“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15401 EDWARD B. FITZPATRICK, JR., ASSOCIATES, INC., AND SCHIAVONE CONSTRUCTION CO., INC., A JOINT VENTURE, \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0October 13, 1977DECISIONBefore: CLEARY, Chairman; and BARNAKO, Commissioner.??????????? Thiscase is before the Commission pursuant to a suasponte order for review.[1] The parties have filed noobjections to the Administrative Law Judge?s decision, either by way ofpetitions for discretionary review or response to the order for review. Accordingly,there has been no appeal to the Commission, and no party has otherwiseexpressed dissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?s decision in the absence of compelling public interest. Abbott-Sommer,Inc., 3 BNA OSHC 2032, 1975 76 CCH OSHD para.20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975 76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone RoofingCo., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order forreview in this case describes no compelling public interest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975 76 CCH OSHD para. 20,387 (No. 4090, 1976).It is ORDERED that the decision be affirmed.DATED: OCT 13, 1977FOR THE COMMISSION?William S. McLaughlinExecutive Secretary(SEAL)\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 15401, 15096 EDWARD B. FITZPATRICK, JR., ASSOCIATES, INC., AND SCHIAVONE CONSTRUCTION CO., INC., A JOINT VENTURE, \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 May 17, 1976Appearances:Francis V. LaRuffa,Regional Solicitor United States Department of Labor 1515 Broadway, Room 3555New York, New York 10036 Attorney for complainant by Rudolph E. DeMeo, Esq., of Counsel\u00a0Morris J. Levin, Esq. 1600 Patterson PlankRoad Secaucus, New Jersey 07094 Attorney for respondent?DECISION AND ORDERDitore,J.PRELIMINARY STATEMENT??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. ? 651, et seq., hereinafter called the Act), contestingcitations for serious, nonserious and failure to abate violations ofoccupational safety and health standards, issued by complainant againstrespondent under the authority vested in the complainant by sections 9(a) and10(b) of the Act (29 U.S.C. ?? 658(a), 659(b)).??????????? Thecitations for serious and nonserious violations (Docket No. 15096) allege thatas a result of an inspection on August 26 and 27, 1975, of a workplace locatedat Battery Park City (between Liberty and Reed Streets) New York, New York, anddescribed as ?Bulkhead and Land Fill Operations? the respondent violatedsection 5(a)(2) of the Act (29 U.S.C. ? 654(a)(2)) by failing to comply withoccupational safety and health standards promulgated by the Secretary bypublication in the Federal Register on June 24, 1974 (39 F.R. 22801) andcodified in 29 CFR ??\u00a01926.605(b)(2) and 1926.605(d)(2).[2]??????????? Thedescription of the serious and nonserious violations and the standards aspromulgated by the Secretary, are as follows:??????????? Citationfor serious violation of 29 CFR ? 1926.605(b)(2) ?? Description:Employees were exposed to a hazard with nogangway or means to safely step from dock to float and from barge to barge. Noside rails provided to protect employees from falling into the water.?Maintenance barge gangway side rail Float265 Barge 100 and Barge 117 no safe means.\u00a0??????????? Standardas promulgated1926.605(b) access to barges. (1) . . . .(2) Unless employees can step safely to orfrom the wharf, float, barge, or river towboat, either a ramp, meeting therequirements of subparagraph (1) of this paragraph, or a safe walkway, shall beprovided.???????????? Nonseriousviolation (item 5) of 29 CFR ? 1926.605(d)(2) ? DescriptionU.S. Coast Guard approved life ring with90 feet of line was not in the immediate vicinity of maintenance barge.???????????? Standardas promulgated1926.605(d) First-Aid and Lifesavingequipment (1) . . . .(2) The employer shall ensure that thereis in the vicinity of each barge in use at least one U.S. Coast Guard-approved30-inch lifering with not less than 90 feet of lineattached, and at least one portable or permanent ladder which will reach thetop of the apron to the surface of the water. If the above equipment is notavailable at the pier, the employer shall furnish it during the time that he isworking the barge.???????????? Penaltiesof $700.00 for the serious violation and $35.00 for the nonserious violationwere proposed by the Occupational Safety and Health Administration for the NewYork area.??????????? Thecitation for failure to abate (Docket No. 15401) alleges that respondent failedto correct within the times prescribed, two nonserious violations for whichrespondent was cited as a result of the inspection of its worksite on August 26and 27, 1975.??????????? Theunabated violations were item 5 (29 CFR ? 