COLORADO FUEL & IRON STEEL CORP., a/k/a C.F. & I. STEEL CORP.

OSHRC Docket No. 594

Occupational Safety and Health Review Commission

June 13, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Paul E. Dixon, dated September 18, 1973, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than 18 months. The case was initiated as the result of inspections conducted by the complainant in late 1971 and early 1972. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The Commission agrees that Judge Dixon erred in assessing a penalty for item 34 of the citation. The notification of proposed penalty which accompanied the citation specified that no penalty was being proposed for this charge, and although Judge Dixon noted this fact in his decision, he affirmed a "proposed penalty . . . of $60.00." The respondent contends that this was an inadvertent error by the Judge. The complainant concedes that the respondent's contention is correct. Inasmuch as there is no dispute between the parties on this issue, the citation will be affirmed, but the penalty assessment will be vacated.

As to items 20 [*2] and 38 of the citation, the Judge's decision is affirmed by an equally divided Commission. As to these items, this decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

ITEM 20

Item 20 of the citation alleged that the respondent violated the occupational safety standard condified at 29 C.F.R. 1910.132(a) in that its employees working in unguarded, tilted railroad ore cars were not provided with safety belts and lifelines. Judge Dixon vacated the citation on the basis that the standard was unenforceably vague.

Chairman Moran agrees with the determination of the Judge for the reascns indicated in his dissenting opinion in Arkansas-Best Freight Systems, Inc., 15 OSAHRC 663 (1975). In his opinion, the standard is fatally defective because it fails to identify the workplace hazard and specify what must be done to eliminate it. See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st. Cir., 1975).

Assuming arguendo that the Commission has authority to consider the validity of a standard, Commissioner Cleary considers that any question as to the constitutional validity [*3] of 29 C.F.R. 1910.132(a) to be now well-settled. McLean Trucking Co. v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines v. Brennan, 497 F.2d 230 (5th Cir. 1974). On the merits, he finds the evidence sufficient to establish the violation.

Three car dumper helpers working at the ore preparation rotary car dump did not have safety belts, harnesses or lifelines, and to remove ore they entered railroad cars that were tilted at a ninetydegree angle. Because the cars had ore frozen to the bottom, the workmen could easily slip on the ore and fall from the cars, or be swept from the car by ore breaking loose after it melted. In either event, the workmen were subject to a fall greater than 20 feet into either the ore hopper bins along with large chunks of ore or into the crushing mechanism below the rotary car dump. A serious injury or a fatality would likely result from such a fall. Accordingly, Commissioner Cleary would affirm item 20 of the citation.

Commissioner Cleary expresses the hope, if not the expectation, that the respondent will take voluntarily corrective measures. Moreover, in his view, the Secretary of Labor may reinspect under section 1910.132(a) because [*4] the Commission does not have the power to pass upon the validity of the standard. Secretary v. Santa Fe Trail Transport Co., 5 OSAHRC 840 (1973) (dissenting opinion).

ITEM 38

The citation categorized item 38 as a nonserious violation and a $150.00 penalty was proposed therefor. Subsequently, the complaint redesignated the violation as "serious" and increased the proposed penalty to $600.00. Judge Dixon affirmed the violation as serious and assessed a penalty of $600.00

Chairman Moran would find that the Judge erred in allowing the complainant to amend the citation in the pleadings. He believes that allowing the complainant to increase the penalty during the pleading stage has a chilling effect on an employer's exercise of his right to contest the citation pursuant to 29 U.S.C. 659(a). In this regard, it is his belief that unless there is an assurance that proposed penalties will not be increased in the complaint, except under circumstances controlled by the statute and courts, employers may forego their right to contest in fear of arbitrary penalty increases in the complaint.

Commissioner Cleary finds that the Judge acted properly in allowing the amendment [*5] to the citation and proposed penalty to stand and in affirming them as amended. He does not find that the respondent was in any way prejudiced by the amendment. In this regard, he notes that in a contested case, the Secretary's proposed penalty is only advisory and that pursuant to 29 U.S.C. 666(i), the Commission is given the sole authority to assess penalties. He also considers that the authority given the Commission in 29 U.S.C. 666(i) includes the power to raise penalties proposed by the Secretary. He notes that from its early days the Commission has consistently recognized that the penalties that it finds appropriate may well exceed those initially proposed by the Secretary of Labor. See Secretary v. Tri-County Constructors, Inc., 12 OSAHRC 224 (1974) (dissenting opinion), and cases cited therein. This view has received recent judicial approval in California Stevedore and Ballast Company v. OSAHRC, No. 73-3103 (9th Cir., May 21, 1975).

Accordingly, the penalty assessed for item 34 of the citation is vacated, and the remaining findings of the Judge are affirmed.

[The Judge's decision referred to herein follows]

DIXON, JUDGE: This is an action under [*6] 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (herein referred to as the Act), contesting citations issued by the Complainant against Respondent under the authority vested in Complainant by Section 9(a) of the Act.

OSAHRC DOCKET NUMBER 600 *

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Sec 4 OSAHRC 1240.

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On February 8, 1972, two Citations for Serious Violations were issued as a result of inspections December 28, 1971, through January 6, 1972, and February 1 and 2, 1972, by Complainant, of a workplace under Respondent's ownership, operation or control at a jobsite at Pueblo, Colorado, where Respondent was primarily engaged in the manufacturing of steel and iron products. The Complainant in its Complaint proceeded upon Item 2 of alleged serious violations.

Respondent was alleged to be in violation of 29 CFR 1910.23(c)(3), in that vertical steel supports for a platform elevated above the east, center walkway located [*7] at the north end and on top of "C" and "D" coke batteries of the Coke Plant created a pinch-point hazard, not guarded by a standard railing, which was likely to cause death or serious physical harm to employees, in that larry cars operating parallel to the steel supports caused clearances between the supports and the east side of the cars to be less than 6 inches at a height of about 4 feet above walking level when the cars were adjacent to the supports in an area frequently and unnecessarily used by employees in the performance of their jobs. A 24-hour abatement period was established. Proposed penalty was $600.00

Thereupon, at the hearing, September 19, 1972, Respondent moved to withdraw its Notice of Contest to the aforesaid violations, and in support thereof noted that the violation had been abated and proffered to Complainant the amount of the proposed penalty ($600.00) and assured continued compliance, in that the offending structure had been altered. Complainant concurred that abatement had been effected.

Therefore, based upon the stipulations and assurances of the parties, and based upon the fact that employees' representative was in active participation in [*8] the proceedings and no objection having been offered, said Motion to Withdraw Notice of Contest is sustained.

Citation 2 for Serious Violations is affirmed and the proposed penalty in the amount of $600.00 for said citation is affirmed.

OSAHRC DOCKET NUMBER 594

As a result of aforesaid inspections, Citations for Other Than Serious Violations were issued on February 1, 1972, involving some 48 items and proposed penalties in the total amount of $2,360.00.

Respondent made timely notice of contest to the Area Director and forwarded Notice of Contest to affected employees' representative and conformed to the posting requirements of 29 CFR 1903.16.

Because of the extensive number of citations and issues involved, the citations will be treated in serial form, and, where appropriate, items stipulated to by the parties will be noted.

ALLEGED VIOLATIONS

Citation 1, Item 1

29 CFR 1910.179(k)(2). A total of 180 cranes and hoists and seven hot metal handling cranes located throughout the establishment site which had undergone extensive repairs during the period of their service did not have readily available test reports file. Abatement date: May 5, 1972. Proposed penalty: [*9] $150.00.

The Standard

(k) Testing -- (1) Operational Tests. (i) Prior to initial use all new and altered cranes shall be tested to insure compliance with this section including the following functions: (a) Hoisting and lowering. (b) Trolley travel. (c) Bridge travel. (d) Limit switches, locking and safety devices. (2) Rated load test. Prior to initial use all new, extensively repaired, and altered cranes should be tested by or under the direction of an appointed or authorized person, confirming the load rating of the crane. The load rating should not be more than 80 percent of the maximum load sustained during the test. Test loads shall not be more than 125 percent of the rated load unless otherwise recommended by the manufacturer. The test reports shall be placed on file where readily available to appointed personnel.

The Evidence

Mr. Harry C. Hutton, Compliance Officer for the U.S. Department of Labor, Occupational Safety and Health Administration, made an inspection of Respondent's facilities on two occasions, December 28, 1971, through January 6, 1972, and again February 1 and 2, 1972. His visit was a result of a written complaint. He contacted the appropriate officials [*10] of Respondent and employee representatives.

Initially, Mr. Hutton inspected the crane records which were located two different locations, one in the millwright's office where the files were inspected by Mr. Hutton and which consisted of a daily order of the filing of workorders on cranes. There were no records actually existing for individual cranes, as such, nor indication of test reports. It was impossible for Mr. Hutton at the time to find out how much work or what work had been done on a specific crane. The other location for crane reports was in the Respondent's Basic Oxygen Furnace Offices.

Mr. Hutton, in reviewing the records, found indications of extensive work on cranes as an ordinary function of the millwrights with a great deal of work being performed on a lot of cranes at all times, but could not cite specific cranes which had been extensively repaired between August, 1971 (promulgation of the standard), and the date of the inspection.

Mr. James C. Ogard, State Safety Inspector, accompanied Mr. Hutton, and while he did not go into the records as deeply as Mr. Hutton, noted that the work records appeared more than actual maintenance records; he further noted [*11] that there were no records as to rope conditions.

Mr. David A. Caple, General Foreman, whose work covered overhead cranes and electrical maintenance personnel, testified as to records kept on Respondent's cranes since the promulgation of the standard up to the time of the inspection and noted that records were kept in the millwright's office on approximately 180 cranes. The daily inspection and repair of cranes were kept in a logbook by the Foreman, who would make entries that a crane had been inspected or repaired. The logbook would record needed work and have a blank to indicate an entry when the work was completed. The log was kept in chronological order and included all cranes. There was not a separate log kept on each individual crane. Mr. Caple expressed his belief that an "extensively repaired" crane would mean a rebuild of the trolley assembly or a rebuild of the influx assembly or girder repairs, structural repairs where extensive changes are made to the configuration of the crane or capacity of the crane. And under this definition testified that none of the cranes of Respondent were altered extensively or extensively repaired between August, 1971, and January, 1972. [*12] In addition, there were seven hot metal handling cranes which were entered in the chronological log.

Shop orders are kept by the crane, inasmuch as Respondent has repeat orders, but the primary work records are contained in the chronological log.

In order to find all test reports and repairs on a crane, it would be necessary to go to several different drawers within the office, and it would take approximately 45 minutes to an hour to get the history of an individual crane.

Citation 1, Item 2

29 CFR 1910.179(m)(1). A total of 180 cranes and hoists and seven hot metal handling cranes located throughout the establishment site did not have fully written, dated and signed reports of rope conditions on file where they were readily available. Abatement date: May 5, 1972. Proposed penalty: $150.00

Mr. Hutton was unable to obtain records of inspections, written reports of inspections on wire ropes, that were available.

Mr. Ogard saw no records on rope conditions.

Citation 1, Item 3

29 CFR 1910.179(1)(3). The hook on the spare parts crane located on the southeast corner, bench level of coke battery "A", was defective, in that it was stretched to the fully opened position. [*13] Abatement date: 24 hours. Proposed penalty: $30.00.

