receipt of the citation Respondent guarded the conveyor opening with a railing and toeboards according to the terms of section 1910.23(c)(3) but also notified Complainant that it was contesting the citation.

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n1 Section 1910.219 is entitled "[m]echanical power-transmission apparatus." Subparagraph (c)(2)(i) requires that "[a]ll exposed parts of horizontal shafting seven (7) feet or less from floor or working platform, excepting runways used exclusively for oiling, or running adjustments, shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires."

n2 Section 1910.23(c) provides as follows: "Protection of open-sided floors, platforms, and runways . . . . (3) Regardless of height, opensided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board."

Section 1910.212 is entitled "[g]eneral requirements for all machines." Paragraph (a)(1) requires that "[o]ne 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."

[*3]

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A complaint was filed, and as required by our rules counsel for Respondent filed an answer. By its answer Respondent denied the allegation that it had failed to comply with section 1910.219(c)(2)(i). Special defenses were not raised. However, at the outset of the hearing before Judge Patton Respondent's counsel "demurred" to the complaint; i.e., he moved for dismissal on the ground that the complaint failed to state a claim upon which relief can be granted (Fed. R. Civ. P. 12(b)(6)). n3 Specifically, it was argued that standards governing mechanical power transmission apparatus do not require guarding of screw conveyors because such conveyors are not apparatus for the transmission of power.

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n3 See note 4 infra.

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In response, Complainant moved to amend the citation and complaint to allege that Respondent had also violated sections 1910.23(c)(3) and 1910.212(a)(1). Respondent opposed the motion, saying that it had come to the [*4] hearing prepared to try only the issue of whether Respondent was in violation of section 1910.219(c)(2)(i). Judge Patton agreed and denied Complainant's motion for being untimely. In our view, Respondent's motion, although appropriate, was untimely, and therefore the judge committed error by denying the motion to amend.

In this regard Rule 12(b) of the Federal Rules of Civil Procedure applies because we do not have a rule stating when particular defenses must be made. n4 Rule 12(b), in pertinent part, provides that

"[e]very defense, in law or fact, to a claim for relief . . . shall be asserted in the responsive pleading thereto [the answer] . . . except that the following defenses may at the option of the pleader be made by motion . . . (6) failure to state a claim upon which relief can be granted . . . A motion making any of these defenses shall be made before pleading if a further pleading [the answer] is permitted." (Emphasis supplied).

Clearly, a motion to dismiss for failure to state a claim should be made before an answer to the complaint is filed or it should be made in the answer.

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n4 Commission Rule 33(b) (29 C.F.R. 2200.33(b)) only requires a Respondent to make "a short and plain statement denying those allegations in the complaint which the party intends to contest." Commission Rule 2(b) makes the Federal Rules applicable in the absence of a specific Commission Rule.

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In this case, however, Respondent answered and did not mention its special defense. It did not file any pre-hearing motion raising the defense. Rather it sat back and waited for the hearing to start, and then for the first time made its motion. Respondent did not give any reason for its delay. In these circumstances we conclude that the motion to dismiss was untimely but nevertheless should be allowed for being meritorious. However, elemental fairness dictates that Complainant should also be allowed to amend his citation and complaint. Complainant did not have prior notice that his pleadings were defective. Thus for the judge to say that Complainant's motion to amend made immediately upon receiving notice was untimely and therefore deny it was to err.

We will remand for it may well be that [*6] Respondent could raise specific defenses to 29 C.F.R. 1910.23(c)(3) and 1910.212(a)(1). We will not foreclose Respondent from now raising such defenses if it so desires. Therefore we do not now decide whether Respondent is in violation of either of these standards on the record before us. Similarly, we do not express any opinion as to which of these standards, the general machine guarding standard (section 1910.212(a)(1)) or the standard requiring protection of open-sided floors and platforms (section 1910.23(c)(3)), is applicable.

