Docket No. 5796

TRUSTEES OF PENN CENTRAL TRANSPORT CO.

OSHRC Docket No. 5796

Occupational Safety and Health Review Commission

December 22, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Lewis W. Wickes, Commerce Counsel, PENN CENTRAL TRANSPORTATION CO., LEGAL DEPARTMENT, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On September 24, 1974, Judge Joseph Chodes issued his decision in this case, affirming the Secretary of Labor's citation for non-serious violation and assessing total penalties of $625.

On October 22, 1974, review of the Judges decision by the full Commission was directed sua sponte by Commissioner Moran pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act").

Review was directed on the following three issues: (1) Whether the Judge ruled properly on respondent's defense that jurisdiction is lacking in this case as a result of the provisions of section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1); (2) Whether the amendments which were made in the pleadings comported with the particularity requirement of section 9(a) of the Act, 29 U.S.C. § 658(a); and (3) Whether there was sufficient evidence of record to sustain the violations. [*2]

On March 22, 1975, Commissioner Moran added sua sponte four issues to his previous order for review. n1 This was done although on March 11, 1975, respondent filed a petition for prompt disposition of review in which it argued the following:

This long controversial fandango should now reach an end. By a prompt disposition of this review your Commission can immediately relieve the Government and the railroads of any need for continued waste [of] motion, expense, and litigation. We respectfully, indeed prayerfully, suggest that you do so.

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n1 The order invited briefs by the parties on the following issues:

(1) Do the abatement times 'Immediately upon receipt of this citation' comport with the requirements of 29 U.S.C. § 658(a)?

(2) a) Did the standards now codified at 29 C.F.R. § 1910.23(c)(1) and § 1910.212(a)(3)(ii) apply to respondent when they were formulated as a national consensus standard and established federal standard, respectfully?

b) If not, were the scopes thereof legally expanded under this Act to so include?

(3) Do the standards codified at 29 C.F.R. § 1910.94(d)(9)(vii) and § 1910.212(a)(1) adequately inform employers what must be done to be in compliance therewith?

(4) a) Is the purpose of the standard codified at 29 C.F.R. § 1910.157(d)(3)(i) directed at the protection of property?

b) If so, is this a permissible purpose within the mandates of the section under which it was promulgated?

[*3]

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It is clear from the record that the parties considered the case ready for disposition at the time of respondent's petition. We therefore decide the case without examining the four additional issues that were raised sua sponte some five months after the case was ordered for review under section 12(j) of the Act. The Commission has a duty to conclude matters presented to it within a reasonable time. An examination of the additional issues in this case inhibits the performance of this duty. We do not at this time pass upon the power of a single member to raise additional issues once a case has been directed before the full Commission under section 12(j) of the Act.

The Commission has reviewed the record in its entirety. We conclude that the Judge correctly disposed of all material issues.

With regard to penalties, the Commission is well-aware of the financial condition of respondent. In the past, we have vacated penalties when a respondent's financial situation has indicated that the imposition of penalties would create a hardship. See Colonial Craft Reproductions, No. 881 (October 27, [*4] 1972).

In the present case, however, respondent is a large corporation with substantial assets. Even though respondent is insolvent, it is unlikely that these comparatively low penalties will constitute a hardship. If such is the case, respondent may well raise the point during the collection process provided for in section 17(1) of the Act.

After consideration of the penalty assessment factors listed in section 17(j) of the Act, we affirm the penalties assessed by the Judge for the reasons he has assigned.

Accordingly, it is ORDERED that the Judge's decision and order be affirmed and that respondent be assessed a penalty of $625.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons expressed in my opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC (Docket No. 4616, October 17, 1975), I would vacate the citation because the railroad industry, of which the respondent is a part, is excluded from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. § 653(b)(1).

