UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–1384
LADISH COMPANY,
Respondent.

December 17, 1981

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Ralph B. Maxwell is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Judge Maxwell affirmed a citation issued to Respondent, Ladish, Company (Ladish’). The citation[1], which was issued following the investigation of a fatal accident, alleged a serious violation of the Act for noncompliance with the standard at 29 C.F.R. § 1910.212(a)(1).[2] Ladish petitioned for discretionary review of the judge’s decision and the petition was granted by former Commissioner Barnako. The questions presented on review are: (1) whether the cited standard applies to the conditions at issue, (2) whether a hazard existed, and (3) whether Respondent knew or with the exercise of reasonable diligence could have known of the existence of the alleged hazard.

For the following reasons, we conclude that the standard at 29 C.F.R. § 1910.212(a)(1) applies, there was a machine guarding hazard, and Ladish knew or could have known with reasonable diligence that a hazard existed. We therefore affirm the citation.

Ladish manufactures drop forgings, such as railcar wheels and aircraft landing gears, at its Cudahy, Wisconsin plant, where it employs 4,700 of its 6,700 workers. During manufacturing the forgings are cleaned in a large drum-like mill called a wheelabrator and then dumped onto a vibrating conveyor. The wheelabrator is on the west side of the conveyor. Immediately opposite the wheelabrator on the east side of the conveyor is another large machine called a wheelabrator loader. The conveyor runs from north to south between the two machines.

The forgings are placed into the wheelabrator by the wheelabrator loader, which has two arms that lift a ‘tote box’ or materials bucket. In loading the wheelabrator, the loader arms pivot forward and down across the conveyor to the dump position. It takes thirty seconds for the loader arms to lower and become fully extended. When fully extended, the bottom edges of the loader arms come to rest on a low railing on the east side of the conveyor. At this point of contact a Ladish employee, (name redacted), was fatally crushed on January 16, 1978.

At the time of the accident, (name redacted) was working as a wheelabrator helper. A wheelabrator helper oversees and expedites the movement of the forgings down the conveyor. The conveyor does not have a moving belt but rather moves the forgings by vibration. When the forgings become stuck, the helper frees them, using a three-foot long steel hook. Usually he stands on the east side of the conveyor on a small metal platform 25 inches off the floor in order to reach the forgings. Less frequently he stands on a slightly larger 35-inch-high platform located in a narrow space between the wheelabrator loader and the vibrating conveyor. When working on the higher platform, the wheelabrator helper’s back is to the loader, he is out of the line of vision of the wheelabrator operator, and the noise is too loud for the helper to hear the movement of the wheelabrator loader. (name redacted) was working on the higher platform when a wheelabrator loader arm crushed him.

Two wheelabrator helpers, Jack Conley and John Perencevic, testified that they regularly stood on the higher platform to free stuck forgings on the conveyor, using the three-foot steel hook provided for that task. Conley stated that over his four years as a wheelabrator helper he had to stand on the higher platform at least 10 percent of the time because he could not always reach the forgings from the lower platform. Conley also testified that at times he had been on the higher platform when the wheelabrator loader cycle started and he came close to being pinned by the loader arms. He further testified that he saved another employee, Copland, from the descending loader arms by pulling him out of the way. Conley testified that his supervisor, George Milan, had seen him on the higher platform. Conley and Perencevic both stated that they were never instructed not to use the higher platform.

Perencevic stated that, prior to (name redacted)’s accident, the higher platform, originally wooden, was replaced by a platform made of metal grating after Perencevic complained numerous times to Jim Heinan, his supervisor, that the wooden platform was damaged and therefore dangerous to stand on. He testified that he would have to stand on the lower or upper platforms between ten and forty times a shift, depending on the types of forgings and the number of loads dumped into the wheelabrator.

