UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-2326

STEARNS-ROGER INCORPORATED,

 

                                              Respondent.

 

 

October 31, 1979

DECISION

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

BY THE COMMISSION:

            A decision of Administrative Law Judge Dee Blythe is before the Commission for review pursuant to § 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 [hereinafter ‘the Act’].

            Respondent is a large general construction firm that was in the process of building an addition to the existing power plant facilities of the Public Service Company of New Mexico, located in Fruitland, New Mexico. On April 28, 1976, a representative of the Department of Labor inspected the worksite to ascertain respondent’s compliance with the provisions of the Act. Thirteen citations were issued as a result of the inspection, accompanied by a total proposed penalty of $7,345. A majority of the items in all of the citations were contested. At the hearing, the parties entered into a partial settlement agreement and proceeded to try the remaining items. Judge Blythe issued a decision on January 6, 1977, as to the merits of the issues in contest.[2] Respondent subsequently petitioned for review of four items that the judge affirmed on the merits and of the judge’s characterization of three items as being repeated violations.

I

Alleged non-serious violation of 29 C.F.R. § 1926.102(a)(1)[3]

            The compliance officer observed an employee using a portable hand power saw to cut various pieces of lumber. The employee was wearing what the compliance officer described as ‘street glasses’ and what the employee acknowledged were not industrial safety glasses. The compliance officer thought this situation exposed the worker to the hazard of an eye injury from flying saw dust, from metal particles should the saw blade strike and chip a nail, or from pieces of the saw blade itself should the blade break during the operation of the equipment.

            Respondent’s safety supervisor testified that a number of operations giving rise to eye hazards existed on the jobsite, and that the employer provided various types of eye protective equipment to its employees for use during these hazardous operations. Although he did not consider this particular operation to be highly dangerous, it was his opinion that safety glasses should be worn during the operation of the saw. The safety supervisor testified that, when an employee got sawdust in his eye, the irritant was generally washed out in a matter of minutes and the employee immediately returned to work. The supervisor also stated that he had never seen a saw blade break, and he did not think it was possible for the saw blade to contact a nail because the company either used new lumber or removed any nails from used lumber that it intended to re-use.

            Judge Blythe concluded that respondent violated the standard as alleged. He noted that the standard was directed at protecting against potential injury, and stated, ‘a power-driven saw may present this potential even without evidence that the operator was pelted by flying particles.’

            On review, respondent disputes the judge’s finding that the operation of the saw presented the potential for eye injury. We conclude that the judge properly resolved this question. The record establishes prior instances in which sawdust had become lodged in employees’ eyes. While on these occasions the sawdust was successfully removed without damage to the employee’s eye, we note that the eye is an especially delicate organ and that any foreign material in the eye presents the potential for injury.[4] Indeed, while disclaiming the danger presented by sawdust in the eye, respondent’s safety supervisor also stated that most eye injuries on the job resulted from ‘blowing dust and debris due to wind.’ (Emphasis added.) Thus, respondent’s own experience demonstrates that material similar to sawdust can cause injury to the eye. Moreover, even though it was respondent’s policy to remove all nails from used lumber, the possibility of a hidden or missed nail cannot be entirely eliminated, nor can the chance of a saw blade breaking during operation. Finally, the fact that respondent’s own safety supervisor thought that safety glasses should be worn during the sawing operation is further evidence of the potential for injury.

            Respondent also contends that the Secretary failed to prove the glasses being worn by the employee did not meet the requirements of the ANSI Z87.1–1968 standard that is incorporated by reference at 29 C.F.R. § 1926.102(a)(2)[5] because the Secretary failed to prove the type of eye protection that the ANSI standard requires when employees are sawing wood. We reject the argument. Section 6.3.1 of the ANSI standard provides that all lenses used in protective eyewear must be of the impact-resisting type. Since the glasses worn by the employee were described by the compliance officer as ‘street glasses,’ we infer that the lenses were not impact-resisting. Moreover, section 6.1.2.1 of the ANSI standard provides as follows: ‘Safety spectacles require frames. Therefore, combinations of street-wear frames with safety lenses meeting this standard are definitely not in compliance.’ (Emphasis in original.) Thus, we conclude that the frames, as well as the lenses, of the glasses worn by the employee failed to comply with ANSI Z87.1. Finally, we note that 29 C.F.R. § 1926.102 itself clearly contemplates that ordinary eyeglasses cannot be considered adequate protection, for § 1926.102(a)(3)[6] implicitly prohibits the use of spectacles having only ordinary corrective lenses for eye protection. We conclude that the judge properly affirmed this item.

II

Alleged non-serious violation of 29 C.F.R. § 1926.500(b)(8)[7]

            At the time of inspection, respondent was in the process of installing the supports for the floor deck that was to cover the top of the precipitator (a piece of equipment that is an integral part of the energy-producing system in the power plant). While the testimony of record does not adequately describe the physical structure in question, the photographic evidence clearly illustrates the worksites. The supports that were in place were flat pieces of steel approximately three feet wide and ten to twelve feet long. Every support piece contained two holes, each nearly eleven inches in diameter, that were designed to accommodate the placement of the posts of a high voltage frame that would protrude from underneath the flooring. Four support planks were situated end-to-end to span the width of the precipitator top and the rows were aligned in a parallel manner approximately fifteen feet apart. Employees walked upon the supports containing the holes. The citation alleged that these floor holes, into which persons could accidentally walk, were not properly guarded by the use of guardrails or standard floor hole covers. The judge affirmed the item. He concluded that a hole eleven inches in diameter was sufficiently large to admit an employee’s foot.[8]

            Respondent contends on review that size alone does not determine whether a floor hold is one into which persons can accidentally walk; the location of the hole must also be considered. Respondent contends that the holes in issue were in a location where employees could not accidentally walk into them. Respondent does not dispute that employees walked on the three-foot wide supports containing the holes, but contends that the relative narrowness of the supports would require an employee to look precisely where he was going, thereby negating the possibility that an employee would place a foot in one of the holes. Indeed, respondent contends that covering the holes would present more of a tripping hazard to the employees since they would not ‘observe their footsteps as carefully’ if the holes were covered.

            Respondent’s arguments amount to the assertion that the floor holes need not be covered because they were in a location where employees should have watched where they are walking. This argument clearly lacks merit as a defense to noncompliance with the cited standard. The language of the standard is direct; it requires an employer to guard floor holes into which persons can accidentally walk. There is no doubt that the floor holes existed, and that they were not guarded. The Secretary has established a prima facie violation. The standard, by its very terms, contemplates a hazard when its terms are not met. Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1976–77 CCH OSHD ¶ 22,247 (No. 15579, 1977). See also Van Raalte Company, 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975–76 CCH OSHD ¶ 20, 633 (No. 5007, 1976). We also note that the standard is directed toward accidental situations when employees are not looking precisely where they are walking. Moreover, this Commission has repeatedly recognized that an employer cannot rely upon human behavior to insure a safe working environment for its employees. Akron Brick and Block Company, 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975–76 CCH OSHD ¶ 20, 302 (No. 4895, 1976).

            We also reject respondent’s argument that the citation should be vacated because covering the holes would present a tripping hazard. Respondent’s assertion that covering the floor holes would increase the tripping hazard is pure speculation. There is nothing in the record to suggest that employees will be any less careful when walking on a three foot wide structure containing holes that are covered than one with holes that are not covered. Finally, we note that respondent has shown that covers would necessarily present a tripping hazard. Accordingly, we affirm the judge’s finding of a violation.

III

Alleged Violation of 29 C.F.R. § 1926.350(a)(1)[9]

            This item alleged that respondent failed to use valve protection caps on compressed gas cylinders not in use or connected for use. The eight cylinders which were the subject of the citation were located within the partially-constructed structure during the inspection. The tanks were positioned throughout the structure and used intermittently. Employees would hook up and use the tanks during the workday for various intervals. Hoses, regulators, and torches were removed by each welder to protect his own equipment from pilferage. When the gas supply in the tanks was exhausted, the tanks were rotated back to the storage area and replaced by a full cylinder of gas. Respondent stored both the recently-filled and empty cylinders in a storage rack built expressly for that purpose and maintained at least 100 feet from the west end of the plant.

            Respondent argues that the cited standard only applies to cylinders that are being transported, moved, or stored, and that its cylinders were in intermittent use. Although the judge noted that the issue in the case is whether the cylinders were stored, he made no finding on this question. Rather he found the violation to exist, stating that there was no practical reason for not replacing the valve protection caps when the cylinders were disconnected and not in actual use.

            We agree with respondent that the standard applies only to transporting, moving, and storing compressed gas cylinders. The record clearly reflects that the eight cylinders in question were being neither transported nor moved. The question then becomes whether the cylinders were stored. This issue was first addressed in United Engineers & Constructors, Inc., 75 OSAHRC 69/A2, 3 BNA OSHC 1313, 1974–75 CCH OSHD ¶ 19,780 (No. 2414, 1975). In that case, an employer was cited for an alleged violation of 29 C.F.R. § 1910.252(a)(2)(iv)(c)[10] for failure to separate oxygen and fuel-gas cylinders that were ‘in storage.’ Those cylinders were located throughout the worksite and the hoses and regulators had been removed. The employer also had a designated area for the storage of full cylinders and regularly returned empty cylinders to that area. The Commission affirmed the judge’s ruling that the tanks on the jobsite were located in an area where burning would be done on an intermittent basis and therefore were not ‘in storage.’ The citation was vacated. The same issue recently arose in Grossman Steel & Aluminum Corporation, 78 OSAHRC 85/B5, 6 BNA OSHC 2020, 1978 CCH OSHD ¶23,097 (No. 76–2834, 1978). The case involved an alleged violation of the same standard as was involved in the United Engineers case. Again, the citation was vacated based upon a finding that the cylinders were not in storage but were available for intermittent use by employees in the location cited. The facts here are not distinguishable from the facts in the cases cited above and the citation item is vacated.