Ordinarily the foregoing paragraph would be sufficient to cover my views on the issues necessary to the disposition of this case. However, the hanky-panky [*5] that has taken place in the processing of this decision and the implication in the lead opinion that my addition of four issues for examination on review has interfered with the timely disposition of this case require comment.

Chairman Barnako originally assented to Commissioner Cleary's opinion in this case on October 8, 1975. On October 17, 1975, I filed a dissent which stated the following:

As of October 1, 1975, there were 148 cases which had been pending before the Commission longer than the instant case. Although I directed review in only 54 of these cases, I have proposed decisions for disposition of 123 of them. Some of these proposed decisions were circulated to the other members of the Commission more than a year ago. In many of these, the member who directed review has not proposed any decision or indicated how he would dispose of the case.

Instead of attempting to assess blame for delay in disposition of this particular case I suggest that Messrs. Cleary and Barnako practice what they preach. They state that 'The Commission has a duty to conclude matters presented to it within a reasonable time.' I certainly agree with that and, on August 1, 1975, proposed that [*6] a rule be adopted which would require disposition of all cases within 7 months of the time they were directed for review. It would take the assent of only one of these gentlemen to make such a rule effective. Not only has such assent not been forthcoming but no counter-proposal has been offered by either of them.

It is clear to anyone who is familiar with this Commission's case backlog and rate of dispositions that nothing less than a self-imposed time-limit will achieve our duty to 'conclude matters . . . within a reasonable time.'

At the beginning of October 1975 there were 518 unresolved cases in our backlog. The Commission members disposed of zero cases in August 1975 and 8 cases in September 1975. In the 75 days since the Commission has been made up of the present 3 members, a grand total of 12 decisions have been issued, indicating an effective annual rate of 60 decisions per year. If this pace continues it will take 8 years to resolve the existing backlog. However, since the number of new cases directed for review has averaged more than 400 per year, it is clear to me that our 'duty' will never be achieved under the existing arrangement unless my colleagues interpret [*7] the phrase 'within a reasonable time' to mean 'within ten years or so.'

Drastic and immediate action - not pontificating - is needed to resolve this backlog problem. More than a year ago I set forth some proposals in an article printed in the Colorado Law Review n2 and I will gladly assent to any proposal - including the total elimination of the discretionary review process - which will expedite the disposition of these cases.

Until one of my colleagues proposes some specific action, or agrees with a proposal of mine, we are stuck with the present slow-as-molasses system of case disposition. And so long as that exists all of us are bound by its constraints and limitations - one of which is that when the Commission directs review of a case, it is not limited to reviewing the issues specified in the direction for review, but may review the entire record. Accu-Namics, Inc. v. OSAHRC, 515 F.2d 828, 834 (5th Cir. 1975). If it appears after the initial direction for review that additional issues require examination, basic fairness dictates that the parties be afforded an opportunity to brief those additional issues, rather than reversing on an issue where the parties have [*8] not been afforded that opportunity as the Commission did in Secretary v. Allied Structural Steel Company, 14 OSAHRC 689 (1975)."

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n2 Moran, Discretionary Review by the Occupational Safety and Health Review Commission: Is It Necessary? 46 Colorado Law Review 139 (Winter 1974 edition).

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This decision would have issued on October 24, 1975, except that Chairman Barnako withdraw his assent on October 21, 1975. Although no change has been made in the lead opinion since his original assent, Chairman Barnako again entered an assent thereto on December 9, 1975. The decision in this case will now be issued seven days after December 12, 1975, the day I file this dissent unless one of the other Commissioners modifies his action in the interim.

Candor requires me to acknowledge that the Commission's performance in deciding cases his shown a significant improvement since October 17. It is conceivable that my above-quoted remarks have had some salutary effect. In any event, the Commission decided 67 cases in 32 decisions [*9] during the period October 1 through November 30. The number of dispositions are more than twice the number of decisions because many of the cases involved identical issues which could be decided in one decision by consolidation of the cases. Since this well will soon run dry, I see no need to alter my original remarks.

