“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7606 EDWARD HINES LUMBER CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September29, 1976DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BY THE COMMISSION:??????????? Adecision of Review Commission Judge Jerry W. Mitchell, dated September 25,1975, is before this Commission for review pursuant to 29 U.S.C. ? 661(i).??????????? Havingexamined the record in its entirety, the Commission finds that the Judgeproperly decided the case and adopts his decision which is attached hereto asAppendix A.[1]Accordingly, the Judge?s decision is hereby affirmed.?FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDATED: SEP 29, 1976?CLEARY, Commissioner, CONCURRING:??????????? Theonly issue before us is whether the Administrative Law Judge erred inconcluding that the standard published in 29 CFR ? 1910.213(b)(4) is notmandatory and that failure to comply with its provisions did not violatesection 5(a)(2) of the Act. The Secretary of Labor had cited the employer becausea control panel was located outside the easy reach of a saw operator. Thestandard involved provides that controls ?should? be located in easy reach.?I agree with my colleagues that the word ?should? inthe standard is to be read as advisory for the reasons assigned by the Judge.This is so even though the word ?should? as generally used implies a command.See Words and Phrases, ?should.? The Secretary of Labor?s reliance upon hisbrief in Kennecott Copper, No. 5958 (July 8, 1976) is unconvincing becausethe standard involved in that case uses the word ?shall.???????????? Theuse of the word ?should? in this standard could perhaps have significance in acase tried under the general duty clause in section 5(a)(1) of the Act. Butthat is not this case.?APPENDIX A\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7606 EDWARD HINES LUMBER CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September25, 1975?DECISION AND ORDER?Appearances:William W. Kates, Esquire, Seattle,Washington for Complainant\u00a0Harry S. Chandler, Esquire, Portland,Oregon for Respondent\u00a0There was no appearance by or on behalf ofany of Respondent?s affected employees.?STATEMENT OF THE CASE?JerryW. Mitchell, Judge\u00a0??????????? Thisis a proceeding pursuant to Section 10 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. ? 651 et seq.) contesting Citations issued by theSecretary of Labor (Complainant) against Edward Hines Lumber Co. (Respondent)under the authority vested in Complainant by Section 9(a) of the Act.??????????? Aworkplace described as ?sawmill, planer mill, moulding plant, plywood plant,stud mill? located one-half mile south of Hines, Oregon on Highway 395 wasinspected March 19 to 21, 1974 by a Compliance Safety and Health Officer (CSHO)on behalf of the Secretary of Labor. During that inspection alleged violationsof 29 specific safety standards were noted. As a result of the inspection thefollowing Citations were issued to Respondent on April 3rd:Citation Number One (Non-Serious, 19 Itemsinvolving 26 sub-Items);\u00a0Citation Number Two (Repeated Non-Serious,1 Item with 3 sub-Items);?Citation Number Three (RepeatedNon-Serious, 1 Item with 9 sub-Items);?Citation Number Four (RepeatedNon-Serious, 1 Item);?Citation Number Five (RepeatedNon-Serious, 1 Item);?Citation Number Six (Repeated Non-Serious,1 Item);?Citation Number Seven (RepeatedNon-Serious, 1 Item with 3 sub-Items);?Citation Number Eight (RepeatedNon-Serious, 1 Item);?Citation Number Nine (Repeated Serious, 1Item with 20 sub-Items); and?Citation Number Ten (Repeated Serious, 2Items with 6 sub-Items).???????????? The standardsallegedly violated were promulgated by the Secretary of Labor pursuant toSection 6 of the Act and are now codified at Title 29, Code of FederalRegulations, Part 1910.??????????? Respondenthas contested all of the various Citations and Items except for Items 4, 5, 6,7, 8, 9, 13, 14, 15, 16, 17, 18, and 19 of Citation Number One. The allegedviolations are described in the Citations in the following language:Citation Number One (Non-Serious)Item 1 1910.213(b)(4) A ?Delta? band sawin the electrical shop of the sawmill had the power control on a panel behindthe saw, not within easy reach of the operator. ABATE ?April 17, 1974 PenaltyNone?Item 2 1910.265(c)(18)(i) (a) An employeewas standing on a conveyor while unplugging a bin, and the conveyor was notlocked out so that only the employee working on the bin could turn on theconveyor, as stated in ANSI B20.1, Section 10(f).?(b) Employees cross under the feed chainconveyor to the package maker in dry kiln and no protection is provided toprevent lumber from falling onto employees, as stated in ANSI B20.1 609(a).?(c) Lumber conveyors on No. 1, 2, 3, 4planers have a passageway under conveyors and no signs were posted indicatinglow overhead, in planer mill, as stated in ANSI B20.1 705(b).?(d) The outfeed roller casing conveyorfrom No. 1, 2, 3 head rigs did not have a crossover to protect employees frombeing struck by lumber being conveyed by the power rollers from the head rig, asstated in ANSI B20.1 705(a). ABATE May 1, 1974 Penalty $65.00Item 3 1910.265(e)(1)(vii) Number 1, 2, 3head rigs did not have rail sweeps on outside U-rail (of carriage) in sawmill. ABATEMay 1, 1974 Penalty None?Item 10 1910.212(a)(1) (a) A tail pulleyon outfeed No. 2 planer belt approximately 5 feet above floor level not guardedon the side in the planer mill.?(b) The waste conveyor tail pulleyapproximately 12 inches above the floor level next to aisleway was not guardedon the end in the plywood plant.?(c) A crushing wheel in chipper room ofplywood plant was not guarded.?(d) A passageway under the trim saw andpanel turner in the plywood plant had unguarded rotating wheels 6 feet 9 inchesabove floor level.?(e) The tail pulley, approximately 2 feetabove the floor, from the lay-up line to pre-press with walkway in between wasnot guarded in the plywood plant. ABATE May 1, 1974 Penalty ?$85.00??Item 11 1910.213(r)(4) The trim saws onthe ends of grader table No. 6 and 7 in moulding plant need a barrier guardaround the saw blade to prevent an employee from coming in contact with the sawblade. ABATE May 1, 1974 Penalty None?Item 12 1910.213(i)(1) Three spoked wheelson the veneer core band saw in the plywood plant were not completely guarded.Approximately one-half of the wheels were exposed. ABATE ?May 1, 1974 Penalty$70.00?Citation Number Two (RepeatedNon-Serious)? ?Item 1 1910.219(i)(1) (a) A coupling on amotor for the hog conveyor in basement of sawmill was not covered.?(b) A coupling on a motor for the beltconveyor in the basement of the sawmill was not guarded.?(c) A coupling on drive motor on chipperin plywood plant not guarded. [Standard changed in complaint to 1910.219(i)(2)]ABATE April 17, 1974 Penalty $100.00.?Citation Number Three (RepeatedNon-Serious)?Item 1 1910.23(c)(1) (a) A walkway tohoist, by No. 1 edger approximately 14 feet above floor level did not have aguard rail installed, in the sawmill.? [Standard changed in complaint to1910.23(c)(2)]?(b) Middle walkway on tray systemapproximately 15 feet above floor level in dry kiln did not have a midrail.?[Standard changed in complaint to 1910.23(c)(2)]?(c) Employees walk across tipple(approximately 20 feet above floor level) in dry kiln for maintenance of chaindrives and no guard rail or midrail was installed.?(d) The platform at the top of a stairwayto an overhead crane approximately 20 feet above floor level had the guardrailbent and twisted and no midrail.?(e) A walkway to unstacker operator?sstation did not have a guard rail, next to floor opening approximately 10 feetto next lower level in dry sorter.? [Standard changed in complaint to1910.23(c)(2)]?(f) Two floor openings approximately 2feet by 2 feet next to press charger 15 feet above lower level were not guardedin plywood plant.? [Standard changed in complaint to 1910.23(a)(9)]?(g) An open sided floor on walkway alongveneer belt to incline drier approximately 12 feet above next lower level wasnot guarded, in plywood plant.? [Standard was changed in complaint to1910.23(a)(8). As recited in the complaint this violation reads ?A floor holdon walkway along veneer belt to incline drier approximately 12 feet above nextlower level in the plywood plant was not guarded or covered, contrary to 29 CFR1910.23(a)(8).]?(h) Employees walk on a 2 inch by 10 inchpiece of lumber to perform maintenance on the tipple approximately 10 feetabove next lower level and approximately 20 feet to floor level in plywoodplant.?(i) A work platform approximately 16 feetabove ground level on side of tipple in dry kiln did not have a midrail. ABATE?May 1, 1974 Penalty $180.00? Citation Number Four (RepeatedNon-Serious)? Item 1 1910.176(a) The area in the swingradius of the roll case turn table at the lumber strapper was not barricaded toprevent foot traffic into the hazardous area, in shipping department. ABATE May1, 1974 Penalty ?$100.00 [Note?this Citation was withdrawn by paragraph XIII ofthe complaint.]?Citation Number Five (RepeatedNon-Serious)? Item 1 1910.265(c)(4)(ii) A walkwayapproximately 3 1\/2 feet above floor level next to trim saw in the plywoodplant had two broken boards ABATE ?April 17, 1974 Penalty $100.00?Citation Number Six (RepeatedNon-Serious)? Item 1 1910.265(e)(6)(i)(c) The?Pineapple? roll on the lath saw in the lath mill was not guarded. ABATE ?April17, 1974 Penalty $100.00?Citation Number Seven (RepeatedNon-Serious)?Item 1 1910.219(e)(1)(i) (a) A horizontalflat belt and pulley drive approximately 3 1\/2 feet above the work level on theskinner saw in the plywood plant was not guarded.