UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 7606
EDWARD HINES LUMBER CO.,
Respondent.

September 29, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

A decision of Review Commission Judge Jerry W. Mitchell, dated September 25, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A.[1] Accordingly, the Judge’s decision is hereby affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: SEP 29, 1976

CLEARY, Commissioner, CONCURRING:

The only issue before us is whether the Administrative Law Judge erred in concluding that the standard published in 29 CFR § 1910.213(b)(4) is not mandatory and that failure to comply with its provisions did not violate section 5(a)(2) of the Act. The Secretary of Labor had cited the employer because a control panel was located outside the easy reach of a saw operator. The standard involved provides that controls ‘should’ be located in easy reach.

I agree with my colleagues that the word ‘should’ in the standard is to be read as advisory for the reasons assigned by the Judge. This is so even though the word ‘should’ as generally used implies a command. See Words and Phrases, ‘should.’ The Secretary of Labor’s reliance upon his brief in Kennecott Copper, No. 5958 (July 8, 1976) is unconvincing because the standard involved in that case uses the word ‘shall.’

The use of the word ‘should’ in this standard could perhaps have significance in a case tried under the general duty clause in section 5(a)(1) of the Act. But that is not this case.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 7606
EDWARD HINES LUMBER CO.,
Respondent.

September 25, 1975

DECISION AND ORDER

Appearances:

William W. Kates, Esquire, Seattle, Washington for Complainant

Harry S. Chandler, Esquire, Portland, Oregon for Respondent

There was no appearance by or on behalf of any of Respondent’s affected employees.

STATEMENT OF THE CASE

Jerry W. Mitchell, Judge

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) contesting Citations issued by the Secretary of Labor (Complainant) against Edward Hines Lumber Co. (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as ‘sawmill, planer mill, moulding plant, plywood plant, stud mill’ located one-half mile south of Hines, Oregon on Highway 395 was inspected March 19 to 21, 1974 by a Compliance Safety and Health Officer (CSHO) on behalf of the Secretary of Labor. During that inspection alleged violations of 29 specific safety standards were noted. As a result of the inspection the following Citations were issued to Respondent on April 3rd:

Citation Number One (Non-Serious, 19 Items involving 26 sub-Items);

Citation Number Two (Repeated Non-Serious, 1 Item with 3 sub-Items);

Citation Number Three (Repeated Non-Serious, 1 Item with 9 sub-Items);

Citation Number Four (Repeated Non-Serious, 1 Item);

Citation Number Five (Repeated Non-Serious, 1 Item);

Citation Number Six (Repeated Non-Serious, 1 Item);

Citation Number Seven (Repeated Non-Serious, 1 Item with 3 sub-Items);

Citation Number Eight (Repeated Non-Serious, 1 Item);

Citation Number Nine (Repeated Serious, 1 Item with 20 sub-Items); and

Citation Number Ten (Repeated Serious, 2 Items with 6 sub-Items).

The standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, Part 1910.

Respondent has contested all of the various Citations and Items except for Items 4, 5, 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, and 19 of Citation Number One. The alleged violations are described in the Citations in the following language:

Citation Number One (Non-Serious)

Item 1 1910.213(b)(4) A ‘Delta’ band saw in the electrical shop of the sawmill had the power control on a panel behind the saw, not within easy reach of the operator. ABATE ‘April 17, 1974 Penalty None

Item 2 1910.265(c)(18)(i) (a) An employee was standing on a conveyor while unplugging a bin, and the conveyor was not locked out so that only the employee working on the bin could turn on the conveyor, as stated in ANSI B20.1, Section 10(f).

(b) Employees cross under the feed chain conveyor to the package maker in dry kiln and no protection is provided to prevent lumber from falling onto employees, as stated in ANSI B20.1 609(a).

(c) Lumber conveyors on No. 1, 2, 3, 4 planers have a passageway under conveyors and no signs were posted indicating low overhead, in planer mill, as stated in ANSI B20.1 705(b).

(d) The outfeed roller casing conveyor from No. 1, 2, 3 head rigs did not have a crossover to protect employees from being struck by lumber being conveyed by the power rollers from the head rig, as stated in ANSI B20.1 705(a). ABATE May 1, 1974 Penalty $65.00

Item 3 1910.265(e)(1)(vii) Number 1, 2, 3 head rigs did not have rail sweeps on outside U-rail (of carriage) in sawmill. ABATE May 1, 1974 Penalty None

Item 10 1910.212(a)(1) (a) A tail pulley on outfeed No. 2 planer belt approximately 5 feet above floor level not guarded on the side in the planer mill.

(b) The waste conveyor tail pulley approximately 12 inches above the floor level next to aisleway was not guarded on the end in the plywood plant.

(c) A crushing wheel in chipper room of plywood plant was not guarded.

(d) A passageway under the trim saw and panel turner in the plywood plant had unguarded rotating wheels 6 feet 9 inches above floor level.

(e) The tail pulley, approximately 2 feet above the floor, from the lay-up line to pre-press with walkway in between was not guarded in the plywood plant. ABATE May 1, 1974 Penalty ‘$85.00’

Item 11 1910.213(r)(4) The trim saws on the ends of grader table No. 6 and 7 in moulding plant need a barrier guard around the saw blade to prevent an employee from coming in contact with the saw blade. ABATE May 1, 1974 Penalty None

Item 12 1910.213(i)(1) Three spoked wheels on the veneer core band saw in the plywood plant were not completely guarded. Approximately one-half of the wheels were exposed. ABATE ‘May 1, 1974 Penalty $70.00

Citation Number Two (Repeated Non-Serious)—

‘Item 1 1910.219(i)(1) (a) A coupling on a motor for the hog conveyor in basement of sawmill was not covered.

(b) A coupling on a motor for the belt conveyor in the basement of the sawmill was not guarded.

(c) A coupling on drive motor on chipper in plywood plant not guarded. [Standard changed in complaint to 1910.219(i)(2)] ABATE April 17, 1974 Penalty $100.00.

Citation Number Three (Repeated Non-Serious)—

Item 1 1910.23(c)(1) (a) A walkway to hoist, by No. 1 edger approximately 14 feet above floor level did not have a guard rail installed, in the sawmill.’ [Standard changed in complaint to 1910.23(c)(2)]

(b) Middle walkway on tray system approximately 15 feet above floor level in dry kiln did not have a midrail.’ [Standard changed in complaint to 1910.23(c)(2)]

(c) Employees walk across tipple (approximately 20 feet above floor level) in dry kiln for maintenance of chain drives and no guard rail or midrail was installed.

(d) The platform at the top of a stairway to an overhead crane approximately 20 feet above floor level had the guardrail bent and twisted and no midrail.

(e) A walkway to unstacker operator’s station did not have a guard rail, next to floor opening approximately 10 feet to next lower level in dry sorter.’ [Standard changed in complaint to 1910.23(c)(2)]

(f) Two floor openings approximately 2 feet by 2 feet next to press charger 15 feet above lower level were not guarded in plywood plant.’ [Standard changed in complaint to 1910.23(a)(9)]

(g) An open sided floor on walkway along veneer belt to incline drier approximately 12 feet above next lower level was not guarded, in plywood plant.’ [Standard was changed in complaint to 1910.23(a)(8). As recited in the complaint this violation reads ‘A floor hold on walkway along veneer belt to incline drier approximately 12 feet above next lower level in the plywood plant was not guarded or covered, contrary to 29 CFR 1910.23(a)(8).]

(h) Employees walk on a 2 inch by 10 inch piece of lumber to perform maintenance on the tipple approximately 10 feet above next lower level and approximately 20 feet to floor level in plywood plant.

(i) A work platform approximately 16 feet above ground level on side of tipple in dry kiln did not have a midrail. ABATE ‘May 1, 1974 Penalty $180.00

Citation Number Four (Repeated Non-Serious)—

Item 1 1910.176(a) The area in the swing radius of the roll case turn table at the lumber strapper was not barricaded to prevent foot traffic into the hazardous area, in shipping department. ABATE May 1, 1974 Penalty ‘$100.00 [Note—this Citation was withdrawn by paragraph XIII of the complaint.]

Citation Number Five (Repeated Non-Serious)—

Item 1 1910.265(c)(4)(ii) A walkway approximately 3 1/2 feet above floor level next to trim saw in the plywood plant had two broken boards ABATE ‘April 17, 1974 Penalty $100.00

Citation Number Six (Repeated Non-Serious)—

Item 1 1910.265(e)(6)(i)(c) The ‘Pineapple’ roll on the lath saw in the lath mill was not guarded. ABATE ‘April 17, 1974 Penalty $100.00

Citation Number Seven (Repeated Non-Serious)—

Item 1 1910.219(e)(1)(i) (a) A horizontal flat belt and pulley drive approximately 3 1/2 feet above the work level on the skinner saw in the plywood plant was not guarded.

(b) A horizontal flat belt and pulley drive approximately 76’ above the floor level on the No. 2 drill press was not guarded in the basement of the sawmill.

(c) A horizontal flat belt and pulley on sticker belt approximately 3 1/2 feet above work level was not guarded in dry sorter. ABATE May 1, 1974 Penalty ‘$115.00

Citation Number Eight (Repeated Non-Serious)—

Item 1 1910.24(f) The treads on a stairway to an elevated platform in the basement of the sawmill were bent over to the point of creating a slipping hazard.

ABATE April 17, 1974 Penalty $100.00

Citation Number Nine (Repeated Serious)—

‘Item 1 1910.219(f)(3) (a) A chain drive approximately 36 inches above work level for conveyor to No. 3 hog not guarded, in basement of sawmill.

(b) A chain drive for belt conveyor approximately 6 inches above work platform in basement of sawmill not guarded.

(c) A slab chain drive on head rig No. 3 approximately 12 inches above floor level not guarded in sawmill.

(d) A chain drive on outfeed to the trimmer in sawmill not guarded approximately 2 feet above walkway.

(e) A chain drive on package maker approximately 20 inches above walkway not guarded in dry kiln green chain area.

(f) One chain drive located in the middle of the tipple frame and one chain drive on the end of the tipple were not guarded in the dry kiln, green chain.

(g) A chain drive (on sorting chain) approximately 10 inches above work level in shipping department was not guarded.

(h) The back side of a chain drive not guarded approximately 36 inches above floor level on moisture content machine in plywood plant.

(i) The back side of a chain orive (36 inches above floor) on the dry chipper in plywood plant was not guarded.

(j) Two chain and sprocket drives 6 feet 7 inches above floor level on the trim saw were not guarded.

(k) A chain drive approximately 12 inches above the floor under the trim saw in the plywood plant was not guarded.

(l) A chain drive approximately 12 inches above floor on chipper was not guarded on back side in plywood plant.

(m) A chain drive 36 inches above walkway on trim saw was not guarded in plywood plant.

(n) The back side of a chain drive approximately 18 inches above floor level for belts on lay-up line in plywood plant was not guarded.

(o) A chain drive on a scissors hoist feed to lay-up line, 2 feet to 4 feet above floor, was not guarded in the plywood plant.

(p) A chain drive approximately 10 inches above floor level on re-dry infeed to the inline drier in plywood plant did not have guard covering ingoing nip point.

(q) Four chain drives on tipple roll from 2 feet to 7 feet above floor level not guarded in plywood plant.

(r) A chain drive approximately 2 feet above floor level on unit intake in stud mill was not guarded.

(s) A chain drive approximately 12 inches above work platform on barker surge bin was not guarded.

(t) A chain drive for rolls on veneer core band saw was not guarded on back side in plywood plant, approximately 3 1/2 feet above floor level. ABATE ‘May 15, 1974 Penalty ‘$2,000.00’

Citation Number Ten (Repeated Serious)—

Item 1 1910.219(e)(3)(i) (a) A vertical belt and pulley system for head rig No. 2 lower run approximately 3 feet above floor level in basement of the sawmill was inadequately guarded: the side of the belt and pulley was exposed, as specified in (29 CFR) 1910.219(e)(3)(i).

(b) A vertical belt and pulley drive approximately 20 inches above floor level on lath saw in lath mill did not have the nip point guarded, as specified in 29 CFR 1910.219(e)(3)(i).

(c) A vertical belt drive 39 inches above floor level on saw grinder in file room of plywood plant, as specified in 29 CFR 1910.219(e)(3)(i).

(d) A vertical belt drive lower run 62 inches above walkway on conveyor that dumps into Lilly Pad chipper in barker not guarded, as specified in 29 CFR 1910.219(e)(3)(i).

Item 2 1910.219(e)(1)(i) (a) A horizontal belt drive approximately 3 feet above floor level on air compressor in dry sorter was not guarded, as specified in 29 CFR 1910.219(e)(1)(i).

(b) A horizontal belt drive on saw grinder approximately 4 feet above floor level not guarded in the saw filing room of the planer mill, as specified in 29 CFR 1910.219(e)(1)(i). ABATE May 15, 1974 Penalty $2,000.00

ABOVE ALLEGED VIOLATIONS, ANY OF WHICH COULD ALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND PENALTY PURPOSES FOR THIS ONE ALLEGED SERIOUS VIOLATION.

Standard—29 CFR

‘Subpart D—Walking-Working Surfaces

1910.23 Guarding floor and wall openings and holes.

(a) Protection for floor openings.

(8) Every floor hole into which persons can accidentally walk shall be guarded by either:

(i) A standard railing with standard toeboard on all exposed sides, or

(ii) A floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place, the floor hole shall he constantly attended by someone or shall be protected by a removable standard railing.

(9) Every floor hole into which persons cannot accidentally walk (on account of fixed machinery, equipment, or walls) shall be protected by a cover that leaves no openings more than 1 inch wide. The cover shall be securely held in place to prevent tools or materials from falling through.

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

(2) Every runway shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

Subpart N—Materials Handling and Storage

1910.176 Handling materials—general.

(a) Use of mechanical equipment. Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.

Subpart O—Machinery and Machine Guarding

1910.212 General requirements for all machines.

(a) Machine guarding—(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.

1910.213 Woodworking machinery requirements.

(b) Machine controls and equipment.

(4) Power controls and operating controls should be located within easy reach of the operator while he is at his regular work location, making it unnecessary for him to reach over the cutter to make adjustments. This does not apply to constant pressure controls used only for setup purposes.

(i) Bandsaws and band resaws.

(1) All portions of the saw blade shall be enclosed or guarded, except for the working portion of the blade between the bottom of the guide rolls and the table. Bandsaw wheels shall be fully encased. The outside periphery of the enclosure shall be solid The front and back of the band wheels shall be either enclosed by solid material or by wire mesh or perforated metal. Such mesh or perforated metal shall be not less than 0.037 inch (U.S. Gage No. 20), and the openings shall not be greater than three-eights inch. Solid material used for this purpose shall be of an equivalent strength and firmness. The guard for the portion of the blade between the sliding guide and the upper-saw-wheel guard shall protect the saw blade at the front and outer side. This portion of the guard shall be self-adjusting to saise and lower with the guide. The upper-wheel guard shall be made to confirm to the travel of the saw on the wheel, and the top member of the guard should have at least a 2-inch clearance outside the saw and be lined with smooth material, preferably metal. Effective brakes should be provided to stop the wheel in case of blade breakage.

(r) Miscellaneous woodworking machines.