Accordingly, the judge's order denying Complainant's motion and dismissing the citation and complaint is reversed and this matter is remanded for further proceedings consistent with this decision.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Patton correctly decided this case, and his decision should be affirmed. His well written decision is attached hereto as Appendix A. In it he considered all the matters raised in the majority's opinion. His consideration of the time factor involved in complainant's change of position is particularly noteworthy. I quote a small portion thereof:

"The [respondent's] answer was filed in excess of three months [*7] prior to the date of hearing. There is not a single thing, so far as the evidence indicates, that the complainant knew with reference to the necessity or desire to amend on the date of the hearing that the complainant did not or should not have known on the date that the answer was filed some three months previously, the date at which the issues were joined. The complainant could at any time, months prior to the hearing, have made its application for an amendment. Had the complainant done so and had the amendment been granted the respondent would have had ample time to have prepared a complete defense to every charge being made by complainant. Rather than following this course the complainant permitted the pleadings to stand as originally drafted and made no application to expand the pleadings so as to bring in a new theory of what should have been done until all parties appeared at the hearing ready to proceed to trial."

In the face of the foregoing, my colleagues incredibly find - not that complainant was wrong - but that the respondent's motion was untimely - and that the Judge committed error by not allowing the Secretary of Labor's delayed motion to amend.

Since I have [*8] seen it in so many other cases, I can understand my colleagues' efforts to give the Secretary of Labor a second chance. However, the reasons for so doing which they set forth in the majority opinion do not ring true. Rule 12(h)(2) of the Federal Rules of Civil Procedure provides that "[a] defense of failure to state a claim upon which relief can be granted . . . may be made . . . at the trial on the merits." Thus, it is clear that Rule 12(b) is permissive insofar as it pertains to this type of motion, and my colleagues' reliance thereon is misplaced.

It is senseless to remand this case for a hearing on whether the respondent failed to comply with 29 C.F.R. 1910.212(a)(1). The Judge has already properly decided that the respondent has established the defense of impossibility of compliance with that regulation. Accordingly, he held that he would not affirm a violation thereof even if he were to grant the amendment.

The Judge's setion in denying the motion to amend to an allegation of noncompliance with 29 C.F.R. 1910.23(c)(3) was also entirely proper. The respondent had been charged in the citation and complaint with noncompliance with 1910.219(c)(2)(1) which requires the [*9] shafting be enclosed by a stationary casing or by a trough. Section 1910.23(c)(3) requires guarding with a standard railing and toeboard. Comparing the requirements of the two standards, the Judge concluded that it would be wrong to grant the amendment because it would result in the substitution of a new charge. I agree with his conclusion. The Act's purpose of reducing injuries by correcting hazardous work conditions is ill-served by the majority's judicial broken-field running in an apparent attempt to find something upon which to convict this employer.

Whether or not the complainant's motion to amend should have been granted was a discretionary matter for the Judge, and his denial of the motion should not be reversed except for an abuse of discretion. Komie v. Buehler Corporation, 449 F.2d 644, 647 (9th Cir. 1971); In re Westec Corporation, 434 F.2d 195, 203 (5th Cir. 1970); Hale v. Ralston Purina Company, 432 F.2d 156, 159 (8th Cir. 1970); Fed. R. Civ. P. 15(a). Not only was there no abuse of discretion by the Judge in this case but, to the contrary, his action on the complainant's motion was correct.

The Act specifically requires that each citation [*10] "shall describe with particularity the nature of the [alleged] violation." 29 U.S.C. 658(a). Allowance of an amendment which states an entirely different violation is contrary to this congressional mandate and should not be permitted by this Commission. n5 It should not be forgotten that the Secretary of Labor's enforcement powers are enormous. Even if he loses a case today because of an improper citation, he can reinspect tomorrow and start a new proceeding. The effort to correct hazardous working conditions is not lost when the Secretary loses a case - but the effort to achieve equal justice under law is set back by decisions such as this.

