CONSOLIDATED ALUMINUM CORPORATION

OSHRC Docket No. 6808

Occupational Safety and Health Review Commission

February 14, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A July 12, 1974, order or Review Commission Judge Henry F. Martin, Jr., in a proceeding initiated under the Occupational Safety and Health Act of 1970, * is before the Commission for review pursuant to 29 U.S.C. 661(i).

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* 29 U.S.C. 651 et seq., 84 Stat. 1590.

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Having examined the record, we find no prejudicial error therein. Accordingly, the Judge's order is hereby affirmed.

[The Judge's decision referred to herein follows]

MARTIN, JUDGE: As a result of an inspection of respondent's work place on Grange Road, Lake Charles Louisiana, on January 15, 1974, a citation for nonserious violation and notification of proposed penalty were issued to respondent on February 5, 1974. The citation, containing two items, alleged that respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, by failing to comply with section 29 CFR 1910.93(a)(2).

Respondent, by letter dated February 27, 1974, notified [*2] complainant that it desired to contest item 1 of said citation which alleged that an employee was exposed to coal tar pitch volatiles in excess of the eight hour time waited average given for said substance in Table G-1. The notice of contest also related to the proposed penalty of $40.00. n1

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n1 Item 2 of the citation was not contested and is therefore deemed to be a final order of the Commission.

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On June 27, 1974, an amended motion to withdraw the complaint and to vacate item 1 of the citation was received from complainant. The motion was grounded upon respondent's good faith efforts at corrective action and because of the fact that the investigative file did not contain sufficient evidence to sustain complainant's burden of proof. Accordingly, complainant's motion to withdraw the complaint and vacate item 1 of the citation appears proper and will be granted. The proposed penalty will also be vacated.

ORDER

It is ORDERED that:

1. The withdrawal of the complaint in this matter is consistent with [*3] the objectives of the Act and the same is hereby granted.

1. Item 1 of the citation issued February 5, 1974, and the notification of proposed penalty relative thereto, be and the same are hereby vacated.