IV

Alleged repeat violation of 29 C.F.R. § 1926.350(f)(7)[11]

            The final item in issue alleges that welding cables and hoses were not kept clear of passageways, ladders, and stairs in five separate locations throughout the work area.

            Evidence that the cited condition existed is undisputed, and is confirmed by photographic evidence. No fewer than ten cables are pictured strewn about a junction box at one point. In one specific area, a cable is laying on a passageway floor while five or six other cables are clearly intertwined through the network of railings that enclose the walkway. The latter-mentioned cables are neatly placed and apparently conform to good housekeeping practices as required by the standard.

            Respondent argued before the judge that there was no ‘practical alternative’ to locating hoses and cables where they were because the worksite consisted largely of catwalks, stairs, and other open steel. The judge rejected this contention, stating: ‘From the photographs, however, it is apparent that in most, if not all, instances, the hoses and cables could have been kept off the floor by various means. Instead, they frequently were strung around on the floors like spaghetti.’

            On review, respondent makes the same argument as it made before the judge. It contends that it established there was no practical alternative to its manner of locating the hoses and cables, and that the Secretary failed to present contradictory evidence.

            The Commission has sustained the affirmative defense of impossibility of compliance where an employer establishes that compliance with the requirements of the cited standard would be functionally impossible and alternative means of employee protection are unavailable. M. J. Lee Construction Company, 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23,330 (No. 15094, 1979). The record does not establish this defense. The photographic exhibits demonstrate some instances in which hoses and cables were arranged so as to comply with the standard, and, as the judge observed, it is apparent these techniques could have been more widely used.

V

Determination of violations as ‘repeated’

            The final issue for determination in this case is whether the violations of 29 C.F.R. §§ 1926.25(a)[12] and 1926.350(f)(7) are repeated as alleged and subsequently affirmed by the judge.[13] An inspection on February 27, 1973, evidenced a violation of § 1926.25(a). An inspection in March 1972 resulted in a citation for violation of § 1926.350(f)(7). Neither of these citations was contested, the orders became final, and proposed penalties were paid. Subsequent inspections of respondent’s worksite were conducted in January 1975 and September 1975. No citations for violation of §§ 1926.25(a) or 1926.350(f)(7) were issued as a result of these inspections. The citations issued in March 1972 and February 1973 were the result of inspections of Unit #2 of the project. The instant citations were the result of an inspection of Unit #1.

            At the time this case was tried, the Commission had not yet developed definitive guidelines for determining under what circumstances a violation was repeated. The parties here have vigorously argued the question.[14] It is not necessary, however, to discuss the matter in detail, for the Commission has recently resolved the issue. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979). In Potlatch, we held that ‘[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.’ Under this analysis, proof that an employer has committed a prior violation of the same standard constitutes a prima facie showing by the Secretary of substantially similar violations. The employer may rebut this showing by offering evidence that the violations occurred under disparate conditions or involved different hazards. Factors such as the employer’s attitude, the commonality of supervisory control over the violative conditions, the geographic proximity of the violations, the time lapse between violations, and the number of prior violations are relevant only to determining an appropriate penalty. FMC Corporation, 79 OSAHRC ——, 7 BNA OSHC 1419, 1979 CCH OSHD ¶ 23,631 (No. 12311, 1979).

            In this case, respondent argues that the lack of commonality of supervisory control over the conditions presented in the prior violations and the conditions presented here plus the length of time that expired between the two violations are an adequate defense to the charge that the violation here is repeated. As stated above, these factors are relevant only in the Commission’s assessment of penalties, not in the determination of whether a violation is repeated under the Commission’s Potlatch test.

            The violations of §§ 1926.25(a) and 1926.350(f)(7) both involved poor housekeeping. It is obvious that the previous violations of these same standards involved similar hazards, and that there are no possible dissimilarities of circumstances that the respondent could prove that would rebut the Secretary’s prima facie case.[15] Accordingly, we conclude that the violations were repeated in nature.

VI

Penalties

            The judge assessed penalties of $200 for the nonserious violation of § 1926.500(b)(8), and $0 for the nonserious violation of § 1926.102(a)(1). He assessed penalties of $85 and $100 for the repeated violations of §§ 1926.25(a) and 1926.350(f)(7) respectively. In light of respondent’s size, good faith, prior history, and the gravity of the violations, we conclude that the judge’s penalty assessments are appropriate.

VII

Conclusion

            The judge’s decision is modified to vacate the alleged violation of 29 C.F.R. § 1926.350(a)(1). As so modified, the judge’s decision is affirmed.

 

SO ORDERED.

 

FOR THE COMMISSION:

 

Ray H. Darling, Jr.

Executive Secretary

DATED: OCT 31, 1979


 

BARNAKO, Commissioner, Concurring:

            I agree with my colleagues for the reasons they state that Respondent violated the standards at 29 C.F.R. §§ 1926.102(a)(1), 1926.500(b)(8), and 1926.350(f)(7) but did not violate § 1926.350(a)(1). I also conclude that the violations of §§ 1926.25(a) and 350(f)(7) were repeated in nature, but I do so for reasons substantially different from those of my colleagues.

            My colleagues properly conclude that evidence of at least two prior violations of the same standard is not a prerequisite to finding a violation to be repeated but that a violation, in order to be found repeated, must be substantially similar to a prior violation established by a final order of the Commission. However, as expressed in my separate opinion in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979) (concurring and dissenting opinion), I would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise. Instead I would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation. Where such notice is not apparent from the face of the citation, I would require the Secretary to prove substantial similarity. Where such a showing has been made, I would permit the employer to defend by proving that it took reasonable, good faith steps after entry of a prior final order to prevent the recurrence of a substantially similar violation.

            In this case, the Secretary established that the prior citation for violation of 29 C.F.R. § 1926.25(a) alleged poor housekeeping in that a steel choker was in a walkway. The citation now in issue alleges a violation of that standard in that conduit, metal channel, and ‘miscellaneous material’ was on a floor in a work area. Similarly, the prior citation for violation of § 1926.350(f)(7) was shown to allege oxygen and acetylene rubber hose lying on the floor and not kept clear of passageways, ladders, and stairs in three areas; the citation now before us charges that welding hoses and cables were not kept clear of passageways, ladders, and stairs in five locations. It is obvious from the face of the previous citations that the prior violations of §§ 1926.25(a) and 1926.350(f)(7) involved conditions substantially similar to those on which the subsequent violations of the same standards are based. Moreover, the hazard and means of abatement are identical in each instance. See FMC Corp., 79 OSAHRC ___, 7 BNA OSHC 1419, 1423, 1979 CCH OSHD ¶ 23,631 at 28,658 (No. 12311, 1979) (concurring and dissenting opinion). For these reasons, I agree with the majority that the Secretary established a substantial similarity between the previous violations and those now before us.

            As my colleagues note, this case was tried and decided prior to the Commission decision in Potlatch. Therefore, Respondent did not know at the hearing that it could defend by proving it took reasonable good faith steps after the entry of a prior final order to prevent the recurrence of a substantially similar violation. As the majority properly indicate, in situations where there has been a significant intervening change in the law between the hearing and our decision on review of the case, our usual practice is to allow the parties an opportunity to present additional evidence relevant to any new defense or legal theory. See Triple ‘A’ South, Inc., 79 OSAHRC ___, 7 BNA OSHC 1352, 1979 CCH OSHD ¶23,555 (No. 15908, 1979) (concurring and dissenting opinion). In the circumstances of this case, however, I would only afford Respondent such an opportunity with respect to the citation for repeated violation of § 1926.25(a).

            With respect to the violation of § 1926.25(a), respondent’s safety supervisor testified that the conditions on which the § 1926.25(a) violation is based occurred in an area where employees of the electrical subcontractor were fabricating and using conduit. He further testified that subcontractors were responsible for proper housekeeping in their work areas, although Respondent maintained supervision over subcontractors with respect to safety matters. If he observed a subcontractor in violation of a safety regulation, he would inform its supervisors and ask that the violation be corrected. Respondent also provided trash barrels for use by subcontractors.

            This evidence does not establish the good faith defense I set forth in Potlatch. Rather, Respondent’s evidence regarding the subcontractor’s responsibility for the conditions as well as Respondent’s own evidence regarding its efforts to insure compliance by subcontractors with safety regulations tends to establish that Respondent did not make a good faith effort to obtain compliance with the housekeeping standard. Nevertheless, Respondent may have additional evidence with respect to its efforts to obtain subcontractor compliance after issuance of the first citation for violation of § 1926.25(a). Accordingly, I would enter a conditional order, finding Respondent in repeated violation of § 1926.25(a) unless within 10 days from the issuance of this decision Respondent notifies the Executive Secretary of the Commission that it wishes to adduce additional evidence with respect to any efforts it took after entry of the prior final order to prevent the recurrence of the housekeeping violation.

            As to the violation of § 1926.350(f)(7), Respondent presented evidence in support of its contention that the hoses and cables could not have been positioned in any different manner. In its brief before us on review, Respondent specifically argues that no practical alternative existed for the location of the hoses and cables. Since Respondent freely chose, in effect, to defend on the basis that it could not have taken any further measures to comply with the standard, a remand to allow Respondent the opportunity to show precisely the contrary, that it could and did attempt to prevent the recurrence of the violation, would be inappropriate.[16] I would therefore conclude that Respondent’s violation of § 1926.350(f)(7) was repeated in nature.

            Accordingly, I would enter a conditional order affirming the citation for repeated violation of § 1926.25(a) unless within 10 days Respondent requests the opportunity to present additional evidence as to the repeated nature of that violation. I would unconditionally affirm the citation for repeated violation of § 1926.350(f)(7).

 


 


UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-2326

STEARNS-ROGER INCORPORATED,

 

                                              Respondent.

 

January 6, 1977

DECISION AND ORDER

Appearances:

James F. Gruben, Esq., of Dallas, Texas, for Complainant.

 

John L. Reiter, Esq., of Glendale, Colorado, for Respondent.

 

STATEMENT OF THE CASE

BLYTHE, Judge.

