DRAVO CORPORATION

OSHRC Docket No. 1487

Occupational Safety and Health Review Commission

April 18, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Commissioner Cleary's order directing review of a decision of Judge Leon Moran. The citation and complaint alleged that Respondent was in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") in that it failed to comply with certain occupational safety and health standards regulating spray painting with paints containing toxic substances, at a time when its employees were engaged in spray painting with a toxic substance, Tectyl-400B. The Judge vacated the citation on the basis that Complainant failed to establish that Respondent's employees were in fact engaged in spraying Tectyl 400-B during the 6 month period prior to the issuance of the citation.

We have reviewed the record and find no prejudicial error. n1

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n1 In view of our disposition of this case, we find it unnecessary to reach the issue of whether the citation was issued with reasonable promptness. Accordingly, we do not adopt the Judge's discussion of this issue.

[*2]

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Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I disagree.

The majority has affirmed the Judge's decision on the basis that the Secretary failed to prove that respondent's employees were spray painting with Tectyl-400-B during the six month period before the issuance of the citation. n2 The Secretary had moved to amend the citation and complaint, however, to allege the use in April 1972 of any spray paints mixed with toxic vehicles or solvents. The Judge denied the motion. I believe the motion should have been granted and that respondent was in violation of the Act under the Secretary's amended theory.

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n2 Section 9(c) of the Act prohibits the issuance of a citation more than six months after the occurrence of a violation. The citation in this case was issued on September 1, 1972. Under the six month limitation, the citation could have alleged violations of the Act on or after March 1, 1972.

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In order to understand the case, a statement of the facts is necessary.

Respondent is a Pennsylvania corporation with its principal office located in Pittsburgh, Pennsylvania where it manufactures and repairs river barges. After an inspection of respondent's workplace on May 18 and 19, 1972, respondent was issued one citation for non-serious violation of the Act containing 11 items. Item number eight alleged that respondent failed to provide air line respirators to employees spray painting Tectyl-400-B in confined spaces in non-compliance with the standard published at 29 CFR 1916.24(a)(1)(i). n3 Respondent denied the use of Tectyl-400-B at the time of inspection.

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n3 The cited standard states:

1916.24 Painting

(a) Paints mixed with toxic vehicles or solvents.

(1) When paints mixed with toxic vehicles or solvents are sprayed, the following conditions shall apply:

(i) In confined spaces, employees continuously exposed to such spraying shall be protected by air line respirators in accordance with the requirements of 1916.82(a).

[*4]

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The Secretary's case-in-chief was presented on February 1, 1973. At this time, respondent's attorney stated that his defense would be based on a showing that Tectyl-400-B was not used on the date of inspection and that he was prepared to defend only against the alleged use of Tectyl-400-B. The Secretary's attorney, however, stated that he would attempt to prove the use of other paints as well as Tectyl-400-B. There was no ruling by the Judge concerning the evidence to be admitted. As the Secretary presented his case-in-chief, respondent's attorney objected to some of the evidence concerning paints other than Tectyl-400-B, and at one point referred to a "standing objection" to evidence concerning other paints.

At the end of the Secretary's case-in-chief, a continuation of the hearing was ordered, apparently for the purpose of obtaining additional hearing room space. During the continuation period the Secretary filed a "Motion to Amend Citation and Complaint to Conform to the Evidence" under rule 15(b) of the Federal Rules of Civil Procedure. This motion, urging that item eight be amended [*5] to include spray painting with any paint, requested an amendment to the complaint as follows:

Item No. 8, 29 CFR 1916.24(a)(1)(i), the said standard was violated during April 1972, when the employer required employees to spray paints mixed with toxic vehicles or solvents, including but not limited to Tectyl products in confined spaces such as wing tanks and other void spaces in newly constructed barges without supplying these employees with the required airline respirators. . . .

Respondent argued against the amendment, asserting prejudice because it would not have time to prepare its defense to the new issues if the motion were granted. n4 Respondent requested a continuance if the motion were granted and also argued that the amendment would allege an additional separate violation involving all spray products beyond the six month limitation period of section 9(c) of the Act.

