IDAHO TRAVERTINE CORPORATION

OSHRC Docket No. 1134

Occupational Safety and Health Review Commission

April 20, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Regional Solicitor, U.S. Department of Labor

G. Rich Andrus, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an [*2] unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

For the reasons stated in the Judge's decision, which is attached hereto as Appendix A, I would affirm the Judge's vacation of items 4, 7 and 9 of the citation for nonserious violations. In addition, both citations should be vacated in their entirety because complainant failed to prove that respondent's working conditions were not excluded from jurisdiction of the Occupational Safety and Health Act by virtue of 29 U.S.C. 653(b)(1) after respondent in good faith raised the issue of lack of jurisdiction on the ground that jurisdiction rests with the Department of the Interior. See my dissenting opinion in the earlier decision in this case, dated September 30, 1975, for a full discussion of this issue. Finally, the citation for a serious violation and item 8 of the citation for nonserious violations must be vacated because the standards codified at 29 C.F.R. 1910.213 were improperly promulgated and are therefore invalid. [*3] See Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Malcolm R. Trifon, for Complainant

G. Rich Andrus, for Respondent

ON REMAND

Donegan, Judge: The Commission reversed the decision n1 vacating the citations and proposed penalties issued to the Respondent on June 16, 1972, and held that any lack of OSHA application under section 4(b)(1) of the Occupational Safety and Health Act is an affirmative defense which the Respondent failed to prove. The case has been remanded for findings of fact on the merits, and to afford the parties an opportunity to submit additional evidence and argument on the section 4(b)(1) issue.

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n1 The decision of former Judge Winters was based on a finding that the Complainant had failed to prove that the Occupational Safety and Health Act was applicable to the Respondent's worksite when this issue was raised by the Respondent. Having disposed of the case on the section 4(b)(1) issue, no findings of fact were made on the merits of the citation.

[*4]

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The Commission applied a "Memorandum of Understanding" n2 to the section 4(b)(1) issue and notes that the parties may well have presented their proof differently if this "Memorandum" anteceded the hearing.

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n2 After Judge Winters' decision had been directed for review by the Commission, a "Memorandum of Understanding" was entered into between the Mining Enforcement and Safety Administration (MESA) of the Department of the Interior and the Occupational Safety and Health Administration (OSHA) for the purpose of clarifying the application of the statutes dealing with employee safety and health. In applying the "Memorandum" to the record in this case, the Commission held that under its terms "MESA" would exercise no authority to prescribe or enforce safety or health standards at the Respondent's worksite.

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Following the reassignment on remand of this case to the undersigned Judge, counsel for the parties stipulated that they have no additional [*5] evidence to offer and that the case may be submitted for decision on the basis of the record of the hearing conducted before Judge Winters in Idaho Falls, Idaho on November 21, 1972.

The Respondent quarried Travertine stone which was trucked some 40 to 80 miles to a worksite at Idaho Falls, Idaho where the Travertine stone slabs were processed.

As a result of an inspection of this Idaho Falls worksite by an OSHA compliance officer on May 23, 1972, the Respondent was issued on June 16, 1972 a citation for a serious violation, a citation for 13 nonserious violations, and a notification of proposed penalties of $1,345.

The citations, proposed penalties and cited standards n3 which the Respondent timely contested are as follows:

Citation Number One (Serious) --

"The radial saw in the rack area, does not have a guard for the sides of the lower exposed portion of the saw blade."

Abatement Date: July 17, 1972

Proposed Penalty: $750

Standard cited: 29 CFR 1910.213(h)(1)

1910.213 Woodworking Machinery Requirements

* * *

(h) Radial Saws

(1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The [*6] upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

Citation Number One (Nonserious) --

Item Number 1 - "Failure to provide and implement a plan of administrative or engineering controls to reduce sound level for employees to permissible exposures as defined in Table G 16, under 1910.95, these employees being present in the following locations with the sound levels noted for each location:

1-Trim Saw Helper Area

92/103dBA

2-Trim Saw Operator Area

89/96 dBA"

Abatement Date: 6 months December 18, 1972 plan of action and reports to be submitted in accordance with cover letter

Proposed Penalty: $ .00

Item Number 2 - "The workman in the following locations are not protected against excessive noise levels.