            This is a proceeding brought before the Occupational Safety and Health Review Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (‘the Act’) contesting citations issued by the complainant, the Secretary of Labor (‘the Secretary’) to the respondent, Stearns-Roger, Inc., under the authority vested in the Secretary by § 9(a) of the Act.

            As the result of an inspection conducted from March 22 through March 26, 1976, by the Secretary’s compliance officer of the San Juan Power Plant at Fruitland, New Mexico, on which respondent was the general contractor, 13 citations were issued to respondent April 28, 1976, alleging nonserious, serious, and repeated violations of § 5(a)(2) of the Act by respondent’s failing to comply with the various construction standards promulgated by the Secretary. Notification of proposed penalty was issued April 28, 1976, proposing penalties aggregating $7,345.00. By letter dated May 18, 1976, respondent contested most of the items of the citations, although in some instances only the proposed penalty was contested. A complaint and answer subsequently were filed with the Commission. A hearing was convened September 30 and October 1, 1976, in Farmington, New Mexico. Both parties have filed post hearing briefs, and respondent has submitted proposed findings of fact and conclusions of law. No affected employee or representative of an affected employee has participated as a party in this proceeding although a union representative for the boiler maker craft, Willie Gene Graham, testified at the hearing for respondent. The matter is now ripe for decision.

JURISDICTION AND ISSUES

            The jurisdictional allegations of the complaint were not answered by respondent and are deemed admitted under Rule 33(b)(2) of the Commission’s Rules of Procedure.

            At the hearing the parties stipulated to a partial settlement of the issues. This stipulation, with some modifications, was reduced to writing after the hearing. This partial settlement is approved.[17]

            The issues remaining to be determined are:

            (a) Whether respondent on March 22 26, 1976, was in nonserious violation of the following standards, and, if so, the appropriate penalty therefor:

29 CFR Part 1926: 

§ 25(b) [Item 1, citations 1[18]

§ 102(a)(1) [Item 3, citation 12

§ 150(a)(1) [Item 4A, citation 12

§ 250(a)(3) [Item 12, citation 12

§ 350(f)(6) [Item 18, citation 1]

§ 350(j) [Item 20, citation 1] § 500(b)(8) [Item 31, citation 12

            (b) The appropriate penalty for respondent’s admitted nonserious violations of 29 CFR 1926.303(c)(3) [Items 16, citation 1].

            (c) Whether on said dates respondent was in serious violation of 29 CFR 1926.28(a), and, if so, the appropriate penalty therefor [citation].

            (d) Whether on said dates respondent was in repeated violation of the following standards, and, if so, the appropriate penalties therefor:

29 CFR Part 1926

§ 25(a) [Citation 6]

§ 150(c)(1)(viii) [Citation 7]

§ 350(a)(1) [Citation 8]

§ 350(f)(7) [Citation 10]

§ 500(b)(1) [Citation 12]

            Abatement dates were stipulated by the parties to be issues, but no evidence was introduced on them and the parties do not mention them in their briefs. Therefore, these issues are deemed abandoned.

DISCUSSION AND OPINION

            1. General

            The respondent, Stearns-Roger, Incorporated, at the time of the inspection was constructing an addition to an existing facility, known as the San Juan Power Plant, for the Public Service Company of New Mexico. Power generated in these facilities is transmitted by high voltage lines to industrial and commercial customers. Respondent has offices in Farmington, New Mexico, and Denver, Colorado.

            The unit involved in this inspection was No. 1, but Unit No. 2 was constructed earlier by another corporate entity, Stearns-Roger Corporation. The citations upon which the Secretary relies to establish repeated violations were issued to the latter corporation. The exact relationship of Stearns-Roger Corporation and Stearns-Roger, Incorporated, was not established. Roger A. Dalke, Respondent’s safety supervisor on Unit No. 1, testified that they were affiliated, and that one is the parent of the other, although he was not certain of the relationship:

Q. [By Mr. Gruben] Mr. Dalke, isn’t it a fact that Stearns-Roger Corporation reorganized and changed its name to Stearns-Roger, Inc. about 1973?

 

A. That’s not totally my understanding of the situation.

As I understand, Stearns-Roger Corporation does still exist as an affiliate or maybe a parent corporation, and Stearns-Roger, Inc., is an affiliate.

 

(Tr. 267). The two corporations had the same Farmington and Denver addresses, and sometimes the stationery of one corporation was used to correspond with the Secretary about citations issued to the other (Tr. 267 276). They had different separate supervisory staffs, including safety supervisors, on the two units of the power plant. Another affiliated corporation, Stearns-Roger Electrical Contractors, Inc., was a subcontractor on Unit No. 1 (Tr. 276).

            Although the interlocking corporate relationships were not established as well as they might have been, it appears to me that they were under common control and should be treated as one entity for purposes of determining whether any of the violations were repeated, insofar as they involved separate units of the same power plant. To hold otherwise would be to allow form to triumph over substance and to invite thwarting the provisions of § 17(a) of the Act regarding repeated violations by frequent changes in corporate entities.

            The criteria for assessing civil penalties, under § 17(j) of the Act, include the size of the employer’s business, its good faith and its history of previous violations. Gravity of the violation, another criterion, will be discussed under each item where a violation is found.

            Respondent’s size, although not fully established, obviously is large; it had 800 employees on this job. Its history of previous violations is not extensive, considering the magnitude of its operations. Its good faith is not questioned. An element of good faith is its safety program, which was very good. At San Juan Unit No. 1 respondent employed two safety engineers and two nurses, provided a safety and first aid trailer, and had two ambulances available. Its safety program provided regular instruction of supervisory personnel and workers.

            2. The 29 CFR 1926.25(b) citation.

            Item 1 of citation 1 alleges nonserious violation of 29 CFR 1926.25(b), for which no penalty is proposed, as follows:

A large amount of combustible scrap had accumulated on the roof of the tripper building.

 

            The cited regulation provides, in pertinent part:

Combustible scrap and debris shall be removed at regular intervals during the course of construction. . . .

 

            Respondent does not contend that there was not an accumulation of combustible scrap at the location alleged. Rather, it contends that there was no construction activity in that vicinity.

            The compliance officer, Rodney G. Prows, testified that a large amount of cardboard boxes and plastic sheeting was accumulated on the roof of the tripper building, which was part of the access route of three employees working on the roof of the deaerator building (Tr. 23 26; Exhibit C 8).

            Respondent’s safety supervisor, Roger A. Dalke, testified that the debris had been left by a roofing subcontractor, that the nearest construction work was 50 feet south of and 10 or 12 feet higher than the trash accumulation, and that the three men working there needed not come closer than 30 feet to the trash in gaining access to their workplace (Tr. 152).

            Respondent, it its supervisory capacity as general contractor, was as responsible as the roofing subcontractor for the accumulation of combustible scrap and debris. Secretary v. Grossman Steel & Aluminum Corp., No. 12,775, May 12, 1976, 1975 1976 CCH OSHD ¶ 20,691.

            Employee access to a zone of danger, such as going through it in ‘their normal means of ingress-egress to their assigned workplaces,’ is sufficient proof of exposure. Secretary v. Gilles & Cotting, Inc., No. 504, February 20, 1976, 1975 1976 CCH OSHD ¶ 20,448, on remand from 504 F.2d 1255 (4th Cir. 1974). The compliance officer did not say how close to the trash the normal access route was; the safety supervisor said it was 30 feet, which testimony is uncontradicted and in fact is supported by Exhibit C 8, a photograph which shows the trash off to one side of the roof. Since there was no extreme fire danger, an open-air route 30 feet from the trash accumulation posed no substantial threat to employees passing by. The secretary has failed to shoulder his burden of proof of this item.

            3. The 29 CFR 1926.102(a)(1) citation.

            Item 3 of citation 1 alleges a non-serious violation of 29 CFR 1926.102(a)(1), for which no penalty was proposed, as follows:

Carpenter using portable handsaw on east side of saw shed was not wearing eye or face protective equipment meeting ANSI 287.1[19] requirements.

 

            The cited regulation provides:

Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.

 

            Subparagraph (2) of this standard further provides:

Eye and face protection equipment required by this Part shall meet the requirements specified in American National Standards Institute, Z87.1 1968, Practice for Occupational and Educational Eye and Face Protection.

 

            Complainant has not specified, either in the citation or at the hearing, the precise ANSI standards respondent is accused of violating.

            The ANSI standard contains detailed specifications for goggles and safety spectacles, but it is unnecessary to pinpoint the applicable provisions because, the evidence shows, no protective eye equipment was worn by the employee.

            Compliance Officer Prows testified that the employee was sawing wood with a portable electric saw with a circular blade, and that there was a hazard to his eyes from sawdust and possibly metallic particles if he should saw into a nail. The employee was wearing glasses which he admitted were not industrial safety glasses and which Prows characterized as street glasses (Tr. 27, 28, 55, 56.).

            Respondent contends that the evidence is insufficient to establish (1) that the glasses did not meet ANSI standards or (2) that the operation of the saw presented a potential eye or face injury, citing Secretary v. Tobacco River Lumber Co., 17 OSAHRC 235 (1975). On the first point, it notes that Prows relied on the employee’s statement that his glasses were not industrial safety glasses and that there is nothing in the record to show that he knew what industrial safety glasses were. However, safety Supervisor Dalke supplied this proof when he testified about respondent’s eye safety program, including indoctrination of new employees and the supplying of a wide range of eye protection equipment[20], which he estimated was worn by half the 800 employees in the course of a day (Tr. 153, 154). He also admitted that a few employees got sawdust in their eyes but said it had never been necessary to send one to a doctor because of sawdust, which generally could be washed out of the eye at the jobsite (Tr. 155). Further, he conceded, ‘I would say that as a general rule they [safety glasses] should be worn in that particular situation’ (which, however, he didn’t consider highly hazardous) (Tr. 180).