(b) A horizontal flat belt and pulleydrive approximately 76? above the floor level on the No. 2 drill press was notguarded in the basement of the sawmill.?(c) A horizontal flat belt and pulley onsticker belt approximately 3 1\/2 feet above work level was not guarded in drysorter. ABATE May 1, 1974 Penalty ?$115.00? Citation Number Eight (RepeatedNon-Serious)?Item 1 1910.24(f) The treads on a stairwayto an elevated platform in the basement of the sawmill were bent over to thepoint of creating a slipping hazard.ABATE April 17, 1974 Penalty $100.00?Citation Number Nine (Repeated Serious)??Item 1 1910.219(f)(3) (a) A chain driveapproximately 36 inches above work level for conveyor to No. 3 hog not guarded,in basement of sawmill.?(b) A chain drive for belt conveyorapproximately 6 inches above work platform in basement of sawmill not guarded.?(c) A slab chain drive on head rig No. 3approximately 12 inches above floor level not guarded in sawmill.?(d) A chain drive on outfeed to thetrimmer in sawmill not guarded approximately 2 feet above walkway.?(e) A chain drive on package makerapproximately 20 inches above walkway not guarded in dry kiln green chain area.?(f) One chain drive located in the middleof the tipple frame and one chain drive on the end of the tipple were notguarded in the dry kiln, green chain.?(g) A chain drive (on sorting chain)approximately 10 inches above work level in shipping department was notguarded.?(h) The back side of a chain drive notguarded approximately 36 inches above floor level on moisture content machinein plywood plant.?(i) The back side of a chain orive (36inches above floor) on the dry chipper in plywood plant was not guarded.?(j) Two chain and sprocket drives 6 feet 7inches above floor level on the trim saw were not guarded.?(k) A chain drive approximately 12 inchesabove the floor under the trim saw in the plywood plant was not guarded.?(l) A chain drive approximately 12 inchesabove floor on chipper was not guarded on back side in plywood plant.?(m) A chain drive 36 inches above walkwayon trim saw was not guarded in plywood plant.?(n) The back side of a chain driveapproximately 18 inches above floor level for belts on lay-up line in plywoodplant was not guarded.?(o) A chain drive on a scissors hoist feedto lay-up line, 2 feet to 4 feet above floor, was not guarded in the plywoodplant.?(p) A chain drive approximately 10 inchesabove floor level on re-dry infeed to the inline drier in plywood plant did nothave guard covering ingoing nip point.?(q) Four chain drives on tipple roll from2 feet to 7 feet above floor level not guarded in plywood plant.?(r) A chain drive approximately 2 feetabove floor level on unit intake in stud mill was not guarded.?(s) A chain drive approximately 12 inchesabove work platform on barker surge bin was not guarded.?(t) A chain drive for rolls on veneer coreband saw was not guarded on back side in plywood plant, approximately 3 1\/2feet above floor level. ABATE ?May 15, 1974 Penalty ?$2,000.00??Citation Number Ten (Repeated Serious)?Item 1 1910.219(e)(3)(i) (a) A verticalbelt and pulley system for head rig No. 2 lower run approximately 3 feet abovefloor level in basement of the sawmill was inadequately guarded: the side ofthe belt and pulley was exposed, as specified in (29 CFR) 1910.219(e)(3)(i).?(b) A vertical belt and pulley driveapproximately 20 inches above floor level on lath saw in lath mill did not havethe nip point guarded, as specified in 29 CFR 1910.219(e)(3)(i).?(c) A vertical belt drive 39 inches abovefloor level on saw grinder in file room of plywood plant, as specified in 29CFR 1910.219(e)(3)(i).?(d) A vertical belt drive lower run 62inches above walkway on conveyor that dumps into Lilly Pad chipper in barkernot guarded, as specified in 29 CFR 1910.219(e)(3)(i).?Item 2 1910.219(e)(1)(i) (a) A horizontalbelt drive approximately 3 feet above floor level on air compressor in drysorter was not guarded, as specified in 29 CFR 1910.219(e)(1)(i).?(b) A horizontal belt drive on saw grinderapproximately 4 feet above floor level not guarded in the saw filing room ofthe planer mill, as specified in 29 CFR 1910.219(e)(1)(i). ABATE May 15, 1974Penalty $2,000.00?ABOVE ALLEGED VIOLATIONS, ANY OF WHICH COULD ALONE BECONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND PENALTY PURPOSES FORTHIS ONE ALLEGED SERIOUS VIOLATION.\u00a0Standard?29 CFR\u00a0?Subpart D?Walking-Working Surfaces? 1910.23 Guarding floor and wall openingsand holes.?(a) Protection for floor openings.?(8) Every floor hole into which personscan accidentally walk shall be guarded by either:?(i) A standard railing with standardtoeboard on all exposed sides, or?(ii) A floor hole cover of standard strengthand construction that should be hinged in place. While the cover is not inplace, the floor hole shall he constantly attended by someone or shall beprotected by a removable standard railing.?(9) Every floor hole into which personscannot accidentally walk (on account of fixed machinery, equipment, or walls)shall be protected by a cover that leaves no openings more than 1 inch wide.The cover shall be securely held in place to prevent tools or materials fromfalling through.?(c) Protection of open-sided floors,platforms, and runways. (1) Every open-sided floor or platform 4 feet or moreabove adjacent floor or ground level shall be guarded by a standard railing (orthe equivalent as specified in paragraph (e)(3) of this section) on all open sides,except where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a toeboard wherever, beneath the open sides,?(i) Persons can pass,?(ii) There is moving machinery, or?(iii) There is equipment with which fallingmaterials could create a hazard.?(2) Every runway shall be guarded by astandard railing (or the equivalent as specified in paragraph (e)(3) of thissection) on all open sides 4 feet or more above floor or ground level. Wherevertools, machine parts, or materials are likely to be used on the runway, atoeboard shall also be provided on each exposed side.?Runways used exclusively for specialpurposes (such as oiling, shafting, or filling tank cars) may have the railingon one side omitted where operating conditions necessitate such omission,providing the falling hazard is minimized by using a runway of not less than 18inches wide. Where persons entering upon runways become thereby exposed tomachinery, electrical equipment, or other danger not a falling hazard,additional guarding than is here specified may be essential for protection.?? Subpart N?Materials Handling and Storage? 1910.176 Handling materials?general.?(a) Use of mechanical equipment. Wheremechanical handling equipment is used, sufficient safe clearances shall beallowed for aisles, at loading docks, through doorways and wherever turns orpassage must be made. Aisles and passageways shall be kept clear and in goodrepair, with no obstruction across or in aisles that could create a hazard.Permanent aisles and passageways shall be appropriately marked.?? Subpart O?Machinery and Machine Guarding? 1910.212 General requirements for allmachines.?(a) Machine guarding?(1) Types ofguarding. One or more methods of machine guarding shall be provided to protectthe operator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chipsand sparks. Examples of guarding methods are?barrier guards, two-hand trippingdevices, electronic safety devices, etc.?1910.213 Woodworking machineryrequirements.?(b) Machine controls and equipment.?(4) Power controls and operating controlsshould be located within easy reach of the operator while he is at his regularwork location, making it unnecessary for him to reach over the cutter to makeadjustments. This does not apply to constant pressure controls used only forsetup purposes.?(i) Bandsaws and band resaws.?(1) All portions of the saw blade shall beenclosed or guarded, except for the working portion of the blade between thebottom of the guide rolls and the table. Bandsaw wheels shall be fully encased.The outside periphery of the enclosure shall be solid The front and back of theband wheels shall be either enclosed by solid material or by wire mesh orperforated metal. Such mesh or perforated metal shall be not less than 0.037inch (U.S. Gage No. 20), and the openings shall not be greater thanthree-eights inch. Solid material used for this purpose shall be of anequivalent strength and firmness. The guard for the portion of the bladebetween the sliding guide and the upper-saw-wheel guard shall protect the sawblade at the front and outer side. This portion of the guard shall beself-adjusting to saise and lower with the guide. The upper-wheel guard shallbe made to confirm to the travel of the saw on the wheel, and the top member ofthe guard should have at least a 2-inch clearance outside the saw and be linedwith smooth material, preferably metal. Effective brakes should be provided tostop the wheel in case of blade breakage.?(r) Miscellaneous woodworking machines.?(4) The mention of specific machines inparagraphs (a) thru (g) and this paragraph (r) of this section, inclusive, isnot intended to exclude other woodworking machines from the requirement thatsuitable guards and exhaust hoods be provided to reduce to a minimum the hazarddue to the point of operation of such machines.?1910.219 Mechanical power-transmissionapparatus.?(e) Belt, rope, and chain drives?(1)Horizontal belts and ropes.?