UNDERHILL CONSTRUCTION CORPORATION

OSHRC Docket No. 1307

Occupational Safety and Health Review Commission

January 31, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before us on Judge Joseph L. Chalk's determination to vacate both a contested citation for an alleged serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "OSHA") and an uncontested citation alleging four non-serious violations.   He concluded that both citations were void as a matter of law in view of the effective date provisions of 29 C.F.R. 1926.1050 because Respondent's contract for construction was negotiated prior to April, 1971 n1.   He did not reach the merits of the case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The hearing judge also said we were without jurisdiction.   Manifestly, if we were without jurisdiction, then the judge was without authority to act on the citations.   In this regard his statement was correct as to the non-serious matter because it had not been timely contested (29 U.S.C. 659(a)).   The citation was and is final by operation of law.   Accordingly, the judge's decision in that regard is of no effect and need not be further dealt with.

  [*2]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Section 1926.1050 is in Subpart X of the Construction Safety Standards and was promulgated by Complainant on April 17, 1971, n2 pursuant to the authority granted to him by section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq., hereinafter the "Construction Safety Act" or "CSA").   It provides as follows:

Except where different effective dates are specifically provided in [§   1926.1051] the safety and health standards published in Subparts C through U of this part shall become effective on April 24, 1971, for all Federal and federally assisted advertised contracts subject thereto which are advertised after that date and on April 27, 1971, for all such negotiated contracts for which negotiations begin after that date.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 36 Fed. Reg. 7340.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On May 29, 1971, Complainant promulgated 29 C.F.R. Part 1910 pursuant to the authority granted by section 6(a) of   OSHA.   Subpart B thereof adopts and extends [*3]   "established Federal standards in effect on April 28, 1971, with respect to every employer, employee, and employment covered by the Act" (29 C.F.R. 1910.11).   And section 1910.12 of subpart B stated, in part:

The standards prescribed by Part 1518 [now 1926] of this title and in effect on April 28, 1971 are adopted as occupational safety or health standards under section 6(a) of the Act and shall apply, according to the provisions thereof to every employment and place of employment of every employee engaged in construction work (36 F.R. 10,469).

Thereafter, section 1910.12 was amended by adding paragraphic which in pertinent part is as follows:

(c) Construction Safety Act distinguished.

This section adopts as occupational safety and health standards under section 6 of the Act the standards which are prescribed in Part 1926 of this chapter.   Thus, the standards (substantive rules) published in Subpart C and the following subparts of Part 1926 of this chapter are applied.   This section does not incorporate Subparts A and B of Part 1926 of this chapter.   Subparts A and B have pertinence only to the application of section 107 of the . . .   Construction Safety Act.

In view of the [*4]   provisions of section 1910.12 and because they specifically exclude Subparts A and B of Part 1926, Respondent (hereinafter "Underhill") herein argues that the effective date provisions of Subpart X, quoted above, are applicable under OSHA so as to exclude construction employments and places of employment from compliance with the provisions of Part 1926 where negotiations on the contracts therefor were commenced prior to April 27, 1971. n3 In addition, Underhill points to the preamble to Part 1926 and particularly that portion which refers   to new construction as support for its argument. n4 As noted, Judge Chalk adopted Underhill's position.   We reverse.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This very argument was rejected by our hearing judges in Kesler & Sons Construction Co., No. 306 (1972), rev'd on other grounds. BNA 2 O.S.H.C. 1096, CCH E.S.H.G. para. 18,165 (Rev. Com'n., 1974); Diesel Construction Co., No. 827 (1973) and by one district Court, United States v. J.M. Rosa Construction Co., Inc., unofficially reported BNA 1 O.S.H.C. 1188 (D. Conn. 1973). Judge Worcester, like Judge Chalk herein, held to the contrary in Universal Sheet Metal Corp., No. 657 (1973), aff'd on other grounds, BNA 2 O.S.H.C. 1061, CCH E.S.H.G. para. 18,163 (Rev. Com'n., 1974).

n4 This additional argument is unmeritorious.   The preamble to Part 1926 has to do with the promulgation of construction safety and health standards under the Construction Safety Act. We are concerned with their promulgation and application under a different law, i.e., OSHA.

