LUNDELL MANUFACTURING COMPANY, INC.  

OSHRC Docket No. 714

Occupational Safety and Health Review Commission

January 31, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On November 7, 1972, Judge Alan M. Wienman issued his decision and order in this case, modifying the Secretary's citation for serious violation by ruling that it constitutes a non-serious violation and by decreasing the proposed penalty from $650 to $165, and affirming the Secretary's citation for nine non-serious violations and decreasing the total penalty from $1093 to $911.

On December 7, 1972, the Judge's decision and order were directed for review by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act").   The review was directed under the issue of whether the alleged violation of section 1910.106(b)(3)(iv) of Title 29, Code of Federal Regulations, was "serious" within the meaning of section 17(k) of the Act.

Section 1910.106(b)(3)(iv) relating to the venting of underground storage tanks, reads as follows:

(iv) Vents. (a) Location and arrangement of vents for class I liquids. Vent pipes from tanks storing class I liquids shall be so located that the discharge point is outside [*2]   of the buildings, higher than the full pipe opening, and not less than 12 feet above the adjecent ground level. Vent pipes shall discharge only upward in order to disperse vapors. Vent pipes two inches or less in nominal inside dismeter shall not be obstructed by devices that will cause excessive back pressure.   Vent pipe outlets shall be so located that   flammable vapors will not enter building openings, or be trapped under eaves or other obstructions.   If the vent pipe is less than ten feet in length, or greater than two inches in nominal inside diameter, the outlet shall be provided with a vacuum and pressure relief device or there shall be an approved flame arrester located in the vent line at the outlet or within the approved distance from the outlet.

The violation had been characterized by the Secretary of Labor's Area Director as being "serious" in the citation.   The description of the violation contained in the citation is as follows:

The vent pipe from the underground gasoline storage tank is less than the required 12 feet above the adjacent ground level, thus, preventing an adequate dispersion of flammable vapors. This condition subjects any person or persons [*3]   in the area to potential injury from fire and/or explosion in case of ignition. (Outside).

The vent pipe in question was six-feet seven-inches above the adjacent ground.   It was 75 feet away from the building.   Also, it was included in the center of a five-foot fenced area and an employee would normally not approach within two and one-half feet of the pipe. In addition, the respondent's testimony indicates that the vent pipe was guarded by a four-inch piece of heavy wall tubing anchored to the ground.   Upon learning of the violation, the respondent arranged to have the pipe modified within hours.   The pipe is now in excess of 12 feet. The respondent actively pursued a safety program with the assistance of his insurance carrier. The Secretary of Labor's Area Director testified in effect that if he knew at the time of the issuance of the citation what he knew at the time of the hearing, he would have afforded the respondent the maximum amount of "good faith" permitted under the Secretary of Labor's guidelines.

There would seem to be little or no doubt that serious physical harm to any exposed employees would   likely result from an ignition of the gasoline vapors. It   [*4]   seems to us, however, that in the instant case the likelihood of ignition and resulting harm to employees were exaggerated.   The exterior location of the pipe, the use of a guard, the distance of the vent pipe from the building, and the fact that no employees were on regular duty in the refueling area, all detract considerably from the persuasiveness of testimony of the compliance officer to the effect that the risk here was similar to that found in the "interior" of a paint booth.   Further, although we have no reason to doubt the accuracy of the general conclusion of one of the Secretary's witnesses that gasoline vapors from vent tanks are a high cause of industrial accidents, the statistics alluded to are not a part of this record, and we have no way of knowing how the facts giving rise to the statistics relate to those of the instant case.

Considering the record as a whole, we conclude that the vent pipe violation was technically "serious" within the meaning of section 17(k) because there is a substantial probability of serious physical harm ensuing from ignited gasoline vapors. Because of this, the Judge erred in concluding that the violation was not serious because he concluded [*5]   that there was no substantial probability of an accident occurring under the operative facts.   See, Secretary of Labor v. Baltz Brothers Packing Company Secretary of Labor v. Standard Glass and Supply Company, OSHRC Docket No. 585, April 27, 1973; Secretary of Labor v. Crescent Wharf and Warehouse Company, Secretary of Labor v. Natkin and Company, Mechanical Contractors,

We do, however, agree fully with the Judge that there was little likelihood of an accident occurring that   would be injurious to employees under the totality of the facts; e.g. the guarding of the pipe, the placing of the pipe within a five-foot fence area, the height of the vent pipe actually used, the distance of the pipe from the building, and the fact that there was no walkway closer than 25 feet from the pipe. The circumstances suggest that the "gravity" of the violation was moderate to low.

