LOVELL CLAY PRODUCTS COMPANY

OSHRC Docket No. 683

Occupational Safety and Health Review Commission

July 25, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision of Judge Henry C. Winters. Judge Winters, inter alia, refused to treat Item 12 of the citation as being amended by the complaint with respect to an alleged non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") and 29 C.F.R. 1910.176(b); he also affirmed Complainant's citation (Item 30) charging that Respondent violated in a nonserious manner 29 C.F.R. 1910.316(c).

Having considered the entire record, we conclude that the Judge erred by vacating Item 12. Accordingly, we adopt the decision of the Judge only to the extent it is consistent with the following decision.

Item 12

Complainant's citation charged that Respondent failed to comply with the provisions of 29 C.F.R. 1910.176(c). His complaint alleged noncompliance with 29 C.F.R. 1910.176(b). n1 The substance of the violation as described in the citation and complaint is virtually identical. Thus, the citation reads: "Storage [*2] of pallets, bricks, water container, etc., were not stable to prevent sliding or collapse -- brick storage room, east wall, south end. Bricks stored on pallets three high; stacks tilted from ground thawing -- outside storage area" (emphasis added).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 C.F.R. 1910.176(b) and (c) provide as follows:

(b) Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

(c) Housekeeping. Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be exercised when necessary.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The complaint alleges that "on February 25, 1972, stored material in tiers at the brick storage room, east wall, south end, and at the outside storage area was not stable and secure against sliding or collapse" (emphasis added).

Paragraph III of the instant complaint [*3] reads, in relevant part: "To the extent this complaint differs from the citation issued March 9, 1972, it constitutes an amendment thereof." We consider paragraph III to be a motion for leave to amend and think the amendment should have been allowed. See J. L. Mabry Grading, Inc., S. & H. Guide para. 15,141 (April 27, 1973).

In Mabry the Commission held that a defective citation may be cured by a subsequent pleading. Where the sought amendment would not mislead or otherwise prejudice the opposing party, leave to amend will be freely given when justice so requires.

Respondent does not suggest that it was misled or otherwise prejudiced by the original allegation of noncompliance with the terms of 29 C.F.R. 1910.176(c). Nor would such contention be tenable. As previously noted, the substance of the violation contained in the citation and complaint is virtually identical. Respondent was thus notified of the "subject facts so that it could take proper corrective action and/or file a notice of contest." Mabry, supra, 1 OSAHRC 1212. Here as in Mabry, Complainant does not seek to "change the basic factual [*4] allegations of the citation" or to assert a different "legal basis of its case." Ibid. at 1213.

Respondent has admitted the allegations of the citation and complaint with regard to item 12 except as to the outside storage area. Consequently the testimony at trial was limited to the condition of the storage of bricks in this area.

The record indicates that bricks were stored in this area on pallets. Usually, three pallets were stacked one upon the other. Each pallet held 512 bricks. On the date of inspection the stacks were tilted at an angle as a result of the thawing of previously frozen ground. The three-high stacks were taller than a normal man. The pallets of bricks were not fastened in any way to each other. Respondent was aware of this situation and periodically restacked the materials after tilting had occurred. On these facts we think it an obvious conclusion that the stacks were not stable and secure within the meaning of the standard, and we conclude that a violation has been established.

Item 30

Complainant alleged that flexible cords or cables were used as a substitute for fixed wiring in violation of 29 C.F.R. 1910.316(c). n2 At the hearing, [*5] the parties stipulated that Respondent violated the standard as alleged and that their only dispute as to this item was the penalty to be assessed. The Judge accepted the stipulation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The cited standard provides:

Prohibited uses. Except where installed in data processing systems flexible cord shall not be used as a substitute for the fixed wiring of a structure, where run through holes in walls, ceilings, or floors; where run through doorways, windows, or similar openings; where attached to building surfaces; or where concealed behind building walls, ceilings, or floors.

The cited standard no longer appears as cited. It is adopted by reference in 29 C.F.R. 1910.309(a) and as such is substantively in effect and unchanged.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

While we are not obliged to accept a stipulation, we do so here. Though the record indicates that Respondent's wiring may have been similar to that used in Buhl Laundry and Dry Cleaning, counsel insists in his brief on review that Respondent violated the standard. Accordingly, we find the violation.

PENALTIES

We have considered the gravity of the violation, the size of Respondent's business, its good faith, and its history of previous violations. Considering these factors we conclude that a penalty of $30 should be assessed for item 12.

The gravity of the violation is low to moderate. The probability that an accident could occur was moderate. In the event of an accident injuries could be as inconsequential as a contusion and as severe as a concussion.

In all other respects regarding penalties the Judge gave proper consideration to the statutory criteria and his findings and conclusions will be affirmed.

Accordingly, it is ORDERED that the Judge's decision is modified so as to affirm item 12 of Complainant's citation. A civil penalty of $30 is assessed for such violation. In all other respects the decision of the Judge is affirmed. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 In affirming the decision of the Judge we agree with his conclusions with respect to the applicability of section 4(b)(1) of the Act in this case. However, we specifically reject his statement at page 7 of his opinion that "if a Federal agency exercises statutory authority under any Act whatsoever to prescribe or enforce regulations affecting occupational safety or health, then the Occupational Safety and Health Act does not apply to working conditions of employees covered by the regulations of some other agency" (emphasis in original). The only issue before the Judge was whether, or to what extent, the Act was inapplicable to Respondent's operations because the Department of the Interior had exercised its authority under the Metal and Nonmetal Mine Safety Act (30 U.S.C.721, et seq.). That statute is specifically directed to occupational safety and health. The Judge's statement quoted covers situations in which an agency other than the Department of Labor has exercised authority in a manner which affects occupational safety and health, acting under a statute the purpose of which is other than the regulation of occupational safety and health.

[*7]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part); MORAN

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in my colleague's disposition of the issues called for review. In addition to those issues, however, the parties submitted arguments concerning the particularity of the citation under section 9(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") as it pertained to item 20. I would reverse the Judge's decision with respect to that item, which he vacated in its entirety on the grounds of a lack of particularity.

Item 20 alleged a failure to comply in two instances with 29 CFR 1910.252(b), an extremely long and complicated subsection of the standards, which concerns the application, installation, and operation of arc welding and cutting equipment. The citation described the alleged violations and their locations as follows:

(1) Cable within 10 feet of electrode holder was bare -- Hobart welder, maintenance area, dryer lobby;

(2) Welder had water dripping on it -- water tank storage room.