1 -- Trim Saw Helper [*7] Area"

Abatement Date: July 6, 1972

Proposed Penalty: $35

Standards cited: 29 CFR 1910.95(a) and 29 CFR 1910.95(b)(1) n4

1910.95 Occupational Noise Exposure

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

[SEE ILLUSTRATION IN ORIGINAL]

Equivalent sound level contours. Octave band sound pressure levels may be converted to the equivalent A-weighted sound level by plotting them on this graph and noting the A-weighted sound level corresponding to the point of highest penetration into the sound level contours. This equivalent A-weighted sound level, which may differ from the actual A-weighted sound level of the noise, is used to determine exposure limits from Table G-16.

(b)

(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, [*8] personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

TABLE G-16 - PERMISSIBLE

NOISE EXPOSURES n1

Sound level

dBA slow

Duration per day, hours

response

8

 90

6

 92

4

 95

3

 97

2

100

1 1/2

102

1

105

1/2

110

1/4 or less

115

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

Item Number 3 - "The workmen do not use eye and face protection when breaking slab off of the stone block."

Abatement Date: 5 days

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.133(a)(1)

1910.133 Eye and Face Protection

(a) General

(1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, [*9] or a combination of these hazards.

Item Number 4 - "The safety valve on the air receiver is not checked at regular intervals, to determine if it is in good operating condition."

Abatement Date: Immediately

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.169(b)(3)(iv)

1910.169 Air Receivers

* * *

(b) Installation and equipment requirements

* * *

(3) Gages and valves

* * *

(iv) All safety valves shall be tested frequently and at regular intervals to determine whether they are in good operating condition.

Item Number 5 - "Compressed air used for cleaning is between 85 and 90 p.s.i., without the use of reducing type nozzles."

Abatement Date: July 17, 1972

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.242(b)

Item Number 6 - "All personnel exits are not marked as such."

Abatement Date: July 6, 1972

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.37(q)(1)

Item Number 7 - "In the polishing area Hydrochloric acid is mixed and used there are no facilities for flushing of the eyes and body."

Abatement Date: July 17, 1972

Proposed Penalty: $75

Standard cited: 29 CFR 1910.151(c)

1910.151 Medical Services and First Aid

* * *

(c) Where the eyes [*10] or body of any person may be exposed to injuries corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

Item Number 8 - "The radial saw in the rack area does not return to the starting position when released by the operator."

Abatement Date: July 17, 1972

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.213(h)(4)

Item Number 9 - "Outside and behind the building is an unsecured fel (sic) gas cylinder."

Abatement Date: 5 days

Proposed Penalty: $55

Standard cited: 29 CFR 1910.252(a)(2)(ii)(b)

Item Number 10 -"Outside and behind the building is a fuel gas cylinder, free standing and without a protective cap."

Abatement Date: 5 days

Proposed Penalty: $55

Standard cited: 29 CFR 1910.252(a)(2)(ii)(d)

1910.252 Welding, Cutting, and Brazing

(a) Installation and operation of oxygen-fuel gas systems for welding and cutting

* * *

(2) Cylinders and containers

* * *

(ii) Storage of cylinders - general

* * *

(d) Valve protection caps, where cylinder is designed to accept a cap, shall always be in place, hand-tight, except when cylinders are in use or connected [*11] for use.

Item Number 11 - "In the maintenance area of the plant a fuel gas cylinder and a oxygen cylinder are stored together."

Abatement Date: 5 days

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.252(a)(2)(iv)(c)

Item Number 12 - "The fly-wheel to the gang saw is not completely guarded."

Abatement Date: July 17, 1972

Proposed Penalty: $ .00

Standard cited: 29 CFR 1910.219(b)(1)

1910.219 Mechanical Power-Transmission Apparatus

* * *

(b) Prime-mover guards

(1) Flywheels. Flywheels located so that any part is seven (7) feet or less above floor or platform shall be guarded in accordance with the requirements of this subparagraph:

(i) With an enclosure of sheet, perforated, or expanded metal, or woven wire;

(ii) With guard rails placed not less than fifteen (15) inches nor more than twenty (20) inches from rim. When flywheel extends into pit or is within 12 inches of floor, a standard toeboard shall also be provided;

(iii) When the upper rim of flywheel protrudes through a working floor, it shall be entirely enclosed or surrounded by a guardrail and toeboard.