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n4 Respondent argues on review that the Secretary's delay of approximately 106 days in issuing the citation, from inspection on May 19 to issuance on September 1, severely limited its ability to formulate a defense to the requested amendment. This argument must be raised during the "issue formulation" stage of a proceeding. Chicago Bridge & Iron Co., No. 744 (January 24, 1974) petition for review docketed, No. 74-1214, 7th Cir., March 18, 1974.

[*6]

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The Judge did not rule on the motion when it was presented to him. He reconvened the hearing on February 15, 1973, and at this time he reserved ruling on the motion until completion of the hearing. By order dated March 20, 1973, well after the conclusion of the hearing, he denied the Secretary's motion because, "[t]he amendments to the citation urges [sic] what amounts to new charges more than six months after the alleged violation."

I would grant the motion to amend by reason of rule 15(b) of the Federal Rules of Civil Procedure. n5 The last part of rule 15(b) states:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Liberal amendment must be permitted [*7] in order that the Secretary may properly enforce the Act. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973). The Commission has permitted liberal amendment when made to conform the pleadings to the proof under the first part of rule 15(b) n6 Liberal amendment, when necessary for proper enforcement of the Act, should be allowed under the last part of rule 15(b), quoted above.

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n5 Section 12(g) of the Act and Commission rule 2(b) require adherence to the Federal Rules of Civil Procedure because a Commission rule has not been adopted concerning the type of amendment found in this case.

n6 See, e.g., Otis Elevator Co., No. 688 (October 8, 1974); Hartwell Excavating Co., No. 853 (September 26, 1974); Gerstner Electric, Inc., No. 997 (August 1, 1974); W.B. Meredith II, Inc., No. 810 (June 7, 1974); Advance Air Conditioning, Inc., No. 1036 (April 4, 1974); Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973).

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When a Judge is presented with a motion [*8] for amendment, as in this case, he must consider three questions: whether the amendment would "subserve" the merits of the case; whether the opposing party would be prejudiced by admission of the evidence; and whether a continuation should be ordered if the amendment is granted. Cf. Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975) (dissenting opinion). The ruling on the motion rests within the sound discretion of the Judge, and the Judge's ruling will be reversed only if he abuses his discretion. See Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788 (6th Cir. 1963); Robbins v. Jordan, 181 F.2d 793 (D.C. Cir. 1950).

In the present case, I believe the Judge abused his discretion in denying the motion.

Contrary to the majority view, the merits of the present case do not rest upon the use of the single paint, Tectyl-400-B. The merits concern spray painting in confined spaces with paints mixed with toxic vehicles or solvents without the use of airline respirators. Thus, the amendment to allege the use of paints other than Tectyl-400-B would "subserve" the merits of the case. A bona fide issue concerning spray painting with other paints [*9] mixed with toxic vehicles or solvents without airline respirators in confined spaces has been presented. See Southern Coast Corp. v. Sinclair Refining Co., 181 F.2d 960 (5th Cir. 1950); Robbins v. Jordan, supra. Because the amendment subserves the merits of the case, it would not amount to "new charges" as the Judge found. See National Realty, supra. n7

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n7 Section 9(c) of the Act prescribes a six month limitation period for the issuance of citations after a violation. See Chicago Bridge & Iron Co., note 4 supra. this does not mean that a citation and complaint cannot be amended after the six month period. Under rule 15(c), Federal Rules of Civil Procedures, the amendment relates back to the date of the initial pleading if it arises out of the "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. . . ." See 6 Wright & Miller, Federal Practice and Procedure: Civil 1497 (1971).

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Prejudice under rule 15(b) means " undue difficulty [*10] in prosecuting a law suit as a result of a change in tactics or theories on the part of the other party" (emphasis added). Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir. 1969). The Secretary's amendment is not a change in tactics or theory nor does it amount to new charges. The merits of the case remain the same. Moreover, the Judge assured respondent that a continuance would be ordered if he granted the Secretary's motion to amend. If the Judge had granted the amendment and ordered a continuance, I do not see that respondent would have experienced undue difficulty in proceeding with its defense. Under the circumstances of this case, the motion should have been granted. See Southern Coast Corp v. Sinclair Refining Co., supra; Robbins v. Jordan, supra.