Arthur Ladish, Respondent’s safety officer, testified that he conducted weekly safety inspections of the wheelabrator building and never was aware that employees used the upper platform or of any danger posed by it. George Milan, shift supervisor for Ladish, testified that no employee ever complained to him about the upper platform. He also stated that he was ‘right in front’ of the wheelabrator section forty to fifty per cent of his work day and never saw an employee use the upper platform. Ralph Weber, Ladish’s general foreman, also testified that he had never seen an employee on the upper platform. Milan and Weber both admitted that employees were not instructed to stay off the upper platform. Weber also stated that the lower platform once had been wooden and was replaced by a metal platform, but he did not comment on whether the upper platform had been replaced.

Compliance Officer Donald Zehm, who conducted the inspection following the accident, testified that the condition that gave rise to the citation was a danger zone in the back of the wheelabrator loader and that the loader needed guarding in that area. He acknowledged, however, that he had spent five to ten minutes in Ladish’s wheelabrator area during an inspection one or two years earlier and did not recall noticing any problems with the wheelabrator operation at that time.

Shortly after the accident Ladish installed several safety devices, including a guardrail to block access to the upper platform, a red ‘jelly bean’ light to warn of the operation of the loader, mirrors to allow the operator to see anyone in the hazardous area, and several emergency stop boxes at critical locations.

In his decision Judge Maxwell concluded that a machine guarding hazard existed in ‘the area between the back of the loader and the conveyor, exposing employees to death or serious injury through contact with moving parts of the equipment.’ He further concluded that this hazard came within the meaning of the standard at 29 C.F.R. § 1910.212(a)(1) and that Ladish failed to comply with the machine guarding standard in that Ladish failed to provide ‘protective devices, guarding methods, warning signals or other safeguards.’ Judge Maxwell found abatement of the hazard readily available through ‘shutting off access to the area.’ The judge assessed a penalty of $480, agreeing with the Secretary that the corporation was a large one and the violation was serious.

III

In its post-hearing brief, which was submitted with its petition for review, Ladish argues that, for several reasons, 29 C.F.R. § 1910.212(a)(1) does not apply to the cited condition. First, Ladish maintains that the wheelabrator loader and the conveyor are not machines used in the manufacturing process, and therefore not within the ambit of the subject standard, because the forgings are already manufactured when they are brought to the wheelabrator area. Second, Ladish contends that the cited standard applies only to individual machines, while the alleged hazardous area here is an area between two machines; moreover, the alleged hazardous area concerns a platform, and no violation of the platform guarding standard, 29 C.F.R. § 1910.23(c)(3), was cited.[3] Ladish further contends that the ‘pinch point’ hazard alleged in the citation is not one covered by the subject standard; rather it is defined in 29 C.F.R. § 1910.211(d)(44) as a term used in connection with power presses.

Ladish also argues that the Secretary failed to prove that a hazard existed or that it knew or could have known of the alleged hazard. Ladish points out that its supervisors did not perceive the area between the wheelabrator loader and the conveyor to present a hazard because they were not aware of any employee being in this area. Ladish also notes that no employee complained that there was a hazard in this area. Ladish contends that the only evidence that there was a hazard was the testimony of compliance officer Zehm and that his testimony to this effect was based solely on the occurrence of the accident. Ladish notes that the Secretary did not present evidence that the forging industry regarded the cited condition here as being hazardous. Ladish also points out that compliance officer Zehm had previously inspected the plant and had not noticed a machine guarding hazard between the wheelabrator loader and the conveyor.

We reject Ladish’s contention that section 1910.212(a)(1) is inapplicable. The language of the cited standard, as well as the heading of section 1910.212, ‘General requirements for all machines,’ clearly indicates that the cited standard is generally applicable according to its terms to the hazards presented by the moving parts of all types of industrial machinery unless a more specific machine guarding standard applies. See Dayton Tire and Rubber Co., 80 OSAHRC 95/D4, 8 BNA OSHC 2086, 1980 CCH OSHD ¶24,842 (No. 16188, 1980). The platform-guarding standard raised by Ladish, section 1910.23(c)(3), is not a machine guarding standard; it is designed to prevent employees from falling off platforms and other surfaces rather than barring employees from access to platforms or other locations made hazardous by machinery. Thus, section 1910.23(c)(3) does not preclude application of section 1910.212(a)(1). Cf., General Supply Co., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1976–77 CCH OSHD ¶21,503 (No. 11752, 1977) (where a specific standard addresses a cited hazard, it shall prevail over a more general standard); United States Steel Corp., 77 OSAHRC 192/B5, 5 BNA OSHC 2063, 1977–78 CCH OSHD ¶22,269 (No. 15500, 1977) (same).