The Standard

29 CFR 1910.179(1)(3) provides in pertinent part:

(3) Adjustments and repairs. (i) Any unsafe conditions disclosed by the inspection requirements of paragraph (j) of this section shall be corrected before operation of the crane is resumed. Adjustments and repairs shall be done only by designated personnel. (iii) Repairs or replacements shall be provided promptly as needed for safe operation. . .

The Evidence

Mr. Hutton testified that at the southeast corner of the coke battery "A" there was a one-ton Yale train, and on the end of the lifting cable there was a hook that was bent out of position approximately the 9th degree angle from the vertical. The crane had no label indicating that it was not to be used, or not in condition to be used. It was available for use by personnel in the area. The hook was sketched (Exhibit G-2). Mr. Hutton felt that a lift could be made with the hook under certain circumstances with the hazard of persons using slings improperly or attaching them improperly, although he felt that people who were knowledgeable might not use it and thus lessen the hazard.

Mr. Ogard [*14] also observed the deformed hook with no sign or warning device on the crane.

Mr. Frank Gonzalez, Electrical Locomotive Engineer for Respondent, observed the crane on the day of the inspection along with the defective hook and noted that the crane was available for use, although he had no idea that the crane was ever used with the hook in that condition. Further, that the crane was not used very often.

Mr. John Winkley, Assistant Superintendent of the Coke Plant, was present when the crane was inspected and observed that the hook was bent past 90 degrees. He testified that it was not actually a crane but a chainfall supported from a beam with a hook approximately 2 1/2 feet above the floor, and there would not be any doors lifted in that area. Further, that Respondent's regular job training was for employees to report defective tools and have them repaired or replaced and that the items that would ordernarily be lifted with the chainfall in that location could not be lifted with the described hook. He noted that at the time of the hearing the crane was not in use but that it had been used periodically to raise sticker buckets for mounting on the ram of the pusher. The crane was [*15] used infrequently.

A proffer was made by Complainant to introduce additional evidence as to the use of the crane with a bent hook at approximately the time of the inspection by utilizing witnesses Mr. John Valdez and Mr. O. C. Vigil. Based on pretrial stipulations between Complainant and Respondent as to the conduct of the proceedings and mutual understanding arrived at between the attorneys as to the presentation of their evidence and concluding arguments on each item of voluminous citations, Respondent's motion that the introduction of such evidence would be prejudicial and in violation of counsel's agreement as to the conduct of the trial, the motion of Respondent for the striking of proffer of this evidence after Respondent had concluded his legal argument, was granted.

Stipulations of counsel as to the conduct of the proceedings are referred to.

Citation 1, Item 4

29 CFR 1910.134(a)(3). Amended by Complaint to 29 CFR 1910.132(a). Employees failed to use provided respirators at locations and under conditions as follows:

(a) James Oliver, Practices Engineer, working on top of coke ovens, Coke Plant, in air heavily laden with coke dust and coal smoke and fumes [*16] without using a respirator.

(b) Margarito Cano, Machine Operator, and Robert Marmolejo, Pusher Man, working east walkway, base of coke ovens, Coke Plant, in air heavily laden with coke dust and coal smoke without using respirators.

(c) Thurman Finch, Phil Perez, Aylain Oliver, and Larry Carmen, Millwrights, and Cleo Turner, Lid Man, working top of coke batteries, in an environment of air heavily laden with coal smoke without using respirators.

(d) Dismissed and vacated by Complainant for lack of evidence.

(e) Dismissed and vacated by Complainant for lack of evidence.

(f) Dismissed and vacated by Complainant for lack of evidence.

(g) Sam L. Preste, Operator, Tertiary Crusher, . . . Moore Preparation Plant, environment of air heavily laden with ore dust without using a respirator.

(h) Joseph Armstrong, Sizing Screen Operator, working in Sizing Screen Building, in an environment of air heavily laden with ore dust without a respirator.

(i) Dismissed and vacated by Complainant for lack of evidence.

(j) Dismissed and vacated by Complainant for lack of evidence.

(k) Dismissed and vacated by Complainant for lack of evidence.

Abatement date: Within 7 days of receipt. Proposed [*17] penalty: $25.00

The Standard

29 CFR 1910.134. Respiratory protection. (a) Permissible practice. (1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures . . . When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements. (3) The employee shall use the provided respiratory protection in accordance with instructions and training received.

Item 4 of the Citation consists of some 11 subparts. By mutual stipulation of the parties the Secretary has stipulated that subparagraphs (d), (e), (f), (i), (j) and (k) be dismissed for lack of supporting evidence.

Remaining subparagraphs (a), (b), (c), (g) and (h) were at issue. The issue involved was that employees were observed not using respirators in areas where respirators should be used. The evidence commencing established that Respondent at the time in question, maintained [*18] a voluntary, not mandatory, program with respect to the use of respirators. Although instructions for the use of the respirators were on the original boxes issued to the employees when the respirators were new, re-conditioned respirators were issued in a brown bag and there were instances of certain employees who might use respirators who could not read English. Further, Respondent did not have a written standard operating procedure governing selection and use of respirators, but its respirators were evaluated as to their appropriateness for use in each department by Respondent's Industrial Hygienist and employees were instructed in their use.

Citation 1, Item 5

29 CFR 1910.134(b)(1). Employer did not have written standard operating procedures governing the selection and use of respirators. Abatement date: Within 7 days of receipt. Proposed penalty: $60.00

The Standard

29 CFR 1910.134(b)(1). (b) Requirements for a minimal acceptable program. (1) Written standard operating procedures governing the selection and use of respirators shall be established.

Respondent by admission contained in its beief, page 22, admits "Respondent did not have a respiratory protective [*19] program as required by 29 CFR 1910.134(a)(2)."

Citation 1, Item 6

29 CFR 1910.134(e)(5). Mike Geanetta, Dumper Helper, working on rotary car dump, Ore Preparation Plant, wearing a respirator which did not provide a good face seal caused by growth of beard . . . working in an environment of breathing air continually contaminated with ore dust. Abatement date: Within 7 days of receipt. Proposed penalty: $30.00.

The Standard

29 CFR 1910.134(e)(5). (5) For safe use of any respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.

The Evidence

Respondent had instances where certain employees affected a growth of hair about their face which precluded the effective use of the respirators, and when Respondent attempted mandatory compliance with such employees, Respondent was faced with a grievance procedure with the union.

[*20] The grievances were between management and labor, and in one instance, an employee who had long whiskers refused to shave for personal reasons and was given a deadline to be shaven in order to wear a respirator; after having taken an extended vacation, he resolved the issue by purchasing his own special-type battery respirator complete with a face mask. The foreman has to evaluate the various growth of beards and attempt to judge as to the size of a respirator to match the employee, but does not always get a seal.

Mr. Hutton in assessing the violation placed the violation in column "B" where he felt a minimum penalty of $100.00 should be imposed which was adjusted down to $30.00 according to his Penalty Formula Worksheet.

Citation 1, Item 7

29 CFR 1910.134(e)(1). Dismissed by Complainant as being repetitive with Item 5.

Citation 1, Item 8

29 CFR 1910.141(g)(3). Employer did not provide the following lunchrooms in a location separate from toxic materials or injurious dust:

(a) "C" and "D" Coke battery lunchroom. . .

(b) Coke samplers' lunchroom. . .

(c) Coke Plant main comfort station lunch area. . .

(d) By Products Plant, pipe shop lunchroom. . .

(e) Plant welding shop [*21] lunchroom. . .

(f) Plant pipe shop lunchroom. . .

(g) Ore Preparation Plant area. . .

(h) Blast furnace "A" lunchroom. . .

(i) Blast furnace "E" lunchroom. . .

(j) Blast furnace "D" lunchroom. . .

(k) Blast furnace millwright shop. . .

(l) Wiremill bundling room. . .

(m) Wiremill field fence lunchroom. . .

(n) Wiremill barbed wire department. . .

(o) Wiremill bale tie department. . .

(p) Railmill millwright shop lunchroom. . .

(q) Railmill main lunchroom. . .

Abatement date: May 5, 1972. Proposed penalty: $150.00

Respondent by its brief admits the aforesaid violations. Respondent and Complainant, by stipulation, note that Respondent admits the aforesaid violations, and by mutual agreement the abatement period is extended from May 5, 1972, to December 31, 1972.

Citation 1, Item 9

29 CFR 1910.141(g)(1). Employer failed to provide lunchroom facilities for employees of plant machine shop . . . or for employees of the Ore Preparation Plant. Abatement date: May 5, 1972. Proposed penalty: $30.00.

By stipulation between the parties, Respondent admits the violations, and by agreement between Respondent and Complainant the abatement period is extended to December [*22] 31, 1972.

Citation 1, Item 10

29 CFR 1910.141(e)(2). Employer failed to provide clothes drying facilities for employees using the Coke Plant main comfort station clothing storage room. Abatement date: March 10, 1972, Proposed penalty: $30.00.

The Standard

29 CFR 1910.141(e)(2). (e) Change rooms -- . . . (2) Drying facilities. Where the process in which the worker is engaged is such that his working clothes become wet or have to be washed between shifts, provision shall be made to insure that such clothing is dry before reuse.

The Evidence

Mr. Hutton during his inspection entered the Coke Plant main comfort station where he found the drying facility in the locker room for the Coke Plant. There were sets of work clothing suspended from the ceiling to enable them to dry. An employee stated that this system did not dry the clothing. Mr. Hutton observed a musty smell in the area and concluded that because of lack of circulation of air in the room that clothes did not dry and assessed a minimum penalty adjusted to $30.00. Mr. Hutton did not test any of the clothing. Rather, he was told by employees' representative, Frank Gonzalez, that the clothing was wet. Although [*23] later in his testimony he stated it could have been an employee other than Mr. Gonzalez.

John Valdez, Lid Man at the coke ovens, used the comfort station in the Coke Plant in January of 1972 on a regular basis and hung his clothes there to dry. The following day, his clothing was still wet and this happened about all the time. He did not discuss the wet clothing with the compliance officer at the time of the inspection.

Mr. Valdez's clothing became wet through his exertions in sweeping his section, which was part of his job. The clothing he wore was wet from perspiration. There were occasions when his clothing would dry when his work effects were such they did not produce perspiration. While the clothing dries some, it is almost always damp.

Mr. Winkley, for Respondent, testified he had never been officially informed that any of the clothes were wet, although he heard his janitor, Sol Berego, mention that occasionally there were some damp clothes when speaking to the compliance officer. Mr. Gonzalez,, after the inspection, never complained about damp clothes.

Mr. Frank P. Gonzalez, main grievance man for the Coke Plant, could not recall raising the issue of damp clothing [*24] from August of 1971 to August of 1972.

Although Mr. Gonzalez could not recall complaining about damp clothing from August 1971 to August 1972, he testified he had complained so many times previous to that time that he gave up hope of having anything done about it. He raised no issues whatsoever when the compliance officer was making his inspection, as he was awakening a fellow employee that was asleep in the comfort station which took him out of the room for a while.

Mr. Winkley testified the only time he became aware of the problem of damp clothing was at the time of the inspection by Mr. Hutton. He had never personally gone in and checked the men's clothing for wetness.