(iv) For flywheels with smooth rims five (5) feet or less in diameter, where the preceding methods [*12] cannot be applied, the following may be used: A disk attached to the flywheel in such manner as to cover the spokes of the wheel on the exposed side and present a smooth surface and edge, at the same time providing means for periodic inspection. An open space, not exceeding four (4) inches in width, may be left between the outside edge of the disk and the rim of the wheel if desired, to facilitate turning the wheel over. Where a disk is used, the keys or other dangerous projections not covered by disk shall be cut off or covered. This subdivision does not apply to flywheels with solid web centers.

(v) Adjustable guard to be used for starting engine or for running adjustment may be provided at the flywheel of gas or oil engines. A slot opening for jack bar will be permitted.

(vi) Wherever flywheels are above working areas, guards shall be installed having sufficient strength to hold the weight of the flywheel in the event of a shaft or wheel mounting failure.

Item Number 13 - "Housekeeping in the following areas was very bad.

1-Outside and behind the building a large amount of debris was laying on the ground; such as, lumber with nails in it, wire, scrap iron, scrap rock, [*13] five gallon metal container, etc.

2-In the shop area of the plant material such as; electric cords, shovels, hoses, spare parts, etc., are laying on the floor.

3-In the shop area of the plant material, such as; pipe, lumber, five gallon metal containers are laying on the floor in front of the rack area."

Abatement Date: June 30, 1972

Proposed Penalty: $375

Standard cited: 29 CFR 1910.22(a)(1)

1910.22 General Requirements

This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section.

(a) Housekeeping

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

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n3 The cited standards are not quoted in those instances where the alleged violations are no longer in issue because of subsequent pleadings or stipulations.

n4 This reflects the amendment of the citation by a stipulation of the parties at page 5 of the transcript: ". . ., the parties have agreed to stipulate that paragraph six of the Secretary's complaint be amended to read as follows: That in line four the word, standard, shall be in the plural, and it should read, standards promulgated at twenty-nine CFR, Section 1910.95(b)(1) and 1910.95(a), and the rest of the paragraph remains the same. The explanation of this is the Secretary inadvertently left out reference to the violation alleged -- left out the reference to the standard for this violation alleged in item two of the citation."

n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1+C2/T2 . . . Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

[*14]

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Contested item 9 of citation number one (nonserious) is vacated in this decision. The Complainant stated its intention not to proceed further in regard to this alleged violation in paragraph XVII of the complaint.

Contested items 5, 6, 8, and 11 of citation number one (nonserious) are affirmed in this decision. The Respondent admits in its answer the allegations of paragraphs IX and XIV of the complaint concerning items 5 and 11; and, by stipulation, admits the allegations of paragraphs X and XII of the complaint concerning items 6 and 8 (T. 5).

In substance, the Respondent admits in paragraph 4 of the answer that stone products processed at its Idaho Falls, Idaho workplace are sold and delivered or shipped for sale to places outside the State of Idaho.

No employees or representatives of employees appeared at the hearing in Idaho Falls, Idaho on November 21, 1972 for the purpose of participating in the proceeding (T. 5).

The attorneys of record submitted post-hearing briefs.

FINDINGS

The findings of fact concerning the alleged violations of the Act on May 23, 1972 are based on an evaluation [*15] of the evidence as it appears in the record of the hearing before Judge Winters on November 21, 1972.

For the purpose of applying the penalty criteria of section 17(j) of the Act n5, it is concluded that the Respondent operated a small stone processing plant at Idaho Falls with approximately 24 employees. There was no history of previous violations of the Act. Contrary to the opinion of the inspector that the Respondent acted in bad faith by not complying with the Act, the evidence of record supports a finding of the Respondent's good faith efforts to comply with the Act for the purpose of safeguarding the safety and health of its employees (T. 13-14, 96, 146-151, 153-155, 164).