Moreover, Ladish’s contention that, under Allis-Chalmers Corp., 76 OSAHRC 142/C3, 4 BNA OSHC 1876, 1976–77 CCH OSHD ¶21,341 (No. 8274, 1976), and United States Steel Corp., supra, section 1910.212(a)(1) is inapplicable to its wheelabrator loader and conveyor because they are not used in the manufacturing process is unsound. In limiting the applicability of section 1910.212(a)(1) to machines that are or can be used in the manufacturing process, Allis-Chalmers distinguishes machines used in manufacturing from machines that are in the process of being made; the latter are excluded from application of the standard.[4] The cleaning of the forgings by a process comprised of the wheelabrator loader, conveyor, and wheelabrator is integral to the manufacture of forgings. Thus, these machines are not excluded from the scope of the subject standard under Allis-Chalmers.[5]

We agree with Ladish that the Secretary has the burden of proving the existence of a hazard when a violation of section 1910.212(a)(1) is charged. Papertronics, Division of Hammermill Paper Co., 78 OSAHRC 54/C6, 6 BNA OSHC 1818, 1978 CCH OSHD ¶22,898 (No. 76–3517, 1978). However, contrary to Ladish’s contention, we find that the Secretary succeeded in proving the existence of a hazard here. It is readily apparent that an employee standing on the higher platform with his back to the wheelabrator loader is in danger of being struck by the descending arms of the loader and pinned between them and the conveyor railing. The hazard is exacerbated by the fact that the high volume of noise in the area masks the sound of the loader arms descending and that an employee standing on the higher platform is out of the range of vision of the wheelabrator operator. Furthermore, employee testimony establishes several instances in which employees narrowly missed being struck by the loader arms. We reject Ladish’s assertion that the Secretary failed to sustain his burden because there was no evidence that the forging industry recognized the cited condition as presenting a hazard. The record evidence establishes that an employee on the higher platform is exposed to a hazard within the meaning of the cited standard. Section 1910.212(a)(1) is specific in its requirements. Accordingly, a reference to industry custom and practice is unnecessary. See A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978).[6] Indeed, Ladish does not assert that no hazard is posed to an employee standing on the higher platform; rather it argues that its supervisors did not perceive a hazard because they were unaware that any employee stood on the higher platform.

We also conclude that Ladish knew or with the exercise of reasonable diligence could have known of the hazard. Safety director Ladish, general foreman Weber, and supervisor Milan denied that wheelabrator helpers stood on the upper platform. Wheelabrator helpers Conley and Perencevic, on the other hand, testified that on a regular basis they stood on the upper platform to reach stuck forgings and that their three-foot hook often was too short to reach stuck forgings from the lower platform. It is uncontroverted, however, that prior to (name redacted)’s accident Ladish had replaced the upper platform, which was wooden, with a metal one after receiving employee complaints that the wooden one was damaged and therefore dangerous to stand on. Thus, Ladish clearly knew that employees stood on the upper platform and, hence, knew or with reasonable diligence could have known of the hazard presented to such employees by the arms of the wheelabrator loader.

Ladish’s contention that no employee ever brought the hazard to the attention of a supervisor is of no significance. The duty to comply with the Act rests on the employer and cannot be shifted to the employees by relying on them to determine and report whether the conditions under which they work are unsafe. Armstrong Cork Co., 80 OSAHRC 16/D4, 8 BNA OSHC 1070, 1980 CCH OSHD ¶ 24,273 (No. 76–2777, 1980), aff’d, 636 F.2d 1207 (3d Cir. 1981); J. H. MacKay Electric Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD ¶23,026 (No. 16110, 1978); Alder Electric Co, 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977–78 CCH OSHD ¶21,748 (No. 13573, 1977).

