UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

___________________________________
SECRETARY OF LABOR,               :
     Complainant,                 :
                                  :
                                  :     OSHRC DOCKET NOS.	98-0848
           v.                     :                              98-0849
                                  :
NORTH ATLANTIC FISH COMPANY, INC. :
      Respondent.                 :
__________________________________:

Appearances:		Kevin E. Sullivan, Esquire
                        U.S. Department of Labor
                        Office of the Solicitor
                        Boston, Massachusetts
                              For Complainant

                        Barrett A. Metzler, CSP
                        Columbia, Connecticut
                              For Respondent

BEFORE: MICHAEL H. SCHOENFELD

Administrative Law Judge





*DECISION AND ORDER*



*/Background and Procedural History/*

This case arises under the Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-678 (1970) ("the Act"). From November 7, 1997 to March
18, 1998, the Occupational Safety and Health Administration ("OSHA")
conducted both a health and a safety inspection of Respondent's work
site in Gloucester, Massachusetts. As a result of the inspections, OSHA
issued health and safety citations to Respondent on May 6, 1998,
alleging willful, repeat, serious and other-than-serious violations
appearing in Title 29 of the Code of Federal Regulations ("C.F.R.").
Respondent timely contested the citations. Following the filing of
complaints and answers, and pursuant to notices of hearing, the cases
were heard separately in Gloucester and Boston, Massachusetts. No
affected employees asserted party status. Both parties have filed
post-hearing briefs.

*/Jurisdiction/*//

The Secretary alleges, and Respondent admits, that it is an employer
engaged in fish processing. It is undisputed that at the time of the
inspection, Respondent was engaged in fish processing. Respondent
further admits that it is engaged in receiving, handling and otherwise
working on and with goods and materials that are moving or have moved
across state lines in interstate commerce. I find that Respondent was
engaged in a business affecting interstate commerce.

Based on the above finding, I conclude that Respondent is an employer
within the meaning of section 3(5) of the Act. Accordingly, the
Occupational Safety and Health Review Commission ("the Commission") has
jurisdiction over the parties and the subject matter.

*/Safety Citation 1-Alleged General Duty Clause Violations (No. 98-0849)/*//

Safety Citation 1, Items 1, 2 and 3 allege serious violations of the
general duty clause, section 5(a)(1), which requires employers to
furnish its employees a workplace free from recognized hazards that are
causing or likely to cause death or serious physical harm. To prove a
violation of section 5(a)(1), the Secretary must establish that (1) a
condition or activity in the employer's workplace presented a hazard to
employees, (2) the cited employer or the employer's industry recognized
the hazard, (3) the hazard was causing or likely to cause death or
serious physical harm, and (4) feasible means existed to eliminate or
materially reduce the hazard. /Nat'l Realty & Constr. Co./, 489 F.2d
1257, 1265-67 (D.C. Cir. 1973);/Connecticut Light & Power Co./, 13 BNA
OSHC 2214, 2217 (No. 85-1118, 1989).

In Item 1, the Secretary alleges that Respondent's employees were
exposed to a fire and explosion hazard resulting from the operation of
forklifts and mechanical handling equipment near unprotected natural gas
lines and meters. The Compliance Officer ("CO") personally observed
employees running into gas meters while operating lift trucks. (Tr.
159-61.) A former employee also testified that employees, including
himself, hit or bumped into the gas meters regularly when operating the
lift trucks. (Tr. 199.) The photographs in evidence clearly show dents,
holes and scrapes on the gas meters caused by the operation powered
industrial vehicles, including lift trucks. (CX-2-6.) To argue that this
condition was not a recognized hazard is indefensible. Further,
Respondent could easily have eliminated or materially reduced the hazard
by installing guardrails such as the ones installed around the
compressor system for the freezer. (Tr. 162-63.) Since the predictable
injuries are severe burns or death, I find this violation to be serious.
(Tr. 545-46.) Item 1 is affirmed, and I find the proposed penalty of
$4,900.00 to be appropriate.

In Item 2, the Secretary alleges that Respondent's employees were
exposed to amputation and severe lacerations from saws automatically
restarting upon restoration of power after a power interruption. Some of
these cited machines were originally equipped with magnetic motor starts
to prevent the machines from restarting after restoration of power. (Tr.
184-86.) Respondent asserts that it deactivated and removed the magnetic
motor starts on some machines, and replaced them with manual starts,
because the deterioration from cleaning the machines caused them to
start on their own. (Tr. 229-30, 440-42, 589-90.) Contrary to
Respondent's argument that this was not a recognized hazard, replacing
the magnetic motor starts clearly demonstrates that Respondent
recognized the hazard of cutting machines and saws restarting
automatically upon restoration of power. (Tr. 186, 590.) The
installation of the manual starts, however, did not furnish employees
with a workplace free of recognized hazards. The machines continued to
restart automatically after a power interruption, as the CO noted during
the inspection. (Tr. 228-29.) This condition, especially with saws and
cutting machines, could have caused severe bodily injuries, including
amputation and lacerations. (Tr. 548.) Further, feasible means existed
to reduce the hazard.^(1) <#N_1_> The CO contacted several companies
that supplied magnetic motor starts and found that they were readily
available. (Tr. 230.) The maintenance man and the plant manager both
admitted to the CO that they did not replace the magnetic motor starts
because they were too expensive. (Tr. 229-30, 440.) Based upon the
foregoing, Item 2 of Citation 1 is affirmed, and the proposed penalty of
$3,500.00 is appropriate.^(2) <#N_2_>

In Item 3, the Secretary alleges that Respondent's employees were
exposed to a fall hazard while working from a platform raised greater
than 6 feet by a forklift. The Secretary's evidence as to Item 3a, which
Respondent did not rebut, shows that the plant manager exposed an
employee to a fall hazard by lifting him at least 6 feet above the
ground in a "trash box" without fall protection. (Tr. 233-36, 240;
CX-10.) Even after the CO told him the activity was unsafe, the manager
continued to lower the employee with the forklift instead of using an
extension ladder as the CO requested. (Tr. 235-36, 240.) As to Item 3b,
Respondent argues the individuals described therein were not its own
employees but subcontractors. Regardless, it is clear from the record
that it was common practice for Respondent to lift personnel on the
forklift without fall protection, a conclusion supported by the
manager's admission to the CO that he was aware of the activity and that
it was common. (Tr. 243.) It is undisputed that this fall hazard was
recognized and that feasible means existed to eliminate or materially
reduce the hazard. (Tr. 237-39; CX-12.) Further, the severity of
predictable injuries, such as broken bones or death, supports the
serious classification of this violation. (Tr. 236.) Item 3 is affirmed
as a serious violation and the proposed penalty of $3,500.00 is
appropriate.^(3) <#N_3_>

*/Safety Citation 1-Alleged Serious Violations of Specific Standards
(No. 98-0849)/*//^(4) <#N_4_>

Items 4 through 23 of Safety Citation 1 allege serious violations of
specific standards. In general, to prove a violation of a standard, the
Secretary must demonstrate by a preponderance of the evidence (1) that
the cited standard applies, (2) noncompliance with the terms of the
standard, (3) employee exposure or access to the hazard created by the
noncompliance, and (4) that the employer knew, or with the exercise of
reasonable diligence could have known, of the condition. /Astra
Pharmaceutical Prod./, 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981);
/Dun-Par Eng'd Form Co./, 12 BNA OSHC 1949 (No. 79-2553, 1986), /rev'd &
remanded on other grounds/, 843 F.2d 1135 (8th Cir. 1988), /decision on
remand/, 13 BNA OSHC 2147 (No. 79-2553, 1989).



Citation 1, Item 4a alleges a serious violation of 29 C.F.R. §
1910.36(b)(7) for failing to provide fire alarm facilities that would
give adequate warning of fire to employees in the building. Respondent
first admitted to the CO that it did not have the kind of alarm system
that would warn everyone in the facility of a fire, but then claimed
that the Public Address System ("PAS") could be used for such purposes.
(Tr. 188, 244-45.) Respondent's PAS fails to satisfy the requirements of
this standard because the testimony of the CO and a former employee
establishes it would not adequately warn all employees of a fire
emergency. (Tr. 203, 218, 244-45, 452-54.) I also reject Respondent's
argument that the facility's audible fire alarm (bell and pull box)
satisfies the requirements of the standard because the alarm was not
designed to alert people in all parts of the facility of a fire, but
rather to feed CO2 to the oven in case of an oven fire. (Tr. 591, 595.)
There is no dispute that Respondent's employees were exposed to the
hazard on a daily basis. In addition, I find that with the exercise of
reasonable diligence, Respondent could have known of the condition,
especially since on at least one occasion, employees panicked trying to
evacuate the plant when smoke and fumes filled the room. (Tr. 206,
244-45.) This hazardous condition could have led to serious injuries or
death if employees were trapped in the building because they were not
alerted to fire in the facility.

Items 4b, 4c and 4d allege serious violations of 29 C.F.R. §§
1910.37(q)(1), 1910.37(q)(2) and 1910.37(q)(5), respectively, for
failing to provide appropriate signs designating exits, non-exits and
directions to exits. The CO testified that during his inspection exits
and non-exits were not clearly marked such that he himself did not know
which doors led to exits and which did not. (Tr. 248-52; CX-16-18.)
Respondent's explanation that no employees ever complained about the
exits, and that all employees entered and exited through the front door,
is no excuse for failing to comply with the cited standards. All of
Respondent's employees were exposed to the hazard on a daily basis, and
Respondent could have known of the hazard with the exercise of
reasonable diligence. In light of the record, the Secretary has
established the alleged violations and that the violations were serious,
especially when considered in conjunction with Respondent's failure to
provide adequate fire alarm facilities. In such circumstances,
employees, especially new and panicked employees, might not have been
able to safely exit the facility in the event of an emergency. Based on
the record, Items 4a through 4d are affirmed as serious violations, and
the proposed penalty of $1,750.00 is appropriate.

In Citation 1, Item 5, the Secretary alleges that Respondent violated 29
C.F.R. § 1910.132(a) by failing to provide a barrier to prevent
employees from contact with hot surfaces on the Burns Fry-O-Matic.
Although the Fry-O-Matic had a cover, the cover clearly did not prevent
employees from contact with the hot surfaces, and Respondent's own
maintenance man estimated the heat from the machine to be between 350
and 400 degrees. (Tr. 256.) Since the machine was located in a narrow
space, any employee with access to the area was exposed to the hazard.
(Tr. 252-54, 257; CX-19-20.) The machine was in plain view and was
regularly operated such that Respondent should have discovered the
condition. As severe burns could have resulted from contacting the
Fry-O-Matic, Item 5 is affirmed as a serious violation. The proposed
penalty of $1,400.00 is appropriate.