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n5 Section 17(j) provides: "The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

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* * *

Citation Number One (Serious) - Although the upper portion of the blade of the radial saw was covered with a guard at the time of the inspection on May 23, 1972, the lower portion of the blade was not guarded as required by the cited standard [29 CFR 1910.213(h)(1)] (Respondent's Exhibit No. 5; T. 18, 31, 181).

Approximately four employees were assigned to operate the radial arm saw in cutting lumber for crates, and three other employees had access to it. It was operated twice a week for periods of 20 to 30 minutes. At one time there was a period of five weeks when it was not used at all (T. 124, 235-237).

The inspector testified that prior to early May of 1972 over 50% of the radial arm saws he inspected did not have lower guards but since that time he has found many more lower guards on radial saws. He opined that the change was due to an increased availability of guards (T. 118-120).

The Respondent's witness Elton King, a teacher of nuclear safety in a vacational technical school in Idaho Falls, testified that he received most of his training in the area of occupational safety and health in the school of hard knocks (T. 179). He had little experience [*17] with radial arm saws and never had seen guards on them - he questioned whether a lower guard added to the safety of the saw (T. 182). Mr. King agreed that there would be a substantial probability of serious physical harm resulting from a direct contact with the revolving blade but said the occurrence of such a contact was not probable (T. 190, 211).

Based on the evidence of record, it is concluded that an operator of the radial arm saw would have suffered a serious injury within the meaning of section 17(k) n6 if a part of his hand or arm accidentally came in contact with the unguarded lower portion of the blade of the radial arm saw. The lower guard over the blade of the radial arm saw affords some protection from serious injury to the operator. The evidence of record does not support the Respondent's contention that the cited standard does not improve the safety factor for the employee engaged in operating the radial arm saw.

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n6 Section 17(k) provides: "For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

[*18]

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Following the inspection on May 23, 1972, the Respondent installed a type of lower guard on the radial arm saw (T. 262; Respondent's exhibit No. 4).

The Respondent was not in compliance with 29 CFR 1910.213(h)(1) as charged in the citation. The violation was of a low level of gravity n7, and an appropriate civil penalty pursuant to the criteria of section 17(j) of the Act n8 is $50.

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n7 Examples of some of the factors that are considered in determining the degree of gravity of the violation are: number of employees exposed to risk of injury; duration of employee exposure; precautions taken against injury, if any; and degree of probability of occurrence of an injury.

n8 See page 12, footnote 5, supra.

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Items 1 and 2 of Citation Number One (Nonserious) - The alleged violations on May 23, 1972 of the cited standards involved measured sound levels of 92 to 103 dBA in the "trim saw helper area" and 89 to 96 dBA in the "trim saw operator [*19] area" of the Respondent's plant (T. 41-42). The inspector, trained and experienced in measuring sound levels, used a sound meter that had been calibrated for accuracy when making between 9 and 12 sound level measurements in the stone cutting area of the plant where a "stone gang saw" and a "stone trim saw" were operating (Respondent's Exhibit No. 1). He measured the sound levels for a period of 5 minutes while standing on the platform with the "trim saw operator," and for a period of 8 to 10 minutes while standing with the "trim saw helper" (T. 135).

During an 8-hour work shift, the "stone trim saw" operates 6 hours and the "stone gang saw" operates an average of 7 hours (T. 243, 246). The inspector testified that the employees affected by the measured sound levels worked in the stone cutting area of the plant approximately 8 hours a day. There is a conflict in the testimony as to the period of time the "stone trim saw helper" spends in the stone cutting area during a working day. In resolving this conflict, it is concluded that the evidence sustains a finding that this employee was affected by the measured sound levels over a period of time proscribed in Table G-16.

The Respondent [*20] is charged in item 1 with violating 29 CFR 1910.95(b)(1) for not utilizing feasible administrative or engineering controls to reduce the noise emanating from the "stone gang saw" and the "stone trim saw" to the permissible noise exposures of "Table G-16" of the cited standard. The Respondent had not attempted to utilize engineering or administrative controls in the stone cutting area of the plant.

The inspector testified that in his opinion administrative or engineering controls were feasible for the purpose of reducing to permissible limits the noise exposure of the employees working in this area. The testimony of the Respondent's witnesses is not persuasive in refuting the feasibility of engineering or administrative controls.