I believe the Secretary has presented sufficient evidence to find respondent in violation of the cited standard under the requested amendment to the complaint. It is clear that respondent's employees were spray painting without airline respirators in April of 1972. The spraying took place in wing tanks of barges of 1000 cubic feet to 1560 cubic feet in volume. I believe these areas constitute a [*11] "confined space" within the meaning of the standard. n8 In my view, there is sufficient evidence concerning the toxicity of the paints used for spraying. n9 They were flammable with an unpleasant odor and the employees repeatedly testified that the paints burned their eyes and irritated their skin. n10

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n8 "Confined space" is defined as follows:

29 CFR 1916.2 Definitions

(m) The term "confined space" means a compartment of small size and limited access such as a double bottom tank, cofferdam, or other space which by its small size and confined nature can readily create or aggravate a hazardous exposure.

n9 The word "toxic" is not defined in 29 CFR 1916.2

n10 One employee described the effects of the paints as follows:

Just make you feel sick. When you come out of the hole, you feel bad, sometimes you feel like if you throw up you will feel better. And it burns your eyes, like I said. We went over to the dispensary to get our eyes washed; at least I did.

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The keystone of the Act is the prevention [*12] of potential workplace hazards. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1579 & 74-1568 (2d Cir., March 10, 1975). If respondent's employees were required to use airline respirators, the possibility of their breathing the toxic spray paints would be prevented. The majority's implicit denial of the Secretary's motion for amendment thwarts this purpose of prevention. See Hydrate Battery Corp., No. 2311 (March 19, 1975) (Cleary, Commissioner, dissenting).

[The Judge's decision referred to herein follows]

MORAN, JUDGE: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., arising out of a notice of contest timely filed by Dravo Corporation, the Respondent herein. The Respondent, sometimes referred to hereinafter as the "employer," was issued a Citation for other than serious violations of the Occupational Safety and Health Act, referred to hereinafter as the Act, on September 1, 1972, and also on that date was issued a notification of proposed penalty in the total amount of $345.00.

The Citation was issued on September 1, 1972, as a result of an inspection of Respondent's worksite [*13] on May 18, 1972. The inspection was triggered by a complaint by the union that unsafe practices were being observed at the worksite by spray painters. This complaint according to the record was made to the Occupational Safety and Health Administration on April 21, 1972. The Citation consisted of 11 items which charged the Respondent with alleged violations of Section 5(a)(2) of the Act and certain standards promulgated under Section 6(a) of the Act. The Respondent only contests items 8, 9, 10 and 11 of the Citation and the penalties proposed for said items. A hearing was held in Pittsburgh, Pennsylvania, on February 1 and 15, 1973.

With respect to the contested items, the Citation and Notification of Proposed Penalty provide as follows:

Item -- Standard Allegedly Violated -- Description -- Proposed Penalty

8 -- 29 C.F.R. 1916.24(a)(1)(i) -- Boat Yard: Failure to provide employees with air line respirators while they were spray painting with TECTYL-400B in confined spaces, (wing tanks or void spaces) in newly constructed barges. At time of inspection observed employees using chemical cartridge type respiratory protection. -- $30

9 -- 29 C.F.R. 1916.57(c) -- Boat Yard: Failure [*14] to have on file U.S. Department of Labor Form LSB-400B, Material Safety Data Sheet for rust inhibitor TECTYL-400B. Same being sprayed in barge wing tanks. -- $35

10 -- 29 C.F.R. 1916.57(d) -- Boat Yard: Failure to instruct employees (spray painting) who are exposed to the hazardous material (TECTYL-400B) as to the nature and hazards and means of avoiding them. At time of inspection inquired from Shop Steward, as regards instruction on hazardous material. He stated that no instructions had been given. -- $35

11 -- 29 C.F.R. 1910.132(a) -- Boat Yard: Failure to provide protective clothing for employees engaged in spray painting in wing tanks of barges. -- $45

The description of Item 9 upon motion by the complainant was amended in part to read "LSB-OOS-4" rather than "LSB-400B."