1926.605 (d)(2) and item 7 (29 CFR ?\u00a01910.252(a)(2)(iv)(c))of the citation issued on August 29, 1975.[3] The Occupational Safetyand Health Administration for the New York area, proposed an additional penaltyof $665.00 for the failure to abate item 5, and an additional penalty of $1,330.00for the failure to abate item 7.??????????? Theaction in Docket No. 15401 was consolidated for hearing with Docket No. 15096.The consolidated action was heard at New York, New York, on January 7, 1976.ISSUES1. Whether respondent was in seriousviolation of 29 CFR ? 1926.605(b)(2).2. If it was, whether the penalty proposedwas reasonable and proper.3. Whether respondent was in nonseriousviolation of 29 CFR ? 1926.605(d)(2).4. If it was, whether the penalty proposedwas proper and reasonable.5. If respondent was in nonseriousviolation of 29 CFR ? 1926.605(d)(2), whether it failed to abate the violationwithin the time prescribed.6. If it failed to abate, whether theadditional penalty proposed was reasonable and proper.7. Whether the additional penalty proposedfor respondent?s failure to abate the violation of 29 CFR ?1910.252(a)(2)(iv)(c) was reasonable and proper.STATEMENT OF THE EVIDENCE??????????? Respondent,Edward B. Fitzpatrick, Jr., Associates, Inc. and Schiavone Construction Co.,Inc., a Joint Venture, is engaged in the construction business, and admits itsbusiness affects commerce. (Complaints and answers; T. 7, 8).[4]??????????? Atthe opening of the hearing on January 7, 1976, respondent in Docket No. 15096,withdrew its notice of contest to ten of the eleven nonserious violations andthe penalties proposed. Respondent continued its contest to item 5 of thenonserious citation (29 CFR ?\u00a01926.605(d)(2)), to the serious citation (29CFR ? 1926.605(b)(2)) and to the penalties proposed for the serious andnonserious violations (T. 4). Respondent further contested item 5 of thecitation for a failure to abate issued September 30, 1975, and the additionalpenalties proposed for items 5 and 7 (Docket No. 15401) (T. 11?14).??????????? OnAugust 26, 1975, respondent was engaged in constructing a bulkhead andfoundation at Battery Park City, New York, New York, where a future high risewas to be erected (T. 15?16). On this day, compliance officers Lawrence A. Cimato and Eugene Dreger inspected respondent?s worksite(T. 15?16, 18).Serious violation of 29 CFR ?1926.605(b)(2) (Docket No. 15096)??????????? On awalk-around inspection with officer Dreger, respondent?s project manager and aunion representative, officer Cimato observed a browgangway, with one handrail. The gangway was used as a means of access from thebulkhead to respondent?s maintenance barge. The barge was a foot higher thanthe bulkhead and a foot away from the bulkhead (T. 19, 20, 22, 23; Exh. C?1, rough diagram of respondent?s work area).??????????? Thewalk-around party preceded from the maintenance barge to barge 265 which waslocated close by. Access to barge 265 from the bulkhead was by stepping orleaping over a 2 to 2?1\/2 foot gap between the barge and the bulkhead. Nogangway bridged the gap. From barge 265, the walk-around party, proceeded alonga land fill area, situated alongside barge 265, for adistance of 850 feet to a concrete footing which lead to barge 100.Barge 100 had a gangway with one hand rail. The party continued along theconcrete footing to an area of approach to barge 117. This approach areaconsisted of piles which were covered with a concrete cap from whichreinforcement bars protruded. On top of the reinforcement bars sets of 2 x 10inch planks were placed. They were ten feet long, and extended a distance offorty feet to where a brow gangway gave access to barge 117. The planks werenot secured or cleated, had no side rails and were wobbly when walked on (T.31?37, 54, 81; Exh. C?1, C?2). This planked area waspart of a concrete pile cap which was poured on top of pilings and over which aconcrete deck called a ?low water relieving platform? would later be installedto hold the land fill in place (T. 65). The brow gangway of barge 117 rested onthe planks (T. 53, 55). Employees of respondent were working on or had accessto barges 117, 100, 265 and the maintenance barge (T. 26, 54).??????????? OfficerCimato believed that the brow gangways with one handrail on the maintenance barge and on barge 100, the absence of a gangway onbarge 265, and the unsecured and wobbly planks leading to barge 117, consideredtogether, created one serious violation of 29 CFR ?