Items 6a and 6b of Citation 1 allege serious violations of 29 C.F.R. §§
1910.38(a)(1) and 1910.38(b)(1) for failing to have a written emergency
action plan and a fire prevention plan. Clearly, Respondent did not have
either plan, particularly in view of the plant manager's testimony at
the hearing in this regard. (Tr. 189, 258.) That testimony was as follows:

Q: Okay. Now who is the one that is - who are the people that are in
charge of the evacuation. Is there anyone designated in the event of
fire to alert people?

A: No, there's no reason.

Q: So if there's a fire it's every man for himself.

A: If there's a fire and someone sees the fire -

Q: Then what do they do?

A: We're not saying that hey you have to do this. Nobody has to do anything.

Q: At all?

A: Right.

Q: Okay. Are the people directed when there is a fire to exit immediately?

A: Yes. They know to get out. (Tr. 189.)

In addition to the above, the company president had no knowledge of any
emergency action plan or fire prevention plan, and a former employee
testified that Respondent had no such plans. (Tr. 203, 258.) It is
undisputed that employees were exposed to the hazard of fire, and it is
clear that Respondent could have known of the violative conditions.
Items 6a and 6b are accordingly affirmed.

Items 6c and 6d allege violations of 29 C.F.R. §§ 1910.157(c)(1) and
1910.157(g)(4) for failure to mount and properly locate fire
extinguishers and for failure to provide training in the use of fire
fighting equipment to individuals expected to use the equipment. The
CO's testimony that fire extinguishers were blocked and not properly
mounted or readily accessible is supported by the exhibits in evidence.
(Tr. 258-61, 463-66; CX-22-25.) Respondent argues that no employee was
designated to use fire fighting equipment during a fire emergency. I
find that the evidence points to the contrary. The CO was told that the
maintenance man and his assistant, as well as the plant manager and one
other employee, were the designated individuals. (Tr. 466-67.)
Furthermore, these employees were not instructed on how to use fire
extinguishers, but only knew that they were supposed to "just squirt the
fire extinguisher there's nothing to it...just pull the pin and shoot...
basically just squirt the fire with it." (Tr. 261-62.) Respondent's
plant manager also admitted to the CO that no formal training was
provided in the use of fire extinguishers. /Id./ Respondent does not
dispute employee exposure to the cited hazard, and I find Respondent had
knowledge of the hazard- the extinguishers were in plain sight, and the
plant manager admitted to the lack of training. Based on the record,
Items 6c and 6d are affirmed. I agree with the Secretary's
classification of Item 6 as serious, and I find the total proposed
penalty of $3,500.00 appropriate.

Item 7 of Citation 1 alleges serious violations of 29 C.F.R. §
1910.101(b), which requires compressed gas cylinders to be securely
stored in accordance with the Compressed Gas Association Pamphlet
P-1-1965. The Secretary has presented sufficient evidence to establish
that Respondent failed to protect and secure compressed gas cylinders by
storing them near aisles and overhead doors. (CX-32-34, CX-36.) The CO's
testimony that these cylinders were located in areas where forklifts and
other vehicles regularly operated further supports a finding of a
violation. (Tr. 262-64.) Contrary to Respondent's argument, the
cylinders could easily be knocked down, especially considering the lack
of trained employees operating powered industrial vehicles.^(5) <#N_5_>
There is no dispute that employees were exposed to the cited hazard.
Respondent should have known of the hazardous condition because the
cylinders were stored in plain view. The violation was properly
classified as serious because serious bodily injuries were possible as a
result of an accident. (Tr. 263-64.) Item 7 is therefore affirmed as a
serious violation, and I find the proposed penalty of $3,500.00 to be
appropriate.

Item 8 alleges a serious violation of 29 C.F.R. § 1910.106(d)(3)(ii),
which requires the proper storage of flammable and combustible liquids
in storage cabinets. I find that the Secretary has shown by a
preponderance of the evidence that Respondent improperly stored
flammable and combustible liquids in storage cabinets where joints and
seams were not tight and securely closed as required by the standard.
(Tr. 252, 267-69, 272, 473-78; CX-39-41, CX-44-45.) It is undisputed
that employees were exposed to the hazardous condition, and Respondent
could have known of the condition in the exercise of reasonable
diligence. I also agree with the serious classification of the
violation. (Tr. 550.) Item 8 is affirmed as a serious violation, and the
proposed penalty of $1,750.00 is appropriate.

In Item 9, the Secretary alleges that Respondent violated 29 C.F.R. §
1910.146(c)(1), which requires employers to evaluate the workplace for
permit-required confined spaces. Respondent argues that employees were
not assigned to perform work in the wastewater and cooking oil tanks.
Respondent's plant manager also testified that they had evaluated the
tanks and determined that no one would enter the tanks. (Tr. 593.) The
Secretary has failed to rebut this evidence and establish that employees
were exposed to the cited violation.^(6) <#N_6_> This item is therefore
vacated.

Item 10 of Citation 1 alleges a violation of 29 C.F.R. § 1910.176(b),
which requires the stable and secure storage of materials. The evidence
of record shows that stacked boxes at the facility were not secure and
stable as required. (Tr. 278-80; CX-50-52.) The evidence also shows that
the racks used to store boxes were damaged and unstable. (Tr. 280,
483-84; CX-47-48.) There is no dispute that employees were exposed to
the hazardous condition, and Respondent should have known of the
condition because it was in plain view.^(7) <#N_7_> Based on the
evidence of record, I find that the Secretary has satisfied her burden
of proving the alleged serious violation. Item 10 of Citation 1 is
accordingly affirmed, and I find the proposed penalty of $1,400.00 to be
appropriate.

In Item 11 of Citation 1, the Secretary alleges serious violations of 29
C.F.R. §§ 1910.178(l) and 1910.178(m)(5)(i). In regard to Item 11a, the
evidence of record shows Respondent permitted untrained employees to
operate powered industrial trucks in an unsafe manner. (Tr. 241-42,
281-83.) A former employee confirmed that he had operated lift trucks
without any training, and Respondent presented no documentation on
training to rebut the evidence demonstrating the alleged violation. (Tr.
205, 241-42.) In regard to Item 11b, the evidence supports the
Secretary's allegation that powered industrial trucks were left
unattended without lowering the forks as required. (Tr. 281; CX-52-53.)
There is no dispute that employees were exposed to the hazardous
conditions. I also find that Respondent could have discovered the
conditions with the exercise of reasonable diligence. Furthermore, I
agree with the Secretary's classification. (Tr. 551.) Items 11a and 11b
are affirmed as serious violations, and the total proposed penalty of
$3,500.00 is appropriate for these violations.

In Item 12, the Secretary alleges a serious violation of 29 C.F.R. §
1910.212(a)(3)(ii), which requires the point of operation of machines to
be guarded. Based on the CO's testimony and photographs in evidence, I
find that there was no guard in place to protect an operator's hands or
fingers from the point of operation of the industrial grade electric
stapler. (Tr. 284-86; CX-54-57.) I also agree with the CO that the foot
pedal used to activate the stapler exacerbated the hazard. (Tr. 285.) It
is undisputed that employees were exposed to the hazardous condition,
and Respondent should have known of the condition. The Secretary's
classification of the violation is proper. (Tr. 284.) I affirm Item 12
as a serious violation, and I find the proposed penalty of $1,400.00
appropriate.

Items 13a through 13c allege serious violations of 29 C.F.R. §§
1910.213(b)(3), 1910.213(c)(1) and 1910.213(c)(2), respectively. Item
13a alleges that Respondent failed to make provisions to prevent the
Chicago Electric table saw from automatically restarting upon
restoration of power. Respondent has failed to rebut the evidence of
record that this table saw was not equipped with a magnetic motor start
or any other means to prevent it from restarting upon restoration of
power. (Tr. 286-87.) There is no dispute that employees were exposed to
the hazard, and Respondent's plant manager had knowledge of the hazard.
(Tr. 590.) Item 13a is affirmed as a serious violation.

Item 13b alleges that Respondent failed to equip the Chicago Electric
table saw with an automatically adjusting hood. Respondent argues that
the subject saw is not a circular hand-fed ripsaw and that the cited
standard, which applies specifically to circular hand-fed ripsaws,
therefore does not apply. Respondent cross-examined the CO in this
regard, and, based on the CO's responses, I conclude that the Secretary
has not met her burden of establishing that the cited standard applies
to the subject saw. (Tr. 493-94.) The CO identified the Chicago Electric
table saw as a "multipurpose" saw. (Tr. 493-94; CX-58-59.) This less
than clear description suggests that the subject saw could be used by
Respondent for different purposes-fish cutting or ripping or
crosscutting wood, or all three. (Tr. 287.) When and if used to cut
fish, the woodworking machinery standard, 29 C.F.R. § 1910.213, would
not apply. However, if Respondent used the "multipurpose" saw to cut
wood, it is reasonable to infer that two different standards could apply
depending on which direction the wood piece was being cut. The hand-fed
ripsaws standard, § 1910.213(c), would apply if the wood piece was being
cut "along the grain," whereas the hand-fed crosscut table saws
standard, § 1910.213(d), would apply if the wood piece was being cut
"against the grain." While it is reasonable to infer that the
"multipurpose" blade with which the saw was equipped could have been
used for either type of wood cutting,^(8) <#N_8_> absent evidence as to
how the Respondent used the saw and what guards, if any, were in place
at the time of use, the Secretary has failed to establish the
applicability of the cited standard. Item 13b is accordingly vacated.

Finally, the Secretary alleges in Item 13c that Respondent failed to
equip the Chicago Electric table saw with a spreader to prevent material
from squeezing the saw or being thrown back to the operator. However, as
in Item 13b, the standard cited in Item 13c applies specifically to
circular hand-fed ripsaws. Based on my findings as to Item 13b, the
Secretary has not shown that the subject saw is covered by the cited
standard. Item 13c is therefore vacated. Having affirmed only Item 13a,
and in view of the total proposed penalty for these three instances, I
conclude that a penalty of $600.00 is appropriate for Item 13a.

Item 14 alleges serious violations of 29 C.F.R. § 1910.215(a)(4), which
requires that work rests be used for offhand grinding machines. The
unrebutted evidence supports a finding of a violation. The CO testified
that the work rest on the Sears Bench Grinder had more than a 1/8-inch
gap and that the Weier Grinder did not even have a work rest. (Tr.
289-92; CX-61.) It is undisputed that employees used the grinders and
were exposed to the cited hazard, and Respondent should have discovered
the violative conditions with the exercise of reasonable diligence. I
affirm the violations as serious. (Tr. 552.) I also find the proposed
penalty of $1,400.00 to be appropriate.