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n5 A citation is a unique document - peculiar to this statute because it has purposes other than to simply initiate a legal proceeding. I discussed this at greater length in Secretary v. Everhart Steel Construction Co., 16 OSAHRC 696, 699-700 (1975).

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APPENDIX A

DECISION

George Palmer, Office of the Solicitor, U.S. Department of Labor, appearing for the Complainant [*11]

C. Michael Malski, appearing for the Respondent

PATTON, Judge

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereinafter called the Act) contacting a citation issued by the complainant to the respondent under the authority of section 9(a) of the Act. It is alleged that respondent failed to protect an employee loading the tunnel conveyor in number 1 seed house from the moving screw conveyor, a horizontal power transmission shaft, located lower than seven feet above floor level. It is alleged that respondent thereby violated standard 29 CFR 1910.219(c)(2)(i).

Hearing was held before the undersigned judge the 21st of February 1975, at Aberdeen, Mississippi. Mr. George Palmer appeared as counsel for the respondent. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It is alleged that respondent violated standard 29 CFR 1910.219(c)(2)(i) by failing to protect its employee loading a tunnel conveyor in its seed house from the moving screw conveyor. The respondent at the hearing sought to amend to also allege violation of standards 1910.23(c)(3) and 1910.212(a)(1). The motion to amend was [*12] denied. The ruling on this motion to amend is reviewed in this decision and is discussed below.

The first issue for determination is whether said motion to amend should have been granted. The next issue for consideration is whether the respondent should have covered the screw conveyor. It is the position of the respondent that said standard 29 CFR 1910.212(c)(2)(i) does not apply to said screw conveyor and that said screw conveyor is not a power transmission shaft. It is further the position of the respondent that it is impossible for said screw conveyor to convey the feed, which is the only function of said conveyor if said conveyor is covered as set forth in standard 29 CFR 1910.219(c)(2)(i).

EVIDENCE IN THE CASE

Respondent admitted in its answer that respondent is a corporation with a place of business at Amory, Mississippi, where it is engaged in a cotton seed mill business. Respondent admitted that at all times relevant to this cause respondent was engaged in receiving and using in its business materials, supplies and equipment received from points outside the state of Mississippi and selling it produces for transportation to points outside the state of Mississippi. [*13] Respondent admitted that it is engaged in a business affecting interstate commerce within the meaning of the Act.

On September 30, 1974, respondent's employee, Mr. Lewis, while feeding the screw conveyor, caught his leg in the screw conveyor. His leg was torn off and he died from his injuries (Tr. 22, 23, 24).

The screw conveyor and the operation relating to said conveyor were described in the testimony as follows:

