UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 171, 172, 173, 174, 175
ST. LOUIS COUNTY WATER COMPANY,
Respondent.

August 28, 1973

DECISION

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On April 27, 1972, Judge Paul E. Dixon issued his recommended decision and order in these cases, consolidated upon motion of the Secretary, affirming the Secretary’s citations for other than serious violations and the penalties proposed therefor.

On May 18, 1972, former Commissioner Burch directed review of the proposed decision and order pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as ‘the Act’).

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge’s recommended decision and order insofar as it is consistent with this decision.

Review was directed in order to determine whether evidence other than that utilized by the Secretary in assessing the proposed penalties should be considered by the Commission.

Respondent was cited for 32 non-serious violations[1] of occupational safety and health standards promulgated by the Secretary pursuant to section 6 of the Act and was assessed a total proposed penalty of $1,100.

Respondent objects to being assessed penalties under the previously utilized computation system which is more stringent than the present system with respect to the assessment of penalties for violations of low gravity. The Secretary correctly points out that respondent has also benefitted by the use of the former system. We find that, when dealing with a procedural device of this sort, it is inappropriate to substitute a more recent system for one which was utilized at the time the penalties were proposed. However, the Commission does consider this case in the light of all substantive decisions with respect to penalty assessment which have been rendered as of the time of this decision.

The primary factor in the Commission’s statutory authority to assess penalties, pursuant to section 17(j) of the Act, is the determination of the gravity of violations. We deem this the most essential factor in any case in which penalty assessments are under review. The other penalty adjustment factors—good faith, compliance history, and size—are based upon considerations primarily unrelated to the specific violations in a case.[2] Therefore, we shall consider these factors initially, decide upon the appropriate adjustments and modify, accordingly, the penalty assessed for each violation on the basis of gravity.

Judge Dixon affirmed the Secretary’s awarding of a 10% adjustment for respondent’s good faith. Respondent asserts that its alternative methods of accident prevention, its reliance on a state inspection that revealed no violations prior to the instant inspection, and its operation of a safety program which had, as of the date of the inspection, not yet resulted in implementation of internally proposed changes in order to comply with the Act warrant the maximum good faith adjustment. We disagree. Respondent’s obligations under this Act are independent of state requirements.[3] Alternative methods of accident prevention are relevant as is respondent’s safety program. However, the large number of violations, the failure to implement changes as of the date of inspection, and the erroneous belief that all of the instant violations are minor mitigate against according full credit. We agree, however, that some of the Secretary’s reasons for allowing only half credit are vague and possibly misinterpret the facts. We accord a 15% allowance.

The 20% allowance for respondent’s compliance history (its experience under state laws is relevant to this factor) and the lack of adjustment on the basis of size are affirmed.

In Secretary of Labor v. J. E. Chilton Millwork and Lumber Company, Inc., OSHRC Docket No. 123 (May 15, 1972) the Commission stated that ‘. . . the principal purpose of this Act is to obtain compliance with its requirements in order to ensure a safe and healthful workplace. Relatively minor penalties do little to effectuate this objective.’ In Secretary of Labor v. Hydroswift Corporation, OSHRC Docket No. 591 (October 27, 1972) we held that, ‘In considering the appropriateness of monetary penalties there must be consideration of the relationship between the non-serious violation involved and the corresponding degree of gravity.’ Thus, we have found it appropriate to vacate minor penalties where gravity of violations is low. However, as in Hydroswift, supra, we do not find the following violations to be of such low level of gravity as to require that the penalties be vacated.

On the basis of the foregoing discussion with respect to the assessment of minor penalties and the gravity of violations we affirm the proposed penalties for these violations:[4]