The Respondent was not in compliance with the cited standard as charged and the proposed "No Penalty" is appropriate when section 17(j) is applied to this nonserious violation.

In item 2, the Respondent is charged with not providing personal protective equipment to reduce the sound levels in excess of the permissible levels of "Table G-16". The inspector testified that the "trim saw helper" was exposed to sound levels exceeding the permissible noise [*21] exposures of "Table G-16" and was not wearing ear protection (T. 47-49).

The Respondent does not refute the allegation that at the time of the inspection the "trim saw helper" was not wearing the ear plugs which had been provided by the Respondent. The "trim saw operator" was wearing plugs at the time of the inspection (T. 237-239). There is no evidence in the record that the Respondent required the employees to wear the available ear plugs when they were exposed to noise exceeding the permissible limits. 29 CFR 1910.95(a) requires that "protection be provided" while 29 CFR 1910.95(b)(1) requires that "personal protective equipment shall be provided and used" (emphasis added). Where the noise exposures had not been reduced to the permissible limits of "Table G-16" by engineering or administrative controls, as in this case, the Respondent was also obliged to require that the ear plugs be used.

The Respondent was not in compliance with the cited standard as charged and an appropriate penalty under section 17(j) is $25.

* * *

Item 3 of Citation Number One (Nonserious) - This alleged violation is concerned with employees not using eye and face protection when breaking slabs [*22] from stone blocks. The cited standard [29 CFR 1910.133(a)(1)] requires that protective eye and face equipment be provided and used where there is a reasonable probability of injury that can be prevented by such equipment (emphasis added). In its answer, the Respondent admits that on the date of the inspection the employees engaged in breaking slabs off the stone blocks were not provided with or required to wear personal protective eye and face equipment, but denies a reasonable probability of injury to the employees which could be prevented by such protective equipment. Also, the Respondent affirmatively alleged that its employees never had an eye or face injury in this area and the probability of a face injury is very slight due to the position of the employees during the operation.

The inspector testified that he observed an employee chipping on the base of a large stone with a cold chisel and a large hammer for the purpose of cracking off a slab from the stone. The employee was holding the chisel at arms length facing the stone blocks, and pieces of stone were flying back towards his face and upper torso (T. 50-52, 137-138). The demonstration by the Respondent's witness [*23] Orchard of the position of the employee when breaking off a slab from the block of stone is not clear in the record. He testified that there has never been an injury from the chipping operation (T. 245).

The evidence of record supports a finding that there was a reasonable probability of injury to the eyes or face of an employee from the operation as described in the testimony of the inspector and therefore the Respondent was not in compliance with the cited standard. Applying section 17(j), the proposed "No Penalty" is appropriate for this nonserious violation.

* * *

Item 4 of Citation Number One (Nonserious) - This item alleges that the safety relief valve on an air storage tank, normally coupled to an air compressor, had not been checked to determine if it would function properly (T. 53-54).

The cited standard [29 CFR 1910.169(b)(3)(iv)] requires frequent and regular testing of safety valves to determine if they are in good operating condition. The standard does not prescribe the testing procedure.

The Complainant's evidence as to the violation is based on the inspector's opinion of the checking procedure required by the standard. The inspector testified as follows [*24] (T. 54):

". . . I was looking at the air receiver to check the safety relief valve or pressure relief valve, and the President of the company was not familiar with the piece of equipment. He summoned another workman who, to the best of my knowledge was a maintenance man, and this was in reference to some of my questions I was asking; and one of the questions was, after we located this safety relief valve, how often is this relief valve checked? What I mean by checking, to see that it will positively relieve itself if the pressure gets above the safe working load, what it's designed for. And the comment to me by the workman was that to the best of his knowledge this valve had never been checked since it's been put into operation."

The inspector stated that if the seat of the valve should become corroded from a mixture of oil and water and the valve fails to function when the air compressor is working, excessive air pressure will cause the tank to explode (T. 55).

The Respondent's president, Mr. Orchard, testified that the air tank had a readable pressure gauge and there was an automatic cutoff on the compressor which was activated when the air pressure in the tank reached a certain [*25] level. The air compressor and air tank had been installed approximately 2 years prior to the inspection on May 23, 1972 (T. 247-248).