Ladish’s argument that compliance officer Zehm previously had inspected the wheelabrator area and had not noted a hazard is to no avail. Zehm had spent only five to ten minutes in that area and certainly was not as familiar with the wheelabrator operation as Ladish, so it was not unreasonable that he overlooked the hazard posed by the wheelabrator loader arms. In any event, his failure to issue a citation for the wheelabrator loader did not grant Ladish immunity from subsequent enforcement, and Ladish is not absolved of its own knowledge of the hazard by Zehm’s earlier failure to spot the hazard. See Columbian Art Works, Inc., 81 OSAHRC——, 10 BNA OSHC 1132, 1981 CCH OSHD ¶ 25,737 (No. 78–0029, 1981).

Accordingly, we affirm a serious violation of the standard at 29 C.F.R. § 1910.212(a)(1) for Ladish’s failure to guard the area between the loader and the conveyor which created a hazard.

A penalty of $480 was proposed by the Secretary and found by the judge to be reasonable. Applying the penalty factors in section 17(j) of the Act, 29 U.S.C. § 661(i), we find the gravity of the violation to be high and no history of prior violations. Respondent is a large corporation employing 6,700 people, 4,700 in the Cudahy plant. Ladish demonstrated good faith in promptly abating the hazard. On balance, we find $480 to be an appropriate penalty.

Accordingly, we affirm the decision of the judge and assess a $480 penalty.

SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: DEC 17, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–1384
LADISH COMPANY,
Respondent.

September 26, 1979

DECISION

This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970.

A citation was issued by the complainant (Secretary) on March 8, 1978, alleging violation by respondent (Ladish) of the machine guarding standard found at 29 CFR 1910.212(a)(1). That citation reads in pertinent part as follows:

Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by pinch point:

Wheelabrator loader (Company #3406), located in the Processing Department, had an unguarded danger zone between the back of the loader and the shaker conveyor, exposing employees to contact by moving parts of the equipment.

The alleged violation was characterized in the citation as ‘serious’ and the Secretary proposed a penalty of $480.

Section 1910.212(a)(1), which deals with requirements for all machines, reads as follows:

(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.

A hearing was held in Milwaukee, on January 8 and 25, 1979. Ladish was representated by attorney Peter C. Karegeannes of the firm Quarles & Brady of Milwaukee, and the Secretary by Robert H. Brown, of the Office of the Solicitor, Department of Labor, Chicago, Illinois.

OSHA’s inspection in this case was triggered by a fatal accident occurring January 16, 1978, in the wheelabrator area of Ladish’s Cudahy, Wisconsin plant. At that plant Ladish manufactures drop forged items such as railroad car wheels and aircraft landing gears. (TA10)

Wheelabrators are large drum-like cleaning mills in which newly manufactured drop forgings are cleansed by being tumbled and agitated in a caustic abluent. (TALL) After the forgings are cleaned, they are unloaded onto a vibrator type metal conveyor, whence they are jiggled along to the place where they are collected and hauled away.

Forgings are placed into the wheelabrator by a machine called a wheelabrator loader, which is principally a large material bucket or ‘tote box,’ to which arms are attached. When the wheelabrator is to receive a fresh load for cleaning, the tote box, loaded with forgings, extends forward reaching across the conveyor toward the wheelabrator. During this process, the loader arms descend into a notch on the rim of the conveyor. (TA 11, 12)

On the day of the accident, the deceased employee, (name redacted), was working as a ‘wheelabrator helper.’ Among other duties, a wheelabrator helper is required to superintend the movement of the cleaned forgings down the conveyor, making certain there are no blockages or pileups. If forgings become lodged, the wheelabrator helper reaches out and manipulates them with a steel hook. He would normally stand on a small steel-grid platform adjacent to the conveyor. To reach certain areas, it sometimes became necessary for him to move alongside the conveyor to a second platform which was within stepping distance and some 10 inches higher than the first. This higher platform was in a ‘mcahine area,’ being directly beneath the wheelabrator loader. (name redacted) was working from this upper platform when the wheelabrator loader, filled with forgings, was activated. The tote bucket moved forward across the conveyor toward the wheelabrator. The loader arms descended toward (name redacted), catching him and crushing him against the rim of the conveyor.