The parties stipulated [*8] at the hearing that respondent would admit the first instance of the alleged violation (subject to objections regarding Commission jurisdiction which the Judge properly overruled), but would contest the second instance. With respect to the second instance, respondent's notice of contest and answer to the complaint indicates respondent was not certain as to what provision it had violated. Also, respondent raised the general issue of particularity of the citation at the hearing, complaining about the great difficulty of understanding its duties under the standards, based on the citation.

At the hearing, however, complainant's compliance officer specifically identified the hazardous condition alleged, a condition covered in 29 CFR 1910.252(b) (4)(ix)(b). n4 Respondent did not object to the introduction of this evidence or the specific issue it presented. In fact, respondent's Vice President admitted that a possible hazard existed from using equipment like an electric welder when wet, and that the welder had been used since 1948 "in that same condition." Therefore, the issue involving 29 CFR 1910.252(b)(4)(ix)(b) was tried by the implied consent of the parties, and the [*9] pleadings may be deemed amended to conform to the evidence under Fed. R. Civ. P. 15(b). Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973). Furthermore, respondent's admission demonstrates it was in violation of the applicable standard. Thus, I would reinstate part two of Item 20.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 That paragraph reads, "Machines which have become wet shall be thoroughly dried and tested before being used."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to part one of Item 20, respondent admitted by stipulation that it had violated the Act as alleged in the citation. This stipulation has not been repudiated or questioned by the parties. The citation appears to comport with the requirement of particularity under section 9(a) of the Act, in that it provides a plain statement of the factual conditions considered to constitute a violation, thus permitting respondent to maintain its defense. J. L. Mabry Grading, Inc., No. 285 (April 27, 1973). Furthermore, respondent's acceptance of the stipulation indicates that any doubts it might have had about the particularity [*10] of the citation in this instance were adequately resolved, and that it agreed with complainant's factual statement and the determination that a violation existed. There is no cause indicated in the record sufficient to set aside the stipulation. No showing was made of prejudice to respondent resulting from it. Therefore, I would reinstate part one of Item 20.

MORAN, CHAIRMAN, dissenting: I am convinced that Judge Winters properly disposed of this case and I would affirm his decision.

[The Judge's decision referred to herein follows]

WINTERS, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereinafter called the Act) contesting a citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The citation alleges that as the result of the inspection of the work place under the ownership, operation or control of the Respondent, located at 1312 Lockwood Road, Billings, Montana and described as Brick Division, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and [*11] health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

The Citation, issued March 9, 1972, contains 30 separately stated items, each of which alleges one or more violations of a standard promulgated by the Secretary. Pursuant to enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 9, 1972 from Vernon A. Strahm, Area Director of the Billings Area for the Occupational Safety and Health Administration, that the Secretary proposes to assess specified penalties for certain of the alleged violations described in the Citation.

Set forth in Appendix A to this decision are the following: (1) A description of each alleged violation and the code of Federal Regulations reference to each, all as described in the aforementioned Citation; and (2) the proposed penalties as contained in the aforementioned letter dated March 9, 1972. The Citation does not allege the date on which each violation occurred. The Complaint, however, in addition to alleging each violation as in the Citation, additionally alleges that each violation occurred on February 25, 1972.

In its Notice of Contest and in its [*12] Answer, Respondent contests the violations alleged in item numbers 1, 3, 4, 8, 12, 13, 15, 17, 18, 20, 21, 23, 24, 25 and 30 of the Citation; contests the penalties proposed to be assessed for each of such specified items; and asserts that the abatement date proposed as to each contested violation is unreasonable.

By motion filed May 1, 1972, Respondent moved to dismiss the Citation and proposed penalties alleging that the Act is unconstitutional and void. By order of Judge Herbert E. Bates, entered June 21, 1972, Respondent's Motion to Dismiss was denied. The Motion was orally renewed at the hearing and denied by the undersigned Judge based upon the prior ruling.

This case came on for hearing before the undersigned Judge at Billings, Montana on July 24, 1972. At the opening of the hearing, counsel for Respondent stated that Respondent was challenging the jurisdiction of the Occupational Safety and Health Administration with respect to some of the alleged violations, not at that time stating which specific items of the Citation or Complaint were so challenged.

It was then stipulated by the parties that subject to the aforementioned jurisdictional objection, Respondent admits [*13] the violations as alleged in the Complaint, except the violation of 29 CFR 1910.252(b) alleged in paragraph IX (Item 20(2) of the Citation) and except the violation of 29 CFR 1910.176(b) alleged in paragraph XVI as occurring at the outside storage area (part of Item 12 of the Citation); that all violations have been abated except the aforementioned two items remaining under contest; that Respondent reserves the right to question the propriety of the penalty proposed with respect to each violation alleged in the Complaint. The standards as promulgated by the Secretary and as alleged in the Citation as having been violated in the contested items, namely, Items 12 and 20, are set forth in Appendix B. to this report.

In the course of the hearing, in objecting to questions propounded to the witness of the Secretary, Respondent's counsel indicated that Respondent was specifically challenging the jurisdiction over that part of the Billings plant involved in the violation alleged in Item 20(2) of the Citation. After the Secretary rested its case, Respondent's vice-president testified that some other Federal agency, referred to variously as "Mine, Mill and Smelter Division of U.S. [*14] Department of Labor" and as "Bureau of Mines" had jurisdiction over that portion of the plant operation involved in the violation alleged in the Citation as Item 3, the fourth part of Item 4, Item 11, the third part of Item 17, and the third part of Item 21.

DISCUSSION

The first issue for consideration is whether the Secretary lacks jurisdiction with respect to certain items in the Citation.