  [*5]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Underhill's argument must fail because it ignores the fact that only "established Federal standards" are adopted and promulgated by Subpart B of Part 1910.   The term "established Federal Standard" is a term of art and is defined in section 3(10) of OSHA as meaning "any operative occupational safety and health standard established and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act." Likewise, the term "occupational safety and health standard" is a term of art.   It is defined by section 3(8) as meaning "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

Clearly, by its own terms, section 1926.1050 is not an "occupational safety and health standard." It does not require affirmative action to provide safe and healthful employments and places of employment. On the contrary it operates as an exception.   And were we to adopt Underhill's position the result would be the opposite [*6]   of that required by an "occupational safety and health standard." Since by the terms of section 1910.11 and 1910.12 Complainant only promulgated standards under OSHA and since we conclude that section 1926.1050 is not a standard we find that Underhill was required to conform its practices to the requirements of the construction safety and health standards.

The Merits

As noted above, Judge Chalk did not reach the merits of this controversy.   We have reviewed the record and find it appropriate to decide the case rather than remand it.   It arose on the following facts.   Underhill, a concrete subcontractor, was engaged in the construction of a major apartment complex in   New York City.   On June 14, 15, 1972 Complainant inspected Underhill's worksite.   Underhill's employees were stripping concrete forms and placing rebar near the outside perimeters of the 18th, 19th and 20th floors of building C.   The perimeters were not guarded as required by 29 C.F.R. 1926.500(d)(1) nor were employees protected against falls by other means.   On these facts Complainant issued a citation alleging a serious violation of the aforementioned standard.   A civil penalty of $700 was proposed.

As to [*7]   the merits Underhill conceded that its employees were exposed to the hazard.   It defended on the basis that it was the custom in New York City that only floors below those being stripped and formed be provided with perimeter protection.   It was also argued that perimeter protection would render the stripping operation practically impossible. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Underhill argued further that 29 C.F.R. 1926.700(b)(1) which requires that employees engaged in tying and placing reinforcing steel be provided with safety belts applies rather than 1926.500(d)(1).   That may be as to such employees but clearly it does not apply to the stripping operations and the facts are uncontroverted that Underhill's exposed employees were engaged in stripping forms.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to Underhill's first argument it is enough to say that local customers must give way to the Federal law.   See 29 U.S.C. 667(a).

As to the second argument, Underhill says that perimeter guards would interfere with a stripping operation.   It was also said that some guards would have to [*8]   be dismantled to allow the conveyance of materials to upper floors. It is significant that Underhill failed to argue that guards could not be installed.   Accordingly, we view its arguments as being directed towards inconvenience rather than impossibility and we reject them.   In view of the uncontroverted facts we conclude that Underhill committed a serious violation of 29 C.F.R. 1926.500(d)(1) and of section 5(a)(2) of OSHA.

Turning now to the matter of an appropriate penalty we note that a fall from any of the unguarded levels involved herein would almost certainly result in death.   The gravity was very high.   In addition, Underhill performs concrete construction on the largest building projects in the country and must therefore   be considered large in size.   On the other hand, it has no history of record of prior violations, and we are given no reason to question its good faith.   In the circumstances, the proposed penalty is appropriate.

Accordingly, the judge's decision is reversed, Underhill is found in serious violation of 29 C.F.R. 1926.500(d)(1) and of 29 U.S.C. 654(a), and a civil penalty of $700 is assessed therefor.   It is so ORDERED.  

CONCURBY: CLEARY

CONCUR:

  CLEARY,   [*9]   COMMISSIONER, concurring: I concur in Commissioner Van Namee's disposition of this case.   The precedent cited in footnote 3 of his opinion is fully dispositve of respondent's arguments concerning the application of the construction safety standards.   I agree fully with his decision on the merits.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: Judge Chalk correctly decided this case, and his decision should be affirmed. Moreover, contrary to the assertion in footnote 1 of the lead opinion, that decision does not state that the Commission lacked jurisdiction to consider the validity of the citations involved in this case.   Quite the opposite, the Judge properly recognized and asserted his authority to invalidate citations where there was no subject matter jurisdiction under the Occupational Safety and Health Act of 1970.

Futhermore, the finality provision in 29 U.S.C. §   659(a) does not preclude the Commission from acting on a citation where there is a jurisdictional defect therin. n6 Jurisdictional issues can and should be addressed by the Commission at any time and even on its own motion if necessary. n7 See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v.   [*10]     Guaranty Trust Company of New York, 117 F.2d 95 (2d Cir., 1941); Fed. R. Civ. P. 12(h)(3).   Of course, it is hornbook law that a judicial tribunal can assert jurisdiction for the purpose of determining whether it has jurisdiction   over a matter is issue. n8 See United States v. United Mine Workers of America, 330 U.S. 258, 290 (1947); Moore v. Dalessio, 332 F. Supp. 926 (D. Mass. 1971).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 We so recognized in one of our earliest decisions.   Secretary v. Phoenix, Inc., 1 OSAHRC 355 (1972).

n7 United States v. J.M. Rosa Construction Co., No. B-637 (D. Conn., April 2, 1973), cited in footnote 3 of the lead opinion, belies any contention to the contrary.   Although the citations became final orders under 29 U.S.C. §   659(a) in that case, the Court addressed the same jurisdictional issue that is before us in this case, while refusing to consider other challenges to the citations on their merits.

n8 Quaere: Since the Commission has not taken action to reverse the Judge's determination on the citation for nonserious violations, doesn't the Judge's decision thereon continue to stand?