The occurrence of this accident is probative evidence, albeit not conclusive evidence, of the existence of a hazard. Sec. v. Ralston Purina Co., 7 BNA OSHC 1302 (1979). That accident, however, does combine with several other facts in this case to establish that employees working on the upper platform were endangered by the functioning of the loader. The movement of the loader arms toward the conveyor created a type of pinch point. The record shows that anyone working on the upper platform would be standing so that his back was to the menace of the descending arms of the loader. It also shows that the person operating the loader was so stationed that the upper platform area was hidden from his view. (TA70) Additionally, any sound generated by the activated wheelabrator loader would usually be drowned out by other noise in the building. (TA82) There were no protective devices, guarding methods, warning signals or other safeguards to protect employees who were working in the danger area.

Hazard abatement in this case was readily feasible through the simple expedient of shutting off access to the upper platform. (TA32) Jam-ups on the conveyor in that area could have been reached by merely using a longer hook.

Ladish defends upon several grounds. One is that it had no knowledge that a hazard existed.

Where a hazardous situation is open to view, and would be noticed in the course of a reasonably diligent inspection, lack of knowledge is not an acceptable defense. A duty to inspect for danger rests upon every employer. Sec. v. Giles & Cotting, Inc. 3 BNA OSHC 2002 (1976); Sec. v. Camden Drilling Co., 6 BNA OSHC 1560 (1978), The Review Commission, in Sec. v. J. H. MacKay Electric Co., 6 BNA OSHC 1947 (1978) stated:

. . . the lack of perimeter protection on the 5th Floor would have been readily apparent had the Respondents simply inspected that area before permitting their employees to work there. Thus, had the Respondents exercised reasonable diligence, they would have known of the violation.

In the present case, no keen eye of a safety professional was needed to detect the threat to employee safety presented by conditions on the upper platform. These hazardous conditions were manifest, and the employer must therefore be charged with notice of them.

Ladish also defends upon the ground that Section 1910.212(a)(1) is not applicable since it is limited to machines that are used in manufacturing. Ladish contends the wheelabrator process comes after manufacture of the forgings has been completed.

It is a correct statement of the law that the machine guarding standard does not reach beyond the manufacturing process. Sec. v. Allis Chalmers Corp., 4 OSHC 1876 (1976). However, in the present case, the wheelabrator operation and the cleaning process involved therein appear to constitute an integral part of the production or manufacturing process. The wheelabrator cleansing was a refinement process. Such refining was obviously deemed essential by Ladish to the production of a finished product. It was the final touch in the manufacturing process. Since the forgings were incomplete until the wheelabrator cleansing had been accomplished, it follows that Sec. 1910.212(a)(1) governed the process.

CONCLUSION

The standard upon which the citation is based requires that ‘machine guarding shall be provided to protect . . . employees in the machine area from hazards.’ Under that standard the employer has a duty to ‘provide a safe environment for employees in the machine area from hazards created by the machine’s operation.’ Sec. v. Akron Brick and Block Co., 3 BNA OSHC 1877 (1976). In this case the Secretary has established that workers were exposed to a machine area hazard against which no safeguards defended. Hence, a violation of the machine guarding standard has been established, and the record supports the propriety and amount of the proposed penalty.

FINDINGS OF FACT

1. Respondent Ladish Company, is a corporation having an office and place of business in Cudahy, Wisconsin.

2. Jurisdiction is not contested by respondent.

3. At the Cudahy plant, respondent manufactures drop forged items such as railroad car wheels and aircraft landing gears.