(i) Where both runs of horizontal beltsare seven (7) feet or less from the floor level the guard shall extend to atleast fifteen (15) inches above the belt or to a standard height (see Table0?12), except that where both runs of a horizontal belt are 42 inches or lessfrom the floor, the belt shall be fully enclosed in accordance with paragraphs(m) and (o) of this section.?(3) Vertical and inclined belts. (i)Vertical and inclined belts shall be enclosed by a guard conforming tostandards in paragraphs (m) and (o) of this section.?(f) Gears, sprockets, and chains??(3) Sprockets and chains. All sprocketwheels and chains shall be enclosed unless they are more than seven (7) feetabove the floor or platform. Where the drive extends over other machine orworking areas, protection against falling shall be provided. This subparagraphdoes not apply to manually operated sprockets.?(i) Collars and couplings?(1) Collars. Allrevolving collars, including split collars, shall be cylindrical, and screws orbolts used in collars shall not project beyond the largest periphery of thecollar.?(2) Couplings. Shaft couplings shall be soconstructed as to present no hazard from bolts, nuts, setscrews, or revolvingsurfaces. Bolts, nuts, and setscrews will, however, be permitted where they arecovered with safety sleeves or where they are used parallel with the shaftingand are countersunk or else do not extend beyond the flange of the coupling.? Subpart R?Special Industries? 1910.265 Sawmills.?(c) Building facilities, and isolatedequipment??(4) Walkways, docks, and platforms??(ii) Maintenance Walkways shall be evenlyfloored and kept in good repair.?(18) Conveyors?(i) Standards.Construction, operation, and maintenance of conveyors shall be in accordancewith American National Standard B20.1?1957.?(e) Log Breakdown and related machineryand facilities?(1) Log carriages and carriage runways??(vii) Sweeping devices. Carriage tracksweeping devices shall be used to keep tracks clear of debris.?(6) Planers?(i) Guards?(c) Pressure feed rolls and ?pineapples?shall be guarded.????????????? Pursuantto the enforcement procedures provided in Section 10(a) of the Act, Respondentwas duly advised by a Notification of Proposed Penalty dated April 3, 1974 ofthe proposal to assess the respective penalties set forth in the abovequotations of the various Citations. In a timely manner Respondent filed aletter dated April 18th contesting all of the Citations except Items 4, 5, 6,7, 8, 9, 13, 14, 15, 16, 17, 18, and 19 of Citation Number One. Citation NumberFour was withdrawn in the complaint filed by Complainant. The trial was held atBurns, Oregon on August 27th through 29th with this Judge presiding.PROCEEDINGS AND EVIDENCE??????????? Eachparty was represented by competent legal counsel when the trial convened. Therewas no appearance by or on behalf of any affected employees nor by the unionrepresenting them.??????????? In adiscussion preliminary to the receipt of evidence the parties agreed on theportions of the Citations challenged by the letter of contest and thus atissue. They also agreed that Complainant had withdrawn Citation Number Four inits complaint. During this discussion counsel for Respondent again admittedjurisdiction.??????????? Theinspecting Compliance Safety and Health Officer (CSHO) (Hancock) was called asComplainant?s major witness. He describes the procedure and method followed inmaking the inspection of Respondent?s workplace. During his testimony each ofthe contested Items listed in the Citation is specifically identified anddescribed. Exhibits (photographs) covering most of the Items are introduced inconnection with his testimony. He elaborates on the conditions present and thehazards observed. He also details the manner in which the proposed penaltieswere computed and the factors considered in arriving at the amounts recommendedto the Area Director of OSHA.??????????? Complainantalso called Respondent?s Personnel and Safety Director (Glenn G. Nelson) as a witness.He describes the inspected workplace as being one of the largest sawmills inOregon with about 700 of Respondent?s 925?1000 employees working at the Hinesmill. He outlines the safety procedures followed in the mill where theemployees are organized into some 40 safety groups by areas of work in themill. A safety inspection of the entire mill is made on a monthly basis. Guardswere installed on many of the machines following the inspection by the CSHO. Hetestifies that the previous Citations were not contested because the penaltieswere not too severe.??????????? Followingthe conclusion of Complainant?s evidence counsel for Respondent stated that hehad some motions to dismiss, indicating that he could itemize each one or makea general motion to dismiss for failure of proof and then flesh out the motionin the opening brief. He was advised that such a motion would be taken underadvisement and he would have the opportunity to amplify his reasons in hisbrief.??????????? Respondentrecalled the Personnel and Safety Director (Nelson), to testify on direct. Thistestimony thoroughly explored every aspect of the safety meetings includingfrequency and subject matter. A large number of safety publications andpamphlets were introduced through this witness. He explained the contents anduse of each of them in connection with Respondent?s safety program andindoctrination of new employees.??????????? Respondent?smain witness was its Assistant Personnel and Safety Director (Chet Arnett). Hismonthly safety inspection of the entire plant takes 3 or 4 days. He alsotestifies specifically with respect to most of the individual Items cited. Heaccompanied the CSHO during the entire inspection and was present during theclosing conference.??????????? Respondent?sfinal witness was a machinist (Dempsey) who has worked for Respondent for about10 years. He works throughout the plant dealing with installation and repair ofthe machinery. He estimates that there are approximately 6,000 bearings and6,000 sprockets in the saw mill and about the same number of each item in theplywood mill. His testimony is that machinists and millwrights perform much thesame type of work.??????????? TheCSHO was recalled on rebuttal to testify in connection with two specific Itemsof the Citations.Subsequent to receipt of the transcript, briefing timewas extended at the request of Respondent. Each party submitted initial andreply briefs with Respondent?s initial brief being very extensive and thorough,dealing fully with each contested Item.DISCUSSION OF LAW AND FACTSJURISDICTION???????????? Jurisdictionis alleged in the complaint and admitted by Respondent in the answer. Counselfor Respondent also admitted jurisdiction during the trial.TIMELY ISSUANCE OF THECITATIONS??REASONABLE PROMPTNESS????????????? Thisissue is timely raised by Respondent?s specific denial in the answer that theCitations were issued with reasonable promptness. It is also argued inRespondent?s brief where Respondent relies upon the Commission decision inSecretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (1974), and urgesthat the instant case must be dismissed for failure of Complainant to issue theCitations with reasonable promptness?i.e. within 3 days.??????????? Resolutionof this issue is controlled by the provisions of Section 9(a) of the Act [29U.S.C. ? 658(a)]. That Section, in pertinent part, provides:If, upon inspection or investigation, theSecretary or his authorized representative believes that an employer hasviolated a requirement of Section 5 of this Act, . . . or of any regulationsprescribed pursuant to this Act, he shall with reasonable promptnessissue a citation to the employer . . .? (Emphasis added.)???????????? Thedecision of the Review Commission in Chicago Bridge, supra, requiresthat a citation be issued within 3 working days after the issuing authority hasformed his belief that a violation has occurred. That decision of theCommission has been vacated by the Seventh Circuit, however, and thatparticular case remanded to the Review Commission for a decision on the merits.Some of the language from the Circuit Court decision is pertinent to this case:?We hold, therefore, that the rule setforth in the Commission?s decision that ? 658(a) requires the Secretary or hisauthorized representative to issue a citation within 72 hours of the time thedecision to so issue is reached is unacceptable because it is not supported bythe statute itself or by its legislative history and must be invalidated.\u00a0??????????? We donot hold, however, that the Commission is powerless to fashion a rule givingthe ?reasonable promptness? language some effect. (Footnote 8.) In other words,we find it unnecessary to decide, as the Secretary argues here, that the phraseis merely hortatory, precatory, or directive. We simply conclude that the testfor determining ?reasonable promptness? used in this case was improper.? (Theindicated footnote 8 states??Administrative Law Judge Goldstein in this caseevaluated the approximately one-month delay from the date of inspection untilthe date of issuance and concluded that it was reasonable.?) Secretary ofLabor v. Chicago Bridge and Iron Company, 514 F.2d 1082 (7th Cir. April 22,1975.)