(4) The mention of specific machines in paragraphs (a) thru (g) and this paragraph (r) of this section, inclusive, is not intended to exclude other woodworking machines from the requirement that suitable guards and exhaust hoods be provided to reduce to a minimum the hazard due to the point of operation of such machines.

1910.219 Mechanical power-transmission apparatus.

(e) Belt, rope, and chain drives—(1) Horizontal belts and ropes.

(i) Where both runs of horizontal belts are seven (7) feet or less from the floor level the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table 0–12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section.

(3) Vertical and inclined belts. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.

(f) Gears, sprockets, and chains—

(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

(i) Collars and couplings—(1) Collars. All revolving collars, including split collars, shall be cylindrical, and screws or bolts used in collars shall not project beyond the largest periphery of the collar.

(2) Couplings. Shaft couplings shall be so constructed as to present no hazard from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will, however, be permitted where they are covered with safety sleeves or where they are used parallel with the shafting and are countersunk or else do not extend beyond the flange of the coupling.

Subpart R—Special Industries

1910.265 Sawmills.

(c) Building facilities, and isolated equipment—

(4) Walkways, docks, and platforms—

(ii) Maintenance Walkways shall be evenly floored and kept in good repair.

(18) Conveyors—(i) Standards. Construction, operation, and maintenance of conveyors shall be in accordance with American National Standard B20.1–1957.

(e) Log Breakdown and related machinery and facilities—(1) Log carriages and carriage runways—

(vii) Sweeping devices. Carriage track sweeping devices shall be used to keep tracks clear of debris.

(6) Planers—(i) Guards

(c) Pressure feed rolls and ‘pineapples’ shall be guarded.’

Pursuant to the enforcement procedures provided in Section 10(a) of the Act, Respondent was duly advised by a Notification of Proposed Penalty dated April 3, 1974 of the proposal to assess the respective penalties set forth in the above quotations of the various Citations. In a timely manner Respondent filed a letter dated April 18th contesting all of the Citations except Items 4, 5, 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, and 19 of Citation Number One. Citation Number Four was withdrawn in the complaint filed by Complainant. The trial was held at Burns, Oregon on August 27th through 29th with this Judge presiding.

PROCEEDINGS AND EVIDENCE

Each party was represented by competent legal counsel when the trial convened. There was no appearance by or on behalf of any affected employees nor by the union representing them.

In a discussion preliminary to the receipt of evidence the parties agreed on the portions of the Citations challenged by the letter of contest and thus at issue. They also agreed that Complainant had withdrawn Citation Number Four in its complaint. During this discussion counsel for Respondent again admitted jurisdiction.

The inspecting Compliance Safety and Health Officer (CSHO) (Hancock) was called as Complainant’s major witness. He describes the procedure and method followed in making the inspection of Respondent’s workplace. During his testimony each of the contested Items listed in the Citation is specifically identified and described. Exhibits (photographs) covering most of the Items are introduced in connection with his testimony. He elaborates on the conditions present and the hazards observed. He also details the manner in which the proposed penalties were computed and the factors considered in arriving at the amounts recommended to the Area Director of OSHA.

Complainant also called Respondent’s Personnel and Safety Director (Glenn G. Nelson) as a witness. He describes the inspected workplace as being one of the largest sawmills in Oregon with about 700 of Respondent’s 925–1000 employees working at the Hines mill. He outlines the safety procedures followed in the mill where the employees are organized into some 40 safety groups by areas of work in the mill. A safety inspection of the entire mill is made on a monthly basis. Guards were installed on many of the machines following the inspection by the CSHO. He testifies that the previous Citations were not contested because the penalties were not too severe.

Following the conclusion of Complainant’s evidence counsel for Respondent stated that he had some motions to dismiss, indicating that he could itemize each one or make a general motion to dismiss for failure of proof and then flesh out the motion in the opening brief. He was advised that such a motion would be taken under advisement and he would have the opportunity to amplify his reasons in his brief.

Respondent recalled the Personnel and Safety Director (Nelson), to testify on direct. This testimony thoroughly explored every aspect of the safety meetings including frequency and subject matter. A large number of safety publications and pamphlets were introduced through this witness. He explained the contents and use of each of them in connection with Respondent’s safety program and indoctrination of new employees.

Respondent’s main witness was its Assistant Personnel and Safety Director (Chet Arnett). His monthly safety inspection of the entire plant takes 3 or 4 days. He also testifies specifically with respect to most of the individual Items cited. He accompanied the CSHO during the entire inspection and was present during the closing conference.

Respondent’s final witness was a machinist (Dempsey) who has worked for Respondent for about 10 years. He works throughout the plant dealing with installation and repair of the machinery. He estimates that there are approximately 6,000 bearings and 6,000 sprockets in the saw mill and about the same number of each item in the plywood mill. His testimony is that machinists and millwrights perform much the same type of work.

The CSHO was recalled on rebuttal to testify in connection with two specific Items of the Citations.

Subsequent to receipt of the transcript, briefing time was extended at the request of Respondent. Each party submitted initial and reply briefs with Respondent’s initial brief being very extensive and thorough, dealing fully with each contested Item.

DISCUSSION OF LAW AND FACTS

JURISDICTION—

Jurisdiction is alleged in the complaint and admitted by Respondent in the answer. Counsel for Respondent also admitted jurisdiction during the trial.

TIMELY ISSUANCE OF THE CITATIONS—‘REASONABLE PROMPTNESS’—

This issue is timely raised by Respondent’s specific denial in the answer that the Citations were issued with reasonable promptness. It is also argued in Respondent’s brief where Respondent relies upon the Commission decision in Secretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (1974), and urges that the instant case must be dismissed for failure of Complainant to issue the Citations with reasonable promptness—i.e. within 3 days.

Resolution of this issue is controlled by the provisions of Section 9(a) of the Act [29 U.S.C. § 658(a)]. That Section, in pertinent part, provides:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of Section 5 of this Act, . . . or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer . . .’ (Emphasis added.)

The decision of the Review Commission in Chicago Bridge, supra, requires that a citation be issued within 3 working days after the issuing authority has formed his belief that a violation has occurred. That decision of the Commission has been vacated by the Seventh Circuit, however, and that particular case remanded to the Review Commission for a decision on the merits. Some of the language from the Circuit Court decision is pertinent to this case:

‘We hold, therefore, that the rule set forth in the Commission’s decision that § 658(a) requires the Secretary or his authorized representative to issue a citation within 72 hours of the time the decision to so issue is reached is unacceptable because it is not supported by the statute itself or by its legislative history and must be invalidated.

We do not hold, however, that the Commission is powerless to fashion a rule giving the ‘reasonable promptness’ language some effect. (Footnote 8.) In other words, we find it unnecessary to decide, as the Secretary argues here, that the phrase is merely hortatory, precatory, or directive. We simply conclude that the test for determining ‘reasonable promptness’ used in this case was improper.’ (The indicated footnote 8 states—‘Administrative Law Judge Goldstein in this case evaluated the approximately one-month delay from the date of inspection until the date of issuance and concluded that it was reasonable.’) Secretary of Labor v. Chicago Bridge and Iron Company, 514 F.2d 1082 (7th Cir. April 22, 1975.)

The Seventh Circuit thus clearly holds that the meaning of ‘reasonable promptness’ is not limited to the restrictive 72 hours found by the Commission in its Chicago Bridge decision, supra, but depends upon that is reasonable in the light of all of the circumstances of the particular case. The footnote quoted above seems to say that a delay of approximately one month is reasonable—at least the Court implies that such a delay is reasonable under the circumstances and conditions extant in that particular case.

The inspection which is the basis of this proceeding was extensive—3 fully days, March 19, 20, and 21, 1974. As a result of the inspection the Secretary issued ten (10) separate Citations (9 of them for Repeated violations) covering 71 individual Items cited under more than 30 specific safety standards. In short—there was a good deal of review, research, and paper work to be accomplished before the Citations could be issued.

The indication from the record is that the CSHO was extremely diligent and speedy in preparing his recommendations for the Area Director. The inspection was completed on a Thursday and the recommendations of the CSHO were delivered to the Area Director on the following Monday. A most commendable dispatch. At least sixty-two (62) photographs taken during the inspection were also developed, identified, and delivered to the Area Director. It is true that the record is not clear as to when the photographs were presented but it seems obvious that they were necessarily considered in determining whether the various Citations should issue. Irrespective of this, it is clear that there were a number of discussions between the CSHO and the Area Director concerning the inspection. (Transcript pgs 386, 395.) Likewise, it is certain that all of these discussions occurred after the day on which the recommendations were made—Monday, March 25th. Nevertheless, even with all of the activity, review and consultations, the Citations were actually issued on Wednesday, April 3rd—just 13 days after completion of the inspection.

Considering the complexity of the Citations and the large number of individual Items of alleged violation, this is certainly a very quick issuance of the Citations. There is no indication of any unreasonable delay in the light of the discussion of the Seventh Circuit in the Chicago Bridge and Iron Company case, supra. Nor is there the slightest indication of any prejudice to Respondent’s preparation of its defense in this matter arising from the 13 elapsed days. In fact, Respondent has not even hinted at any such prejudice. Respondent’s attack upon the validity of the Citations on the ground that they were not issued with reasonable promptness is without any merit whatsoever and must, therefore, FAIL.

UNENFORCEABLY VAGUE STANDARDS—

Throughout its brief Respondent urges that some of the safety standards cited in the instant matter are so vague as to be unenforceable. Respondent relies upon the Commission decision in Secretary v. Grayson Lumber Company, Inc., 3 OSAHRC 541 at 543–546 (1973) as authority requiring dismissal of certain of the alleged Items of violation. That decision interprets Section 3 (8) of the Act and sets up tests for determining whether a safety standard is unenforceably vague.

Section 3 (8) of the Act reads, ‘The term ‘occupational safety and health standard’ means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe and healthful employment and places of employment.’ The concurring opinion of Chairman Moran in the Grayson Lumber Company case, supra, establishes tests by which to determine whether a safety standard is so vague as to be unenforceable. Those tests are stated thusly:

‘To meet the requirements of this Act, an occupational safety and health standard must specify, as a minimum, exactly what the employer is required to do and the circumstances under which, or the time when, it is to be done . . .

The requirements which this law imposes upon employers and employees must be stated clearly and precisely. This is no place for guessing games, tricky phraseology, or obfuscation.

When a standard makes an employer guess, gamble and grope to be in compliance, that standard (a) fails to serve the purposes of the Occupational Safety and Health Act, (b) does not fall within the definition of an occupational safety and health standard contained in the Act, and (c) is unconstitutionally vague.’

The foregoing tests will be applied in this decision. Each standard that is attacked on the ground of vagueness will be evaluated in their light. Determination of the validity of such a standard will be indicated in the discussion of that particular standard in connection with the respective Items hereafter.

EXPOSURE OF MILLWRIGHTS AND MAINTENANCE MEN TO VIOLATIONS—

In its brief Respondent urges, on occasion, that the only persons exposed to the cited danger are millwrights and maintenance workers and thus the alleged violations should be nullified. The standards are established to protect all of the employees of an employer—not just certain employees who happen to work in a specific area. The millwrights and maintenance men admittedly enter every part of the sawmill at some time or other in order to perform their duties. They are thus frequently exposed to hazards that would not endanger ordinary employees because the millwrights and maintenance men must go into remote areas to correct malfunctioning machinery or to render routine maintenance and upkeep on such machinery.

In this instance (for the purposes of this proceeding) millwrights and maintenance men are specifically found to be employees who are entitled to the safeguards and protections of the Act. Their exposure to a particular hazard resulting from violation of a standard visits responsibility upon the employer just as surely as does the exposure of any other regular employee who happens to operate a machine while assigned to a specific work area or work station. Respondent’s argument is without merit—except as an indicator of the gravity to be attributed to any given violation. If the only established exposure to the dangers of a violation is of millwrights and maintenance workers on their occasional servicing or repairing of machines, then the gravity of that particular violation will be considered to be very low. Such a determination will be made hereafter in connection with the discussion of the individual Items.

FAILURE OF CSHO TO FURNISH COPY OF STANDARDS—

It is obvious from the evidence that the CSHO did not leave a copy of any of the cited standards (ANSI or otherwise) with Respondent’s representatives at the conclusion of the closing conference or at any other time during the inspection. Respondent argues that this invalidates that Citations and is grounds for dismissing several Items of the Citations. The wording of the Act does not support such a conclusion.

The Occupational Safety and Health Act requires an employer, with employees in a business affecting commerce, to comply with the safety and health standards promulgated pursuant to Section 6 of the Act. It is the responsibility of the employer to ascertain which of the many promulgated standards has applicability to his particular business. There is nothing in the Act which requires the Secretary to deliver a copy of the standards, or of their sources such as the ANSI standards, to an employer. The requirement appearing in the Compliance Operations Manual to this effect is an internal instruction to the CSHOs and does not confer any rights upon Respondent. Delivery of a copy of a cited safety standard is, at most, a courtesy to the employer. Failure to deliver a copy does not invalidate the Citations. Respondent’s argument in this regard must, and does, FAIL.

REPEATED VIOLATIONS—

Citations Number 2 through 10 are captioned as ‘Repeated’ violations. Respondent objects to such a classification and argues that Complainant should not be able to rely on previous Citations issued to Respondent following inspections in April and June 1972 and thereby charge repetition or violations and assess much larger penalties than a first time violation would warrant.

The classification of violations as ‘repeated’ has significance because it indicates that Respondent has previously been cited for violation of the same safety standards as are involved in the instant proceeding. Under Section 17(a) of the Act [29 U.S.C. § 666(a)] the penalty on the occasion of a ‘repeated’ violation may be assessed at a figure up to ten (10) times that of a first instance violation. Thus it appears that Congress believes that a repeat violation is a more flagrant type of conduct than a first violation. It is clear that Congress intended that an employer repeating a violation should incur a greater penalty for the repetition than for an original violation. [Compare Section 17(a) with Sections 17(b) and 17(c).]

Respondent argues that ‘repeated’, or ‘repeatedly’ as the term is used in Section 17(a), means ‘again and again’ or in other words, more than a second time. (See Respondent’s Brief, pgs 71 and 72.) While, as noted by Respondent, some dictionaries give this meaning to the word ‘repeated’, others include ‘more than once’ as the primary definition. See for example, The World Book Dictionary, 1971 Edition, and Webster’s New World Dictionary of the American Language, College Edition, 1968.

The Review Commission has rendered this argument moot, however, since it recently defined the term ‘repeated’ in relation to what constitutes repeated violations, as follows:

‘The term ‘repeated’ is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirements of the Act are being flaunted it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved.....’ (Emphasis added.) Secretary v. General Electric 17 OSAHRC 49 (1975).

From this, ‘repeated’ or ‘repeatedly’ is taken to be the term identifying a second or subsequent violation of a safety standard previously cited. (In the instant case there is no need to consider location of the previous violations since they admittedly occurred at the same sawmill.) This is the definition that will be applied in the instant proceedings. Thus, if the evidence offered in connection with any of the alleged repeated violations establishes that Respondent has been previously cited for violation of the particular standard in question then the violation proved here will be considered to be a ‘repeated’ violation. It is noted here that the two previous Citations, offered as Exhibits 63 and 64 and relied on by Complainant, have become final orders of the Commission by reason of the fact that Respondent affirmatively chose to not contest them within the 15 working day period specified in Section 10(a) of the Act [29 U.S.C. § 659(a)]. The determination herein of whether a given alleged violation is ‘repeated’ will be made in connection with the discussion of each individual Item hereafter.