Docket No. 171
Citation 1, Item 1	29 CFR 1910.310(o), (lack of identification of disconnecting means on electrical components).
Citation 1, Item 3	—29 CFR 1910.310(d), (improper extension cord).
Citation 2, Item 4	—29 CFR 1910.315(d), (non-weatherproof boxes and fittings in wet locations).
Citation 2, Item 5	—29 CFR 1910.315(n)(4), (pullbox without cover).
Citation 2, Item 6	—29 CFR 1910.24(h), (no handrail on closed stairway).
Citation 2, Item 7	—29 CFR 1910.22(a), (housekeeping violation in basement and tool crib).
Citation 4, Item 12	—29 CFR 1910.252(a), (improper storage of compressed gas cylinders).
Citation 5, Item 13	—29 CFR 1910.252(f)(2), (lack of mechanical ventilation in welding area).
Citation 5, Item 14	—29 CFR 1910.242(a), (unsafe equipment).
Citation 6, Item 16	—29 CFR 1910.27(d)(2), (no landing platform from ladder in excess of 30 feet).
Citation 6, Item 17	—29 CFR 1910.310(j)(1), (unguarded electrical terminal).
Citation 6, Item 18	—29 CFR 1910.36(b)(5), (door not constituting exit but subject to being mistaken for exit not appropriately identified).
Docket No. 172
Citation 1, Item 1	—29 CFR 1910.24(h), (no handrail on stairway in yard).
Docket No. 173
Citation 1, Item 3	—29 CFR 1910.27(b)(1)(iii), (non-conforming ladder rung).
Docket No. 174
Citation 1, Item 2	—29 CFR 1910.24(h), (no handrail on stairway).
Citation 1, Item 4	—29 CFR 1910.242(a), (unsafe equipment).
Docket No. 175
Citation 1, Item 1	—29 CFR 1910.316(c), (flexible electric cords used as substitute for fixed wiring).
Citation 1, Item 2	—29 CFR 1910.310(i)(2), (required clear space behind switchboard used for storage).

The proposed penalty for citation 1, item 2 of Docket No. 171, 29 CFR 1910.314(d)(4)(iii)(e), (improper insulation on electrically operated tools used in wet conditions) is also affirmed because of the high level of gravity.

Under the system used by the Secretary in proposing the instant penalties the gravity of a violation consists of the probability of injury, the probable severity of any Judge Dixon Committed error the system which is found to be in violation. However, for several specific items, Judge Dixon committed error by limiting respondent’s examination of witnesses to ‘the number of people potentially affected and abatement.’ Respondent has been denied the opportunity to show, for example, that alternative safety precautions were in use which are relevant to the probability of an accident occurring as well as to the resulting severity of any injury. Specific descriptions of the areas in which violations occurred and their means of egress, also relevant to the determination of gravity, were improperly excluded. As the result of the Judge’s rulings the record lacks necessary relevant evidence with respect to the gravity of various violations. Therefore the penalties for the following violations are vacated:

Docket No. 171
Citation 3, Item 8	—29 CFR 1910.106(e)(2)(ii)(b), (improper storage of class 1A liquids).
Citation 3, Item 9	—29 CFR 1910.106(e)(9), (improper storage of flammable liquids).
Citation 4, Item 10	—29 CFR 1910.177(c)(1), (improper storage of flammable liquids).
Citation 4, Item 11	—29 CFR 1910.252(a)(2)(i)(b), (compressed gas cylinders not legibly marked).
Citation 5, Item 15	—29 CFR 1910.132(a), (unreliable safety goggles in tool crib).
Docket No. 172
Citation 1, Item 2	—29 CFR 1910.106(e)(2)(ii)(b), supra.
Citation 1, Item 3	–29 CFR 1910.94(d)(9)(vii), (no water with quick opening valves near acid tank).
Docket No. 173
Citation 1, Item 1	–29 CFR 1910.106(e)(2)(ii)(b), supra.
Citation 1, Item 2	—29 CFR 1910.94(d)(9)(vii), supra.
Docket No. 174
Citation 1, Item 1	—29 CFR 1910.106(e)(2)(ii)(b), supra.
Citation 1, Item 3	—29 CFR 1910.94(d)(9)(vii), supra.

The awarding of the increased adjustment for good faith, as discussed herein, results in the following penalties:

Docket No. 171
Citation 1, Item 1	—$49
Citation 1, Item 2	—65
Citation 1, Item 3	—17
Citation 2, Item 4	—17
Citation 2, Item 5	—12
Citation 2, Item 6	—12
Citation 2, Item 7	–33
Citation 4, Item 12	—17
Citation 5, Item 13	—33
Citation 5, Item 14	—33
Citation 6, Item 16	—17
Citation 6, Item 17	—17
Citation 6, Item 18	—12
Docket No. 172
Citation 1, Item 1	—$12
Docket No. 173
Citation 1, Item 3	—$18
Docket No. 174
Citation 1, Item 2	—$8
Citation 1, Item 4	–17
Docket No. 175
Citation 1, Item 1	—$49
Citation 1, Item 2	—12

It is ORDERED that the Judge’s recommended decision and order be modified in accordance with this decision and that a total penalty of $450 be assessed.