Citation 1, Item 11

29 CFR 1910.141(e)(2). The Secretary moved for dismissal of the aforesaid citation, except for that portion of said citation which provided failure of face protection to keep lime dust from face and prevent subsequent lime burns. Respondent stipulates that paragraph XIV of the Complaint may be amended to charge a violation of 29 CFR 1910.133(a), providing that protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented [*25] by such equipment. In such cases, employer shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation or a combination of these hazards.

Respondent, by Stipulation, admits the violation.

A total adjusted penalty of $140.00 had been proposed, and at issue is the allocation or pro ration of appropriate penalty to be applied to those subitems admitted.

Mr. Hutton, in determining the penalty, noted that the employees were pouring hot metal from a hot metal container and had eye protection on, but did not have a face shield. He felt the violation fell into category "C," indicating a poor system was used for protection of the faces, and this was considered along with other dismissed items for a total unadjusted penalty of $480.00, which was reduced by a penalty adjustment factor and abatement credit to $140.00. It was further noted that Respondent had issued a protective [*26] face cream as constituting abatement.

Citation 1, item 12

29 CFR 1910.252(f)(2). Mechanical ventilation was not provided or cross-ventilation was significantly obstructed, as indicated in locations noted as follows:

(a) Coke Plant machine maintenance welding shop had no mechanical ventilation provided in an area where cross-ventilation was obstructed by the corner location.

Respondent admits the violation. (Stipulation, page 3)

(b) Plant boiler shop had at least ten arc welding operations which had inadequate or no cross-ventilation by virtue of walls, partitions, and confined booths or areas. Smoke and fumes from arc welding was observed in welders' breathing zones.

Withdrawn by Secretary for lack of supportive evidence.

(c) Plant welding shop had inadequate ventilation for welding operations, in that cross-ventilation was obstructed by welding shields, partitions and work arrangement, and the location of intake fans about 12 feet above floor level caused welding smoke and fumes to be drawn into the welders' breathing zones, except for two local exhaust systems installed for specialized arc welding.

Withdrawn by Secretary for lack of supportive evidence.

(d) The Ore Preparation [*27] Plant welding shop, in which three welders were employed, had less than 30,000 cubic feet of space, had cross-ventilation obstructed by storage areas on installed balconies, and had a small squirrel cage exhaust fan installed 10 feet above floor level which did not provide the minimum ventilation of 2,000 cubic feet per minute per welder.

The foregoing violation was admitted by the Respondent by Stipulation, page 3. Abatement date: May 5, 1972. Total proposed penalties for all violations: $135.00.

The Standard

29 CFR 1910.252(f)(2). (2) Ventilation for general welding and cutting -- (i) General. Mechanical ventilation shall be provided when welding or cutting is done on metals not covered in subparagraphs (5) through (12) of this paragraph . . . (a) In a space of less than 10,000 cubic feet per welder. (b) In a room having a ceiling height of less than 16 feet. (c) In confined spaces or where the welding space contains partitions, balconies, or other structural barriers to the extent that they significantly obstruct cross ventilation. (ii) Minimum rate. Such ventilation shall be at the minimum rate of 2,000 cubic feet per minute per welder. . .

By oral motion, [*28] the Secretary withdrew his citation with regard to items (b) and (c) on the basis of lack of supportive evidence leaving at issue the pro ration of the penalty as to items (a) and (d).

Mr. Hutton explained his formula in taking into account good faith, size and history, and with respect to Item 12, explained that he noted the violation as a subcolumn "C," column "4" gravity by system or type as a poor system, in that it depended on natural ventilation or poorly located artificial ventilation. The original unadjusted penalty for all violations was $450.00, and using penalty adjustment factors reached a proposed adjusted penalty of $135.00.

Citation 1, Item 13

29 CFR 1910.252(f)(4). Dismissed by the Secretary for lack of sufficient supportive evidence.

Citation 1, Item 14

29 CFR 1910.252(e)(2). Welding operation helpers or attendants were not using adequate eye protection, as follows:

(a) D. L. Rector, pipe fitter helper, standing immediately next to arc welding operations in the By Products Plant, pipe shop, was not wearing shaded eye protection.

By Stipulation, Respondent admits the factual allegation, page 3.

(b) Welder's helpers standing atop scaffold at the basic oxygen [*29] furnace "W" repair operation immediately next to arc welding operations were not wearing shaded eye protection.

Respondent admits factual allegation by Stipulation, page 3.

(c) John Golob, boiler maker helper, standing immediately next to arc welding operations in the plant boiler shop, was not wearing shaded eye protection.

Respondent admits the factual allegations by Stipulation, page 3.

(d) The plant boiler shop, arc welding operations, in the center area and southwest corner of the shop were not shielded to protect employees from rays of numerous arcs.

Denied by Respondent.

(e) Operator of thermit welding operation in plant welding shop had no shield to protect his face from sparks of slag being admitted from the operation.

Respondent admits the factual allegations. Abatement: Within seven days of receipt. Proposed penalty: $60.00.

At issue was pro ration of penalties for items admitted.

The Evidence

Mr. Hutton testified with respect to items (b) and (c) of the welder helper immediately next to arc welding operations not wearing shaded eye protection and a boiler maker helper immediately next to arc welding operation not wearing shaded eye protection. He [*30] noted that they had standard safety glasses with side shields unshaded; that the employee should have had a minimum of seven or eight shaded lens.

Mr. Hutton referred to numerous arc welding operations going on in the plant boiler shop, arch welding operation center area, with the arc welding operations not protected by screens, curtains or shields to prevent the flash of the arc to people in adjoining areas who are also doing welding. When a welder would throw his hood up, he would be subject to flash of arcs nearby.

Mr. Hutton gave an estimation of the operations being as close as 6 feet to each other with others 10, 12 and 15 feet from other welding operations, explaining that when he referred to "eye protection" he was referring to shielding by screens or partitions.

Mr. Hutton, testifying from his own experience, felt that at a distance of 10 to 12 feet you can get an eye burn or flash burn on the eye. It would depend on the power of the arc and upon the individual's eyes. He felt two kinds of protection could have been afforded, such as wearing shaded lenses beneath the arc welding helmet or having screens or metal partitions to separate the various welding areas, [*31] and found that for the most part, neither of these forms of protection were present.

In determining the proposed penalty, Mr. Hutton utilized a column "2" rating, which means that the system was ineffective, that in most cases there was not a flagrant violation, but one that should be penalized. He utilized column "B" under gravity with an adjusted penalty of $60.00. He noted that the clear safety glasses worn by some of the individuals had absorptive powers to ultraviolet rays, but that persons could still get flash burns with clear safety glasses.

Mr. Alex Gozowski, Safety Engineer, C.F. & I. Steel, testified it was required that welders wear shaded eye protection when they perform a welding task as Company policy. Mr. Gozowski explained that there are two separate operations, a welder by standard operating procedure must wear eye protection, shaded goggles, whereas the helper could be in the welding operation or away from it anywhere from 15 to 100 feet.

The policy directly relates only to the welder and is silent as to the people in the area of the welding operation. He was with Mr. Hutton at the time of the inspection and observed Mr. Golob within 10 feet of the welding [*32] operation without shaded eyeglasses, but wearing regular safety glasses.

Mr. Howard J. Hilmes felt that in the plant boiler shop, arc welding operations, it would not be necessary to locate cloth shields between the welders, in that the arc welders and the helpers and other boilder shop people were a distance from the arc weld and that the wearing of clear safety goggles would filter the ultraviolet rays at the distances at which they were located. Mr. Hilmes did not know the size of the amperages that was put out by the welders in the boiler shop area, although he knew that the size of the machine would have an effect on the amount of the flash produced and therefore affect the safe distance with which an employee could be away from the welder. But to his knowledge, he never knew of anyone having suffered an eye burn in that department.

Citation 1, Item 15

29 CFR 1910.141(b)(1). Secretary agrees by Stipulation that the item be dismissed for lack of sufficient supportive evidence.

Citation 1, Item 16

29 CFR 1910.95(b)(1). Secretary agrees by Stipulation that this item be dismissed for lack of sufficient supportive evidence.

Citation 1, Item 17

29 CFR 1910.141(a)(1). [*33] Toilet located off blast furnace "E" lunchroom had a dirty seat, commode, walls, and floor with expectorant on walls and floor. Abatement date: Within 24 hours of receipt. Proposed penalty: None.

The Standard

29 CFR 1910.141(a)(1). (a) General requirements -- (1) Housekeeping -- (i) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

The Evidence

Mr. Hutton made an inspection of the toilet located off of furnace room "E" lunchroom, observing that the lunchroom was dirty; and immediately off the lunchroom was a commode which he observed had dirt on the walls, expectorant on the walls, and with the commode itself stained and dirty. The restroom was about 4 1/2 feet wide by 5 to 6 feet long. Mr. Hutton did not feel this was an immediate hazard but worthy to note on the Citation and noted the violation under subcolumn "(a)" under column "4" with no penalty proposed. This amounted to the least gravity that could be afforded. This was one toilet out of a system of countless toilets.

Mr. John C. Allen, second helper for C.F. & I., accompanied Mr. Hutton and agreed with Mr. Hutton as to the [*34] condition of the toilet noting that the top of the stool was "busted." He also noticed expectorant on the walls. Mr. Allen acknowledged that the cleaning of the toilet was a shift responsibility and could request tools to do the cleaning if the tools were not available. Mr. Allen testified that he had never been informed personally by management as to his responsibility to clean the toilet, but they (the shift) took it on their own after having been told that's the way to do it by the man he works with.

Mr. John L. Herrera, main grievance man of the blast furnance, expressed familiarity with the toilet and observed it was dirty with expectorant.

Mr. Howard E. Pettefer, assistant superintendent in the blast furnace department, accompanied Mr. Hutton, noting that in the morning the toilets had been swept out, but with use become dirty immediately. He observed the place was in need of paint, but there was no great amount of buildup on the walls. Further, that the toilet bowel was not as clean as the one at his home, but it was not in too bad of shape. He observed that the commodes at the plantsite get stained from the water that they used, even though they are cleaned. He noted [*35] that the commode cleaner was in the blower shanty along with a brush. Further, that the employees had been instructed to clean up the area, and they have a rotating system as to the toilet, although this is not described in their job description. The employees are required to keep their work areas and their areas clean regardless of what job they are on. The requirement to keep their areas clean in described in the job description.

Citation 1, Item 18

29 CFR 1910.141(c)(1). Secretary agrees by Stipulation that the item be dismissed for lack of sufficient supportive evidence based upon an error in computation and a finding that the Respondent was in compliance with the standard.

Citation 1, Item 19

29 CFR 1910.310(i)(5). No lighting was provided in the Coke Plant crusher switchgear house in which conductors that went up to 440-volt D.C. were exposed. The interior of the house was of such low light intensity that a light meter would not register a reading.

The Standard

29 CFR 1910.310(i)(5). (i) Working space about electrical equipment (600 volts or less). Sufficient access and working space shall be provided and maintained about all electrical equipment to permit [*36] ready and safe operation and maintenance of such equipment. (5) Illumination. Adequate illumination shall be provided for all working spaces about switchboards and control centers.

By Stipulation, Respondent admits the facts as alleged, but challenges the right of the Secretary to change the violation from "Other" to "Serious" and the amount of the proposed penalty increased from $30.00 to $600.00.