In Item 15 of Citation 1, the Secretary alleges that Respondent failed
to enclose sprocket wheels and chains as required by 29 C.F.R. §
1910.219(f)(3). I affirm this violation based on the evidence of record.
(CX-62-64.) Respondent's assertion that the sprocket wheels and chains
were enclosed by the machinery under normal work conditions is not only
insufficient to satisfy the requirements of the standard, but also
contrary to the evidence. The CO observed an employee crawling under the
breading machine to retrieve bags from underneath while the machine was
still operating, and the employee told the CO he did this every day.
(Tr. 294-96, 494-95.) Clearly, employees were exposed to the hazardous
condition, and Respondent could have known of the condition with the
exercise of reasonable diligence. Since the possible injuries range from
severe cuts to amputation, Item 15 is affirmed as a serious violation. I
find the proposed penalty of $1,750.00 appropriate.

In Item 16, the Secretary alleges that Respondent violated 29 C.F.R. §
1910.242(b) by using compressed air for cleaning with a nozzle pressure
of 95 to100 p.s.i. Respondent does not deny that the compressed air used
for cleaning was measured at greater than 30 p.s.i. (Tr. 296.) Rather,
Respondent argues that employees did not use compressed air to "clean
their bodies" and that there was no exposure under normal work
conditions. However, the Commission has stated that "[s]tandards are
intended to protect against injury resulting from an instance of
inattention or bad judgment as well as from risks arising from the
[normal] operation of a machine." /Trinity Indus. Inc./, 15 BNA OSHC
1579, 1593-94 (Nos. 88-1545 and 88-1547, 1992), /rev'd & remanded on
other grounds/, 16 F.3d 1149 (11^th Cir. 1994), /decision on remand/, 17
BNA OSHC 1003 (No. 88-1545, 1994). Therefore, I find that employees were
exposed to the hazardous condition and that Respondent could have known
of the condition in the exercise of reasonable diligence. I affirm this
violation as serious because death or serious physical harm could have
resulted if an accident had occurred. (Tr. 552-53.) However, because the
probability of an accident occurring was relatively low, I find that
$700.00 is an appropriate penalty.

Item 17 alleges that Respondent violated 29 C.F.R. § 1910.252(a)(2)(vii)
for failing to locate combustibles at least 35 feet from the work site.
According to the unrebutted testimony of the CO, the room was not more
than 35 by 20 feet. (Tr. 298.) All other evidence points to the
conclusion that open containers of oil and other combustible materials,
including paint and thinners, were located anywhere from 5 to 15 feet
from welding operations. (Tr. 298-00.) Moreover, Respondent did not
rebut the CO's testimony that the material safety data sheets for the
open containers of oil indicated that the flashpoint for these materials
was over 100 degrees, rendering them combustible. (Tr. 499.) Further,
even if relocating the containers was impracticable, Respondent should
have protected the materials with flameproof covers or otherwise
shielded them as required. It is undisputed that employees were exposed
to the hazardous condition, and Respondent should have known of the
condition. The violation was serious, in that sparks from welding could
have caused the materials to catch fire or explode, which could have
caused serious injuries or death. Therefore, I affirm this item as a
serious violation. The proposed penalty of $1,750.00 is appropriate.

Item 18 of Citation 1 alleges serious violations of 29 C.F.R. §
1910.303(f), which requires each disconnecting means to be legibly
marked to indicate its purpose. I affirm this violation based upon the
CO's testimony that several disconnecting means, including breakers and
switches, did not have labels identifying their purpose. (Tr. 301-02,
500-01.) I find credible the CO's testimony that only longtime employees
knew the identification for each disconnecting means. (Tr. 301.)
Employees regularly worked with and around machines and equipment
without legibly marked disconnects, exposing them to the cited hazard,
and Respondent could have known of the hazard in the exercise of
reasonable diligence. This violation was properly classified as serious.
(Tr. 302, 553.) Consequently, I affirm this violation as serious, and I
find the proposed penalty of $1,050.00 to be appropriate.

Item 19 alleges serious violations of 29 C.F.R. §§ 1910.303(g)(2)(i),
1910.305(b)(1) and 1910.305(b)(2). Respondent withdrew its Notice of
Contest as to Item 19a, which alleges a failure to guard live electrical
wires from accidental contact with cabinets or other enclosures. (R.
Brief, p. 31.) Item 19b alleges that Respondent failed to effectively
close junction boxes that had "knockouts" missing. The evidence of
record clearly shows that openings and fittings were not effectively
closed, whether they were knocked out completely or partially. (Tr.
306-09, 503-04; CX-72-73, CX-79.) I also find that Respondent failed to
provide cover plates on junction boxes, exposing employees to live
wires, as alleged in Item 19c. (Tr. 309-13; CX-74-81.) It is undisputed
employees had access to these hazards, and, because the conditions were
located in open areas, Respondent should have discovered them. This
violation was properly classified as serious. (Tr. 308-09, 313, 553.)
Items 19a, 19b and 19c are therefore affirmed as serious violations. The
proposed penalty of $3,500.00 is appropriate.

Item 20 alleges that Respondent failed to enclose or guard electric
equipment as required by 29 C.F.R. § 1910.303(g)(2)(ii). The evidence of
the record confirms the CO's testimony that numerous conduits were
broken and exposed to physical damage. (Tr. 321-23; CX-80, CX-82-84.)
The CO's tests revealed that these wires were live. (Tr. 322.) I find
that employees were exposed and that Respondent should have known of the
hazardous conditions. Because the conduits were broken and the wires
were live, serious injuries or death from electrical shock were
possible. (Tr. 322.) I affirm this violation as serious, and I find the
proposed penalty of $3,500.00 appropriate.

In Item 21, the Secretary alleges serious violations of 29 C.F.R. §§
1910.304(a)(2) and 1910.304(f)(4). Item 21a alleges that a drill press
used by an employee had reverse designated polarity. Respondent did not
rebut the CO's testimony that he tested the circuit two or three times
in the presence of the maintenance man, with two different testers, and
found that the circuit had reverse polarity. (Tr. 314-16, 326, 505-07.)
Respondent likewise presented nothing to discredit the CO's usage of the
testers or their accuracy. It is undisputed that Respondent's
maintenance man and other employees were exposed to the condition.
Respondent was also aware that its employees continued to use the
equipment after the CO warned them of the hazard at the start of the
investigation in 1997. (Tr. 314-15, 323-27.) Item 21b alleges Respondent
allowed the Chicago Electric saw and the Sears Bench Grinder to be
operated with the grounding pins broken off the plugs. Respondent does
not deny the violations but challenges the proposed penalty. (R. Brief,
p. 34.) However, I agree with the serious classification and the
proposed penalty. (Tr. 291, 315, 554.) The violations are affirmed, and
the proposed penalty of $3,500.00 is appropriate.

Items 22a and 22b alleges serious violations of 29 C.F.R. §§
1910.305(g)(1)(iii) and 1910.305(g)(2)(ii) for improper use of extension
cords. The testimony of a former employee, a current supervisor and the
CO show that Respondent violated 29 C.F.R. § 1910.305(g)(1)(iii) by
using extension cords as a substitute for fixed wiring. (Tr. 202,
222-26, 327-30, 507-09; CX-87-96.) The CO's testimony and other evidence
also demonstrate that Respondent did not use extension cords in
continuous lengths and without splices. (Tr. 331-32; CX-96-98.)
Respondent argues as to this item that the Secretary did not prove the
cited cords were not No. 12 hard service flexible cords. Even if they
were, however, Respondent still violated the standard, as the splices
did not retain the insulation, outer sheath properties and usage
characteristics of the cords being spliced. (CX-97.)

Items 22c and 22d allege improper strain relief and failure to inspect
equipment and flexible cords as required by 29 C.F.R. §§
1910.305(g)(2)(iii) and 1910.334(a)(2)(i), respectively. The CO's
testimony and the other evidence of record support the finding of a
violation as to Item 22c, for Respondent's failure to provide proper
strain relief on various pieces of equipment, including a Black & Decker
Drill Motor and a Milwaukee Sander. (Tr. 332-36, 509-10; CX-99-105.) As
to Item 22d, Respondent admits to the alleged violation of the standard,
which requires the inspection of portable cord-and-plug-connected
equipment and flexible cord sets. It is undisputed that employees were
exposed to the cited hazards. Further, the conditions were easily
detectible and Respondent should have discovered them. The violations
could have caused serious injuries or death, and they are properly
classified as serious. I accordingly affirm Items 22a through 22d as
serious violations, and I find the total proposed penalty of $3,500.00
for these items appropriate.

Item 23 of Citation 1 alleges a violation of 29 C.F.R. §
1910.305(j)(1)(i), which requires lamp holders to have no live parts
normally exposed to employee contact. A former employee's testimony
corroborated the CO's testimony regarding the empty socket next to a
light switch, and the employee observed the CO testing the socket to
confirm that the socket was live. (Tr. 200-01, 337-40.) Based on the
record, it is reasonable to conclude that an employee could have
inadvertently inserted a finger in the socket when trying to turn the
switch on. (CX-105.) It is undisputed that employees were exposed to the
cited hazard, and Respondent could have discovered the condition in the
exercise of reasonable diligence. Since the condition could have caused
serious injuries or death, this violation was properly classified as
serious. Therefore, I affirm the violation as serious, and I find the
proposed penalty of $3,500.00 for this item appropriate.

*/Safety Citation 2-Alleged Willful Violations (No. 98-0849)/*//^(9) <#N_9_>

The Secretary alleges willful violations of 29 C.F.R. §§ 1910.147(c)(1)
and 1910.212(a)(1). To establish that a violation was willful, the
Secretary must demonstrate that the violation was committed voluntarily
with intentional disregard for the requirements of the Act or with plain
indifference to employee safety. /Simplex Time Recorder Co./, 12 BNA
OSHC 1591, 1595 (No. 82-12, 1985); /Asbestos Textile Co./, 12 BNA OSHC
1062, 1063 (No. 79-3831, 1984).

In Item 1 of Citation 2, the Secretary alleges that Respondent willfully
violated 29 C.F.R. § 1910.147(c)(1) by failing to establish an energy
control program to ensure machinery or equipment was isolated from the
energy source and rendered inoperative, before any employee performed
servicing or maintenance on it, where unexpected energizing, start up or
release of stored energy could occur and cause injury. When the CO asked
Respondent for a lockout/tagout ("LOTO") program, Respondent could not
produce it.^(10) <#N_10_> (Tr.142, 340-41.) Respondent attempted to show
that a program was in place by arguing that a former quality control
manager was hired to develop and implement the program. (Tr. 175-77,
599-601.) This argument is unpersuasive. First, the quality control
manager was hired in February 1997, more than a year after Respondent
had certified to OSHA that it had corrected a prior violation of the
same standard. (Tr. 617-18.) Second, the quality control manager
specifically testified that he was not hired to develop and implement a
LOTO program, but, rather, to develop Respondent's food safety/hygiene
program so that the company could be certified for a Department of
Commerce program. (Tr. 619-21, 627.) Third, Respondent's plant manager
admitted that he did not see any results from the alleged efforts to
develop a LOTO program. (Tr. 599.) In any case, the testimony of the
quality control manager, maintenance man and plant manager confirms that
the company did not in fact comply with the requirement to develop and
implement a LOTO program.^(11) <#N_11_> (Tr. 62-65, 176-77, 624-25.) It
is evident that employees who used the production equipment were exposed
to the hazard of injury from the unexpected energizing, start up or
release of stored energy. It is also apparent that Respondent had
knowledge of the cited condition, especially since the company was
previously cited in this regard.