??????????? TheSeventh Circuit thus clearly holds that the meaning of ?reasonable promptness?is not limited to the restrictive 72 hours found by the Commission in itsChicago Bridge decision, supra, but depends upon that is reasonable in thelight of all of the circumstances of the particular case. The footnote quotedabove seems to say that a delay of approximately one month is reasonable?atleast the Court implies that such a delay is reasonable under the circumstancesand conditions extant in that particular case.??????????? Theinspection which is the basis of this proceeding was extensive?3 fully days,March 19, 20, and 21, 1974. As a result of the inspection the Secretary issuedten (10) separate Citations (9 of them for Repeated violations) covering 71individual Items cited under more than 30 specific safety standards. Inshort?there was a good deal of review, research, and paper work to beaccomplished before the Citations could be issued.??????????? Theindication from the record is that the CSHO was extremely diligent and speedyin preparing his recommendations for the Area Director. The inspection wascompleted on a Thursday and the recommendations of the CSHO were delivered tothe Area Director on the following Monday. A most commendable dispatch. Atleast sixty-two (62) photographs taken during the inspection were alsodeveloped, identified, and delivered to the Area Director. It is true that therecord is not clear as to when the photographs were presented but it seemsobvious that they were necessarily considered in determining whether thevarious Citations should issue. Irrespective of this, it is clear that therewere a number of discussions between the CSHO and the Area Director concerningthe inspection. (Transcript pgs 386, 395.) Likewise, it is certain that all ofthese discussions occurred after the day on which the recommendations weremade?Monday, March 25th. Nevertheless, even with all of the activity, reviewand consultations, the Citations were actually issued on Wednesday, April3rd?just 13 days after completion of the inspection.??????????? Consideringthe complexity of the Citations and the large number of individual Items ofalleged violation, this is certainly a very quick issuance of the Citations.There is no indication of any unreasonable delay in the light of the discussionof the Seventh Circuit in the Chicago Bridge and Iron Company case, supra. Noris there the slightest indication of any prejudice to Respondent?s preparationof its defense in this matter arising from the 13 elapsed days. In fact,Respondent has not even hinted at any such prejudice. Respondent?s attack uponthe validity of the Citations on the ground that they were not issued withreasonable promptness is without any merit whatsoever and must, therefore,FAIL.UNENFORCEABLY VAGUE STANDARDS???????????? Throughoutits brief Respondent urges that some of the safety standards cited in theinstant matter are so vague as to be unenforceable. Respondent relies upon theCommission decision in Secretary v. Grayson Lumber Company, Inc., 3OSAHRC 541 at 543?546 (1973) as authority requiring dismissal of certain of thealleged Items of violation. That decision interprets Section 3 (8) of the Actand sets up tests for determining whether a safety standard is unenforceablyvague.??????????? Section3 (8) of the Act reads, ?The term ?occupational safety and health standard?means a standard which requires conditions, or the adoption or use of one ormore practices, means, methods, operations, or processes, reasonably necessaryor appropriate to provide safe and healthful employment and places ofemployment.? The concurring opinion of Chairman Moran in the Grayson LumberCompany case, supra, establishes tests by which to determine whether asafety standard is so vague as to be unenforceable. Those tests are statedthusly:?To meet the requirements of this Act, anoccupational safety and health standard must specify, as a minimum, exactlywhat the employer is required to do and the circumstances under which, or thetime when, it is to be done . . .\u00a0??????????? Therequirements which this law imposes upon employers and employees must be statedclearly and precisely. This is no place for guessing games, tricky phraseology,or obfuscation.??????????? Whena standard makes an employer guess, gamble and grope to be in compliance, thatstandard (a) fails to serve the purposes of the Occupational Safety and HealthAct, (b) does not fall within the definition of an occupational safety andhealth standard contained in the Act, and (c) is unconstitutionally vague.???????????? Theforegoing tests will be applied in this decision. Each standard that isattacked on the ground of vagueness will be evaluated in their light.Determination of the validity of such a standard will be indicated in thediscussion of that particular standard in connection with the respective Itemshereafter.EXPOSURE OF MILLWRIGHTS AND MAINTENANCEMEN TO VIOLATIONS???????????? Inits brief Respondent urges, on occasion, that the only persons exposed to thecited danger are millwrights and maintenance workers and thus the allegedviolations should be nullified. The standards are established to protect all ofthe employees of an employer?not just certain employees who happen to work in aspecific area. The millwrights and maintenance men admittedly enter every partof the sawmill at some time or other in order to perform their duties. They arethus frequently exposed to hazards that would not endanger ordinary employeesbecause the millwrights and maintenance men must go into remote areas tocorrect malfunctioning machinery or to render routine maintenance and upkeep onsuch machinery.??????????? Inthis instance (for the purposes of this proceeding) millwrights and maintenancemen are specifically found to be employees who are entitled to the safeguardsand protections of the Act. Their exposure to a particular hazard resultingfrom violation of a standard visits responsibility upon the employer just assurely as does the exposure of any other regular employee who happens tooperate a machine while assigned to a specific work area or work station.Respondent?s argument is without merit?except as an indicator of the gravity tobe attributed to any given violation. If the only established exposure to thedangers of a violation is of millwrights and maintenance workers on theiroccasional servicing or repairing of machines, then the gravity of thatparticular violation will be considered to be very low. Such a determinationwill be made hereafter in connection with the discussion of the individualItems.FAILURE OF CSHO TO FURNISH COPY OF STANDARDS???????????? It isobvious from the evidence that the CSHO did not leave a copy of any of thecited standards (ANSI or otherwise) with Respondent?s representatives at theconclusion of the closing conference or at any other time during theinspection. Respondent argues that this invalidates that Citations and isgrounds for dismissing several Items of the Citations. The wording of the Actdoes not support such a conclusion.??????????? TheOccupational Safety and Health Act requires an employer, with employees in abusiness affecting commerce, to comply with the safety and health standardspromulgated pursuant to Section 6 of the Act. It is the responsibility of theemployer to ascertain which of the many promulgated standards has applicabilityto his particular business. There is nothing in the Act which requires theSecretary to deliver a copy of the standards, or of their sources such as theANSI standards, to an employer. The requirement appearing in the ComplianceOperations Manual to this effect is an internal instruction to the CSHOs anddoes not confer any rights upon Respondent. Delivery of a copy of a citedsafety standard is, at most, a courtesy to the employer. Failure to deliver acopy does not invalidate the Citations. Respondent?s argument in this regard must,and does, FAIL.REPEATED VIOLATIONS???????????? CitationsNumber 2 through 10 are captioned as ?Repeated? violations. Respondent objectsto such a classification and argues that Complainant should not be able to relyon previous Citations issued to Respondent following inspections in April andJune 1972 and thereby charge repetition or violations and assess much largerpenalties than a first time violation would warrant.??????????? Theclassification of violations as ?repeated? has significance because itindicates that Respondent has previously been cited for violation of the samesafety standards as are involved in the instant proceeding. Under Section 17(a)of the Act [29 U.S.C. ? 666(a)] the penalty on the occasion of a ?repeated?violation may be assessed at a figure up to ten (10) times that of a firstinstance violation. Thus it appears that Congress believes that a repeatviolation is a more flagrant type of conduct than a first violation. It isclear that Congress intended that an employer repeating a violation shouldincur a greater penalty for the repetition than for an original violation.[Compare Section 17(a) with Sections 17(b) and 17(c).]??????????? Respondentargues that ?repeated?, or ?repeatedly? as the term is used in Section 17(a),means ?again and again? or in other words, more than a second time. (SeeRespondent?s Brief, pgs 71 and 72.) While, as noted by Respondent, somedictionaries give this meaning to the word ?repeated?, others include ?morethan once? as the primary definition. See for example, The World BookDictionary, 1971 Edition, and Webster?s New World Dictionary of the AmericanLanguage, College Edition, 1968.??????????? TheReview Commission has rendered this argument moot, however, since it recentlydefined the term ?repeated? in relation to what constitutes repeatedviolations, as follows:?The term ?repeated? is therefore read tomean happening more than once in a manner which flaunts the requirements of theAct. With a test of whether the requirements of the Act are being flaunted itcannot be said abstractly just how many places of employment or conditions ofemployment should be considered. Each case must be decided upon its ownmerits and turn upon the nature and extent of the violations involved…..?