The Evidence

Mr. Hutton, upon inspecting the switchgear house, found a light line hanging from a girder with an open-type bulb approximately 10 feet outside the door. Upon entering and finding the lightswitch, and activating same, no light eminated from any bulb. The switchgear house was very dark, and Mr. Hutton observed on the south wall a rectifier bank determined to be 440-volt D.C. unprotected by any guardrail or shielding to prevent contact of personnel and on the east wall an uncovered terminal box with up to 440-volt D.C. unprotected conductors and terminals. It was Mr. Hutton's impression that individuals who might enter the area to shut down or turn on switches could, because of the darkness, contact the bare conductors in the terminal box or rectifier bank, [*37] which would result in injury to death dependent upon the amount of amperage.

Mr. Hutton originally entered the violation in his Penalty Assessment Sheet in column "B", subcolumn "(b)," under column "4," and originally did not consider it a serious violation.

When the citation was contested and sent to the Solicitor's office, a further analysis was made, and a decision was made by the Solicitor's office to change the violation to the "Serious" category and change the proposed penalty from $30.00 to $600.00.

Citation 1, Item 20

29 CFR 1910.132(a). Three car dumper helpers working at the ore preparation rotary car dump were not provided with safety belts or harnesses and life lines when they entered unguarded tilted railcars to remove ore, when the drop into the hopper at the edge of the car would have been greater than 20 feet. Abatement date: March 10, 1972. Proposed penalty: $150.00.

Respondent admits the facts as contained in the Citation but denies that they constitute a violation of the cited standard 29 CFR 1910.132. Upon consideration of the Citation by the Solicitor's office, the Solicitor amended the original Citation and the violation as "Other" with a proposed penalty [*38] of $150.00, and in the Complaint alleged said violation to be "Serious" with a proposed penalty of $600.00.

The Standard

29 CFR 1910.132(a). Personal Protective 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 thrugh absorption, inhalation or physical contact.

Based upon the evidence secured by the compliance officer, the Solicitor's office amended the original Citation which was issued for "Other" violation with an original proposed penalty of $150.00 to a "Serious" violation with a proposed penalty of $600.00. Respondent admitted the facts, but denied they violated 29 CFR 1910.132(a).

The Evidence

Mr. Hutton, through Exhibits G-4a, 4b and 4c, demonstrated the areas of [*39] the rotary car dump showing photos of cars rotated to an angle of 90 degrees from their normal position. While in this rotated position, employees proceeded from a catwalk guarded by handrails across an unguarded area and entered the ore car which contained frozen ore in the bottom and presented the hazard of the ore breaking loose from the car with the potential of sweeping the employee into the hopper bin (Exhibit G-4a). The employee was exposed to the danger of falling and if he would have fallen, he would have fallen a distance greater than 20 feet, which could result in a fatality or at least serious injury. The employee could have either fallen into the hopper bins containing chunks of ore or into the mechanism below the hopper or into the conveyor and crushing mechanism.

Citation 1, Item 21

29 CFR 1910.141(d)(1). Blast furnace "D" washing facilities were not maintained in a sanitary condition, in that the change room shower room stall partitions, floors and walls on both the first floor and basement levels were dirty with soap and mold accumulated thereon. Abatement date: Within 24 hours. Proposed penalty: $30.00

The Standard

29 CFR 1910.141(d)(1). (d) Washing [*40] facilities -- (1) General. Adequate facilities for maintaining personal cleanliness shall be provided in every place of employment. These shall be convenient for the employees for whom they are provided and shall be maintained in a sanitary condition.

Standard superseded by 29 CFR 1910.141 (Sanitation) (Federal Register, Volume 38, Number 85, May 3, 1973, page 10933).

29 CFR 1910.141(d). Washing facilities -- (1) General. Washing facilities shall be maintained in a sanitary condition.

The Evidence

Mr. Hutton in referring to the washing facilities of the blast furnace "D" described the top shower room and change room for "D" battery wherein the shower stalls had walls coated with accumulated dirt, soap and the smell of mustiness and mold. The same general condition was found in the lower shower room.

Mr. Hutton placed the alleged violation under subcolumn "(b)" of column "4" on the gravity of violation with the minimum amount assessed with an unadjusted penalty of $100.00 adjusted down to $30.00.

Mr. Hutton's conclusions were based on his previous experience as a major and commanding officer in the Air Force in applying rather rigorous standards of cleanliness.

Mr. John [*41] C. Allen, who is familiar with the washing facilities and uses them five times a week, used the facility on the day of the inspection and noted that while a janitor comes in on days and sweeps, picks up papers and fills soap dishes, the stalls were very filthy. He further noted that the soap was accumulating and that rust and paint were peeling from walls and beneath the locker there were bugs.

Mr. John Herrera, also familiar with the shower and present on the day of the inspection, noted the shower stalls were caked with soap, grease and dirt with a buildup on the shower walls. The floors were dirty and a few papers had accumulated with an accumulation of soap in the shower area and mold.

Mr. Pettefer, also present at the inspection, recalled the inspection was just prior to a shift change and noted that there were papers on the floor of the comfort station but not in the shower stall. He was of the opinion that the stalls and walls were in a sanitary condition. He did notice an accumulation of scale but not too much of a substantial accumulation of soap. It was his opinion the scale was from the hard water that is used.

He testified the company has one janitor, [*42] seven days a week, who cleans the comfort station, has disinfectant for the showers and basins, and washes down the floors. He does not wash the walls on a daily basis. When the walls are washed, they are washed down with a pressure hose and the use of a disinfectant.

Citation 1, Item 22

29 CFR 1910.151(c). Suitable facilities for quick drenching or flushing of the eyes were not provided at the muriatic acid storage tank and dispensing facility in the Wire Plant, in that the eye wash provided would produce a stand of water only one inch high during a test of the facility. The emergency eye wash facility, located 28 feet from the sulfuric acid storage tank and dispensing facility in the Wire Plant, was not suitable, in that it was located through two doors and an office from the storage tank and was not combined with a body flushing or drenching shower. The shower was located in the opposite direction, 20 feet from the storage tank. The test of the eye wash produced a trickle of water about one-fourth of an inch high. The emergency eye wash and shower for the Wire Mill muriatic acid storage and dispensing tank was located directly beneath the top filling port for [*43] the tank and was, therefore, an unsuitable facility. Abatement date: February 25, 1972. Proposed penalty: $90.00.

The Standard

29 CFR 1910.151. Medical services and first aid. (c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

The Evidence

Mr. Hutton observed that at the Wire Mill, immediately outside of the galvanizing building, were two acid storage tanks; the southern most tank being the muriatic acid tank (Exhibit G-3). This muriatic acid storage tank had an emergency eye wash and shower located underneath the tank. On testing the eye wash and shower there was barely a trickle of water that came out. It was not useable. Had it been useable it was in an improper location, in that it was below the fill port of the tank. Mr. Hutton noted that an employee could be splashed from an overflow on the flow port, inasmuch as the tank did not have a shutoff valve. Mr. Hutton felt the eye wash and shower were inadequate, in that they were located beneath the tank and the pressure was insufficient. [*44] Mr. Hutton observed a trickle of water about one inch or less at the eye wash when it should have had a stream of approximately 5 inches. He also observed only a trickle of water from the shower.

There was a sulfuric acid tank located north of the muriatic acid approximately 60 to 80 feet. There was any eye wash located to the east of the storage tank through one door, an office and another door, the distance measured at 28 feet from the tank. The shower was located through a door slightly west and north of the tank, approximately 12 to 15 feet, and was operable. Mr. Hutton observed the eye wash and the shower were in opposite directions from the tank, so that both could not be used at the same time. The eye wash had a stream of approximately one inch. The shower had pressure, although Mr. Hutton did not feel it had adequate pressure. Referring to Exhibit G-1, Mr. Hutton noted there were three instances of facilities which in his judgment were poor or unreliable and utilized subcolumn "(c)" under column "4" with an unadjusted penalty of $300.00 which was adjusted to $90.00 in accordance with penalty adjustment factors and abatement of credit.

Mr. John Maltese, employee [*45] of C.F. & I., accompanied Mr. Hutton at the site of the muriatic tank and noted there was very little water coming out of the hydrant and very little water coming out of the shower and eye wash. Referring to the sulfuric acid tank eye wash, he did not think there was over an inch of water coming out and observed that the shower had a little more pressure but not adequate to wash acid in a hurry.

Mr. John E. Murphy, superintendent of the Wire Mill, also present at the inspection, observed the employee activate the shower at the muriatic acid location and felt he activated the lever fully. He also felt the employee activated the shower level fully at the sulfuric acid tank area.

He felt at the sulfuric acid tank there was sufficient water to drench a man very thoroughly within 5 to 10 seconds, although he personally had never had occasion to use the shower facility at the sulfuric acid tank in an emergency condition.

Citation 1, Item 23

29 CFR 1910.252(a)(5). Finding several oxy-acetyline welding unit hoses defective. Abatement date: Within seven days. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 24

29 CFR 1910.252(b)(4). The finding of defective [*46] welding cables on welding units at several locations. Abatement date: Within seven days of receipt. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 25

29 CFR 1910.310(m). Wiring not installed so it would be free from short circuits in various locations. Abatement date: March 10, 1972. Proposed penalty: $100.00.

Respondent admits the factual allegations. The Secretary admits that he has no proof as to whether, upon initial installation, the wiring in question was installed in such a way that it met the cited standard.

Complainant, by its post-hearing brief, page 23, notes that another standard would be more applicable, and based upon Respondent's abatement dismisses Item 25.

Citation 1, Item 26

29 CFR 1910.314(d)(1). Ungrounded mixer drive motor. Abatement date: Within 24 hours. Proposed penalty: None.

Respondent admits violation by Stipulation.

Citation 1, Item 27

29 CFR 1910.315(n)(4). Electrical boxes not provided with covers. Abatement date: Within seven days. Proposed penalty $45.00.

Respondent admits the violation by Stipulation.

Citation 1, Item 28

29 CFR 1910.310(j)(1). Relay coil on a hydraulic pump . . . on bridge [*47] of hot metal handling teeming crane, Basic Oxygen Steel Production Plant, had exposed 250-volt D.C. conductors.

220-volt D.C. runway contact conductors for Blast Furnace Yard North Dodge Crane at 26 inches and 40 inches, respectively, above ground level, running for 2,000 feet adjacent and parallel to a pedestrian walkway were not guarded by a guardrail on the pedestrian path side.

Admitted by Respondent by Stipulation.

Electrical control and terminal boards next to switchgear on the Wire Mill Wire Pickling Vat West Crane's north side were not guarded by cabinet or barrier against accidental contact. Abatement date: May 5, 1972. Proposed penalty: $50.00.

The Standard

29 CFR 1910.310(j)(1). Guarding of live parts. (Not more than 600 volts.)

(1) Enclosures. Except as elsewhere required or permitted by this subpart, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the methods listed in subdivisions (i) through (v) of this subparagraph.

(i) By location in a room, vault, or similar enclosure which is accessible only to qualified persons. [*48]

(ii) By suitable permanent, substantial partitions of screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with the live parts or to bring conducting objects into contact with them.

(iii) By a guard rail, provided the live parts operate at 600 volts or less and provided the location is such as to make contact with live parts unlikely.

(iv) By location on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.

(v) By elevation at least 8 feet above the floor or other working surface.