            In Tobacco River, supra, the Secretary first advanced, and then retreated from, a position that the very fact that power-driven saws were used established a ‘reasonable probability’ of injury from sawdust. Apparently approving the latter position, the Commission vacated a citation under § 1910.133(a)(1), the general industry counterpart of § 1926.102(a)(1). However, the former requires protective equipment where there is ‘reasonable probability of injury’ whereas the latter requires it ‘where machines or operations present potential eye injury.’ ‘Reasonable probability,’ it seems to me, requires a higher degree of proof than ‘potential’ injury. Additionally, § 1926.102(a)(1) requires protective equipment when a potential injury is presented by a ‘machine or operation,’ hence a power-driven saw may present this potential even without evidence that the operator was pelted by flying particles.

            I find the item proved. No penalty was proposed, and none is assessed.

            4. The 29 CFR 1926.150(a)(1) citation.

            Item 4A of citation 1 alleges a non-serious violation of 29 CFR 1926.150(a)(1), for which no penalty is proposed, as follows:

Fire extinguishers adequate for the hazard were not provided in the cars on #24 and #3 personnel hoists where LPG gas containers were located.

 

            The cited regulation provides

The employer shall be responsible for the development of a fire protection program to be followed throughout all phases of the construction and demolition work, and he shall provide for the firefighting equipment as specified in this subpart. As fire hazards occur, there shall be no delay in providing the necessary equipment.

 

            Subpart F further provides, in 29 CFR 1926.150(c)(1)(vi):

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

 

            There is no dispute about the evidence. Personnel hoists Nos. 2[21] and 3 carried LPG (liquid propane gas) containers in addition to personnel. There were fire extinguishers on the landings at which the hoists stopped, but not on the hoist cars. The compliance officer considered the fire protection inadequate to meet the danger of a fire which might occur on the hoist cars when they were between landing levels, especially if the electrical system should be disabled and the hoist cars stranded between floors (Tr. 28, 29.) This seems to be a rather remote possibility (Tr. 155, 156). More importantly for present purposes, there is no specific requirement in the cited standard (or elsewhere in Subpart F) requiring fire extinguishers under such circumstances. The applicable standard appears to be § 150(c)(1)(vi), supra, which requires a fire extinguisher to be provided within 50 feet of where 5 pounds of flammable gas is being used. There is no evidence in this case that the requirements of this standard were not met since there was a fire extinguisher on each landing.

            It should be noted that § 150(a)(1) requires the employer to ‘provide for the firefighting equipment as specified in this subpart.’ (Emphasis supplied). Since respondent did provide the fire extinguishers so specified, it was not in violation. The general language about ‘development of a fire protection program’ cannot be construed to impose equipment requirements more stringent than the specific requirements of the standards simply because the compliance officer considered the specific requirements inadequate to meet a particular hazard as he perceived it.

            5. The 29 CFR 1926.250(a)(3) citation.

            Item 12 of citation 1 alleges a non-serious violation of 29 CFR 1926.250(a)(3), for which no penalty is proposed, as follows:

Scaffold planks and other material were stored in the passageway used for access to the toilet facility on the south side of the 191 level of the precipitator.

 

            The cited standard provides:

Aisles and passageways shall be kept clear to provide for the free and safe movement of material handling equipment or employees. Such areas shall be kept in good repair.

 

            The compliance officer testified that the passageway to toilet facilities on the south side of the 191 level of the precipitator was restricted to ‘a foot or so’ by stacks of lumber and angle iron (Tr. 33). However, there was another route to the toilet facilities, and the width of that passageway was about two feet (Tr. 159).

            Respondent contends that (1) the cited standard applies to storage areas, whereas the materials here involved were in transit; (2) the free and safe movement of its employees was not substantially impaired; and (3) the materials could not practically have been placed elsewhere.

            The area served as a landing for building materials hoisted by a crane. Two chemical toilets were located on the same landing because they had to be lowered by crane for cleaning (Tr. 159).

            While the lumber and angle iron may have been intended for use in the near future, they obviously were not in use at the time, nor were they actually in transit. How long they had been there and when they were to be used was not established. Therefore, they must be considered in temporary storage, and the cited standard applies. It is the apparent object of the standard to require all such construction materials to be kept in orderly array. However, on a landing where such materials are being unloaded by crane there is bound to be some disarray. In this instance the compliance officer contended that employees’ access to the toilet facilities was restricted. One passageway was restricted to ‘a foot or so’ at one point, but there was another passageway two feet wide. The compliance officer was able to get through without difficulty, according to the safety supervisor (Tr. 159). This is confirmed by photographs (Exhibits C 11, R 5, R 6). I find the item not proved.

            6. The 29 CFR 1926.303(c)(3) citation.

            Item 16 of citation 1 alleges 13 violations of 29 CFR 1926.303(c)(3), for which a penalty of $85 is proposed, and only the penalty is contested. Therefore, it is unnecessary to set forth the violation or the cited regulation in full.

            This violation involves 13 portable grinding wheels, used to grind pipes, which had no point-of-operation guards. The 13 operators were exposed to the possible disintegration of the composition stone grinding wheels, fragments from which might cause injuries requiring hospitalization (Tr. 35 37, 115; Exhibits C 7 through C 20). The method of penalty computation (Tr. 130) took into consideration the probability of injury (rated as ‘fairly low’); the severity of injuries which might result (possible hospitalization); and the extent of the violation (100% of the portable grinders observed). These factors reduced the ‘unadjusted’ penalty of $175 to an adjusted proposed penalty of $85.

            The method employed did not take into consideration three of the criteria prescribed by § 17(k) of the Act: Size of the employer’s business, its good faith, and its history of previous violations, which have been discussed supra, p. 6. After considering these criteria, I find the $85 penalty to be quite reasonable—probably too low, in fact. However, it will not be disturbed.

            7. The 29 CFR 1926.350(f)(6) citation.

            Item 18 of citation 1 alleges non-serious violations of 29 CFR 1926.350(f)(6), for which a penalty of $50 is proposed, as follows:

Welding torches and hoses were stored in unventilated toolboxes in the following locations:

a. Electricians’ shack on 265 level of the boiler;

 

b. Toolbox PF 69 on feeder floor, generator building;

 

c. Toolbox PF 16 on D 2 line, turbine floor, generator building.

 

            The cited standard provides:

Boxes used for the storage of gas hose shall be ventilated.

 

            Respondent pleaded affirmatively that this standard is unconstitutionally vague and unenforceable. However, the stipulation of the parties does not list this as one of the issues to be tried, and respondent does not mention it on brief. Therefore, this issue is deemed abandoned.

            The evidence is essentially undisputed. The toolboxes in question were metal, with hinged metal lids fastened by hasps which sometimes were padlocked. Slots were cut in the top edges of the toolboxes so that welding torches, with hoses attached, could be stored in the toolboxes with all but a few inches of the hoses remaining outside (extending through the slots). The hoses were left attached to sources of oxygen and acetylene gas, and sometimes the pressure was left on the hoses. No ventilation to the boxes was provided other than that provided by the hose slots or the crevices around the overlapping lids. (Tr. 37 41, 56, 115 117, 130, 161; Exhibits C 14, C 21, R 8.)

            Respondent contends that the cited standard does not apply to the situation presented, since the toolboxes were used primarily for the storage of torches, not hoses, and that the Secretary has failed to prove that the toolboxes were not ventilated.

            Considering these arguments in inverse order, I have no difficulty in finding that the toolboxes were ‘unventilated’ within the meaning of the standard. The lids were rather tight-fitting and had edges turned down over thE sides. The slots cut to accommodate the trailing hoses were not large enough to be considered adequate ventilation, especially when partially filled with hoses and partially covered by the lid edges.

            The hazard presented, with the possibility of explosive gases, under pressure, leaking into the confined spaces of the closed toolboxes, is even more dangerous than the residual gases that might be present in hoses stored without their being attached to sources of gas supply and to welding torches. However, it is not realistic to say that the toolboxes were used to store gas hose simply because a few inches of hose, attached to welding torches, extended into the boxes. This simply is not a situation covered by the regulation, and it is not the Commission’s function to stretch regulations to fit unforseen situations.

            8. The 29 CFR 1926.350(j) citation.

            Item 20 of citation 1 alleges a non-serious violation of 29 CFR 1926.350(j), for which a penalty of $50 is proposed, as follows:

Welding and cutting operations in the following areas did not conform to the requirements of American National Standards Institute Z49.1 1967, Safety in Welding and Cutting:

a. Compressed gas cylinders containing oxygen were not separated from acetylene cylinders or other combustible material in storage by a minimum distance of 20 feet or by a noncombustible barrier at least five feet high having a fire-resistance rating of at least 1/2 hour as required by Paragraph 3.2.4.3:

1. One acetylene and one oxygen cylinder stored at base of stairs leading to fly ash hoppers;

 

2. One LP gas container, one acetylene cylinder, and one oxygen cylinder, stored at line six, first floor of generator building;

 

3. Two acetylene and two oxygen cylinders stored in middle of first floor of precipitator;

 

4. One acetylene cylinder and four oxygen cylinders stored in southwest corner of first floor precipitator;

 

5. Two acetylene cylinders, adjacent to oxygen cylinders in use on south side of 191 level precipitator;

 

6. Three acetylene cylinders and two oxygen cylinders stored on south side, first level of air preheater;

 

7. One acetylene cylinder and one oxygen cylinder stored adjacent to a can of oil, near south door to electrical warehouse.

 

b. Acetylene was being used or piped in excess of 15 psi in the following locations (Paragraph 3.1.2):

1. Manifold on 247 level, northwest corner of boiler, one acetylene gauge over 15 psi;

 

2. Manifold on west side 157 level of boiler, two gauges over 15 psi.

 

            The cited standard provides:

For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1 1967, Safety in Welding and Cutting, shall apply.

 

            Paragraphs 3.1.2 and 3.2.4.3 of the incorporated ANSI standard provide, in pertinent part:

3.1.2 Under no condition shall acetylene be generated, piped (except in approved cylinder manifolds) or utilized at a pressure in excess of 15 psi gauge pressure . . .