Mr. Ernest Jones, mill superintendent for the respondent for 30 years, testified that the respondent has a seed house which is 90 X 200 feet long. At the time of inspection the whole seed house was filled with seed (Tr. 17). An employee takes a front end loader seed bin and discharges seed into the tunnel (Tr. 17, 18, 19). The respondent has three shifts, one seed feeder working each shift (Tr. 19). The employee stays in the tunnel most of his eight hour working day (Tr. 19, 20). The respondent has three seed houses in all (Tr. 27). The respondent has a screw conveyor which conveys the seed and is below the surface at a point at which the employee kneels (Tr. 28). The conveyor is in a nine inch wide box, said box being about 14 inches deep (Tr. 28-29). The [*14] conveyor referred to tunnel conveyor or a screw conveyor and it only conveys cotton seed (Tr. 29). The screw conveyor does not transfer power. It just carries seed to the mill after the seed is fed in (Tr. 32-33). It is a nine inch screw which is 230 feet long (Tr. 34, 35, 36). The concrete opening is roughly the same dimension as the box (Tr. 35). Each wooden section of the tunnel is nine feet ten inches long. Mr. McCoy, the compliance officer, testified that the screw conveyor discharges into a verticle bucket or modified bucket elevator to take the cotton seed material in a verticle direction elsewhere into the mill (Tr. 44). The screw conveyor is powered by a three phase 440 volt induction electric motor driving through a series of pulleys which reduces the speed and increases the torque to place the screw conveyor itself in a useful operating speed. The conveyor taking its power from the electric motor (Tr. 44). The screw conveyor normally turns about 10 to 30 revolutions per minute. It is operated by a 15 horsepower or so electric motor which so reduces its speed that the conveyor develops many hundreds of foot pounds of torque or twisting action (Tr. 44-45). The electric [*15] motor drives a series of shafts, pulleys and power transmission belts and chains which in turn transmits the rotary motion into the horizontal screw conveyor shaft. The basic element of the shaft itself is heavy duty high quality steel or stainless steel (Tr. 46). The shaft is a round cylinder which is in horizontal latitude (Tr. 46). Heli-coil also called the ribbon or a flat is attached to the center of the shaft. The ribbon is sheet steel, heavy grade which is wound by a special machine about the steel shaft. It is then welded to the shield shaft (Tr. 46). The respondent has issued instructions to employees to keep all of the conveyor covered up except the part they are feeding (Tr. 31). Mr. Jones stated all but the top of the screw conveyor was enclosed (Tr. 31). It takes about three and one half months to empty the seed house when it is full (Tr. 32). The employee needs to work there only so long as it takes to get it to the point where an automatic feeder can be used. It takes about three weeks before the automatic feeder can be used (Tr. 32). The respondent tried several years ago to cover with mesh wire the part being fed rather than using a wooden cover. Mr. Jones [*16] believed the wire was two and a half inch mesh. He stated that it did not work however because the seed would not go through it (Tr. 36-37).

Mr. Thomas Greer, Executive Vice President of the company stated that if the top of the screw conveyor was completely covered there would be no way to load it (Tr. 62). The compliance officer, Mr. McCoy conceded that it would be a very, very difficult design problem to completely enclose the conveyor, particularly moving materials such as cotton seed (Tr. 55). He stated that as an engineer he would agree that the task would be considerably more difficult than it appeared to be at the time it was demonstrated to him (Tr. 56).

He stated that he believes that it would be a practical approach to sweep or shovel outside the tunnel at a reasonable location and move the materials into a flight of the conveyor (Tr. 54, 55). He stated he could not guarantee a feasible alternative but a promising approach would be a clutch arrangement back at the drive train close to the electric motor where it transmits power down to the horizontal shaft. He stated that it would involve intermittent stop-start operations of the motor with a clutching and declutching [*17] mechanism or both (Tr. 58).

He stated that theoretically there would be other alternatives in terms of inclining the floor. He further stated, however, that he could not guarantee it would be feasible from either the operations or economic standpoint (Tr. 58). According to Mr. McCoy a theoretical alternative might be a redesign of material handling equipment, otherwise known as cross conveyors. He stated, however, that he couldn't say this would be feasible (Tr. 58).

Respondent had a safety cord which the operator could pull in an emergency stopping the conveyor (Tr. 24). Mr. Greer testified that they have now installed toeboards and guardrails. He stated that proposed regulation 29 CFR 1910.186 refers to standard 29 CFR 1910.23 which requires it (Tr. 62). He stated some companies use belt conveyors (Tr. 65).

EVALUATION OF THE EVIDENCE

The first issue for determination is whether the complainant should have been permitted to amend the complaint at the hearing so as to alleged violations of standards 29 CFR 1910.23(c)(3) and 29 CFR 1910.212(a)(1). As above stated said motion was made by the complainant at the beginning of the hearing and was renewed at the conclusion [*18] of the hearing. This judge denied said motion and refused to permit the amendment.

After carefully reconsidering this question, this judge is of the opinion that said denial of said motion was proper and should be reaffirmed. The citation and the complaint make the following allegation.