Respondent admitted the 220-volt D.C. conductors for the Blast Furnace Yard North Dodge Crane at 26 inches and 4 inches, respectively, above ground level running for 2,000 feet and parallel to a pedestrian walkway were not guarded by guardrail on the pedestrian path side.

As to the bridge of hot metal, a relay coil on the hydraulic pumps and on a bridge of hot metal handling Teeming Crane, at the Basic Oxygen Steel Production Plant with exposed 250-volt D.C. [*49] conductor, it was noted by Mr. Hutton that the particular relay coil was located on the south side, east end of the bridge, immediately adjacent to the walkway on the bridge, not protected. There was provision for a cover which had been removed, and the conductors were exposed.

The electrical control and terminal boards next to switchgear and a Wire Mill Pickling Vat West Crane's north side were not guarded by a cabinet or barrier against accidental contact.

Identifying a West crane, Mr. Hutton noted at the north side of the crane there were electrical conductors exposed where originally there had been provisions for covers for these electrical conductors which had been removed exposing the conductors to possible contact by employees.

In assessing the proposed penalty, Mr. Hutton had found three instances under Item 28 which were placed in subcolumn "(b)" of column "4," in gravity of the violation. Mr. Hutton felt there was a possibility that there was not an immediate hazard to personnel and took into consideration the number of personnel who entered the area and the possible qualifications of the individuals who entered the area. The original unadjusted penalty was $180.00 [*50] adjusted to a final penalty of $50.00.

Mr. Hutton observed that with the exposed conductors it was possible for a person to come in contact with live voltage incurring serious injury or death. He felt there were extenuating factors which would make contact less likely to occur.

Mr. Hutton considered the possible qualifications of individuals involved in assessing the gravity and felt a crane operator would be an unqualified person around the exposed voltage.

Mr. Clarence A. Sisnroy, who accompanied Mr. Hutton, observed the electrical control and terminal boards next to the switchgear on the control and terminal boards were not guarded in any manner by either a cabinet or a barrier.

Mr. David A. Caple testified the Teeming Crane is elevated considerably more than the Cleaning House Crane at the Wire Mill. The are both elevated from the floor level. You have to go upstairs to the landing through a door onto the cranes. They are elevated to exclude the normal unqualified person.

Both cranes have doors to exclude unqualified persons on the crane itself. The electrical equipment is located behind the door beyond the point of entry. A crane operator is familiar with [*51] the crane. He is required to inspect the crane, climb on the trolley and clean it. The crane operator is not a qualified electrician. The crane operator is required to know how to turn on the main disconnect switch, how to lock it out, and to know what is dangerous and what is not dangerous and should know what is energized and what is not. A crane man is not required to make any electrical repairs.

Citation 1, Item 29

29 CFR 1910.310(j)(2). Exposed 110-volt A.C. and 220-volt A.C. wall switches. Abatement date: Within seven days. Proposed penalty: None. Respondent admits the violation.

Citation 1, Item 30

29 CFR 1910.326(k)(1). Citation dismissed and vacated by the Secretary for lack of sufficient supportive evidence.

Citation 1, Item 31

29 CFR 1910.310(d). Electrical equipment which was not moisture proof used in damp locations. Abatement date: March 10, 1972. Proposed penalty: $60.00.

Respondent admits the violation.

Citation 1, Item 32

29 CFR 1910.157(a)(1). Carbon dioxide fire extinguisher not in operable condition. Abatement date: Within 24 hours of receipt. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 33

29 CFR [*52] 1910.22(b)(1). Passageways paralleling Coke Plant "B" and "C" conveyors were obstructed by quantities of large pieces of coke and coke dust, making walking thereon hazardous and difficult.

Blast furnace Hiline walkway was obstructed by mechanical handling equipment, such as wrenches and bars, making walking on walkway hazardous.

Brick floor on passage adjacent to north side of blast furnace "A" slag pouring post had a broken, irregular surface, making walking hazardous.

The Secretary elected to dismiss the first and third alleged violations for lack of sufficient supportive evidence leaving at issue the Hiline walkway obstruction. Abatement date: April 7, 1973. Proposed total penalties: $60.00.

The Standard

29 CFR 1910.22(b)(1). General requirements. (b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

The Evidence

Mr. Hutton described the Hiline walkway as a walkway in which employees [*53] responsible for opening hopper doors on cars are required to walk. Tools are utilized on this line for opening hopper doors. Different types of cars require different types of wrenches. The Hiline has a guardrail on the east side, but no guardrail on the west side. The open side is where the cars are brought up for dumping. The tools at the time of the inspection were left on the floor of the walkway. The wrenches ranged from 3 feet in length to 5 or 6 feet in length. They were scattered at the sides and at the center of the passageway.

Employees who were charged with opening the hopper doors walk on the walkway. Mr. Hutton was of the opinion that the wrenches presented a tripping hazard which was not ordinary, in that the west side of the Hiline was unguarded and employees could fall off either into the hopper or under the wheels of the railroad cars.

In assessing the violation, Mr. Hutton noted there were four instances, and the violation was placed under subcolumn "(b)," column "4," gravity with a $200.00 unadjusted penalty. He felt they had a partial system considering the guardrail on the east side, and by utilizing his formula for adjustment the reduced [*54] proposed penalty was $60.00.

Mr. John C. Allen accompanied Mr. Hutton and observed tools and mechanical equipment on the passageway and was of the opinion the tools were kind of over to one side. They were not in the middle with some bars laying out a bit further than the rest. The bigger tools were against the walkway, but there were a few bars out. He estimated these bars to be at least 5 feet. Mr. Allen estimated the bars to be about 1 1/2 inches in diameter and estimated the Hiline walkway to be 2 1/2 to 3 feet wide. He observed that you had to look for the bars while you were walking as you were walking near the edge while the bars are inside. The bars were lying parallel to the walkway.

Mr. John L. Herrara who works on the Hiline, not at the time of the inspection but previous thereto, as a fill-in employee observed tools and mechanical equipment laying on the walkway. He described the bars as round-type pipe bars which would be put against the side but sometimes would roll, and observed that Respondent had installed boxes for the bars after the inspection. He observed the walkway had a slant to it and the bars would roll. Some of the bars were square and of different [*55] sizes. Mr. Herrara had never personally tripped over the tools or lost a step.

Mr. Frank J. Saweikis, also present at the time of the inspection, noted that while the walkway is called a Hiline walkway it is actually on unloading dock with an open side for the railcars to come where wrenches approximately 2 inches in diameter and about 5 feet long would be placed along the side. Some of the 1-inch bars would be bent and would roll about 1 diameter.

Mr. Saweikis was on the Hiline walkway every day, has on occasion encountered bars laying in the walkway, and noted that the employees are instructed to push the bars with the side of their foot against the walkway. He has never tripped over a bar.

Mr. Saweikis described two persons working in that area on a regular basis having to walk up and down the Hiline opening car doors. It was his observation that the workers kept their eyes fixed on the walkway and then would step onto a moving car and from the moving car back on the walkway and are extremely conscious of their footing.

The walkway is described as from a minimum of 3 to 3 1/2 feet to a maximum of 8 feet above the ground.

Citation 1, Item 34

29 CFR 1910.23(b)(5). [*56] Unguarded wall opening caused by a buckled wall. Abatement date: May 5, 1972. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 35

29 CFR 1910.23(b)(2). Chute opening at least 7 feet above floor level at blast furnace "F" skip hole was unguarded, in that employees could walk under chute opening in the process of cleaning ore. Abatement date: April 7, 1972. Proposed penalty: $60.00.

The Standard

29 CFR 1910.23. Guarding floor and wall openings and holes. (b) Protection for wall openings and holes. (1) Every wall opening from which there is a drop of more than 4 feet shall be guarded by one of the following: (i) Rail, roller, picket fence, half door, or equivalent barrier. (2) Every chute wall opening from which there is a drop of more than 4 feet shall be guarded by one or more of the barriers specified in subparagraph (1) of this paragraph, or as required by the conditions.

29 CFR 1910.21. Definitions. (a) As used in Section 1910.23, unless the contest requires otherwise, floor and wall opening, railing and toe board terms shall have the meanings ascribed in this paragraph. (11) Wall opening. An opening at least 30 inches high [*57] and 18 inches wide, in any wall or partition, through which persons may fall; such as a yard-arm doorway or chute opening.

Complainant by its brief, page 26, paragraph 35, acknowledges that an inapplicable standard was utilized and dismisses the citation for Item No. 35.

Citation 1, Item 36

29 CFR 1910.22(a)(1). Bridge passageway . . . covered with dirt and grease. Abatement date: Within seven days. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 37

29 CFR 1910.23(c)(1). Access platforms unguarded with standard railing . . . various locations. Abatement date: May 5, 1972. Proposed penalty: $30.00.

Respondent admits the violation.

Citation 1, Item 38

29 CFR 1910.23(c)(3). Three roll stands and one finishing stand in the Blooming Mill area of the Rail Mill had no standard railing and toeboard installed to protect employees from falls onto rolling tables on which bars heated to 2800 degrees F were traversed into and through the stands. Abatement date: March 10, 1972. Proposed penalty: $150.00.

Respondent by Complaint redesignated violation from "Other" to "Serious" and increased the amount of the proposed penalty from $150.00 to $600.00.

[*58] Respondent admits the facts of the violation but objects to the Complainant's changing of the designation of the violation from "Other" to "Serious" and increasing the amount of the proposed penalty.

The Standard

29 CFR 1910.23(c)(3). Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a towboard wherever, beneath the open sides, (i) Persons can pass, (ii) There is moving machinery, or (iii) There is equipment with which falling materials could create a hazard. (3) Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toeboard.

The Evidence

In his original assessment of the violation, Mr. Hutton made observation of rollstands where hot bulk steel comes from one end and is eventually [*59] shaped into rails. He observed one of the employees going onto the rollstand while hot steel was rolling through the bottom with no guardrail on the rollstand. The guardrail had been on the particular rollstand but had been torn off by unregulated steel in process and had not been replaced.

Mr. Hutton observed that the Respondent's employee was a highly skilled technician and was able to adjust the rollmill by tapping the adjustment device a certain number of blows. Mr. Hutton observed it was an abnormal manner with the guardrail missing, and received the response that the Respondent had not gotten around to replacing it.

In discussing the hazard he observed that there was great possibility that the employee could fall under the blooming mill table which would be the initial hazard.

Noting the further hazard, that bars were moving at a rapid rate of speed through the rolls, and if he didn't get hit by one of the moving pieces of steel he would have a fall of 7 or more feet to the surface of steel rollers; and if there was steel beneath him he would be killed by the fall or the heat, or if hit, by the hot moving steel.

Citation 1, Item 39

29 CFR 1910.25(d)(2). Employee [*60] standing atop top step of 10-foot wooden stepladder. Abatement date: Within 24 hours. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 40

29 CFR 1910.316(e). 220-volt A.C. flex cord did not have terminal screws protected. Abatement date: Within 7 days. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 41

29 CFR 1910.310(o). 250-volt A.C. wall switch unlabeled. Abatement date: Within 7 days. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 42

29 CFR 1910.315(l)(1). 110-volt A.C. switchbox not securely fastened. Abatement date: Within 7 days. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 43

29 CFR 1910.310(i). Insufficient work space around shutoff switch. Abatement date: March 10, 1972. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 44

29 CFR 1910.27(d)(2). Landing platform, greater than 40 feet, not equipped with railing and toeboard. Abatement date: March 10, 1972. Proposed penalty: $30.00.