 

3.2.4.3 Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

 

            Testimony of Compliance Officer Prows supports items 20(a) and (b) in detail (Tr. 43 50 118, 119, 127, 131; Exhibits C 10, 22 29), and is essentially uncontradicted.

            The defense to item 20(a) is that the gas cylinders were not ‘in storage’. In each instance they were secured in an upright position to structural supports with ropes or wires. None was in use or connected to hoses or regulators, and all of them had valve protection caps in place (others, which did not, were cited in citation 8).

            Safety Supervisor Dalke testified that respondent had a storage area from which cylinders were brought to the jobsite when needed, that there was a substantial demand for oxygen and acetylene on this job by various crafts, that the cylinders were used intermittently, that they were normally expended in a period of a few days (not more than two weeks), that about 100 cylinders were in use at all times, and that about half of the 800 employees would have occasion to use a welding torch each day (Tr. 162 165, 196 208, 214 216).

            Paragraph 2.6 of the 1973 revision of ANSI Z49.1 1967 definition of cylinder storage as ‘cylinders of compressed gas standing by on the site, not those in use or attached ready for use’ (Tr. 204). The 1973 revision has not been adopted by the OSHA standard, so it is not binding. It is necessary, then, to refer to more general definitions.

             ‘Storage’ is defined by Webster’s New World Dictionary, College Ed. (1972) as ‘a place or space for storing goods.’ This definition is not helpful, being in terms of itself. Many definitions appear in Words and Phrases, Permanent Ed., Vol. 40, pp. 336 338 and pocket part, p. 46, including:

Term ‘storage’ connotes permanency and not transient situation. State v. Gargiulo, 246 A.2d 738, 740, 103 N.J.Super. 140.

 

            As a practical matter, it would be extremely difficult to apply the ANSI standard strictly to the present situation. Since erection of noncombustible barriers all over the structure would be out of the question, the alternative would be to separate the oxygen and acetylene cylinders 20 feet after each use. This might be practical in some instances, but not when the cylinders are used several times a day.

            Apparently the compliance officer’s tacitly recognized the practicalities of the situation, for he did not cite respondent for gas cylinders which were kept in portable racks for the same purpose as those here involved. Item 20(a) should be vacated.

            Respondent’s defense to item 20(b) is that ¶ 3.1.2 of ANSI 249.1 (1967) is not applicable where an approved manifold system is employed, and that the incidents of excessive pressure were the result of unavoidable fluctuations due to the nature of the manifold system.

            Prows testified that one pressure gauge on one manifold and two on another showed pressure in excess of 15 psi, and that a hose was attached to one and regulator was in the ‘on’ position (Tr. 48 50; Exhibits C 28, 29). Dalke testified that respondent had 12 to 15 manifolds (bulk gas distribution systems) on this job, and each had about 8 gauges. An employee sets the pressure at the regulator, but there is some fluctuation due to variations in the amount of gas being drawn from the manifold by other welders, he said (Tr. 166 168).

            There was, however, no proof that the excessive pressures for which the citations were issued were caused by such fluctuations, and the ANSI standard says that ‘[u]nder no conditions shall acetylene be . . . utilized at a pressure in excess of 15 psi gauge pressure’ (emphasis added). Thus there is a violation.

            The proposed penalty of $50 covers both portions of this item, and the major portion (a) is being vacated. No penalty will be assessed for (b).

            9. The 29 CFR 1926.500(b)(8) citation.

            Item 31 of citation 1 alleges non-serious violations of 29 CFR 1926.500(b)(8), for which no penalty is proposed, as follows:

Floor holes in the walkway on top of the precipitator were not covered by a floor hole cover.

 

            The cited regulation provides:

Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. . . .

 

            The holes which prompted the citation were 11 inches in diameter. Their number was not established by the testimony, but photographs Exhibits C 30, C 31, and C 32) show that there may have been 16 of them, in two rows of eight each, several feet apart, in long, narrow steel plates forming part of a structure designed to support the top of the precipitator. High voltage frames were to be installed in the holes. Three to five employees were working in the area, and at times they walked on the surfaces where the holes were located. Employees worked in this area about a month. There were no guardrails or toeboards around, or covers over, these holes (Tr. 50 53, 57, 120, 170, 172, 209 211).

            Respondent contends that the holes were not in a ‘floor’ and that persons could not accidentally walk into them.

            As for the first point, the power plant structure is difficult to describe in terms common to ordinary buildings. The precipitator is a large, box-like structure containing partitions and steel ‘curtains’ for collecting fly ash. The surfaces containing the holes were to become part of the top of the precipitator, but respondent’s safety supervisor alternately called it a roof, a floor, a support for the floor deck, and a roof support (Tr. 170, 209).

            The definition of ‘floor-hole’ in § 1926.502(a)[22] makes it clear that these regulations apply to ‘any floor, roof, or platform’. However, this definition raises more questions than it answers. It seems to be concerned with materials falling onto persons beneath the holes rather than with injuries to persons stepping into them. Indeed, whether persons may fall through them is the primary distinction between a ‘floor hole’ and a ‘floor opening’ as defined in § 1926.502(b)[23]. Thus the language of § 1926.500(b)(8), supra, ‘into which persons can accidentally walk,’ seems more consistent with a floor opening than with a floor hole. This inconsistency was noted, but not resolved, by the Commission in Secretary v. W. C. Sivers Company, 8 OSAHRC 480 (1974). The same inconsistency is found in the comparable General Industry standards, 29 CFR 1910.21(a)(1) and 23(a)(8), and the Commission held in Secretary v. Buhls laundry & Dry Cleaning, Inc., 5 OSAHRC 1 (1973),

‘The language of the standard controls, and the definition cannot be used to enlarge the standard so as to bring floor holes into which persons cannot accidentally walk [in this case 3‘ x 7‘] within its scope.’ (Id. at p. 3).

 

Buhls Laundry still does not answer the question of what constitutes ‘walking into’ a floor hole, except to the limited extent that it holds that a person cannot walk into a 3‘ x 7‘ hole. If any effect is to be given to the difference between ‘floor holes’ and ‘floor openings,’ § 1926.500(b)(8) must be construed to apply to a floor hole that is large enough to admit an employee’s foot (which easily could cause a bone fracture). If it is construed to mean a hole large enough for an employee to fall through, the distinction between a floor hole and a floor opening vanishes. Buhl’s Laundry, on the other hand, indicates that the hole must be more than a stumbling hazard to make § 1926.500(b)(8) applicable.

            On the other hand (or foot), the size of the employee’s foot may be determinative if § 1926.500(b)(8) applies only to holes into which an employee could insert his foot. This would be the modern counterpart of the ‘chancellor’s foot’[24] as a unit of measurement.

            There is no evidence in the record as to whether the employees could or could not walk into, or put their feet through, the holes in question. In some cases such testimony might be indispensable. However, it seems obvious to me, and I so hold, that a hole 11 inches in diameter is large enough to make § 1926.500(b)(8) applicable.

            No penalty was proposed for this violation, but this is not binding on the Commission or its judges. Secretary v. Winzinger, Inc., Docket No. 6790, July 22, 1976, 1976 1977 CCH OSHD ¶ 20,959. The statutory criteria, except the gravity of the violation, have been discussed, supra, p. 6. The gravity is moderate to high, considering the number of floor holes, the number of employees exposed, and the duration of the hazard. I find a penalty of $200 to be appropriate.

            10. The 29 CFR 1926.28(a) citation.

            Citation 2 alleges several serious violations of 29 CFR 1926.28(a), for which a penalty of $1,000 is proposed, as follows:

Employees in the following locations were not wearing, or not utilizing, appropriate personal protective equipment such as safety belts and lanyards, or the equivalent, when working in area where they were exposed to potential falls:

 

a. Employee working on plenum on west side of electronic precipitator;

 

b. Laborer walking beam, 211 level on south side of boiler;

 

c. Employee sitting and walking on beam, 167 level on west side of boiler;

 

d. Electrician working on conduit on feeder floor of generator building;

 

e. Two employees working on main steam chest in generator building;

 

f. Employee working on cable tray, mezzanine floor, D 6 grid, generator building;

 

g. Two employees working on main transformer;

 

h. Employee working above second level on west side of south air preheater;

 

i. Two employees working above second level of north air preheater, on east side;

 

j. Three employees working on roof of de-aerator.

 

            The cited standard provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

 

            Respondent has pleaded the affirmative defenses of isolated occurrence and contends on brief that the standard is impractical or impossible to enforce in view of employee resistance to the use of safety belts. There is also a question of whether some of the exposed employees were respondent’s.

            The compliance officer testified to each of the 10 situations alleged in the citation in which employees were exposed to hazards of falls of varying distances (7 to 110 feet) which probably would have resulted in death or serious physical harm (Tr. 59 77; Exhibits C 7, C 33 through C 40). None of the employees was using a safety belt, although some were wearing safety belts which were not tied off. There were no standard guardrails, although in some instances manila ropes provided some protection (Tr. 79).

            The compliance officer was accompanied by Safety Supervisor Dalke when he noted, photographed and commented on these apparent violations. In some instances he ascertained that the employees were respondent’s by asking Dalke, but in others he assumed they were because he thought only respondent’s employees were in the area involved and because Dalke did not tell him otherwise. Dalke, however, testified that subcontractors’ employees were in the area and that the employees involved in subitems (d), (f) and (g) were not respondent’s (Tr. 221, 222). While Dalke may have been under some duty to speak up during the inspection, his direct testimony at the hearing is more convincing than his silence during the inspection. Sub-items (d), (f), and (g) are found not proved, in that respondent’s employees were not exposed to the hazard.

            Otherwise, the compliance officer’s testimony is essentially undisputed. He further testified that it was feasible in each instance to tie off safety belts to the structure, and that these would have provided the needed fall protection (Tr. 79, 80). Since the citation specifically pleaded that safety belts and lanyards were appropriate personal protective equipment, the proof meets the requirements of Secretary v. Frank Briscoe Company, Inc., Docket No. 7792, October 4, 1976, 1976 1977 CCH OSHD ¶ 21,162.

