“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13973 BIG ?6? DRILLING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 1, 1977DECISIONBefore: BARNAKO, Chairmanand CLEARY, Commissioner.CLEARY, Commissioner:??????????? This case is before the Commission by my order granting complainant?spetition for discretionary review pursuant to section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq. [hereinafter ?the Act?].The petition raised the following issues:??????????? (1) Whether the Administrative Law Judge erred inconcluding that the citations in this case are properly before the Commissionfor disposition???????????? (2) Whether the case should be remanded for furtherhearing for the purpose of receiving evidence concerning the allegedviolations?[1]??????????? Having considered the parties? submissions and reviewedthe entire record, we conclude that the citations are properly before theCommission and remand the case for further hearing.??????????? Respondent, Big ?6? Drilling Company, was issued twocitations following a June 16, 1975, inspection of its oil and gas welldrilling rig in Silsbee, Texas. The first citation alleged eight nonseriousviolations of section 5(a)(2) of the Act. The second citation alleged a seriousviolation of section 5(a)(1) of the Act. Penalties totaling $805 were proposedfor three of the nonserious violations and the serious violation.??????????? On July 1, 1975, respondent filed a pro se notice ofcontest stating in pertinent part:. . . We havetaken immediate steps to have all of these alleged violationcorrected to the standards requested by your investigator. We believe we haveeverything in order.\u00a0??????????? We do, however, feel that yourproposed penalties of $805 are excessive, and we would like to present our caseat a hearing in an attempt to have this violationpenalty waived. Our company is taking great pride in providing safe workingconditions, and each month we spend several hundred dollars for safety awardsto our employees . . ..???????????? The Secretary?s complaint was duly filed. It explicitlystated that the violations were not in issue, and that ?the violations havebecome a final order of the Commission by operation of section 10(a) of theAct.? The complaint also included a ?Notice to Respondent? which informed therespondent, ? . . . you must plead or otherwise answerthis complaint, either denying or admitting the allegations, within 15 days ofyour receipt of this complaint. Failure to do so may result in dismissal ofyour notice of contest.???????????? Respondent timely filed a pro se ?answer? consisting of aone paragraph letter stating in pertinent part as follows:This letter is toask for a hearing so that we may express our objections in connection with theinspection conducted June 16, 1975 and the resulting penalties. We provide asafe place for our employees to work and feel the penalty is not appropriate???????????? At the hearing, complainant argued that only thepenalties were at issue, the citations having become final by operation of law.Respondent was represented by counsel at the hearing. Respondent?s representativedisputed the finality of the citations, arguing that both the notice of contestand answer had been written pro se and should therefore not be narrowlyconstrued so as to preclude respondent from contestingthe merits of the citations. Although at the time of the hearing FloridaEast Coast Properties Inc., 74 OSAHRC 5\/C7, 1 BNA OSHC 1532, 1973 74 CCHOSHD para. 17,272 (No. 2354, 1974) was the controllingprecedent, the Administrative Law Judge never specifically ruled on the issueof the finality of the citations. The Judge remarked as follows:Well, of course,in coming to the penalty question, there has to be aviolation before any penalty can be assessed, so it has to be gone into,anyway.???????????? Before Judge Brenton filed his decision in this case, wehad decided Turnbull Millwork Co., 75 OSAHRC 16\/A13, 3 BNA OSHC 1781,1975 76 CCH OSHD para. 20,221 (No. 7413, 1975), inwhich a divided Commission held that notices of contest that are limited to thepenalty would be construed to include a contest of the citation if a respondentindicates in a later pleading that it was its intent to also contest thecitation. Applying Turnbull to the instant case, the Judge, in hisdecision, referred to the language of respondent?s pro se answer requesting ahearing in order to express objection to the ?inspection? and ?resultingpenalties.? He regarded this as an expression of respondent?s intent to contestthe citation and found the citations