(Emphasis added.) Secretary v. General Electric 17 OSAHRC 49 (1975).???????????? Fromthis, ?repeated? or ?repeatedly? is taken to be the term identifying a secondor subsequent violation of a safety standard previously cited. (In the instantcase there is no need to consider location of the previous violations since theyadmittedly occurred at the same sawmill.) This is the definition that will beapplied in the instant proceedings. Thus, if the evidence offered in connectionwith any of the alleged repeated violations establishes that Respondent hasbeen previously cited for violation of the particular standard in question thenthe violation proved here will be considered to be a ?repeated? violation. Itis noted here that the two previous Citations, offered as Exhibits 63 and 64and relied on by Complainant, have become final orders of the Commission byreason of the fact that Respondent affirmatively chose to not contest themwithin the 15 working day period specified in Section 10(a) of the Act [29U.S.C. ? 659(a)]. The determination herein of whether a given alleged violationis ?repeated? will be made in connection with the discussion of each individualItem hereafter.??????????? Respondenthas raised two other arguments in connection with ?repeated? violations thatare without merit but which should be disposed of here and now. These argumentsare that the Citations resulting from the April and June 1972 inspections area) ?. . . too old and stale to form thebasis for calculation of Section 17(a) penalties in this proceeding…..?; andthatb) ?. . . Those violations, however,occurred more than six months before the issuance of Citations Nos. 3 (sic)through 10 and therefore, under Section 9(c), may not form the basis for repeatviolations, as alleged by the Secretary.? (Brief pgs 73 and 74.)???????????? a)Having once been cited for and required to abate violation of a given safetystandard, the employer has thereby been made specifically aware of theconditions comprising a violation. In effect he has been put on notice of therequirements, as well as the existence, of the violation. When he repeatsviolation of such a previously cited safety standard it is an indication thathe is not as concerned with the safety of his employees as Congress believes heshould be. Hence Congress provides the vehicle for assessment of a greatly increasedpenalty for such a repetition.??????????? Atthe same time it is noted that there is nothing in the Act, or in itslegislative history, which would indicate a cut-off time after which a priorcitation would be ?too dold and stale? to be used as the basis for issuing acitation for a ?repeated? violation. It appears that any prior violation of thesame standard would be notice sufficient to sustain citation for a ?repeated?violation. At least, in this particular case, it is affirmatively found thatcitations issued some two years before the instant ones have not, with thepassage of time, lost their viability for this purpose. Respondent?s ?too oldand stale? argument must, and does, FAIL. The only apparent requirement is thatthe same safety standard be violated in each instance.??????????? b)Respondent?s reliance upon the provisions of Section 9(c) of the Act [29 U.S.C.? 658(c)] is also misplaced. Respondent?s argument in this regard is that,since it is more than six months after the inspections in 1972, Complainant cannotlook back to the citations stemming from those inspections and charge that theinstant violations are ?repeated?. This argument misinterprets the clearmeaning of the section relied upon.??????????? Section9 of the Act provides for the issuance of the basic citation following aninspection. Subparagraph (c) is a statute of limitations in that it providesthat No citation may be issued under Section 9 after the expiration of sixmonths following the occurrence of any violation. In other words, if theSecretary does not issue a citation within six months of the inspection he isprecluded evermore from doing so. However, this statute of limitationsprovision does not apply to the facts of this proceeding. The citations arisingfrom the April and June 1972 inspections were issued within the six monthperiod and have become final orders through the operation of Section 10(a). TheCitations involved here are dependent upon the conditions found during theMarch 1974 inspection. Reference is made to the 1972 inspections for the solepurpose of determining whether Respondent has previously violated the standardscited in the instant proceeding. The charge that the violations are ?repeated?only goes to the amount of the penalty to be assessed. Reference to the priorcitations for this purpose is valid.GROUPING ALL VIOLATIONS OF THE SAMESTANDARD IN A SINGLE CITATION???????????? Respondenturges that the violations alleged in Citations Numbers Seven and Ten shouldhave been grouped into one alleged Citation. This point is well taken. EAch ofthese two Citations charges that certain horizontal belts were not guarded inaccordance with the requirements of the safety standard found at 29 CFR1910.219(e)(1)(i). There is no reason apparent on this record for separatingthese various violations of the same safety standard into two separateCitations. Such a separation is apparently contrary to Complainant?s owninternal instructions to its CSHOs. See Chapter X B.1.a. of Complainant?sCompliance Operations Manual, January 1972. In this instance Complainant hascited Respondent for violation of the same safety standard on two differentCitations. Citation Number Seven is alleged as Repeated Non-Serious andCitation Number Ten is alleged as Repeated Serious. In this way Complainant hasproposed a penalty of $115 for Citation Number Seven and $2,000 for CitationNumber Ten. Thus, by not grouping all violations of the same standard, theoverall penalty is increased by at least $115. Under all of the circumstancesinvolved here this is patently unfair to Respondent. Accordingly, CitationNumber Seven is hereby merged into, and grouped with, Citation Number Ten as asingle Citation for an alleged Repeated Serious Violation.SERIOUS VIOLATIONS IN GENERAL???????????? Respondentargues against classifying any of the violations as serious. In support of thisposition Respondent urges that the CSHO ?. . . apparently looked only to thetype of injury which might result and did not give any consideration to thelikelihood of an accident resulting. The requirements of Section 17(k) of theAct were therefore not satisfied . . ..? (Brief, pg 68.) This argument is basedon an erroneous interpretation of Section 17(k).??????????? Underthe terms of Section 17(k) of the Act [29 U.S.C. ? 666(k)] a violation isserious if there is a substantial probability that death or serious physicalharm could result from the violative condition involved. It is not necessarythat there be a substantial probability of an accident occurring because of theexisting hazard?only that there be a substantial probability that if anaccident does occur the resulting injury will be serious in nature or thatdeath will result. See Secretary v. Standard Glass and Supply Company, 2OSAHRC 1488, 1489 (1973) and Secretary v. Crescent Wharf & Warehouse Co.,2 OSAHRC 1318, 1325 (1973).??????????? Section17(k) also requires that the employer know of the violation before it isconsidered as serious. This requirement is considered to have been met heresince all of the violations classed as serious are repetitions of prior violationsof the same standards. Thus we imply that Respondent had knowledge of theexisting violative conditions.??????????? Respondent?aargument has entirely missed the proper interpretation and application ofSection 17(k). The Commission decisions cited in the second paragraph precedingare controlling. The specific question of whether a given violation is seriouswill be resolved in connection with the discussion of each individual Itemhereafter.APPROPRIATENESS OF PENALTIES IN GENERAL???????????? Indetermining the appropriateness of any penalty to be assessed in connectionwith the various Items it is necessary to give due consideration to thecriteria (history of previous violations, size of business, good faith, andgravity) set forth in Section 17(j) of the Act.??????????? Citationsfor violations. Those Citations have become final orders. Many of the presentlycontested Items are repetitions of violations cited during the previous twoinspections.??????????? 2.Respondent is one of the largest sawmills in the state of Oregon and in thenation. The plant covers some 320 acres and employs approximately 717 ofRespondent?s overall total of about 950 employees.??????????? 3.Respondent has an organized safety program which the CSHO describes as ?. . .one of the better safety programs, administrative-wise that any company I hadever run into; however, they had safety committees, employee representatives onthe safety committees; they had two safety personnel employed by the company,one full time and one, I believe was personnel and safety also.? After notingthe foregoing, the CSHO nevertheless stated that he did not accord Respondentany credit for good faith. It is apparent from this, as well as from the recordas a whole, that Respondent has made an effort to provide a safety program forthe benefit of its employees. However, at the same time there is clearindication on this record that Respondent has not adequately followed throughin protecting them. This failure is shown by the repetition of many of theviolations after previous citations. It is therefore concluded that Respondentis somewhat lacking in good faith. For the record it is noted here that theItems found to be in violation are only a very small percentage of the numberof such Items to be found in the entire sawmill.??????????? 