Docket No. 7370

W. N. COUCH CONSTRUCTION COMPANY

OSHRC Docket No. 7370

Occupational Safety and Health Review Commission

April 2, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

W. N. Couch, President, W. N. Couch Construction Co., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 8, 1974, respondent, W. N. Couch Construction Co., was issued a citation alleging four violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as the "Act"]. The citation was issued by complainant, the Secretary of Labor, following an inspection of respondent's worksite on February 14, 1974.

A hearing was held before Administrative Law Judge William J. Risteau following respondent's timely notice of contest to all four items of the citation and their corresponding proposed penalties. In a decision dated October 1, 1974, Judge Risteau affirmed the alleged violations of the standards at 29 CFR § § 1926.100(a) and 1926.150(c)(1)(vi) [hereinafter § § 1926.100(a) and 1926.150(c)(1)(vi)] and vacated the alleged violations of 29 CFR § 1926.652(b) and (e) [hereinafter § 1926.652(b) and (e)]. The Judge assessed no penalties for either of the two violations affirmed. n1 [*2]

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

n1 The Secretary had proposed no penalty for the § 1926.100(a) item and a $35 penalty for the § 1926.150(c)(1)(vi) item.

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

Complainant petitioned the Commission for review of the Judge's decision. He asserted that it was error to vacate the citations alleging a failare to comply with § 1926.652(b) and (e) and to assess no penalty for the violation of § 1926.150(c)(1)(vi). The petition was granted, and review was directed pursuant to section 12(j) of the Act.

We have examined the evidence relating to an appropriate penalty for the § 1926.150(c)(1)(vi) n2 violation and affirm the Judge's assessment of no penalty for this item. It was shown that respondent had on its jobsite a truck equipped with a diesel fuel tank, capable of holding 25 to 50 gallons of fuel, which it used to refuel its backhoe. During his inspection the Secretary's compliance officer observed that, while there was fuel in the refueling tank, there was no portable fire extinguisher accessible within 50 feet of the truck, as the standard requires. [*3]

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

n2 This standard provides:

§ 1926.150 Fire protection.

* * *

(1) Fire extinguishers and small hose lines.

* * *

(vi) A fire extinguisher, rated not less than 10B, shall be provided within 50 feet of wherever more than 5 gallons of flammable or combustible liquids or 5 pounds of flammable gas are being used on the jobsite. This requirement does not apply to the integral fuel tanks of motor vehicles.

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

There was no significant dispute as to this evidence. Rather, respondent asserted that it had equipped the refueling truck with fire extinguishers in the past but such articles often disappeared after they were placed on the truck. Taking note of respondent's good faith attempts to comply with the standard, Judge Risteau concluded that it would be inappropriate to assess any penalty for the violation of § 1926.150(c)(1)(vi).

In his brief, complainant urges that it was error to refuse to assess the $35 penalty he proposed for this violation. Rather, he argues that [*4] some penalty should be assessed since this violation might have resulted in severe injuries to an employee if the fuel tank ignited during refueling operations.

We are not unmindful of the relatively high gravity asserted by complainant. Judge Risteau, however, based his decision not to assess a penalty primarily on his finding that respondent had evinced a good faith attempt to maintain a fair extinguisher on the truck. It was within the Judge's discretion to accord substantial weight to the good faith element in section 17(j) of the Act. n3 See Nacirema Operating Co., Inc., 1 OSAHRC 33, 1 BNA OSHC 1001, 1971-73 CCH OSHD para. 15,032 (No. 4, February 2, 1972). We hold that the assessment of no penalty for the the § 1926.150(c)(1)(vi) violation is appropriate and, therefore, affirm the Judge. n4

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

n3 Section 17(j) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

n4 We do not, however, agree with the Judge's application of J.E. Chilton Millwork & Lumber Co., Inc., 1 OSAHRC 307, 1 BNA OSHC 1034, 1971-73 CCH OSHD, para. 15,069 (No. 123, May 15, 1972) to the facts of this case.

In Chilton the Commission announced that small monetary penalties would not be assessed in those cases where their imposition did not further the objectives of the Act. Assuming arguendo the validity of this policy, it has no application in cases such as this where the gravity of the violation is high. Hydroswift Corp., 1 OSAHRC 921, 1 BNA OSHC 1065, 1971-73 CCH OSHD para. 15,275 (No. 591, October 27, 1972).

