___________________________________
SECRETARY OF LABOR,                :
                                   :
          Complainant,             :
                                   :
          v.                       :       OSHRC Docket No.  01-1286  
                                   :
PARISI CONSTRUCTION, INC.,         :
          Respondent.              :
___________________________________:




APPEARANCES:				






			Susan J. Witz, Esq., Office of the Solicitor, U.S. Department of  Labor,
			   Chicago, Illinois

			Hap Pigsley, Safety Consultant, Platt Safety Services, Franklin, Wisconsin



Before: Administrative Law Judge Sidney J. Goldstein



DECISION AND ORDER



After a compliance officer with the Occupational Safety and Health
Administration inspected a worksite of the Respondent, that agency
issued the company a citation for the alleged violations of a number of
safety regulations adopted under the Occupational Safety and Health Act
of 1970. The Respondent disagreed with the citation and filed a notice
of contest. after a complaint and answer were filed with this
commission, a hearing was held in Milwaukee, Wisconsin.

The citation contained five items. Item 1 related to employees on road
construction work without high visibility vests. The other four items,
including sub-parts, concerned overexposure to silica dust, failure to
implement engineering controls, failure to train employees regarding
respirable crystalline silica dust, failure to evaluate employee
exposure to the silica dust, failure to train employees on the
capabilities and limitations of the N 95 respirator, and the
unavailability of a written respiratory protection program. The
Secretary proposed a penalty of $3,000.00 for item 1 and $1,500.00 for
each of the other four items.

At the hearing the compliance officer reviewed the various aspects of
the citation, but there was no problem with respect to the violations of
the regulations. Indeed, in its answer the Respondent wrote that "There
is no question as to the findings of the compliance officer . . . ."

The record discloses that although Respondent's employees did not wear
high visibility vests for one hour, they were protected by barrels on
one side of the work. The Respondent also understood that a
subcontractor was responsible for traffic control. There were only two
employees intermittently exposed to silica dust, and they also had some
face protection. The Respondent also assumed that the four unions it
worked with furnished safety instructions to its members. further, the
Respondent contracted with a safety organization to devise a complete
safety program with an anticipated expense of over $50,000.00.

As previously noted, the Respondent agreed with the citation. In its
amended answer, however, the company disputed the proposed penalties. As
a result the sole issue in this proceeding is the appropriateness of the
Secretary's recommended penalties.

On this subject, Section 17(j) of the Act provides:

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



After a review of the record, I believe that the penalties proposed by
the Secretary should be reduced to reflect the facts adduced at the
hearing. Accordingly, the penalties are modified as follows:

Item 1 $1,000.00

Item 2a & 2b 500.00

Item 3 500.00

Item 4a & 4b 500.00

Item 5a & 5b 500.00

In its brief, the Respondent writes "We are asking that OSHA help our
employees by allowing us to put the money for penalties toward a safe
workplace for our employees, instead of putting it into the general
funds of the United States Government."

In this connection, Section 17(1) of the law provides:

(1) Civil penalties owed under this Act shall be paid to the Secretary
for deposit into the treasure of the United States and shall accrue to
the United States and may be recovered in a civil action in the name of
the United States brought in the United States district court for the
district where the violation is alleged to have occurred or where the
employer has its principal office.



Without authority to waive this section of the Act, I am unable to grant
the Respondent's request.

Summarized, (1) All items of the citation are affirmed; (2) The
penalties are modified as heretofore shown; and (3) The Respondent's
request with respect to payment of penalties is DENIED.



/s/

Sidney J. Goldstein

Judge, OSHRC



Dated: June 17, 2002