The Secretary properly classified this violation as willful. The company
president's certificate of correction for the same violative condition
in 1995, and his testimony that the violation "probably [was] not"
corrected, clearly demonstrate Respondent's failure to act in the face
of a known duty. (Tr. 20-25, 113-14; CX-108.) Further, Respondent's
designation of an employee with no safety background and no knowledge of
LOTO procedures to develop such a program shows plain indifference to
employee safety. (Tr. 349-50.) That Respondent had a cavalier attitude
about employee safety is also established by a former employee's
testimony that, after the 1997 OSHA inspection, Respondent provided no
employee safety training. (Tr. 206-07.) I find that Respondent has shown
and continues to show intentional disregard for the requirements of the
Act and complete indifference to employee safety. Based on the
foregoing, I affirm Citation 2, Item 1 as a willful violation, and I
find that the proposed penalty of $38,500.00 is appropriate for this item.

Item 2 of Citation 2 alleges that Respondent willfully violated 29
C.F.R. § 1910.212(a)(1) by failing to guard exposed portions of various
saws in the facility. The maintenance man, plant manager and company
president all admitted at the hearing that exposed parts of various saws
were not guarded. (Tr. 75-82, 120-22, 178-80.) Their testimony, as well
as other evidence in the record, clearly shows that the terms of the
standard were violated. (Tr. 147, 150-59, 178-80, 359-62; CX-123-125,
CX-129.) Contrary to Respondent's argument, I find that employees were
exposed to the hazardous condition. (CX-123-125, CX-129.) The CO even
photographed an exposed employee operating the same machine that had
almost amputated another employee's hand. (Tr. 151-52; CX-123.) I find,
therefore, that the Secretary has established the alleged violation.

I also agree with the willful classification of this violation.
Respondent was cited for the same violative condition in 1995 and
afterwards certified that it had corrected the condition. (Tr. 31-32,
119-20; CX-130.) However, statements of the maintenance man and the
plant manager contradict any claim that the condition was abated. The
maintenance man told the CO that the guards were never in place during
his tenure at the plant, and the plant manager admitted at the hearing
he had told the CO that "[guards] weren't being used and we never used
[guards]." (Tr. 152-54, 179-80; CX-144.) Even assuming /arguendo/ that
Respondent had corrected the violation in 1995, it is clear the company
took no steps to ensure that the guards remained in place when
operators, who did not like the guards, used the saws. (Tr. 121-22, 151,
359-60, 362, 519.) In addition, the plant manager testified at the
hearing that the company still had no policy requiring saw operators to
keep the guards in place, and the record shows that, after an incident
in which an employee almost amputated her hand with one of the cited
saws, Respondent did not investigate the accident to ensure that future
accidents would not occur.^(12) <#N_12_> (Tr. 122, 182-83.) Item 2 of
Citation 2 is affirmed as a willful violation, and the proposed penalty
of $49,000.00 is appropriate for this item.

*/Safety Citation 3-Alleged Repeated Violations (No. 98-0849)/*//^(13)
<#N_13_>

Items 1 and 2 of Safety Citation 3 allege repeated violations of 29
C.F.R. §§ 1910.212(a)(1) and 1910.219(d)(1). "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." /Potlatch Corp./, 7 BNA OSHC
1061 (No. 16183, 1979).

Item 1 alleges a repeated violation of 29 C.F.R. § 1910.212(a)(1), which
requires employers to guard ingoing nip points. The Secretary has
established that the standard was violated by both testimony and
documentary evidence, including a report of an employee injured by a
conveyor belt and the maintenance man's statement to the CO that such
injuries had occurred. (Tr. 363-67, 520; CX-131-134, CX-136.) The
Secretary has also established that Respondent violated the same
standard in 1995 and that it certified in 1995 that it had corrected
that violation. (Tr. 32-34, 363-67; CX-135.) Finally, the Secretary has
established that the previous and present violations are substantially
similar, in that both violations involve the same condition-loose
clothing being caught on rollers-created by the conveyor belts. (Tr.
362-65, 521, 558-59; CX-135.) I therefore affirm Item 1 of Citation 3 as
a repeated violation, and I find the proposed penalty of $4,900.00
appropriate.

Item 2 alleges a repeated violation of 29 C.F.R. § 1910.219(d)(1), which
requires employers to guard certain pulleys. The Secretary has
demonstrated that the terms of the standard were violated, based on the
CO's personal observation of the violative conditions and the
photographs in evidence. (Tr. 368-70; CX-137-139.) The Secretary has
also demonstrated that Respondent violated the same standard in 1995 and
that both the prior and present violations involve the same hazard. (Tr.
35-36, 368-70; CX-137-140.) Contrary to Respondent's argument, the
Secretary does not need to prove that the same machinery was involved.
Rather, she need only show that the violations were substantially
similar. In both instances, unguarded belts and pulleys presented the
same hazard-that of fingers or clothing being caught-and whether the
same or different machinery was involved is irrelevant. The Secretary
has met her burden of proof in regard to this item, and Item 2 of
Citation 3 is affirmed as a repeated violation. I find that the proposed
penalty of $2,800.00 is appropriate.

*/Safety Citation 4-Alleged "Other" Violations (No. 98-0849)/*^(14) <#N_14_>

Item 1 of Citation 4 alleges an other-than-serious violation of 29
C.F.R. § 1904.2(a), which requires employers to maintain an OSHA 200 log
or equivalent of recordable occupational injuries and illnesses.
Respondent admits it did not keep an OSHA 200 log or equivalent, but it
asserts that the information was provided shortly thereafter.^(15)
<#N_15_> (R. Brief, p. 60.) Item 4 of Citation 4 is affirmed as an
"other" violation, and I find the proposed penalty of $700.00 to be
appropriate.

Item 2 of Citation 4 alleges an other-than-serious violation of 29
C.F.R. § 1910.23(a)(8), which requires employers to guard floor holes.
The CO's testimony, that he and another employee tripped in a floor hole
that was used as a drain, was unrebutted. (Tr. 373-74; CX-141.) This
item is therefore affirmed as an "other" violation. No penalty was
proposed, and none is assessed.

Item 3 of Citation 4 alleges an other-than-serious violation of 29
C.F.R. § 1910.303(g)(1)(ii), which prohibits the use of working spaces
for storage. The CO's testimony, that working spaces in front of panel
boxes were blocked by pallets, both in the rear of the plant and in the
fish workshop, was unrebutted. (Tr. 365.) Item 3 of Citation 4 is
consequently affirmed as an "other" violation. No penalty was proposed,
and none is assessed.

*/Health Citation 1-Alleged Serious Violations (No. 98-0848)/*//^(16)
<#N_16_>

Items 1 through 4 of Health Citation 1 allege serious violations of
specific standards. Item 1 alleges a serious violation of 29 C.F.R. §
1910.120(q)(1), which requires the employer to develop an emergency
response plan. When the CO and the Industrial Hygienist ("IH") asked for
copies of written programs, Respondent could not produce any, including
a written emergency response plan. (Tr. 142, 341, 677.) The record
clearly shows that Respondent had no plan, written or otherwise, for
responding to emergencies involving hazardous substance releases. The
IH's interviews with the plant manager and several employees revealed
that no one was clear on the company's policy of when or if employees
were to evacuate in case of an emergency. (Tr. 666-67, 755-56.)
Respondent does not dispute that employees were exposed to the cited
hazard, and Respondent could have known of the hazardous condition with
the exercise of reasonable diligence. This item is affirmed as a serious
violation, and the proposed penalty of $1,750.00 is appropriate.

Item 2 alleges serious violations of 29 C.F.R. §§ 1910.132(d)(1) and
1910.133(a)(1). The evidence of record supports a finding that
Respondent failed to assess the workplace for hazards and to select
appropriate personal protective equipment ("PPE") for exposed employees
as required by § 1910.132(d)(1). For example, employees working with
highly corrosive chemicals wore gloves that were appropriate for food
hygiene, not corrosive chemicals. (Tr. 683.) The IH testified that two
maintenance employees admitted to him that they did not wear PPE when
handling chemicals and that one maintenance man stated that PPE was not
available. (Tr. 686). The evidence of record also supports a finding
that Respondent failed to provide employees handling chemicals with
appropriate eye and face protection as required by § 1910.133(a)(1). The
IH testified that he did not see safety glasses, chemical splash goggles
or face shields. (Tr. 683.) Maintenance personnel who handled highly
corrosive chemicals also admitted to the IH that these items were not
available. (Tr. 684, 698.) It is undisputed that employees were exposed
to the cited hazards, and Respondent could have discovered the hazardous
conditions with the exercise of reasonable diligence. This item is
affirmed as a serious violation, and I find that the proposed penalty of
$1,750.00 is appropriate.

In Item 3, the Secretary alleges serious violations of 29 C.F.R. §§
1910.134(d)(2)(i), 1910.134(e)(5) and 1910.134(f)(2)(ii). The Secretary
presented no evidence as to which requirements of the Shipping Container
Specification Regulations of the Department of Transportation Respondent
failed to comply with when testing and maintaining the self-contained
breathing apparatus ("SCBA") respirators at the site. (Tr. 688-89.) Nor
has the Secretary demonstrated why the inspection conducted by the local
fire department was inadequate to satisfy the Department of
Transportation regulations. /Id./ The Secretary has therefore failed to
satisfy her burden of proving a violation of § 1910.134(d)(2)(i), as
alleged in Item 3a, and Item 3a is vacated.