Respondent is engaged in the business of mining clay and manufacturing clay products. It operates a brick manufacturing plant at Billings, Montana where it engages in activities described by its plant manager as follows:

. . . We bring our materials in from a clay pit, a clay deposit, haul it in and deposit it in our yard; we mix it together, those various raw materials, grind it into a given particle size, add water to it and form whatever shape we are trying to make, dry the product, in other words, remove that water until it is in a solid state; and then we place it in a kiln, and make this change that I have referred to [chemical change]. We then take the product and place it in a form, set it on a wooden pallet or in a steel strapped form, and we then ship it to a "job site." [*15]

Respondent's plant manager also testified that the Billings plant is regularly visited by inspectors of the Bureau of Mines; n1 that these inspectors have taken the position that their jurisdiction extends to those operations of the Billings plant up to the point where the heat is applied to the clay products. Respondent contends that the Secretary's jurisdiction commences at that point in the manufacturing process where the product is placed into the kiln. Respondent does not cite the statute which confers jurisdiction on the Secretary of the Interior to promulgate and enforce occupational safety and health standards, nor does it cite the standards and regulations under which the Secretary of the Interior exercises such authority.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 As previously pointed out, the witness could not identify with particularity the other Federal agency. From all the other circumstances it is obvious to this Judge that the other agency is the Bureau of Mines of the U.S. Department of the Interior.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Secretary's counsel did not address [*16] himself to this jurisdictional issue, other than to propose findings of fact and conclusions of law in the most general of terms. These proposed findings and conclusions indicate that it is the Secretary's position: (1) that the jurisdictional issue is an affirmative defense with the burden of proof, as well as the burden of going forward with the evidence, on the Respondent; and (2) that Respondent has raised this jurisdictional issue only with respect to Item 11 of the Citation which was not contested, and with respect to one of four violations constituting Item 4 which if eliminated from consideration would have no effect on the proposed penalty for Item 4.

The Respondent argues in its brief that the Secretary lacks jurisdiction over those activities under the Jurisdiction of the Secretary of the Interior (referred to as Bureau of Mines) for two reasons; namely: (1) two administrative agencies are estopped from asserting jurisdiction over the same activity, and (2) the Secretary is precluded from exercising jurisdiction by virtue of the provisions of Section 4(b)(1) of the Act. The Secretary chose not to file a reply brief.

In the opinion of the Judge, there is merit [*17] to the second reason given by Respondent in support of its argument that the Secretary lacks jurisdiction as to some alleged violations. See Secretary v Phoenix, Inc., Legore Quarries Division

Section 4(b)(1) of the Act 29 (U.S.C. 635(b)(1) provides as follows:

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

When one gives consideration to the fact that there is a comma after the words "Federal agencies" and no comma after the words "State agencies" and especially when one considers the language of 42 U.S.C. 2021, it is evident from clear and unambiguous language that the phrase "acting under section 724 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021)" has no reference to Federal agencies. Therefore, if a Federal agency exercises statutory authority [*18] under any Act whatsoever to prescribe or enforce regulations affecting occupational safety or health, then the Occupational Safety and Health Act does not apply to working conditions of employees covered by the regulations of such other agency.

Even if it were to be admitted for the sake of argument that the language of Section 4(b)(1) is unclear and ambiguous, an examination of the legislative history of this section confirms the interpretation given above. n2 Compare the decision in Secretary v. Elevating Boats, Inc.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The Conference Report on the Act contains the following statement: "The Senate bill said the act should not apply to working conditions with respect to which other Federal agencies exercise statutory authority affecting occupational safety and health, while the House amendment excluded employees whose working conditions were so regulated. The House language had an additional exclusion relating to employees whose safety and health were regulated by State agencies acting under section 274 of the Atomic Energy Act of 1954. The House receded on the first point; the Senate receded on the second." Legislative History of the Occupational Safety and Health Act of 1970 prepared by the Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate at page 1204.

[*19]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary of the Interior is authorized by the provisions of the Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 721 et seq. ), hereinafter called the Mine Safety Act, to prescribe and enforce standards affecting the occupational safety and health of employees of mines. The Secretary of the Interior has exercised such statutory authority by the issuance of standards, including those applicable to open pit mines (30 CFR Part 55) and to underground mines (30 CFR Part 57).

Section 6(a) of the Mine Safety Act provides for the promulgation of health and safety standard "in mines which are subject to this Act." Section 2(b) of the same Act defines a mine, as here pertinent, as:

. . . (1) an area of land from which minerals other than coal and lignite are extracted in nonliquid form . . . (2) private ways and roads appurtenant to such area, and (3) land, excavations, underground passageways, and workings, structures, facilities, equipment, machines, tools, or other property . . ., on the surface or underground, used in the work of extracting such materials . . . from their natural deposits, [*20] or used in the milling of such materials. . . . (emphasis supplied)

The term "milling" is not defined in the Mine Safety Act nor in the standards issued pursuant thereto. However, the standards applicable both to open pit and underground mines contain the following definitions (30 CFR 55.2 and 57.2):

Mill includes any one mill, sampling works, concentrator, and any crushing, grinding or screening plant used at and in connection with, an excavation or mine.

Viewing the facts of the instant proceeding in the light of the foregoing statutory and regulatory provisions, it is concluded that the Secretary of Interior has jurisdiction over a portion of the Billings plant. To the extent that the Billings plant is engaged in what is properly classified as milling of clay which has been extracted from the clay mine owned and operated by Respondent, it is subject to the jurisdiction of the Secretary of Interior and not of the Secretary of Labor. The difficulty lies, however, in determining precisely what activity is properly classified as milling and at exactly what point the milling of clay ends and the manufacture of tile and bricks commences.

The parties did not offer [*21] in evidence any definitions of the work "milling." No expert witnesses were called nor did a representative of the Bureau of Mines testify. In the absence of an agreement between the Secretaries of Labor and Interior, furnishing guidelines for resolving problems involving the gray area of conflicting jurisdiction, resolution of the issue here presented is most difficult. The difficulty is compounded when, as here, there is a paucity of evidence on the subject. However, the issue was raised in good faith and must be resolved.

This judge can find no rational basis for concluding, as contended by Respondent, that the jurisdiction of the Secretary of Labor commences at that point in the plant operations where the clay product is placed in the kiln. It is the Judge's opinion that the milling process certainly has ended when the water is added for the purpose of shaping the clay into the form of a finished product. A manufacturing process has then commenced and the product has lost its substantial identity as mere mined and milled clay.

It is the conclusion of this Judge that the Secretary has failed to establish he has jurisdiction to enforce health and safety standards [*22] with respect to that part of the Billings plant and equipment which are used exclusively for the storage and proceeding of the clay up to the time the water is added. The Secretary, therefore, did not prove jurisdiction to include in the Citation Item 3, which pertains to an alleged violation in the clay storage area; nor to include the third part of Item 17, which pertains to an alleged violation in connection with the grinding equipment system. Item 3 of the Citation and the proposed penalty of $30.00 therefor, should be vacated. The third part of Item 17 should be vacated and be ignored in determining what penalty, if any, is appropriate for Item 17. Except as to Item 3 and the fourth part of Item 17, the Secretary clearly has jurisdiction to issue all of the other contested items of the Citation. Since Item 11 of the Citation was not contested, no issue with respect to that item is before this Judge for decision.