            Respondent’s defenses of ‘isolated incident’ and impossibility or impracticability of enforcement of the standard due to employee resistance are inconsistent, but inconsistent defenses are permissible under Rule 8(e)(2), F.R.C.P.[25] Therefore, they will be considered independently.

            With regard to the ‘isolated incident’ defense, Dalke testified that respondent’s safety program included a policy, which it regularly communicated to its employees, of requiring use of safety belts where employees were more than 10 feet above the ground or other surface when guard rails were not provided, and that two employees had been discharged for disobeying this rule (Tr. 216, 217). He said that safety belts and lanyards were provided at the general tool room (Tr. 217).

            However, Dalke testified that the power plant, with a top elevation of 324 feet, was to a large degree an open steel structure, with numerous catwalks, and that every day about half of the 800 employees were necessarily exposed to falls for very brief periods of time, up to a few minutes (Tr. 218 220). In Secretary v. Weatherhead Co., Docket No. 8862, June 10, 1976, 1976 1977 CCH OSHD ¶ 20,784 at p. 24,922, the Commission said,

The existence of an ‘isolated incident,’ or perhaps more accurately an unpreventable occurrence, is an affirmative defense wherein the employer bears the burden of proving that the actions constituting non-compliance with the standard were: (a) unknown to the employer and (b) contrary to both the employer’s instructions and a company work rule which the employer had uniformly enforced. [Citation omitted].

 

            The respondent has not shouldered this burden of proof. It certainly was aware of numerous violations of its safety belt work rule, and its enforcement efforts are far from convincing.

            Respondent contends on brief that many of its employees resisted the use of safety belts, that it was not possible for foremen to observe them at all times, and that ‘Since constant supervision is not possible, it is not possible or practical to enforce the standard.’

            To support this argument, it points to the rather remarkable testimony of Willie Gene Graham, union representative on the job of the boilermaker craft (Tr. 236 250). Graham, a journeyman boilermaker, called as a witness by respondent, testified in effect that whether an employee should use a safety belt and lanyard should be determined by each employee for himself and that strict enforcement of the standard was ‘a frightening monster’ and contrary to the Act and to his constitutional right to the pursuit of happiness (Tr. 245). Respondent argues, ‘The testimony of a man who is a leader of employees in his craft and attitude toward compliance must not be discarded lightly.’ Whether or not Graham’s attitude was typical of the employees, the introduction of his testimony by respondent, when considered in the light of Dalke’s testimony that perhaps 400 employees were exposed each day to fall hazards, is very revealing. Granted that 800 employees cannot be watched constantly without requiring an inordinate number of foremen, it seems odd that so many employees would expose themselves to fall hazards in the presence or view of the compliance officer and the safety supervisor.

            Graham himself testified that ‘a number of times’ Dalke had told him to tie off his safety belt when he wasn’t tied off (Tr. 243), but there is no indication that any sanctions were imposed.

            It is, of course, impossible to leave it up to employees whether or not they should wear, or tie off, their safety belts. This case is to be distinguished from those in which it has been held that the facts proved that it would be more hazardous to tie off than to not tie off the safety belts, e.g., Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). While that may be the general tenor of Dalke’s and Graham’s testimony, specific facts were not proved to justify application of this exception.

            A penalty of $1,000 is proposed for these violations. This, of course, is the maximum penalty for a single serious violation under § 17(b) of the Act. The gravity of these violations is high, in view of the likelihood of an accidental fall and the substantial probability that death or serious physical harm could result therefrom. after considering all the statutory criteria of § 17(j), including those discussed on p. 6, I find the proposed penalty appropriate.

            11. The 29 CFR 1926.25(a) citation.

            Item 1 of citation 6 alleges repeated violations of 29 CFR 1926. 25(a), for which a penalty of $85 is proposed, as follows:

Housekeeping was not maintained in the following locations:

a. Inside boiler at 216 level, welding hoses, electrical cable and miscellaneous material in the work area;

 

b. Mezzanine floor, generator building, conduit, metal channel and miscellaneous material on the floor in the electricians’ work area;

 

c. D 5 grid mezzanine floor, generator building, electrical box, angle iron, hangers and miscellaneous material on the floor in a passageway.

 

            The cited standard provides:

During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

 

            There is no great dispute about the evidence, although respondent contends some of the items complained of were not ‘debris’, that debris was removed on a regular basis, and that in one cited instance there was no exposure of employees to a hazard because passageways and work areas were not blocked.

            Compliance Officer Prows testified in line with the citation (Tr. 81 84). With regard to sub-item (a), the only materials on the floor of the boiler which Prows specifically identified were welding hoses and electrical cables, which safety Suprevisor Dalke testified (Tr. 256) were used by boilermakers who were working in the boiler. A photograph, Exhibit C 47, shows a welter of hoses and cables on the floor. Respondent contends these items do not constitute ‘debris’ so as to come within the ban of § 1926.25(a), since they obviously were not scrap lumber with protruding nails.

            ‘Debris’ is defined by Webster’s New World Dictionary, 2d College ed., as

‘1. rough, broken bits and pieces of stone, wood, glass, etc., as after destruction; rubble 2. bits and pieces of rubbish; litter 3. a heap of rock fragments, as that deposited by a glacier.’

 

            In Secretary v. Shea-Ball, a Joint Venture, Docket No. 4892, October 15, 1976, 1976 1977 CCH OSHD ¶ 21,206, the Commission majority eschewed strict adherence to dictionary definitions in favor of interpretations which will effectuate the purpose of the statute and the safety standards.

            However, under the ejusdem generis rule general words, following an enumeration of specific things, are not construed to their widest extent but are limited to things of the same general class as those specifically mentioned. Black’s Law Dictionary Rev. 4th Ed. (1968).

            Thus § 1926.25(a) should be construed as applying to ‘form and scrap lumber with protruding nails, and all other [similar] debris.’ As so construed, it does not include welding hose and cables which are attached to equipment in use.

            Such items, incidentally, are required by § 1926.350(f)(7) to be kept clear of ‘passageways, ladders, and stairs’. Presumably item 1(a) was not cited under that standard because the inside of a boiler was not a passageway, ladder, or stair. This leaves us without a standard forbidding welding hoses and cables on the floors of work areas, but that does not justify stretching the existing standards out of shape.

            With regard to sub-item (b), Prows described ‘metal channel, conduit, pieces of conduit, and miscellaneous material scattered around the horizontal band saw and in the general work area where the electricians were working’ on the mezzanine floor of the generator building (Tr. 82; Exhibits C 48, 49). Dalke testified that the area was actually the feeder floor, that the materials on the floor ‘consisted primarily of pieces of conduit and unistrut’ which ‘was for installation of the electrical in the feeder floor area,’ that he didn’t know how long it had been lying there, that trash barrels were generally provided so that the area could be cleaned up periodically as the work progressed (Tr. 256, 257). Respondent contends that this proves a systematic housekeeping effort, such as was found sufficient in Secretary v. Wilmorite, Inc., 17 OSAHRC 223 (1975). It does not. At most, it proves a general policy. Item 1(b) is found proved.

            With regard to sub-item (c), Prows described ‘a large electrical box, some angle iron, a can that held welding rods, other material adjacent to and extending into the aisleway’ of D 5 grid to the mezzanine floor of the generator building (Tr. 84; Exhibit C 50). Dalke testified that most of the materials were there to be installed, that the area was 20 feet wide, and that there was plenty of room to walk through it (Tr. 258). Dalke’s testimony appears to be borne out by the photograph, C 50. This sub-item is found of proved.

            Respondent contends that one prior, uncontested citation for a violation of § 1926.25(a) does not make the present one ‘repeated,’ and that ‘repeatedly’ as used in § 17(a) of the Act means more than twice and a ‘flouting’ of the standard’s requirements, citing Bethlehem Steel Corporation v. OSHRC, 540 F. 2d 157 (3rd Cir. 1976), reversing in part Secretary v. Bethlehem Steel Corp, 20 OSAHRC 227 (1975). However, the latter, which holds that ‘repeatedly’ means twice, is still Commission precedent and is binding on its judges. Secretary v. Grossman Steel & Aluminum Corp., Docket No. 12,755, May 21, 1976, 1975 1976 CCH OSHD ¶20,611. Therefore, since respondent’s affiliated corporation was cited for, and did not contest, a § 1926.25(a) violation at the same location in 1973, as shown by Exhibit C 63, the present violation was repeated.

            A penalty of $85 is proposed. This appears appropriate under the statutory criteria, previously discussed, and the low gravity of this violation.

            12. The 29 CFR 1926.150(c)(1)(viii) citation.

            Citation 7 alleges repeated violations of 29 CFR 1926.150(c)(1)(viii), for which a penalty of $100 is proposed, as follows:

Fire extinguishers in the following locations had not been maintained as required by NFPA 10A: Maintenance and Use of Portable Fire Extinguishers, Paragraphs 2231 and 3510:

a. Kidde fire extinguisher on Pettibone hydraulic crane C 12, no maintenance tag, no tamper seal;

 

b. Triplex fire extinguisher on 211 level of boiler, no maintenance tag;

 

c. Triplex fire extinguisher, sheet metal and insulator shop, no maintenance tag, no tamper seal;

 

d. Three Triplex fire extinguishers, on top level of precipitator, no maintenance tags.

 

            The cited standard provides:

Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA No. 10A 1970.

 

            Paragraphs 2231 and 3510 of the incorporated NFPA standard provide:

2231. Tampering or extinguisher operation is usually indicated by broken seals or tamper indicators. These may consist of wire and lead seals, plastic indicators, paper strips, and the like, that indicate operation of the extinguisher or its movement from its hanger, bracket, or wall cabinet. Tamper indicators which seal an extinguisher to its mounting may be fairly loosely affixed so that it is possible for an inspector to ‘heft’ (lift slightly) the extinguisher to determine if it is full or empty without breaking the seal.