The standard is not vague and indefinite to the point of being meaningless, as alleged by the Respondent. The purpose of the standard is to require employers to determine at regular intervals that safety valves are in good operating condition. Since the standard does not require that a specific testing procedure be followed, it is reasonable to conclude that the Respondent would determine from regular readings of the pressure gauge that the safety valve was in good operating condition. There is no evidence in the record to sustain a finding that the Respondent failed to do this. The Respondent was not in violation of the cited standard.

* * *

Item 7 of Citation Number One (Nonserious) - It is alleged that there were no facilities for flushing of the eyes and body in the stone polishing area of the plant where hydrochloric acid was mixed and used in polishing stone.

The standard [29 CFR 1910.151(c)] does not describe the facilities that are required for quick drenching of the eyes and body. The inspector was of the opinion that emergency [*26] flushing facilities should consist of an overhead flush shower equipped with a lever that will cause the water to come up towards the fact of the person standing under the shower (T. 56-61; 138-141).

Mr. Orchard testified that there were two faucets in the polishing area where the acid container was located (Respondent's Exhibit No. 1). Attached to each faucet was a hose 25 feet long. Each hose had a spray nozzle. Water was running from the hoses continually during the time the polishing machines were running. The water was turned on at the faucets during the working day and the flow of water was controlled at the nozzles. Acid had not been used during the four months prior to the hearing; ordinarily it is not used more than three times a week (T. 249-252).

It is concluded that the Respondent was not in violation of the standard as charged. The evidence sustains a finding that the Respondent had provided suitable facilities for quick drenching or flushing of the eyes and body in the form of the two hoses and nozzles which were in the work area and available for immediate emergency use.

* * *

Item 10 of Citation Number One (Nonserious) - In its answer, the Respondent [*27] admits that it failed to provide a valve protection cap for a compressed fuel gas cylinder designed to accept such a cap, and that the cylinder was not in use or connected for use. The answer affirmatively alleges that the cylinder was empty, outside of the building and therefore not a hazard.

Cylinders which are allegedly empty or located in an open area are not exempted from the requirements of the cited standard. The evidence sustains a finding that the unprotected valve of this fuel gas cylinder could have been broken if the cylinder fell over. This would expose any employee in the area to the potential hazard of fire or of the cylinder becoming a projectile from the escape of the residual compressed fuel gas (T. 62-65).

The cited standard [29 CFR 1910.252(a)(2)(ii)(d)] is concerned with fuel gas systems for welding and cutting. The inspector testified that he had been informed by Mr. Orchard at the closing conference that the cylinder had been used for welding and cutting (T. 67-69). Mr. Orchard testified that it was not used at any time for welding, cutting and braising. He did not know the type of gas that was in the cylinder but said the gas had been used in heaters [*28] for drying slabs of stone (T. 253-254).

This conflicting evidence does not exclude a finding that the violation was within the ambit of the cited standard since it can reasonably be concluded that the cylinder's compressed fuel gas could have been used for welding and cutting.

Mr. Orchard testified that there was no work performed in the area where the cylinder was located. It had been there for at least a week and was to be picked up for a refill (T. 253-254).

The Respondent was in violation of the standard as charged. The gravity of the violation was low and an appropriate penalty under the criteria of section 17(j) is $25.

* * *

Item 12 of Citation Number One (Nonserious) - The lower portions of two large parallel flywheels, running on the same shaft about 4 feet apart, are less than 7 feet above the floor of the plant. It is alleged that these flywheels are not adequately guarded in accordance with the requirements of the cited standard [29 CFR 1910.219(b)(1)].

There is sheet metal guarding which wraps around the rim of the adjacent flywheel. The flywheels are guarded in compliance with the standard except for a small area where the north wall of the plant and the [*29] rims of the flywheels are juxtaposed, as depicted in Complainant's exhibits 7 and 8. The sheet metal guarding was not extended beyond the rims of the flywheels in this area to allow access to a maintenance platform between the flywheels. The control switch for the flywheels, located on the electrical panel on the north wall, is about 3 or 4 feet from the rim of the nearest flywheel. The maintenance employees had been instructed not to perform maintenance work while the flywheels were running (T. 70-77, 142-144, 254-258, 273-274).