The next matter for discussion involves Respondent's contest of the violation alleged at Item 20(2) of the Citation and Paragraph IX of the Complaint. This item states that "the welder in the water tank storage room had water dripping on it" and cites 20 CFR 1910.252(b) [*23] as the standard being violated. This item is fatally defective because it does not describe with particularity the nature of the violation, including a reference to the standard alleged to have been violated, as required by Section 9(a) of the Act (30 U.S.C.A. Section 658). The regulatory provision referred to in the Citation, which is set forth in full on pages 9 through 13 of Appendix B to this decision, contains numerous different standards and covers the broad subject of "application, installation, and operation of arc welding and cutting equipment." After reading Section 1910.252(b), one can only speculate which particular provision of this section was alleged to have been violated. Nowhere in this section is a provision stating in substance that a welder shall not have water dripping on it. One of the various provisions of Section 1910.252(b) comes under the general heading "maintenance" and provides as follows:

(4) Operation and Maintenance

(ix) Maintenance (b) Machines which have become wet shall be thoroughly dried and tested before being used.

If it is assumed that the above-quoted portion of Section 1910.252(b) was the one the inspector and Area Director [*24] had in mind when issuing the Citation, and if it is assumed the only welder in the particular room was an arc welder, and if it is assumed that a welder with water dripping on it will be "wet" as that term is used in the quoted language, Item 20(2) still does not allege a violation. First of all, the proper reference to the standard would have been 29 CFR 1910.252(b)(4)(ix)(b). But more importantly, the gravamen of a violation of this standard would not be that an arc welder is wet but that it was used without first being thoroughly dried and tested. The charge here does not make that clear.

In the opinion of this Judge, a defect in the allegation in a citation is not cured by proof that the inspector orally explained the matter in detail during the inspection or during a conference (there is no such proof in this case.) The language of the statute is mandatory and admits of no exceptions. Officials of Respondent, other than those having contact with the inspector, as well as any counsel Respondent may employ, should be able to read the Citation and know exactly what violation is charged and exactly what must be done to abate the violation. This would be important [*25] not only in a proceeding contesting the original alleged violation but in a subsequent proceeding contesting an alleged failure to abate.

Although the Respondent by stipulation has admitted the violation alleged in Item 20(a) of the Citation and Paragraph VIII of the Complaint, this portion of Item 20 contains substantially the same defects as does the first part of Item 20, discussed above. Here also the reference to the standard is too general, too vague and too indefinite. This Item of the Citation alleges: "Cable within 10 feet of electrode holder was bare -- Hobart welder maintenance area, dryer lobby." and makes reference to the same 29 CFR 1910.252(b). Here, also, it is impossible to know what particular section the inspector and Area Director had in mind. It could have been Section 1910.252(b)(4)(ix)(c) which states that cables with damaged insulation or exposed bare conductors shall be replaced. But the reference to "within 10 feet of electrode holder" would lead one to conclude that reference might be to Section 1910.252(b)(4)(viii) which states in part that "Cables with splices within 10 feet of the holder shall not be used." But a "bare" wire and a "spliced" wire [*26] are not the same. Item 20 of the Citation should be vacated in its entirety, as should the proposed penalty of $30.00

The next matter requiring discussion concerns Item 12 of the Citation and Paragraph XVI of the Complaint. Respondent at the hearing objected only to the second of two alleged violations in Item 12. The Judge on his own motion will consider both alleged violations to be at issue.

Item 12 of the Citation reads as follows:

Storage of pallets, bricks, water container, etc., were not stable to prevent sliding or collapse -- brick storage room, east wall, south end. Bricks stored on pallets three high; stacks tilted from ground thawing -- outside storage area.

The Citation refers to 29 CFR 1910.176 (c) as the standard violated.

Paragraph XVI of the Complaint, purporting to charge the same violation as Item 12, refers to 29 CFR 1910.176 (b) as the standard violated. The standard in subparagraph (b) reads as follows:

(b) Secure Storage. Storage of materials shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or [*27] collapse.

Based upon the language used both in the Citation and the Complaint it is obvious that the proper reference in the Citation should have been subparagraph (b) rather than subparagraph (c) which refers to housekeeping. (See Appendix A to this decision). There is no allegation here of a hazard from tripping, fire, explosion, or pest harborage, nor was there any evidence offered of any such hazard.

The Question arises: Is Paragraph XVI to be considered as an amendment to Item 12? The answer is in the negative. Section 9 of the Act (30 U.S.C.A. Section 658) requires that the citation include a reference to the standard violated. The Complaint does not automatically supersede the Citation. The allegation at Paragraph III of the Complaint that "To the extent this complaint differs from the Citation issued March 9, 1972, it constitutes an amendment thereof" is ineffective in the absence of an explicit request to make a specific amendment to a citation. The Secretary has made no explicit request to amend Paragraph 12 of the Citation. Moreover, there has been no compliance with Rule 2200.33(3) of the Commission's Rules of Procedure, which provided as follows: [*28]

(3) Where the Secretary seeks in his complaint to amend his citation or notification of proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

The aforementioned discrepancy between the Citation and the Complaint was not called to the attention of the Judge by either party.

The allegations of Item 12 of the Citation, even though proved, do not support a finding that 29 CFR 1910.176(c) has been violated. Consequently Item 12 in its entirety and the proposed penalty of $30.00 should be vacated.

There remains for discussion the matter of what penalties, if any, are to be imposed for the remaining items at issue here. Items 3, 12 and 20 have already been discussed. It has also been decided that the third part of Item 17 should be ignored in assessing penalties. As to each of the remaining items, Respondent has stipulated that a violation existed on the date of inspection.

In determining appropriate penalties, this Judge has given no consideration to certain violations which are alleged in terms so vague as to be meaningless. The Area Director has followed a practice in the involved Citation of placing after [*29] certain item numbers another number in parenthesis, intending to indicate that more than one violation is included in a particular item. Unfortunately, he did not in all instances observe the statutory requirement of describing each violation with particularity. For example, at Item 1, five violations were intended to be included but only two were sufficiently described as to be fully understood. At Item 17, seven were intended but three, described; and at Item 30, six were intended but two, described.