4.The gravity of each Item will be considered in connection with the discussionof the penalty assessed for each individual Item hereafter.THE INDIVIDUAL ITEMS OF THE CITATIONSCITATION NUMBER ONE?Non-Serious : ITEM1?1910.213(b)(4)?penalty proposed $0??????????? ThisItem alleges that the power control for the band saw was on a panel behind thesaw and not within easy reach of the operator. The testimony concerning thelocation of the saw is in conflict. The CSHO testifies that there wassufficient space?2 to 3 feet?in back of the saw to permit the passage of aperson between the saw and the wall. Respondent?s Safety Director insists thatthe saw was flush against the wall. The Safety Director?s testimony is clearlybased on observations made and measurements taken after receipt of theCitations. This time lapse could easily explain the discrepancy. It is verypossible that the saw was moved after the inspection. It is clear from thephotograph taken by the CSHO during the inspection (Exhibit #1) that the sawwas located somewhat out from the wall?not flush with it. The location of thelegs of the saw with relation to the wall gives this indication. The protrusionof the lower platform level on the saw also makes it apparent that the saw wasnot flush with the wall. Note that this platform protrudes towards the wallwell beyond the working surface at the saw blade and thereby establishes thatthere is a considerable distance between the wall and the saw blade. Theoperator stands to the left of, and even with, the saw blade and is thereforeequally removed from the wall as is the saw blade. The testimony of the CSHO isaccepted as being correct with respect to location of the saw at the time ofthe inspection.??????????? Thislocation of the saw out from the wall makes it apparent that the operator wouldalso be located more than 2 to 3 feet from the wall while standing in positionto operate the saw. He would thus be at such a distance from the power controlon the wall panel that it was not within easy reach.??????????? Theforegoing discussion would seem to indicate that Respondent was in violation ofthe cited standard. NOT SO. The standard is couched in ?advisory? rather than?mandatory? words. It provides that, ?Power controls and operating controlsshould be located within easy reach of the operator . . .?. (Emphasis added.)It is noted here that this wording is a radical departure from the generaltenor of Section 1910.213. The other sub-sections of .213 with 2 or 3exceptions, use the mandatory ?shall? while the particular sub-section involvedhere [.213(b)(4)] uses the advisory ?should?. It is concluded that thisdeparture from the normal wording of the section has significance. Thesignificance given to it is that .213 (b)(4) is advisory only.??????????? Thisconclusion is validated by the original language used in issuing the Part 1910standards in 1971. In the promulgating document the Secretary explained thedesignation of certain standards as national consensus standards and includedstandards adopted and promulgated by either the American National StandardsInstitute or the National Fire Protection Association. The promulgatingdocument then goes on to state:. . . The national consensus standardscontain only mandatory provisions of the standards promulgated by these twoorganizations. The standards of ANSI and NFPA may also contain advisoryprovisions and recommendations the adoption of which by employers isencouraged, but they are not adopted in Part 1910.(Federal Register, Vol. 36,No. 105, May 29, 1971. pg 10466.)???????????? Fromthis it is clear that the safety standard codified at .213(b)(4) is advisoryonly. The Secretary encourages the employers to comply with it but apparentlydoes not consider it as mandatory. Since it is found to be advisory only, it isnot enforceable. Secretary. v. Kingery Construction Co., 16 OSAHRC 835(1975) and Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 at 1214(1973). Item 1 of Citation Number 1 is VACATED.ITEM 2?1910.265(c)(18)(i)?(4sub-Items)?penalty proposed $65??????????? Oneof the several separate arguments posed by Respondent in connection with eachof these 4 sub-Items is repeated each time. Respondent urges that each sub-Itembe dismissed because of the failure of the CSHO to leave copies of the citedstandards with Respondent at the conclusions of the closing conference. Thisfailure to leave copies of the cited standards or their source documents doesnot invalidate the Citations. See the reasoning disposing of this argument inthe general preliminary discussion above. Respondent?s argument FAILS.??????????? a)This sub-Item alleges that an employee was standing on a conveyor whileunplugging a bin and the conveyor was not locked out so that only the employeeworking on the bin could turn it on. The evidence establishes that actually twoemployees were standing on the conveyor. It also shows that no lockout deviceor any other type of safeguard was in place to prevent accidental orinadvertent activation of the conveyor. Anyone passing the control switchescould have activated them.??????????? It istrue that the switches were in the direct view of one of the two men standingon the conveyor, but there is no indication that he was assigned to guardagainst activation of the conveyor. His apparent assignment was to assist theman clearing the unplugged bin. (It is noted here that assignment of the extraman to watch the switches would technically not be compliance.??????????? Inaddition to the argument mentioned at the beginning of this Item, Respondentargues that this sub-Item should be dismissed because (1) the basic ANSIdocument only ?recommends? lockout of the controls and (3) the momentaryfailure to lockout the switches while in plain view and a short distance awayfrom the millwright was of a de minimis nature. The first of these arguments iswell taken. The cited section of the ANSI document is prefaced by thestatement, ?The following operating rules are recommended for all conveyorinstallations.? (Emphasis added.) Such a provision falls within the conclusionreached above in connection with the operating controls for the band saw wheresimilar wording is found to be ?advisory? only and therefore not enforceable.Accordingly, this sub-Item is VACATED on that same rationale.??????????? b)This sub-Item alleges that employees cross under a feed chain conveyor that isnot fitted with protection to prevent lumber from falling onto employees. Fromthe evidence it is clear that there was no guard along the chain for thispurpose. However, there is no direct evidence that any of Respondent?semployees use the area for passage under the conveyor, either on a regular oroccasional basis. There is no indication of any reason for the employees to usethe cited area as a passageway since there is no machinery or workstation onthe other side of the conveyor. The hearsay evidence given by the CSHO in thisregard is directly denied by Respondent?s witness (Arnett) who is the allegedsource of the hearsay. The CSHO was the only person to pass under the conveyorduring the inspection. Respondent?s employees in the inspection party walkedanother 20 or so feet to one side and passed around the end of the chain.??????????? Inaddition, there is NO evidence of lumber falling in the cited area except forthe speculation of the CSHO to that effect. There is an indication that lumberdid fall from the conveyor on occasion, but the area of fall is some 20 to 25feet to one side of the cited area where there is a change in the level andinclination of the chain. That area of danger was blocked from access by a wirestretched so as to form a barrier to entry into the area.??????????? Therebeing no proof, either of actual danger to Respondent?s employees from fallinglumber or of an actual exposure of Respondent?s employees to a danger from thissource, this sub-Item is VACATED.??????????? c) Inthis sub-Item it is alleged that there was a passageway under 4 conveyorswithout any signs posted warning of the low overhead. The cited standard refersin turn to an ANSI standard [ANSI B20.1 705(b)] as containing the safetyprecautions to be observed. That standard only requires that the low overheadbe indicated by ?telltales?. The CSHO admits that a bright color would satisfythe requirements of a ?telltale?.??????????? TheCSHO agrees that a couple of the overheads were painted a different color butdoes not recall that they were brightly painted. Respondent?s witness (Arnett)testifies that each of the 4 passageways was indicated with a stripe of brightred paint marking the lower edge of the overhead. Each stripe was 4 inches wideand about 4 feet long extending across each passageway about 5 to 5 1\/2 feetabove the ground. Each side of entry into the passageways under the conveyorswas marked so that the bright red telltale was visible on approach from eitherdirection. This witness testifies that the bright red stripes have been inplace since 1970. He thinks that the red striping has been replaced on a yearlybasis and is certain that it has been renewed since 1970.??????????? Underthe circumstances of the evidence on this