Although my colleagues chastise me for causing the delay in this case, apparently they choose to disregard the delay of two months that has been caused by the withdrawal of Chairman Barnako's original assent. Since no change has subsequently been made in the lead opinion, I am constrained to conclude that the withdrawal action was taken in order that more favorable decisional statistics could be compiled before the release of this decision. That is the only possible conclusion that can be drawn from the Chairman's action. Such motivation is obviously wrong and inconsistent with the criticism of my addition of four issues to the case.

Since the foregoing opinion does not fully state the matters covered by Judge Chodes' decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

GEORGE P. BAKER, ROBERT W. BLANCHETTE and RICHARD C. BOND, [*10] TRUSTEES OF THE PROPERTY OF PENN CENTRAL TRANSPORTATION COMPANY, DEBTOR

Theodore T. Gotsch, for the Secretary of Labor

Joseph E. Esposito, for the respondent

Joseph Chodes, Judge, OSAHRC

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as the Act) in which the respondent is contesting a citation issued by the complainant under the authority vested in complainant by sections 9(a) of the Act (29 U.S.C. 658(a)).

The respondent contested the citation, and after a complaint and an answer had been filed by the parties, the case came on for hearing at New York, New York, on June 28, 1974.

The citation, which was issued on November 30, 1973, following an inspection on August 14, 1973 of a place of employment at the respondent's railway maintenance and repair shop, located on Crown Point Avenue, Harman, New York, alleged that the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 of the Act (29 U.S.C. 655) and [*11] codified in 29 Code of Federal Regulations, Chapter XVII, Part 1910. The specific standards involved will be discussed in the following part of this decision. The respondent was also charged with violating a regulation promulgated by the Secretary pursuant to section 8 of the Act (29 U.S.C. 657) and set forth at 29 C.F.R. 1903.2(a), relating to posting of a notice to employees.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated November 30, 1973, from Nicholas A. DiArchangel, Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of the assessment of proposed penalties for the violations totalling $715.

PRELIMINARY STIPULATIONS

1. The name of the respondent is as shown in the title to this cause. (T-5-7)

2. Respondent is a common carrier railroad and at all times pertinent herein was being operated by its trustees in interstate and intrastate commerce. (T-7)

3. The average daily number of employees of the respondent at the inspection site was 450. (T-7)

4. There were no injuries at the time of the alleged violations. (T-7)

5. There is no [*12] previous history of violations of the Occupational Safety and Health Act of 1970. (T-7, 8)

AMENDMENT OF CITATION AND COMPLAINT

At the hearing item 10 of the citation and paragraph V(10) of the complaint was amended by deleting the word "combustible" and substituting the word "flammable", in order to conform the pleadings to the evidence presented at the hearing. (T-180, 181)

MOTION TO DISMISS COMPLAINT

At the close of the hearing the respondent moved to dismiss the complaint on the grounds that (1) the Occupational Safety and Health Act does not apply to railroads and (2) that the Occupational Safety and Health Administration does not have jurisdiction to issue a citation against a railroad in reorganization.

The first ground is based on the provisions of section 4(b)(1) of the Act (29 C.F.R. 653(b)(1) which provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State egencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

This section [*13] of the Act has been considered in a number of cases involving the question whether the Secretary of Labor or other government departments, such as the Department of Transportation, Department of Interior or the Department of Agriculture, have jurisdiction to enforce safety standards. The general rule was stated by Commissioner Cleary in the case of Secretary v. Mushroom Transportation Company, Inc., No. 1588, (November 7, 1973) as follows: "Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner." On the other hand, if the other Federal agency has authority to issue regulations covering working conditions, but fails to do so, section 4(b)(1) would not preclude the Department of Labor from enforcing the occupational safety and health standards promulgated under the Act. See Secretary of Labor v. Southern Terminal and Transfer Company, No. 19749 (October 8, 1973).