Item 13 requires special mention. Seven violations are intended to be included but four are alleged and one of the four was not included in the Complaint (See Paragraph XVII of the Complaint). The Secretary has apparently abandoned the charge that operators did not sound horns at cross aisles. Perhaps this is because there is no such requirement in the standard cited. The violation alleged in the third numbered paragraph of Item 13 will be ignored in assessing penalty. All of the violations alleged as having occurred at "other locations" are not considered as violations.

Consideration has been given to the appropriateness of the proposed penalties with respect to the size [*30] of the business of Respondent, the gravity of the violations, the good faith of the Respondent, and the history of previous violations. The Respondent has acted with complete good faith. There is no evidence of any past violations. There is nothing about the size of the Respondent to influence significantly the amount of the penalty one way or the other. In this case it is the relative gravity of each violation which is the most significant factor in determining what penalty, if any, is appropriate. Where the elements of good faith and past history are favorable to an employer, and where the violations are of a low level of gravity, the assessment of small monetary penalties does little to effectuate the purpose of the Act.

Under the foregoing criteria, the penalties proposed by the Secretary for each of Items 8, 13, 17 and 21 should be affirmed even though, as previously discussed, all of the multiple violations are not taken into account. A penalty was considered appropriate for Item 8 despite the apparent low level of gravity and small penalty, because the Respondent's Vice-President knew of the defective stepladder prior to the inspection but did not take effective [*31] steps to remove it from service. Each of the violations, which are described with particularity at Items 1, 4, 15, 18, 23, 24, 25 and 30 are of a low level of gravity and no penalty should be assessed for any of them.

As to Item 1, for which a $30.00 penalty is proposed, the material on the poor which is the basis for the charge of poor housekeeping, consisted primarily of empty bags, boxes and lumber accumulated as an incidence of the current day's manufacturing process and was customarily cleared up at the end of each work day. As to Item 4, consisting of four violations for which a $45.00 penalty is proposed, it is known that the opensided platforms were at least four feet above adjacent ground level but how much higher than four feet is not disclosed. It is known that there were guard railings along the platforms and that these railings were not enough to satisfy the applicable standard; but what was needed to bring the railing to standard is not clear in the record. Item 15 involves a radial saw with the guard temporarily removed and resting on the bench next to the saw. There is no evidence that the saw was used in this condition. Item 18 involves unguarded [*32] sprocket wheels and chains for which a penalty of $30.00 is imposed. The operation was such that only under special circumstances would any part of an employee get close enough to the involved mechanism to get caught in it. Item 23, with a recommended penalty of $30.00, involves the failure to cover free ends of wire, designed to carry 220 volts, with proper insulation. The wire in question came from a box which was not connected to an electrical source. The line was dead and additional wiring would have been required before anyone could be shocked. Item 24, for which a $30.00 penalty is proposed, involves a flexible cord lying on a wet floor but there is no evidence to indicate the type of insulation on the wire where it was in contact with the floor, nor that the insulation was defective or breaking down in any manner. Item 30 involves the use of flexible wire as a substitute for fixed wiring in a structure, in that a flexible cord to an overhead lamp was attached to the building surface and a flexible cord to the head bolt heater outlet was run under a door between two rooms. There is no evidence of other than minimal hazard connected with the use of the flexible cord. The [*33] violations alleged in Items, 1, 4, 15, 18, 23, 24, 25 and 30 have been abated. In the interest of encouraging voluntary compliance, no penalties should be imposed.

The Respondent is admonished that although Item 12 is vacated the responsibility for compliance with the appropriate standard is not diminished. Continuation of the present method of outside storage of bricks could result in the issuance of another citation.

In consideration of the entire record and of the proposed findings and brief submitted by the parties, the Judge makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. Respondent corporation is engaged in business in the mining of clay and in the manufacture and sale of clay tile and bricks.

2. Respondent operates a workplace at 1312 Lockwood Road, Billings Montana where it regularly receives materials and supplies from outside the State of Montana and where it employs some 40 employees.

3. On March 9, 1972, the Secretary's Area Director issued a citation charging Respondent with violations of the Act at the Billings workplace in 30 Items as set forth in Appendix A and notified the Respondent of proposed penalties as set [*34] forth in Appendix A. Respondent has contested the violations alleged in Item Numbers 1, 3, 4, 8, 12, 13, 15, 17, 18, 20, 21, 23, 24, 25 and 30 and the penalties proposed therefor.

4. On February 25, 1972, at its Billings plant, Respondent did not comply with standards promulgated by the Secretary, in the following respects:

(a) The water tank storage room and the east wall of the dryer lobby in the radial saw area were not kept clean and orderly, as required by 29 CFR 1910.22(a) [Item 1];

(b) Open-sided platforms four of more feet above adjacent surfaces were not guarded by standard railings at the brick tumbler platform, the kiln #2 stack platform, the platform to the outside kiln at the east wall of the dryer lobby, and the platform storage area at the south wall of the dryer lobby, as required by 29 CFR 1910.23(e) [Item 4];

(c) A metal stepladder at the north end of the kiln, east side, with a broken brace and bent rail was not taken out of service until repaired, as required by 29 CFR 1910.26(c) [Item 8];

(d) Powered industrial trucks (1) were left unattended, without the load engaging means fully lowered, controls neutralized, brakes set and key removed and (2) [*35] were not equipped with an overhead guard as protection against falling objects; all as required by 29 CFR 1910.178(m) [Item 13];

(e) The hood did not cover the blade of the radial saw at the east wall in the dryer lobby, as required by 29 CFR 1910.213(h) [Item 15];

(f) Pulleys seven feet or less from the working platform or floor were not guarded at the glazer and glazer exhaust stack in the brick storage building, as required by 29 CFR 1910.219(d) [Item 17];

(g) Sprocket wheels and chains seven feet or less from the floor or work platform on the glazer in the brick storage building were not completely guarded, as required by 29 CFR 1910.219(f) [Item 18];

(h) The bench grinder at the west wall of the dryer lobby was not secured to its bench; the temperature gradient furnace in the brick laboratory was not secured to its mounting surface; and a water pump with electric motor at the west entrance to the water tank room was not secured to the floor; all as required by 29 CFR 1910.210(f) [Item 21];

(i) At the brick laboratory still, electrical wires designed to be part of a 220 volt circuit had free ends which were not covered with insulation equivalent to that of the conductor, [*36] as required by 29 CFR 1910.210(h) [Item 23];

(j) A flexible cord connected to the silicone sprayer was lying on a wet floor without the cord being approved for that purpose, contrary to 29 CFR 1910.310(d) [Item 24];

(k) A pressure washer at the glazer in the brick storage building and a sump pump at the east side of the brick storage building were not grounded, as required by 29 CFR 1910.314(d) [Item 25];

(l) Flexible cords were used as substitutes for fixed wiring in the water tank room and at the north-east door of the dryer lobby, contrary to 29 CFR 1910.316(c) [Item 30].