Respondent admits the violation.

Citation 1, Item 45

29 CFR 1910.28(t)(1). Cleats missing from chicken ladder. Abatement [*61] date: March 27, 1972. Proposed penalty: $60.00.

Respondent admits the violation.

Citation 1, Item 46

29 CFR 1910.28(t)(2). Chicken ladder did not have a lifeline strung for handhold. Abatement date: March 27, 1972. Proposed penalty: $60.00.

Respondent admits the violation.

Citation 1, Item 47

29 CFR 1910.252(c)(2). Spot welder not equipped with spark shield. Abatement date: March 10, 1972. Proposed penalty: None.

Respondent admits the violation.

Citation 1, Item 48

29 CFR 1910.24(b). 110-volt D.C. runway contact conductor supply lines not provided with fixed access ladder. Abatement date: April 7, 1972. Proposed penalty: $75.00.

Respondent admits the violation.

PENALTY ASSESSMENT

Mr. Hutton, by Exhibit G-1, explained his formula for penalty assessment and determination of proposed penalties.

His Penalty Assessment Worksheet contained a "Gravity of Violation" column, by system or type (Column "4"), and with subcategories of "(a)," "(b)," "(c)" and "(x)" composing the degree of gravity of the violation in monetary terms ranging from "(a)" - none, to "(x)" - $501.00 to $1,000.00, with intermediate lesser proposed unadjusted penalties for columns "(b)" [*62] and "(c)."

Column "5" would carry the unadjusted penalty suggested by the compliance officer, with column "7" providing for penalty adjustment factors of 20% for good faith, a column for size ranging from 10% to 0%, and a column for history ranging from 20% to 0%. Column "8" reflected the adjusted penalty for each violation with column "11" indicating the final proposed penalty to be assessed under Section 17(c). There was also column "10" which provided for an abatement credit of 50%. Mr. Hutton explained that under column "7" pertaining to size, 0% was allowed, inasmuch as Respondent had over 100 employees. Under the subcolumn "History" of column "7," Mr. Hutton observed that there was nothing to indicate a previous history at the time of the inspection and allowed the Respondent the maximum credit of 20% for a total adjustment factor of 40%. He also gave the Respondent a 50% abatement credit throughout.

RULING ON MOTION

Respondent, during oral argument at the time of the hearing, objected to and made motion to dismiss Items 19, 20 and 38 on the grounds that following the issuance of the Citation and upon its entertainment by the Solicitor's office and in the issuance of [*63] the Solicitor's Complaint, the Solicitor amended the citations for the alleged violations from "Other" to "Serious" violations.

Section 9(a) of the Act authorizes the Secretary or his representative to issue a citation for what he believes to be an alleged violation. Further specifying that the citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation or order alleged to have been violated.

Section 10(a) authorizes the Secretary to notify the employer by certified mail of the penalty, if any, proposed to be assessed under Section 17.

Therefore, it is abundantly clear that the Secretary is given the authority to make assessments of proposed penalties for alleged violations.

While at the time of the alleged violation interim rules were in effect, the Commission's subsequent rules of procedure promulgated September 28, 1972; 29 CFR 2200.33(a)(3) et seq. provides: "Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought."

The [*64] Secretary's Complaint, amending the Citation, was issued March 20, 1972, with the hearing being held on September 19-20, 1972, some six months later. Respondent did not demonstrate at any point prior and up to the time of the hearing that he was aggrieved, prejudiced or surprised by such amendment. Therefore, considering all the premises, Respondent's Motion to Dismiss Items 19, 20 and 38 is overruled. See Federal Rules of Civil Procedure, Rule 15.

DISCUSSION

Citation 1, Item 1 - 29 CFR 1910.179(k)(2)

(Effective August 27, 1971)

The operative language of the standard provides that "Prior to initial use all new, extensively repaired and altered cranes should be tested.", etc. ". . . The test reports shall be placed on file where readily available to appointed personnel."

The evidence presented by the Secretary reflects the judgment of the compliance officer that out of a total of 187 cranes there had been extensive work on several cranes and that some cranes had undergone a considerable amount of work, but he offered no evidence as to any particular crane being extensively repaired since the date of the promulgation of the standard.

"A. The records indicated that [*65] there were some cranes, I can't cite the specific cranes, but some cranes had undergone a considerable amount of work.

"Q. My question is, do you have any knowledge whatsoever or did you, do you have any knowledge that you can cite at this time, that any crane in those records was extensively repaired between August 1971 and the date of the inspection?

"A. No, I can't name the specific crane."

Based upon the foregoing, it is felt that this proof falls short of the requirement of the Secretary to bear the burden of proving a violation of the standard by substantial evidence ( Secretary of Labor v. Ceco Corporation, Docket No. 326. Commission Rule 73(a)), or that this was reliable, probative and substantial proof of the violation (Administrative Procedure Act, Section 5(c)).

The second requirement of the standard pertains to record keeping. The Respondent's evidence is unimpeached that the Respondent has a daily, ongoing, continuous log of inspection and repair kept in chronological order that includes all of the Respondent's cranes. While a separate log is not kept on each crane, the total chronological log is maintained in several drawers within the same office.

Argument [*66] is made that such a mode of record keeping would take an inordinate amount of time to check a particular crane. The standard sets forth the requirement that the test reports be readily available to appointed personnel. The Respondent's evidence is to the effect that it would take an average of approximately 45 minutes to develop a crane history as to maintenance, repair and alteration.

To the writer, it is apparent that the standard is written in such fashion that it is capable of a multiplicity of interpretation and does not, in effect, set forth any positive guidelines as to the mode or format of maintaining such records, so that within a given industry and within a given range of crane operations it is conceivable that no two facilities, in attempting to comply with the standard, would maintain the type of records that would be acceptable to the subjective judgment of a compliance officer. Therefore, it is felt that this portion of the standard is "vague" and unenforceable as applies to this Respondent under the circumstances of this case, in that the Respondent did have an ongoing log of crane maintenance and repairs which was found unsatisfactory according [*67] to the subjective evaluation of the compliance officer.

As stated in Secretary of Labor v. Tilo Company, Docket No. 211 ". . . that subsection . . . of the standard is so vague as to not sufficiently apprise an employer of what is required in order to be in compliance. . . An employer is entitled to rely upon the clear language of a standard and where that is impossible a violation cannot be upheld." Citing Secretary of Labor v. California Stevedoring Company, Docket No. 72, wherein the following language was used by the Review Commission and is felt to be appropriate in this instance:

The application of the standard, based on the Area Director's opinion that it would be "onerous" to respondent to mouse the pins on these lower shackles while requiring it to mouse the pins of the upper shackles places an even more onerous duty on respondent, i.e., that of attempting to comply with the standard as interpreted in each case by a particular Area Director. Employers are entitled to rely on the standard's clear language, uncolored by additional and subjective criteria.

See also, Secretary of Labor v. Moser Lumber Company, Docket No. 1221 and Secretary of Labor v. Imco [*68] Container Company, Docket No. 79.

FINDINGS OF FACT

1. The evidence presented by Complainant failed to establish that any crane had been "extensively repaired" as that term is used in 27 CFR 1910.179(k)(2) between August 27, 1971, and the date of the inspection.

2. The language of the standard is "vague" and "ambiguous" as to the record keeping requirements of the Respondent and is unenforceable, as it does not sufficiently describe what precise type of records that would be accepted under the standard.

CONCLUSION OF LAW

Citation 1, Item 1, and the penalty proposed therefore, are vacated.

Citation 1, Item 2 - 29 CFR 1910.179(m)(1)

The Secretary sustained his burden of proof, in that it established there were no signed reports of rope conditions and no records of any kind on wire rope conditions or testing thereof. The standard requires:

(a) A thorough inspection of all ropes at least once a month.

(b) A full written,

(c) Dated,

(d) Signed report of rope conditions kept on file where readily available to appointed personnel.

In this instance, the standard speaks with specificity of what is required of Respondent and the evidence demonstrates the Respondent [*69] did not maintain, as to its ropes, a full, written, dated and signed report readily available.

FINDING OF FACT

Respondent did not have full written, dated and signed reports of rope conditions on file where readily available to appointed personnel.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $150.00 are affirmed.

Citation 1, Item 3 - 29 CFR 1910.179(1)(3)

The operative portions of the cited standard require that any unsafe condition disclosed by an inspection shall be corrected before operation of a crane is resumed. In the instant case, the compliance officer found a hook that was bent out of position almost to a straight line or as described "the 9th degree angle from the vertical." The compliance officer gave opinion evidence that a lift could be made with a hook by unorthodox attachment of slings, but that knowledgeable people would not use the hook. The Respondent's engineer who observed the hook had no idea that the crane was ever used with the hook in that condition.

The sum total of evidence of both Complainant and Respondent represented supposition and conjecture. Wherein the standard requires only that "any unsafe condition . [*70] . . be corrected before operation of the crane is resumed."

FINDINGS OF FACT

1. A hook at the extension of a chain fall supported from a beam was bent almost to a vertical position.

2. There was no showing that:

(a) The crane was operated with the hook in the bent configuration, or

(b) The hook was capable of providing a face with which to lift an object.

CONCLUSION OF LAW

Citation 1, Item 3, and the proposed penalty in the amount of $30.00, are vacated.

Citation 1, Item 4 - 29 CFR 1910.132(a)

Subparagraphs (a), (b), (c), (g) and (h) were stipulated to be at issue and involved employees observed not wearing respirators at areas where respirators should be used. Respondent has admitted the basic factual allegation that employees were not using repirators in areas where respirators should be used. Respondent's respirator program was voluntary, not mandatory, and in some instances Respondent issued respirators without written instructions. However, in mitigation of Respondent's violation it must be noted that Respondent employed a hygienist who made a determination as to the type of respirator indicated for use in the various departments. Employees were verbally [*71] instructed in their use, and in many instances where the respirators were issued the respirator box contained written instructions on its use. It was company policy for supervisory personnel to urge the employees to utlizie the respirators which were provided. This violation and subsequent violations (Citation 1, Item 6), demonstrate strong evidence of employee resistence to the program and further involvement of the Respondent with union grievance procedures when Respondent made effort to exercise its supervisory control over several employees to require their wearing of respirators or to the contrary eleiminate the growth of hair about their faces which rendered the respirators ineffectual.

Complainant correctly states that the basic responsibility for compliance by employees rests with the employers, citing Secretary of Labor v. Mountain States Telephone and Telegraph Company, Docket No. 355; Secretary of Labor v. Thorleif Larsen and Son, Inc., Docket No. 370; Secretary of Labor v. Republic Creosoting Company, Docket No. 22; Secretary of Labor v. Norman R. Bratcher Company, CCH 15,067; and, Secretary of Labor v. Pacific Food Products Company, Inc., CCH 15,064. [*72]

Section 5(b) of the Act specifically provides that each employee shall comply with the Occupational Safety and Health standards and all rules, regulations and orders issued pursuant to the Act which are applicable to his own actions and conduct. See Section (2)(2), ". . . employers and employees have separate but dependent responsibilities. . ."

In Senate Report No. 91-1282, page 151-152, Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, P.L. 91-596) it is stated:

The committee does not intend the employee duty provided in Section 5(b) to diminish in any way the employer's compliance, responsibilities or his responsibility to assure compliance by his own employees. Final responsibility for compliance with the requirements of this Act reamins with the employer.