MORAN, CHAIRMAN, dissenting:

This decision reverses with neither explanation nor reason positions taken in at least two prior opinions of this Commission: Secretary of labor v. Nacirema Operating Company, Inc., OSAHRC Docket No. 4, decided February 4, 1972, and Secretary of Labor v. Thorleif Larsen and Son, Inc., OSAHRC Docket No. 370, decided January 17, 1973.

In Nacirema we expressly disagreed with complainant’s use of a formula approach for arriving at the amount to be proposed as a penalty which begins with the maximum amount allowable under the Act, then discounts it by arbitrarily assigned percentage factors.

The Commission, in this decision, has done an about-face and is now accepting complainant’s formula approach to penalty proposals—even to the extent of an otherwise unidentified ‘maximum good faith adjustment,’ whatever that is.

Although this decision approves of complainant’s use of a ‘computation system,’ it rejected out-of-hand a penalty arrived at through the use of the self-same system in the Thorleif Larsen case. The reason assigned for that action was that penalty assessment was a statutory duty which the Commission must perform.

Now I ask you—if the Commission has the sole duty to assess penalties, what difference does it make what ‘computation system’ the Secretary of Labor—or anyone else—utilizes to propose them? Why does this decision talk of ‘adjustments’ and ‘allowances’ and ‘abatement credits?’ These are words unknown to the Act. The Secretary of Labor currently uses them to arrive at his penalty proposals but he does so of his own volition and despite our earlier disapproval.

This Commission ought to make up its mind whether the ground rules for the assessment of penalties are going to be set by the Secretary of Labor or by the Commission.

The Thorleif Larsen case, as well as a number of other decisions, said the Commission alone would decide. This decision adopts the Secretary of Labor’s penalty assessment formula and by so doing retreats from that Thorleif Larsen position.

I think the correct rule on penalties can be stated very simply: The Commission will decide the amount by applying the criteria in the Act to the facts introduced at the hearing in those cases where the proposed penalty is disputed by the respondent or the parties have not otherwise agreed upon an appropriate amount.

The fact that at some time prior to the hearing one of the parties to the case (the Secretary of Labor), without benefit of the information adduced at the hearing and without regard for the rules of evidence, proposed to the other party (the respondent) an amount that would become the penalty if the respondent did not dispute it, is immaterial if the Commission is to exercise its authority to assess penalties.

If the Commission is to decide penalties, neither the opinions nor the thought processes nor the calculation methods of any party to the case should be part of the evidence. After the hearing the facts relevant to the statutory criteria should be considered by the Judge and on that basis he should arrive at the amount of the penalty, if he decides that a penalty is appropriate.

I further believe that this case should never have been reviewed. Respondent conceded that it was in violation of the Act as charged. The Judge’s ruling on the penalties to be assessed was not so far out-of-line as to justify a delay of well over a year in the issuance of a final order in this case. The amounts assessed here are virtually inconsequential—an average of $16.57 per violation. Surely penalties of this size are not going to do anything to improve the occupational safety and health situation in industry generally or in this respondent’s workplace in particular. I submit that this Commission has more important issues with which to concern itself than to run through a nickel and dime accounting for sixteen dollar and fifty-seven cent penalties.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 171, 172, 173, 174, 175
ST. LOUIS COUNTY WATER COMPANY,
Respondent.

April 27, 1972

DIXON, JUDGE, OSAHRC:

These five cases, consolidated upon motion of the Secretary, involve citations and proposed penalties for nonserious violations, issued under the Occupational Safety and Health Act of 1970 (29 U.S.C. section 651, et seq.) hereinafter called the Act.

Notice of contest was made by respondent as to a total of eleven citations issued following an inspection of respondent’s central plant and four other workplaces. Thereafter, a complaint was filed in each case by the Secretary, alleging the violation of certain provisions of 29 CFR Part 1910 at each of the five locations.

In answering each complaint, respondent admitted, that it is an employer within the meaning of the Act, but denied the alleged violations, the reasonableness of the abatement period and the appropriateness of the Secretary’s proposed penalties.