[*5]

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

Complainant also takes exception to the Judge's vacating the two items of the citation alleging noncompliance with the standards at § 1926.652(b) and (e). We find merit in the complainant's arguments and, for the reasons set forth below, reverse the Judge and affirm both items.

The pertinent standards read as follows:

§ 1926.652 Specific trenching requirements.

* * *

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

* * *

(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

In vacating both items, the Judge held that complainant failed to show that respondent's employees observed in the trench were exposed to a significant hazard by reason of a possible cave-in. [*6] Inasmuch as the evidence shows a complete absence of any precautions to secure against the trench's collapse, the issue in this case is whether the evidence shows the applicability of the standards to the cited trench. Judge Risteau held that § 1926.652(b) and (e) were not shown to apply. Specifically, he held that complainant failed to show that the unstable material comprising one trench wall extended below five feet in depth. We disagree with the Judge's interpretation of § 1926.652(b).

Judge Risteau held that in order to show a violation of § 1926.652(b) complainant must establish that soft or unstable soil extended to a depth of five feet or more. We reject the Judge's interpretation of the standard.

It was beyond dispute that the total depth of the trench in this case was 11 feet and that one wall of the trench consisted of backfill to a depth of at least 4 1/2 feet. Complainant argues that § 1926.652(b) requires appropriate protection as long as the trench is five feet or more in depth and there is any amount of soft or unstable soil comprising a trench wall. In other words it is argued that the words "5 feet or more in depth" in § 1926.652(b) modify the term [*7] "sides of trenches" rather than the term "unstable or soft soil".

While both the reading of the Judge and that urged by complainant find support in the wording of the standard, we find that complainant's construction is more reasonable in light of the standard's objective of protecting employees in trenches from the dangers of soil sloughing off trench walls. The full text of § 1926.652, notably the grammatical structure of paragraph (c), also supports this reading. Where, as in this case, employees are working in a trench that is 11 feet deep and are exposed to the danger of at least 4 1/2 feet of unstable soil collapsing on them, we hold that the hazard is cognizable under § 1926.652(b). The standard requires an employer to slope or shore all soft or unstable constituents of trench walls so long as the trench is five feet or more in depth. n5

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

n5 We note, however, that there may be instances when the soft or unstable portion is so shallow that it is insignificant. Clearly, that is not the situation in this case.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - [*8] - -

We conclude, therefore, that the facts as found by the Judge show a failure to comply with § 1926.652(b). n6

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

n6 In his brief, complainant also takes issue with the Judge's finding that the soft or unstable constituents extended to a depth of "at most five feet" rather than 6 1/2 feet as urged by complainant. In light of our interpretation of § 1926.652(b), we do not reach this issue. See note 5 supra and accompanying text.

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

As noted above, Judge Risteau vacated the § 1926.652(e) item, as well as the § 1926.652(b) item, on the grounds that complainant failed to show that there was a trench wall of unstable soil five feet or more in depth. It was error for the Judge to read § 1926.652(e) so as to require proof that the wall of a cited trench be comprised of five feet or more of soft or unstable soil.

By its terms the standard is clear. Additional precautions by way of shoring and bracing must be taken if a trench is adjacent to backfilled excavations or is subject to ground vibrations from any source. [*9] Nowhere in § 1926.652(e) is there a requirement that the walls of a trench be of any particular composition.

Unrebutted testimony and photographic exhibits show that the trench was adjacent to backfilled excavations, that it ran up to a heavily travelled road, and that a backhoe was being operated near the edge of the trench. Inasmuch as it was also shown that respondent took no additional precautions to protect against slides or cave-ins, a failure to comply with § 1926.652(e) was shown.

Based on the foregoing, we reverse Judge Risteau, and affirm the citation alleging a failure to comply with the standards at § 1926.652(b) and (e).

Complainant proposed penalties of $100 and $35 for the violations of § 1926.652(b) and (e), respectively. Although the evidence shows that some soil had already sloughed off the trench wall, complainant concedes that the probability of a cave-in with serious consequences was relatively low. We, therefore, find that the gravity of both violations is law. On the other hand the record indicates that, although respondent conducts a relatively small business, it had been cited on four previous occasions for violations of the Act. Balancing these considerations, [*10] we deem the proposed penalties appropriate.

Accordingly, it is ORDERED that:

(1) The assessment of no penalty for violation of § 1926.150(c)(1)(vi) is affirmed.

(2) The vacating of the citation for violation of § 1926.652(b) is reversed. The citation is affirmed and a $100 penalty is assessed.