The Review Commission has treated of cases where there has been lack of cooperation by employees or isolated instances of unauthorized conduct by employees.

The Act clearly does not provide for any sanctions against such employees, but the Commission has given effect to these isolated or unauthorized acts either by way of mitigation or vacation of the employer's violations.

In [*73] Secretary of Labor v. Richmond Block, Inc., Docket No. 82, where an employee failed to lock out a mixer and was fatally injured when he had been instructed to do so, the Judge dismissed the citation on the basis of the employee's disregard of a safety rule and procedure.

In Secretary of Labor v. Clements Paper Company, Inc., Docket No. 419, wherein an employee was killed passing under an area where he had been instructed not to do so, the Judge vacated the citation on the basis that the employer had not "allowed" the employee to work in violation of a rule.

In Secretary of Labor v. Standard Glass Company, Inc., Docket No. 259, a violation was vacated where there was an isolated instance of employees failing to wear hardhats, wherein the Commission held that an employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that this employees will observe all the Secretary's standards at all times.

However, contrary to this view is the Judge's holding in Secretary of Labor v. Lebanon Lumber Company, Docket No. 184, where an employee violated instructions and was killed, and the employer defended on the grounds of insubordinate [*74] action by the employee. The Judge upheld a citation for a violation.

In Secretary of Labor v. Gerstner Electric Company, Docket No. 997 (on review), the violation was upheld against an employer where the evidence demonstrated the employee was told by the job foreman to go down into a trench in a shoring operation where other evidence of the Respondent was that it was company policy to shore from the top. The deviation in this instance being on part of respondent's foreman representative, not the employee and imputable to the respondent.

FINDING OF FACT

Employees mentioned in subparagraphs of Item 4 ((a), (b), (c), (g) and (h)) were not wearing respirators in areas where they should have been.

CONCLUSION OF LAW

The citation is affirmed. The proposed penalty is vacated based upon the mitigating circumstances heretofore expressed.

Citation 1, Item 5 - 29 CFR 1910.134(b)(1)

Admitted by Respondent.

FINDING OF FACT

Respondent did not have written standard operating procedures governing the selection and use of respirators.

CONCLUSION OF LAW

The citation and proposed penalty of $60.00 are affirmed.

Citation 1, Item 6 - 29 CFR 1910.134(e)(5)

See Discussion, Item [*75] 4. An employee, Geanetta, was wearing a beard which rendered the respirator ineffectual.

CONCLUSION OF LAW

Based upon the foregoing discussion of the stubborn resistance of employees to comply with Respondent's program, and upon the Respondent being involved with union grievances in attempting to enforce the program while Respondent was in technical violation, the mitigating circumstances dictate that this citation be vacated.

Citation 1, Item 6, and the proposed penalty therefore are vacated.

Citation 1, Item 7 - 29 CFR 1910. 134(e)(1)

Citation 1, Item 7, withdrawn by Complainant on basis of being repetitive.

CONCLUSION OF LAW

The citation and proposed penalty are vacated.

Citation 1, Item 8 - 29 CFR 1910.141(g)(3)

FINDING OF FACT

Respondent admits the violation, and by agreement with the Secretary abatement date extended to December 31, 1972.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $150.00 are affirmed.

Citation 1, Item 9 - 29 CFR 1910.141(g)(1)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty of $30.00 are affirmed.

Citation 1, Item 10 - 29 CFR 1910.141(e)(2) [*76]

(Repealed by 29 CFR 1910.141, Vol. 38. Fed. Reg. pg. 10,930)

The operative language of the standard provides that where the "process" in which the worker is engaged in such that his working clothes become wet or have to be washed between shifts . . . provision shall be made to insure the clothing is dry before reuse.

While the compliance officer did not personally inspect the clothing in the drying room, there was testimony of an employee that during the time of the inspection (December, 1971) he remembered his clothes were wet. The employee was a sweeper and his clothes became wet with perspiration from sweeping as a lid man on coke ovens.

This issue raised by Respondent is whether or not sweeping constitutes a "process," as contemplated by the standards, and cites "Cochran v. Deener, 94 US 780, 788, which defines the word as "a process is a mode of treatment of certain materials to produce a given result. It is an act or series of acts performed upon the subject matter to be transferred or reduced to a different state of thing." Also, Secretary of Labor v. Ryder Truck Lines, was not applicable to the word "processes" referring to 29 CFR 1926.132(a) involving protective clothing.

American College Dictionary defines "process" as:

(a) A systematic series of actions directed to some end.

(b) A continuous action, operation or series of changes taking place in a definite manner.

(c) The summons, mandate or writ by which a defendant or thing is brought before court for litigation and further technical definitions involving manufacturing, agriculture, etc. . .

In making a determination as to the use of the word "process" in the standard, the writer has to disagree with his learned colleague in the Ryder Truck Lines case upon the basis that a plain and literal meaning should be given the word, as used in everyday language and as it is to be understood by those persons reading and applying the standard. The subject employee was engaged in a process which while not changing the subject matter of his application in form to a different state of thing did operatively reduce what may be assumed to be the accumulation of material spread about a working area by the act of sweeping to an accumulation of that material which could be effectively removed [*78] rendering the work area cleaner than before. It is not felt that a tortuous definition of the word was intended in the standard.

Hence, the employee having been engaged in the process of sweeping and perspiring, thereby rendering his clothing wet, would be the subject of the standard which would require a facility to render his clothing dry before reuse.

To follow Respondent's argument regarding "process" as it applies at C.F. & I. Steel Operations, the employee working the Coke Plant or Steel Mill, wherein the aggregate products are heated and transposed into the final product of steel, would be afforded protection under the Statute to insure his having adequate clothes drying facilities, while conversely, the sweeper who perhaps would be working 30 feet behind, above, alongside or in the same general area would not be covered by the same standard. It is not felt that such a distinction and differentiation is intended by the simple use of the word "process."

Through the corroborative testimony of Respondent's employees, the Secretary has sustained his burden of proof by substantial evidence, and the violation has been proved under the old standard.

FINDING OF FACT

The Respondent [*79] failed to provide clothes drying facilities for employees using the Coke Plant main comfort station, clothing storage room.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $30.00 are vacated in light of the repeal of the standard reflecting the intent that clothes drying facilities are to be provided only where the employer furnishes the work clothing.

Citation 1, Item 11 - 29 CFR 1910.133(a)(2)

By Stipulation, the Secretary withdrew 964 alleged instances of violation of 29 CFR 1910.133(a) relating to eye protection for lack of supportive evidence, and Respondent admitted six instances of lack of face cream constituting the necessary abatement.

The compliance officer gave evidence that the initial proposed penalties should be subsequently less based upon the number of violations, wherein the adjusted total proposed penalty of $140.00 applied to his initial computation referring to 964 violations.

Utilizing the compliance officer's methodology contained in Exhibit G-1, page 2, it would appear that the appropriate column of the gravity of violation by system of type would be "A" and that no penalty be proposed.

FINDING OF FACT

There were six instances [*80] of lack of face cream protection out of 964 alleged instances of violation.

CONCLUSION OF LAW

The citation as to the six instances is affirmed. A penalty of no dollars is assessed.

Citation 1, Item 12 - 29 CFR 1910.252(f)(2)

FINDING OF FACT

Respondent admitted subparagraphs (a) and (d). The Complainant withdrew subparagraphs (b) and (c) on the basis of lack of supportive evidence.

CONCLUSION OF LAW

The citation for subparagraphs (a) and (d) is affirmed. The original proposed penalty is reduced to $35.00 pursuant to the methodology employed in Exhibit G-1.

Citation 1, Item 13 - 29 CFR 1910.252(f)(4)

FINDING OF FACT

By Stipulation, the Complainant dismisses said citation for lack of supportive evidence.

CONCLUSION OF LAW

Citation and proposed penalty vacated.

Citation 1, Item 14 - 29 CFR 1910.252(e)(2)

The operative part of the standard provides that helmets or handshields shall be used during all arc welding or arc cutting operations. Goggles should also be worn during are welding or cutting operations to provide protection from injurious rays from adjacent work, and from flying objects. The goggles may have either clear or colored glass, depending upon [*81] the amount of exposure to adjacent welding operations. Helpers or attendants shall be provided with proper eye protection.

FINDINGS OF FACT

1. Subparagraphs (a), (b), (c) and (e) are admitted by the Respondent.

2. The Plant boiler shop, arc welding operation area, had welders working from 6 to 15 feet from other welding operations.

3. The welders when lifting their shaded hood wore clear safety glasses.

4. An employee was observed within 10 feet of a welding operation wearing regular clear safety glasses. Respondent has a policy relating only to the welder wearing shaded glasses and none as to the helper.

5. Complainant did not establish by substantial and probative evidence that the amount of exposure to adjacent welding operations exceeded the capacity of the clear glass in the safety goggles to absorb the ultra-violet rays of the welding arcs.

6. Complainant did not establish by substantial and probative evidence that helpers or attendants were not provided with proper eye protection.

7. The only evidence pertaining to history of eye injury from flash burn was negative.

CONCLUSION OF LAW

The citation and proposed penalty are vacated.

Citation 1, Item [*82] 15 - 29 CFR 1910.141(b)(1)

FINDING OF FACT

Dismissed by Complainant for lack of sufficient supportive evidence.

CONCLUSION OF LAW

Citation and proposed penalty vacated.

Citation 1, Item 16 - 29 CFR 1910.95(b)(1)

FINDING OF FACT

Complainant dismisses said citation for lack of sufficient supportive evidence.

CONCLUSION OF LAW

Citation and proposed penalty vacated.

Citation 1, Item 17 - 29 CFR 1910.141(a)(1)

FINDINGS OF FACT

1. Only one toilet out of a system of toilets was cited.

2. Respondent had established a procedure for assuring cleanliness of the toilet facilities off blast furnace "B" by making it a shift responsibility and rotating the task within the shift on a daily basis.

3. The toilet facilities were cleaned dut in the morning but would become dirty during the course of the day with use.

4. Equipment for cleaning of the toilet was furnished by Respondent.

CONCLUSION OF LAW

The citation is vacated.

Citation 1, Item 18 - 29 CFR 1910.141(c)(1)

FINDING OF FACT

The citation is vacated for error in method of computation.

CONCLUSION OF LAW

The citation is vacated.

Citation 1, Item 19 - 29 CFR 1910.310(i)(5)

Respondent has admitted [*83] the basic factual allegations that Respondent's switchgear house containing a 440-volt D.C. rectifier and 440-volt terminal box with unprotected conductors and terminals was not illuminated. At issue was the Complainant's reassessment of this violation from "Other" to "Serious" violation. The evidence established that it was possible that because of the darkness of the room that employees could contact the bare conductors resulting in injury to death, dependent upon the amount of amperage the individual would be subjected to.

The compliance officer, who was a stranger to the premises, upon entering the switchgear house and finding the lightbulb burned out, was able to achieve eye accommodation to the darkness to the extent that he noted the aforementioned rectifier bank and uncovered terminal box. In his judgment, he gave the opinion that individuals who might enter the area to either shut down or turn on switches could because of the darkness contact the bare conductors.