Respondent has raised two other arguments in connection with ‘repeated’ violations that are without merit but which should be disposed of here and now. These arguments are that the Citations resulting from the April and June 1972 inspections are

a) ‘. . . too old and stale to form the basis for calculation of Section 17(a) penalties in this proceeding.....’; and that

b) ‘. . . Those violations, however, occurred more than six months before the issuance of Citations Nos. 3 (sic) through 10 and therefore, under Section 9(c), may not form the basis for repeat violations, as alleged by the Secretary.’ (Brief pgs 73 and 74.)

a) Having once been cited for and required to abate violation of a given safety standard, the employer has thereby been made specifically aware of the conditions comprising a violation. In effect he has been put on notice of the requirements, as well as the existence, of the violation. When he repeats violation of such a previously cited safety standard it is an indication that he is not as concerned with the safety of his employees as Congress believes he should be. Hence Congress provides the vehicle for assessment of a greatly increased penalty for such a repetition.

At the same time it is noted that there is nothing in the Act, or in its legislative history, which would indicate a cut-off time after which a prior citation would be ‘too dold and stale’ to be used as the basis for issuing a citation for a ‘repeated’ violation. It appears that any prior violation of the same standard would be notice sufficient to sustain citation for a ‘repeated’ violation. At least, in this particular case, it is affirmatively found that citations issued some two years before the instant ones have not, with the passage of time, lost their viability for this purpose. Respondent’s ‘too old and stale’ argument must, and does, FAIL. The only apparent requirement is that the same safety standard be violated in each instance.

b) Respondent’s reliance upon the provisions of Section 9(c) of the Act [29 U.S.C. § 658(c)] is also misplaced. Respondent’s argument in this regard is that, since it is more than six months after the inspections in 1972, Complainant cannot look back to the citations stemming from those inspections and charge that the instant violations are ‘repeated’. This argument misinterprets the clear meaning of the section relied upon.

Section 9 of the Act provides for the issuance of the basic citation following an inspection. Subparagraph (c) is a statute of limitations in that it provides that No citation may be issued under Section 9 after the expiration of six months following the occurrence of any violation. In other words, if the Secretary does not issue a citation within six months of the inspection he is precluded evermore from doing so. However, this statute of limitations provision does not apply to the facts of this proceeding. The citations arising from the April and June 1972 inspections were issued within the six month period and have become final orders through the operation of Section 10(a). The Citations involved here are dependent upon the conditions found during the March 1974 inspection. Reference is made to the 1972 inspections for the sole purpose of determining whether Respondent has previously violated the standards cited in the instant proceeding. The charge that the violations are ‘repeated’ only goes to the amount of the penalty to be assessed. Reference to the prior citations for this purpose is valid.

GROUPING ALL VIOLATIONS OF THE SAME STANDARD IN A SINGLE CITATION—

Respondent urges that the violations alleged in Citations Numbers Seven and Ten should have been grouped into one alleged Citation. This point is well taken. EAch of these two Citations charges that certain horizontal belts were not guarded in accordance with the requirements of the safety standard found at 29 CFR 1910.219(e)(1)(i). There is no reason apparent on this record for separating these various violations of the same safety standard into two separate Citations. Such a separation is apparently contrary to Complainant’s own internal instructions to its CSHOs. See Chapter X B.1.a. of Complainant’s Compliance Operations Manual, January 1972. In this instance Complainant has cited Respondent for violation of the same safety standard on two different Citations. Citation Number Seven is alleged as Repeated Non-Serious and Citation Number Ten is alleged as Repeated Serious. In this way Complainant has proposed a penalty of $115 for Citation Number Seven and $2,000 for Citation Number Ten. Thus, by not grouping all violations of the same standard, the overall penalty is increased by at least $115. Under all of the circumstances involved here this is patently unfair to Respondent. Accordingly, Citation Number Seven is hereby merged into, and grouped with, Citation Number Ten as a single Citation for an alleged Repeated Serious Violation.

SERIOUS VIOLATIONS IN GENERAL—

Respondent argues against classifying any of the violations as serious. In support of this position Respondent urges that the CSHO ‘. . . apparently looked only to the type of injury which might result and did not give any consideration to the likelihood of an accident resulting. The requirements of Section 17(k) of the Act were therefore not satisfied . . ..’ (Brief, pg 68.) This argument is based on an erroneous interpretation of Section 17(k).

Under the terms of Section 17(k) of the Act [29 U.S.C. § 666(k)] a violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition involved. It is not necessary that there be a substantial probability of an accident occurring because of the existing hazard—only that there be a substantial probability that if an accident does occur the resulting injury will be serious in nature or that death will result. See Secretary v. Standard Glass and Supply Company, 2 OSAHRC 1488, 1489 (1973) and Secretary v. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318, 1325 (1973).

Section 17(k) also requires that the employer know of the violation before it is considered as serious. This requirement is considered to have been met here since all of the violations classed as serious are repetitions of prior violations of the same standards. Thus we imply that Respondent had knowledge of the existing violative conditions.

Respondent’a argument has entirely missed the proper interpretation and application of Section 17(k). The Commission decisions cited in the second paragraph preceding are controlling. The specific question of whether a given violation is serious will be resolved in connection with the discussion of each individual Item hereafter.

APPROPRIATENESS OF PENALTIES IN GENERAL—

In determining the appropriateness of any penalty to be assessed in connection with the various Items it is necessary to give due consideration to the criteria (history of previous violations, size of business, good faith, and gravity) set forth in Section 17(j) of the Act.

Citations for violations. Those Citations have become final orders. Many of the presently contested Items are repetitions of violations cited during the previous two inspections.

2. Respondent is one of the largest sawmills in the state of Oregon and in the nation. The plant covers some 320 acres and employs approximately 717 of Respondent’s overall total of about 950 employees.

3. Respondent has an organized safety program which the CSHO describes as ‘. . . one of the better safety programs, administrative-wise that any company I had ever run into; however, they had safety committees, employee representatives on the safety committees; they had two safety personnel employed by the company, one full time and one, I believe was personnel and safety also.’ After noting the foregoing, the CSHO nevertheless stated that he did not accord Respondent any credit for good faith. It is apparent from this, as well as from the record as a whole, that Respondent has made an effort to provide a safety program for the benefit of its employees. However, at the same time there is clear indication on this record that Respondent has not adequately followed through in protecting them. This failure is shown by the repetition of many of the violations after previous citations. It is therefore concluded that Respondent is somewhat lacking in good faith. For the record it is noted here that the Items found to be in violation are only a very small percentage of the number of such Items to be found in the entire sawmill.

4. The gravity of each Item will be considered in connection with the discussion of the penalty assessed for each individual Item hereafter.

THE INDIVIDUAL ITEMS OF THE CITATIONS

CITATION NUMBER ONE—Non-Serious : ITEM 1—1910.213(b)(4)—penalty proposed $0

This Item alleges that the power control for the band saw was on a panel behind the saw and not within easy reach of the operator. The testimony concerning the location of the saw is in conflict. The CSHO testifies that there was sufficient space—2 to 3 feet—in back of the saw to permit the passage of a person between the saw and the wall. Respondent’s Safety Director insists that the saw was flush against the wall. The Safety Director’s testimony is clearly based on observations made and measurements taken after receipt of the Citations. This time lapse could easily explain the discrepancy. It is very possible that the saw was moved after the inspection. It is clear from the photograph taken by the CSHO during the inspection (Exhibit #1) that the saw was located somewhat out from the wall—not flush with it. The location of the legs of the saw with relation to the wall gives this indication. The protrusion of the lower platform level on the saw also makes it apparent that the saw was not flush with the wall. Note that this platform protrudes towards the wall well beyond the working surface at the saw blade and thereby establishes that there is a considerable distance between the wall and the saw blade. The operator stands to the left of, and even with, the saw blade and is therefore equally removed from the wall as is the saw blade. The testimony of the CSHO is accepted as being correct with respect to location of the saw at the time of the inspection.

This location of the saw out from the wall makes it apparent that the operator would also be located more than 2 to 3 feet from the wall while standing in position to operate the saw. He would thus be at such a distance from the power control on the wall panel that it was not within easy reach.

The foregoing discussion would seem to indicate that Respondent was in violation of the cited standard. NOT SO. The standard is couched in ‘advisory’ rather than ‘mandatory’ words. It provides that, ‘Power controls and operating controls should be located within easy reach of the operator . . .’. (Emphasis added.) It is noted here that this wording is a radical departure from the general tenor of Section 1910.213. The other sub-sections of .213 with 2 or 3 exceptions, use the mandatory ‘shall’ while the particular sub-section involved here [.213(b)(4)] uses the advisory ‘should’. It is concluded that this departure from the normal wording of the section has significance. The significance given to it is that .213 (b)(4) is advisory only.

This conclusion is validated by the original language used in issuing the Part 1910 standards in 1971. In the promulgating document the Secretary explained the designation of certain standards as national consensus standards and included standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association. The promulgating document then goes on to state:

. . . The national consensus standards contain only mandatory provisions of the standards promulgated by these two organizations. The standards of ANSI and NFPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910.(Federal Register, Vol. 36, No. 105, May 29, 1971. pg 10466.)

From this it is clear that the safety standard codified at .213(b)(4) is advisory only. The Secretary encourages the employers to comply with it but apparently does not consider it as mandatory. Since it is found to be advisory only, it is not enforceable. Secretary. v. Kingery Construction Co., 16 OSAHRC 835 (1975) and Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 at 1214 (1973). Item 1 of Citation Number 1 is VACATED.

ITEM 2—1910.265(c)(18)(i)—(4 sub-Items)—penalty proposed $65

One of the several separate arguments posed by Respondent in connection with each of these 4 sub-Items is repeated each time. Respondent urges that each sub-Item be dismissed because of the failure of the CSHO to leave copies of the cited standards with Respondent at the conclusions of the closing conference. This failure to leave copies of the cited standards or their source documents does not invalidate the Citations. See the reasoning disposing of this argument in the general preliminary discussion above. Respondent’s argument FAILS.

a) This sub-Item alleges that an employee was standing on a conveyor while unplugging a bin and the conveyor was not locked out so that only the employee working on the bin could turn it on. The evidence establishes that actually two employees were standing on the conveyor. It also shows that no lockout device or any other type of safeguard was in place to prevent accidental or inadvertent activation of the conveyor. Anyone passing the control switches could have activated them.

It is true that the switches were in the direct view of one of the two men standing on the conveyor, but there is no indication that he was assigned to guard against activation of the conveyor. His apparent assignment was to assist the man clearing the unplugged bin. (It is noted here that assignment of the extra man to watch the switches would technically not be compliance.

In addition to the argument mentioned at the beginning of this Item, Respondent argues that this sub-Item should be dismissed because (1) the basic ANSI document only ‘recommends’ lockout of the controls and (3) the momentary failure to lockout the switches while in plain view and a short distance away from the millwright was of a de minimis nature. The first of these arguments is well taken. The cited section of the ANSI document is prefaced by the statement, ‘The following operating rules are recommended for all conveyor installations.’ (Emphasis added.) Such a provision falls within the conclusion reached above in connection with the operating controls for the band saw where similar wording is found to be ‘advisory’ only and therefore not enforceable. Accordingly, this sub-Item is VACATED on that same rationale.

b) This sub-Item alleges that employees cross under a feed chain conveyor that is not fitted with protection to prevent lumber from falling onto employees. From the evidence it is clear that there was no guard along the chain for this purpose. However, there is no direct evidence that any of Respondent’s employees use the area for passage under the conveyor, either on a regular or occasional basis. There is no indication of any reason for the employees to use the cited area as a passageway since there is no machinery or workstation on the other side of the conveyor. The hearsay evidence given by the CSHO in this regard is directly denied by Respondent’s witness (Arnett) who is the alleged source of the hearsay. The CSHO was the only person to pass under the conveyor during the inspection. Respondent’s employees in the inspection party walked another 20 or so feet to one side and passed around the end of the chain.

In addition, there is NO evidence of lumber falling in the cited area except for the speculation of the CSHO to that effect. There is an indication that lumber did fall from the conveyor on occasion, but the area of fall is some 20 to 25 feet to one side of the cited area where there is a change in the level and inclination of the chain. That area of danger was blocked from access by a wire stretched so as to form a barrier to entry into the area.

There being no proof, either of actual danger to Respondent’s employees from falling lumber or of an actual exposure of Respondent’s employees to a danger from this source, this sub-Item is VACATED.

c) In this sub-Item it is alleged that there was a passageway under 4 conveyors without any signs posted warning of the low overhead. The cited standard refers in turn to an ANSI standard [ANSI B20.1 705(b)] as containing the safety precautions to be observed. That standard only requires that the low overhead be indicated by ‘telltales’. The CSHO admits that a bright color would satisfy the requirements of a ‘telltale’.

The CSHO agrees that a couple of the overheads were painted a different color but does not recall that they were brightly painted. Respondent’s witness (Arnett) testifies that each of the 4 passageways was indicated with a stripe of bright red paint marking the lower edge of the overhead. Each stripe was 4 inches wide and about 4 feet long extending across each passageway about 5 to 5 1/2 feet above the ground. Each side of entry into the passageways under the conveyors was marked so that the bright red telltale was visible on approach from either direction. This witness testifies that the bright red stripes have been in place since 1970. He thinks that the red striping has been replaced on a yearly basis and is certain that it has been renewed since 1970.

Under the circumstances of the evidence on this record it is concluded that the low overheads on the cited passageways were indicated and marked by bright red paint striping which satisfies the requirements of the cited standard. The red striping was clearly an adequate ‘telltale’. This sub-Item is, therefore, VACATED.

d) It is alleged in this sub-Item that ‘the outfeed roller casing conveyor from No. 1, 2, 3 head rigs did not have a crossover to protect employees from being struck by lumber being conveyed by the power rollers from the head rig’. There is clear evidence establishing this violation. During the inspection the CSHO was actually in the path of a cant being propelled along this conveyor as he crossed over the conveyor. He was on a passageway crossing through the conveyors when he noticed a large cant moving towards him and stepped out of its way. He was told that this was the usual way that the men crossed and that they had done so for many years. He observed two employees, other than the inspection team, use the passageway in crossing the conveyors.

Respondent does not dispute the facts testified to by the CSHO. Respondent only argues for dismissal of this sub-Item on the basis of the failure of the CSHO to leave copies of the cited ANSI and Building Exits standards. As noted above, this failure does not invalidate the issuance of the Citations. The conditions established by the evidence here are a violation of the safety standard cited. This sub-Item is AFFIRMED.

The gravity of the violation covered by this sub-Item is considered to be moderate. Two employees were observed crossing the conveyor while the roller casings were in operation. Five employees work in the immediate area. The CSHO was told that the employees always crossed in that particular manner. Many of the cants powered along the conveyor are quite large, weighing as much as 75 pounds each.

Complainant proposed a combined penalty of $65 in connection with the 4 sub-Items of this Item. Three of the sub-Items are vacated herein and the fourth sub-Item, (d), is considered to be moderate in gravity. Giving due consideration to the criteria set forth in Section 17(j) of the Act it is concluded that a penalty of $25 is appropriate in this instance and will serve to effectuate the purposes of the Act.