In addition, the "good faith" of the employer seems to have been underestimated, the testimony of one of the Secretary's witnesses in effect [*6]   concedes this.   The record indicates that the employer was safety conscious and had an active program that was being carried out with the cooperation of its insurance carrier. Accordingly, we conclude that only a nominal penalty should be assessed for the technically serious violation in the amount of $25.

It is ORDERED that the Judge's decision be modified in accordance with this opinion, that the citation for serious violation be affirmed and that respondent be assessed a penalty of $25.  

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I concur but, as I've indicated in prior decisions, there is no practical purpose to be achieved in distinguishing between a violation which is "serious" and one which is not.   See, for example, Secretary v. Portland Stevedoring Company, OSAHRC Cocket No. 5, July 25, 1973.   Consequently I take no position on this decision's discussion of that matter.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1973 (29 USC 651 et seq., hereafter   called the Act) contesting citations issued by the Complainant against the Respondent under [*7]   the authority vested in the Complainant by Section 9(a) of that Act.   The Citations allege on the basis of an inspection of a workplace under the ownership, operation or control of the Respondent, located at Cherokee, Iowa, that the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

Citations issued March 8, 1972, alleged two serious and nine non-serious violations of the Act.   One alleged serious violation was in reference to 29 CFR 1910.106(b)(3)(iv) which relates to the venting of underground storage tanks and provides:

"(iv) Vents. (a) Location and arrangement of vents for class I liquids. Vent pipes from tanks storings class I liquids shall be so located that the discharge point is outside of the buildings, higher than the full pipe opening, and not less than 12 feet above the adjacent ground level. Vent pipes shall discharge only upward to disperse vapors. Vent pipes two inches or less in nominal inside diameter shall not be obstructed by devices that will cause excessive back pressure.   Vent pipe outlets shall be so located [*8]   that flammable vapors will not enter buildings, or be trapped under eaves or other obstructions.   If the vent pipe is less than ten feet in length, or greater than two inches in nominal inside diameter, the outlet shall be provided with a vacuum and pressure relief device or there shall be an approved flame arrester located in the vent line at the outlet or within the approved distance from the outlet."

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 8, 1972, from Warren Wright, Area Director, Occupational Safety and Health Administration,   U.S. Department of Labor, that he proposed to assess the penalty for the aforesaid alleged violation in the amount of $650.

(The Respondent was also cited for a second alleged serious violation, referenced to 29 CFR 1910.107(c)(2).   However, at the hearing the Complainant announced that it had no evidence to present on this matter and was therefore dismissing this Citation and the allegations set forth in Paragraph IV (b) of the Complaint.)

The March 8, 1972, Citation for non-serious violations alleged that the Respondent violated the following standards [*9]   (cited as codified in the Code of Federal Regulations):

(1) 29 CFR 1910.219(d)(1) which requires the guarding of pulleys any part of which are seven feet or less from the floor or working platform:

(2) 29 CFR 1910.215(b)(3) which provides that the angular exposure of grinding wheel periphery and sides for safety guards used on machines known as bench and floor stands should not exceed 90 degrees or one-fourth of the periphery;

(3) 29 CFR 1910.157(a)(2) provides that fire extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire.   They shall be located along normal paths of travel;

(4) 29 CFR 1910.252(a)(2)(iv)(c) which requires oxygen cylinders in storage to be separated from fuel gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a non-combustible barrier at least five feet high having a fire resistance rating of at least one-half hour;

(5) 29 CFR 1910.177(e)(2) which requires that the maintenance and operation of electric, liquid, and gaseous fueled industrial trucks shall be in accordance   with Standard for the Use, Maintenance and Operation   [*10]   of Powered Industrial Trucks, NFPA No. 505-1969, parts B and C;

