KAISER ALUMINUM AND CHEMICAL CORPORATION
OSHRC Docket No. 1547
Occupational Safety and Health Review Commission
August 17, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On February 27, 1973, the Judge issued his recommended decision and order in the instant case granting respondent's motion to withdraw its notice of contest and affirming the citation and notification of proposed penalty.
On March 5, 1973, former Commissioner Alan F. Burch directed that the proposed decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").
The Commission has reviewed the entire record. The Judge's recommended order is adopted to the extent that it is consistent with the following.
Review of the record discloses that on September 18, 1972, respondent was issued a citation for other than serious violations consisting of two items, the first of which consisted to two parts, a and b. A notification of proposed penalty of $60 was proposed in the aggregate for four and eight unguarded pits for parts a and b of item 1, respectively. Thereafter, the Secretary through his complaint amended the notification of proposed penalty to provide for $5 penalties for each unguarded pit resulting in amended proposed penalties of $20 for item 1(a) and $40 for item 1(b). Respondent contested only item 1(b), thereby placing in issue the amended proposed penalty of $40. n1
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n1 Since items 1(a) and 2 of the citation and the amended proposed penalty for item 1(a) were not contested they become final orders of the Commission.
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Respondent subsequently moved to withdraw its notice of contest which the Judge properly granted.
Accordingly, the Judge's order is amended to provide that item 1(b) of the citation together with the amended proposed penalty therefore are affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I concur, however for reasons which I set forth in Secretary v. E.F. Houghton & Company, Secretary v. Chace International Corporation, without any consideration by the Commission.
[The Judge's decision referred to herein follows]
OSTERMAN, JUDGE, OSAHRC: This matter is before me on Respondent's motion, filed on February 20, 1973, to withdraw its Notice of Contest filed in the above captioned matter on October 10, 1972.
The record herein discloses that on September 18, 1972 a Citation was issued by Complainant against Respondent. The alleged violations, the abatement dates and the proposed penalties follow:
|
|
|
Proposed |
|
Violation |
Abatement date |
penalty |
|
29 CFR 1910.22(c) |
Oct. 18, 1972 |
n1 $60.00 |
|
29 CFR 1910.178(q)(10) |
Oct. 3, 1972 |
None |
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n1 Proposed penalty reduced in the Complaint to $40.00.
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It further appears from the record herein that the violations will be abated; that Respondent has tendered in full the penalty proposed by the Complainant; that Respondent is now in full compliance with the safety and health standards established by the Secretary of Labor and has certified that it will so continue; and that Respondent has fully complied with the service and posting requirements of 29 CFR 2200.7.
This Motion having been properly served and posted in accordance with the provisions of 29 CFR 2200.7, and a reasonable time having since elapsed, and no objection having been received from the parties to this proceeding, it is ORDERED:
(1) That the Respondent's Motion to withdraw its Notice of Contest be, and the same hereby is, granted.
(2) The said Citations and the Proposed Penalty are affirmed in all respects.