  [*11]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The initial source of the problem in this case is 29 C.F.R. Part 1518 n9 which was published in the Federal Register on April 17, 1971.   36 Fed. Reg. 7340-7410 (1971). The construction regulations published therein were promulgated under the Contract Work Hours and Safety Standards Act, 40 U.S.C. §   333, as standards applicable to contractors performing Federal and federally assisted contracts.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Part 1518 was redesignated as Part 1926 on December 30, 1971.   36 Fed. Reg. 25232 (1971). Thereafter, Part 1926 was republished on December 16, 1972, allegedly without substantive change.   37 Fed. Reg. 27503 (1972). The violations in this case are alleged to have occurred in June of 1972.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

With certain exceptions which are not pertinent in this case, those standards became "effective on April 24, 1971, for all Federal and Federally assisted advertised contracts . . . which [were] advertised after that date and on April 27, 1971, for all such [*12]   negotiated contracts for which negotiations [began] after that date." 29 C.F.R. §   1518.1050, 36 Fed. Reg. 7410 (1971). But, what about Federal and federally assisted contracts that were advertised or under negotiation before those dates?   The only logical answer is that they were exempted.   This is made clear in the preamble to Part 1518 n10 which provides the following:

  The rules are applied to new construction contracts which are advertised on or after the seventh day following publication of this document in the Federal Register.   In the case of negotiated construction contracts, the rules shall be effective as to new contracts of this nature for which negotiations are commenced on or after 10 days following publication in the Federal Register. (Emphasis added.) 36 Fed. Reg. 7340 (1971).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 In United States v. J.M. Rosa Construction Co., supra note 7, it was held that 29 C.F.R. §   1518.1050 "advances the effective date of [the standards] for federal and federally assisted contracts in certain cases" rather than "providing an exemption to the standards." That decision did not, however, consider the preamble to Part 1518 or whether there was good reason for providing an exemption. Additionally, in treating section 1518.1050 as providing an exception to the effective date of August 27, 1971, the date when the scope of the applicability of the construction standards was extended by 29 C.F.R. §   1910.(a)(1) to cover all construction (36 Fed. Reg. 10469 (1971)), that decision does not seem to recognize that section 1910.12(a)(1) was published on May 29, 1971, more than a month after section 1518.1050, and that the construction safety standards could not be made applicable to the entire industry before April 28, 1971, the effective date of the Act.   In my opinion, it is unlikely that an exception would come before the general rule.

  [*13]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The opinions of my colleagues leave some doubt as to what they are holding.   They could be holding that no construction project is exempt from compliance with the construction safety standards after August 26, 1971, regardless of the type of contract and the advertisement and negotiation dates thereof.   Also, they could be holding only that there is no exemption where the contract is not a Federal or federally assisted contract. Whichever it might be, I disagree.

The evidence indicated that the contract here in question was being negotiated as early as the year 1969 but, since it also tends to show that the contract was not negotiated as a Federal or federally assisted contract, it is unlikely that the Commission is holding that the original exemption was subsequently repealed by Part 1910.   The obvious injustice of such a repeal is self-evident.   Furthermore, there is nothing in subsequent regulations that indicates that a repeal of the exemption for Federal and federally assisted contracts was intended.   To the contrary, the fact that 29 C.F.R. §   1926.1050 was republished with language identical to [*14]   that in 29 C.F.R. §   1518.1050 shows that a repeal was not intended.

If the discussion of various regulations in this decision does not create utter confusion, then consideration of other cases dealing with the instant issue n11 is bound to achieve that result.   Rather than utilizing legal mumbo jumbo to resolve the breadth of the exemption, it is best to consider the reason for the initial exemption.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 See the cases cited in note 3 supra.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The reason for the exemption is found in the preamble to Part 1518, where the Secretary of Labor explains the delayed effective dates as follows:

The time lag in the procurement process, together with the time periods specified, are considered sufficient to afford affected persons reasonable time to   take such action as may be necessary to comply with the rules.