By stipulation, the parties agreed prior to the hearing that, irrespective of any statements to the contrary contained in the pleadings, respondent no longer contests the validity of the citations or abatement periods, and that the only issue remaining is the appropriateness of the proposed penalties.

FINDINGS OF FACT

OSHRC DOCKET NO. 171

Central Plant, Chesterfield, Missouri

CITATION I, Item 1—29 CFR 1910.310(o)—‘Lack of identification of disconnecting means on motors, appliances, service feeders, branch circuits, and other electrical components where its purpose is not evident.

PROPOSED PENALTY: $53.00

Inspection by the Secretary’s witness, Mr. Hargreaves, disclosed several locations where there were disconnects which were unidentified presenting the hazard that a workman might go to work on a circuit thinking it was disconnected and become electrocuted if he was in error (T. 12–13).

Exhibit 2 is a worksheet on which the gravity of each item of a citation is analyzed in terms of the probability that injury could result from it, the severity or degree of injury likely to result and the relationship of the particular item found to be substandard to the entire system in the workplace. A rating is given to each item of the citation for each of these three factors, under columns headed Probability, Severity and System. The rating in each category may be A, B, C, or X with A representing the least serious rating and X the most serious. Thus, in the Probability column, an A rating would mean light exposure to the hazard, B, moderate exposure, C, heavy exposure and X a flagrant violation of known safety principles. Similarly, in the Severity column, A would mean a minor injury, B, an injury which would require a doctor’s attention, C, one that requires hospitalization, and X, fatal. In the System column, A would mean that a minor part of the particular system involved was in violation, B, a moderate part in violation, C, 50 percent or more in violation and X, the entire system in violation (T. 14–16).

The violation in Citation I, Item 1, was given a B rating for probability because there were workmen other than qualified electricians working on electrical circuits, who might not know how to test a circuit to be sure of the disconnection, and the exposure was, in the opinion of the Compliance Officer, moderate (T. 14). The severity or degree of injury likely to result from an electric shock could be fatal or at least require medical attention and therefore the violation was given a C rating for Severity (T. 14). The electrical system was judged to be about 20 to 30 percent in violation and so it was rated B in that category (T. 16). The overall gravity of the violation is expressed as the resultant of these three category ratings, with greater weight given to Probability and Severity than to System, in this case a B rating overall (T. 16–17). This summary evaluation of the gravity of the violation is then used to determine the unadjusted penalty upon which the final proposed penalty is based (T. 20).

The final rating given each violation is thus based upon the observations of the Compliance Officer as to the nature of the hazard, the number of employees exposed to it and its relationship to the rest of the workplace, as well as his qualified judgment as to the type and degree of injury likely to result and the probability of injury.

For each overall letter rating there is a range of penalties within which an appropriate unadjusted penalty is assessed (T. 17). This is then reduced by percentages depending on the prior history of violations, the size of the employer and the good faith demonstrated by the employer. In this case, all unadjusted penalties were reduced by 20 percent because the employer had no history of previous violations and by 10 percent because of good faith evidenced by the employer’s efforts to maintain a safe workplace. No reduction was made for size because this employer was considered large enough to bear the penalties without substantial hardship (T. 50). An additional 50 percent advance credit contingent on abatement within the specified periods was also given (T. 51).

CITATION I, Item 2—29 CFR 1910.314(d)(4)(iii)(e)—Line operated portable tools which are not double insulated and are likely to be used in wet and conductive conditions are not grounded.

PROPOSED PENALTY: $70.00

There were four such tools used in the maintenance of the water plant in wet and conductive locations. The hazard presented by not grounding such portable electric tools is that stray electrical currents may be carried to the metal holding parts of the tool and consequently cause electric shock to the user. The probability of such an occurrence was rated as moderate.

An electric shock in a wet location could cause severe injury to the user of the tool. Since all tools inspected were found to be ungrounded in violation of the standards, the entire system was evaluated to be in violation (T. 18–19).

A B-rating for the overall gravity of the violation resulted, and an unadjusted penalty of $200.00 was assessed. This was reduced as discussed above, making the final proposed penalty $70.00

CITATION I, Item 3–29 CFR 1910.310(d)—‘Extension cord connected to heater circuit at No. 6 Pump Pit was not made of materials approved for damp or wet locations.’