5. Respondent has made the necessary corrections with respect to each instance of noncompliance described in paragraph 4 of these Findings of Fact.

6. At all times herein pertinent, Respondent has acted in complete good faith.

7. Respondent has no history of past violations.

CONCLUSIONS OF LAW

1. The violations alleged in Items 2, 5, 6, 7, 9, 10, 11, 14, 16, 19, 22, 26, 27, 28 and 29 of the Citation, not having been contested, have become the final order of this Commission and are not before this Judge for decision.

2. The Secretary has failed to sustain his burden of establishing that he had jurisdiction [*37] to issue a citation for the violations alleged in Item 3 of the Citation nor to include as part of Item 17 of the Citation the violation alleged in subparagraph (3) as having occurred at the grinding equipment system; and Item 3 and the described portion of Item 17 of the Citation should be vacated.

3. With respect to the matters described in the remaining portion of the Citation here under contest, the Respondent is engaged in a business affecting commerce and subject to the provisions of the Occupational Safety and Health Act of 1970, supra. With respect to such matters this Commission has jurisdiction of the parties and of the subject matter of the case.

4. Wih respect to Item 12 of the Citation, the Secretary has failed to prove that there has been a violation of the standard in 29 CFR 1910.176(c); and, therefore, Item 12 and the proposed penalty of $30.00 should be vacated.

5. With respect to Item 20 of the Citation, the Secretary has failed to comply with the provisions of Section 9(a) of the Act, supra, in that the Citation fails to describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, [*38] regulation or order alleged to have been violated; and, therefore, Item 20 and the $30.00 proposed penalty should be vacated.

6. Each of the instances of noncompliance set forth in paragraph 4 of the Findings of Fact herein, constitutes non-serious violation of a standard promulgated pursuant to section 6 of the Act and, therefore, subjects Respondent to the assessment of a civil penalty as provided in section 17(c) of the Act.

7. Giving due consideration to the appropriateness of the penalties with respect to the size of the business of Respondent, the gravity of the violation, the good faith of the employer, and the history of previous violations, the penalties proposed for Item Numbers 8, 13, 17, 21 and 25 should be affirmed and the penalties proposed for Item Numbers 1, 4, 15, 18, 23, 24 and 30 should be vacated.

ORDER

In view of the foregoing Findings of Fact and Conclusions of Law it is ORDERED:

(1) Item Numbers 3, 12 and 20 of the Citation issued March 9, 1972 and the penalties proposed therefor be, and they are hereby, vacated;

(2) That part of Item 17 of such Citation which alleges a violation at the grinding equipment system be, and it is hereby vacated; [*39]

(3) The language of Item Numbers 1, 4, 8, 13, 15, 17, 18, 21, 23, 24, 25 and 30 of such Citation be, and it is hereby modified to conform to that set forth in paragraph 4 of the Findings of Fact entered herein; and that such Items as so modified be, and they are hereby, affirmed;

(4) The penalties proposed in Notification of Proposed Penalty, issued March 9, 1972, for Item Numbers 8, 13, 17, 21 and 25 of such Citation be, and they are hereby, affirmed; and

(5) The penalties proposed in such Notification for Item Numbers 1, 4, 15, 18, 23, 24 and 30 be, and they are hereby, vacated.

APPENDIX A

Item

CFR

Proposed

No.

Reference

Description

Penalty

 1 (5)

Subpart "D"

29 CFR

Inadequate housekeeping at the fol-

1910.22(a)

lowing and other locations within

the plant and kilns:

(1) Water tank storage room -- wood

pallets, paper sacks, welder, etc.;

(2) Dryer lobby east wall -- cardboard

boxes, lumber scraps, etc., around

radial saw;

(3) Other locations (3).

$30.00

 2

Subpart "D"

29 CFR

Unguarded floor opening -- west wall,

1910.23(a)

south end of burner near pusher

motor for kiln.

none

 3

Subpart "D"

29 CFR

Wall opening into or from clay stor-

1910.23(b)

age area had a drop of more than

4 feet; door was not locked or barri-

caded.

30.00

 4 (4)

Subpart "D"

29 CFR

Open-sided platforms, 4 feet or more

1910.23(c)

above adjacent floor or ground level,

were not guarded by a standard rail-

ing or equivalent at the following

locations:

(1) Brick tumbler platform;

(2) Kiln No. 2 stack platform;

(3) Dryer lobby, east wall -- platform

to outside old kiln;

(4) Dryer lobby, south wall -- plat-

form storage area above dryer bins.

45.00

 5

Subpart "D"

29 CFR

Standard railings were not provided

1910.24(h)

on the open sides of stairs for plat-

form to the old kiln -- east wall of

dryer lobby.

none

 6

Subpart "D"

29 CFR

Step ladder nonslip rubber feet were

1910.26(a)

worn through -- east side of kiln.

none

 7

Subpart "D"

29 CFR

Portable wood ladder had broken

1910.25(d)

side rails and not tagged or marked

"Dangerous, not for use" -- east side

of kiln.

none

 8

Subpart "D"

29 CFR

Metal step ladder had a broken brace

1910.26(c)

and bent rail -- north end of kiln,

east side.

30.00

 9

Subpart "L"

29 CFR

Carbon-tetrachloride fire extinguish-

1910.157(b)

er, maintenance work bench, west

wall of dryer lobby.

none

10 (2)

Subpart "L"

29 CFR

Fire extinguisher setting on the floor,

1910.157(a)

kiln, No. 5 exhaust part. Fire ex-

tinguisher block by bricks, sixth

column from north end, brick storage

room.

none

11

Subpart "M"

29 CFR

Gage glass on the air compressor was

1910.169(b)

broken -- located in the brick lab.

none

12 (2)

Subpart "N"

29 CFR

Storage of pallets, bricks, water con-

1910.176(c)

tainer, etc., were not stable to pre-

vent sliding or collapse -- brick stor-

age room, east wall, south end. Bricks

stored on pallets three high; stacks

tilted from ground thawing -- outside

storage area.