The Federal Railroad Safety Act of 1970, 45 U.S.C. 421 et seq., provides [*14] in pertinent part:

Section 421. The Congress declares that the purpose of this Act is to promote safety in all areas of railroad operations and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving carriers of hazardous material.

Section 431. The Secretary of Transportation * * * shall (1) prescribe as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on October 16, 1970 and (2) conduct as necessary research, development, testing, evaluation, and training for all areas of railroad safety.

There is no question but that under the Federal Railroad Safety Act the Secretary of Transportation has statutory authority to prescribe and enforce safety standards covering the working conditions of its employees. However, it is not shown that the Secretary of Transportation has promulgated safety standards which relate to the working conditions of the employees at the workplace involved herein.

Several cases involving facts similar to the instant case have been decided by Judges of the Commission and are currently under review. Secretary [*15] v. Seaboard Coast Line Railroad Co., No. 2802 (July 5, 1973), a decision by Judge Bates, lends support to the respondent's position that the intent of Congress in enacting section 4(b)(1) of the Act was to exclude the employees of whole industries such as railroad and mining, from coverage by the Occupational Safety and Health Act. Other cases have been decided contrary to the holding in the Seaboard Coast Line Railroad case. In Secretary v. Union Pacific Railroad Co., No. 3638 (April 23, 1974) Judge Carlson noted that the Department of Transportation regulations set forth at 49 C.F.R. Parts 211-252, applied to rolling stock, track and associate appliances and railroad crews but not to maintenance employees in railroad stops. In Secretary v. Union Railroad Co., No. 4318 (February 20, 1974) Judge Chalk held that the objectives of the Federal Railroad Safety Act are directed primarily to the safety of the public and the reduction of damage to property in the area of the rolling stock of railroads rather than to employee safety and health and relate only to employees directly involved in rolling stock operations. In Secretary v. Penn Central Transportation [*16] Co., No. 738 (January 26, 1973) Judge Osterman said:

I believe it is clear without further laboring the point that the mere grant of authority to an agency to enforce occupational safety and health standards within an industry is insufficient to exempt the industry under Section 4(b) of the Act. An exemption is not effective until the agency by rules or regulations actually takes affirmative steps to exert its authority in this field.

In light of the Commission's holding in the Mushroom Transportation case, supra, and other cases cited in this decision, it is the opinion of this Judge that the respondent is not exempted from the provisions of the Act, absent promulgation of regulations by the Secretary of Transportation covering the working conditions of the affected employees in this case. This would appear to be in accordance with the precise purpose and policy of the Act "to assure so far as possible every working man and woman in the nation safe and healthful working conditions". To hold otherwise would deprive a large segment of the work force the protection Congress intended in enacting this legislation.

The second ground for respondent's motion to dismiss, is that [*17] the Occupational Safety and Health Administration does not have jurisdiction to proceed against the respondent, which is in reorganization under § 77 of the Bankruptcy Act (11 U.S.C. 205, et seq).

The general rule that a business in reorganization is not exempt from compliance with valid laws was stated by Judge Fullman in the case of In Re Penn Central Transportation Co., 347 F. Supp. 1356 (1972). In another case involving the respondent in reorganization, reported at 347 F. Supp. 1349, the Commissioner of Transportation of the State of New York requested leave to make the respondent's trustees parties in administrative proceedings. Judge Fullman said:

Section 77(c)(2) of the Bankruptcy Act clearly contemplates the participation by the Trustees in regulatory proceedings concerning their own acts in carrying on the business of the Debtor. It is apparent that the administrative proceeding contemplated by petitioner primarily involves safety along part of the Debtor's rail lines. Under Section 77(c)(2), the pendency of these reorganization proceedings does not diminish whatever right petitioner may have to bring such a proceeding against the Trustees.