(6) 29 CFR 1910.37(q)(1) which requires that exits be marked by readily visible signs and the access to exits be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants;

(7) 29 CFR 1910.252(b)(4)(ix)(c) which provides that work and electrode lead cables should be frequently inspected for wear and damage, and cables with damaged insulation or exposed bare conductors be replaced.   Also, joining lengths of work and electrode cables shall be done by the use of connecting means specifically intended for the purpose, and connecting means shall have insulation adequate for the service conditions;

(8) 29 CFR 1910.252(b)(4)(ii).   However, this was stated to be a typographical error and the Complaint alleged a violation of 29 CFR 1910.252(c)(4)(ii) in its stead.   This regulation requires fire resistant curtains or suitable shields be set up around flash welding machines for the protection of the operators and nearby equipment; and

(9) 29 CFR 1910.179(m)(1)(ii) which requires a thorough inspection of all ropes, carefully noting any deterioration and making a determination [*11]   as to whether further use of the rope would constitute a safety hazard. Among other kinds of deterioration to be noted is: "A number of broken outside wires and the degree of distribution or concentration of such broken wires."

The Respondent was notified by letter dated March 8, 1972, from Warren Wright, Area Director, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess penalties for   the alleged non-serious violations in the following sums: Item No. 1, $195; Item No. 2, $195; Item No. 3, $42; Item No. 4, $130; Item No. 5, $88; Item No. No. 6, $98; Item No. 7, $52; Item No. 8, $195; and Item No. 9, $98.

By letter dated March 29, 1972, Respondent indicated its election to contest the amount of the proposed penalties. The Complaint and Answer were filed by the parties, and the case came on for hearing at Sioux City, Iowa, on August 30, 1972.   Respondent was represented by its Vice-President, Mr. Lyle E. Midland. No representative appeared on behalf of any employees.

THE ISSUES

The chief issue for resolution is whether the improper venting of an underground gasoline storage tank constituted a serious or a non-serious violation [*12]   of the Act, and the amount of the penalty, if any, appropriate for said violation.

A second issue relates to the appropriateness of the penalties proposed for the nine violations set forth on the Citation for non-serious violation.   This issue in turn depends on whether the Complainant gave due consideration to the employer's good faith in computing the proposed penalties.

SUMMARY OF THE EVIDENCE AND DISCUSSION

THE VENT PIPE ISSUE

Gale Lloyd Adams, OSHA Compliance Officer, testified that on the 23 or 24th of February, 1972, he inspected Respondent's plant at Cherokee, Iowa, and observed a pipe venting an underground storage tank in a refueling area located on the north side of the   plant.   The pipe appeared to be "somewhere in the neighborhood of five to six feet in height." During the closing conference he learned that the area was used for refueling company vehicles (Tr. 11).

In explaining the hazard presented by a vent pipe less than 12 feet in height, Mr. Adams stated that the area three feet around the end of the pipe was a Class I, Division I area where fumes or vapors were continuously present during normal operating conditions and that "the fire explosive potential [*13]   here would be similar to that you would find in the interior of a paint booth." He also stated that under certain temperature conditions there could be a siphoning action that would force raw gasoline to spill from the pipe (Tr. 12).

The 12-foot height requirement, he explained, placed the discharge end of the pipe away from any sources of ignition such as sparks from cleated shoes, vehicle exhaust, electrical ignition systems, lighted cigarettes, etc.   The 12-foot height also allowed for dilution of the concentration of flammable vapors (Tr. 12, 13).

On cross-examination Mr. Adams admitted that six feet, seven inches would be a reasonable estimate of the height of the pipe. He estimated that it was situated at a distance of 75 feet from the building.   No employees were on duty at the refueling area, but it was adjacent to an employee parking lot.   The exposure to employees was on an intermittent basis (Tr. 16).

Warren Wright, OSHA Area Director, testified that he classified the vent violation as serious "because of the hazard presented by the vapors from the gasoline vent at only approximately six feet, and the ignition sources for this are many" (tr. 18).   The hazard could result [*14]   in serious physical harm should the vapors ignite.