\u00a01926.605(b)(2) becausethe gangways and planked area were not safe for employees using these means ofaccess; that the unsafe conditions could cause an employee to fall into thewater between the barges and bulkheads or off the sides of the planked walkway;and that in falling an employee could strike his head on obstructions therebysuffering death by drowning or other serious physical harm (T. 50?52, 56, 70)Officer Cimato recommended a $700.00 adjustedproposed penalty after allowing credits of 20% for good faith and 10% for priorhistory (T. 51).??????????? OfficerCimato conceded that the gangways on the maintenancebarge and on barge 100 with only one hand rail were safe means of access to andfrom the barges; and that no requirement of 29 CFR ? 1926.605(b)(2) or anyother section of Part 1926 required two handrails on a gangway. He furtherconceded that he would not have cited respondent for a violation of 29 CFR ?1926.605(b)(2) if the two gangways were the only items involved. His mainconcern was the absence of a gangway on barge 265 and the wobbly planks leadingto the gangway of barge 117 (T. 56?61, 64).??????????? Mr.Gerald J. Galvin, respondent?s representative at the job site, stated that thegangway of barge 265 was not in place because at low tide a crane had to beremoved from the barge. In order to allow the crane to move from the barge tothe bulkhead, the gangway is removed and a thick steel plate 18 feet wide and12 feet long is placed between the barge and the bulkhead (T. 132, 133). Hefurther stated that the gap between the barge and the bulkhead was 18 inches not2 to 2?1\/2 feet. The brow gangway of barge 265 was put in place prior to theend of the inspection day (T. 52, 132, 165).??????????? Mr.Galvin stated that the gangway from barge 117 rested on an H beam or piece ofsteel that is placed in the end of the concrete cap; that the planked walkwayis used as a work area for employees stripping concrete forms and pouringcement; that the reinforcement bars are 1\/2 inch thick, 8 inches high and setevery 12 inches on the pile cap; that the wooden planks are 6 x 12 inches andcreosoted; that the planks are tied to the reinforcement bars in order toprevent them from floating away at high tide; that the planked area is not usedas a means of access to barge 117 but is part of the work area when employeeswork in and around the water where the piles are located; and that employees inthe work area do use the planked area to gain access to barge 117 for workmaterials (T. 136, 138, 139, 140, 157, 173). The wooden planks are in place onthe concrete cap to protect employees from getting their feet or clothingcaught in the U shaped reinforcement bars protruding the pile cap (T. 137,161).Nonserious violation of 29 CFR ?1926.605(d)(2) (item 5) (Docket No. 15096)??????????? OfficerCimato during his inspection of the maintenance bargeobserved that the barge?s life ring and line was missing from its hook orhanger (T. 20). He recommended a citation for a nonserious violation of 29 CFR? 1926.605(d)(2) in that a life ring and line was not in the ?immediate?vicinity of the barge (T. 21). He admitted that the standard did not speak interms of ?immediate vicinity? but only of ?vicinity? (T. 77). The nearest lifering and line was located on barge 265 which was about 50 feet from themaintenance barge (T. 45, 46). This violation was corrected before theinspection ended on August 26, 1975 (T. 20, 23).??????????? Respondent?sMr. Galvin stated there were life rings and lines on the south side of barge265 (side facing maintenance barge) which was located about 60?65 feet from themaintenance barge (T. 129, 151?152). The closest of the two life rings on barge265 was about 50 feet from the maintenance barge (T. 152).Citation for failure to abate item 5 (lifering)?Docket No. 15401??????????? OnSeptember 17, 1975, compliance officer Eugene Dreger made a follow-upinspection to ascertain if the violations observed on August 26, 1975, forwhich respondent was cited, were corrected (T. 91. 93?95).??????????? Hefound that all the violations were corrected except two, items 5 and 7 of thenonserious citation. He observed that the maintenance barge was still without alife ring and life line (T. 97). He was told by Mr. Galvin who was with himthat the ring and line were on the barge the previous day, September 16, 1975;and that he believed some employees removed the life ring and were using it inone of the small boats working in the area (T. 98).??????????? OfficerDreger also observed that item 7 of the original nonserious citation (29 CFR ?