to be before him for disposition. TheJudge proceeded to affirm four of the nonserious violations and to vacate theremaining violations on the basis of the existingrecord.??????????? In his petition for review, complainant argues that Turnbullis not dispositive of the instant case because respondent?s answer did not denycomplainant?s allegation of the citation?s finality. Complainant maintains thatthe citations had become final by operation of law. Alternatively, complainantcontends that, if the citations are properly before the Commission, the caseshould be remanded for further hearing because the Secretary was prejudiced inpresenting his case by the Judge?s failure to rule on the scope of the noticeof contest. Complainant asserts that the Judge?s failure to rule on the scopeof the issues before him at hearing led complainant to limit his proof toevidence relevant to the proposed penalties.??????????? On review, respondent argues that it had not intended toadmit the citation, but instead contested the citation when it asked for ahearing to consider ?our case? and a chance to ?express our objections inconnection with the inspection . . . and resulting penalties.? Respondent alsoasserts that there should be no remand because complainant had fair notice ofrespondent?s intent to contest the citation by its notice of contest, answer, andoral representation at hearing, but instead chose to limit his proof to the?penalties? issue.??????????? We affirm the Judge?s decision that the citations areproperly before us for disposition. This case is controlled by TurnbullMillwork Co., supra. Here, respondent elaborated upon its notice of contestin its answer by asking for a hearing ?to express our objections in connectionwith the inspection conducted June 16, 1974 and the resulting penalties.? Wefind that request to be an indication of respondent?s original intent tocontest the citations.??????????? We rule that complainant was prejudiced by the Judge?sfailure to rule on the scope of the notice of contest at hearing, therebyresulting in complainant adducing evidence only as to the proposed penalty.Accordingly, we remand the case for further hearing so that additional evidencemay be adduced concerning the alleged violations vacated by Judge Brenton. Onremand, complainant shall be allowed to amend the citation for violation ofsection 5(a)(1) of the Act to allege a violation of the rule issued pursuant tothe variance procedure of section 6(d) of the Act.??????????? It is ORDERED that the Judge?s decision vacating thecitations he reversed and the case remanded forproceedings consistent with this decision.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: AUG 1, 1977\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13973 BIG ?6? DRILLING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 10, 1976DECISIONAND ORDERAPPEARANCES:Allen Prince,Esq., of Dallas, Texas, for the Secretary of Labor\u00a0\u00a0Elmer H. Jheis, Esq., of Houston, Texas, for the Respondent\u00a0Brenton, JudgeI??????????? This cause of action arose pursuant to the provisions ofthe Occupational Safety and Health Act of 1970 (29 USC 651).??????????? On June 16, 1975, complainant, as authorized by ? 8(a)(1)and (2) of this, Act, inspected one of respondent?s drilling rigs which was inoperation on location near Sillsbee, Texas.??????????? On June 20, 1975, in accordance with ? 9(a) of this Act,complainant issued two citations to respondent alleging certain violations ofthe Act. On the same date, pursuant to ? 10(a) of this Act, complainant issuedto respondent a notification of proposed penalty for the alleged violations inthe amount of $805.00. Whereupon, on July 2, 1975, complainant receivedrespondent?s pro se notice of contest which was dated July 1, 1975. This noticebriefly discussed the alleged violations, however, it purported to contest onlythe proposed penalty.??????????? Complainant?s complaint was docketed on July 24, 1975,after which respondent on July 28, 1975, by letter answered, pro se, andtherein and thereby requested a hearing so it could express its objections tothe inspection and the resulting penalties.??????????? Thereafter this cause came on for hearing in Houston,Texas, on October 22, 1975, at which time respondent appeared with counsel.??????????? The issues are: (1) Jurisdiction. (2) Propriety toadjudicate the alleged violations. (3) If adjudication is proper did respondentviolate the Act in any respect as alleged. (4) What amount, if any, should beassessed as an appropriate penalty for the violations, if any