Section 77(c) [*18] of the Bankruptcy Act (11 U.S.C. 205(c)) provides that the appointed trustees of the railroad in operating the railroad with respect to safety shall be subject to "lawfaul orders of State regulatory bodies of state-wide jurisdiction". With the passage of the Occupational Safety and Health Act the Department of Labor was granted authority to enforce safety standards which until the passage of the Act had been the province of the various states. It follows that to achieve the purpose of the Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions", it would be anomalous to hold that the respondent is subject to safety regulations of the states but not to the federal regulations which pre-empted the state regulations.

Accordingly, the respondent's motion to dismiss the complaint is denied.

SUMMARY OF EVIDENCE AND FINDINGS

On August 14, 1973, Otto White, a compliance officer of the complainant, conducted an inspection of the respondent's facilities at Harman, New York. He was accompanied on the inspection by W. W. Nelson, a representative of the Department of Transportation, and in addition by the respondent's representative [*19] Art Black and the union shop steward, Mr. Lucian. (T-20, 23) Mr. White was the only witness at the hearing and his testimony related to 15 items of violations which will be summarized in order.

Item 1 alleged violation of 29 C.F.R. 1910.23(c)(1) for failure to guard platforms 4 feet or more above adjacent floor or ground level in the diesel repair shop with a standard railing or equivlaent on all open sides except where there was entrance to a ramp, stairway or fixed ladder.

The testimony showed that there were four elevated platforms in the car repair shop, measuring approximately 8 feet wide and 75 feet long. There was a 6-foot drop to the ground level on one side of the platforms are a 6-foot drop on the other side to railroad tracks on which locomotives came into the shop for repairs. There was also a pit, 4 feet deep, below the tracks. Most of the platform was protected by detachable chain railings with top and mid rails which adequately met the requirements of the standard. However, about 30 setions of chains (each approximately 6 to 8 feet long) were not in place. Apparently, they were removed to allow work on a locomotive and not replaced when the work was completed, [*20] despite the respondent's policy that the railings be replaced as soon as work was completed. The hazard this presented was that employees working on the platform could fall off the edge. There were four employees working in the center of one of the platforms during the inspection at such tasks as putting tools back into work boxes, but they did not go near the edge of the platform. (T-25-29, 31, 57, 59, 63, 67)

Mr. White recommended an unadjusted penalty n1 of $200 for the violation based on his estimate of the probability of an accident occurring, the extent of the violation and the severity of any resulting injury. (T-29, 30, 35-37)

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n1 Section 17(j) of the Act (29 U.S.C. § 666(i)) 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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The respondent was allowed a credit of 40 percent for good faith (it had a safety program) and negative history of previous violations. No credit was given for the size of the respondent's business as none is allowable under the complainant's guidelines where an employer has more than 100 employees. An additional credit of 50 percent of the reduced penalty was allowed for abatement of the violations which reduced the proposed penalty to $60. (T-39-42)

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.23(c)(1) and the evidence further establishes that a penalty of $60 as proposed by the complainant is reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

Item 2 alleged violation of 29 C.F.R. 1910.106(e)(9)(iii) for failure to keep combustible waste material in the diesel repair shop stored in a covered metal receptacle. The evidence was that a 55-gallon metal drum on a platform was three-quarters filled with oil soaked rags and was not covered. The rags were of a hydrocarbon nature and could self-ignite or be ignited by a cigarette. The time the rags were in the drum was not determined but there seemed to [*22] be quite an accumulation of rags when inspected at 11:00 a.m. There were three employees working in the area, inspecting gauges, lubricating motor components and doing general maintenance.