36 Fed. Reg. 7340 (1971). As Judge Worcester so succinctly observed in interpreting this sentence in Secretary v. Universal Sheet Metal Corp., 9 OSAHRC 742, 750 (1974):

It is obvious that the Secretary [*15]   was not unmindful of the fact that when the standards and the Act became effective in April 1971 there would be certain employers in the construction industry who had no way of knowing when they bid on a project that they would be required to bear the expense of furnishing protection in compliance with safety rules which did not exist at the time the bid was made.   It would be a patent violation of the rights of the Respondent if it were charged with a violation of a standard or standards which did not exist when the Respondent agreed, for a consideration, to perform the construction work. . . .

The reason for excluding previously advertised and negotiated contracts is the same now as it was in April of 1971.   Also, there is no valid reason for distinguishing Federal and federally assisted contracts from other contracts in applying the exclusion.   No contractor, irrespective of the type of contract involved, could reasonably be expected to anticipate in his bidding before the dates specified in 29 C.F.R. §   1518.1050 the added costs which he would incur when required to comply with the new construction safety regulations. Within a reasonable time after the publication of Part 1518,   [*16]   it was logical for contractors who were seeking to enter other than Federal or federally assisted contracts to expect that the standards in Part 1518 would soon be made applicable to them in accordance with 29 U.S.C. §   655(a). n12 Similarly, it was reasonable for such contractors to assume that at the very least the section 1518.1050 exclusionary dates would apply to them.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 With various provisos which are not pertinent here, 29 U.S.C. §   655(a) required the Secretary to "promulgate as an occupational safety or health standard . . . any established Federal standard."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Finally, I believe that the convoluted ambiguousness of the regulations, if nothing else, requires that any doubt in this case be decided in the respondent's favor.   See United States v. Bass, 404 U.S. 336, 347-348 (1971).

  [The Judge's decision referred to herein follows]

CHALK, JUDGE: A Citation for Serious Violation was issued on July 18, 1972 against Respondent as a result of an inspection, on June 14 and 15, 1972, of its worksite   [*17]   -- the Waterside Apartments -- located at 25th Street and F.D.R. Drive in New York, New York.   Therein, Respondent was charged with violating Section 5(a)(2) of the Occupational Safety and Health Act of 1970 by not guarding an open-sided floor on the twentieth floor of Building C with a standard railing, as required by 29 CFR 1926.50(d)(1).   A penalty of $700.00 was proposed for this alleged violation on the same date.   Respondent contested this Citation and proposed penalty on August 8, 1972.

Although not officially a part of this record, because of Respondent's failure to contest same, a Citation for four alleged nonserious violations of the same section of the Act for not complying with 29 CFR 1926.300(b)(2), 29 CFR 1926.28(a), 29 CFR 1926.450(a)(10), and 29 CFR 1926.250(a)(3), respectively, was issued at the same time and as a result of the same inspection. Penalties totaling $175.00 were proposed for three of these four charges.

The evidence adduced at the hearing in New York, New York, on January 10, 1973, on the merits of this case need not be summarized because I have concluded that Respondent was not, as a matter of law, subject to the construction standards and hence not [*18]   subject to the jurisdiction of this Commission.   I reach this conclusions because of a provision in the construction standards that exempts employers where negotiations on the contract covering their activities in question began prior to April 28, 1971.

A rather unique procedure was employed by the Secretary of Labor in promulgating safety and health standards for the construction industry under the Safety and Health Act that has, in my view, led to confusion and promoted conflicting opinions by several judges of this Commission on the very problem raised by the facts in this case (see Secretary of Labor v. Kesler and Sons Construction Company, Docket Number 306, December 29, 1972 (presently under review by the Commission), Secretary of Labor v. Universal Sheet Metal Corporation, Docket Number 657, February   5, 1973 (presently under review by the Commission), and Secretary of Labor v. Diesel Construction Company, Docket Number 827, January 15, 1973 (not ordered for review by the Commission)).   Specifically, the safety and health standards in question were initially promulgated, on April 17, 1971, and later reissued, on December 16, 1972, under an   [*19]   entirely different Act (Contract Work Hours and Safety Act, 86 Stat. 96, 40 U.S.C. 327, commonly known as the Construction Safety Act), unrelated to the Act under which we function, and were adopted for or incorporated into the latter Act by 29 CFR 1910.12, effective April 28, 1971, the date the latter Act itself became effective. Moreover, whereas these standards under the Construction Safety Act relate only to Federal and federally assisted construction contracts, 29 CFR 1910.12 provides no such limitation with respect to the Safety and Health Act. Rather, it directs their applicability under the Safety and Health Act to "every employment and place of employment of every employee engaged in construction work." It is important to note, too, that while 29 CFR 1910.12 specifically excludes the first two subparts, A and B, of the adopted standards, for the stated reason that they "have pertinence" only to "the Construction Safety Act," no other exclusions are mentioned.   The effect of this exclusion factor vis-a-vis the non-exclusion factor must be considered highly significant ( Posados v. National city Bank of New York, 296 US 497, 56 S. Ct. 349 (1936); Jones v.    [*20]   Alfred H. Mayer Company, 392 US 409, 88A S. Ct. 2186 (1968)).