there be.II??????????? Jurisdiction to hear and decide a case may be raised atany stage of the proceedings, even after judgment.??????????? This issue was presented to this tribunal in Secretaryv. Ted Breihan, d\/b\/a Ted BreihanElectric Co., OSAHRC Docket No. 12459 under the same or similar facts andcircumstances and is dispositive of this issue here. Inasmuch as Breihan, supra, may not have become a finalorder of the Review Commission at this writing the discussion and holding thereis repeated here in this to wit:The ReviewCommission, by electing not to review Secretary v. J. A. Walder,Inc., 2 OSAHRC 881, (March 14, 1973), has long ago settled thejurisdictional issue presented here. This case stands for the proposition thatthe Act is applicable to each and every business thathas employees. This conclusion is based upon Congressional constitutionalauthority to enact the Act under clause 18 of Article I, par. eight of theUnited States Constitution which confers upon Congress the power to make alllaws necessary and proper for carrying into execution its power to regulateinterstate commerce. Thus, it has the power to regulate intrastate activitieswhen necessary for protection of interstate commerce. Congress determined by ?2 of the Act that injuries and illnesses arising out of the work situationimposed a substantial burden upon interstate commerce. [Also see Heart ofAtlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964); U.S. v. Darby, 312U.S. 100 (1942); Lipinski v. U.S. 251 Fed 2nd 53 (1958)]???????????? Where, as here, an activity falls within a class ofactivities and this class is within the reach of congressional plenary powerthen the fact that respondent?s activity may have been solely in intrastatecommerce is not a bar to jurisdiction.??????????? Moreover, fact that respondent purchased and used goodsand equipment that were in interstate commerce prior to its acquisition affectscommerce within the meaning of ? 3(3) of the Act.??????????? Therefore, respondent is an employer within the meaningof ? 3 (5) of the Act.? Thus, the sameconclusion reached in Breihan should be and isadopted in the instant case.III??????????? The citations in this case are properly before theCommission for disposition even though the notice of contest on its face islimited to the penalty.??????????? As recently as December 15, 1975, the Commission inSecretary v. Turnbull, d\/b\/a Turnbull Millwork Co., OSAHRC Docket No. 7413,departed from its rule in Secretary v. Florida East Coast Properties,Inc. 6 OSAHRC 404 (1974) which is that where a notice of contest is clearlylimited solely to the penalties, the citation itself becomes a final order ofthe Commission under ? 10(a) of the Act. The rule announced in Turnbull,supra, is that a notice of contest which is limited only to the penaltywill also be construed to include a contest of the citation, if a respondentindicates at a later time that it was his actual andtrue intent to also include a contest of the citation.??????????? In the instant case it appears reasonable to concludethat the language used by respondent in its pro se answer of July 28, 1975,which is:This letter is toask for a hearing so that we may express our objections in connection with theinspection conducted June 16, 1975, and the resulting penalties.\u00a0expresses its actual andtrue intent to contest the citations.IV??????????? Having determined that the Review Commission hasjurisdiction to hear and decide this case and that respondent made its case forcontest of the citations the charges as alleged and the duties proscribed bythe Act hereby are, delineated.??????????? Citation 1 charges respondent with eight non-seriousviolations of ? 5(a)(2) of the Act which are described by complainant asfollows:Item 1. 29 CFR1910.132(a) The employer failed to provide protective equipment forextremities, require its use and maintain same in a sanitary and reliablecondition, where it was necessary by reason of chemical hazards capable of causinginjury or impairment in the function of any part of the body throughabsorption, inhalation or physical contact, mixing of dry caustic soda and waterwithout impermeable gloves.?Item 2. 29 CFR1910.219(e)(3)(i) Vertical and inclined belts were notproperly guarded; i.e., the belt guard on the Gardner Denver Compressor (SerialNo. 633711) located in the generator house.?Item 3. 29 CFR1926.102(a)(1) Failure to provide eye and face protection equipment whenmachines or operations present potential eye or face injury from physical,chemical, or radiation agents.?Item 4. 