ITEM 3—1910.265(e)(1)(vii)—penalty proposed $0

This Item alleges that Number 1, 2 and 3 head rigs did not have rail sweeps on their outside U-rails. The evidence clearly establishes that each head rig was only fitted with a rail sweep on the inside rail. There were no sweeps on any of the outside rails. Respondent admits this fact in its brief. However, at the same time Respondent argues for dismissal of this Item on the basis that there is no showing that debris collects on the outside rails and thus there is no need to have rail sweeps on them.

The CSHO did not observe any debris on the outside rails during the inspection. He asked Respondent’s Assistant Safety Director (Arnett) whether debris accumulated on the outside rails. The response was that their major problem was with debris accumulating on the inner rails. He did not dispute the possibility of debris lodging on the outer rails nor did he admit that debris was any problem on the outer rails. During his testimony at the trial Arnett states that they have never known or observed the accumulation of debris on the outer rails. He admits the problem with respect to the inner rail and states that they have fitted sweeps on them. Although there is no clear testimony of the presence of debris collecting on these outer rails, the exhibits introduced in connection with this Item indicate the possibility of such an accumulation occurring. Note the sawdust and chips along the entire length of each outer rail.

The cited standard reads, ‘(vii) Sweeping devices. Carriage track sweeping devices shall be used to keep track rails free of debris.’ This wording seems to indicate that rail sweeping devices are required if debris collects on the tracks. Since there is no clear showing on this record that such a condition exists at Respondent’s workplace there is no reason to require the installation of sweeps on the outer rails. In addition, it is particularly noted that this record does not indicate or even hint at the presence of any employees working at or being in the vicinity of these head rigs. Thus there is no proven employee exposure to any hazard which might exist at the cited location. Under these circumstances it is found here that Respondent has not violated the safety standard cited in connection with this Item. The Item is VACATED.

ITEM 10–1910.212(a)(1)— (5 sub-Items)—penalty proposed $85

Sub-Items (a), (b) and (e) of this Item allege that Respondent failed to guard the tail pulleys on each of 3 separate conveyors. In the Citation it is charged that this was in violation of the safety standard codified at 1910.212(a)(1). This cited standard is the first paragraph of the general safety requirements applicable to all machines. Under the provisions of 1910.5(c)(1), 1910.212(a)(1) is a ‘general’ standard as opposed to a ‘specific’ standard. In pertinent part section 1910.5(c)(1) provides:

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process . . .

Since there is a group of safety standards that specifically apply to conveyors and provide for employee safety in connection with the installation and operation of such machinery (see 1926.555 and ANSI B20.1–1957 cited therein) those standards are applicable to the cited conveyor pulleys. Complainant should have cited them rather than the general machine safety standard cited and relief upon in this instance. Secretary v. Sun Shipbuilding and Drydeck Company, 4 OSAHRC 1020 (1973).

It is noted here that, in addition to citing an improper standard, Complainant has failed to establish a violation in connection with any of these three pulleys. In each instance the sides of the pulleys and the in-going nip points are fully guarded. The pulley cited in sub-Item (a) is also somewhat guarded by location since it is 23 inches in back of a frame that bars close approach to it. Accordingly, sub-Items (a), (b) and (e) are VACATED.

c) This sub-Item alleges that a crushing wheel in the chipper room of the plywood plant was not guarded. The crushing wheel in question is located inside a small room where no employees work. The nearest employees are outside There is no need of an employee being in the room while the wheel is in operation. A millwright looks in the door approximately 4 times a day for a visual observation of equipment in the room but does not lubricate or adjust it while it is in operation. The wheel is located at some distance from the entrance door to the chipper room. As the door is entered, other machinery with expanded metal guards over it blocks direct approach to the danger area. The wheel is thus guarded by location within the room as well as by the fact that no employees work in the room. The evidence offered does not establish the exposure of any of Respondent’s employees to danger from the crushing wheel. Accordingly, this sub-Item is VACATED.

d) This sub-Item alleges that unguarded rotating wheels were located 6 feet 9 inches above the floor of a passageway under the trim saw and panel turner in the plywood plant. The facts are undisputed. The wheels are located at the height indicated. However, they are about 2 feet to one side of the path ordinarily followed by employees using the passageway. It is the ordinary route used by employees moving from one part of the plant to the other. Three or four employees were observed using the passage. During the inspection the wheels were turning slowly and were unguarded. The outer surfaces of the wheels are smooth and do not have any keyways, slots or screw heads protruding from them.

Respondent argues that this sub-Item should be vacated. It is urged that the cited rotating wheels are mechanical power transmission apparatus and thus should have been cited under the safety standards specifically applicable to such equipment rather than the general machine safety standard relied on here. There is nothing in this record which would indicate that these rotating wheels are any part of mechanical power transmission apparatus. The only indication is that the rotating wheels were part of the machinery of the trim saw and panel turner. As such they are covered by the general machine safety standards found at 1910.212(a)(1). The standard has been violated as cited and is AFFIRMED.

The gravity in this instance is extremely low. The location of the unguarded rotating wheels 6 feet 9 inches above the floor of the passageway, taken in conjunction with their smooth outer surfaces makes it highly unlikely that anyone will become entangled in them. Under these circumstances a penalty of $0 is deemed appropriate.

ITEM 11–1910.213(r)(4)— penalty proposed $0

This Item alleges that the trim saws on the ends of grader table No. 6 and 7 in the moulding shop need a barrier guard around the saw blade to prevent an employee from coming into contact with the saw blade. The trim saw cited had recently been moved into the new moulding plant from its old location. The barrier guards previously in place around it had not been replaced in position after the saw been off the saw for at least two days at the time of the inspection. Under these circumstances there is a clear violation of the cited standard. Item 11 is AFFIRMED.

At the time of the inspection the upper portion of each blade was necessarily unguarded so that the saw could be used as intended. Because of the manner in which the saw is used the operator never approaches to closer than five feet from either of the blades. In this way the operator is protected from the danger of the two saw blades by the location of his work station. However, without barrier guards other employees working nearby are not barred from approaching and entering the danger zone. This danger is somewhat reduced since the men picking up the lumber scraps around the saw never approach it while the saw is in operation. Under all of the circumstances here it is found that the gravity of this violation is very low. The absence of the barrier guards has been very short in duration and thus the exposure of employees has been held to a minimum. Note that the guards were reinstalled before the CSHO left the plant. Accordingly a penalty of $0 is found to be appropriate here.

ITEM 12—1910.213(i)(1)—penalty proposed $70

This Item alleges that approximately 1/2 of three separate spoked wheels on the veneer core bandsaw were not guarded. From the evidence it is apparent that 1/4 to 1/2 of each of three wheels were not enclosed. Respondent admits this in its brief. Respondent’s witness also admits that there was nothing to keep an employee from approaching the unguarded wheels. The area around the wheels would be considered a work station for millwrights in that they come through the area on maintenance rounds. Item 12 is AFFIRMED.

Gravity here is rather low since the nearest work station is 20 to 25 feet away. The operator who loads this machine apparently never comes around to the side where the unguarded wheels located. Millwrights may come into the area on occasion for inspections and maintenance. Respondent installed hinged covers over the danger areas within 2 to 3 months after the inspection. Under these circumstances it is found that a penalty of $25 is appropriate.

CITATION NUMBER TWO—REPEATED NON-SERIOUS—Penalty proposed $100

ITEM 1–1910.219(i)(1)–3 sub-Items

This Citation alleges that 3 specific couplings were observed to be in ‘repeated’ violation of the cited safety standard because they were not covered or guarded as required by that standard. The safety standard cited in the Citation was changed by Complainant in its complaint from 1910.219(i)(1) to 1910.219(i)(2). This change is entirely appropriate since .219(i)(1) refers to collars and the violation alleged involves couplings which are covered by .219(i)(2). Respondent has not objected to this amendment of the Citation in the complaint.

In identifying the violations in the complaint which are allegedly ‘repeated’, Complainant omits Citation Number Two from the list. This omission is most appropriate. 1910.219(i)(2) was not cited in the previous inspections. Consequently any violation of that standard which may be established in this proceeding is NOT a ‘repeated’ violation.

Respondent attacks the cited standard, 1910.219(i)(2), arguing that it only states the manner in which couplings are to be constructed, not that covers are required. Based upon this argument, Respondent urges that the standard does not apply to the instant case. This is a fallacious argument. The standard specifically states that couplings shall be constructed so as to present no hazard from bolts, nuts, setscrews or revolving surfaces. However, the standard does permit the use of bolts, nuts and setscrews if they are covered with safety sleeves. They may also be used parallel with the shafting if their heads are countersunk. In this particular instance the outer surfaces of the couplings were smooth without any screws or keyways protruding from them. However, small bolts were protruding from their sides. Thus, under the standard, a safety sleeve should have been in place. A safety sleeve is certainly a cover or guard, the absence of which would be a violation of the cited standard. It is noted that Respondent does not contend that a safety sleeve or any other device was in use to cover the bolts and rotating surfaces involved here. Respondent’s argument must fail.

The coupling involved in Item 1(a) was located on top of a platform some 8 to 10 feet above the floor. Access to the platform was by a ladder with a chain across the top and a sign saying ‘No Admittance’. Although there is no regular workstation on the platform, an employee does go to the platform once a week to oil the machinery—but only when the mill is shut down and the machinery is not in operation. Under these circumstances it is concluded that, even though the coupling is not covered or guarded, there is no violation since there is no evidence in this record of the exposure of any of Respondent’s employees to the hazard. Item 1(a) is VACATED.

The CSHO is unable to recall the specific coupling described in Item 1(b). The photograph taken during the inspection did not turn out. Consequently, there is no evidence on which to base a finding of a violation in respect to Item 1(b). Accordingly, Item 1(b) is VACATED.

The coupling covered by Item 1(c) is located inside the chipper room where there is no work station. It is across the room from the door—with the chipper machine between the coupling and the door. A millwright looks in at the door 4 times a day for a visual inspection of the machinery in the room. He does not approach closer than 64 inches from the coupling. In order to get closer than this he would have to climb over the chipper and through a pit before reaching the coupling. His only purpose for looking into the room is for a visual check of operating machinery. The coupling is thus well protected by location so that employees cannot approach the danger zone.

The foregoing discussion leads to the conclusion that, even though the coupling was not covered with a sleeve or guard, there is no violation since Complainant has not shown any exposure of Respondent’s employees to the hazard of the coupling. Item 1(c) is VACATED.

CITATION NUMBER THREE—REPEATED NON-SERIOUS—(9 sub-Items)—Penalty proposed $180

This Citation alleges that each of the 9 sub-Items was in violation of the safety standard codified at 1910.23(c)(1). However, in the complaint Complainant amends the Citation to allege that sub-Items (a), (b) and (e) are violations of 1910.23(c)(2); that sub-Item (f) is a violation of 1910.23(a)(9); and that sub-Item (g) is a violation of 1910.23(a)(8). The standard allegedly violated in sub-Items (c), (d), (h) and (i) is not changed from the originally cited 1910.23(c)(1).

The complaint also amends the wording describing the alleged violation covered by sub-Item (g) to read: ‘A floor hole on walkway along veneer belt to incline drier approximately 12 feet above next lower level in the plywood plant was not guarded or covered, contrary to 29 C.F.R. (sic) 1910.23(a)(8);’.

In addition, the complaint amends the amount of penalty sought in connection with this Citation so as to reduce the total amount sought from $180 to $130. This amendment also apportions the proposed penalties so as to seek a penalty of $80 in connection with combined sub-Items (c), (d), (h) and (i); $50 in connection with combined sub-Items (a), (b) and (e); and SO in connection with combined sub-Items (f) and (g).

Respondent has not objected to these amendments and there is no showing in this record of any prejudice to Respondent arising from them. Accordingly they are allowed and are the basis for consideration of Citation Number Three herein.

Complainant has classified the violations alleged in Citation Number Three as being ‘repeated’. This classification is based upon the fact that violations observed during earlier inspections were cited under this same safety standard [1910.23(c)(1)] on citations previously issued to Respondent and now final orders. As noted above, Complainant has amended this Citation with reference to 5 of the 9 sub-Items [(a), (b), (e), (f) and (g)] and thus removed them from the category of ‘repeated’ violations since the safety standard now relied on in connection with them does not appear in the previous Citations offered in evidence herein.

ITEM 1(a)—1910.23(c)(2)—as amended

It is alleged that a ‘walkway’ to a hoist did not have a guard rail installed as required by the safety standard cited, which referred to ‘platforms’. The originally cited standard was subsequently amended to refer to the ‘runway’ standard. The area described in the evidence is not a passageway leading to another location, nor does it fit the definition of a ‘runway’ as that term is defined in 1910.21(a)(5). The area cited is for the limited purpose of using and moving the tail pulley located adjacent to it. Such use occurs about 5 or 6 times a year. It thus clearly appears that this area is a ‘platform’ under 1910.21(a)(4). As such, the safety standard controlling is that found at 1910.23(c)(1). Complainant has cited an inapplicable standard.

In addition, there is no specific evidence that the platform did not have a guard rail. The CSHO states that it did not, but at the same time admits that it did have some superstructure. The photograph offered by Respondent shows the platform with a guardrail consisting of a top and a middle rail and what appears to be toeboards. It is true that the photograph was taken 2 or 3 months after the inspection, but Complainant did not challenge whether the scene depicted was the same as that observed at the time of the inspection. From the evidence it is concluded that there was a railing around the ‘platform’. Item 1(a) is VACATED.

ITEM 1(b)—1910.23(c)(2)—as amended

It is alleged here that there was no midrail on one side of the middle walkway of the tray system of the dry kiln. The evidence establishes the presence of a regular guard rail and midrail along the side of the walkway opposite the tray system. It also shows that there was a guard rail along the side next to the tray system but that the midrail was missing for the entire length along that side. Apparently employees use pike poles along this walkway to straighten the lumber on the tray system and to clear jam-ups. The poles are used through the open space where the midrail would be located.

Following the inspection, Respondent installed a midrail along the inner side of the walkway. This midrail has created problems in connection with the use of the pike poles. The employees are now complaining about these difficulties. Respondent argues that the provisions of the second paragraph of 1910.23(c)(2) should be applicable to the conditions involved with this particular walkway. That paragraph permits the omission of the rail on one side of a walkway used exclusively for special purposes. Respondent urges that the greater problems encountered by its employees in using the pike poles because of the presence of the new midrail, taken together with the special use of the walkway, bring it within the coverage of the second paragraph.

This argument is well taken. Even though the evidence in this record with regard to the use of the walkway is rather meager, there is sufficient to sustain the conclusion that it is used exclusively for the special purpose of keeping the lumber on the tray system straight. There is no evidence showing any other use of the walkway. Under these circumstances it appears that the walkway comes within the coverage of the second paragraph of 1910.23(c)(2). There is no need for Respondent to seek a variance in this regard. The provisions of the paragraph suffice to authorize the situation found during the inspection.

Accordingly, it is concluded that this walkway was not in violation of the cited section of the safety standards because it falls within the special provisions of the second paragraph thereof. Item 1(b) is VACATED.