"Failure to protect employee loading the tunnel conveyor in No. 1 seed house from the moving screw conveyor, a horizontal power transmission shaft located lower than seven feet above the floor level (see also sections 1910.23(c)(3) and 1910.212(a)(1), the standard violated 29 CFR 1910.219(c)(2)(i))."

The standards in question are as follows:

Standard 29 CFR 1910.219(c)(2)(1)

"All exposed parts of horizontal shafting seven feet or less from floor or working platform, excepting runways used exclusively for oiling, or running adjustments, shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires."

Standard 29 CFR 1910.23(c)(3)

"Regardless of height open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, picking of galvanizing tanks, degreasing [*19] units, and similar hazards shall be guarded with standard railing and toeboard."

Standard 29 CFR 1910.212(a)(1)

"One or more methods of machine guarding shall be provided to protect the operator and other employees in 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."

The language of the original citation is sufficiently broad to cover all of said standards. It will be noted, however, that the only standard allegedly violated is standard 29 CFR 1910.219(c)(2)(i). For the respondent to ascertain what respondent is accused of doing wrong the respondent must turn to standard 29 CFR 1910.219(c)(2)(i). Since said standard is the only standard allegedly violated the only alleged wrongful conduct is described in standard 29 CFR 1910.219(c)(2)(1). Said standard recites that employees shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires. Said standard therefore deals entirely with enclosure [*20] or the shaft. The respondent was entitled to assume that it must only defend a failure to enclose as required by said section, Standard 29 CFR 1910.23(c)(3) deals with guarding by an entirely different means. Said standard requires guarding with a standard railing and toeboard. The respondent was not told until the day of hearing that respondent was in violation of law for failing to have a standard railing and toeboard. It is true that the citation and complaint contain the following words after a description of the violation "(See also sections 1910.23(c)(3) and 1910.212(a)(1))." However failure to do what is required in these sections is not alleged to be a violation.

It would therefore seem inequitable to permit the complainant to amend to expand its allegations to other violations. The complainant could be permitted to amend where the basic allegations or violations are substantially the same and a wrong standard has simply been cited (See Secretary of Labor v. Hawkins Construction Co., 8 OSAHRC 569).

In instances where there is an actual difference in the alleged violation in the citation and in the amendment however amendments have not been allowed. It is true [*21] that in the case at bar the amendment relates to the general subject of making the screw conveyor safe. A subsequent regulation proposed and published after the date of inspection does incorporate by reference standard 29 CFR 1910.23. The undisputed testimony was that upon learning of said proposed standard the respondent conformed thereto by placing guardrails and toeboards around the screw conveyor. Therefore the requirements of said section have actually been abated. In the cases of Secretary v. Ryder & Co., 5 OSAHRC 754 and Keibler Industries Inc. 3 OSAHRC 1157, it was held that amendments to the citation would not be allowed because of substantive changes in the complainant's position.

Even if an amendment would have been proper if request had been timely made this judge is of the opinion that the timing of the request for amendment makes it improper for that amendment to be granted. This is not a situation where the complainant suddenly discovered an error had been made or upon discovering that an amendment was necessary immediately made application for an amendment. This is not even a situation where unexpected developments of the evidence caused the complainant [*22] to make a change in position and to request an amendment conforming the pleadings to the proof. The complainant at all times insisted that the violation was a violation of standard 29 CFR 1910.219(c)(2)(i). The complainant maintained this position at the hearing and still maintains it in its brief. The complainant does not take the position that inadvertently the wrong section was cited or the wrong position was taken. It is the position of the complainant on the contrary that out of abundance of precaution the complainant wishes to take alternative positions. The complainant states that in the event complainant should be held to be in error in its position that standard 29 CFR 1910.219(c)(2)(i) applies the respondent should be permitted to insist that the other standards have applicability.