The cited standard makes no exception to the requirement that parts of flywheels 7 feet or less above the floor shall be guarded. In this case, the inner spokes and the rims adjacent to the north wall were unguarded and accessible to employees while the flywheels were in motion. The limited need for access for the purpose of maintenance does not eliminate the hazard of an employee coming in contact with the flywheels while they are in motion. Guarding in the form of a door of woven wire would be one way of controlling access to this maintenance area.

The gravity of the violation is low and the proposed "No Penalty" is appropriate under the provisions [*30] of section 17(j).

* * *

Item 13 of Citation Number One (Nonserious) - This item of the citation alleges that housekeeping was very bad in three areas of the Respondent's plant. The complaint alleges that the Respondent violated 29 CFR 1910.22(a)(1) in that it failed to keep its permanent place of business clear, orderly, and sanitary.

In a number of instances, the Complainant's evidence is not specific as to the plant areas and the physical factors involved in the alleged housekeeping violations. The evidence does not support a finding of unsanitary conditions (T. 77-93, 145).

The area outside and behind the plant was used as a disposal area for debris (Complainant's exhibit No. 6). There is no evidence to support a finding that it was used for any other purpose. The rack and shop areas were used for storage and employees access was limited (Complainant's exhibits No. 9, No. 10 and No. 11). The evidence supports a violation of the cited standard in that pieces of lumber scattered on the floor of these areas were tripping hazards (T. 258-261, 272-273).

The gravity of the violation of the cited standard in this instance was low and an appropriate penalty under the criteria [*31] of section 17(j) is $25.

* * *

The abatement provisions of the citations are reasonable when applied to the instances where the Respondent is found to be in violation of the cited standards.

CONCLUSIONS OF LAW

1. The Respondent, Idaho Travertine Corporation, was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.

The Respondent violated section 5(a)(2) of the Act in the following instances. The standards violated and the civil penalties assessed pursuant to section 17(j) of the Act are:

Citation Number One (Serious)

29 CFR 1910.213(h)(1)

$50

Citation Number One (Nonserious)

Item 1 29 CFR 1910.95(b)(1)

"No penalty"

Item 2 29 CFR 1910.95(a)

$25

Item 3 29 CFR 1910.133(a)(1)

"No penalty"

Item 5 29 CFR 1910.242(b)

"No penalty"

Item 6 29 CFR 1910.37(q)(1)

"No penalty"

Item 8 29 CFR 1910.213(h)(4)

"No penalty"

Item 10 29 CFR 1910.252(a)(2)(ii)(d)

$25

Item 11 29 CFR 1910.252(a)(2)(iv)(c)

"No penalty"

Item 12 29 CFR 1910.219(b)(1)

"No penalty"

Item 13 29 CFR 1910.22(a)(1)

$25

[*32]

The Respondent did not violate section 5(a)(2) of the Act in the following instances:

Citation Number One (Nonserious)

Item 4 29 CFR 1910.169(b)(3)(iv)

Item 7 29 CFR 1910.151(c)

Item 9 29 CFR 1910.252(a)(2)(ii)(b)

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED:

1. That Citation Number One (Serious) and items 1, 2, 3, 5, 6, 8, 10, 11, 12 and 13 of Citation Number One (Nonserious) be, and are hereby affirmed.

2. That items 4, 7 and 9 of Citation Number One (Nonserious) be, and are hereby vacated.

3. That the following proposed penalties be, and are hereby vacated:

Citation Number One (Serious)

$750

Citation Number One (Nonserious)

Item 2

35

Item 7

75

Item 9

55

Item 10

55

Item 13

375

4. That civil penalties in the total amount of $125 be, and are hereby assessed as follows:

Citation Number One (Serious) $50

Citation Number One (Nonserious)

Items 1, 3, 5, 6, 8,

11 and 12

"No penalty"

Items 2, 10 and 13

$25 each

THOMAS J. DONEGAN, Judge

Dated: August 16, 1976

Seattle, Washington