An unadjusted penalty of $100 was recommended because the probability of a fire occurring was considered low and in the event of a fire occurring only minor burns could be expected. It was brought out on cross-examination that in the event of a fire there was an easy exit pathway to either end of the platform. Also, within approximately 8 to 10 feet of the drum there was a fire extinguisher. Allowing credit for the factors of good faith, the nagative history of previous violations, and abatement of violations, the proposed penalty was $30. (T-68-78)

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.106(e)(9)(iii) and the evidence further establishes that a penalty of $30 as proposed by the complainant is reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

Item 3 alleged violation of 29 C.F.R. 1910.24(f) for failure to keep all stair treads to platforms reasonably slip resistant. The evidence established that there were fixed [*23] stairways about 3 or 4 feet wide, six feet high, with guardrails at each end of the four platforms and that there was an accumulation of dirt and oil on the steps which made them slippery. Four of respondent's employees were exposed to the hazard of slipping on the stairs as they were required to use the stairways to bring materials to the work area on the platforms. The unadjusted penalty for this violation was $180 which was reduced to $55 by the factors heretofore discussed. (T-79-86)

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.24(f) and the evidence further establishes that a penalty of $55 as proposed by the complainant is reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

Item 4 alleged violation of 29 C.F.R. 1910.101(b) for failure to handle and store compressed gas in cylinders in accordance with Compressed Gas Association Pamphlet P-1-1965, Section 3.21 in that Freon tanks did not have valve caps. In the passenger car repair shop there were two compressed gas cylinders of Freezone which were unsecured and the valve caps were missing. The hazard was that if the cylinders were knocked over the valves [*24] could be damaged and cause the cylinder, weighing about 140 pounds, to take off like a missile. There were employees (exact number not of record) working within 10 to 15 feet from the cylinders. The penalty proposed for this violation was $55 which the respondent stipulated was reasonable. (T-86-91)

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.101(b) and the evidence further establishes that a penalty of $55 as proposed by the complainant is reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

Item 5 alleges a violation of 29 C.F.R. 1910.94(d)(9)(vii) for failure to provide a supply of clean cold water at a parts washing tank where harmful liquids could burn, irritate or otherwise be harmful to the skin if splashed upon the worker's body. In the general machine drop area there was a degreasing tank containing cleaning solution made with sodium hydroxide, also known as lye. The tank was approximately 6 feet long, 6 feet wide and 3 feet deep. Metal parts were put into the tank which was operated at 200 degrees Farenheit so that there was surface heat and vapor emissions. The hazard was the possibility of eye [*25] and face splashes while parts were being placed in the tank or being drained off resulting in eye burns or irritations. One employee was working at the tank putting in and removing parts. There was no hose or other means of obtaining clean cold water in the vicinity of the tank. There was another degreasing tank in another location which did have showers and facilities for eye washes. The employee at the tank involved in the citation was wearing safety glasses without side shields which provided some protection to the eyes, but not complete protection. The probability of an injury occurring was considered moderate and if an accident occurred minor skin irritation or eye injury could result because the solution in the tank was mild. The unadjusted penalty recommended was $140 which became $40 after the usual credits. (T-92-100, 113)

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.94(d)(9)(vii) and the evidence further establishes that a penalty of $40 as proposed by the complainant is reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

Item 6 alleges violation of 29 C.F.R. 1910.242(b) for failure to limit compressed [*26] air used in the armature repair shop for cleaning purposes to less than 30 p.s.i. One of respondent's employees was observed in the armature shop cleaning small metal parts with a hose utilizing compressed air. The gauge supplying the hose registered 90 p.s.i. At the end of the hose there was a needle valve which controlled the air velocity and exit pressure to from zero to 90 p.s.i. There was no chip guarding device on the hose nozzle. The evidence did not indicate what pressure was being used by the employee to perform his tasks. (T-116-123)

The hazard involved in this type of violation was that, in the absence of a chip guarding device, particles could be projected by the air pressure and cause injury to employees. It was noted that the employee doing the hose cleaning was wearing protective safety glasses. Another hazard was the possibility of impregnating the blood vessels with oxygen when the pressure was above 30 p.s.i. and was directed to the employee's hand or body, which cause oxygen bubbles in the blood stream and be quite painful. (T-119, 125-128)