30.00

13 (7)

Subpart "N"

29 CFR

Powered industrial trucks operating

1910.178(m)

and/or parked inside of brick storage

room did not comply with the fol-

lowing:

(1) Parked with load engaging means

not fully lowered;

(2) Placing pallets overhead without

protection for operator;

(3) Operators did not sound horns

at cross aisles;

(4) Parked with key not removed

and brakes not set.

65.00

14

Subpart "O"

29 CFR

Electric motor shaft not guarded --

1910.219(c)

kiln, west wall, south end.

none

15

Subpart "O"

29 CFR

Hood of radial saw was not com-

1910.213(m)

pletely enclosed -- dryer lobby, east

wall.

30.00

16

Subpart "O"

29 CFR

Emphasis was not placed upon the

1910.213(s)

importance of cleanliness (sawdust,

scrap lumber) around the radial saw

-- dryer lobby, east wall.

none

17 (7)

Subpart "O"

29 CFR

Pulleys and parts which were less

1910.219(d)

than 7 feet from the floor or working

platform were not guarded at the

following and other locations within

the plant:

(1) Brick storage building -- glazer;

(2) Brick storage building -- exhaust

motor in stack of glazer;

(3) Brick laboratory -- grinding

equipment system -- stored at south

wall of brick storage building.

65.00

18

Subpart "O"

29 CFR

Sprockets wheels and chains which

1910.219(f)

were less than 7 feet from the floor

or work platform were not guarded

on the glazer -- brick storage building.

30.00

19 (2)

Subpart "P"

29 CFR

Hand tool and equipment -- unsafe

1910.242(a)

condition. Rubber hammer-handle

was cracked, kiln unloading area.

Wheel broken on dryer cart, dryer

lobby area.

none

20 (2)

Subpart "Q"

29 CFR

(1) Cable within 10 feet of electrode

1910.252(b)

holder was bare -- Hobart welder,

maintenance area, dryer lobby; (2)

Welder had water dripping on it --

water tank storage room.

30.00

21 (3)

Subpart "S"

29 CFR

(1) Bench grinder was not secured to

1910.310(f)

the maintenance bench -- west wall,

dryer lobby;

(2) Temperature gradient furnace

was not secured to the surface on

which it was mounted -- brick labo-

ratory;

(3) Water pump with electric motor

was not secured to the floor -- water

tank room, west entrance.

30.00

22 (6)

Subpart "S"

29 CFR

Crusher hammers were stored around

1910.310(i)

the power supply cabinet and main

boxes -- water tank room, south wall.

none

23

Subpart "S"

29 CFR

220-volt wires had free ends -- were

1910.310(h)

not covered with an insulation equiv-

alent to that of the conductor for

the still in the brick lab.

30.00

24

Subpart "S"

29 CFR

Flexible cord lying on the wet floor

1910.310(d)

and connected to silicone sprayer.

30.00

25 (2)

Subpart "S"

29 CFR

The following equipment connected

1910.314(d)

by cord and plug was not grounded:

(1) Pressure washer -- brick storage

building, glazer;

(2) Sump pump -- brick storage build-

ing, east side.

30.00

26

Subpart "S"

29 CFR

Conductors entering box were sub-

1910.315(f)

ject to abrasion -- brick lab, east wall,

above air compressor.

none

27

Subpart "S"

29 CFR

Outlet box was lying on panel and

1910.315(l)

not secured to surface upon which

mounted -- brick lab, east wall, above

air compressor.

none

28 (6)

Subpart "S"

29 CFR

Covers were missing from pull boxes,

1910.315(n)

junction boxes and fitting at the

following and other locations within

the plant:

(1) Water tank room -- east side above

blender;

(2) Dryer lobby, south wall, near

lunch room.

none

29

Subpart "S"

29 CFR

Male plug end pulled loose from

1910.316(a)

flexible cord in the brick lab above

compressor.

none

30 (6)

Subpart "S"

29 CFR

Red flexible cord to overhead lamp

1910.316(c)

above the water tank was attached

to the building surface -- water tank

room. Flexible cord was run under

the northeast door of dryer lobby to

head bolt heater outlet.

Flexible cords or cables were used as

a substitute for fixed wiring in four

other locations within the plant.

30.00

[*40]

APPENDIX B

Item No. 12 Subpart N. 29 CFR 1910.176(c)

(c) Housekeeping. Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be exercised when necessary.

Item No. 20 Subpart Q. 20 CFR 1910.252(b)

(b) Application, installation, and operation of arc welding and cutting equipment -- (1) General -- (i) Equipment selection. Welding equipment shall be chosen for safe application to the work to be done as specified in subparagraph (2) of this paragraph. (ii) Installation. Welding equipment shall be installed safely as specified by subparagraph (3) of this paragraph. (iii) Instruction. Workmen designated to operate arc welding equipment shall have been properly instructed and qualified to operate such equipment as specified in subparagraph (4) of this paragraph.

(2) Application of arc welding equipment -- (i) General. Assurance of consideration of safety in design is obtainable by choosing apparatus complying with the Requirements for Electric Arc-Welding Apparatus, NEMA EW-1-1962, National Electric Manufacturers Association or the Safety Standard for Transpormer-Type [*41] Arc-Welding Machines, ANSI C33.2 -- 1956, Underwriters' Laboratories. (ii) Environmental conditions. (a) Standard machines for are welding service shall be designed and constructed to carry their rated load with rated temperature rises where the temperature of the cooling air does not exceed 40 degrees C. (104 degrees F.) and where the altitude does not exceed 3,300 feet, and shall be suitable for operation in atmospheres containing gases, dust, and light rays produced by the welding arc. (b) Unusual service conditions may exist, and in such circumstances machines shall be especially designed to safety meet the requirements of the service. Chief among these conditions are:

(1) Exposure to unusually corrosive fumes.

(2) Exposure to steam or excessive humidity.

(3) Exposure to excessive oil vapor.

(4) Exposure to flammable gases.

(5) Exposure to abnormal vibration or shock.

(6) Exposure to excessive dust.

(7) Exposure to weather.

(8) Exposure to unusual seacoast or shipboard conditions.

(iii) Voltage. Open circuit (No load) voltages of arc welding and cutting machines should be as low as possible consistent with satisfactory welding or cutting being done. The [*42] following limits shall not be exceeded:

(a) Alternating-current machines

(1) Manual arc welding and cutting -- 80 volts.

(2) Automatic (machine or mechanized) arc welding and cutting -- 100 volts.

(b) Direct-current machines

(1) Manual arc welding and cutting -- 100 volts.