ITEM 1(c)—1910.23(c)(1)

It is alleged that employees walk across the tipple in the dry kiln for maintenance of chain drives and that no guard rail or midrail is installed to protect them in crossing. The evidence establishes that there are no guard rails of any sort across the superstructure of the tipple in the area where to CSHO indicates that men walk. It is also true that the CSHO does not indicate where or in what manner the guard rails should have been installed. He did not see anyone cross the tipple during the inspection. The only indication he had of men making such a crossing was that he was told that occasional maintenance was performed on the machinery.

Respondent’s witness states that the chains and sprockets are self-lubricating and that the only time employees cross the tipple is on the occasional times that maintenance is required. He testifies that this occurs about once a year. When it becomes necessary for employees to cross the tipple for such maintenance the top of the tray system is full of lumber as shown in Exhibit T.

Under these circumstances there is no violation of the cited standard. Complainant has not established exposure. The lumber on the tray system makes a wide and apparently safe place on which the employees may cross. The evidence does not show anything to the contrary. There is no showing of the employees crossing except for the infrequent maintenance. Item 1(c) is VACATED.

ITEM 1(d)—1910.23(c)(1)

It is alleged that the platform at the top of the stairway to an overhead crane had a bent and twisted guard rail and was not fitted with a midrail. The CSHO did not observe any employee use the stairway or platform. He was told that the stairway and platform were virtually not used anymore. He observed the crane in operation but agrees that there may have been access to the crane on the other side of the building.

Respondent’s witness testifies that the cited stairway and platform was used by the crane operators until 1969 when new cranes were installed. There was a sign at the foot of the stairs restricting its use to ‘authorized employees’. Since the installation of the new cranes in 1969 the cited stairway and platform have not been used because new access ladders were installed on the other side of the building at the same time. The cited stairway and platform do not lead to the cranes and they are not used for emergency access. The witness admits that they have not been removed or blocked off.

Complainant has not established the exposure of any employee to the danger inherent from the distorted guard rail and missing midrail. There is no violation of the cited standard. Item 1(d) is VACATED.

ITEM 1(e)—1910.23(c)(2)—as amended

It is alleged that a walkway to the unstacker operator’s station at the dry sorter did not have a guard rail. Respondent admits the absence of the guard rail in an area 5 feet wide but argues that the walkway is not a ‘runway’ and that the loads of lumber on the lift form an effective guard. Respondent is in error on both points. The area cited is used by the unstacker operator to gain access to his operating booth. It thus fills the purpose of a runway as that term is defined in 1910.21(a)(5). Respondent admits that there are times when the loads do not form a barrier because there is no load on the lift. Respondent also admits that maintenance men, in addition to the unstacker operator, use the area from time to time. Following the inspection, Respondent installed a guard rail without finding it difficult or expensive.

Under the foregoing circumstances it is clear that Respondent violated the cited standard. Item 1(e) is AFFIRMED.

ITEM 1(f)—1910.23(a)(9)—as amended

It is alleged that two ‘floor openings’ next to the press charger were not guarded. The openings in question are approximately 2 feet square. The evidence is that these openings are filled (obstructed) with the lift machinery of the press charger when that machinery is in the down position. When the lift machinery is in the up position the openings are open and unobstructed. When in operation the lift machinery cycles about every 20 minutes. The openings are clear (unobstructed) for about 5 to 10 minutes during each 20 minute cycle. At least one employee works in the close vicinity of the openings, using the control panel located within 8 inches of one of the openings.

Respondent admits that these openings are not guarded or covered but argues that the standard cited does not apply to the situation described by the CSHO. The standard, 1910.23(a)(9), applies by its terms to ‘floor holes’. The ‘openings’ described by the CSHO are clearly not ‘floor holes’ as that term is defined in 1910.21(a)(1). The instant openings are larger than the holes covered by that section and do not fit into any of the use categories described therein. The openings at issue here could, and probably should, be considered to be ‘floor openings’. However, if so classified they would be excluded from coverage under 1910.23 because of the last sentence of the 1910.21(a)(2) definition of ‘floor openings’. That sentence excludes ‘floor openings’ occupied by ‘elevators . . . machinery . . .’ from the definition of floor openings. Accordingly, since the lift machinery for the press charger occupies the openings during the major portion of any cycle, they are excluded under this provision. Item 1(f) is VACATED.

ITEM 1(g)—1910.23(a)(8)—as amended

This alleged violation is described in the Citation as, ‘An open sided floor on a walkway along veneer belt to incline drier approximately 12 feet above next lower level was not guarded, in plywood plant’. The safety standard at 1910.23(c)(1) was cited in the Citation. The complaint amends the wording of this violation to, ‘A floor hole on walkway along veneer belt to incline drier approximately 12 feet above next lower level in the plywood plant was not guarded or covered, contrary to 29 CFR 1910.23(a)(8)’. Since Respondent has not objected to this amendment of the Citation, the evidence will be evaluated with respect to the allegations as set forth in the complaint.

The walkway involved here was 200 feet long. Prior to the inspection Respondent installed guardrails along each side of the walkway. In the process, the walkway was widened. At the time of the inspection the guardrails had been completed but there was a hole or opening remaining in the surface of the walkway adjacent to the guardrail on one side. The hole was 6 to 8 inches wide and ran the full 200 foot length of the walkway. Respondent’s witness is not certain as to the length of time the hole had been in existence—whether one or two weeks, or less. Respondent admits the existence of the hole but argues that the violation should be considered to be de minimis because the walkway is only used for maintenance purposes by one employee on the average of about once per shift.

From the foregoing it is concluded that Respondent was in violation of the safety standard found at 1910.23(a)(8). The violation, as described following amendment in the complaint, is AFFIRMED. The violation is clearly more substantial in extent than is indicated by the classification of de minimis.

ITEM 1(h)—1910.23(c)(1)

It is alleged that employees walk on a 2 inch by 10 inch piece of lumber to perform maintenance on the tipple. Respondent admits in its brief (page 34) that the location did not have any guard rails but urges that this ‘deficiency is of minimum consequences because of the infrequency of exposure’. The evidence establishes that 2 employees use the area approximately 6 times a year to perform maintenance on some valves located in the area. If there is a breakdown in the area, the boards are used at that time also Item 1(h) is AFFIRMED.

ITEM 1(i)—1910.23(c)(1)

It is alleged that there was no midrail on a work platform on the side of the tipple in the dry kiln. The evidence establishes the existence of a cable installed in the location where a midrail should have been. The cable was a 1/4 inch airplane cable and was installed across one end and along one side of the platform. The other end of the platform, 18 inches wide, did not have a midrail. The platform is used for maintenance of the chains and sprockets in the area on an average of about once a year.

Under these circumstances it is concluded that the only violation—the 18 inch end without a midrail—is a violation which is de minimis in nature. Accordingly, Item 1(1) is AFFIRMED as a de minimis violation.

Of the 9 sub-Items comprising Citation Number Three, only 4 of them are repeat violations of safety standards cited following previous violations. Items 1(c), 1(d), 1(h) and 1(i) cite 1910.23(c)(1). That same safety standard was cited in Item 1 of the Citation which is Exhibit 63 herein. Thus only these 4 sub-Items qualify as ‘repeats’.

Items 1(e), 1(g), 1(h) and 1(i) are affirmed herein. Items 1(e) and 1(g) are first instance violations and Items 1(h) and 1(i) are repeat violations. However, Item 1(i) is classified as de minimis. Under all of the circumstances involved here, including the rather low gravity of those violations found proven and after consideration of the criteria set forth in Section 17(j) of the Act, it is concluded that a penalty of $50 is warranted and appropriate in connection with the four affirmed violations.

CITATION NUMBER FOUR—REPEATED NON-SERIOUS—1910.176(a)

—Penalty proposed $100

Complainant withdrew this Citation in the complaint on the basis that upon further consideration it had determined that the cited standard had not been violated in the manner cited. This withdrawal is GRANTED and Citation Number Four is DISMISSED and VACATED.

CITATION NUMBER FIVE—REPEATED NON-SERIOUS—1910.265(c)(4)(ii)—Penalty proposed $100

It is alleged in this Citation that a walkway 3 1/2 feet above floor level next to the trim saw in the plywood plant had two broken boards. The evidence affirmatively establishes the existence of a small hole about 6 inches long by 1 1/2 inches wide in the surface of this particular walkway. There was also a much smaller crack in the same area. The CSHO states in his testimony that the boards were not completely broken through but that they did sag below the horizontal surface of the walkway.

Respondent admits the existence of these holes, as well as the deterioration of the walkway in the cited area, but argues that the Citation should be dismissed. Respondent urges that, even though the boards were deteriorated, they were sufficiently strong to resist breaking when a 215 pound man jumped on them. The deteriorated boards were located at one end of the walkway where no operator works and where maintenance men are required only occasionally.

Respondent urges that it is unclear as to whether the cited standard applies to this particular walkway. Respondent would consider the cited area as a platform rather than a walkway and thus exclude it from coverage under 1910.265(c)(4)(ii). This argument is without merit. There is no definition in Section 1910.265 for either walkway or platform. However, a platform is defined in Section 1910.21 (a)(4) as a working space for persons and a runway is defined in Section 1910.21(a)(5) as a passageway for persons, such as a footwalk along shafting. Respondent’s witness identifies this area as being used for maintenance—not as a workstation. It is concluded that the cited area is a walkway—not a platform. It is thus covered by the requirements of the standard at 1910.265(c)(4)(ii).

Respondent also urges that the cited standard is unenforceably vague because it does not tell the employer exactly what is required of him. The standard requires that, ‘walkways shall be evenly floored and kept in good repair’. (Emphasis added.) This combination of requirements is sufficient to alert Respondent to what is expected of him. Both of the emphasized terms are easily understood by any person of ordinary intelligence. In this instance the walkway was not evenly floored. One of the boards sagged an inch and a half below the horizontal level of the walkway. This alone causes the walkway to be in violation of the standard. In addition, the known existence of the holes and deterioration clearly establishes that the walkway was not in ‘good repair’.

Citation Number Five is AFFIRMED. The same standard was cited in Item 27 of the citation which is Exhibit 63. This is a ‘repeated’ violation. The gravity is rather low in this instance since the only exposure to the danger occurs when a maintenance man enters the area on an occasional basis. It is not a workstation for any machine operator. The boards were repaired following the inspection. Under all of these circumstances, it is considered that a penalty of $50 is appropriate for this ‘repeated’ violation.

CITATION NUMBER SIX—REPEATED NON-SERIOUS—1910.265(e)(6)(i)(c)—Penalty proposed $100

It is alleged in this Citation that the ‘pineapple’ roll on the lath saw in the lath mill was not guarded. Respondent’s witness (Arnett) admits the absence of the guard from this particular pineapple on the date of the inspection but insists that a guard had been in place within the last 2 weeks before the inspection. The witness did not know and was unable to determine why the guard had been removed. All other pineapples in the plant were guarded. Respondent’s injury record shows that an employee suffered a hand injury on a pineapple in the planing mill on February 23, 1974.

The standard cited appears under a heading dealing with ‘planers’ and provides that ‘pressure feed rolls and pineapples shall be guarded’. The evidence clearly establishes that the pineapple involved here is located on the lath saw and that this particular saw is not a planer in any respect. Respondent argues on this ground that this Citation should be dismissed because the cited standard applies only to planers.

On the facts here Respondent is correct. The standard applies to planers and the machine involved here is obviously a saw—not a planer. Citation Number Six is VACATED.

CITATION NUMBER SEVEN—Merged with and discussed under Citation Number Ten

CITATION NUMBER EIGHT—REPEATED NON-SERIOUS—1910.24(f)—Penalty proposed $100

This Citation alleges that the treads on a ‘stairway’ to an elevated platform in the basement of the sawmill were bent over to the point of creating a slipping hazard. The evidence clearly establishes that the fixture cited is not a stairway—it is a substandard fixed ladder. The fixture was measured following the inspection and found to have a pitch of 61 degrees.

Under section 1910.24(e) a fixed stairway is identified as being inclined at an angle between 30 degrees and 50 degrees to the horizontal. Section 1910.27(e)(1) establishes the pitch preferred for a fixed ladder as being in the range of 75 degrees to 90 degrees. 1910.27(e)(2) identifies ladders with a pitch in the range of 60 degrees to 75 degrees as being substandard. This section of the standard states that pitch in this range (60 to 75 degrees) should be considered a critical range to be avoided if possible.

Since the pitch of the fixture cited here is 61 degrees, that fixture is a ‘fixed ladder’ which is controlled by the safety standards found in 1910.27, particularly 1910.27(e) and (f). Complainant has relied on the standards covering fixed stairways which are inappropriate here. Accordingly Citation Number Eight is VACATED.

CITATION NUMBER NINE—REPEATED SERIOUS—1910.219(f)(3)—Penalty proposed $2000 ITEM 1(a)

This Item alleges that chain drive for the conveyor to the No. 3 hog in the basement of the sawmill was not guarded. Respondent admits that the chain drive was unguarded. It is located on a platform 8 feet above floor level. The platform is accessible by a single ladder which has a chain across the top and a sign stating, ‘Notice—Unauthorized Personnel Keep Out’. One of Respondent’s employees goes to the platform once a week to oil the chain. This oiling is performed on Saturdays when the sawmill is shut down.

Under these circumstances it is clear there is no exposure of Respondent’s employees to any hazard from the unguarded chain. Item 1(a) is VACATED.

ITEM 1(b)

This Item alleges that a chain drive for a belt conveyor in the basement of the sawmill was not guarded. The chain drive was admittedly not fitted with a guard but is located on a small platform accessible only by ladder. The chain drive is actually outside of the standard railing around the platform. The motor and the gear box also prevent someone from stepping into the chain drive. A man comes to the platform 4 or 5 times a day for a visual inspection of the chain drive. The evidence as to whether oiling is required is inconclusive as to the extent of exposure resulting from it.

Under the circumstances of the absence of observed or proven exposure of Respondent’s employees to the hazard of the unguarded chain, Item 1(b) is VACATED.

ITEM 1(c)

This Item alleges that a slab chain drive on head rig No. 3 in the sawmill was not guarded. This particular chain drive had been guarded but the guard admittedly had been removed prior to the inspection, rendering it unguarded. The guard was located following the inspection and returned to its proper position. It was found at some distance from the chain drive. The only approach to the chain drive is practically directly over the motor which is 18 to 20 inches long. Servicing is accomplished approximately once a week while the machine is shut down.

The evidence places this particular chain drive in such a position as to be guarded by location so that it does not pose any realistic danger to employees. Item 1(c) is VACATED.

ITEM 1(d)

A chain drive on the outfeed to the trimmer in the sawmill allegedly was not guarded. This chain and sprocket was located about 2 feet above the floor, some 8 inches in back of a pipe guard and 5 to 6 inches in back of and under the edge of the machine framing. It was under the framing so as to be guarded except from below. The pipe guard, installed following a previous OSHA inspection, was passed as satisfactory after a re-inspection by the first OSHA inspector. Respondent has added a guard over the nip point since the March 1974 inspection. There is nothing to support Respondent’s contention that this chain drive is part of a conveyor as opposed to power transmission apparatus.

Under the circumstances shown here it is clear that this chain drive was adequately guarded. Respondent had been so advised previously. There is no violation. Item 1(d) is VACATED.

ITEM 1(e)

A chain drive on the package maker in the dry kiln green chain area was allegedly unguarded. The chain and sprocket involved here are located some 20 inches above the floor or working level. The danger area (ingoing nip point) is 10 inches in back of a vertical frame and under the surface of the machine. Respondent had installed a partial guard which is 6 inches to the right of the nip point, leaving the actual danger point open. There is no evidence establishing this particular chain drive as being part of a conveyor as opposed to power transmission apparatus.