29 CFR1926.150(a)(3) All firefighting equipment provided by the employer was notconspicuously located; i.e., should be near drillers station on rigfloor?should be near rig motors?should be near diesel tank.?Item 5. 29 CFR1926.150(a)(4) All firefighting equipment was not periodically inspected andmaintained in operating condition (nor was defective equipment immediatelyreplaced); i.e., failure to periodically inspect and maintain in operatingcondition all firefighting equipment and immediately replace defectiveequipment.?Item 6. 29 CFR1926.152(d)(2) A portable fire extinguisher having a rating of 20B units ormore was not provided between 25 and 75 feet from flammable liquid storageareas at the following locations: i.e., failure to provide at least oneportable fire extinguisher having a rating of not less than 20?B units, locatednot less than 25 feet, nor more than 75-feet, from and flammable liquid storagearea located outside.?Item 7. 29 CFR1926.500(d)(1) Failure to guard by a standard railing, or the equivalent, onall open sides except where there is entrance to a ramp, stairway or fixedladder the open sided rig floor 6 feet or more above adjacent floor or groundlevel.?Item 8. 29 CFR1926.500(d)(2) The runways 4 feet or more above floor or ground level were notguarded by a standard railing or the equivalent.?The standards alleged to have been violated by thiscitation provide as follows:Item 1. Section1910.132?General Requirements(a) Application.Protectiveequipment, including personal protective equipment for eyes, face, head, andextremities, protective clothing, respiratory devices, and protective shieldsand barriers, shall be provided, used, and maintained in a sanitary andreliable condition wherever it is necessary by reason of hazards of processesor environment, chemical hazards, radiological hazards, or mechanical irritantsencountered in a manner capable of causing injury or impairment in the functionof any part of the body through absorption, inhalation or physical contact.\u00a0Item 2. Section1910.218?Mechanical Power-Transmission Apparatus?(e) Belt, rope, and chain drives.(3) Vertical andinclined belts.(i) Vertical and inclined belts shall be enclosed by a guardconforming to standards in paragraphs (m) and (o) of this section.\u00a0Item 3. Section1926.102?Eye and Face Protection(a) General(1) Employeesshall be provided with eye and face protection equipment when machines or operationspresent potential eye or face injury from physical, chemical, or radiationagents.\u00a0Item 4. Section1926.150?Fire Protection(a) Generalrequirements(3) Allfirefighting equipment, provided by the employer, by the employer, shall beconspicuously located.\u00a0Item 5. Section1926.150?Fire Protection?(a) General requirements(4) Allfirefighting equipment shall be periodically inspected and maintained inoperating condition. Defective equipment shall be immediately replaced.\u00a0Item 6. Section1926.152?Flammable and Combustible Liquids(d) Fire controlfor flammable or combustible liquid storage(2) At least oneportable fire extinguisher having a rating of not less than 20?B units shall belocated not less than 25 feet, nor more than 75 feet, from any flammable liquidstorage area located outside.\u00a0Item 7. Section1926.500?Cranes and Derricks(d) Guarding ofopen-sided floors, platforms, and runways(1) Every opensided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(i) of thissection, on all open sides, except where there is entrance to a ramp, stairway,or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons canpass, or there is moving machinery, or there is equipment with which fallingmaterials could create a hazard.?Item 8. Section1926.500?Cranes and Derricks(d) Guarding ofopen-sided floors, platforms, and runways(2) Runways shallbe guarded by a standard railing, or the equivalent, as specified in paragraph(f) of this section, on all open sides, 4 feet or more above floor or groundlevel. Wherever tools, machine parts, or materials are likely to be used on therunway, a toeboard shall also be provided on eachexposed side.???????????? Theproposed penalties for these violations are $55.00 for item 3, $70.00 for item5, $30.00 for item 8, and zero for each of the remainder.??????????? Citation2 charges respondent with a serious violation of ? 5(a)(1) of the Act which isdescribed by complainant as follows:Item 1. ? 5(a)(1)of the Occupational Safety and Health Act of 1970.The employerfailed to provide a place of employment which was free from a recognized hazardthat was likely to cause death or serious physical harm, in that a safetyclimbing device was not installed on the ladder or derrick to protect the derrickmanfrom the hazard of a fall while going to and from his work station on themonkey board.