On cross-examination Mr. Wright stated that no regulation required that the vent pipe violation be classified   as serious, but it was a matter of judgment.   If it has been classified as a non-serious violation, he likely would have assessed a $600 or $700 unadjusted penalty before applying statutory reduction factors.   The proposed penalty then would have been approximately $250.

Mr. Wright also answered certain questions put by the Judge.   He stated that he considered both the gravity of any possible injury to an affected employee and the statistical probability of injury to employees in the area of the hazard. He added, "The hazards around gasoline storage -- this is the vapors from vent tanks -- are the second highest cause -- out of a study of 100,000 accidents they are the second highest.   The first highest is underground leakage" (Tr. 24).

Mr. Wright was also asked to assume that the vent pipe was placed in the center of a five-foot fenced area and an employee would normally not approach within two-and-a-half feet of the pipe. He replied that this factor would not change his thinking too much "because if a person [*15]   even smoking a cigarette two-and-a-half feet away from this vent pipe as a source of ignition could have ignited fumes" (Tr. 26).

Mr. Lyle E. Midland, Respondent's Vice-President, testified that the vent pipe at the time of the inspection was six feet, seven inches high and located approximately 75 feet from the building.   The entire vent and pump area was enclosed in a rectangle which he estimated would keep an employee approximately two-and-a-half feet away from the pipe. The equipment was the property of the Texaco Company, and Respondent was not permitted to modify or maintain the equipment.   The pipe is situated adjacent to a parking lot.   Employees pass by it to and from work but there is no sidewalk which causes them to walk closely to it.   They can walk 25 feet away much easier than they can   two-and-a-half feet away (Tr. 29).

After learning of the violation, Respondent notified Texaco and within hours the pipe was modified.   It is now in excess of 12 feet.

Mr. Midland also testified that Respondent had consistently received good reports from the State of Iowa on its safety program and consistently insisted that its insurance company help in administering and   [*16]   furnishing material for safety programs (Tr. 31, 32).

Introduced in evidence is Respondent's Exhibit No. 1, a letter from Employer's Insurance of Wausau, summarizing a number of safety surveys conducted at Respondent's plant during the period from August 10, 1970, through March 1, 1972.

This testimony clearly established a violation of the safety regulation codified in 29 CFR 1910.106(b)(3)(iv).   The vent pipe from the underground gasoline storage tank on the day of the inspection, according to Respondent's own admission, was six feet, seven inches above the adjacent ground level. This condition created a fire and explosion hazard, and the question is whether the hazard was sufficiently likely to result in serious physical harm or death to justify classification as a "serious violation" within the meaning of Section 17(k) of the Act.

The undersigned Judge is not persuaded the Complainant has carried its burden of proof in this regard.   As correctly understood by the OSHA area director, the phrase "substantial probability that death or serious physical harm could result" is dependent on two elements: (1) the likelihood or probability that an accident could occur as a result of the [*17]   violation, and (2) the severity of the injury likely to result if an accident occurred.   To find a serious violation, the Secretary has the burden of proving not only the violation but the "substantial probability of death or serious injury." It is   not sufficient to show that death or serious injury "could" result from the condition cited.   And the mere existence of the standard, i.e., its promulgation as a regulation, does not itself establish the seriousness of the danger.

The interpretation and application of the statutory language in Section 17(k) is no easy task since "substantial" is one of the most elusive words in the legal lexicon.   A useful discussion of Section 17(k) appears in the Decision issued by Judge James D. Burroughs in Secretary of Labor v. Emery H. Nixon,   Judge Burroughs wrote:

"The phrase 'substantial probability' . . . must be considered to have reference to those situations where there is a very real likelihood of an accident resulting in which an employee is likely to be killed or suffer serious physical harm . . .   The likelihood of such an event occurring should not be a mere conjectural probability but one based [*18]   on evidence . . .   The evidence must be sufficient to incline the mind to believe that death or serious physical harm will occur rather than disbelieving the occurrence of such a happening."