Under these circumstances it appears that the danger area was adequately guarded by location. Item 1(e) is VACATED.

ITEM 1(f)

Two chain drives, one in the middle of the tipple frame and one on the opposite end of the tipple allegedly were not guarded. The sprocket in the middle of the tipple frame was inaccessible except by walking on a narrow beam. It was some 10 to 12 feet from the nearest walkway. The other sprocket (on the end of the tipple) was near a platform used about once a year for maintenance when the machinery was shut down.

Accordingly, there being no exposure to any danger since these sprockets are guarded by location, Item 1(f) is VACATED.

ITEM 1(g)

This Item alleges that a chain drive on the sorting chain in the shipping department was not guarded. The evidence locates this chain drive 4 inches above the work platform. The actual danger point is beneath the sorting table and back from the edge 12 to 18 inches, depending on the witness testifying. There is a chain return trough between the drive and the edge of the sorting table, being 10 to 15 inches closer to the work platform than the chain drive. This chain return trough acts as a partial guard.

Under the circumstances established here the cited chain drive is fully guarded by location under and recessed from the edge of the sorting table and with the chain return trough in front of it. Accordingly, Item 1(g) is VACATED.

ITEM 1(h)

The back side of a chain drive on the moisture content machine in the plywood plant is allegedly not guarded. At the time of the inspection the chain drive in question was fitted with a guard covering and enclosing its face and perimeter. The perimeter guard extended 4 to 6 inches towards the machine from the sprocket so that the sprocket was recessed 4 to 6 inches under the protection of the perimeter guard. In addition, the shaft mounting and bearing fitting blocks access to any danger.

The guard fitted on this chain drive adequately protects this chain from access. Item 1(h) is VACATED.

ITEM 1(i)

The back side of a chain drive on the dry chipper in the plywood plant was allegedly not guarded. This cited chain drive is also guarded and fully enclosed on its face and perimeter with the perimeter guard extending a fair distance towards the motors. Access from the backside of the chain (the side towards the motors) was blocked by the motors and other machinery in the area.

This chain drive is adequately guarded by the face and perimeter guard and location so as to prevent access to the danger area. Item 1(i) is VACATED.

ITEM 1(j)

It is alleged that two chain and sprocket drives, 6 feet 7 inches above floor level, on the trim saw were not guarded. These 2 chain and sprocket drives were admittedly not guarded in any way. It is possible to enter into the danger area by passing between the post located in line with the side of the conveyor and the stacks of veneer stored nearby. This open space is usually 3 to 3 1/2 feet in width. Employees enter into the area from time to time even though there is no regular workstation located in that area. No employees were observed in the area during the inspection.

Under these facts Complainant has established the existence of a violation. The gravity here is very low since there is no clear routine exposure—it appears that any exposure would be happenstance only since there is no workstation in the area. Item 1(j) is AFFIRMED.

ITEM 1(k)

It is alleged that a chain drive approximately 12 inches above the floor under the trim saw in the plywood plant was not guarded. The cited sprocket is set back under the machine a distance of 27 inches from the machines side. The only time an employee would approach the sprocket is while he is cleaning the debris from under the machine. This is only done where the machine is shut down.

Complainant has not shown any exposure to a danger. The location of this sprocket under the machine is adequate guarding to eliminate any exposure of Respondent’s employees. Item 1(k) is VACATED.

ITEM 1(1)

It is alleged that a chain drive approximately 12 inches above the floor on the chipper in the plywood plant was not guarded on the backside. The face and perimeter of this sprocket is completely enclosed and guarded. The guard has a horizontal width of at least 4 inches extending towards the machine. The bracket support for the guard and the bearing housing on the shaft support obstruct access to the danger point. The Citation erroneously alleged this location as being on the ‘chipper’ when it is actually on the ‘clipper’.

The guarding by installed guard and location adequately precludes entry of Respondent’s employees into the danger area. Item 1(l) is VACATED.

ITEM 1(m)

It is alleged that a chain drive on the trim saw in the plywood plant located 36 inches above the walkway was not guarded. The unguarded sprocket is actually located ‘close up’ under the trim saw and set back 24 inches from the side of the walkway in such a manner as to be fully guarded from accidental access.

This sprocket and chain are guarded by location against access. Item 1(m) is VACATED.

ITEM 1(n)

This Item alleges that the back side of a chain drive for belts on the lay-up line in the plywood plant was not guarded. The face and perimeter of this chain drive is fully covered and enclosed by a metal guard. Access to the nip points behind this guard is precluded by the machine fittings in the vicinity of the sprockets. These fittings include the piping and gauges at the lower end and the flat plate at the upper end which comes to within 1/2 inch of the guard.

Complainant has not established any violation here. Item 1(n) is VACATED.

ITEM 1(o)

It is alleged that a chain drive on the scissors hoist feed to the lay-up line in the plywood plant was not guarded. Admittedly both sprockets were unguarded. The danger point (ingoing nips) was not guarded in any manner. An operator works within 10 feet of that point and is not restricted from access to the danger point. The veneer is loaded on the scissors hoist by a lift truck.

Complainant has established a violation here. Item 1(o) is AFFIRMED. Gravity here is less than moderate since the employees most likely to be exposed actually start and stop the movement of the chain. It only moves 4 to 8 feet at a time.

ITEM 1(p)

It is alleged that there was no guard covering the ingoing nip point on a chain drive on the re-dry infeed to the inline drier in the plywood plant. This ingoing nip point admittedly is unguarded. There is nothing to keep anyone from walking into the danger area. Approximately 10 men per hour pass this point, turning around the end of the machine. Some of them pass on bicycles. The CSHO observed at least 10 employees in the area. The cited machine is used not more than a couple of hours every 2 weeks to continue work when the belt system to the in-line drier breaks down.

Complainant has established a violation here. Item 1(p) is AFFIRMED. Gravity is very low since the machine is only used a couple of hours every 2 weeks. When in use it only moves stacks of veneer a short distance at a time and then only when the operator activates it.

ITEM 1(q)

It is alleged that 4 chain drives, 2 feet to 7 feet above floor level, on the tipple roll in the plywood plant were not guarded. These chain drives were admittedly completely unguarded from one side at the time of the inspection. Respondent’s witness insists that they were fully guarded not over 1 1/2 months before the inspection. However, at the time of inspection an employee could walk right into them.

The evidence establishes a violation here. Item 1(q) is AFFIRMED. Gravity is moderate since the nearest work-station is 15 to 20 feet away and 10 employees were observed using the walkway passing near the area.

ITEM 1(r)

It is alleged that a chain drive on the unit intake in the stud mill was not guarded. This chain drive was fully guarded until the swing shift on the night before the inspection. During that work period a load of lumber shifted and dislodged a length of the guard which had been previously spot-welded in place. The day crew had not yet replaced it.

There is an admitted violation here. Item 1(r) is AFFIRMED. Gravity is very, very low since the guard was only off for a few hours and employees ordinarily do not approach very close to the area.

ITEM 1(s)

It is alleged that a chain drive on the barker surge bin was not guarded. This chain drive was admittedly unguarded. It is located on a small platform 10 to 12 feet above the ground. The only employees who would climb to the platform are maintenance men. Respondent’s witness estimates such maintenance visits at a frequency of once a week.

There is a clear and obvious violation here. Item 1(s) is AFFIRMED. Gravity is a little less than moderate since there is absolutely no guard around this chain drive and exposure of at least one employee occurs each week.

ITEM 1(t)

It is alleged that the back side of a chain drive for rolls on the veneer core band saw in the plywood plant were not guarded. This chain was covered on its face and perimeter by a full metal guard. The perimeter guard was about 2 1/2 inches wide. Respondent’s witness states that it is possible to move along next to the guarded side of the chain but that it is not a walkway and does not lead to any other area. He has never seen any employees in the area.

The evidence establishes the existence of a guard over the face and perimeter together with a lack of access. Item 1(t) is VACATED.

Six of the 20 Items of violations alleged in this Citation are affirmed here. The standard violated in each of the six instances here, 1910.219(f)(3), was also violated in Item 22 of Exhibit 63 and Item 20 of Exhibit 64. Since the standard violated is the same in each case these 6 affirmed Items are ‘repeated’ violations.

Each of these 6 violations are serious in that any employee unfortunate enough to become entangled in a chain and sprocket will surely suffer serious injury or amputation. In the instance of fast moving chains an employee could very easily be killed.

Giving due consideration to all of the Section 17(j) criteria, including the gravity as discussed in connection with the affirmed Items and the fact these are all ‘repeated’ violations it is concluded that a penalty of $300 is appropriate in connection with the serious violations found here. The great number of properly guarded sprockets has also been given appropriate weight here.

CITATION NUMBER TEN—REPEATED SERIOUS—Penalty proposed $2000

ITEM 1—1910.219(e)(3)(i)—

(a) It is alleged that the lower run of a vertical belt and pulley system on head rig No. 2 in the basement of the sawmill was inadequately guarded in that the side of the belt and pulley were exposed. The evidence establishes the location of the belts involved here as being 31 and 45 inches in back of some metal framing. There is a gap in the framing through which an employee might reach and touch the belt but such reaching would have to be deliberate. There is no showing of the exposure of any pulley. A guard fully enclosing these belts was installed within 3 months after the inspection.

The evidence does not establish any violation here. Item 1(a) is VACATED.

(b) It is alleged that a vertical belt and pulley system on the lath saw in the lath mill did not have the nip point guarded. Respondent admits that the nip point was exposed in this instance but would minimize this by noting that only one man works in the area and that his workstation is on the opposite side of the saw.

There is a clear violation here. Item 1(b) is AFFIRMED. Gravity is less than moderate since most of the areas of the belts are fully covered. Only one employee works in the area. Others may pass on occasion.

(c) It is alleged that a vertical belt on the saw grinder in the file room of the plywood plant is unguarded. The belt cited here was a single strand 3/8ths inch V belt. It moved at the rate of 12 feet per minute. It is thus excluded from the provisions of 1910.219 by the specific provisions of 1910.219(a)(1). Item 1(c) is VACATED.

(d) It is alleged that the lower run of a vertical belt drive on the conveyor that dumps into the Lilly Pad chipper in the barker was unguarded. The evidence clearly establishes the absence of any guard on this belt and pulley. The lower portion of the pulley is 62 inches above the first step down from the dead end platform. The pulley and belt are set back about 1 foot from the nearest side of the stairway.

The evidence establishes a violation. Item 1(d) is AFFIRMED. Gravity here is less than moderate because the danger is somewhat removed from accidental encounter, being substantially out of reach. The platform is used monthly for maintenance.

Two of the 4 sub-Items of alleged violation in Item 1 are affirmed here. The standard violated here, 1910.219(e)(3)(i), was also violated in Item 19 of Exhibit 64. Since the standard violated is the same in each case these 2 affirmed sub-Items are ‘repeated’ violations.

There is no showing in the evidence here that potential injuries arising from these violations will probably result in death or serious physical harm. These 2 violations are non-serious.

ITEM 2—1910.219(e)(1)(i)—

(a) It is alleged that a horizontal belt drive on the air compressor in the dry sorter was not guarded. This belt was not fitted with any guard. However, it was on the side of the compressor next to a wall where no one could pass between it and the wall. The tank and compressor machinery was 30 inches wide putting that much space between the belt and anyone approaching it. In short it was effectively guarded by position. The compressor, although in operating condition, had not been operated in the month preceding the inspection and was not operated subsequent to the inspection. However, a guard was installed after the inspection.

There is no violation here because of the location guarding preventing exposure to the hazard. Item 2(a) is VACATED.

(b) It is alleged that a horizontal belt drive on the saw grinder in the saw filing room of the planer mill was not guarded. This particular belt was unguarded as observed by the CSHO. However, he did not see the belt in operation or the machine set up as it would be when operated. The machine is used to sharpen saw blades. When a saw blade is installed in position for sharpening, the saw blade effectively protects the cited belt from access. The cited belt drives the grinding wheel which is only activated after the saw blade is in position for sharpening. The grinding wheel is idle at all other times, including during the placing of a saw blade in position for sharpening.

There is no violation here because the saw blade effectively guards the cited belt. Item 2(b) is VACATED.

CITATION NUMBER SEVEN—REPEATED NON-SERIOUS—Combined with Citation Number Ten pursuant to previous discussion

ITEM 1—1910.219(e)(1)(i)

(a) It is alleged that a horizontal flat belt and pulley drive on the skinner saw in the plywood plant were not guarded. This belt and pulley were unguarded exposing the ingoing nip point. However, the belt and pulley are set back at least 10 inches inside two guard rails so that it is somewhat inaccessible. Respondent argues that this is a conveyor rather than a power transmission apparatus. The CSHO testified that material is carried on the belt. Respondent is thus correct. It is a conveyor.

Since Complainant has cited an inappropriate standard, Item 1(a) is VACATED.

(b) It is alleged that a horizontal flat belt and pulley on the No. 2 drill press in the basement of the sawmill was not guarded. The belt and pulley were not guarded. However, the provisions of 1910.219(e)(1)(i) do not apply to this belt. It was a leather belt 1 1/4 inches wide. It was used to power the drill press in drilling holes in steel of 1 inch or more in diameter. When working it turned so slowly that the grooves in the drill could be seen.

Under the circumstances established here this belt is excluded from the provisions of 1910.219 by the specific wording of 1910.219(a)(1). Item 1(b) is VACATED.

(c) This sub-Item alleges that a horizontal flat belt and pulley on the sticker belt in the dry sorter was not guarded. This belt and pulley, including the ingoing nip point at the bottom of the pulley, were admittedly unguarded. The belt moves at a rapid pace.

This is a clear violation. Item 1(c) is AFFIRMED. Gravity is considered less than moderate because the nearest work station is 10 feet away in a booth entered from the opposite side. The only exposure comes from an occasional employee, maintenance man or foreman entering upon the closely adjacent platform.

Item 1(c) of Citation Number Seven is the only sub-Item of this Citation which is affirmed. The standard violated here, 1910.219(e)(1)(i), was also violated in Item 18 of Exhibit 64. Since the standard violated is the same in each instance, this affirmed violation is a ‘repeated’ violation.

There is no showing in the evidence here that a potential injury arising from this violation will probably result in death or serious physical harm. This affirmed violation is non-serious.

Complainant classified Citation Number Ten as ‘Repeated Serious’. Citation Number Seven was merged into Citation Ten because the same standard was cited in both. (See discussion above at page 25.) As noted earlier, none of the violations affirmed under Citations Numbers Ten and Seven are ‘serious’. They are considered to be non-serious. They are ‘repeated’, however.

Giving due consideration to the criteria set forth in Section 17(j) of the Act, including the finding that the gravity in each of the three violations is less than moderate, a penalty of $60 is considered to be appropriate for combined Citations Numbers Ten and Seven.