The standards allegedly violated are:

1916.24 Painting

(a) Paints mixed with toxic vehicles or solvents.

(1) When paints mixed with toxic vehicles or solvents are sprayed, the following conditions shall apply:

(1) In confined spaces, employees continuously exposed to such spraying shall be protected by air line respirators in accordance with the requirements of 1916.82(a).

1916.57(c) [*15] Health and Sanitation

(c) The pertinent information required by paragraph (b) of this section shall be recorded either on U.S. Department of Labor Form LSB OOS-4, Material Safety Data Sheet, or on an essentially similar form which has been approved by the Occupational Safety and Health Administration. Copies of Form LSB OOS-4 may be obtained at any of the following regional offices of the Occupational Safety and Health Administration:

1916.57(d)

(d) The employer shall instruct employees who will be exposed to the hazardous materials as to nature of the hazards and the means of avoiding them.

1910.132(a) [Personal Protection Equipment] General Requirements

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body [*16] through absorption, inhalation or physical contact.

FINDINGS OF FACT

Based upon an analysis of the record as a whole, the following findings of fact are made:

1. The Respondent, Dravo Corporation, is a Pennsylvania corporation with its principal office located in Pittsburgh, Pennsylvania.

2. The Respondent is engaged in the manufacture and repair of river barges and is an employer engaged in a business affecting commerce.

3. The Respondent's gross sales for the calendar year 1971 were $52,612,000.

4. The premises, machinery and equipment referred to in the Citation are under Respondent's ownership and control.

5. The average daily number of employees working for Respondent is 1,200 and approximately eleven employees are engaged in spray painting.

6. The Respondent has no previous history of violations under the Occupational Safety and Health Act of 1970.

7. As a result of a complaint made by a representative of Local 61, International Union of Marine Shipyard Workers of America on April 21, 1972, to the Occupational Safety and Health Administration, the Respondent's worksite was inspected on May 18 and 19, 1972, by a compliance officer of the Administration. [*17]

8. Based upon the findings of the inspection of May 18 and 19, 1972, a Citation and Notification of Proposed Penalty were issued to the Respondent by the Complainant on September 1, 1972.

9. The evidence of record discloses that although the compliance officer submitted his report and discussed it with the Acting Area Director within the week following the inspection, the Citation was not issued until more than three months later and the evidence of record does not reveal any explanation why issuance of the Citation was so delayed.

10. The evidence of record fails to establish that the Respondent's spray painters were using paints mixed with toxic vehicles or solvents in confined spaces which would require the use of air line respirators.

11. The reliable and probative evidence of record discloses that Tectyl-400B was used but once in December 1971 which was more than six months before the Citation was issued to the Respondent.

12. The evidence of record establishes that the Respondent did furnish the spray painters with head rags; cream for the face; rubber rain suits which were used by the spray painters when using certain types of paint, including Tectyl; mechanical ventilation [*18] by a lamb air mover; and cartridge type respirators.

13. Air line respirators were available for the use of spray painters working in barges under construction but they were not required to use them and the spray painters did not like the particular type of air line respirator furnished and did not use them because of certain alleged deficiencies such as inability to regulate, moisture and dirt coming from them, and lack of sufficient hose.

14. The evidence of record establishes that ordinary industrial coveralls washed once a week or whenever they were sufficiently soiled to require washing was considered by the compliance officer as the kind of protective clothing adequate to satisfy the spray painting operation.