record it is concluded that the lowoverheads on the cited passageways were indicated and marked by bright redpaint striping which satisfies the requirements of the cited standard. The redstriping was clearly an adequate ?telltale?. This sub-Item is, therefore,VACATED.??????????? d) Itis alleged in this sub-Item that ?the outfeed roller casing conveyor from No. 1,2, 3 head rigs did not have a crossover to protect employees from being struckby lumber being conveyed by the power rollers from the head rig?. There isclear evidence establishing this violation. During the inspection the CSHO wasactually in the path of a cant being propelled along this conveyor as hecrossed over the conveyor. He was on a passageway crossing through theconveyors when he noticed a large cant moving towards him and stepped out ofits way. He was told that this was the usual way that the men crossed and thatthey had done so for many years. He observed two employees, other than theinspection team, use the passageway in crossing the conveyors.??????????? Respondentdoes not dispute the facts testified to by the CSHO. Respondent only argues fordismissal of this sub-Item on the basis of the failure of the CSHO to leavecopies of the cited ANSI and Building Exits standards. As noted above, thisfailure does not invalidate the issuance of the Citations. The conditionsestablished by the evidence here are a violation of the safety standard cited.This sub-Item is AFFIRMED.??????????? Thegravity of the violation covered by this sub-Item is considered to be moderate.Two employees were observed crossing the conveyor while the roller casings werein operation. Five employees work in the immediate area. The CSHO was told thatthe employees always crossed in that particular manner. Many of the cantspowered along the conveyor are quite large, weighing as much as 75 pounds each.??????????? Complainantproposed a combined penalty of $65 in connection with the 4 sub-Items of thisItem. Three of the sub-Items are vacated herein and the fourth sub-Item, (d),is considered to be moderate in gravity. Giving due consideration to thecriteria set forth in Section 17(j) of the Act it is concluded that a penaltyof $25 is appropriate in this instance and will serve to effectuate thepurposes of the Act.ITEM 3?1910.265(e)(1)(vii)?penaltyproposed $0??????????? ThisItem alleges that Number 1, 2 and 3 head rigs did not have rail sweeps on theiroutside U-rails. The evidence clearly establishes that each head rig was onlyfitted with a rail sweep on the inside rail. There were no sweeps on any of theoutside rails. Respondent admits this fact in its brief. However, at the sametime Respondent argues for dismissal of this Item on the basis that there is noshowing that debris collects on the outside rails and thus there is no need tohave rail sweeps on them.??????????? TheCSHO did not observe any debris on the outside rails during the inspection. Heasked Respondent?s Assistant Safety Director (Arnett) whether debrisaccumulated on the outside rails. The response was that their major problem waswith debris accumulating on the inner rails. He did not dispute the possibilityof debris lodging on the outer rails nor did he admit that debris was anyproblem on the outer rails. During his testimony at the trial Arnett statesthat they have never known or observed the accumulation of debris on the outerrails. He admits the problem with respect to the inner rail and states thatthey have fitted sweeps on them. Although there is no clear testimony of thepresence of debris collecting on these outer rails, the exhibits introduced inconnection with this Item indicate the possibility of such an accumulationoccurring. Note the sawdust and chips along the entire length of each outerrail.??????????? Thecited standard reads, ?(vii) Sweeping devices. Carriage track sweeping devicesshall be used to keep track rails free of debris.? This wording seems toindicate that rail sweeping devices are required if debris collects on thetracks. Since there is no clear showing on this record that such a conditionexists at Respondent?s workplace there is no reason to require the installationof sweeps on the outer rails. In addition, it is particularly noted that thisrecord does not indicate or even hint at the presence of any employees workingat or being in the vicinity of these head rigs. Thus there is no provenemployee exposure to any hazard which might exist at the cited location. Underthese circumstances it is found here that Respondent has not violated thesafety standard cited in connection with this Item. The Item is VACATED.ITEM 10?1910.212(a)(1)? (5sub-Items)?penalty proposed $85Sub-Items (a), (b) and (e) of this Item allege that Respondentfailed to guard the tail pulleys on each of 3 separate conveyors. In theCitation it is charged that this was in violation of the safety standardcodified at 1910.212(a)(1). This cited standard is the first paragraph of thegeneral safety requirements applicable to all machines. Under the provisions of1910.5(c)(1), 1910.212(a)(1) is a ?general? standard as opposed to a ?specific?standard. In pertinent part section 1910.5(c)(1) provides:(c)(1) If a particular standard isspecifically applicable to a condition, practice, means, method, operation, orprocess, it shall prevail over any different general standard which mightotherwise be applicable to the same condition, practice, means, method,operation, or process . . .???????????? Sincethere is a group of safety standards that specifically apply to conveyors andprovide for employee safety in connection with the installation and operationof such machinery (see 1926.555 and ANSI B20.1?1957 cited therein) thosestandards are applicable to the cited conveyor pulleys. Complainant should havecited them rather than the general machine safety standard cited and reliefupon in this instance. Secretary v. Sun Shipbuilding and Drydeck Company,4 OSAHRC 1020 (1973).??????????? It isnoted here that, in addition to citing an improper standard, Complainant hasfailed to establish a violation in connection with any of these three pulleys.In each instance the sides of the pulleys and the in-going nip points are fullyguarded. The pulley cited in sub-Item (a) is also somewhat guarded by locationsince it is 23 inches in back of a frame that bars close approach to it.Accordingly, sub-Items (a), (b) and (e) are VACATED.??????????? c)This sub-Item alleges that a crushing wheel in the chipper room of the plywoodplant was not guarded. The crushing wheel in question is located inside a smallroom where no employees work. The nearest employees are outside There is noneed of an employee being in the room while the wheel is in operation. Amillwright looks in the door approximately 4 times a day for a visualobservation of equipment in the room but does not lubricate or adjust it whileit is in operation. The wheel is located at some distance from the entrancedoor to the chipper room. As the door is entered, other machinery with expandedmetal guards over it blocks direct approach to the danger area. The wheel isthus guarded by location within the room as well as by the fact that noemployees work in the room. The evidence offered does not establish theexposure of any of Respondent?s employees to danger from the crushing wheel.Accordingly, this sub-Item is VACATED.??????????? d)This sub-Item alleges that unguarded rotating wheels were located 6 feet 9inches above the floor of a passageway under the trim saw and panel turner inthe plywood plant. The facts are undisputed. The wheels are located at theheight indicated. However, they are about 2 feet to one side of the pathordinarily followed by employees using the passageway. It is the ordinary routeused by employees moving from one part of the plant to the other. Three or fouremployees were observed using the passage. During the inspection the wheelswere turning slowly and were unguarded. The outer surfaces of the wheels aresmooth and do not have any keyways, slots or screw heads protruding from them.??????????? Respondentargues that this sub-Item should be vacated.?It is urged that the cited rotating wheels are mechanical powertransmission apparatus and thus should have been cited under the safetystandards specifically applicable to such equipment rather than the generalmachine safety standard relied on here. There is nothing in this record whichwould indicate that these rotating wheels are any part of mechanical powertransmission apparatus. The only indication is that the rotating wheels werepart of the machinery of the trim saw and panel turner. As such they arecovered by the general machine safety standards found at 1910.212(a)(1). Thestandard has been violated as cited and is AFFIRMED.??????????? Thegravity in this instance is extremely low. The location of the unguardedrotating wheels 6 feet 9 inches above the floor of the passageway, taken inconjunction with their smooth outer surfaces makes it highly unlikely thatanyone will become entangled in them. Under these circumstances a penalty of $0is deemed appropriate.ITEM 11?1910.213(r)(4)? penalty proposed$0??????????? ThisItem alleges that the trim saws on the ends of grader table No. 6 and 7 in themoulding shop need a barrier guard around the saw blade to prevent an employeefrom coming into contact with the saw blade. The trim saw cited had recentlybeen moved into the new moulding plant from its old location. The barrierguards previously in place around it had not been replaced in position afterthe saw been off the saw for at least two days