An unadjusted penalty of $140 was recommended for this item which, when reduced by the factors previously discussed [*27] resulted in a proposed penalty of $40. (T-129, 130)

The citation and complaint relating to this item alleges only that respondent did not limit compressed air used for cleaning purposes to less than 30 p.s.i. Since the evidence does not establish the pressure actually used by respondent's employee the allegations of the complainant have not been established. However, the standard provides that even if compressed air is less than 30 p.s.i., the compressed air must be used "with effective chip guarding and personal protective equipment". The evidence presented at the hearing established that there was no chip guarding device being used by respondent's employee and there was no objection to the admission of this evidence, albeit, respondent did ask whether the citation included failure to have a chip guard. (T-135) Under the circumstances the citation and complaint will be amended to conform to the evidence of record by including allegations that respondent did not have effective chip guarding when using compressed air for cleaning purposes. This action is in consonance with rule 15(b) of the Federal Rules of Civil Procedure. Having found a violation of the standard in that a [*28] chip guarding device was not used in the cleaning operation, the question of an appropriate penalty needs to be determined. Since the air pressure being used is not established, there remains only a technical violation of the standard for which no penalty ought to be assessed as without knowledge of the air pressure used it is impossible to ascertain the gravity of the violation.

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.242(b) and the evidence further establishes that no penalty should be assessed under the criteria set forth in section 17(j) of the Act.

Item 7 alleges violation of 29 C.F.R. 1910.212(a)(1) for failure to provide machine guarding for a Double Wheel Buffer and a Combination Buffer Grinder, to protect employees in the machine area from hazards such as created by point of operation, rotating parts, flying chips and sparks. The two machines were fixed and mounted on stands in the air shop and were used to perform grinding and polishing operations. The grinder had wheels of approximately 8 inches in diameter and 1-1/2 inches thick and the buffer had wheels 6 inches in diameter and 2 inches in width. The machines were partially [*29] guarded at the top by a semicircle enclosure which limited the projection of particles into the aisle way but did not restrict projection of particles or sparks toward the operator. The bottom portions of the machines were completely open so that the operator's hands could come into contact with the rotating grinding wheel or scratch brush with resultant cuts and burns. Additionally, an employee who bent down while the machines were operative could inadvertently raise his head and come into contact with the grinder wheel or brush and possibly suffer cuts and burns. There was also the hazard that sparks could flare onto the floor or an employee's clothing. At least one of respondent's employees was observed operating the machines. (T-145-153)

The penalty proposed was $50 which the respondent stipulated was reasonable. (T-155)

Findings of Fact: The evidence establishes a violation of 29 C.F.R. 1910.212(a)(1) and the evidence further establishes that a penalty of $50 as proposed by the complainant is reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

Items 8, 9 and 10 were discussed by Mr. White as a unit. These items alleged violations [*30] of the following standards:

(8) 29 C.F.R. 1910.107(g)(2) for failure to keep a spraying area in the spray booth as free from the accumulation of deposits of combustible materials as practical.

(9) 29 C.F.R. 1910.107(g)(3) for failure to immediately remove from the premises and properly dispose of residue, scrapings and debris in the spray booth which was contaminated with residue.

(10) 29 C.F.R. 1910.107(e)(3) for failure to use original closed containers, approved portable tanks, approved safety cans or a properly arranged system of piping, for bringing combustible liquids into the spray room.