Consequently, based upon the evidence adduced and after full and searching consideration of the record and all of the submissions and arguments of the parties, we make the following:

FINDINGS OF FACT

1. On March 19, 1974 and at all times material hereto Edward Hines Lumber Co., Respondent herein, was engaged in a business affecting commerce within the meaning of Section 3 (5) of the Occupational Safety and Health Act of 1970. On that date Respondent owned and operated a sawmill complex at Hines, Oregon. The sawmill, which covers some 320 acres and employs about 717 out of Respondent’s total of approximately 950 employees, is one of the largest sawmills in the state of Oregon as well as in the nation. (File, Complaint-paragraphs I and II; Admitted in Answer-paragraph I; also admitted during trial-Transcript pg 11; also Transcript pgs 13, 387, 399–402, and 407–408.)

2. On March 19 through 21, 1974 a Compliance Safety and Health Officer (CSHO) inspected Respondent’s sawmill complex at Hines, Oregon on behalf of the Secretary of Labor. The findings and recommendations of the CSHO were submitted to the Area Director on Monday, March 25th. Subsequent to that date and prior to issuance of the Citations the CSHO participated in a number of discussions with the Area Director regarding the inspection. As a result of the inspection Citation Number One (Non-Serious), Citations Numbers Two through Eight (Repeated Non-Serious), and Citations Numbers Nine and Ten (Repeated Serious) were issued to Respondent on Wednesday, April 3rd. On the same date a Notification of Proposed Penalty was also issued to Respondent proposing penalties totaling $5,015 for the 10 Citations. On April 18th Respondent timely contested Citations Numbers Two through Ten as well as Items 1, 2, 3, 10, 11, and 12 of Citation Number One. The contest goes to the alleged violations and the proposed penalties. (File; Transcript pgs 9–10, 12–15, 357, 384–386, and 394–395.)

3. The complaint filed by Complainant on May 15th seeks to amend Citations Numbers 2 and 3 to charge violations of different standards than those cited in the respective Citations. The complaint also reduces the penalty proposed for Citation Number Three from $180 to $130 and apportions this penalty amongst the 9 sub-Items of that Citation. In the complaint Complainant withdraws Citation Number Four on the ground that after further consideration it has been determined that Respondent did not violate the standard cited in Citation Number Four. Respondent filed an answer admitting and denying certain portions of the complaint. Respondent specifically denies that the Citations were issued with reasonable promptness. (File.)

4. Millwrights and maintenance men are employees of Respondent who are assigned to perform routine up-keep, lubrication and repair duties on machinery anywhere in the sawmill complex during their regular workdays. They also perform emergency repairs and up-keep on the same machinery. Their work-stations may be anywhere throughout the sawmill where their services are required. (Transcript pgs 405, 480–484 and 620–627.)

5. The inspecting CSHO did not furnish copies of the standards cited or of the basic ANSI source documents to Respondent at any time during or following the inspection. Respondent did not request such copies during the inspection. (Transcript pgs 55–56 and 417–418.)

6. Respondent’s worksite was previously inspected by OSHA in April and June of 1972. Each of these inspections resulted in the issuance of Citations which have become final orders by reason of Respondent’s affirmative determination to not contest them. (Transcript pgs 360–375, 383–384, 390, 405, 409, and Exhibits 63 and 64.)

7. Alleged violation of the safety standard found at 29 CFR 1910.219(e)(1)(i) was cited on Citation Number Seven in connection with horizontal belts and again on Citation Number 10, Item 2, also in connection with horizontal belts. (File.)

8. Respondent has an organized safety program with the employees divided into approximately 40 safety groups and committees according to the areas of the sawmill where they work. Two supervisory employees oversee the safety program. Many safety publications are issued to the employees, including a regular periodical which, amongst other things, reviews accidents and safety themes. Respondent also has an active incentive awards program to foster and encourage safety consciousness amongst its employees. Safety meetings are held during working hours and first aid training is provided for many of the employees, including the foremen in particular. (Transcript pgs 361, 399, 403–407, 411–417, 422–444, 446–449 and 624.)

9. The operating controls (power switch) on the Delta bandsaw in the electrical shop of the sawmill were not located within easy reach of the operator’s workstation. [Citation Number One, Item 1] The safety standard cited in connection with this alleged violation [1910.213(b)(4)] uses the words ‘should be’ in specifying the degree of compliance with the standard that is required. (Transcript pgs 16–22, 450–456, 630–632, and Exhibit 1.)

10. Two of Respondent’s employees were standing on a conveyor while unplugging a bin. The controls of the conveyor were within view of one of the men but were not locked out so that only the men working to unplug the bin could turn them on. [Citation Number One, item 2(a)] The safety standard cited requires that ‘. . . operation. . . of conveyors shall be in accordance with American National Standard B20.1—1957. (Emphasis added.) This ANSI safety standard [ANSI B20.1, Section 10(f)] is prefaced with a statement which uses the word ‘recommended’ in specifying the degree of compliance to the standard that is required. (Transcript pgs 22–38, 457–458, and Exhibits 2 and 3.)

11. There is no evidence that lumber fell from the feed chain conveyor in the area cited [Citation Number One, Item 2(b)] or that employees crossed under or had occasion to cross under the feed chain conveyor in the manner cited. Lumber did fall from the conveyor at another location where the conveyor changed level and inclination, but that area was 20 to 25 feet away from the cited area and was protected from entry into the danger area by a stretched wire as a barrier. (Transcript pgs 38–47, 458–466 and Exhibit 4.)

12. The low overheads in the passageways under the lumber conveyors on the No. 1, 2, 3 and 4 planers were marked with bright red striping. [Citation Number One, Item 2(c)] The striping was about 4 inches wide and so located as to indicate the lower edge of the overheads as the passageways were approached from either direction. The bright red colored paint satisfies the requirements of a ‘telltale’. (Transcript pgs 48–50, 466–477 and 629–630.)

13. There was no crossover where employees ordinarily crossed the outfeed roller casing conveyor from No. 1, 2 and 3 head rigs. [Citation Number One, Item 2(d)] The passageway crossing the conveyor caused employees using it to step directly into the path of cants, weighing up to 75 pounds, propelled along the conveyor by the power rollers. There was no protection to keep the cants from striking anyone unfortunate enough to be crossing at the moment a cant was propelled along the conveyor. Two employees were observed crossing using the passageway and 5 employees worked in the immediate area. (Transcript pas 50–58 and Exhibits 5, 6 and 7.)

14. Respondent did not have rail sweeps installed over the outer rails on the Number 1, 2 and 3 head rigs. [Citation Number One, Item 3] There is no evidence indicating that any debris collects on the outer rails. Respondent has not had any problem with debris collecting on the outer rails but has had such a problem with the inner rails and has installed rail sweeps over those inner rails. (Transcript pas 58–64, 74–75, 478–479 and Exhibits 8, 9 and 10.)

15. The tail pulleys cited in sub-Items (a), (b) and (e) [Citation Number One, Item 10] are each part of a conveyor system. The sides and in-going nip points of each of these pulleys were adequately guarded. The pulley cited in sub-Item (a) was also guarded by location because of being 23 inches in back of a frame barring close approach to it. (Transcript pgs 64–103, 480–491 and Exhibits 11, 12 and 17.)

16. The crushing wheel in the chipper room of the plywood plant was located inside a small room where no employees worked and where a visual inspection was made 2 times a day from the doorway. [Citation Number One, Item 10(c)] The crushing wheel was located away from the door, with other machinery protected by expanded metal guards located between the door and the wheel. There is no evidence of the exposure of any employee to danger from this crushing wheel. (Transcript pgs 84–88, 504–536 and Exhibits 13 and 14.)

17. Unguarded, rotating wheels were located 6 feet 9 inches above the floor of a passageway under the trim saw and panel turner. [Citation Number One, Item 10(d)] The wheels were about 2 feet to one side of the path usually taken by employees using the passageway. The outer surfaces of the wheels were smooth without any keyways, slots or screw heads protruding from them. There is no indication that these rotating wheels were any part of a mechanical power transmission apparatus. Three or four employees were observed using the passageway during the inspection. (Transcript pgs 88–97 and Exhibits 15 and 16.)

18. There was no barrier guard or other protection around the trim saw blades on the ends of grader table No. 6 and 7 in the moulding shop. [Citation Number One, Item 11] The guards had been removed while transferring the saws to the new moulding plant. They had been off for two days at the time of the inspection and were replaced before the CSHO left the plant. The operator always remains at least 5 feet from either saw. The employees picking up lumber scraps around the saw only perform their duties when the saws are not in operation. (Transcript pag 104–114, 388–390, 491–496 and Exhibits 18 and 19.)

19. Three spoked wheels on the core bandsaw were not guarded over 1/4 to 1/2 of each wheel. [Citation Number One, Item 12] There was nothing to keep employees from approaching the danger area. The nearest work station was 20 to 25 feet from the danger. Millwrights pass through the area in routine inspection and maintenance. Guards were installed within 2 or 3 months after the inspection so as to cover the danger areas. (Transcript pgs 114–121, 497–501 and Exhibits 20 and R.)

20. Three couplings were not fitted with sleeves, covers or guards. [Citation Number Two] Complainant amended this Citation in its complaint so that it is alleged that the standard found at 1910.219(i)(2) was violated rather than 1910.219(i)(1) as cited in the Citation.

a) The coupling involved in Item 1(a) was located on top of a platform with access blocked by a ‘No Admittance’ sign. The only employee approaching this coupling is a maintenance man who goes to the platform once a week to oil the machinery. Such oiling is done only when the machinery is not operating. (Transcript pgs 121–123, 126–129, 503 504 and Exhibit 21.)

b) There is no evidence concerning the location or condition of the coupling cited in Item 1(b). (Transcript pgs 123 and 129.)

c) The coupling involved in Item 1(c) is located inside the chipper room where there is no work station and where direct access to the coupling is blocked by other machinery located between the door and the coupling. A millwright looks in at the door to the chipper room 4 times a day for visual inspection but does not enter the room. (Transcript pgs 124–125, 127, 504–506 and Exhibit 22.)

21. Contrary to the allegations of the Citation [Citation Number Three, Item 1(a)], the platform adjacent to the hoist was fitted with top rail, midrail and toeboards. The area cited as a walkway in the Citation actually fills the function and purpose of, and therefore is, a ‘platform’. (Transcript pgs 130–134, 507–509 and Exhibit S.)

22. There is no midrail along the inner side of the walkway of the tray system of the dry kiln. [Citation Number Three, Item 1(b)] Employees use pike poles along this walk to straighten the lumber on the tray system and to clear jam ups. The ploes are used through the open space where the midrail would be located. The requirement for guard rails is governed by the provisions of 1910.23(c)(2), particularly the second paragraph thereof. (Transcript pgs 134–137, 510–511 and Exhibit 23.)

23. Employees cross the tipple in the dry kiln without the protection of guard rails or midrails. [Citation Number Three, Item 1(c)] Such crossing occurs about once a year when the chains and sprockets require maintenance. The chains and sprockets are self lubricating. When such a crossing is made the top of the tray system is full of lumber making a solid flooring for them to walk on. (Transcript pgs 137–141, 511–514 and Exhibits 24 and T.)

24. The platform at the top of a stairway had a bent and twisted guard rail and was not fitted with a midrail. [Citation Number Three, Item 1(d)] The cited stairway and platform are not in use and have not been used, except very occasionally, since the installation of new cranes in 1969. A sign at the foot of the stairway restricts use of authorized personnel only. There is no evidence of the exposure of any of Respondent’s employees to the cited danger. (Transcript pgs 141–145, 514–516 and Exhibits 24 and T.)

25. A walkway to the unstacker operator’s station at the dry sorter did not have a guard rail in an area 5 feet wide. [Citation Number Three, Item 1(e)] There are times during the operating cycle of the lift when there is no lumber on the lift, thus exposing the unguarded area. The walkway is used by the unstacker operator and by maintenance men. Following the inspection Respondent installed guard rails without finding it difficult or expensive. (Transcript pgs 145–149, 517–520 and Exhibits 26 and U.)

26. Two floor openings next to the press charger were not guarded during a portion of each operating cycle. [Citation Number Three, Item 1(f)] When the lift machinery is in the up position the openings are open and unobstructed. This condition occurs about 4 to 10 minutes out of every 20 minute cycle. One employee works in close proximity to the openings. The openings cited are ‘floor openings’ rather than ‘floor holes’. (Transcript pgs 149–155, 520–255 and Exhibits 27, 28 and V.)

27. Complainant amended this Item of the Citation to allege that a floor hole on a walkway along the veneer belt to the incline drier was not guarded or covered. [Citation Number Three, Item 1(g) as amended in Article XIII of the complaint] There was a hole 6 to 8 inches wide along one side of the walkway for its entire length. It was not covered or guarded. The walkway is used for maintenance purposes by one employee an average of once per shift. (Transcript pgs 155–158, 162–163, 552–553 and Exhibit 29.)

28. Employees walk on a 2 inch by 10 inch piece of lumber to perform maintenance on the tipple without the protection of any guard rails. [Citation Number Three, Item 1(h)] Two employees use the cited area approximately 6 times per year to perform maintenance on valves located in the area. (Transcript pgs 158–161, 524–525 and Exhibits 30 and 31.)

29. The evidence establishes the existence of a cable midrail on a work platform on the side of the tipple in the dry kiln. [Citation Number Three, Item 1(i)] The midrail was missing on one end of the platform which was 18 inches wide. The platform is used on the average of about once a year. (Transcript pgs 163–165, 525–527 and Exhibits 24, 32, 43 and T.)

30. The safety standard cited in Citation Number Three, 1910.23(c)(1), was also violated by Respondent in 1972 at which time this standard was cited as Item 1 of the Citation which is Exhibit 63 herein. Items 1(h) and 1(i) are repeated violations of a standard previously violated by Respondent. (Exhibit 63.)

31. Citation Number Four was withdrawn by Complainant in its complaint. (File-Complaint, Article XIII and Transcript pgs 10 and 166.)

32. The walkway next to the trim saw in the plywood plant was deteriorated at one end with two holes in is. [Citation Number Five] The larger hole was 6 inches long by 1 1/2 inches wide. One of the boards sagged an inch and a half below the horizontal surface of the walkway. None of the boards were broken completely through. Respondent was aware of the holes and the deterioration. There is no work station on the walkway. The cited area is not a ‘platform’. A maintenance man enters the area on an occasional basis only. The boards were repaired following the inspection. (Transcript pgs 166–169, 527–532 and Exhibit W.)

33. The pineapple which was unguarded [Citation Number Six] was part of and attached to the lath saw. It was not in any way attached to nor part of a planer. (Transcript pgs 170–177, 533–534 and Exhibit 33.) The standard cited, 1910.265(e)(6)(i)(c), by its terms applies to planers.

34. The fixture cited as a stairway [Citation Number Eight] was inclined at a pitch of 61 degrees to the horizontal. It is therefore a sub-standard ladder. The standard cited, 1910.24(f) applies to stairways, not ladders. Ladders are covered by 1910.27. (Transcript pgs 192–197, 538–542 and Exhibit 37.)

35. Complainant has not established any exposure of Respondent’s employees to danger from the unguarded chains [Citation Number Nine, Items 1(a), (b), (c), and (f)] cited as violations of 1910.219(f)(3). (Transcript pgs (a) 126, 200–203, 502–503, 544–545 and Exhibits 21 and 38; (b) 204–207, 545–547 and Exhibit 39; (c) 208–211, 547–551 and Exhibit 40; and (f) 225–236, 552–554 and Exhibits 24, 32 and T.)

