OSHRC Docket No. 957

Occupational Safety and Health Review Commission

August 25, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On July 24, 1972, Judge Robert P. Weil issued his recommended order on stipulation and withdrawal of notice of contest.

Pursuant to the authority vested in Members of the Commission by virtue of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I am herewith directing that the Judge's order be reviewed by the Commission.

The Commission has reviewed the record and notes that respondent, subsequent to its notice of contest, entered into a stipulation with complainant.   In particular, the stipulation requested further time in which to prepare engineering and administrative control studies for the abatement of its occupational noise exposure and requested that item 1 of the citation be amended to extend the abatement date from on or before August 9, 1972 to September 1, 1972.   In addition, respondent stated that it would immediately implement a personal protective equipment program.   The stipulation further contained a motion to withdraw the notice of contest provided the Judge rules favorably in allowing the amendment to the citation.   [*2]  

On the basis of the stipulation between the parties the Judge granted the amendment to the citation and affirmed the citation and penalty.   The Commission finds that the Judge should have affirmed the amended   citation and penalty.   Also, that respondent's answer is deemed withdrawn is improper.   Instead, respondent's motion to withdraw notice of contest is granted.   [Emphasis provided]

Accordingly, the Judge's order as amended below is the final order of the Commission.

It is hereby ORDERED that (1) The stipulation is allowed; and

(2) The citation as amended by the above stipulation together with the penalty are affirmed;

(3) The respondent's motion to withdraw notice of contest is granted;

(4) Respondent shall comply with the abatement requirements in the amended citation and with 29 CFR Sec. 1910.95.

[The Judge's decision referred to herein follows]

WEIL, JUDGE, OSAHRC: It appearing that respondent maintains a workplace at 544 West First Avenue, Columbus, Ohio, where respondent acts as an "employer," employing "employees" within the meaning of Sec. 3 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq.; and

It appearing further that [*3]   petitioner inspected said workplace and issued to respondent a citation alleging violation of standards promulgated by petitioner pursuant to said Act; and petitioner having given notice of proposed penalties therefor; and

Respondent having given notice that it contested Item 1 of said citation, which alleges violation of 29 CFR Sec. 1910.95, which Section relates to occupational noise exposure; and petitioner having duly notified the Commission of such contest; and

  Item 1 of said citation setting forth as abatement requirements, that engineering plans for abatement be submitted by respondent on or before August 9, 1972, and that during the abatement period, personal protectiev equipment or administrative controls be used; and

A complaint and an answer having been duly served and filed herein; and

Petitioner and respondent having heretofore executed and filed herein a stipulation providing that, based upon further investigation petitioner has concluded that respondent needs more time in which to prepare enginering and administrative control studies for the abatement of the condition alleged in Item 1 of the citation herein, and that, accordingly, the abatement requirements [*4]   of Item 1 of said citation be amended to provide as follows:

Respondent will submit by September 1, 1972, a proposed compliance plan which will include among other things studies of engineering and administrative controls.   In addition, respondent will immediately implement a personal protective equipment program;

and such stipulation providing further that respondent will comply with said abatement requirements as so amended, and with 29 CFR Sec. 1910.95, and that respondent withdraws its notice of contest herein, provided that the judge shall approve the disposition of this proceeding as set forth in said stipulation; and

The penalty proposed by petitioner having been paid by respondent; and

Said stipulation, together with respondent's notice of withdrawal of contest and the affidavit sworn to July 13, 1972, by Dennis Grant, attorney for respondent, having been duly served on all of the parties hereto and no party having given notice of objection to such   amendment of the citation and such disposition of this proceeding; and

It appearing therefrom and from all the other pleadings and proceedings heretofore herein that the public interest will be served by such amendment [*5]   and such disposition; it is ORDERED that:

(1) The citation is amended as above set forth;

(2) The citation and penalty are affirmed;

(3) The answer is deemed withdrawn;

(4) The stipulation is approved; and

(5) Respondent shall comply with the amended abatement requirements and with 29 CFR Sec. 1910.95.