\u00a0? 5(a)(1) of the Act which is alleged to have beenviolated by citation 2 provides as follows:Item 1. ?? 5(a) Eachemployer?(1) shall furnishto each of his employees employment and a place ofemployment which are free from recognized hazards that are causing or are likelyto cause death or serious physical harm to his employees:????????????? Theproposed penalty for this alleged violation of this general duty clause is$650.00.V??????????? Thenon-serious charges will be discussed in sequence with respect to the order inwhich they appear in citation 1.??????????? At the hearing complainant was given every opportunity bythis tribunal, respondent?s vice-president, and respondent?s counsel, Mr. Theis, to present evidence with respect to the merits ofthe citations. Complainant insisted that the penalty was the sole issue to beconsidered nevertheless he did elicit evidence upon the merits of the citationsexcept with respect to item 2 of citation 1.??????????? In complainant?s attempt to justify the $55.00 proposedpenalty for item 3 of citation 1 he included the alleged violation at item 1because allegedly each had to do with exposure to a caustic material as itwould be mixed. There is no evidence that he saw any employee so exposed onthis job site. In fact there is no evidence that therewas caustic or any other material on this location that when used would requirehand and face protection. The most the evidence shows, is that upon inquiry bythe inspector for complainant he was apparently told by someone, unidentified,that gloves [rubberized] were not provided. Moreover, even if a violation hadbeen shown of either standard there is no evidence upon which to evaluate thegravity thereof if any there was.??????????? Complainant simply failed to make a case for violation of29 CFR 1910.132(a) or 29 CFR 1926.102(a)(1). His evidence for a penalty here,had there been a violation, was totally inadequate.??????????? Even though complainant did not allude to the allegedviolation of item 2 of citation 1, complainant was given unlimited opportunityto bring it out by respondent requesting the inspector to relate, in detail andin sequence, his procedures and findings during the entire course of hisinspection of the drilling rig. At no time did the inspector mention anyencounter with a compressor, belts, or guards although according to histestimony he spent at least 45 minutes in and about the generator house wherethese items were located according to the allegation of the citation.??????????? Complainant ignored respondent?s letter of July 28, 1975,and its repeated intent to make issue on the citations at the hearing. Nevertheless due process of law was afforded complainant inthat he had an opportunity to be heard upon this alleged violation but failedto avail himself thereof. Therefore, there being no proof of the charge under29 CFR 1910.219(a)(1) it should be vacated.??????????? Upon consideration of items 4, 5, and 6 of citation 1 theevidence shows that respondent?s fire extinguishers were stored in the toolhouse except one which had been allowed to lie outside and adjacent to thegenerator house. The evidence further shows that this latter part. ??extinguisher was in a discharged condition and had not been recharged. Thisextinguisher had been used to consume a fire, however, whether respondent hadbeen afforded a reasonable opportunity to make it operable thereafter isunknown, thus the better inference is that it did. Therefore, respondent shouldbe found in violation of 29 CFR 1926.150(a)(4).??????????? Complainant predicates his case for violation of 29 CFR1926.150(a)(3) upon the proposition that respondent?s firefighting equipmentwas not accessible on the rig floor, to the rig motors, and to the dieseltanks. The command of this standard is that they shall be conspicuously locatedwhich means located so they may be easily seen. Accessible is not synonymouswith conspicuous. The former means easily reached whereas the latter meanseasily visible. The fact that these extinguishers may not have been easilyreached from these locations does not prove that they were also not readilyvisible from their location. They were approachable, thus access to them wasmaintained. Accordingly under the evidence hereneither 29 CFR 1926.150(a)(3) nor 29 CFR 1926.150(a)(2) was violated byrespondent.??????????? Respondent did maintain diesel fuel