The answer was filed in excess of three months prior to the date of hearing. There is not a single thing, so far as the evidence indicates, that the complainant knew with reference to the necessity or desire to amend on the date of hearing that the complainant did not or should not have known on the date that the answer was filed some three months previously, the date at which the issues [*23] were joined. The complainant could at any time, months prior to the hearing, have made its application for an amendment. Had the complainant done so and had the amendment been granted the respondent would have had ample time to have prepared a complete defense to every charge being made by the complainant. Rather than following this course the complainant permitted the pleadings to stand as originally drafted and made no application to expand the pleadings so as to bring in a new theory of what should have been done until all parties appeared at the hearing ready to proceed to trial. Even if the respondent may have known that guard rails and toeboards were a possibility and that the complainant felt they could have been used, the respondent was not placed on notice that it must defend a failure to have such guarding when the only violation alleged by either the citation or the complaint was a failure to enclose the screw conveyor. Section 29 CFR 1910.212 is more general in scope but respondent was not advised that said standard was alleged to be violated. If this judge had granted the request to amend at the hearing one or two courses could have been followed. The parties could [*24] have been forced to immediately proceed to trial in which event the respondent would have been required to meet an issue which the pleadings did not advise him would have to be met, or this judge could have granted a continuance. In the latter event the parties would have been put to the additional expense of another hearing and the trouble of bringing witnesses a second time to dispose of the case that could have been disposed of the first time. These latter considerations would not be compelling but for the fact that the complainant could have very easily alleviated any such problems by making its request for amendment well in advance of hearing. The public interest is served by a liberal policy of amendment which enables a matter to be fully litigated on the merits. It does not appear however that the public interest is served by permitting a party to delay expanding its position until the hearing when amendment could easily have been prayed earlier. An amendment can be granted at the hearing in an appropriate case. It does not however appear that under the circumstances of this case said amendment should be granted at the hearing.

An issue is presented as to whether the [*25] complainant is entitled to take alternative positions. In the case of Secretary of Labor v. Sun Ship Building and Drydock, 4 OSAHRC 1020 the Review Commission held that the general duty section of the Act, section 5(a)(1), cannot be applied if there is a specific standard governing the subject. In a concurring opinion Commissioner Cleary stated that in his opinion the complainant could adopt alternative theories and proceed both under section 5(a)(1) and section 5(a)(2). The question of whether or not alternative theories could be adopted was not discussed in the majority decision. Said decision therefore does not answer the question of whether a violation of section 5(a)(1) could have been found if it had been held that there was no specific standard applicable. A general principal of the law is that a specific standard will govern over a general standard. For the reasons set forth below this judge is of the opinion that the cited standard 29 CFR 1910.219(c)(2)(i) does not apply to the facts of this case. In view of the lack of timeliness of said request for amendment it is not necessary for this judge to determine the issue of whether or not the complainant could [*26] adopt alternative positions. The ruling at the hearing that said amendment should not be allowed is therefore reaffirmed.

The next issue for decision is whether standard 29 CFR 1910.219(c)(2)(i) applies to the facts of this case. The first part of said standard 29 CFR 1910.219(a) states as follows:

"(1) This section covers all types and shapes of power transmission belts, except the following when operating at 250 feet per minute or less: (i) flat belts one inch or less in width, (ii) flat belts two inches or less in width which are free from metal lacings or fasteners, (iii) round belts one half inch or less in diameter; and (iv) single strand V-belts, the width of which is 13/37 inch or less."

It will be observed that said sections specifically state that standard 29 CFR 1910.219 applies only to types and shapes of power transmission belts. The evidence in this case is that the screw conveyor did not convey any power but received its power from an electric motor. The only thing conveyed by the screw conveyor was the product itself that is the cotton seed. Standard 29 CFR 1910.219 cannot be stretched to cover anything other than power transmission belts when the standard specifically [*27] says that power transmission belts is what the standard relates to. To hold that said standard applies to an apparatis which conveys a product but which does not transmit power would be to amend the standard by judicial construction. An amendment of a standard by judicial construction is of course beyond the power of this judge.