The testimony was that in the spray booths there was an accumulation of paper and rags containing cleaning solvents and an accumulation of enamel and lacquer paint residue on the walls, louvers and bench tops. In the spray room there were 12 five gallon and 5 two gallon containers of unused paint and paint thinner, composed of zylene, toiolene, benzine and acetone, which were not covered. The violation of each of the standards contributed to a fire hazard due to evaporation and diffusion of gasses from the accumulated combustible material. This presented an atmosphere or potential for [*31] fire or explosion, which due to a low flash point could be set off by a spark possibly from a cigarette, or static electricity. (T-158-175)

The probability of a fire occurring was rated high due to the large quantity of combustible material and any resulting injury would be high. Five employees were exposed to the hazard. An unadjusted penalty of $200 was recommended for each of the three violations which, after allowing credits for good faith and history and abatement, was reduced to $60 for each violation. (T-177-179)

Findings of Fact: The evidence establishes violations of 29 C.F.R. 1910.107(g)(2), 29 C.F.R. 1910.107(g)(3) and 29 C.F.R. 1910.107(e)(3) and the evidence further establishes that penalties of $60 for each of the violations, as proposed by the complainant are reasonable and appropriate, under the criteria set forth in section 17(j) of the Act.

STIPULATIONS REGARDING ITEMS 11, 12, 13, 14 and 15

Items 11, 12, 13 and 14 alleged violations of standards and Item 15 alleged violation of a regulation as follows:

11. 29 C.F.R. 1910.212(a)(3)(ii) for failure to guard the point of operation of a Singer sewing machine in the repair shop whose operation exposed [*32] an employee to injury.

12. 29 C.F.R. 1910.309(a) for failure to guard live parts of electrical equipment in the battery charging station which were operating at 50 volts or more against accidental contact by approved cabinets, other forms of approved enclosure or by other means as specified in the National Electrical Code Section 110-17(a).

13. 29 C.F.R. 1910.213(a)(11) for failure to provide a guard plug for exposed non-current carrying metal parts of a portable motor driven electric hand tool operated at more than 90 volts to ground.

14. 29 C.F.R. 1910.157(d)(3)(i) for failure to inspect, examine and/or recharge and repair a portable fire extinguisher located in the storeroom at regular intervals of not more than one year apart to insure operability and safety.

15. 29 C.F.R. 1903.2(a) for failure to post the Occupational Safety and Health Administration Notice in a conspicuous place.

The parties stipulated at the hearing that Mr. White's testimony would support the violations charged in the above items and that the penalties proposed by the complainant for items 11, 12, 13 and 14 of $30, $45, $30 and zero dollars, respectively, are reasonable, and that the penalty for violation [*33] of item 15 should be reduced to $50.

CONCLUSIONS OF LAW

The following conclusions of law are based on the pleadings, stipulations, and evidence:

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the Occupational Safety and Health standard set forth in items 1 through 15 as set forth in the citation.

4. The respondent is assessed the penalties proposed by the complainant for each item except that no penalty is assessed for item 6 and the penalty for item 15 is reduced to $50.

ORDER

Upon the basis of the foregoing stipulations, findings of facts and conclusions of law, and upon the entire record, it is

ORDERED that the citation issued on November 30, 1973, for violations of the standards and regulation as listed below are affirmed, and the amount set opposite each standard [*34] or regulation is the assessed penalty for the violation.

Item	Standard Violated	Penalty
1	29 C.F.R. 1910.23(c)(1)	$ 60
2	29 C.F.R. 1910.106(e)(9)(iii)	30
3	29 C.F.R. 1910.24(f)	55
4	29 C.F.R. 1910.101(b)	55
5	29 C.F.R. 1910.94(d)(9)(vii)	40
6	29 C.F.R. 1910.242(b)	0
7	29 C.F.R. 1910.212(a)(1)	50
8	29 C.F.R. 1910.107(g)(2)	60
9	29 C.F.R. 1910.107(g)(3)	60
10	29 C.F.R. 1910.107(e)(3)	60
11	29 C.F.R. 1910.212(a)(3)(ii)	30
12	29 C.F.R. 1910.309(a)	45
13	29 C.F.R. 1910.213(a)(11)	30
14	29 C.F.R. 1910.157(d)(3)(i)	0
15	29 C.F.R. 1903.2(a)	50

Total Penalties	$625

JOSEPH CHODES, JUDGE, OSAHRC

Dated: September 24, 1974

New York, New York