As to Items 3b and 3c, the Secretary has shown that Respondent failed to
train employees in the proper use, maintenance and limitations of the
SCBA respirators, and that Respondent failed to inspect the SCBA
respirators monthly, as required by §§ 1910.134(e)(5) and
1910.134(f)(2)(ii), respectively. I do not find credible Respondent's
argument that no employee was designated to use the SCBA respirators.
The plant manager admitted to the IH that he and a foreman were
designated users of the respirators and that he had used them at least
twice, once during an ammonia leak. (Tr. 667-73, 740-41, 755-56.)
Moreover, the plant manager's demonstration to the IH clearly showed
that he did not know how to properly use the SCBA respirators. (Tr.
672-75.) In addition, even though the plant manager was not competent to
do so, the designated foreman told the IH that the plant manager had
trained him in use of the respirators three years before. (Tr. 672.)
Respondent could not provide any training records for any employees who
were expected to use the respirators, and the company did not rebut the
IH's testimony that Respondent did not inspect the respirators monthly
as required. (Tr. 671, 690.) It is undisputed that employees were
exposed to the cited hazards, and Respondent's plant manager was aware
of the hazardous conditions. The cited conditions could cause serious
injuries or death, and the serious classification is proper. Items 3b
and 3c are therefore affirmed as serious violations, and a penalty of
$3,000.00 for these items is appropriate.

Item 4 alleges a serious violation of 29 C.F.R. § 1910.151(c), which
requires suitable eyewash facilities where employees may be exposed to
injurious corrosive materials. The IH testified that there were no
suitable eyewash facilities readily accessible in areas where employees
handled corrosive chemicals, and Respondent's plant manager was aware
that this was the case. (Tr. 694-95). Respondent offered no contrary
evidence. Furthermore, it is undisputed that employees were exposed to
the cited hazard. This item is affirmed as a serious violation, because
potential injuries would be serious, and I find that the proposed
penalty of $1,750.00 is appropriate.

*/Health Citation 2-Alleged Willful Violations (No. 98-0848)/*^(17) <#N_17_>

Item 1 of Health Citation 2 alleges violations of 29 C.F.R. §§
1910.95(c)(1), 1910.95(d)(1), 1910.95(g)(1), 1910.95(i)(2)(i),
1910.95(i)(3) and 1910.95(k)(1), for exposing employees to excessive
noise levels. At the start of the OSHA inspection, both the CO and the
IH noticed excessive noise in the plant and took sound level readings.
(Tr. 144-45, 409-10, 637-38, 648.) The readings the IH took with a sound
level meter and dosimeter all showed that the noise that employees were
exposed to in the production area exceeded an 8-hour time-weighted
average of 85 decibels. (Tr. 646-56, 710-13.) Respondent does not
dispute the accuracy of these readings or employee exposure but argues
that it did not have knowledge of the cited standards. (R. Brief, p.
54-56.) Contrary to Respondent's argument, "[t]he 'knowledge' of which
[the Act] speaks is knowledge of the condition constituting the
violation." /Shaw Constr., Inc./, 6 BNA OSHC 1341, 1342-43 (No. 3324,
1978). Respondent also "is presumed to have knowledge of the standard
itself by virtue of the standard's publication in the Federal Register."
/Id./ Respondent next points to OSHA's failure to issue a citation for
noise after the 1995 inspection as evidence of its lack of knowledge.
(R. Brief, p. 54.) Respondent, however, cannot rely on OSHA's earlier
failure to issue a citation to support an assertion of a lack of
knowledge of the hazardous condition. /Columbian Art Works, Inc./, 10
BNA OSHC 1132, 1133 (No. 78-29, 1981). Even if Respondent was not cited
for excessive noise in 1995, the CO at that time informed the company
that the "noise was excessive." (Tr. 37, 53.) Furthermore, Respondent's
own insurance company alerted it that some areas of the plant had high
noise exposure and that a hearing conservation program needed to be
implemented. (Tr. 662-64, 711, 730.) Finally, the company president told
the IH that the high noise level was the "nature of the beast" and he
admitted to the IH that he was aware the noise levels were above 85
decibels. (Tr. 661-63.)

The Secretary has met her burden of proving the alleged violations.
First, Respondent did not implement a hearing conservation program
including monitoring and audiometric testing of employees exposed to
excessive noise levels. (Tr. 411, 664, 711-13.) Second, Respondent did
not require exposed employees to wear hearing protectors or provide them
with a variety of suitable hearing protectors. (Tr. 145, 194, 410-11,
625, 653, 662-63, 712.) Third, Respondent failed to institute a training
program for all exposed employees. (Tr. 664, 712-13.)

I agree with the Secretary's classification of these violations as
willful. Despite warnings from two separate sources in 1995 that noise
levels were excessive, Respondent deliberately ignored the warnings,
failed to comply with the standards' requirements, and knowingly exposed
employees to hazardous noise levels. I find that these violations were
committed with intentional disregard for the requirements of the Act and
with plain indifference to employee safety. Therefore, I affirm Item 1
of Citation 2 as a willful violation, and I find the proposed penalty of
$38,500.00 appropriate. Item 2 of Health Citation 2 alleges willful
violations of 29 C.F.R. §§ 1910.1200(e)(1), 1910.1200(f)(5)(i),
1910.1200(f)(5)(ii), 1910.1200(g)(8) and 1910.1200(h). The Secretary
alleges, and Respondent admits, that it did not develop, implement and
maintain a written hazard communication ("HAZCOM") program.^(18)
<#N_18_> (R. Brief, p. 56-57.) The Secretary has also demonstrated that
Respondent failed to label, tag and mark hazardous chemicals with
identification and appropriate warnings.^(19) <#N_19_> (Tr. 704-07.) In
addition, the Secretary has shown that Respondent did not have material
safety data sheets for some chemicals used, including anhydrous ammonia,
battery acid, propane, oxygen and Genetron 22. (Tr. 708.) Finally, the
Secretary has established that Respondent failed to effectively train
its employees on hazardous chemicals in the workplace. (Tr. 709-10.) I
find the training that the former quality control manager provided to be
inadequate. His training dealt with food hygiene and not employee
safety. (Tr. 632.) Further, the training provided by Alpha Chemicals was
inadequate because it only covered chemicals sold to Respondent by Alpha
Chemicals. (Tr. 709-10.) It is clear that employees were exposed to the
hazardous conditions and that Respondent had actual knowledge of the
conditions. The Secretary has met her burden of proving all of the
violations set out in Item 2.

The Secretary's willful classification of these violations is
appropriate. Respondent was cited for these same violations in 1995,
and, following that inspection, it certified that it had corrected the
violations. (Tr. 699-00.) In addition, Respondent's worker compensation
insurer alerted it that it needed to "develop a fully written [HAZCOM]
program." (Tr. 701.) The company president admitted to the IH that he
was aware of the regulation because he purchased and read an OSHA
compliance manual from J.J. Keller and Associates. (Tr. 703.) Yet,
Respondent knowingly disregarded the standards and exposed its employees
to hazardous chemicals, and the company president's assertion that the
former quality control manager took the HAZCOM program with him when he
left is patently unbelievable. (Tr. 700, 702.) As in Item 1, I conclude
that these violations were committed with intentional disregard for the
requirements of the Act and with plain indifference to employee safety.
Item 2 is accordingly affirmed as willful, and I find that the proposed
penalty of $38,500.00 is appropriate for these violations.

*/Health Citation 3-Alleged "Other" Violations (No. 98-0848)/*^(20) <#N_20_>

Health Citation 3, Item 1 alleges an other-than-serious violation of 29
C.F.R. § 1910.95(l)(i), which requires the employer to post and make
available to affected employees a copy of the occupational noise
exposure standard. Respondent does not dispute that it did not comply
with the cited standard. (R. Brief, p. 59.) This item is affirmed, and
no penalty is assessed.

Citation 3, Item 2 alleges an other-than-serious violation of 29 C.F.R.
§ 1910.141(g)(2), which prohibits the consumption of food or beverages
in a toilet room. The CO and the IH both observed employees go to the
bathroom to have their lunch, snacks and drinks. (Tr. 248, 714.) A
former employee also testified that there was a table with benches in
the bathroom so that employees could eat and drink during lunch and
breaks. (Tr. 205.) Respondent does not dispute the alleged violation.
This item is affirmed as an other-than-serious violation, and no penalty
is assessed.

*/Findings of Fact/*

All findings of fact necessary for a determination of all relevant
issues have been made above. Fed. R. Civ. P. 52(a). All proposed
findings of fact and conclusions of law inconsistent with this decision
are hereby denied.

*/Conclusions of Law/*//

1. Respondent was, at all times pertinent hereto, an employer within the
meaning of section 3(5) of the Act.

2. The Commission has jurisdiction over the parties and the subject matter.

3. Respondent was in serious violation of section 5(a)(1) of the Act for
exposing employees to fire and explosion hazards, as alleged in Safety
Citation 1, Item 1, and a civil penalty of $4,900.00 is appropriate for
this violation.

4. Respondent was in serious violation of section 5(a)(1) of the Act for
exposing employees to amputation and laceration hazards, as alleged in
Safety Citation 1, Item 2, and a civil penalty of $3,500.00 is
appropriate for this violation.

5. Respondent was in serious violation of section 5(a)(1) of the Act for
exposing employees to fall hazards, as alleged in Safety Citation 1,
Item 3, and a civil penalty of $3,500.00 is appropriate for this violation.

6. Respondent was in serious violation of 29 C.F.R. §§ 1910.36(b)(7),
1910.37(q)(1), 1910.37(q)(2) and 1910.37(q)(5), as alleged in Safety
Citation 1, Item 4, and a civil penalty of $1,750.00 is appropriate for
these violations.

7. Respondent was in serious violation of 29 C.F.R. § 1910.132(a), as
alleged in Safety Citation 1, Item 5, and a civil penalty of $1,400.00
is appropriate for this violation.

8. Respondent was in serious violation of 29 C.F.R. §§ 1910.38(a)(1),
1910.38(b)(1), 1910.157(c)(1) and 1910.157(g)(4), as alleged in Safety
Citation 1, Item 6, and a civil penalty of $3,500.00 is appropriate for
these violations.

9. Respondent was in serious violation of 29 C.F.R. § 1910.101(b), as
alleged in Safety Citation 1, Item 7, and a civil penalty of $3,500.00
is appropriate for this violation.

10. Respondent was in serious violation of 29 C.F.R. §
1910.106(d)(3)(ii), as alleged in Safety Citation 1, Item 8, and a civil
penalty of $1,750.00 is appropriate for this violation.

11. Respondent was not in violation of 29 C.F.R. § 1910.146(c)(1), as
alleged in Safety Citation 1, Item 9.

12. Respondent was in serious violation of 29 C.F.R. § 1910.176(b), as
alleged in Safety Citation 1, Item 10, and a civil penalty of $1,400.00
is appropriate for this violation.

13. Respondent was in serious violation of 29 C.F.R. §§ 1910.178(l) and
1910.178(m)(5)(i), as alleged in Safety Citation 1, Item 11, and a civil
penalty of $3,500.00 is appropriate for these violations.

14. Respondent was in serious violation of 29 C.F.R. §
1910.212(a)(3)(ii), as alleged in Safety Citation 1, Item 12, and a
civil penalty of $1,400.00 is appropriate for this violation.