The standards in question presently appear in the 29 CFR 1926 series, whereas the previous edition appeared in the 29 CFR 1518 series (in effect at the time of the inspection in question). n1 In Subpart X, paragraph 1050 of each, there appears the following:

Except where different effective dates are specifically provided in [§ §   1926.1051 and 1518.1051, respectively] the safety and health standards published in Subpart C through U of this part shall become effective on April 4, 1971, for all Federal and federally assisted advertised contracts subject   thereto which are advertised after that date and on April 27, 1971, for all such negotiated contracts for which negotiations begin after that date.

In explanation of this provision, the preamble to the initial series, 29 CFR 1518, explained that the standards applied "only to new construction contracts" (Emphasis added), and that the purpose of the provision was to "afford affected persons reasonable time to take such action as may be necessary to comply with the [standards]."

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -   [*21]   - -

n1 Variations in language and format between the two series serve to add to the confusion.   Also, the same problem is encountered between the original and revised edition of the 29 CFR 1910 series.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Clearly, these standards are not applicable to contracts under the Construction Safety Act where the advertising occurred or negotiations began prior to the respective applicable dates set forth in 29 CFR 1926.1050 (formerly 29 CFR 1518.1050).   In light of the fact this paragraph was not excluded by the adopting regulation, 29 CFR 1910.12, I have concluded that it must be applied to the Safety and Health Act (Posados v. National City Bank of New York, supra; Jones v. Alfred H. Mayer Company, supra). This conclusion also accords with the usual rule of statutory construction that clear and unambiguous language found in a statute shall be given its ordinary meaning, rather than be distorted so as to defeat the intent and purpose of the enacting body ( United States v. Rice, 327 US 742, 66 S. Ct. 835 (1946); United States v. State of California, 297 US 175, 56 S. Ct. 421 (1936);   [*22]   Rucker v. Wabash Railroad Company, 417 F2d 146 (7th Cir., 1969)).   Although perhaps not decisive, such conclusion also preserves the integrity of the contractual relationships involved, and promotes an atmosphere of fairness in dealing alike with two Acts of Congress that have a common objective.

This record clearly shows, and the Secretary candidly admits, that negotiations on the contract covering Respondent's activities at the year 1969 (Ex. R-4; Complainant's brief, pp 2-3).   In fact, Respondent's vice-president testified that Respondent was first involved in the project during the year 1968.   These unrefuted facts, therefore, lead inevitably to the conclusion that Respondent's operation at the jobsite in question was not subject to the provisions of the Act.   Consequently, the contested Citation and Notification of Proposed Penalty were void as a matter of law and must be vacated.

  The same reasoning and result applies to the uncontested Citation for nonserious violations and the proposed penalties therefor, notwithstanding the Act's proviso that an uncontested Citation and Notification of Proposed Penalty ripen into a final order of the Commission not subject [*23]   to review after the passage of fifteen working days (Sec. 10(a)).   Such finality clause becomes operative only where the Secretary's enforcement action was lawful in the first instance (see generally 49 CJS 449).   It is my duty to take cognizance of this want of jurisdiction and to correct the record by vacating the Secretary's Citation and proposed penalties.

In urging the contrary conclusion I reach here, the Secretary advances much the same argument he made in Kesler and Sons Construction Company, Universal Sheet Metal Corporation, and Diesel Construction Corporation, supra. I choose not to belabor that argument here, as it has been fully set forth in those decisions. n2 Suffice it to note that I agree with Judge Worcester's views and the result he reached in Universal Sheet Metal Corporation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 In all honesty, I must confess my inability to follow the argument with any appreciable degree of comprehension.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Citation for Serious Violation, the Citation (nonserious violations), and the Notification [*24]   of Proposed Penalties pertaining to both are vacated.   Any penalties paid by Respondent to the Secretary will be refunded.

It is so ORDERED.