\u00a01910.252(a)(2)(iv)(c))was not abated (T. 97). On August 26, 1975, when Officer Cimatomade his inspection with Dreger, he observed that oxygen and acetylene gascylinders were improperly stored in a trailer in that the cylinders were notstored 20 feet apart or, in the alternative, were not separated by a fire wallas required by the standard. The hazard was one of fire. Officer Cimato recommended an adjusted proposed penalty of $70.00after credits for good faith, prior history and abatement were considered. Thecitation for the nonserious violation of this standard required the immediateabatement of the violation (T. 73?77, 84?85; citation, Docket No. 15096).??????????? Onthe reinspection of September 17, 1975, Officer Dreger found that the storagecondition of the gas cylinders had not been abated (T. 99?100, 109, 110?111).For the failure to abate, officer Dreger recommended an additional proposedpenalty of $1,330.00 based on an arbitrary seven dayfailure to abate mathematically computed from the original unadjusted proposedpenalty of $200.00 (T. 103?108).??????????? Atthe hearing, respondent did not contest the nonserious citation (item 7) or thefailure to abate this item. Respondent admitted the violation and its failureto abate the violation (T. 127, 128, 146, 189). Respondent limited its contestto the additional penalty proposed for its failure to abate. The violation wasabated a few days after September 17, 1975, by the erection of a steelpartition which separated the oxygen and acetylene cylinders (T. 146?148, 148).??????????? Respondent?ssafety engineer, Gerard Harrison, stated that respondent maintains an activesafety and training program for its employees, foremen and managementpersonnel; that project sites are regularly inspected for safety; and thatrespondent is active, and has been so recognized, in promoting safety in theconstruction field (T. 175?184, 187).OPINIONSerious violation of 29 CFR ?1926.605(b)(2) (Docket No. 15096)??????????? Threefactors taken together gave rise to the citation for a serious violation of 29CFR ?\u00a01926.605(b)(2). The first factor was the gangways on the maintenancebarge and barge 100 which had one handrail instead of two. Complainant concededthrough officer Cimato that the two gangways with onehandrail were safe and in compliance with the standard; that the standard didnot require two handrails; and that the serious citation would not have beenissued if all that was involved were the two gangways. On this state of therecord, complainant failed to carry its burden of proof that the condition ofthe two gangways violated the standard.??????????? Thesecond factor considered was the four foot plankedwalkway that lead to the gangway of barge 117. The record is clear, that thegangway of barge 117 was not in violation of any requirement of standard 29 CFR? 1926.605(b)(2). Complainant did not contend that it was.??????????? Complainantdoes contend that the planked walkway because of its unsecured[5] and wobbly nature camewithin the requirements of the standard. The standard addresses itself to?access to barges? and states that ?unless employees can step safely to or fromthe wharf, float, barge or river towboat, either a ramp, . . . or a safewalkway shall be provided.???????????? Barge117 was either moored or anchored at the end of the concrete capped pilingsover which was placed the planked walkway. Access to barge 117 from the end ofthe planked walkway or from the planked walkway to the barge was by means of aproperly secured and safe gangway.??????????? Thereis no definition of a ?gangway? in subpart Q of Part 1926 where 1926.605(b)(2)is found. However, 29 CFR ? 1918.3(k) (safety and health regulations forlongshoring) defines a ?gangway? as any ramp-like or stair-like means of accessprovided to enable personnel to board or leave a vessel, includingaccommodation ladders, gangplanks and brows.? Access to barge 117 by means of asafe ramp or walkway was complied with.??????????? Theconcrete cap over which the planked walkway was situated was not a float and nological stretch of the imagination could conceive it to be a wharf. Assuming argumendo that it came within the definition of a wharf orsolid landside foundation, access to or from the barge, from or to the end ofthe planked walkway was by means of a safe gangway. The planked walkway is notfound to be an extension of barge 117?s gangway. To hold otherwise wouldrequire that a ?wharf?, ?float? or other ?barge? be considered a part of anaccess ramp or walkway. Such is not the intent or meaning of standard 