PROPOSED PENALTY: $18.00

The extension cord in question was connected from an outlet in the Pump Pit and consisted of two pieces of No. 12 or No. 14 electrical cord, designed to be enclosed in a conduit or spool and thimble insulation. The insulation was broken and the cord was in a bad state of repair. The probability of injury was rated as light because, although there were a number of employees involved in concrete work who might come in contact with the defective cord, the piece of equipment it was connected to was not being constantly used. The severity of injury was evaluated the same as for the other two items discussed above. This was only one of many extension cords inspected so that the system rating was light.

In combining his evaluation for this violation, Hargreaves arrived at an A-plus rating and, consequently, a $50.00 unadjusted penalty based on the gravity of the violation. This was reduced to the $18.00 proposed penalty on the basis of the previous history and good faith of the employer (T. 21–22).

CITATION II, Item 4—29 CFR 1910.315(d)—‘Boxes and fittings in wet locations were not weatherproof (High Service Pump Pits No. 3, 4 and 5).’

PROPOSED PENALTY: $18.00

These pits are below grade level and are wet due to high humidity. There were a number of junction boxes of a type designed to be used in dry atmospheres. Because the number of employees working in the pits was relatively light, the probability of an accident was not great. The severity of injury due to electric shock in a wet area was rated as above. This part of the electrical system constituted less than 5 percent of the whole. Combining his evaluation, Hargreaves arrived at an A plus rating and a $50.00 unadjusted penalty (T. 22–23).

CITATION II, Item 5—29 CFR 1910.315(n)(4)—‘Pull box not provided with cover approved for the purpose (High Service Pump Pit No. 4)’

PROPOSED PENALTY: $13.00

This violation consisted of a box containing protruding wires and pigtails which could cause electric shock. The gravity was evaluated the same as for the previous item, except in the system category. There was only one unit involved rather than three. Consequently, the unadjusted penalty was $35.00 (T. 23–24).

CITATION II, Item 6—29 CFR 1910.24(h)—‘Lack of handrail on one side of closed stairway (Shop Basement Accessway).’

PROPOSED PENALTY: $13.00

This was a wooden stairway consisting of approximately 10 steps. The absence of a handrail subjects a person on the steps to possible injury from a slip or fall. The probability of accident was graded light, inasmuch as the stairway was not frequently used by the work force. The severity of injury which could result was moderate in Hargreaves’ opinion. This was the only stairway in the workplace that was found without a handrail. An overall rating of A-plus was given for the gravity of the violation and an unadjusted penalty of $35.00 assessed.

CITATION II, Item 7—29 CFR 1910.22(a)—‘All places of employment, passageways, storerooms, and service rooms are not orderly with specific reference to Shop Basement and Shop Tool Crib.’

PROPOSED PENALTY: $35.00

Hargreaves found the Tool Crib and Shop in what he described as ‘a rather messy situation with many pieces of materials placed on the floor of the aisleways between the storage bins.’ There was material stored on top of the storage bins, and thus a hazard that something might fall on a workman’s head. Material in the basement was stored on the floor where it presented a tripping hazard.

The probability of accident was rated moderate because there was considerable traffic through the tool crib and slightly less in the storeroom basement. A person falling in this area could sustain a fracture or other serious injury. The system evaluation was light since the general work area was in better condition. The overall rating as to the gravity of the violation was B-minus and the unadjusted penalty was $100.00 (T. 26–27).

CITATION III, Item 8—29 CFR 1910.106(e)(2)(ii)(b)—‘Over 25 gallons of Class 1A liquids and over 120 gallons of Classes IB, IC, II or III liquids in containers were stored in the building with no inside storage room or cabinet provided (Maintenance Shop Tool Crib).’

PROPOSED PENALTY: $70.00

This item concerned storage of flammable liquids, as determined from the labels of the storage containers, and exposed approximately 18 employees to a fire hazard (T. 29–31, 102–104). These materials consisted of paint thinners, paints, lubricants and gasoline in various amounts (T. 31). The gravity of the violation was B-plus and the unadjusted penalty was $200.00.

CITATION III, Item 9–29 CFR 1910.106(e)(9)—‘Housekeeping and maintenance practices regarding storage of flammable and combustible liquids not in accordance with established procedures to control leakage and prevent accidental escape of liquids (Storage Yard near Maintenance Shop).’