4. As part of the manufacturing process, drop forged items are cleaned with a caustic solution in a drum-like machine known as a wheelabrator. Forgings are loaded into the wheelabrator by another machine known as a wheelabrator loader.

5. Workers had access to an area directly beneath the spot where the arms of the loader would descend when the wheelabrator was being loaded.

6. On January 16, 1978, a wheelabrator helper, (name redacted), was working in the area of the wheelabrator loader. When the loader was activated, the loader arms descended and caught the employee and crushed him against a conveyor.

7. When workers would be in the area beneath the wheelabrator loader, their backs would be toward the moving parts of the machine.

8. The person operating the wheelabrator loader had an obstructed view of said area.

9. There were no protective devices, guarding methods, warning signals or other safeguards to protect employees in said area.

10. A machine hazard existed in the area between the back of the loader and the conveyor, exposing employees to death or serious injury through contact with moving parts of the equipment.

11. Hazard abatement was readily available by merely shutting off access to the danger zone.

12. Respondent failed to take reasonable precautionary steps to protect its employees from a hazard in a machine area of the workplace.

13. The proposed penalty of $480 is appropriate and consistent with the requirements of 17(j) of the Act.

CONCLUSIONS OF LAW

1. Respondent was at all times material an employer engaged in a business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act.

2. Respondent was at all times subject to the requirements of the Act and the standards promulgated thereunder.

3. The commission has jurisdiction of the parties and the subject matter of this proceeding.

4. Respondent violated 29 CFR 1910.212(a)(1) in that it failed to take measures to protect employees in a hazardous machine area, for which violation a penalty of $480 should be imposed.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is now ORDERED that the citation and the proposed penalty of $480 are AFFIRMED.

Ralph B. Maxwell

Judge, OSHRC

[1] The citation stated:

Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by pinch point:

Wheelabrator loader (Company #3406), located in the processing Department, had an unguarded danger zone between the back of the loader and the shaker conveyor exposing employees to contact by moving parts of the equipment.

[2] The standard provides:

§ 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.’

[3] That standard states:

§ 1910.23 Guarding floor and wall openings and holes.

(3) Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toe board.

[4] Respondent’s assertion that the Allis-Chalmers exclusion was expanded in United States Steel Corp. represented the view of only one Commission member and thus is not Commission precedent. Even under that view, application of § 1910.212 to a particular machine would depend on the relationship of that machine to the manufacturing process. As noted infra, the wheelabrator loader and conveyor are integral to Ladish’s manufacturing process.

[5] We also reject Ladish’s contention that, because the term ‘pinch point,’ as defined in § 1910.211(d)(44), is a term used in connection with power presses, pinch point hazards are not covered by § 1910.212(a)(1). The definition of ‘pinch point’ in § 1910.211(d) is one of a number of terms that are there defined as used in the mechanical power press standard, § 1910.217. However, from the fact that the term ‘pinch point’ is given a specific definition for its use in the mechanical power press standard it does not follow that only § 1910.217 may protect against pinch point hazards. The hazard of pinch points is presented by many types of machinery, and it would be anomalous for the general industry standards to limit protection against pinch points to mechanical power presses.

Ladish’s assertion that § 1910.212(a)(1) applies only to individual machines similarly is without merit. As noted supra, the standard applies generally to the moving parts of all machines, and Ladish provides no authority for its argument that the standard applies to machines only one at a time, rather than in groups. Cf. Ormet Corp., 81 OSAHRC 35/C3, 9 BAN OSHD 1828, 1981 CCH OSHD ¶ 25,322 (No. 76–4398, 1981), (§ 1910.212(a)(1) is the applicable standard as to the point where the conveyor passed under the chutes). Moreover, as Zehm testified, the hazard here is presented by the movement of the loader arms.

[6] Because Chairman Rowland finds that Respondent had knowledge of the hazardous condition for the reasons stated infra, he finds it unnecessary to reach Respondent’s contentions concerning the absence of proof of industry recognition of the cited hazard.