29 CFR& 1926.605(b)(2). Respondent?s employees in the work area of the plankedwalkway had safe access to barge 117 by means of its gangway. Respondent failedto establish that the means of access to barge 117 was in violation of 29 CFR ?1926.605(b)(2).??????????? Thethird considered factor was the lack of a gangway or safe walkway from barge265 to the bulkhead. The evidence clearly establishes that a gangway, presenton the barge, was not in place to bridge the 18 to 30 inch gap between thebarge and the bulkhead. This was a violation of the standard and exposedrespondent?s employees who had to bridge the gap by stepping or leaping overit, to a possible tripping hazard. Under all the circumstances, including theelimination of two of the three factors considered in issuing the citation, andthe lack of any persuasive evidence that if an accident occurred due to theviolation, probable serious physical harm would befall an employee, the seriousviolation of 29 CFR ? 1926.605(b)(2) will be reduced to a nonserious violation.??????????? Afterconsideration of the statutory factors of section 17(j) of the Act, theproposed penalty of $700.00 is found to be unreasonable, and will be reduced to$150.00.Nonserious violation (item 5) of 29 CFR ?1926.605(d)(2) (Docket No. 15096)??????????? Theevidence established that the life ring and line on respondent?s maintenancebarge was missing from its customary location on the barge on August 26, 1975.The standard requires an employer must have in the vicinity of each workingbarge a U. S. Coast Guard approved 30 inch life ring with an appropriate lifeline.??????????? Theplain word meaning of the standard requires that an approved life ring be availablefor each working barge; and that life rings on other working barges in thevicinity of the deficient barge is not sufficient compliance with the standard.??????????? Fromthe evidence, it appears that respondent does provide an approved life ring onits maintenance barge but its employees seem to have a preference for removingthe life ring to smaller boats they may be working on. Respondent must insurethat a life ring is available for its maintenance barge at all times. Ifrespondent?s employees working in small boats need life rings, then respondentis required to supply a sufficient number of life rings for such work. Themaintenance barge?s ring should be available at all times in case of need.??????????? Respondentimmediately abated the violation on the day of inspection, August 26, 1975.Respondent is responsible for the violation. After considering the statutoryfactors of section 17(j) of the Act, the proposed penalty of $45.00 is found tobe reasonable and proper.Failure to abate the violation of 29 CFR ?1926.605(d)(2) (Docket No. 15401)??????????? OnSeptember 17, 1975, upon reinspection of respondent?s workplace to ascertain ifrespondent had abated within the time limits prescribed the violations revealedon August 26, 1975, it was found that the life ring and line on the maintenancebarge was missing.??????????? Complainantdeemed the condition found on September 17, 1975, to be failure to correct theAugust 26, 1975 life ring violation and accordingly cited respondent with acitation for a failure to abate.??????????? Therecord is clear. The life ring condition of August 26, 1975 was abated onAugust 26, 1975. Having been abated, the recurrence of that same condition onSeptember 17, 1975, was not a failure to abate but at best, a new or repeatviolation.??????????? ThisJudge does not have the authority or discretion to amend the failure to abatecitation to a citation for a new or repeat violation. Secretary of Labor v.The Murphy Company, 7 OSAHRC Rep. 453 (1974). The citation for failure toabate the violation of 29 CFR ?\u00a01926.605(d)(2) (item 5), and theadditional penalty proposed will be vacated.Additional penalty for failure to abate(item 7) the violation of 29 CFR ?\u00a01910.252(a)(2)(iv)(c)?(DocketNo. 