(2) Automatic (machine or mechanized) arc welding and cutting -- 100 volts.

(c) When special welding and cutting processes require values of open circuit voltages higher than the above, means shall be provided to prevent the operator from making accidental contact with the high voltage by adequate insulation or other means. (d) For a.c. welding under wet conditions or warm surroundings where perspiration is a factor, the use of reliable automatic controls for reducing no load voltage is recommended to reduce the shock hazard.

(iv) Design. (a) A controller integrally mounted in an electric motor driven welder shall have capacity for carrying rated motor current, shall be capable of making and interrupting stalled rotor current of the motor, and may serve as the running overcurrent device if provided with the number of overcurrent units as specified by Subpart S of this part. Starters with magnetic [*43] undervoltage release should be used with machines installed more than one to a circuit to prevent circuit overload caused by simultaneously starting of several motors upon return of voltage. (b) On all types of arc welding machines, control apparatus shall be enclosed except for the operating wheels, levers, or handles. Control handles and wheels should be large enough to be easily grasped by a gloved hand. (c) Input power terminals, tap change devices and live metal parts connected to input circuits shall be completely enclosed and accessible only by means of tools. (d) Terminals for welding leads should be protected from accidental elctrical contact by personnel or by metal objects i.e., vehicles, crane hooks, etc. Protection may be obtained by use of: deadfront receptacles for plug connections; recessed openings with non-removable hinged covers; heavy insulating sleeving or taping or other equivalent electrical and mechanical protection. If a welding lead terminal which is intended to be used exclusively for connection to the work is connected to the grounded enclosure, it must be done by a conductor at least two AWG sizes smaller than the grounding conductor and the terminal [*44] shall be marked to indicate that it is grounded. (e) No connections for protable control devices such as push buttons to be carried by the operator shall be connected to an a.c. circuit of higher than 120 volts. Exposed metal parts of portable control devices operating on circuits above 50 volts shall be grounded by a grounding conductor in the control cable. (f) Auto transforemers or a.c. reactors shall not be used to draw welding current directly from any a.c. power source having a voltage exceeding 80 volts.

(3) Installation of arc welding equipment -- (i) General. Installation including power supply shall be in accordance with the requirements of Subpart S of this part. (ii) Grounding. (a) The frame or case of the welding machine (except engine-driven machines shall be grounded under the conditions and according to the methods prescribed in Subpart S, of this part. (b) Conduits containing electrical conductors shall not be used for completing a work-lead circuit. Pipelines shall not be used as a permanent part of a work-lead circuit, but may be used during construction, extension or repair providing current is not carried through threaded joints, flanged bolted [*45] joints, or caulked joints and that special precautions are used to avoid sparking at connection of the work-lead cable. (c) Chains, wire ropes, cranes, hoists, and elevators shall not be used to carry welding current. (d) Where a structure, conveyor, or fixture is regularly employed as a welding current return circuit, joints shall be bonded or provided with adequate current collecting devices and appropriate periodic inspection should be conducted to ascertain that no condition of electrolysis or shock, or fire hazard exists by virtue of such use. (e) All ground connections shall be checked to determine that they are mechanically strong and electrically adequate for the required current. (iii) Supply connections and conductors. (a) A disconnecting switch or controller shall be provided at or near each welding machine which is not equipped with such a switch or controller mounted as an integral part of the machine. The switch shall be in accordance with Subpart S of this part. Over-current protection shall be provided as specified in Subpart S of this part. A disconnect switch with overload protection or equivalent disconnect and protection means, permitted by Subpart S of [*46] this part, shall be provided for each outlet intended for connection to a portable welding machine. (b) For individual welding machines, the rated current-carrying capacity of the supply conductors shall be not less than the rated primary current of the welding machines. (c) For groups of welding machines, the rated current-carrying capacity of conductors may be less than the sum of the rated primary currents of the welding machines supplied. The conductor rating shall be determined in each case according to the machine loading based on the use to be made of each welding machine and the allowance permissible in the event that all the welding machines supplied by the conductors will not be in use at the same time. (d) In operations involving several welders on one structure, d.c. welding process requirements may require the use of both polarities; or supply circuit limitations for a.c. welding may require distribution of machines among the phases of the supply circuit. In such cases no load voltages between electrode holders will be 2 times normal in d.c. or 1, 1.41, 1.73, or 2 times normal on a.c. machine similar voltage differences will exist if both a.c. and d.c. [*47] welding are done on the same structure.

(1) All d.c. machines shall be connected with the same polarity.

(2) All a.c. machines shall be connected to the same phase of the supply circuit and with the same instantaneous polarity.

(4) Operation and maintenance -- (i) General. Workmen assigned to operate or maintain are welding equipment shall be acquainted with the requirements of subparagraphs (b), (d), (e), and (f) of this section; if doing gas-shielded arc welding, also Recommended Safe Practices for Gas-Shielded Arc Welding, A6.1-1966, American Welding Society. (ii) Machine hook up. Before starting operations all connections to the machine shall be checked to make certain they are properly made. The work lead shall be firmly attached to the work; magnetic work clamps shall be freed from adherent metal particles of spatter on contact surfaces. Coiled welding cable shall be spread out before use to avoid serious overheating and damage to insulation. (iii) Grounding. Grounding of the welding machine frame shall be checked. Special attention shall be given to safety ground connections of portable machines. (iv) Leaks. There shall be no leaks of cooling water, shielding gas [*48] or engine fuel. (v) Switches. It shall be determined that proper switching equipment for shutting down the machine is provided. (vi) Manufacturers' instructions. Printed rules and instructions covering operation on equipment supplied by the manufacturers shall be strictly followed. (vii) Electrode holders. Electrode holders when not in use shall be so placed that they cannot make electrical contact with persons, conducting objects, fuel or compressed gas tanks. (viii) Electric shock. Cables with splices within 10 feet of the holder shall not be used. The welder should not coil or loop welding electrode cable around parts of his body. (ix) Maintenance. (a) The operator should report any equipment defect or safety hazard to his supervisor and the use of the equipment shall be discontinued until its safety has been assured. Repairs shall be made only by qualified personnel. (b) Machines which have become wet shall be thoroughly dried and tested before being used. (c) Work and electrode lead cables should be frequently inspected for wear and damage. Cables with damaged insulation or exposed bare conductors shall be replaced. Joining lengths of work and electrode [*49] cables shall be done by the use of connecting means specifically intended for the purpose. The connecting means shall have insulation adequate for the service conditions.