(3) The vacating of the citation for violation of § 1926.652(e) is reversed. The citation is affirmed and a $35 penalty is assessed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

The disposition of this case as ordered in Judge Risteau's decision, which is attached hereto as Appendix A, was correct and should be affirmed in all respects. Accordingly, I agree with the assessment of no penalty for the respondent's failure to comply with the occupational safety standard codified at 29 C.F.R. § 1926.150(c)(1)(vi) and disagree with the majority's reversal of the charges that were vacated by Judge Risteau.

Judge Risteau interpreted 29 C.F.R. § 1926.652(b) to require shoring, sheeting, bracing, sloping, or other support only if there was five feet or more of soft or unstable soil in the trench regardless of the total depth. The majority interpret [*11] the standard to require these protective measures in any trench more than five feet in depth which contains any amount of soft or unstable soil. They concede, however, "that there may be instances when the soft or unstable portion is so shallow that it is insignificant." In other words, Messrs. Barnako and Cleary will let employers know after they have been cited for a violation whether section 1926.652(b) applies to their trenches. Obviously, this does not foster the remedial purposes of the Act. If the Secretary of Labor agrees with my colleagues, he should have promulgated a standard which clearly enunciated that interpretation so that employers would not have to speculate as to what is required of them.

In remedial legislation, vagueness of a regulation on its face is not a sufficient basis in and of itself for dismissing a citation. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S. Ct. 594, 600 (1963). Rather, standards promulgated thereunder must also be judged "in light of the conduct to which it is applied." Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 872 (10th Cir. 1974).

The court in Ryder Truck Lines, Inc. [*12] v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974), noted that so long as the standard affords a reasonable warning of the proscribed conduct, it will pass constitutional muster. This conduct is judged in light of whether "a reasonably prudent person familiar with the circumstances of the industry would have protected against the hazard" in the manner charged. Cape and Vineyard Division of New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148, 1152 (1st Cir. 1975).

The complainant's evidence fails to establish that such a person would agree with the Barnako-Cleary interpretation. Furthermore, I conclude that most reasonable people would agree that the standard was not applicable in the instant situation. This conclusion is supported by Judge Harris' decision in Secretary v. Pizzagalli Corporation, 8 OSAHRC 475, 478 (1974) where he stated:

"[T]he distance from the top of the rock layer, which formed the lower part of the trench to the surface of the roadway was a distance less than 5 feet. There is no standard which requires shoring, bracing, sheeting or sloping the wall of a trench cut in rock. I must therefore find that 29 C.F.R. § 1926.652(b) is not applicable [*13] since the sides of the trench in question, which are cut in soil other than rock, are less than 5 feet in depth."

Thus, Judge Harris properly found that the depth of the soft and unstable soil - not the total depth of the trench - triggers the requirements of the § 1926.652(b) standard.

Since it was not established that section 1926.652(b) or any other standard required respondent to implement any protective measures in its trench, there can be no violation of 29 C.F.R. § 1926.652(e). That standard requires "[a]dditional precautions by way of shoring or bracing" when the conditions enumerated therein exist. (Emphasis added.)

Of course, the use of the words "additional precautions" presupposes that other precautions are required by another standard. This observation was also made by Judge Martin in Secretary v. Weaver Construction Co., 16 OSAHRC 677, 683 (1975), when he stated:

"Since it has not been shown that the trench was in soft or unstable material it was not necessary for respondent to brace, shore, or sheet the sides of the trench; therefore, it would be difficult to state that 'additional' precautions should have been taken on the trench in question to protect [*14] employees from vibrations or backfilled excavations."

Judge Kennedy appears to have decided Secretary v. M-CO Equipment Company, Inc., 15 OSAHRC 835, 838, 846-847 (1975), on substantially the same interpretation. There is good reason to support such an interpretation of section 1926.652(e). Where a trench is dug in rock or shale, as was the one in this case, the Secretary of Labor's regulations do not require the implementation of protective measures. 29 C.F.R. § 1926.652, Tables P-1 and P-2. Obviously, this is because there is no danger of cave-ins where a trench is located in these materials. If the Secretary had intended that his regulations should be different under the peculiar circumstances of this case, it would have been an easy matter for him to have said so in his regulations. Since he has not seen fit to do so the standard must be interpreted in accordance with the terminology employed therein. This was done by Judge Risteau in this case and the result he reached was correct. His decision should be affirmed.