PROPOSED PENALTY: $70.00

There were diesel oil storage tanks of greater than 500 gallon capacity in the yard area and within an estimated 60 feet there were some 19 drums of other types of flammable or combustible materials: mineral oil, solvents and the like. There was also a gasoline pump, pumping from an underground storage tank. There was an empty wire reel made of wood, and other debris around the diesel storage tanks.

This presented both a fire and explosion hazard to approximately 20 employees. The probability of accident was rated as moderate, inasmuch as employees were coming and going through this area constantly to use materials from the drums. The severity was rated as moderate because of the fire hazard as well as the possibility of suffocation or thermal shock. Poor housekeeping prevailed in all flammable and combustible storage areas inspected, so the system was given a letter rating of C. An overall rating of B plus and, therefore, a $200.00 unadjusted penalty was assessed. Mr. Hargreaves’ observations in this area were supported by his description of photographs introduced as Exhibits 3 and 4 (T. 32–35).

CITATION IV, Item 10—29 CFR 1910.177(c)(1)—‘Flammable and combustible liquids in outside storage area not handled and piled with due regard to their fire characteristics (Outside Drum Storage Area).’

PROPOSED PENALTY: $70.00

This item concerned a cylinder of oxygen stored with combustible and flammable liquids in the outside storage area discussed above. The hazard presented is that the oxygen would add to any fire which might occur, the probability being rated as light. The severity of the burn hazard presented was moderate and since there was no order to any of the storage of materials, the system rating was high. An overall B plus rating and an unadjusted penalty of $200.00 resulted.

CITATION IV, Item 11—29 CFR 1910.252(a)(2)(i)(b)—‘Compressed gas cylinders are not legibly marked (Maintenance Shop and Outside Drum Storage Area).’

PROPOSED PENTALTY: $18.00

The probability of someone being injured from the incorrect use of these materials was light because most people would be familiar with the shape and color of compressed gas cylinders and don’t necessarily rely on legible marking. The severity of injury would likewise be light, however, none of the cylinders inspected were identified by any legible marking as required. An overall A plus evaluation was made as to the gravity of the violation and a $50.00 unadjusted penalty resulted.

CITATION IV, Item 12—29 CFR 1910.252(a)(2)(iv)(a)—‘Compressed gas cylinders containing oxygen stored near combustible materials, more specifically oils and acetylene (Outside Drum Storage Area).’

PROPOSED PENALTY: $18.00

This item deals with the same physical area as did Item 9 and 10. The hazard presented is that oxygen would contribute to combustion of the combustible materials it was stored with. The probability of injury from this situation was light because only one or two men were likely to be working with the gas cylinders, moving a cylinder one at a time. The severity of any injury received was rated light, but the system was evaluated as heavy. An A plus overall rating and a $50.00 unadjusted penalty was assessed (T. 38–40).

CITATION V, Item 13—29 CFR 1910.252(f)(2)—‘Mechanical ventilation is not provided in welding area, which is a confined space (Maintenance Shop).’

PROPOSED PENALTY: $35.00

This situation would present a fume hazard to a welder that could be injurious to his respiratory system and irritation to the eyes. The probability of injury was considered relatively light because only one or two welders worked at a time in this area. The severity was evaluated as moderate because of the lung irritation which might result. Not all of the welding in respondent’s plant was done in this area. A B rating was assessed overall and an unadjusted penalty of $100.00 (T. 41–42).

CITATION V, Item 14—29 CFR 1910.242(a)—‘Chain hoist being used which has spread hooks on both ends and several tools, more specifically eye bolts and clevises, are in an unsafe condition (Electric Station Basement and Maintenance Shop Tool Crib).’

PROPOSED PENALTY: $35.00

The equipment here might be overstressed and therefore not hold the indicated load. The probability of accident from these was moderate because so many of them were in a state of disrepair. The severity of injury could be quite severe since the equipment was used to handle heavy loads. However, there were numerous heavy cranes in the workplace and only one, along with other hoisting equipment, found to be in violation. An overall rating of B as to gravity of violation and a $100.00 unadjusted penalty was assessed.

CITATION V, Item 15—29 CFR 1910.132(a)—‘Safety goggles were in an unsanitary and unreliable condition (Maintenance Shop Tool Crib).’