15. Respondent was in serious violation of 29 C.F.R. § 1910.213(b)(3),
as alleged in Safety Citation 1, Item 13a, and a civil penalty of
$600.00 is appropriate for this violation.

16. Respondent was not in violation of 29 C.F.R. §§ 1910.213(c)(1) and
1910.213(c)(2), as alleged in Safety Citation 1, Items 13b and 13c.

17. Respondent was in serious violation of 29 C.F.R. § 1910.215(a)(4),
as alleged in Safety Citation 1, Item 14, and a civil penalty of
$1,400.00 is appropriate for this violation.

18. Respondent was in serious violation of 29 C.F.R. § 1910.219(f)(3),
as alleged in Safety Citation 1, Item 15, and a civil penalty of
$1,750.00 is appropriate for this violation.

19. Respondent was in serious violation of 29 C.F.R. § 1910.242(b), as
alleged in Safety Citation 1, Item 16, and a civil penalty of $700.00 is
appropriate for this violation.

20. Respondent was in serious violation of 29 C.F.R. §
1910.252(a)(2)(vii), as alleged in Safety Citation 1, Item 17, and a
civil penalty of $1,750.00 is appropriate for this violation.

21. Respondent was in serious violation of 29 C.F.R. § 1910.303(f), as
alleged in Safety Citation 1, Item 18, and a civil penalty of $1,050.00
is appropriate for this violation.

22. Respondent was in serious violation of 29 C.F.R. §§
1910.303(g)(2)(i), 1910.305(b)(1) and 1910.305(b)(2), as alleged in
Safety Citation 1, Item 19, and a civil penalty of $3,500.00 is
appropriate for these violations.

23. Respondent was in serious violation of 29 C.F.R. §
1910.303(g)(2)(ii), as alleged in Safety Citation 1, Item 20, and a
civil penalty of $3,500.00 is appropriate for this violation.

24. Respondent was in serious violation of 29 C.F.R. §§ 1910.304(a)(2)
and 1910.304(f)(4), as alleged in Safety Citation 1, Item 21, and a
civil penalty of $3,500.00 is appropriate for these violations.

25. Respondent was in serious violation of 29 C.F.R. §§
1910.305(g)(1)(iii), 1910.305(g)(2)(ii), 1910.305(g)(2)(iii) and
1910.334(a)(2)(i), as alleged in Safety Citation 1, Item 22, and a civil
penalty of $3,500.00 is appropriate for these violations.

26. Respondent was in serious violation of 29 C.F.R. §
1910.305(j)(1)(i), as alleged in Safety Citation 1, Item 23, and a civil
penalty of $3,500.00 is appropriate for this violation.

27. Respondent was in willful violation of 29 C.F.R. § 1910.147(c)(1),
as alleged in Safety Citation 2, Item 1, and a civil penalty of
$38,500.00 is appropriate for this violation.

28. Respondent was in willful violation of 29 C.F.R. § 1910.212(a)(1),
as alleged in Safety Citation 2, Item 2, and a civil penalty of
$49,000.00 is appropriate for this violation.

29. Respondent was in repeat violation of 29 C.F.R. § 1910.212(a)(1), as
alleged in Safety Citation 3, Item 1, and a civil penalty of $4,900.00
is appropriate for this violation.

30. Respondent was in repeat violation of 29 C.F.R. § 1910.219(d)(1), as
alleged in Safety Citation 3, Item 2, and a civil penalty of $2,800.00
is appropriate for this violation.

31. Respondent was in other-than-serious violation of 29 C.F.R. §
1904.2(a), as alleged in Safety Citation 4, Item 1, and a civil penalty
of $700.00 is appropriate for this violation.

32. Respondent was in other-than-serious violation of 29 C.F.R. §
1910.23(a)(8), as alleged in Safety Citation 4, Item 2, and no civil
penalty is appropriate for this violation.

33. Respondent was in other-than-serious violation of 29 C.F.R. §
1910.303(g)(1)(ii), as alleged in Safety Citation 4, Item 3, and no
civil penalty is appropriate for this violation.

34. Respondent was in serious violation of 29 C.F.R. § 1910.120(q)(1),
as alleged in Health Citation 1, Item 1, and a civil penalty of
$1,750.00 is appropriate for this violation.

35. Respondent was in serious violation of 29 C.F.R. §§ 1910.132(d)(1)
and 1910.133(a)(1), as alleged in Health Citation 1, Item 2, and a civil
penalty of $1,750.00 is appropriate for these violations.

36. Respondent was not in violation of 29 C.F.R. § 1910.134(d)(2)(i), as
alleged in Health Citation 1, Item 3a.

37. Respondent was in serious violation of 29 C.F.R. §§ 1910.134(e)(5)
and 1910.134(f)(2)(ii), as alleged in Health Citation 1, Items 3b and
3c, and a civil penalty of $3,000.00 is appropriate for these violations.

38. Respondent was in serious violation of 29 C.F.R. § 1910.151(c), as
alleged in Health Citation 1, Item 4, and a civil penalty of $1,750.00
is appropriate for this violation.

39. Respondent was in willful violation of 29 C.F.R. §§ 1910.95(c)(1),
1910.95(d)(1), 1910.95(g)(1), 1910.95(i)(2)(i), 1910.95(i)(3) and
1910.95(k)(1), as alleged in Health Citation 2, Item 1, and a civil
penalty of $38,500.00 is appropriate for these violations.

40. Respondent was in willful violation of 29 C.F.R. §§ 1910.1200(e)(1),
1910.1200(f)(5)(i), 1910.1200(f)(5)(ii), 1910.1200(g)(8) and
1910.1200(h), as alleged in Health Citation 2, Item 2, and a civil
penalty of $38,500.00 is appropriate for these violations.

41. Respondent was in other-than-serious violation of 29 C.F.R. §
1910.95(l)(1), as alleged in Health Citation 3, Item 1, and no civil
penalty is appropriate for this violation.

42. Respondent was in other-than-serious violation of 29 C.F.R. §
1910.141(g)(2), as alleged in Health Citation 3, Item 2, and no civil
penalty is appropriate for this violation.

*ORDER*

1. Safety Citation 1, Items 1 through 8 are AFFIRMED.

2. Safety Citation 1, Item 9 is VACATED.

3. Safety Citation 1, Items 10 through 13a are AFFIRMED.

4. Safety Citation 1, Items 13b and 13c are VACATED.

5. Safety Citation 1, Items 14 through 23 are AFFIRMED.

6. Safety Citation 2, Items 1 and 2 are AFFIRMED.

7. Safety Citation 3, Items 1 and 2 are AFFIRMED.

8. Safety Citation 4, Items 1 through 3 are AFFIRMED.

9. Health Citation 1, Items 1 and 2 are AFFIRMED.

10. Health Citation 1, Item 3a is VACATED.

11. Health Citation 1, Items 3b and 3c are AFFIRMED.

12. Health Citation 1, Item 4 is AFFIRMED.

13. Health Citation 2, Items 1 and 2 are AFFIRMED.

14. Health Citation 3, Items 1 and 2 are AFFIRMED.

15. A total civil penalty of $150,750.00 is assessed for OSHRC Docket
No. 98-0849.

16. A total civil penalty of $85,250.00 is assessed for OSHRC Docket No.
98-0848.

17. A combined total civil penalty of $236,000.00 is assessed.





/s/

Michael H. Schoenfeld

Judge, OSHRC



Dated: June 8, 2001

Washington, D.C.

*Appendix A*



*29 C.F.R. § 1910.36(b)(7): *In every building or structure of such
size, arrangement, or occupancy that a fire may not itself provide
adequate warning to occupants, fire alarm facilities shall be provided
where necessary to warn occupants of the existence of fire so that they
may escape, or to facilitate the orderly conduct of fire exit drills.



*29 C.F.R. § 1910. 37(q)(1): *Exits shall be marked by a readily visible
sign. Access to exits shall be marked by readily visible signs in all
cases where the exit or way to reach it is not immediately visible to
the occupants.



*29 C.F.R. § 1910.37(q)(2):* Any door, passage, or stairway which is
neither an exit nor a way of exit access, and which is so located or
arranged as to be likely to be mistaken for an exit, shall be identified
by a sign reading "Not an Exit" or similar designation, or shall be
identified by a sign indicating its actual character, such as "To
Basement," "Storeroom," "Linen Closet," or the like.



*29 C.F.R. § 1910.37(q)(5): *A sign reading "Exit", or similar
designation, with an arrow indicating the directions, shall be placed in
every location where the direction of travel to reach the nearest exist
is not immediately apparent.



*29 C.F.R. § 1910.132(a): *Protective equipment, including personal
protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers,
shall be provided, used, and maintained in a sanitary and reliable
condition wherever it is necessary by reason of hazards of processes or
environment, chemical hazards, radiological hazards, or mechanical
irritants encountered in a manner capable of causing injury or
impairment in the function of any part of the body through absorption,
inhalation or physical contact.



*29 C.F.R. § 1910.38(a)(1): *This paragraph (a) applies to all emergency
action plans required by a particular OSHA standard. The emergency
action plan shall be in writing (except as provided in the last sentence
of paragraph (a)(5)(iii) of this section) and shall cover those
designated actions employers and employees must take to ensure employee
safety from fire and other emergencies.



*29 C.F.R. § 1910.38(b)(1): *This paragraph (b) applies to all fire
prevention plans required by a particular OSHA standard. The fire
prevention plan shall be in writing, except as provided in the last
sentence of paragraph (b)(4)(ii) of this section.



*29 C.F.R. § 1910.157(c)(1): *The employer shall provide portable fire
extinguishers and shall mount, locate and identify them so that they are
readily accessible to employees without subjecting the employees to
possible injury.



*29 C.F.R. § 1910.157(g)(4):* The employer shall provide the training
required in paragraph (g)(3) of this section upon initial assignment to
the designated group of employees and at least annually thereafter.



*29 C.F.R. § 1910.101(b):* The in-plant handling, storage, and
utilization of all compressed gases in cylinders, portable tanks, rail
tankcars, or motor vehicle cargo tanks shall be in accordance with
Compressed Gas Association Pamphlet P-1-1965, which is incorporated by
reference as specified in § 1910.6.



*29 C.F.R. § 1910.106(d)(3)(ii): *Storage cabinets shall be designed and
constructed to limit the internal temperature to not more than 325F.
when subjected to a 10-minute fire test using the standard
time-temperature curve as set forth in Standard Methods of Fire Tests of
Building Construction and Materials, NFPA 251-1969, which is
incorporated by reference as specified in § 1910.6. All joints and seams
shall remain tight and the door shall remain securely closed during the
fire test. Cabinets shall be labeled in conspicuous lettering,
"Flammable-Keep Fire Away."



