DELMAS H. SMITH

OSHRC Docket No. 3464

Occupational Safety and Health Review Commission

May 20, 1974

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On August 15, 1973, Judge Herbert E. Bates issued his decision and order in this case granting the contestant's motion to withdraw his notice of employee contest.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), review was directed of the Judge's decision and order.

Having examined the Judge's decision, we find no prejudical error resulting from his dismissal of the contest.

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: On June 19, 1973 the Respondent issued to the named employer herein an Amended Citation for violations other than serious of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ), hereinafter referred to as the Act, and the regulations promulgated thereunder and found at 29 CFR 1910.

Said Citation alleges inter alia that employees on the first level of the Purification and Reduction Furnace Building were exposed to hydrogen chloride levels in excess of the 7 mg/m<3> ceiling value set forth in Table G-1 of the said standard. [*2]

1] As a result of the aforesaid violation, no penalty was proposed.

2] Abatement of the violation is to be accomplished through the submission of a detailed plan for long-term abatement to the Area Director, Charleston, West Virginia on or before July 20, 1973 with complete abatement in accordance with subsection (e) of 1910.93 to be achieved through the implementation of feasible administrative or engineering controls by June 4, 1974. No requirement for the use of appropriate personal protective equipment was provided in said Citation in view of the fact that employees were noted, at the time of the inspection giving rise to the instant matter, to be wearing appropriate respirators.

3] By letter dated June 23, 1973 and received by the Charleston, West Virginia Area Office, Occupational Safety and Health Administration on June 25, 1973, Delmas H. Smith contested the abatement date given the aforesaid employer.

4] By letter dated July 16, 1973, Mr. Smith, the Contestant herein, requested that challenge of the extended abatement date be withdrawn.

The Secretary in answer to this contest, replied that the June 4, 1974 abatement date was reasonable and justified (citing [*3] reasons) and prayed that Mr. Smith's Notice of Contest be dismissed, an issue which does not have to be treated with here, because Mr. Smith's withdrawal of contest, as above noted, has mooted that issue, and nothing further remains to be decided in respect thereto.

It is ORDERED that the Contestant's Notice of Contest withdrawal be and is approved, and the Contestant's action herein is, hereby dismissed.