In the instant case we do not require the Complainant to demonstrate with precise statistical tables the relationship between vent pipe length and incidence of fire and/or explosion, but there should be sufficient evidentiary input to "incline the mind" to the belief that there is a real likelihood of an accident under the particular conditions existing at the work site.   The critical area, according to Mr. Adams' testimony, is an area three feet around the discharge end of the pipe. The pipe herein was situated in an open area within a five-foot rectangular fence; the vent terminated at a point above the ordinary man's height. Mr. Adams referred to possible sources of ignition such as sparks from cleated shoes, vehicle exhaust, and lighted cigarettes.   The probabilities vary, but it would certainly be a remote and statistically improbable occurrence for a spark from a shoe cleat to ignite fumes emitted from an open pipe at a height of six feet, seven inches.   The compliance officer's [*19]   testimony that "the fire and explosion potential here would be similar to that you would find in the interior of a paint booth" strike us as an exaggerated analogy.   He expressly ignored the dilution factor he elsewhere cited as a reason for the 12-foot requirement.

Mr. Wright's testimony referring to a study of hazards related to gasoline storage also missed the mark being much too general to "incline the mind" to the belief that the instant fact situation was in fact likely to cause the death or serious injury of an employee.

The violation proven in this case has a direct or immediate relationship to occupational safety and health, but a serious violation is not established within the meaning of the Act.   Accepting Mr. Wright's testimony that he likely would have assigned an unadjusted penalty of from $600 to $700 if the violation were viewed as "non-serious," we believe that a penalty in the sum of $165 is appropriate in view of the Respondent's good faith, size, safety history and prompt abatement action.   The exact computation method employed will be discussed in subsequent paragraphs.

THE PROPOSED PENALTIES

Respondent in its Answer made no issue of the amount of the penalties [*20]   proposed for the nine non-serious violations alleged in paragraphs IV(b) through IV(k) of the Complaint.   However, in explaining the method employed in computing the proposed penalties, Warren Wright, OSHA Area Director, stated that he allowed the Respondent only a 10% reduction factor   for "good faith," because there was no evidence of a good on-going safety program (Tr. 20).

When informed that the Respondent has a safety program that was being actively pursued with the cooperation of its insurance carrier, Employers Mutual of Wausau, Mr. Wright stated that he probably would have allowed a 20% good faith penalty adjustment factor had he known of the safety program.   The undersigned Judge thereupon requested that Mr. Wright recompute the proposed penalties for all non-serious violations employing a 20% good faith factor.

On the basis of the new computations the appropriate penalties for the non-serious violation items are as follows: Item No. 1, $165; Item No. 2, $165; Item No. 3, $33; Item No. 4, $110; Item No. 5, $68; Item No. 6, $82; Item No. 7, $41; Item No. 8, $165; and Item No. 9, $82.

As heretofore indicated, a Finding that the violation of 29 CFR 1910.106(b)(3)(iv)   [*21]   is a non-serious rather than a serious violation meriting an unadjusted penalty of $600 results in a proposed penalty of $165 after application of statutory adjustment factors (good faith, size and history) totaling 45% and an additional 50% abatement credit.

FINDINGS OF FACT

(1) Lundell Manufacturing Company, Inc., on February 23 and 24, 1972, was engaged in the operation of a manufacturing plant in Cherokee, Iowa.

(2) On February 23 and 24, 1972, an authorized representative of the Secretary of Labor inspected the manufacturing plant owned and operated by Respondent in Cherokee, Iowa, and as a result the Area Director of the Omaha area office of Region 7 of the Occupational Safety and Health Administration on March   8, 1972, issued to Respondent two Citations for serious violations and a Citation for other than serious violations pursuant to Section 9(a) of the Act.

(3) By letter dated March 29, 1972, addressed to Warren Wright, Area Director, Occupational Safety and Health Administration, Respondent, by its Attorney, John H. Cook, gave notice of its intention to contest the proposed assessment of penalties for violations set forth on all three Citations.

(4) A Complaint [*22]   was filed by the Secretary of Labor on April 10, 1972, and Respondent filed an Answer wherein it admitted paragraphs I, II, and III of the Complaint, thereby admitting that it was an employer within the meaning of, and subject to, the Act.   Also by its Answer, Respondent indicated that it would not contest the nine penalties proposed in the Citation for other than serious violations.