*29 C.F.R. § 1910.146(c)(1):* The employer shall evaluate the workplace
to determine if any spaces are permit-required confined spaces. Note:
Proper application of the decision flow chart in appendix A to §
1910.146 would facilitate compliance with this requirement.



*29 C.F.R. § 1910.176(b): *Storage of material shall not create a
hazard. Bags, containers, bundles, etc., stored in tiers shall be
stacked, blocked, interlocked and limited in height so that they are
stable and secure against sliding or collapse.



*29 C.F.R. § 1910.178(l): *Only trained and authorized operators shall
be permitted to operate a powered industrial truck. Methods shall be
devised to train operators in the safe operation of powered industrial
trucks.



*29 C.F.R. § 1910.178(m)(5)(i):* When a powered industrial truck is left
unattended, load engaging means shall be fully lowered, controls shall
be neutralized, power shall be shut off, and brakes set. Wheels shall be
blocked if the truck is parked on an incline.



*29 C.F.R. § 1910.212(a)(3)(ii): *The point of operation of machines
whose operation exposes an employee to injury, shall be guarded. The
guarding device shall be in conformity with any appropriate standards
therefor, or, in absence of applicable specific standards, shall be so
designed and constructed as to prevent the operator from having any part
of his body in the danger zone during the operating cycle.



*29 C.F.R. § 1910.213(b)(3):* On applications where injury to operator
might result if motors were to restart after power failures, provision
shall be made to prevent machines from automatically restarting upon
restoration of power.



*29 C.F.R. § 1910.213(c)(1):* Each circular hand-fed ripsaw shall be
guarded by a hood which shall completely enclose that portion of the saw
above the table and that portion of the saw above the material being
cut. The hood and mounting shall be arranged so that the hood will
automatically adjust itself to the thickness of and remain in contact
with the material being cut but it shall not offer any considerable
resistance to insertion of material to saw or to passage of the material
being sawed. The hood shall be made of adequate strength to resist blows
and strains incidental to reasonable operation, adjusting, and handling,
and shall be so designed as to protect the operator from flying
splinters and broken saw teeth. It shall be made of material that is
soft enough so that it will be unlikely to cause tooth breakage. The
hood shall be so mounted as to insure that its operation will be
positive, reliable, and in true alignment with the saw; and the mounting
shall be adequate in strength to resist any reasonable side thrust or
other force tending to throw it out of line.



*29 C.F.R. § 1910.213(c)(2):* Each hand-fed circular ripsaw shall be
furnished with a spreader to prevent material from squeezing the saw or
being thrown back on the operator. The spreader shall be made of hard
tempered steel, or its equivalent, and shall be thinner than the saw
kerf. It shall be of sufficient width to provide adequate stiffness or
rigidity to resist any reasonable side thrust or blow tending to bend or
throw it out of position. The spreader shall be attached so that it will
remain in true alignment with the saw even when either the saw or table
is tilted. The provision of a spreader in connection with grooving,
dadoing, or rabbeting is not required. On the completion of such
operations, the spreader shall be immediately replaced.



*29 C.F.R. § 1910.215(a)(4):* On offhand grinding machines, work rests
shall be used to support the work. They shall be of rigid construction
and designed to be adjustable to compensate for wheel wear. Work rests
shall be kept adjusted closely to the wheel with a maximum opening of
one-eighth inch to prevent the work from being jammed between the wheel
and the rest, which may cause wheel breakage. The work rest shall be
securely clamped after each adjustment. The adjustment shall not be made
with the wheel in motion.



*29 C.F.R. § 1910.219(f)(3):* All sprocket wheels and chains shall be
enclosed unless they are more than seven (7) feet above the floor or
platform. Where the drive extends over other machine or working areas,
protection against falling shall be provided. This subparagraph does not
apply to manually operated sprockets.



*29 C.F.R. § 1910.242(b):* Compressed air shall not be used for cleaning
purposes except where reduced to less than 30 p.s.i. and then only with
effective chip guarding and personal protective equipment.



*29 C.F.R. § 1910.252(a)(2)(vii):* Where practicable, all combustibles
shall be relocated at least 35 feet (10.7 m) from the work site. Where
relocation is impracticable, combustibles shall be protected with
flameproofed covers or otherwise shielded with methal or asbestos guards
or curtains.



*29 C.F.R. § 1910.303(f):* Each disconnecting means required by this
subpart for motors and appliances shall be legibly marked to indicate
its purpose, unless located and arranged so the purpose is evident. Each
service, feeder, and branch circuit, at its disconnecting means or
overcurrent device, shall be legibly marked to indicate its purpose,
unless located and arranged so the purpose is evident. These markings
shall be of sufficient durability to withstand the environment involved.

*29 C.F.R. § 1910.303(g)(2)(i):* Except as required or permitted
elsewhere in this subpart, live parts of electric equipment operating at
50 volts or more shall be guarded against accidental contact by approved
cabinets or other forms of approved enclosures, or by any of the
following means:

(A) By location in a room, vault, or similar enclosure that is
accessible only to qualified persons.

(B) By suitable permanent, substantial partitions or screens so arranged
that only qualified persons will have access to the space within reach
of the live parts. Any openings in such partitions or screens shall be
so sized and located that persons are not likely to come into accidental
contact with the live parts or to bring conducting objects into contact
with them.

(C) By location on a suitable balcony, gallery, or platform so elevated
and arranged as to exclude unqualified persons.

(D) By elevation of 8 feet or more above the floor or other working surface.



*29 C.F.R. § 1910.305(b)(1):* Conductors entering boxes, cabinets, or
fittings shall also be protected from abrasion, and openings through
which conductors enter shall be effectively closed. Unused openings in
cabinets, boxes, and fittings shall be effectively closed.



*29 C.F.R. § 1910.305(b)(2):* All pull boxes, junction boxes, and
fittings shall be provided with covers approved for the purpose. If
metal covers are used they shall be grounded. In completed installations
each outlet box shall have a cover, faceplate, or fixture canopy. Covers
of outlet boxes having holes through which flexible cord pendants pass
shall be provided with bushings designed for the purpose or shall have
smooth, well-rounded surfaces on which the cords may bear.



*29 C.F.R. § 1910.303(g)(2)(ii):* In locations where electric equipment
would be exposed to physical damage, enclosures or guards shall be so
arranged and of such strength as to prevent such damage.



*29 C.F.R. § 1910.304(a)(2):* No grounded conductor may be attached to
any terminal or lead so as to reverse designated polarity.



*29 C.F.R. § 1910.304(f)(4): *The path to ground from circuits,
equipment, and enclosures shall be permanent and continuous.



*29 C.F.R. § 1910.305(g)(1)(iii):* Unless specifically permitted in
paragraph (g)(1)(i) of this section, flexible cords and cables may not
be used:

(A) As a substitute for the fixed wiring of a structure;

(B) Where run through holes in walls, ceilings, or floors;

(C) Where run through doorways, windows, or similar openings;

(D) Where attached to building surfaces; or

(E) Where concealed behind building walls, ceilings, or floors.



*29 C.F.R. § 1910.305(g)(2)(ii):* Flexible cords shall be used only in
continuous lengths without splice or tap. Hard service flexible cords
No. 12 or larger may be repaired if spliced so that the splice retains
the insulation, outer sheath properties, and usage characteristics of
the cord being spliced.



*29 C.F.R. § 1910.305(g)(2)(iii):* Flexible cords shall be connected to
devices and fittings so that strain relief is provided which will
prevent pull from being directly transmitted to joints or terminal screws.



*29 C.F.R. § 1910.334(a)(2)(i):* Portable cord- and plug-connected
equipment and flexible cord sets (extension cords) shall be visually
inspected before use on any shift for external defects (such as loose
parts, deformed and missing pins, or damage to outer jacket or
insulation) and for evidence of possible internal damage (such as
pinched or crushed outer jacket). Cord- and plug-connected equipment and
flexible cord sets (extension cords) which remain connected once they
are put in place and are not exposed to damage need not be visually
inspected until they are relocated.



*29 C.F.R. § 1910.305(j)(1)(i):* Fixtures, lampholders, lamps, rosettes,
and receptacles may have no live parts normally exposed to employee
contact. However, rosettes and cleat-type lampholders and receptacles
located at least 8 feet above the floor may have exposed parts.



*29 C.F.R. § 1910.147(c)(1):* The employer shall establish a program
consisting of energy control procedures, employee training and periodic
inspections to ensure that before any employee performs any servicing or
maintenance on a machine or equipment where the unexpected energizing,
start up or release of stored energy could occur and cause injury, the
machine or equipment shall be isolated from the energy source, and
rendered inoperative.



*29 C.F.R. § 1910.212(a)(1):* One or more methods of machine guarding
shall be provided to protect the operator and other employees in the
machine area from hazards such as those created by point of operation,
ingoing nip points, rotating parts, flying chips and sparks. Examples of
guarding methods are-barrier guards, two-hand tripping devices,
electronic safety devices, etc.



*29 C.F.R. § 1910.219(d)(1):* Pulleys, any parts of which are seven (7)
feet or less from the floor or working platform, shall be guarded in
accordance with the standards specified in paragraphs (m) and (o) of
this section. Pulleys serving as balance wheels (e.g., punch presses) on
which the point of contact between belt and pulley is more than six feet
six inches (6 ft. 6 in.) from the floor or platform may be guarded with
a disk covering the spokes.



*29 C.F.R. § 1904.2(a):* Each employer shall, except as provided in
paragraph (b) of this section, (1) maintain in each establishment a log
and summary of all recordable occupational injuries and illnesses for
that establishment; and (2) enter each recordable injury and illness on
the log and summary as early as practicable but no later than 6 working
days after receiving information that a recordable injury or illness has
occurred. For this purpose form OSHA No. 200 or an equivalent which is
as readable and comprehensible to a person not familiar with it shall be
used. The log and summary shall be completed in the detail provided in
the form and instructions on form OSHA No. 200.



*29 C.F.R. § 1910.23(a)(8):* Every floor hole into which persons can
accidentally walk shall be guarded by either:

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

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



*29 C.F.R. § 1910.303(g)(1)(ii):* Working space required by this subpart
may not be used for storage. When normally enclosed live parts are
exposed for inspection or servicing, the working space, if in a
passageway or general open space, shall be suitably guarded.



*Appendix B*



*29 C.F.R. § 1910.120(q)(1):* An emergency response plan shall be
developed and implemented to handle anticipated emergencies prior to the
commencement of emergency response operations. The plan shall be in
writing and available for inspection and copying by employees, their
representatives and OSHA personnel. Employers who will evacuate their
employees from the danger area when an emergency occurs, and who do not
permit any of their employees to assist in handling the emergency, are
exempt from the requirements of this paragraph if they provide an
emergency action plan in accordance with § 1910.38(a) of this part.