Thus, in charging the Respondent with a "Serious" violation and the implications and sanctions of Section 17(k), the compliance officer would impute to the employee charged with this duty of energizing or de-energizing [*84] the inability for eye accommodation to the darkness or to the contrary, a lack of common sense to obtain portable lighting to either energize the equipment or to replace the bulb, and concluded that such an employee "could" because of the darkness contact the bare conductors which would result from injury to death.

Section 17(k) is quite explicit in holding that a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from the condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use in such place of employment, unless the employer did not and could not with the exercise of reasonable diligence, know, of the presence of the violation.

Respondent has correctly stated the elements of the serious violation, namely:

(a) The existence of a condition which violates a standard.

(b) The possibility of an accident resulting from the condition.

(c) A substantial probability that death or serious physical injury could result if an accident occurred, and

(d) Proof that the employer knew, or with the exercise [*85] of reasonable diligence could have known, of the presence of the violation. ( Secretary of Labor v. Standard Glass and Supply Company, Docket No. 585; Secretary of Labor v. Crescent Wharf and Warehouse Company, Docket No. 1; Secretary of Labor v. Natkin and Company, Docket No. 401)

The Complainant's evidence that an individual "might" enter the area and that the individual "could" contact the bare conductors, and that the result "could" be from injury to death, does not reach the substantial evidence criteria established by the cases mentioned to establish a serious violation.

FINDINGS OF FACT

1. A light was burned out in the switchbox and there was unprotected 440-volt D.C. conductors located within the switchgear house.

2. The evidence failed to establish any employee in the area while the hazard existed.

3. the evidence failed to establish that there was possibility that an employee would enter the area and would contact the exposed equipment.

4. There was no evidence to establish that Respondent knew or with the exercise of reasonable diligence could have known of this violation.

CONCLUSION OF LAW

The aforesaid violation is reduced from a "Serious" violation [*86] to a "Non-Serious" violation, and the proposed penalty in the amount of $30.00 is affirmed.

Citation 1, Item 20 - 29 CFR 1910.132(a)

FINDING OF FACT

Three car dumper helpers working at the ore preparation rotary car dump were not provided with safety belts or harnesses and lifelines when they entered unguarded titlted railcars to remove ore when the drop into the hopper at the edge of the car would have been greater than 20 feet.

A review of the cited standard 29 CFR 1910.132(a), regarding general protective equipment as it applies to Respondent's operation, is closely parallel to the factual situation involving the same standard which was commented upon in Secretary of Labor v. Grayson Lumber Company, Inc., Docket No. 793, wherein regarding the applicability of the standard it was stated:

"In addition, this standard does not tell the employer when this 'equipment' is required. To answer by using the standard's own words, 'Whenever it is necessary by reason of hazards of processes or environment' is no answer at all. To regard such language as an enforceable requirement is to open up this regulation to a thousand different interpretations. It is unlikely that [*87] any two representatives of the Complainant will interpret this terminology exactly. Not only is language which is susceptible to such varying interpretations unconstitutional, but it defeats the very purpose of the Occupational Safety and Health Act of 1970. . .

"When a standard makes an employer guess, gamble and grope to be in compliance, that standard:

(a) Fails to serve the purposes of the Occupational Safety and Health Act;

(b) Does not fall within the definitions of an Occupational Safety and Health standard contained in the Act; and

(c) Is unconstitutionally vague."

( See Secretary of Labor v. Imco Container Company, Docket No. 79.)

CONCLUSION OF LAW

The standard 29 CFR 1910.132(a) applied as to the processes and environment involved in Respondent's ore preparation rotary car dump is vague and unenforceable. The citation and proposed penalty are vacated.

Citation 1, Item 21 - 29 CFR 1910.141(d)(1)

FINDING OF FACT

The blast furnace "D" washing facilities were not maintained in a sanitary condition, in that the shower stalls were caked with soap, grease, dirt and accumulation of scale.

CONCLUSION OF LAW

The citation and proposed penalty in the amount [*88] of $30.00 are affirmed.

Citation 1 Item 22 - 29CFR 1910.151(c)

FINDING OF FACT

Suitable facilities for quick drenching or flushing of the eyes were not provided at the muriatic acid storage tank and dispensing facility in the Wire Plant.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $90.00 are affirmed.

Citation 1, Item 23 - 29 CFR 1910.252(a)(5)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 24 - 29 CFR 1910.252(b)(4)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 25 - 29 CFR 1910.310(m)

CONCLUSION OF LAW

The citation is vacated.

Citation 1, Item 26 - 29 CFR 1910.314(d)(1)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 27 - 29 CFR 1910.315(n)(4)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $45.00 are affirmed.

Citation 1, Item 28 - 29 CFR 1910.310(j)(1)

FINDINGS OF FACT

1. Two 220-volt D.C. conductors for the Blast Furnace Yard North Dodge Crane at [*89] 26 inches and 4 inches, respectively, above ground level were not guarded by a guardrail on the pedestrian path side.

2. There was an exposed 250-volt D.C. conductor at the bridge of hot metal handling Teeming Crane.

3. The electrical control and terminal boards next to switchgear and Wire Mill Pickling Vat West Crane Were unguarded by cabinet or barrier against accidental contact.

Respondent makes issue that 29 CFR 1910.310(j)(1) is inapplicable to the facts alleged, in that the cited standard applies only to electrical equipment and not to conductors. This position is untenable, in that a conductor conducts electricity, and depending upon the sufficiency of voltage and amperage can create a hazard and is a component part; and, when energized would fall under the category of the cited standard as being a live part of electrical equipment which must be guarded against accidental contact by approved cabinets or other forms of approved enclosures or the other methods enumerated in (i) through (v).

The evidence is clear that the compliance officer gave due consideration to the fact that while Respondent's crane operators were not experienced electricians, they were qualified crane [*90] operators, and that there was limited, if not slight, exposure to the potential hazard by the crane operator and made an entry under the "B" column of gravity in his Penalty Assessment Worksheet (Exhibit G-1, page 3), which upon adjustment with appropriate credit amounted to a final penalty of $50.00. The situation presented is similar to that of Secretary of Labor v. Hydroswift, Docket No. 591, where while the gravity is low, and exposure highly limited, there was sufficient gravity that some penalty must be assessed.

CONCLUSION OF LAW

The aforesaid violation is reduced from a "Serious" violation to a "Non-Serious" violation, and the original proposed penalty in the amount of $50.00 is affirmed.

Citation 1, Item 29 - 29 CFR 1910.310(j)(2)

The citation is affirmed.

Citation 1, Item 30 - 29 CFR 1910.326(k)(1)

The citation is vacated.

Citation 1, Item 31 - 29 CFR 1910.310(d)

The citation and proposed penalty in the amount of $60.00 are affirmed.

Citation 1, Item 32 - 29 CFR 1910.157(a)(1)

The citation is affirmed.

Citation 1, Item 33 - 29 CFR 1910.22(b)(1)

FINDINGS OF FACT

1. The first and third sentences of the Complaint are vacated for lack of sufficient [*91] supportive evidence.

2. The blast furnace Hiline walkway was a passageway within the intent and meaning of 29 CFR 1910.22(b)(1).

3. The employees were required to regularly use this walkway to go to and from the area for opening hopper doors on cars to be unloaded.

4. There were tools encroaching into the walkway area, which was 2 1/2 to 3 feet wide, and said Hiline walkway was not kept clear of obstructions across or in the aisles that could create a hazard.

5. The long wrenches presented a tripping hazard, wherein the employee while engaged and preoccupied with the work of unloading the car could trip and fall from the unguarded side of the passageway.

6. This violation was one of three subparts for which a total proposed penalty in the amount of $60.00 was proposed. Considering the compliance officer's formula, and further taking into account evidence of abatement, a proper pro ration of the penalty would be $20.00. Again applying the factors of Secretary of Labor v. Hydroswift (supra).

CONCLUSION OF LAW

The citation and penalty in the amount of $20.00 are affirmed.

Citation 1, Item 34 - 29 CFR 1910.23(b)(5)

FINDING OF FACT

Respondent admits the violation. [*92]

CONCLUSION OF LAW

The citation and proposed penalty of $60.00 are affirmed.

Citation 1, Item 35 - 29 CFR 1910.23(b)(2)

FINDING OF FACT

The standard was inapplicable to the violation alleged.

CONCLUSION OF LAW

The citation and proposed penalty are vacated.

Citation 1, Item 36 - 29 CFR 1910.22(a)(1)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 37 - 29 CFR 1910.23(c)(1)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $30.00 are affirmed.

Citation 1, Item 38 - 29 CFR 1910.23(c)(3)

FINDINGS OF FACT

1. Respondent admits the violation that there was no standard railing and toeboard on three roll stands and one finishing stand.

2. An employee was observed going onto the top of the roll stand while hot steel was rolling through the bottom.

3. If the employee fell, he would have a fall of 7 or more feet onto moving steel rollers or onto hot rolling steel of 2200 degrees F.

4. There was a great possibility that the employee could fall under the Blooming Mill.

5. There was a substantial probability that death or [*93] serious physical injury could result if the employee would fall.

6. The Respondent knew of the presence of the violation.

CONCLUSION OF LAW

The citation for serious violation is affirmed and proposed penalty in the amount of $600.00 is affirmed.

Citation 1, Item 39 - 29 CFR 1910.25(d)(2)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 40 - 29 CFR 1910.316(e)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 41 - 29 CFR 1910.310(o)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 42 - 29 CFR 1910.315(l)(1)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 43 - 29 CFR 1910.310(i)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 44 - 29 CFR 1910.27(d)(2)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $30.00 are affirmed.

Citation 1, Item 45 - 29 CFR 1910.28(t)(1) [*94]

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $60.00 are affirmed.

Citation 1, Item 46 - 29 CFR 1910.28(t)(2)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $600.00 are affirmed.

Citation 1, Item 47 - 29 CFR 1910.252(c)(2)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation is affirmed.

Citation 1, Item 48 - 29 CFR 1910.24(b)

FINDING OF FACT

Respondent admits the violation.

CONCLUSION OF LAW

The citation and proposed penalty in the amount of $75.00 are affirmed.

ORDER

Based upon the foregoing findings of fact and conclusion of law, it is ordered:

1. Citation No. 2 for Serious Violation and the proposed penalty in the amount of $600.00 is affirmed.

2. Citation 1, Item 38, for Serious Violation and the proposed penalty of $600.00 is affirmed.

3. The following Citations for Non-Serious Violations are affirmed:

Proposed

Citation No.

Item No.

Penalty

1

2

$150.00

1

4

None

1

5

$ 60.00

1

8

$150.00

1

9

$ 30.00

1

11

None

1

12

$ 35.00

1

19

$ 30.00

1

21

$ 30.00

1

22

$ 90.00

1

23

None

1

24

None

1

26

None

1

27

$ 45.00

1

28

$ 50.00

1

29

None

1

31

$ 60.00

1

32

None

1

33

$ 20.00

1

34

$ 60.00

1

36

None

1

37

$ 30.00

1

39

None

1

40

None

1

41

None

1

42

None

1

43

None

1

44

$ 30.00

1

45

$ 60.00

1

46

$ 60.00

1

47

None

1

48

$ 75.00

[*95]

The following Items of Citation 1 for Non-Serious Violations are vacated: Items 1, 3, 6, 7, 10, 13, 14, 15, 16, 17, 18, 20, 25, 30 and 35.

It is so ordered.