Even in the event this judge should be in error in not permitting the amendment insofar as standard 29 CFR 1910.212(a)(1) may require the same thing required by standard 29 CFR 1910.219 this judge is of the opinion the complaint still cannot be sustained. The respondent kept all of the screw conveyor covered except those parts that had to be exposed to permit the feed to come in contact with the conveyor. The testimony of the respondent was that an attempt was made several years ago to use a wire mesh covering the conveyor. The wire had approximately two and one half inch spacing. This attempt proved unsuccessful because it was found that the feed would not adequately come in contact with the conveyor and of course if the conveyor did not convey the seed the conveyor did not serve any purpose. It will be noted that the compliance officer of the complainant [*28] who is a highly trained engineer stated that he agreed it would be "a very, very difficult design problem to completely enclose the conveyor, particularly moving materials such as cotton seed." He further stated "as an engineer I would agree that the task would be considerably more difficult than at the time it appeared to be demonstrated in complainant's Exhibit 1(a)." Mr. McCoy further stated that alternate methods of moving the seed which would be safer to the employees could conceivably be adopted but that he was not in a position to guarantee that they would work from an engineering or economical standpoint. In the opinion of this judge the evidence is therefore very strong that it is an engineering impossibility for the respondent to cover the screw conveyor and at the same time have the screw conveyor perform its function. The Review Commission has held that although difficulty of operation is not a defense, impossibility of complying with the standard is. For said reason, even if standard 29 CFR 1910.212 should be held to encompass the same type of protection as that set forth in 29 CFR 1910.219 and if it be held that said standard should be to that extent applied to this [*29] case, the complaint still must fail. To apply standard 29 CFR 1910.212 to this case insofar as it may require any protection to employees not encompassing standard 29 CFR 1910.219 would certainly be a denial of due process to the respondent for the reasons hereinabove set forth.

FINDINGS OF FACT

1. Respondent is a corporation with a place of business in Amory, Mississippi where it is engaged in the cottonseed mill business. At all times relevant to this cause respondent was engaged in receiving and using in this business materials, supplies and equipment received from points outside the state of Mississippi and selling its products for transportation outside the state of Mississippi.

2. In its operations at said plant the respondent used a screw conveyor which conveyed the cotton seed through a tunnel.

3. Said screw conveyor did not transmit any power but received its power from an electric motor.

4. On or about September 30, 1974, an employee of respondent became entangled in said screw conveyor with the result that his leg was amputated and he lost his life.

5. At the time of said accident and at the time of the inspection on September 30, and October 1, 1974, respondent [*30] had said screw conveyor covered except in those parts in which cotton seed was reaching the conveyor, but it was uncovered at the point at which the cotton seed was reaching the conveyor.

6. It is an engineering impossibility for the screw conveyor to transmit cottonseed if the screw conveyor is covered.

7. Respondent did not at the time of said accident or at the time of inspection have guard rails or toe boards next to said screw conveyor.

8. The respondent at the time of trial had installed guard rails and toeboards next to said screw conveyor.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. The request to amend the complaint made at the hearing so as to add to the allegations of the complaint that standard 29 CFR 1910.23(c)(3) and 29 CFR 1910.212(a)(1) have been violated should be denied.

3. Standard 29 CFR 1910.219(c)(2)(i) applies to power transmission belts and not to the respondent's screw conveyor which did not transmit power and therefore has no applicability to the facts of this case.

4. A respondent is not in violation of a standard if [*31] the evidence establishes that compliance with said standard is an engineering impossibility.

ORDER

It is therefore ORDERED that:

1. The motion to amend the citation and complaint so as to allege violation of standard 29 CFR 1910.23(c)(3) and 29 CFR 1910.1910.212(a)(1) is denied.

2. The respondent is not in violation of standard 29 CFR 1910.219(c)(2)(i).

3. The citation and complaint are dismissed.

Dated this 2nd day of June, 1975.

JOHN S. PATTON, Judge,