*29 C.F.R. § 1910.132(d)(1):* The employer shall assess the workplace to
determine if hazards are present, or are likely to be present, which
necessitate the use of personal protective equipment (PPE). If such
hazards are present, the employer shall:

(i) Select, and have each affected employee use, the types of PPE that
will protect the affected employee from hazards identified in the hazard
assessment;

(ii) Communicate selection decisions to each affected employee; and

(iii) Select PPE that properly fits each affected employee.

Note: Non-mandatory Appendix B contains an example of procedures that
would comply with the requirement for a hazard assessment.



*29 C.F.R. § 1910.133(a)(1):* The employer shall ensure that each
affected employee uses appropriate eye or face protection when exposed
to eye or face hazards from flying particles, molten metal, liquid
chemicals, acids or caustic liquids, chemical gases or vapors, or
potentially injurious light radiation.



*29 C.F.R. § 1910.134(d)(2)(i):* Cylinders shall be tested and
maintained as prescribed in the Shipping Container Specification
Regulations of the Department of Transportation (49 CFR part 178).



*29 C.F.R. § 1910.134(e)(5):* For safe use of any respirator, it is
essential that the user be properly instructed in its selection, use,
and maintenance. Both supervisors and workers shall be so instructed by
competent persons. Training shall provide the men an opportunity to
handle the respirator, have it fitted properly, test its
face-piece-to-face seal, wear it in normal air for long familiarity
period, and, finally, to wear it in a test atmosphere.



*29 C.F.R. § 1910.134(f)(2)(ii):* Self-contained breathing apparatus
shall be inspected monthly. Air and oxygen cylinders shall be fully
charged according to the manufacturer's instructions. It shall be
determined that the regulator and warning devices function properly.



*29 C.F.R. § 1910.151(c):* Where the eyes or body of any person may be
exposed to injurious corrosive materials, suitable facilities for quick
drenching or flushing of the eyes and body shall be provided within the
work area for immediate emergency use.



*29 C.F.R. § 1910.95(c)(1):* The employer shall administer a continuing,
effective hearing conservation program, as described in paragraphs (c)
through (o) of this section, whenever employee noise exposures equal or
exceed an 8-hour time-weighted average sound level (TWA) of 85 decibels
measured on the A scale (slow response) or, equivalently, a dose of
fifty percent. For purposes of the hearing conservation program,
employee noise exposures shall be computed in accordance with appendix A
and Table G-16a, and without regard to any attenuation provided by the
use of personal protective equipment.



*29 C.F.R. § 1910.95(d)(1):* When information indicates that any
employee's exposure may equal or exceed an 8-hour time-weighted average
of 85 decibels, the employer shall develop and implement a monitoring
program.



*29 C.F.R. § 1910.95(g)(1):* The employer shall establish and maintain
an audiometric testing program as provided in this paragraph by making
audiometric testing available to all employees whose exposure equal or
exceed an 8-hour time-weighted average of 85 decibels.



*29 C.F.R. § 1910.95(i)(2):* Employers shall ensure that hearing
protectors are worn: (i) By an employee who is required by (b)(1) of
this section to wear personal protective equipment[.]



*29 C.F.R. § 1910.95(i)(3):* Employees shall be given the opportunity to
select their hearing protectors from a variety of suitable hearing
protectors provided by the employer.



*29 C.F.R. § 1910.95(k)(1):* The employer shall institute a training
program for all employees who are exposed to nosie at or above an 8-hour
time-weighted average of 85 decibels, and shall ensure employee
participation in such program.



*29 C.F.R. § 1910.1200(e)(1):* Employers shall develop, implement, and
maintain at each workplace, a written hazard communication program which
at least describes how the criteria specified in paragraphs (f), (g),
and (h) of this section for labels and other forms of warning, material
safety data sheets, and employee information and training will be met,
and which also includes the following:

(i) A list of the hazardous chemicals known to be present using an
identity that is referenced on the appropriate material safety data
sheet (the list may be compiled for the workplace as a whole or for
individual work areas); and,

(ii) The methods the employer will use to inform employees of the
hazards of non-routine tasks (for example, the cleaning of reactor
vessels), and the hazards associated with chemicals contained in
unlabeled pipes in their work areas.



*29 C.F.R. § 1910.1200(f)(5):* Except as provided in paragraphs (f)(6)
and (f)(7) of this section, the employer shall ensure that each
container of hazardous chemicals in the workplace is labeled, tagged or
marked with the following information:

(i) Identity of the hazardous chemical(s) contained therein; and,

(ii) Appropriate hazard warnings, or alternatively, words, pictures,
symbols, or combination thereof, which provide at least general
information regarding the hazards of the chemicals, and which, in
conjunction with the other information immediately available to
employees under the hazard communication program, will provide employees
with the specific information regarding the physical and health hazards
of the hazardous chemical.



*29 C.F.R. § 1910.1200(g)(8):* The employer shall maintain in the
workplace copies of the required material safety data sheets for each
hazardous chemical, and shall ensure that they are readily accessible
during each work shift to employees when they are in their work area(s).
(Electronic access, microfiche, and other alternatives to maintaining
paper copies of the material safety data sheets are permitted as long as
no barriers to immediate employee access in each workplace are created
by such options.)



*29 C.F.R. § 1910.1200(h): */Employee information and training./ (1)
Employers shall provide employees with effective information and
training on hazardous chemicals in their work area at the time of their
initial assignment, and whenever a new physical or health hazard the
employees have not previously been trained about is introduced into
their work area. Information and training may be designed to cover
categories of hazards (e.g., flammability, carcinogenicity) or specific
chemicals. Chemical-specific information must always be available
through labels and material safety data sheets.

(2) /Information. /Employees shall be informed of:

(i) The requirements of this section;

(ii) Any operations in their work area where hazardous chemicals are
present; and,

(iii) The location and availability of the written hazard communication
program, including the required list(s) of hazardous chemicals, and
material safety data sheets required by this section.

(3) /Training. /Employee training shall include at least:

(i) Methods and observations that may be used to detect the presence or
release of a hazardous chemical in the work area (such as monitoring
conducted by the employer, continuous monitoring devices, visual
appearance or odor of hazardous chemicals when being released, etc.);

(ii) The physical and health hazards of the chemicals in the work area;

(iii) The measures employees can take to protect themselves from these
hazards, including specific procedures the employer has implemented to
protect employees from exposure to hazardous chemicals, such as
appropriate work practices, emergency procedures, and personal
protective equipment to be used; and,

(iv) The details of the hazard communication program developed by the
employer, including an explanation of the labeling system and the
material safety data sheet, and how employees can obtain and use the
appropriate hazard information.



*29 C.F.R. § 1910.95(l)(1):* The employer shall make available to
affected employees or their representatives copies of this standard and
shall also post a copy in the workplace.



*29 C.F.R. § 1910.141(g)(2):* No employee shall be allowed to consume
food or beverages in a toilet room nor in any area exposed to a toxic
material.

1. Respondent suggests that because employees were trained to unplug the
machines after power interruption they were not exposed to the hazard
and that the hazard was thus eliminated or materially reduced. (Tr.
186.) A former employee's testimony, however, contradicts Respondent's
assertion. This employee testified that most of the workers did not
unplug machines and that they were never told to unplug the machines.
(Tr. 197, 211-12.)

2. Respondent argues that the Secretary improperly cited it for a
general duty violation when a specific standard, 29 C.F.R. § 1910.213,
is applicable. Respondent presented no evidence in this regard and made
no showing that the woodworking machine standard applies to the cited
machinery. Assuming /arguendo/ that § 1910.213 does apply, the same
facts used to show that Respondent violated the general duty clause
would also support a finding that Respondent violated the woodworking
standard, and, under either theory, a violation existed. /See also/
Safety Citation 1, Item 13a, /infra/, in which the analysis under §
1910.213 applies equally to this violation.

3. I find that Respondent was properly cited under the general duty
clause, instead of 29 C.F.R. § 1910.178(m)(12), because the forklift was
not equipped with elevatable controls. Even if 29 C.F.R. §
1910.178(m)(12) applied in this case, I would still find a violation,
because Respondent failed to satisfy any of the three requirements of
the standard.

4. /See /Appendix A for text of cited standards.

5. /See/ discussion relating to Safety Citation 1, Item 11, /infra/.

6. The Secretary attempted to meet her burden by showing that Respondent
failed to post appropriate warning signs. (Tr. 277.) The lack of signs
does not establish that an evaluation was not conducted. Rather, the
absence of signs would appear to show a failure to inform employees of
the existence, location and danger of permit spaces as required by 29
C.F.R. § 1910.146(c)(2).

7. The CO's testimony that he inspected the storage of boxes at the
request of an employee who was concerned about boxes that had fallen
down supports this finding. (Tr. 278, 482-84.)

8. Although photographs CX-58 and CX-59 were originally taken to show
that the grounding pin was removed, these photographs portray a block of
wood that had apparently recently been cut across the grain on the saw
table near the blade. There is no testimony that this block of wood was
cut by the cited saw. If, however, this block of wood was cut using the
cited saw (which is possible because the photographs show evidence of
wood shavings), the crosscut table saw standard would apply, not the
cited ripsaw standard.

9. /See/ Appendix A for text of cited standards.

10. The company president's pellucid testimony that former employees had
taken the program was simply not credible.

11. Even if a LOTO program was in place, Respondent did not train
employees as required. Two former employees, one of whom had been
injured on a machine, testified that they had never received any LOTO
training, even after the 1997 OSHA inspection. (Tr. 90, 93, 193-94, 198,
206-07.) Clearly, a LOTO program serves no purpose if employees are not
trained in it.

12. Respondent also argues that because the guards installed by the
manufacturer were on the saws, a willful violation cannot be supported.
I disagree, particularly since OSHA told Respondent in 1995 that the
parts of the guards that were on the saws did not meet the standard.

13. /See/ Appendix A for text of cited standards.

14. /See/ Appendix A for text of cited standards.

15. Respondent offered several explanations for its failure to have the
required OSHA 200 log. (Tr. 128-29, 142-43, 437-38, 596-98.) However,
none of these excuses Respondent's failure to have the OSHA log or
equivalent at the time of the inspection.

16. /See /Appendix B for text of cited standards.

17. /See/ Appendix B for text of cited standards.

18. Respondent maintains that this violation should be reclassified as
other-than-serious. I disagree, and, as set out /infra/, and find it
willful.

19. Respondent's argument that the exemptions to the standard apply is
rejected. The company did not use an alternative method to identify, tag
and mark hazardous chemicals, and the containers used were not portable
ones into which hazardous chemicals were transferred from labeled
containers for the immediate use of the employees who transferred the
chemicals. (Tr. 704-07, 736-37.) /See also/ 29 C.F.R. 1910.1200(f)(6)
and (7).

20. /See/ Appendix B for text of cited standards.