(5) At the hearing on August 30, 1972, the Secretary's Attorney stated that he had no evidence to present with respect to the Citation for Serious Violation No. 2.

(6) The evidence with respect to Serious Violation No. 1 revealed that on the dates of the inspection there was a vent pipe leading from an underground gasoline storage tank with a discharge opening approximately six feet and seven inches above the adjacent ground level. The storage tank, gasoline pumps and the vent pipe were approximately 75 feet from Respondent's building.   The pumps and the vent pipe were enclosed by a fence described as a five-foot rectangular area.

(7) The evidence established a violation of the safety regulation codified as 29 CFR 1910.106(b)(3)(iv)(a) which requires the discharge point of vent pipes to be not less [*23]   than 12 feet above the adjacent ground level; but the evidence failed to establish that there was substantial probability that death or serious physical harm   could result from the condition within the meaning of Section 17(k) of the Act.

(8) The evidence established that the Respondent had been engaged in an ongoing safety program with the cooperation of its insurance carrier and was entitled to a 20% reduction credit for good faith in the computation of all proposed penalties.

CONCLUSIONS OF LAW

(1) At all times involved in this matter, the Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and the Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein pursuant to Section 10(c) of the Act.

(2) Section 5(a)(2) of the Act (29 USC 654(a)(2)) imposed a duty on Respondent to comply with the safety and health regulations promulgated by the Secretary of Labor pursuant to Section 6(a)(2) of the Act.

(3) Respondent violated Section 5(a)(2) of the Act on February 23 and 24, 1972, by its non-compliance with Occupational Safety and Health Regulation 29 [*24]   CFR 1910.106(b)(3)(iv)(a).   Said violation constituted a non-serious violation of the Act, and under the circumstances a proposed penalty of $165 is reasonable and appropriate giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous safety history and its prompt efforts to abate the condition.

(4) On February 23 and 24, 1972, Respondent also violated Section 5(a)(2) of the Act by its non-compliance with the following Occupational Safety and Health regulations, as follows:

  (a) 29 CFR 1910.219(d)(1) as described in Item 1 of the Citation for non-serious violations.   A penalty of $165 is appropriate.

(b) 29 CFR 1910.215(b)(3) as described in Item 2 of the Citation for non-serious violations.   A penalty of $165 is appropriate.

(c) 29 CFR 1910.157(a)(2) as described in Item 3 of the Citation for non-serious violations.   A penalty of $33 is appropriate.

(d) 29 CFR 1910.252(a)(2)(iv)(c) as described in Item 4 of the Citation for non-serious violations.   A penalty of $110 is appropriate.

(e) 29 CFR 1910.177(e)(2) as described in Item 5 of the Citation for non-serious violations.   [*25]   A penalty of $68 is appropriate.

(f) 29 CFR 1910.37(q)(1) as described in Item 6 of the Citation for non-serious violations.   A penalty of $82 is appropriate.

(g) 29 CFR 1910.252(b)(4)(ix)(c) as described in Item 7 of the Citation for non-serious violations.   A penalty of $41 is appropriate.

(h) 29 CFR 1910.252(b)(4)(ii) as described in Item 8 of the Citation for non-serious violations.   A penalty of $165 is appropriate.

(i) 29 CFR 1910.179(m)(1)(ii) as described in Item 9 of the Citation for non-serious violations.   A penalty of $82 is appropriate.

ORDER

Based on the above Finding of Fact and Conclusions of Law, it is ordered that:

(1) Items 1 through 6, inclusive, of the Citation for non-serious violations issued Respondent on March 8, 1972, are hereby affirmed and a total penalty of $911 is hereby assessed for said violations.

  (2) A Citation for serious violations of Safety Regulation 29 CFR 1910.106(b)(3)(iv) is hereby modified to constitute a non-serious violation of the Act and a penalty of $165 is assessed for said non-serious violation.

(3) The Citation for serious violation of Safety Regulation 29 CFR 1910.107(c)(2) and the penalty proposed for said alleged [*26]   violation are hereby vacated.