in tanks on or aboutthe rig. Because of the fire fighting equipment beinghoused in the tool house and the fact that respondent, during the time of theinspection, located the extinguishers in accordance with the inspector?swishes, it may reasonably be inferred therefrom that none had been located lessthan 25 feet, nor more than 75 feet, from such flammable liquid. This then is aviolation of 29 CFR 1926.152(d)(2).??????????? The proposed penalty determination by complainant waspredicated upon these three alleged fire hazards although the notice thereofplaces the penalty for violation of 29 CFR 1926.150(a)(4). In any eventcomplainant was not impressed that an injury to an employee by fire was likelyto occur. Rather he would expect that, if there was any inability to fight afire, the fire area would be vacated. In this situation the degree ofprobability of an injury by fire because this one extinguisher was inoperableis in all common probability non-existent. Likewisewith respect to the violation of 29 CFR 1926.150(d)(2). The $70.00 proposedpenalty for this item of the citation is inappropriate and should be vacated.??????????? The rig floor was guarded with a standard railing,however, at the time of the inspection one end had been removed to permitmaterials to be transported to the floor above, andhad not been immediately replaced. Exposure from this opensidedfloor was a fall of 10 or 12 feet. ?Arunway was not guarded at one end which could expose an employee to a fall, butthe record is void as to the height of this runway above floor or ground level.There is a dearth of evidence concerning these alleged fall hazards,nevertheless it is apparent that the parties did not consider the height ofthis runway from floor or ground as an issue and therefore it may properly beinferred that it was four or more feet. Moreover, there is also a dearth ofevidence as to the exposure to either of these hazards. The only evidencepertaining to rig floor exposure is the inspector?s observation of one employeeon the rig ladder thus it may be inferred that this employee had to mount therig floor to ascend this ladder and could have been exposed. Inasmuch as therunway was there it may properly be inferred that it was used for some purpose,thus since the end had never been guarded it is reasonable to conclude that afall would be possible.??????????? Although the evidence on these two falling allegedviolations is extremely skimpy there is just enough to tip the scales by apreponderance to make a case for violation in each instance. It is otherwise,however, with regard to the $30.00 proposed penaltyfor violation of 29 CFR 1926.500(d)(2). Complainant?s testimony on this pointwas given by an experienced witness with skill and knowledge concerning theoperations on and about drilling rigs. He said, ?a fall in either of theselocations is unlikely.? (Tr. 48). Therefore, the gravity of the violation isnil which makes any amount inappropriate as a penalty for the violation.VI??????????? Citation 2 is an alleged general duty clause violation ofthe Act. Complainant based his grounds for violation thereof on the propositionthat because respondent had been granted a variance from complying with theregulations at 29 CFR 1910.27(b)(1)(i), (ii), (iii),and (c)(4) it was required by ? 5(a)(1) of the Act to require its employees touse ladder safety devices as mentioned in 29 CFR 1910.27(d)(5). Complainant didnot at any time specifically allude to 29 CFR 1910.27(d)(5). He was bent onbringing out the variance which he had granted to members of InternationalAssociation of Drilling Contractors which became effective on October 17, 1973,as published in the Federal Register, Vol 38, No. 201. His stated purpose forintroducing this evidence was to show that respondent, being a member of theAssociation, had knowledge thereof. Further, because the variance requiredladder safety devices on derrick ladders respondent could not avoid havingknowledge that each derrick ladder, exempt from the provisions of 29 CFR1910.27(b)(1)(i), (ii), (iii), and (c)(4), was arecognized hazard in the drilling industry when used without the installationof a ladder safety device.??????????? Although counsel for respondent was brought into thiscase a few days prior to the hearing and thereby was forced to grope along hisway in defense it is apparent that, in effect, on behalf of respondent, hedefended against the allegations of a ? 