 

3510. The date (month and year) of the maintenance check and the initials or special mark of the examiner should be recorded. The marking can be put on a tag which is tied or clipped to the extinguisher, on a pressure-sensitive label affixed to the extinguisher, or on a space provided on the permanent name-plate. They should not be metal-stamped on the shell. This record should be capable of remaining legible for at least one year.

 

            All of the fire extinguishers here involved were the stored-pressure type, with pressure gauges (Tr. 89). These are specifically exempt from the maintenance requirements by paragraph 1320 of NFPA No. 10A 1970, which contains a note:

Note: Stored-pressure extinguishers equipped with pressure indicators or gauges are not required to be maintained at annual intervals in accordance with the provisions of paragraphs 1320 and 3110.

 

See Secretary v. Robert E. McKee, Inc., Docket No. 12130, 19 OSAHRC 550, 556 (1975), (1974 1975) CCH OSHD ¶ 19,807 (Kennedy, J.)

            While the quoted note pertains to paragraphs of the NFPA standards not mentioned in the citation, they are the ones requiring annual maintenance of fire extinguishers, whereas ¶ 3510 is concerned with records of maintenance checks. Obviously, if a stored-pressure, gauge-equipped extinguisher is exempt from the annual maintenance check, the record requirement is likewise inapplicable.

            Respondent points out that all of the incorporated NFPA standard is couched in non-mandatory language. Does the mandatory ‘shall’ in § 1926.150(c)(1)(viii) convert the non-mandatory NFPA language to the mandatory? I think not. But it really is unnecessary to rule on this point in this case. As already decided, the extinguishers here involved were exempted from the provisions of ¶ 3510. Paragraph 2231, pertaining to temper seals, does not even contain the precatory ‘should.’ It says, ‘Tampering or extinguisher operation is usually indicated by broken seals or tamper indicators.’ (Emphasis supplied.) Thus there is no requirement in this paragraph that tamper seals be provided.

            The citation should be vacated.

            13. The 29 CFR 1926.350(a)(1) citation.

            Citation 8 alleges repeated violation of 29 CFR 1926.350(a)(1), for which a penalty of $100 is proposed, as follows:

Valve protection caps were not in place on the following compressed gas cylinders when they were not in use or connected for use:

a. Argon cylinder on south side of boiler on 187 level;

 

b. Argon cylinder on west side of boiler on 157 level;

 

c. Two oxygen cylinders, located in the center, on the first floor of the precipitator;

 

d. One oxygen cylinder in southwest corner on first floor of the precipitator.

 

The cited standard provides:

 

§ 350(a) Transporting, moving, and storing compressed gas cylinders

 

(1) Valve protection caps shall be in place and secured.

 

            Compliance Officer Prows’ testimony (Tr. 85 92) and photographs (Exhibits C 24, C 25, C 52, C 53) paralleled the citation. Respondent’s defense is that the cylinders were not being transported, moved, or stored, but were in intermittent use.[26] A similar argument was made under item 20(a) of citation 1, involving § 1926.350(j). Since the cylinders obviously were not being transported or moved, the question is narrowed to whether they were stored.

            The first definition of the verb ‘store’ in Webster’s New World Dictionary, 2d College Ed. (1972), is ‘to put aside, or accumulate, for use when needed.’ This seems to fit the present situation. However, the third definition is ‘to put in a warehouse, etc., for safekeeping,’ which is more in line with respondent’s argument.

            Consistency might dictate the same result as in the § 1926.350(j) citation. However, the latter was decided on a practical basis, that is, in view of the frequent use of the cylinders it was not practical to require the oxygen and acetylene cylinders to be separated 20 feet or by noncombustible barriers between uses.

            However, there appears to be no practical reason for not replacing the valve protection caps when the cylinders are disconnected and not in actual use, and this is consistent with the obvious purpose of the regulation.

            On March 29, 1972, respondent’s affiliate was issued a citation for 20 violations of § 1926.350(a)(1), and the citation was not contested (C 63; Tr. 92). Therefore, this is a repeated violation. The gravity is low, but a consideration of the other statutory criteria, previously discussed, leads to the conclusion that the proposed penalty of $100 is reasonable.

            14. The 29 CFR 1926.350(f)(7) citation.

            Citation 10 alleges repeated violations of 29 CFR 1926.350(f)(7), for which a penalty of $100 is proposed, as follows:

Welding hoses and cables were not kept clear of passageways, ladders and stairs in the following locations:

a. Welding cable and hoses on the catwalk leading to the bottom of the fly ash hopper;

 

b. Welding cables in passageway, on south side of boiler on 219 level;

 

c. Welding cable and hose in passageway and at bottom of stairway on south side of boiler at 165 level;

 

d. Welding cables and hoses in passageway on south side and west side of boiler on 211 level;

 

e. Hoses in passageway, south side of boiler on 177 level.

 

The cited standard provides:

Hoses, cables, and other equipment shall be kept clear of passageways, ladders, and stairs.

 

            The testimony of Compliance Officer Prows supports the citation (Tr. 93 97; Exhibits C 54 through 60). The defense is that respondent’s construction site consists basically of catwalks, stairs and other open steel and that there is no practical alternative to locating welding hoses and cables in passageways, ladders, and stairs, and Safety Supervisor Dalke testified to this effect (Tr. 261, 262). From the photographs, however, it is apparent that in most, if not all, instances the hoses and cables could have been kept off the floors by various means. Instead, they frequently were strung around on the floors like spaghetti. This presented a tripping hazard to which many employees were exposed.

            Respondent’s affiliate was cited on March 29, 1972, on this same location for violating this same standard, and did not contest the citation (Exhibit C 63; Tr. 92). As previously discussed, this is a repeated violation. The gravity is low. Under the statutory criteria, the proposed penalty of $100 is appropriate.

            15. The 29 CFR 1926.500(b)(1) citation.

            Citation 12 alleges a repeated violation of 29 CFR 1926.500(b)(1), for which a penalty of $125 is proposed, as follows:

The floor hole in the platform around the turbine on the turbine floor of the generator building was not provided with a cover or standard railing.

 

The cited standard provides:

Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

 

            The citation speaks of a ‘floor hole,’ while the cited standard is for ‘[f]loor openings.’ Compliance Officer Prows gave the measurements as 2 x 3 “‘, which makes it a ‘floor hole’ under the definition in § 1926.502(a), supra, p. 21. Thus this item should have been cited under § 1926.500(b)(8).

            As noted at p. 23, the Commission held in Secretary v. Buhls Laundry & Dry Cleaning, Inc., 5 OSAHRC 1 (1973) that persons could not accidentally walk into a 3‘ x 7‘ hole, and the same should be true of the 3‘ wide hole here involved, though it was 2 long. Thus § 1926.500(b)(8) was not violated.

            The citation will be vacated.

CONCLUSIONS OF LAW

            1. The respondent, Stearns-Roger, Inc., is an employer engaged in a business affecting commerce who has employees. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

            2. Between the dates of March 22 and March 26, 1976, inclusive, the respondent was in nonserious violation of the following standards:

Citation Item

Standard

1 3

29 CFR 1926.102(a)(1)

 

1 5B

29 CFR 1926.152(f)(1)

 

1 10[27]

29 CFR 1926.153(j)

 

1 15A11

29 CFR 1926.303(b)

 

1 16A11

29 CFR 1926.303(c)(3)

 

1 17

29 CFR 1926.304(f)

 

1 20b

29 CFR 1926.350(j)

 

1 26c

29 CFR 1926.402(a)(11)

 

1 31

29 CFR 1926.500(b)(8)

 

1 32

29 CFR 1926.550(a)(2)

 

9 1

29 CFR 1926.350(a)(9)

 

11 1

29 CFR 1926.451(a)(4)

 

13 1b, 1c

29 CFR 1926.500(d)(1)

 

 

            3. On said dates the respondent was in serious violation of the following standards:

Citation Item

Standard

2 1

29 CFR 1926.28(a)

 

311 1

29 CFR 1926.451(d)(10)

 

411 1

29 CFR 1926.500(d)(2)

 

511 1

29 CFR 1926.500(f)(1)(vi)(b)

 

13 1

29 CFR 1926.500(d)(1)

 

 

            4. On said dates the respondent was in repeated violation of the following standards:

Citation Item

Standard

6 1b

29 CFR 1926.25(a)

 

8 1

29 CFR 1926.350(a)(1)

 

10 1

29 CFR 1926.350(f)(7)

 

 

            5. On said dates the respondent was not in violation of the following standards:

Citation Item

Standard

1 1

29 CFR 1926.25(b)

 

1 2

29 CFR 1926.51(a)(5)

 

1 4A

29 CFR 1926.150(a)(1)

 

1 4B

29 CFR 1926.150(a)(2)

 

1 4C

29 CFR 1926.150(a)(4)

 

1 5A

29 CFR 1926.152(a)(1)

 

1 7

29 CFR 1926.152(g)(4)

 

1 9

29 CFR 1926.153(h)(11)

 

1 12

29 CFR 1926.250(a)(3)

 

1 13

29 CFR 1926.300(b)(1)

 

1 14

29 CFR 1926.301(d)

 

1 18

29 CFR 1926.350(f)(6)

 

1 20a

29 CFR 1926.350(i)

 

1 21

29 CFR 1926.352(g)

 

1 22b

29 CFR 1926.400(a)

 

1 23

29 CFR 1926.401(a)(1)

 

1 24

29 CFR 1926.401(c)

 

1 25A

29 CFR 1926.401(j)(1)

 

1 27

29 CFR 1926.402(a)(10)

 

1 28a

29 CFR 1926.402(a)(12)

 

1 33

29 CFR 1926.550(a)(12)

 

6 1a, 1c

29 CFR 1926.25(a)

 

7 1

29 CFR 1926.150(c)(1)(viii)

 

12 1

29 CFR 1926.500(b)(1)

 

 

ORDER

            On the basis of the findings of fact contained in the foregoing Discussion and Opinion and the foregoing Conclusions of Law, it is ORDERED that:

            1. The following citations for non-serious violations be and they hereby are affirmed and that the penalties shown be and they hereby are assessed:

Citation Item

Standard

Penalty

1 3

29 CFR 1926.102(a)(1)

$ 0

 

1 5B

29 CFR 1926.152(f)(1)

 

25

1 10

29 CFR 1926.153(j)

25

 

1 15a

29 CFR 1926.303(b)

0

 

1 16

29 CFR 1926.303(c)(3)

85

 

1 17

29 CFR 1926.304(f)

25

 

1 20b

29 CFR 1926.350(j)

0

 

1 26c

29 CFR 1926.402(a)(11)

25

 

1 31

29 CFR 1926.500(b)(8)

200

 

1 32

29 CFR 1926.550(a)(2)

25

 

9 1

29 CFR 1926.350(a)(9)

0

 

11 1

29 CFR 1926.451(a)(4)

0

 

13 1b, 1c

29 CFR 1926.500(d)(1)

 

0

 

2. The following citations for serious violations be and they hereby are affirmed and that the penalties shown be and they hereby are assessed:

Citation Item

Standard

Penalty

2 1

29 CFR 1926.28(a)

$1000

 

3 1

29 CFR 1926.451(d)(10)

500

 

4 1

29 CFR 1926.500(d)(2)

500

 

5 1

29 CFR 1926.500(f)(1)(vi)(b)

500

 

13 1

29 CFR 1926.500(d)(1)

750

 

            3. The following citations for repeated violations be and they hereby are affirmed, and that the penalties shown be and they hereby are assessed:

 

Citation Item

Standard

Penalty

6 1b

29 CFR 1926.25(a)

$85

 

8 1

29 CFR 1926.350(a)(1)

100

 

10

29 CFR 1926.350(f)(7)

 

100

 

            4. The following citations be and they hereby are vacated:

Citation Item

Standard

1 1

29 CFR 1926.25(b)

 

1 2

29 CFR 1926.51(a)(5)

 

1 4A

29 CFR 1926.150(a)(1)

 

1 4B

29 CFR 1926.150(a)(2)

 

1 4C

29 CFR 1926.150(a)(4)

 

1 5A

29 CFR 1926.152(a)(1)

 

1 7

29 CFR 1926.152(g)(4)

 

1 9

29 CFR 1926.153(h)(1)

 

1 12

29 CFR 1926.500(b)(1)

 

1 13

29 CFR 1926.300(b)(1)

 

1 14

29 CFR 1926.301(d)

 

1 18

29 CFR 1926.350(f)(6)

 

1 20a

29 CFR 1926.350(j)

 

1 21

29 CFR 1926.352(g)

 

1 22b

29 CFR 1926.400(a)

 

1 23

29 CFR 1926.401(a)(1)

 

1 24

29 CFR 1926.401(c)

 

1 25A

29 CFR 1926.401(j)(1)

 

1 27

29 CFR 1926.402(a)(10)

 

1 28a

29 CFR 1926.402(a)(12)

 

1 33

29 CFR 1926.550(a)(12)

 

6 1a, 1c

29 CFR 1926.25(a)

 

7 1

29 CFR 1926.150(c)(1)(viii)

 

12 1

29 CFR 1926.500(b)(1)

 

 

            5. Respondent’s requested findings of fact and conclusions of law, to the extent that they are inconsistent with this decision, be and they hereby are denied.

            6. This proceeding be and it hereby is terminated.

 

DEE C. BLYTHE,

Administrative Law Judge

Date: January 6, 1977



[1] 29 U.S.C. § 661(i).

[2] Commissioner Barnako granted respondent’s petition for review, and former Commissioner Moran issued a general direction for review. As neither party has taken exception to the judge’s disposition of any items except those listed in respondent’s petition for review, and in the absence of a compelling public interest in our review of any other aspect of the judge’s decision, we will review only those items encompassed within respondent’s petition for review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD ¶ 20,780 (No 4136, 1976); Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1976–77 CCH OSHD ¶ 20,428 (No. 9507, 1976).

[3] 29 C.F.R. § 1926.102(a)(1) provides:

Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.

[4] The absence of injuries is not controlling in determining whether a potential for injury exists. A hazard requiring abatement may exist in the absence of recorded injuries. The Act is designed to prevent the first injury. Arkansas-Best Freight, Inc. v. OSHRC, 529 F.2d 649, 654 (8th Cir. 1978).

[5] 29 C.F.R. 1926.102(a)(2) provides:

Eye and face protection equipment required by this Part shall meet the requirements specified in American National Standards Institute, Z87.1–1968, Practice for Occupational and Educational Eye and Face Protection.

[6] 29 C.F.R. 1926.102(a)(3) provides:

Employees whose vision requires the use of corrective lenses in spectacles, when required by this regulation to wear eye protection, shall be protected by goggles or spectacles of one of the following types:

(i) Spectacles whose protective lenses provide optical correction;

(ii) Goggles that can be worn over corrective spectacles without disturbing the adjustment of the spectacles;

(iii) Goggles that incorporate corrective lenses mounted behind the protective lenses.

[7] 29 C.F.R. § 1926.500(b)(8) provides:

Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.

‘Floor hole’ is defined at 29 C.F.R. § 1926.502(a) as:

An opening measuring less than 12 inches but more than 1 inch it its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a belt hold, pipe opening, or slot opening.

[8] We note that this conclusion by the judge is not challenged by respondent on review and is consistent with our recent decision in Bechtel Power Company, 79 OSAHRC $03R, 7 BNA OSHC 1361, 1979 CCH OSHD ¶___ (No. 13832, 1979).

[9] 29 C.F.R. § 1926.350(a)(1) provides:

(a) Transporting, moving, and storing compressed gas cylinders.

(1) Valve protection caps shall be in place and secured.

[10] This standard provides:

(c) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a non-combustible barrier at least 5 feet high having a fire resistance rating of at least one-half hour.

[11] 29 C.F.R. § 1926.350(f)(7) provides:

Hoses, cables, and other equipment shall be kept clear of passageways, ladders and stairs.

[12] 29 C.F.R. § 1926.25(a) provides:

During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

[13] Respondent also disputed the repeated characterization of the alleged violation of 29 C.F.R. § 1926.350(a)(1). Since we vacate that item, however, the repeated issue need not be addressed.

[14] The National Constructors Association also submitted an amicus curiae brief on the issue.

[15] This case was tried and decided prior to our decision in Potlatch. Usually the Commission has allowed parties an opportunity to present additional evidence relevant to a newly-established defense or legal theory where there has been a significant change or development in the law during the period between the hearing and our decision on review of the case. See Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶20, 908 (No. 11259, 1976). However, in view of what we have said above, we need not offer respondent an opportunity for a remand. Cf. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1973 CCH OSHD ¶ 23,440 (No. 76–1480, 1979).

[16] Respondent also argues generally that the violations cannot be found repeated in nature in view of the lapse of several years between the previous and present violations (approximately three years with respect to the § 1926.25(a) violation and four years with respect to the § 1926.350(f)(7) violation) and because intervening inspections did not result in citations for violation of either § 1926.25(a) or § 1926.350(f)(7). In Respondent’s view, it could not reasonably have anticipated that violations would recur several years later, and it contends that the absence of citations following the intervening inspections demonstrates the effectiveness of its safety program.

Although it may be appropriate to establish a per se rule that a repeated violation cannot be found because of the lapse of years between the previous and present violations, I would not do so at this time, preferring instead that the Secretary consider this issue and formulate a policy with respect to a time period after which it would not be appropriate to issue repeated citations. Accordingly in this case, absent evidence that the employer took steps after occurrence of a violation to prevent the recurrence of substantially similar violations, I would conclude that the violations are repeated in nature. However, the period of time between violations may be a relevant consideration in judging the adequacy of any measures implemented by the employer to prevent the recurrence of similar violations. Potlatch, supra, 79 OSAHRC 6/A2, p. 29, 7 BNA OSHC at 1068, 1979 CCH OSHD ¶23,294 at 28,177.

Similarly, since there may be any number of reasons for the Secretary’s failure to issue citations after an inspection, I would not presume simply from the absence of citations following the intervening inspections that Respondent had in fact taken steps to prevent the recurrence of the prior violations. Rather, if there were in fact evidence that Respondent had adopted such measures, in considering the adequacy of those measures I would take into account the fact that the Secretary did not allege substantially similar violations as a result of intervening inspections.

[17] By stipulation, the Secretary moved to withdraw items 2, 4B, 4C, 5A, 7, 9, 13, 14, 21, 22b, 23, 24, 25a, 27, 28a, and 33 of citation 1, and respondent moved to withdraw its notice of contest to items 5B, 10, 15A, 17, 26C, and 32 of citation 1 and to citations 3, 4, 5, 9, 11, and 13, as amended (only the penalties proposed for citations 3, 4, and 5 having been contested). This stipulation is approved, and the motions are granted.

[18] No penalty was proposed for these items.

[19] This is a typographical error; the ANSI standard involved is Z87.1.

[20] It should be noted that, although respondent pleaded the affirmative defense of ‘isolated occurrence’ to this item, it does not argue it on brief.

[21] Not 24, as stated in the citation, a typographical error; Tr. 28.

[22] ‘Floor hole’—An opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a belt hold, pipe opening, or slot opening.

[23] ‘Floor opening’—An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

[24] Cox v. Burgess, 139 Ky. 699, 96 S.W. 577, 579, quoting from Table Talk, tit. Equity:

Equity is according to the conscience of him that is chancellor; and, as that is larger or narrower, so is equity. ‘Tis all one as if they should make his foot the standard for the measure we call a chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. ‘Tis the same thing as the chancellor’s conscience.

[25] Made applicable here by Rule 2(b) of the Commission’s Rules of Procedure.

[26] Safety Supervisor Dalke testified (Tr. 260) that they were positioned as they were for use by crafts in cutting and welding operations and were not hooked up to regulators.

[27] Penalty only contested.