Appendix A

DECISION AND ORDER

Jack F. Ostrander, for the Secretary of Labor

Mr. W. N. Couch, Proprietor, for the Respondent

RISTEAU, Judge

[*15] STATEMENT OF THE CASE

This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter 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 an inspection on February 14, 1974, of a workplace under the ownership, operation or control of the respondent, located at 51st Street and Sheridan, Tulsa, Oklahoma, and described as "Trenching and Excavating," respondent 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.

The citation, which was issued on March 8, 1974, alleges that the violations resulted from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1926. The description of the alleged violations contained in said citation states:

NONSERIOUS VIOLATIONS

Item No.	Standard	Description
1	29 CFR	Employees working in areas where there was a
	1926.100(a)	possible danger of head injury were not protected
		by protective helmets; i.e., employees working in
		manhole without hard hats.

2	29 CFR	A fire extinguisher, rated not less than 10B, was
	1926.150(c)	not provided within 50 feet of wherever more than
	(1)(vi)	5 gallons of flammable or combustible liquids or
		5 pounds of flammable gas was being used on the
		jobsite; i.e., no fire extinguisher where equipment
		was refueled.

3	29 CFR	Sides of trenches in unstable or soft material,
	1926.652(b)	5 feet or more in depth, were not shored, sheeted,
		braced, adequately sloped, nor otherwise supported
		by means of sufficient strength to protect the
		employees working within them; i.e., trench running
		southwest from manhole.

4	29 CFR	Additional precautions by way of shoring and
	1926.652(e)	bracing were not taken to prevent slides or cave-
		ins when excavations or trenches were made in
		locations adjacent to backfilled excavations, or
		where excavations are subjected to vibrations
		from railroad or highway traffic, the operation
		of machinery or any other source; i.e., trench
		running southwest from manhole.

[*16]

The standards promulgated by the Secretary provide as follows:

Item No.	Standard	Description
1	1926.100	(a) Employees working in areas where there is a
		possible danger of head injury from impact, or
		from falling or flying objects, or from electri-
		cal shock and burns, shall be protected by
		protective helmets.

2	1926.150	(c) Portable firefighting equipment -- (1) . . . .
		(iv) A fire extinguisher, rated not less than
		10B, shall be provided within 50 feet of wherever
		more than 5 gallons of flammable or combustible
		liquids or 5 pounds of flammable gas are being
		used on the jobsite. This requirement does not
		apply to the integral fuel tanks of motor
		vehicles.

3	1926.652	(b) Sides of trenches in unstable or soft material,
		5 feet or more in depth, shall be shored, sheeted,
		braced, sloped, or otherwise supported by means of
		sufficient strength to protect the employees work-
		ing within them. . . .

4	1926.652	(e) Additional precautions by way of shoring and
		bracing shall be taken to prevent slides or cave-
		ins when excavations or trenches are made in
		locations adjacent to backfilled excavations, or
		where excavations are subjected to vibrations from
		railroad or highway traffic, the operation of
		machinery, or any other source.

[*17]

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified by letter dated March 8, 1974, from J. T. Knorpp, Director of Area 4780, Occupational Safety and Health Administration (OSHA), United States Department of Labor, that he proposed to assess penalties for the violations alleged in the following amounts:

NONSERIOUS VIOLATION:	Item No. 1
	Item No. 2	35
	Item No. 3	100
	Item No. 4	35

Total	$170

After respondent contested this enforcement action and a complaint had been filed, the case came on for hearing at Tulsa, Oklahoma, on July 23, 1974. No question concerning the respondent's status as an employer as defined in the Act or the jurisdiction of this Commission has been raised. n1

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

n1 This Judge does not consider that respondent's letter of July 12, 1974, constituted a timely response to the jurisdictional allegations in the complaint dated April 15, 1974. Such allegations are taken as admitted under Rule 33(b)(2), Rules of Procedure.

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

DISCUSSION [*18]

The dispute here relates almost entirely to Items 3 and 4 of the citation, dealing with the stability of a trench which was being excavated at the workplace. The dimensions of the trench were agreed by the parties to be about 23 feet long by 6 1/2 feet wide by approximately 11 feet deep (Tr. 24, 27, 59; Ex. C-8). It was also agreed that the wall of the east side and bottom of the trench were of solid shale or rock (Tr. 25, 28, 46, 53-59; Ex. C-8). There was, however, disagreement concerning the distance which the shale extended up the west side. On the basis of the appearance of the soil, complainant's inspector testified that the trench wall consisted of rock from the bottom to a point 6 1/2 feet below ground level, with fill dirt above (Tr. 29, 53-56, 59; Ex. C-8). Respondent, n2 however, having previously laid a pipeline in the same area, stated that the wall was rock up to approximately 5 feet or less from the ground (Tr. 68-73, 81-84).