PROPOSED PENALTY: $53.00

Mr. Hargreaves found the personal protective equipment in question in ‘horrible condition’ and in his opinion the probability of accident was very great. The type of injury possible is loss of an eye which is quite severe but will not always be the result. A B-plus rating was given and a $150.00 unadjusted penalty assessed.

CITATION VI, Item 16—29 CFR 1910.27(d)(2)—‘Ladder which provides access from ground to wash water tank exceeds 30 feet in height and is not equipped with landing platforms (Wash Water Tank).’

PROPOSED PENALTY: $18.00

The probability of accident from a fall was rated light with respect to the entire work force. However, the severity of injury should a man fall is likely to be great. This ladder was only one of several in the workplace. An A-plus evaluation and a $50.00 unadjusted penalty was assessed (T. 44–46).

CITATION VI, Item 17—29 CFR 1910.310(j)(1)—‘480 volt terminals for pump priming electrical system located on top of intake pumps is not guarded.’

PROPOSED PENALTY: $18.00

These terminals were uninsulated and exposed to workers without electrical knowledge, such as a crew pouring concrete. The probability of injury was light, because there was less traffic through the pump area with respect to the entire workplace, thereby reducing exposure. Because of the 480 volt potential which could cause near fatal effects, severity was rated heavily. However, this was only a minor part of a large electrical system. The summary rating was A plus, leading to a $50.00 unadjusted penalty.

CITATION VI, Item 18—29 CFR 1910.36(b)(5)—‘Single door leading to river side of the building not constituting an exit but of such character as to be subject to being mistaken for an exit was not marked to minimize its possible confusion with an exit (Intake Pump Houses No. 1, 2, and 3).’

PROPOSED PENALTY: $13.00

Because of space restrictions, the probability of accident was rated light. However, the severity of injury was considered to be moderate because an employee might fall among structural steel members outside the door should he mistake it for an exit. The particular door was only one of many in the workplace.

The summary rating was an A plus and a $35.00 unadjusted penalty was assessed (T. 48–49).

OSHRC DOCKET NO. 172—North Plant, Florissant, Missouri

CITATION I, Item 1—29 CFR 1910.24(h)—‘Standard railings are not provided on the open sides of exposed stairway (Yard Area Between Pump Station and Storage Building).’

PROPOSED PENALTY: $18.00

CITATION I, Item 2—29 CFR 1910.106(e)(2)(ii)(b)—‘Over 25 gallons of Class IA liquids and over 120 gallons of Classes IB, IC, II or III liquids in containers were stored in the building with no inside storage room or cabinet provided (Storage Building).’

PROPOSED PENTALTY: $70.00

These two items were similar to corresponding items discussed in No. 171 above and were evaluated in the same manner (T. 56).

CITATION I, Item 3—29 CFR 1910.94(d)(9)(vii)—‘No supply of clean cool water with a quick opening valve and at least 48 inches of hose or deluge showers and eye flushes provided near acid solution tank (Laboratory).’

PROPOSED PENALTY: $27.00

The hazard presented by this item was harm to eyes, nose and mouth from an accidental splash of hydrochloric acid.

The gravity of the above violations and the proposed penalty for each were assessed in the same manner and on the same type of form as for each item of the previous citation (T. 55–58, Exhibits 6 and 7). It was stated that the witness would testify that the approximate number of employees affected by each violation, i.e., the number exposed to the hazard, would be the same as in the applicable paragraph of the complaint (T. 59–60). Thus, for Item 1 approximately 19 employees regularly using this stairway were affected; and for Item 3 approximately 4 laboratory employees were affected.

OSHRC DOCKET NO. 173

South Plant, Sunset Hills, Missouri

CITATION I, Item 1—29 CFR 1910.106(e)(2)(ii)(b)—‘Over 25 gallons of Class IA liquids and over 120 gallons of Classes IB, IC, II or III liquids in containers were stored in the building with no inside storage room or cabinet provided (Storage Building).’

PROPOSED PENALTY: $200.00, adjusted to $70.00

CITATION I, Item 2—29 CFR 1910.94(d)(9)(vii)—‘No supply of clean cool water with a quick opening valve and at least 48 inches of hose or deluge showers and eye flushes provided near acid solution tank (Laboratory).’

PROPOSED PENALTY: $75.00, adjusted to $27.00

These two items presented the same hazard as did corresponding violations discussed above. The complaint alleges that approximately five employees were affected by Item 1 and approximately four employees by Item 2.