36. The allegedly unguarded chains [Citation Number Nine, Items 1(d), (e), (g), (h), (i), (k), (l), (m), (n) and (t)] were actually adequately guarded by the guards in place or by the location of each of the chains cited. (Transcript pgs (d) 212–216, 552 and Exhibit 44; (e) 220–225 and Exhibit 42; (g) 237–245, 557 and Exhibit 44; (h) 245–250, 558–560 and Exhibit 45; 212–216, 552 and Exhibit 41; (e) 46; (k) 262–266, 569–572, 615–617 and Exhibit 48; (1) 266–272, 316–317, 356 and Exhibit 46; (m) 272–277, 572–573 and Exhibits 50 and W; (n) 277–281, 574–575 and Exhibit 51; and (t) 306–313, 595–597 and Exhibit 57.)

37. Two chain and sprocket drives on the trim saw [Citation Number Nine, Item 1(j)] were not guarded. Employees enter into the danger area from time to time by access between the post and the stacks of veneer. (Transcript pgs 257–261, 563–569 and Exhibit 47.)

38. Both sprockets and the ingoing nip points on the scissors hoist feed to the lay-up line in the plywood plant [Citation Number Nine, Item 1(o)] were not guarded. An operator works within 10 feet of the danger point. (Transcript pgs 282–287, 575–579 and Exhibit 52.)

39. There was no guard covering the in-going nip point on a chain drive on the re-dry infeed to the inline drier in the plywood plant. [Citation Number Nine, Item 1(p)] Approximately 10 men per hour pass this area which is used about 2 hours every 2 weeks. (Transcript pgs 287–291, 580–583 and Exhibit 53.)

40. Four chain drives on the back of the tipple roll in the plywood plant were unguarded. [Citation Number Nine, Item 1(q)] (Transcript pgs 291–296, 584–585 and Exhibits 30 and 53.)

41. A portion of the chain drive on the unit intake in the stud mill was unguarded. [Citation Number Nine, Item 1(r)] The guard was accidentally dislodged during the swing shift on the night before the inspection and had not yet been replaced. (Transcript pgs 296–302, 585–594 and Exhibit 55.)

42. The chain drive on the barker surge bin was not guarded. [Citation Number Nine, Item 1(s)] The only employees approaching the chain are maintenance men who perform work on it once a week. (Transcript pgs 302–305, 594 and Exhibit 56.)

43. Of the more than 12,000 chains and sprockets at Respondent’s workplace the CSHO only cited 20 as being improperly guarded. (Transcript pgs 199 and 622–624.)

44. The standards codified at 1910.219(e)(1)(i), 1910.219(e)(3)(i) and 1910.219(f)(3) were previously violated by Respondent. (Exhibits 63 and 64.)

45. It is practically impossible to lubricate the chains and sprockets while they are operating. (Transcript pgs 626–627.)

46. The lower run of the vertical belt and pulley system on head rig No. 2 in the basement of the sawmill was at least 31 inches in back of metal framing. [Citation Number Ten, Item 1(a)] The pulleys were not exposed. Respondent fully enclosed these belts after the inspection. (Transcript pgs 318–334, 598–603 and Exhibits 58 and X.)

47. The vertical belt and pulley system on the lath saw in the lath mill did not have a nip point guard. [Citation Number Ten, Item 1(b)] Only one man works in the area. Most of the run of the belts is guarded. (Transcript pgs 323–329 and Exhibit 59.)

48. The vertical belt on the saw grinder in the file room of the plywood plant [Citation Number Ten, Item 1(c)] is a 3/8ths inch V belt. It moves at the rate of 12 feet per minute. (Transcript pgs 334–340, 603–607 and Exhibit Y.)

49. The vertical pulley and belt on the conveyor that dumps into the Lilly Pad chipper in the barker was not guarded. [Citation Number Ten, Item 1(d)] The pulley is removed about 1 foot from the access stairway which is used about once a month for maintenance. (Transcript pgs 341–344, 607–610 and Exhibit 60.)

50. The horizontal belt drive on the air compressor in the dry sorter [Citation Number Ten, Item 2(a)] was on the side of the compressor next to the wall with 30 inches of machinery between it and the approach to it. There was no access between the compressor and the wall. (Transcript pgs 344–348, 610–613 and Exhibit 61.)

51. The horizontal belt drive on the saw grinder in the saw filing room of the planer mill [Citation Number Ten, Item 2(b)] was guarded by the saw blade being sharpened when the cited belt drive is in use. This belt only operates while the saw is actually being sharpened. (Transcript pgs 348–353, 614–615 and Exhibits 62 and Y.)

52. The flat belt and pulley on the skinner saw in the plywood plant [Citation Number Seven, Item 1(c)] are actually a conveyor system which carries materials on the belt. (Transcript pgs 177–183 and Exhibit 34.)

53. The flat belt and pulley on the No. 2 drill press in the basement of the saw mill [Citation Number Seven, Item 1(b)] involve a flat leather belt 1 1/4 inches wide which operates at a very low speed. The drill was used to drill holes of 1 inch diameter or greater in steel. (Transcript pgs 183–196, 534–536 and Exhibit 35.)

54. The horizontal flat belt and pulley on the sticker belt in the dry sorter were not guarded. [Citation Number Seven, Item 1(c)] The belt moves at a rapid pace. (Transcript pgs 187–192, 5360537 and Exhibit 73.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all times material hereto Edward Hines Lumber Co., Respondent herein, was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On April 18, 1974 Respondent filed a letter contesting Citations Numbers Two through Ten and Items 1, 2, 3, 10, 11, and 12 of Citation Number One. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission pursuant to Section 10 of the Act.

2. The Citations herein were issued on the 9th working day following completion of the inspection. Under the circumstances existing in this instance such issuance is with the reasonable promptness required by Section 9(a) of the Act. There is no indication whatsoever that issuance of the Citations was unreasonably delayed or that Respondent has been prejudiced in any manner because of this 9 day period.

3. The amendments to the Citations made by Complainant in its complaint are appropriate and are approved.

4. Citation Number Four was withdrawn by Complainant in its complaint following a determination that Respondent did not violate 1910.176(a) in the manner alleged. Such withdrawal is Granted and Citation Number Four is VACATED and DISMISSED.

5. Failure of the CSHO to furnish Respondent copies of the standards cited, or their sources, does not invalidate the Citations issued to Respondent herein.

6. The inspections of Respondent’s workplace in April and June of 1972 resulted in final orders being entered against Respondent. Any violation of standards cited during the April and June 1972 inspections, found during the March 19th to 21st, 1974 inspection, is a repeated violation within the meaning of Section 17(a) of the Act.

7. Since Citation Number Seven and Item 2 of Citation Number Ten specify violation of the same safety standard, Number 10.

8. The safety standard found at 1910.213(b)(4) is advisory only. Since it is not mandatory, failure to comply with its provisions is not a violation under the Act. (Item 1 of Citation Number One.)

9. The American National Standard standard for conveyors cited in 1910.265(c)(18)(i) [ANSI B20.1, Section 10(f)] is advisory only. Since it is not mandatory, but only recommended, failure to comply with its provisions is not a violation under the Act. (Item 2(a) of Citation Number One.)

10. The standard cited [1910.265(c)(18)(i) which refers to ANSI B20.1 609(a) and 705(b), respectively] was not violated as cited in either instance. (Items 2(b) and 2(c) of Citation Number One.)

11. Failure to have a crossover to protect employees from being struck by lumber powered along the outfeed roller casing conveyor from No. 1, 2 and 3 headrigs is a violation of the safety standard found at 1910.265(c)(18)(i) and ANSI B20.1 705(a). (Item 2(d) of Citation Number One.)

12. The evidence does not establish a violation of 1910.265(e)(1)(vii). There is no showing of any need for a rail sweep on the outer rail of the Number 1, 2 and 3 headings. (Item 3 of Citation Number One.)

13. Items 10(a), 10(b) and 10(e) involve portions of conveyor systems and should have been cited under specific standards applying to such systems rather than the general machine guarding standard cited. (Items 10(a), 10(b) and 10(e) of Citation Number One.)

14. There was no exposure of any employees to danger from the crushing wheel in the chipper room of the plywood plant. (Item 10(c) of Citation Number One.)

15. Failure to have the rotating wheels under the trim saw and panel turner in the plywood plant guarded is a violation of 1910.212(a)(1). (Item 10(d) of Citation Number One.)

16. Failure to have barrier guards around the saw blades at the ends of grader table No. 6 and 7 in the moulding plant is a violation of 1910.213(r)(4). (Item 11 of Citation Number One.)

17. Failure to have the three spoked wheels on the veneer core band saw in the plywood plant fully guarded is a violation of 1910.213(i)(1). (Item 12 of Citation Number One)

18. There is no exposure of employees to the danger of the unguarded coupling on the motor for the hog conveyor in the basement of the sawmill or to the coupling on the drive motor in the chipper. (Items 1(a) and 1(c) of Citation Number Two.)

19. Complainant did not offer any evidence in connection with Item 1(b) of Citation Number Two.

20. Since there was a guard rail around that platform to the hoist by the No. 1 edger in the sawmill there was no violation. (Item 1(a) of Citation Number Three.)

21. The middle walkway on the tray system in the dry kiln was a walkway used exclusively for a special purpose. Accordingly failure to have a midrail along its inner side was not a violation of 1910.23(c)(2). (Item 1(b) of Citation Number Three.)

22. Since the top of the tray system is full of lumber when the maintenance men cross the tipple to do necessary maintenance work there is no violation of 1910.23(c)(1). (Item 1(c) of Citation Number Three.)

23. The platform with a bent and twisted guardrail and no midrail is not used by any of Respondent’s employees. (Item 1(d) of Citation Number Three.)

24. The absence of a guardrail on a portion of the walkway to the unstacker operator’s station is a violation of 1910.23(c)(2). (Item 1(e) of Citation Number Three.)

25. Failure to guard the two floor openings next to the press charger is not a violation of 1910.23(a)(9) as cited. The unguarded spaces are ‘floor openings’ rather than ‘floor holes’ and thus are controlled by the standard at 1910.23(a)(1). (Item 1(f) of Citation Number Three.)

26. The unguarded open space running the full length of the surface of the walkway along the veneer belt to the incline drier in the plywood plant is a violation of 1910.23(a)(8). (Item 1(g) of Citation Number Three.)

27. Failure to have guardrails on lumber which was used by employees as a walkway from which to perform maintenance on the tipple in the plywood plant is a violation of 1910.23(c)(1). (Item 1(h) of Citation Number Three.)

28. The absence of a midrail on one end of the platform on the side of the tipple in the dry kiln is a de minimis violation of 1910.23(c)(1). (Item 1(i) of Citation Number Three.)

29. Items 1(h) and 1(i) of Citation Number Three are ‘repeat’ violations since 1910.23(c)(1) was previously violated by Respondent.

30. Citation Number Four has been withdrawn and is VACATED and DISMISSED.

31. The permitted deterioration of the walkway next to the trim saw in the plywood plant with the existence of the holes in its surface and the sagging board are a violation of 1910.265(c)(4)(ii). This is a ‘repeated’ violation. (Citation Number Five.)

32. Complainant has cited an inapplicable standard in connection with Citation Number Six. The pineapple is not any part of a ‘planer’.

33. Complainant has cited an inapplicable standard in connection with Citation Number Eight. The fixture cited is a fixed ladder—not a stairway.

34. Complainant has not proven any exposure of Respondent’s employees to danger from the unguarded chains cited in Items 1(a), (b), (c) and (f) of Citation Number Nine.

35. The evidence establishes adequate guarding by actual guards in place, or by location, or by a combination of guards and location of the chains cited in Items 1(d), (e), (g), (h), (i), (k), (l), (m), (n) and (t) of Citation Number Nine.

36. Respondent has failed to:

1) Guard-two chain and sprocket drives on the trim saw [Item 1(j)];

2) Guard two sprockets and ingoing nip points on the scissors hoist feed to the lay-up line in the plywood plant [Item 1(o)];

3) Guard or cover the ingoing nip points on the chain drive on the re-dry infeed to the inline drier in the plywood plant [Item 1(p)];

4) Guard 4 chains on the back of the tipple roll in the plywood plant [Item 1(q)];

5) Guard a portion of the chain drive on the unit intake in the stud mill [Item 1(r)];

6) Guard the chain drive on the barker surge bin [Item 1(s)].

Each of the six foregoing failures to guard, cited in Citation Number Nine, are violations of 1910.219(f)(3). They are ‘repeated violations’ because Respondent violated this same standard on previous occasions.

37. The lower run of the vertical belt and pulley system on head rig No. 2 in the basement of the saw mill was adequately guarded. [Item 1(a) of Citation Number 10.]

38. Respondent’s failure to guard the nip point on the vertical belt and pulley system on the lath saw in the lath mill is a violation of 1910.219(e)(3)(i). [Item 1(b) of Citation Number Ten.]

39. The standard at 1910.219(e)(3)(i) does not apply to the vertical belt on the saw grinder in the file room of the plywood plant. [Item 1(c) of Citation Number Ten.]

40. Failure to guard the vertical pulley and belt on the conveyor that dumps into the Lilly Pad chipper in the barker is a violation of 1910.219(e)(3)(i). [Item 1(d) of Citation Number Ten.]

41. Neither the horizontal belt drive on the air compressor in the dry sorter nor the horizontal belt drive on the saw grinder in the saw filing room of the planer mill were in violation of 1910.219(e)(1)(i). [Items 2(a) and (b) of Citation Number Ten.]

42. The flat belt and pulley on the skinner saw in the plywood plant are part of a conveyor system and are not covered by the standard at 1910.219(e)(1)(i). [Item 1(a) of Citation Number Seven.]

43. The flat belt and pulley on the No. 2 drill press in the basement of the saw mill are not subject to the standard at 1910.219(e)(1)(i). [Item 1(b) of Citation Number Seven.]

44. Failure to guard the horizontal flat belt and pulley on the sticker belt in the dry sorter is a violation of 1910.219(e)(1)(i). [Item 1(c) of Citation Number Seven.]

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is ORDERED that:

1. Items 1, 2(a), 2(b), 2(c), 3, 10(a), 10(b), 10(c), and 10(e) of Citation Number One; Citation Number Two (all 3 Items); Items 1(a), 1(b), 1(c), 1(d) and 1(f) of Citation Number Three; Citation Number Four; Citation Number Six; Items 1(a) and 1(b) of Citation Number Seven; Citation Number Eight; Items 1(a) through 1(i), 1(k) through 1(n) and 1(t) of Citation Number Nine; and Items 1(a), 1(c), 2(a) and 2(b) of Citation Number Ten be, and the same hereby are, VACATED together with all penalties proposed in connection with them; and that

2. Item 2(d) [$25], Item 10(d) [$0], Item 11 [$0], and Item 12 [$25] of Citation Number One; Items 1(e), (g), (h) and (i) of Citation Number Three [$50]; Citation Number Five [$50]; Items 1(j) and 1(o) through 1(s) of Citation Number Nine [$300]; and Item 1(c) of Citation Number Seven combined with Items 1(b) and 1(d) of Citation Number Ten [$60] be, and the same hereby are, AFFIRMED. Penalties are assessed in the respective amounts indicated in the brackets ([ ]) hereinabove for a total penalty of $510.

Dated this 25th day of September 1975.

JERRY W. MITCHELL

Judge, OSAHRC

---

[1] Chairman Barnako does not agree to this attachment.