5(a)(1) of the Act violation on theproposition that a variance rule applied. Whereas complainant, although heinsisted that the only matters at issue were the penalty considerations, maintainedwithout any deviation that the general duty clause applies. At no time did headvocate the applicability of a standard, rule, or regulation upon which hisproposed penalty would properly apply for the violation alleged.??????????? The variance rule granted respondent became anOccupational Safety and Health Standard on October 17, 1973, in accordance withthe definition of this kind of a Standard, under ? (3)(8) of the Act. It was infull force and effect on June 16, 1975. Therefore, inasmuch as complainant?sevidence shows that the derrick ladder in question was one of the kind contemplated by the variance rule, as promulgated under? 6(d) of the Act, and further that an employee was permitted to ascend thisladder without a ladder safety device attached, this conduct of respondent is a? 5(a)(2) violation of the Act.??????????? Under the facts and circumstances here the parties didnot try the issue of a violation of this standard nor the issue of the proposedpenalty as applicable to this standard by either express or implied consent.??????????? The Review Commission has held that Congress did notintend that the general duty clause be used when a standard applies. Further,when this is the case then, unless Rule 15(b) of the Federal Rules of CivilProcedure may be invoked, the citation is invalid and both it and the proposedpenalty should be vacated. Secretary v. Godwin BeversCo., Inc., 14 OSAHRC 723.FINDINGSOF FACT??????????? 1. Respondent?s intrastate activities affect interstatecommerce.??????????? 2. Respondent?s pleadings, written and oral, after filingits notice of contest to the proposed penalty expresses its intent to contestthe citations.??????????? 3. There was no evidence that respondent mixed drycaustic soda or any caustic material at or upon this job site.??????????? 4. Respondent?s fire fighting equipmentwas approachable within the tool house. There was no evidence that it could notbe easily seen within that house.??????????? 5. One fire extinguisher was inoperable.??????????? 6. A portion of the guard rail on the rig floor had beenremoved and not immediately replaced.??????????? 7. One end of a runway was not guarded by a standardrailing or equivalent.??????????? 8. Complainant maintained throughout the entireproceedings the applicability of ?\u00a05(a)(1) of the Act to citation 2alleging a serious violation for failure to provide ladder safety device on thefixed derrick ladder.??????????? 9. The effect of respondent?s defense to the allegedgeneral duty clause violation was to assert the applicability of a violation ofthe variance granted by the Secretary.??????????? 10. The degree of probability of any injury occurringbecause of any existing violation was miniscule.CONCLUSIONSOF LAW??????????? 1. The Review Commission has jurisdiction to hear anddecide this case.??????????? 2. Where respondent?s pleadings, subsequent to his noticeof contest which is limited to the penalty, shows its intent to contest thecitations the initial notice will be construed to include a contest of thecitations.??????????? 3. Respondent did not violate 29 CFR 1910.132(a) nor 29CFR 1926.102(a)(1).??????????? 4. Failure by complainant to prove up a case forviolation of 29 CFR 1910.219(e)(3)(i) subjects sameto being vacated.??????????? 5. The proof failed to show a violation of 29 CFR1926.150(a)(3).??????????? 6. Respondent violated 29 CFR 1926.150(a)(4), 29 CFR1926.152(d)(2), 29 CFR 1926.500(d)(1), and 29 CFR 1926.500(d)(2).??????????? 7. The variance granted respondent by the Secretary onOctober 17, 1973, was, by virtue of the provisions of ? 3 (8) of the Act, anoccupational safety and health standard in full force and effect on June 16,1975.??????????? 8. A charge for violation of the general duty clause ofthe Act will not lie where there exists a standard which is applicable.??????????? 9. An amendment to the pleadings in order to make anissue conform to the evidence will not lie where the parties have notdemonstrated on the record that such issue was tried by consent.ORDERWherefore it is Orderedthat:??????????? Items 1, 2, 3, and 4 of citation 1 be and each hereby is,vacated.??????????? Items 5, 6, 7, and 8 of citation 1 be and each hereby is,affirmed.??????????? Citation 2 be and it hereby is,vacated.??????????? The notification of proposed penalty to be assessed inthe amount of $805.00 be and it hereby is, vacated.?J. Paul BrentonJudgeDate: February 10, 1976[1]Former Commissioner Moran issued a direction for review that did not specifyany issues.”