CITATION I, Item 3—29 CFR 1910.27(b)(1)(iii)—‘Minimum clear length of rung of Fixed ladder is not 16 of fixed ladder is not 16 Substation).’

PROPOSED PENALTY: $5.00, adjusted to $2.00.

The last three items relate to one physical location which presented an overall falling hazard because the ladder did not meet specifications of the standards (T. 68). The complaint alleged that approximately two employees were affected by this violation, and such would have been the testimony of Mr. Hargreaves.

OSHRC DOCKET NO. 174

Service Building, University City, Missouri

Exhibit No. 12 evidences the method of evaluating the gravity of the violations and the rating arrived at the following items (T. 73).

CITATION I, Item 1—29 CFR 1910.106(e)(2)(ii)(b)—‘Over 25 gallons of Class IA liquids and over 120 gallons of Classes IB, IC, II or III liquids in containers were stored in the building with no inside storage room or cabinet provided.’

PROPOSED PENALTY: $250.00, adjusted to $88.00.

The hazard presented by this violation is the same as for other items involving inside storage of flammable liquids. The probability of ignition was slightly greater due to the storage area also being used as a welding shop and for storage of equipment with internal combustion engines (T. 74).

This item presented a shock hazard to as many as four employees. The gravity and penalties were assessed as for the previous citations (T. 80).

CITATION I, Item 2—29 CFR 1910.310(i)(2)—‘Required clear working space behind switchboard is used for incidental storage.’

PROPOSED PENALTY: $35.00, adjusted to $13.00.

There was exposed wiring behind the switchboard and at the time of the inspection there was a pair of boots and some rain gear. The clearance behind the board was thus reduced causing a shock hazard to the operator who had occasion to go behind the board to perform maintenance (T. 82). The gravity and penalties were assessed as for the previous citations (T. 80).

Section 17(j) provides that the Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations.

The Secretary through his enforcement officer in assessing the penalties utilized a formalized report worksheet which took into account the gravity of each item of a citation, as analyzed in terms of probability of injury resulting from the violation, also, the worksheet took into account the severity or degree of injury likely to result in relationship to the entire system of the workplace. Ratings of A, B, C, or X made with ‘A’ representing light exposure and ‘X’ a flagrant violation with an initial unadjusted penalty being proposed (T. 20). And with a final rating being given with respect to the nature of the hazard, the number of employees, etc. There is further reduction by percentages depending upon the prior history of violations (T. 17), the size of the employer and good faith demonstrated by the employer.

The employer does $17 million annual gross revenue serving something less than one million people (T. 169) and among the largest of the private owned water companies. The company has had lost time accidents (T. 170).

The company promptly abated the violations and has had and continues to have a viable safety program maintained both by the company and in coordination with union representatives and safety committees.

However, giving due consideration to the respondent’s size and the other criteria set forth in section 17(j) of the Act it is felt that the proposed penalties were appropriate.

CONCLUSIONS OF LAW

1. Respondent is, and at all material times was, an employer within the meaning of section 5(a) as defined in section 3(3) and 3(5) of the Act.

2. Jurisdiction is conferred upon the Commission by section 10(c) of the Act and the citations issued were in accordance with section 9(a) of the Act.

3. Respondent withdrew its contest as to the violations alleged and the abatement periods in the citations. The abatement periods were not contested by any employees or representative of employees, as provided in section 10 of the Act.

4. The penalties proposed by the Secretary are appropriate within the meaning of section 17(j) of the Act.

ORDER

It is hereby ORDERED that the citations previously issued be affirmed as to violations and abatement periods, and that the penalties proposed by the Secretary for each item of said citations be assessed.

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[1] In Docket No. 173, the Judge found that item 3 of citation 1 and items 4 and 5 of citation 2 all relate to one physical location. The Judge treated them as one denominating it as citation 1, item 3 alleging a failure to comply with 29 CFR 1910.27(b)(1)(iii).

[2] Good faith considerations include preventive measures taken by an employer to prevent accidents from occurring despite the existence of a violation and thus are also related to the gravity of a violation.

[3] Compliance with state laws is relevant to compliance history.

[4] The additional 5% adjustment for respondent’s good faith is accorded to all penalties. See infra.