OPINION

The Respondent is charged in Item 8 of the Citation with an alleged violation of 29 C.F.R. 1916.24(a)(1)(i) for failing to provide employees with air line respirators while they were spray painting with Tectyl-400B in confined spaces (wing tank or void spaces) in newly constructed barges. In support of its allegations, the Complainant adduced the testimony of its compliance officer, Edward James Nevin. He testified that the standard required the [*19] use of an air line respirator when the employee is working in a confined space with any vehicle which is either toxic or flammable. This witness further said that he was told by the Respondent's paint supervisor at the time of inspection that Tectyl 400-B had a little more solvent in it than 400-C and when he was furnished the product information sheet on Tectylo 400-C he found that the solvent content was 55 percent of the vehicle -- the paint. He went on to testify as follows:

Q. Did you come to learn what type of solvent it was?

A. Yes. I have it in this book here --

Q. What is the book you are referring to?

A. -- and this mentioned the flash point of the solvent and then subsequent to my inspection when I received information from Ashland, the data sheet that they sent stated that Tectyl 400B had, I believe, 50 percent solvent.

Q. What type of solvent was that?

A. This would be Stoddard solvent, which is a naptha.

Q. Now, the data sheets marked C-6 and C-7 mentioned on them what the flash point of the material is, do they not?

A. Yes.

Q. So they speak for themselves?

A. Yes.

The source of the compliance officer's information as to the type of solvent contained [*20] in the product Tectyl is not of record. The book he testified to as the source was neither identified nor offered in evidence. The evidence of record does not contain any material data sheet for any Tectyl products. The compliance officer was not qualified as an expert on the types of solvent contained in paint products nor does the record reflect he was experienced in such matters. The evidence of record does not establish the toxicity of any paint being sprayed at the worksite as required by 29 C.F.R. 1916.24(a)(1)(i) which would necessitate the use of air line respirators. The testimony of record, including that of the Respondent's medical director, does not disclose any hazardous effects such as respiratory impairment, dermatitis or eye impairment suffered by spray painters. These employees complained of eye irritation, itching of the skin, bad odor, and similar unpleasant reaction to Tectyl products but this does not equate with the hazard of toxicity. The Complainant has failed to establish a violation of 29 C.F.R. 1916.24(a)(1)(i). The compliance officer testified the standard requires air line respirators when working in a confined space with any vehicle that [*21] is either toxic or flammable but the specific section the Respondent allegedly violated that is 29 C.F.R. 1916.24(a)(1)(i) does not pertain to hazards from flammable vehicles.

In Item 9 of the Citation, the Respondent is charged with failure to have on file U.S. Department of Labor Form LSB-00S-4 for Tectyl-400B as required by 29 C.F.R. 1916.57(c). The testimony of Mr. Ralph McCullough who was Respondent's paint supervisor at the time of the inspection discloses that the Respondent did not have a material data sheet for 400-B available at the time of inspection. This witness further testified that the Respondent had ordered only two barrels of Tectyl-400B in the fall of 1971 in an attempt to find a product that could be sprayed in adverse elements (dew), that it was used but one time in December 1971 and not found suitable, and to his knowledge was not used again. He also said that only three quarters of one barrel was used and the other barrel returned to the manufacturer. The Complainant contends that the Respondent used Tectyl 400-B as late as April 17, 1972. The only spray painter to testify he used Tectyl 400-B in April 1972 was Matthew Cook who said he was told by the [*22] foreman that the product to be used was 400-B, but the barrel was rusty and he could not make out the type on it.

Respondent urges that if the last time Tectyl 400-B was used was in December 1971 then the alleged violation took place more than six months before the Citation was issued. Section 9(c) of the Act provides no citation may be issued under that section after the expiration of six months following the occurrence of any violation. The Complainant has the burden of proving a violation occurred. The evidence adduced by the Complainant is not the clear and convincing proof necessary to establish that Tectyl 400-B was used on April 17, 1972. In view of the evidence adduced to the contrary by the Respondent, it must be held that there is insufficient reliable and probative evidence of record to establish a violation of 29 C.F.R. 1916.57(c). The evidence of record discloses Tectyl 400-B was used only once in December 1971 and 29 C.F.R. 1916.57(c)(7) requires that completed Form LSB OOS-4 shall be preserved and available for inspection for a period of 3 months from the date of completion of the job. The inspection occurred in May 1972.