15401).??????????? Respondentadmits it violated this standard on August 26, 1975, and admits it failed toabate the violation within the time prescribed. Respondent contested theadditional penalty proposed.??????????? Respondentwas assessed an additional proposed penalty of $1,330.00 based on an arbitraryseven days of non-abatement mathematically computed from the originalunadjusted and adjusted penalties.??????????? Althoughthere is no support for using a seven day arbitrary non-abatement periodfigure, respondent cannot claim it was penalized unjustly. Respondent was toabate the violation immediately upon receipt of the nonserious citation issuedAugust 29, 1975. Allowing three days for receipt of the citation, the violationwas to be abated on or about September 2, 1975. The reinspection was made onSeptember 17, 1975, approximately 15 days after the time for abatement ceased.Respondent could have been charged with 15 days of non-abatement instead of 7,as there was ample reason for complainant to believe that the violativecondition had not changed from September 2, to September 17, 1975.??????????? Proofof a fact once shown to exist is presumed to continue to exist until thecontrary is shown. N.L.R.B. v. National Motor Bearing Co., 105 F.2d 652(9th Cir. 1939). Here not only has respondent admitted that the violativecondition existed on August 26, 1975 but further admitted that the conditionstill existed on September 17, 1975. There is no evidence that the conditionduring the interim period (September 2 to September 7) had in any way changed.The only evidence bearing on the issue was that the amount of mixed gas cylindersin storage fluctuated daily depending on the amount used. This did not changethe improper storage condition of the oxygen and acetylene cylinders.??????????? Respondentdid abate the violation within a few days of September 17, 1975. Under all thecircumstances including respondent?s active safety programs and safetyawareness, the custody of the storage area under a licensed employer, and thestatutory factors of section 17(j) of the Act, the additional proposed penaltyof $1,330.00 is found to be unreasonable. A penalty of double the originalunadjusted $200.00 penalty plus $50.00 a day for the two days subsequent toSeptember 17, 1975, or $500.00 is reasonable and proper.FINDINGS OF FACT??????????? Thecredible evidence and the record as a whole establishespreponderant proof of the following specific findings of fact:??????????? 1.Respondent, Edward B. Fitzpatrick, Jr. Associates, Inc. and ShiavoneConstruction Co., Inc., a Joint Venture, is engaged in the constructionbusiness and admits its business affects commerce.??????????? 2. OnAugust 26 and 27, 1975, respondent was engaged in constructing a bulkhead andfoundation at Battery Park City, New York, New York, where a future high-risewas to be erected.??????????? 3. OnAugust 26, 1975, respondent?s workplace at Battery Park City was inspected bycompliance officers Lawrence A. Cimato and EugeneDreger.Citation for serious violation of 29 CFR1926.605(b)(2) (Docket No. 15096)??????????? 4.Complainant admits that the gangways on respondent?s maintenance barge andbarge 100 were safe means of access to and from the barges,and complied with 29 CFR 1926.605(b)(2).??????????? 5.The access to and from barge 117, from and to the end of a concrete cappedpiling foundation upon which a planked walkway was secured, was by means of asafe gangway.??????????? 6.The planked walkway was part of a work area, and wasnot within the intent and meaning of 29 CFR ? 1926.605(b)(2), part of theaccess to barge 117.??????????? 7.Respondent?s barge 265 on August 26, 1975 was not in compliance with standard29 CFR ? 1926.605(b)(2) in that it lacked a means of access to and from thebarge, from and to the West Street bulkhead.??????????? 8.Employees using Barge 265 were required to either step or leap over the 18 to30 inch gap between the barge and the bulkhead.??????????? 9.Respondent was responsible for the violation that existed at barge 265. Theviolation exposed respondent?s employees to tripping hazards.Nonserious violation of 29 CFR ?1926.605(d)(2) (item 5) (Docket No. 15096)??????????? 10.On August 26, 1975, respondent?s maintenance barge did not have its own approvedlife ring and line; nor was such a life ring within the vicinity of the barge.??????????? 11.Respondent failed to ensure that an approved life ring and line for theexclusive use of the barge was either on the barge or within the vicinity ofthe barge.??????????? 12.Respondent is responsible for the nonserious violation of 29 CFR ?1926.605(d)(2). The violation exposed respondent?s employees to a life saving hazard if an employee fell into the watersurrounding the barge.??????????? 13.Respondent immediately abated the hazard on the day of inspection, August 26,1975.Failure to abate the violation of 29 CFR ?1926.605(d)(2) (Docket No. 15401)??????????? 14.On September 17, 1975, upon a reinspection of respondent?s workplace, anapproved life ring and line was not on respondent?s maintenance barge or in thevicinity of the barge.??????????? 15.Having abated this violation on August 26, 1975, the recurrence of the sameviolation on September 17, 1975, was either a new or a repeat violation. It wasnot a failure to abate violation.??????????? 