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

n2 Mr. W. N. Couch, the firm's President and principal executive, will be referred to as respondent herein.

- - - - - - - - - - - - - - - - -End Footnotes- [*19] - - - - - - - - - - - - - - - -

Since respondent's direct experience acquired by digging out the soil in the trench would appear to be more reliable than the inspector's observation of the wall from a distance, n3 it must be concluded that the west wall of the trench consisted of fill dirt only to a depth of at most five feet rather than 6 1/2 feet. The trench was, therefore, considering this aspect of the evidence alone, somewhat more stable than one having characteristics described in the inspector's testimony. n4

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

n3 Exhibit C-6, taken from about the same point where the inspector made his observations, does not in the eyes of the undersigned, illustrate any clear demarcation between differing soil strata in the trench wall.

n4 It should be noted here that a trench having rock or shale walls is not required to be sloped, (29 CFR 1926.652, Table P-1) and that the inspector did not consider, on the basis of the 6 1/2 foot figure, that there would be enough dirt falling into the trench in the event of a cave-in to cause serious injury (Tr. 40-41, 43, 46-47).

- - - - - - - - - - - - - - - - -End [*20] Footnotes- - - - - - - - - - - - - - - - -

Other factor also weaken complainant's case. Respondent testified that when the earlier line had been put in, the entire area had been in solid rock (Tr. 67-68, 90). He further stated that the fill dirt used at that time extended only for a very short distance to the west of the trench wall (Tr. 74-75, 97-98; Ex. R-1). Complainant offered no evidence on this point, and it is not established in this record that respondent's employees were exposed to significant hazard by reason of a possible cave-in as charged in Item 3 and 4 of the citation.

Respondent admitted that one of his men in the trench was not wearing a "hard hat" as charged in Item 1 of the citation (Tr. 77). This Item should therefore be affirmed, as should the zero penalty, which is based on the low gravity of the violation.

Respondent also admitted that there was probably not a fire extinguisher in his truck (Item 2) although he had placed one there in the past (Tr. 77-78). He stated that such articles are "hard to keep" (Tr. 78). Under the circumstances, and considering the other factors set forth in Section 17(j) of the Act for mitigation of penalty, as well as the [*21] decision of this Commission in Secretary v. J. E. Chilton Millwork and Lumber Company, Inc., 1 OSAHRC 307 (1975), the $35 proposed penalty for this Item should be vacated.

FINDINGS OF FACT

1. On February 14, 1974, employees of respondent were at work on a construction project located at 51st Street and Sheridan, Tulsa, Oklahoma.

2. Part of the work on that project consisted of the digging of a trench.

3. The evidence herein considered in its entirety does not establish that respondent's employees were exposed at the above time and place to danger resulting from inadequate guarding of the above trench by inadequate shoring, sheeting, bracing, sloping or other equivalent means.

4. The evidence herein, considered in its entirety, does not establish that respondent's employees, at the above time and place, were exposed to hazards resulting from failure of respondent to take additional precautions by way of shoring or bracing of the walls of the above trench.

5. Respondent, at the above time and place, did not provide an approved fire extinguisher.

6. At the above time and place one of respondent's employees working in the trench was not wearing appropriate protective [*22] equipment (hard hat).

CONCLUSIONS OF LAW

1. Items 3 and 4 of the citation should be dismissed and the proposed penalties of $100 and $35, respectively, should be vacated.

2. On February 14, 1974, respondent violated sections 1926.100(a) and 1926.150(c)(1)(vi) of Title 29, Code of Federal Regulations, comprising safety standards promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; each of these was a "nonserious" violation of low gravity.

3. Zero penalties for violation of each of the two regulations referred to in Conclusion of Law No. 2, above, are appropriate.

ORDER

On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that Items 3 and 4 of the citation issued on March 8, 1974, be DISMISSED and the proposed penalties of $100 and $35, respectively, be VACATED. It is further ORDERED that Item 1 and 2, of the citation, issued on the same date be AFFIRMED, with zero penalties assessed, and the proposed penalty of $35 for Item 2 vacated.

Dated: October 1, 1974

WILLIAM J. RISTEAU, ADMINISTRATIVE LAW JUDGE