The Respondent in Item 10 is [*23] charged with an alleged violation of the standard at 29 C.F.R. 1916.57(d) for failure to instruct employees spray painting who are exposed to the hazardous material Tectyl-400B as to the nature of hazards of avoiding them. Having previously determined that the evidence of record discloses the use of Tectyl-400B only in December 1971 which is more than six months prior to the date the Citation was issued the Respondent may not therefore be held to have violated this standard.

The Respondent allegedly violated the standard at C.F.R. 1910.132(a) for failure to provide protective clothing for employees engaged in spray painting in wing tanks of barges. The compliance officer testified he noted two spray painters at the time of inspection had clothing saturated with paint and he asked them if the "company provided protective clothing for them when spray painting in the interior of the barge, and they said no, . . . ." He said he felt that the men could contact dermatitis or be subject to a fire hazard with paint-saturated clothing and he believed they should be provided with coveralls that could be changed frequently. Witness Slocum, a spray painter, testified that he used a rain or [*24] rubber suit which the Respondent supplied when painting with "Flowcoat" or "Tectyl" or "material like that, oil" and the Witness Cook also testified that they were furnished when using Tectyl. Testimony of record also discloses that the Respondent ordered the spray painters to clean their clothes. On cross examination, the compliance officer was asked what kind of protective clothing would satisfy the spray painting operation in his opinion. His reply was "just ordinary industrial coveralls that would be washed once a week or once -- whenever they were sufficiently soiled to require washing." Ordinary industrial coveralls can hardly be considered the type of protective clothing contemplated by 1910.132(a) to be provided which would be "necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact." As previously related, the Respondent does furnish, and the spray painters do use, rain suits when spraying certain paint products. Such suits are more indicative [*25] of what is meant by protective clothing than ordinary work clothes. The Complainant has failed to establish that the Respondent violated 29 C.F.R. 1910.132(a).

Although the Respondent did not affirmatively raise the issue of the long delay from the time of the inspection until the issuance of the Citation and did not assert that it was prejudiced thereby, the extensive period of time involved appears to be contrary to the express requirements of Section 9(a) of the Act which requires the issuance of a Citation with reasonable promptness following an inspection or investigation. A time lag of three and a half months appears clearly excessive when one considers the concurring opinion of Chairman Robert D. Moran in Secretary of Labor v. Pleasant Valley Packing Co., Inc., It is recognized, however, as pointed out by Review Commission Judge William J. Risteau in Secretary of Labor v. Custom Painting Company, OSHRC Docket 1255, that the full Commission has not ruled directly on the matter of timely issuance. In Secretary of Labor v. Borton, Incorporated, days was not reasonable where no excuse for the Secretary's delay showing exceptional circumstances was of record and where the Respondent therein proffered proof of prejudice. In Secretary of Labor v. E.C. Ernst, Inc., Custom Painting Company, supra.

CONCLUSIONS OF LAW

1. The Respondent, Dravo Corporation, is and at all times pertinent herein was engaged in a business affecting commerce, and the Occupational Safety and Health Review Commission has jurisdiction [*27] over the parties and the subject matter within the meaning of Section 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. The Respondent was not in violation of Section 5(a)(2) of the Act and the standard promulgated under Section 6 of the Act at 29 C.F.R. 1916.24(a)(1)(i) at any time within a six month period prior to the issuance of the Citation on September 1, 1972.

3. The Respondent was not in violation of Section 5(a)(2) of the Act and the standard promulgated under Section 6 of the Act at 29 C.F.R. 1916.57(c) at any time within a six month period prior to the issuance of the Citation of September 1, 1972.

4. The Respondent was not in violation of Section 5(a)(2) of the Act and the standard promulgated under Section 6 of the Act at 29 C.F.R. 1916.57(d) at any time within a six month period prior to the issuance of the Citation on September 1, 1972.

5. The Respondent was not in violation of Section 5(a)(2) of the Act and the standard promulgated under Section 6 of the Act at 29 C.F.R. 1910.132(a) on May 18 and 19, 1972.

ORDER

It is therefore ORDERED that Items 8, 9, 10 and 11 of the Citation, as amended, and the penalties proposed therefor, be and [*28] the same are hereby VACATED.