16.Respondent did not fail to immediately abate the life ring violation of August26, 1975.Nonserious and failure to abate violationsof 29 CFR ? 1910.252(a)(2)(iv)(c)?(Docket Nos. 15096,15401)??????????? 17.Respondent admitted it was in violation of 29 CFR ? 1910.252(a)(2)(iv)(c) onAugust 26, 1975, and admitted it failed to abate the violation within the timeperiod prescribed.??????????? 18.Respondent abated the violation within two days of September 17, 1975, the dayof reinspection.CONCLUSIONS OF LAW??????????? 1.Respondent is, and at all times material herein was, engaged in a businessaffecting commerce within the meaning of section 3 (5) of the Act (29 U.S.C. ?652(5)).??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over thesubject matter and parties to this consolidated action.??????????? 3. OnAugust 26, 1975, the gangways of respondent?s maintenance barge and barge 100,and the planked walkway adjacent to barge 117, were not in violation ofstandard 29 CFR ? 1926.605(b)(2).??????????? 4. OnAugust 26, 1975, respondent was in violation of standard 29 CFR ?1926.605(b)(2) at barge 265 in that there was no safe means of access to thebarge from the bulkhead as required by the standard.??????????? 5.The serious violation of 29 CFR ? 1926.605(b)(2) is reduced to a nonseriousviolation.??????????? 6. Underall the circumstances of this case with due consideration to the statutoryfactors of section 17(j) of the Act, the proposed penalty of $700.00 for theviolation of 29 CFR ?\u00a01926.605(b)(2) is unreasonable. A penalty of $150.00will be assessed.??????????? 7. OnAugust 26, 1975, respondent was in nonserious violation of 29 CFR ?\u00a01926.605(d)(2)for its failure to ensure the availability of an approved life ring and lineeither on its maintenance barge or in the vicinity of the barge.??????????? 8.Under all the circumstances with due consideration to section 17(j) of the Act,the proposed penalty of $35.00 is reasonable and proper.??????????? 9. OnSeptember 17, 1975, respondent was not in violation of section 10(b) of the Actfor failing to abate the violation of 29 CFR ? 1926.605(d)(2).??????????? 10.The citation for failure to abate the violation of 29 CFR ? 1926.605(d)(2) andthe additional penalty proposed must be vacated.??????????? 11.Under all the circumstances of this case with due consideration to thestatutory factors of section 17(j) of the Act, the additional proposed penaltyof $1,330.00 for the admitted failure to abate the violation of 29 CFR ?1910.252(a)(2)(iv)(c) is unreasonable and will be vacated. A $500.00 penaltywill be assessed.ORDER??????????? Duedeliberation having been had on the whole record, it is hereby??????????? ORDEREDthat the serious violation of 29 CFR ? 1926.605(b)(2) is amended by deletingreference to alleged violations at respondent?s maintenance barge, barge 100and barge 117, and by reducing the serious violation to a nonserious violation,and as amended is affirmed, it is further??????????? ORDEREDthat the proposed penalty of $700.00 for the violation of 29 CFR ?\u00a01926.605(b)(2)is vacated, and a penalty of $150.00 is assessed, it is further??????????? ORDEREDthat the nonserious violation of 29 CFR ? 1926.605(d)(2) and the $35.00 penaltyproposed are affirmed, it is further??????????? ORDEREDthat the citation for failure to abate the violation of 29 CFR ? 1926.605(d)(2)(item 5), and the additional proposed penalty of $665.00, are vacated, it is further??????????? ORDEREDthat the additional proposed penalty of $1,330.00 for the failure to abate 29CFR ? 1910.252(a)(2)(iv)(c) is vacated, and a $500.00 penalty is assessed.?JEROME C. DITOREJUDGE, OSAHRCDated: May 17, 1976?New York, New York\u00a0\u00a0\u00a0[1] This case issevered from Docket No. 15096 pursuant to Commission rule 10, 29 C.F.R. ?\u00a02200.10.[2] Respondent wascited for eleven nonserious violations and one serious violation. At thehearing respondent withdrew its contest to ten of the eleven nonseriousviolations and to the penalties proposed. It limited its contest to the seriouscitation, item 5 of the nonserious citation and the penalties proposed forthese two violations (T. 4, 13).[3] Item 5 is setforth above. Respondent admits the violation of item 7 and its failure to abatethis item. Respondent limited its contest of the failure to abate citation toitem 5 and to the proposed additional penalties for item 5 and item 7 (T. 4,11, 13).\u00a0[4] Reference Key: T.refers to pages of hearing minutes.[5] Respondentestablished that the planks were secured to the concrete cap to prevent themfrom floating away at high tide.”