at the time of the inspection.Under these circumstances there is a clear violation of the cited standard.Item 11 is AFFIRMED.??????????? Atthe time of the inspection the upper portion of each blade was necessarilyunguarded so that the saw could be used as intended. Because of the manner inwhich the saw is used the operator never approaches to closer than five feetfrom either of the blades. In this way the operator is protected from thedanger of the two saw blades by the location of his work station. However,without barrier guards other employees working nearby are not barred fromapproaching and entering the danger zone. This danger is somewhat reduced sincethe men picking up the lumber scraps around the saw never approach it while thesaw is in operation. Under all of the circumstances here it is found that thegravity of this violation is very low. The absence of the barrier guards hasbeen very short in duration and thus the exposure of employees has been held toa minimum. Note that the guards were reinstalled before the CSHO left theplant. Accordingly a penalty of $0 is found to be appropriate here.ITEM 12?1910.213(i)(1)?penalty proposed$70??????????? ?This Item alleges that approximately 1\/2 ofthree separate spoked wheels on the veneer core bandsaw were not guarded. Fromthe evidence it is apparent that 1\/4 to 1\/2 of each of three wheels were notenclosed. Respondent admits this in its brief. Respondent?s witness also admitsthat there was nothing to keep an employee from approaching the unguardedwheels. The area around the wheels would be considered a work station formillwrights in that they come through the area on maintenance rounds. Item 12is AFFIRMED.??????????? Gravityhere is rather low since the nearest work station is 20 to 25 feet away. Theoperator who loads this machine apparently never comes around to the side wherethe unguarded wheels located. Millwrights may come into the area on occasionfor inspections and maintenance. Respondent installed hinged covers over thedanger areas within 2 to 3 months after the inspection. Under thesecircumstances it is found that a penalty of $25 is appropriate.CITATION NUMBER TWO?REPEATEDNON-SERIOUS?Penalty proposed $100??????????? ITEM1?1910.219(i)(1)?3 sub-Items??????????? ThisCitation alleges that 3 specific couplings were observed to be in ?repeated?violation of the cited safety standard because they were not covered or guardedas required by that standard. The safety standard cited in the Citation waschanged by Complainant in its complaint from 1910.219(i)(1) to 1910.219(i)(2).This change is entirely appropriate since .219(i)(1) refers to collars and theviolation alleged involves couplings which are covered by .219(i)(2).Respondent has not objected to this amendment of the Citation in the complaint.??????????? Inidentifying the violations in the complaint which are allegedly ?repeated?,Complainant omits Citation Number Two from the list. This omission is mostappropriate. 1910.219(i)(2) was not cited in the previous inspections.Consequently any violation of that standard which may be established in this proceedingis NOT a ?repeated? violation.??????????? Respondentattacks the cited standard, 1910.219(i)(2), arguing that it only states themanner in which couplings are to be constructed, not that covers are required.Based upon this argument, Respondent urges that the standard does not apply tothe instant case. This is a fallacious argument. The standard specificallystates that couplings shall be constructed so as to present no hazard frombolts, nuts, setscrews or revolving surfaces. However, the standard does permitthe use of bolts, nuts and setscrews if they are covered with safety sleeves.They may also be used parallel with the shafting if their heads arecountersunk. In this particular instance the outer surfaces of the couplingswere smooth without any screws or keyways protruding from them. However, smallbolts were protruding from their sides. Thus, under the standard, a safetysleeve should have been in place. A safety sleeve is certainly a cover orguard, the absence of which would be a violation of the cited standard. It isnoted that Respondent does not contend that a safety sleeve or any other devicewas in use to cover the bolts and rotating surfaces involved here. Respondent?sargument must fail.??????????? Thecoupling involved in Item 1(a) was located on top of a platform some 8 to 10feet above the floor. Access to the platform was by a ladder with a chainacross the top and a sign saying ?No Admittance?. Although there is no regularworkstation on the platform, an employee does go to the platform once a week tooil the machinery?but only when the mill is shut down and the machinery is notin operation. Under these circumstances it is concluded that, even though thecoupling is not covered or guarded, there is no violation since there is noevidence in this record of the exposure of any of Respondent?s employees to thehazard. Item 1(a) is VACATED.??????????? TheCSHO is unable to recall the specific coupling described in Item 1(b). Thephotograph taken during the inspection did not turn out. Consequently, there isno evidence on which to base a finding of a violation in respect to Item 1(b).Accordingly, Item 1(b) is VACATED.??????????? Thecoupling covered by Item 1(c) is located inside the chipper room where there isno work station. It is across the room from the door?with the chipper machinebetween the coupling and the door. A millwright looks in at the door 4 times aday for a visual inspection of the machinery in the room. He does not approachcloser than 64 inches from the coupling. In order to get closer than this he wouldhave to climb over the chipper and through a pit before reaching the coupling.His only purpose for looking into the room is for a visual check of operatingmachinery. The coupling is thus well protected by location so that employeescannot approach the danger zone.??????????? Theforegoing discussion leads to the conclusion that, even though the coupling wasnot covered with a sleeve or guard, there is no violation since Complainant hasnot shown any exposure of Respondent?s employees to the hazard of the coupling.Item 1(c) is VACATED.CITATION NUMBER THREE?REPEATEDNON-SERIOUS?(9 sub-Items)?Penalty proposed $180\u00a0??????????? ThisCitation alleges that each of the 9 sub-Items was in violation of the safetystandard codified at 1910.23(c)(1). However, in the complaint Complainantamends the Citation to allege that sub-Items (a), (b) and (e) are violations of1910.23(c)(2); that sub-Item (f) is a violation of 1910.23(a)(9); and thatsub-Item (g) is a violation of 1910.23(a)(8). The standard allegedly violatedin sub-Items (c), (d), (h) and (i) is not changed from the originally cited1910.23(c)(1).??????????? Thecomplaint also amends the wording describing the alleged violation covered bysub-Item (g) to read: ?A floor hole on walkway along veneer belt to inclinedrier approximately 12 feet above next lower level in the plywood plant was notguarded or covered, contrary to 29 C.F.R. (sic) 1910.23(a)(8);?.??????????? Inaddition, the complaint amends the amount of penalty sought in connection withthis Citation so as to reduce the total amount sought from $180 to $130. Thisamendment also apportions the proposed penalties so as to seek a penalty of $80in connection with combined sub-Items (c), (d), (h) and (i); $50 in connectionwith combined sub-Items (a), (b) and (e); and SO in connection with combinedsub-Items (f) and (g).??????????? Respondenthas not objected to these amendments and there is no showing in this record ofany prejudice to Respondent arising from them. Accordingly they are allowed andare the basis for consideration of Citation Number Three herein.??????????? Complainanthas classified the violations alleged in Citation Number Three as being?repeated?. This classification is based upon the fact that violations observedduring earlier inspections were cited under this same safety standard[1910.23(c)(1)] on citations previously issued to Respondent and now finalorders. As noted above, Complainant has amended this Citation with reference to5 of the 9 sub-Items [(a), (b), (e), (f) and (g)] and thus removed them fromthe category of ?repeated? violations since the safety standard now relied onin connection with them does not appear in the previous Citations offered inevidence herein.ITEM 1(a)?1910.23(c)(2)?as amended??????????? It isalleged that a ?walkway? to a hoist did not have a guard rail installed as requiredby the safety standard cited, which referred to ?platforms?. The originallycited standard was subsequently amended to refer to the ?runway? standard. Thearea described in the evidence is not a passageway leading to another location,nor does it fit the definition of a ?runway? as that term is defined in1910.21(a)(5). The area cited is for the limited purpose of using and movingthe tail pulley located adjacent to it. Such use occurs about 5 or 6 times ayear. It thus clearly appears that this area is a ?platform? under1910.21(a)(4). As such, the safety standard controlling is that found at1910.23(c)(1). Complainant has cited an inapplicable standard.??????????? Inaddition, there is no specific evidence that the platform did not have a guardrail. The CSHO states that it did not, but at the same time admits that it didhave some superstructure. The photograph offered by Respondent shows theplatform with a guardrail consisting of a top and a middle rail and whatappears to be toeboards. It is true that the photograph was taken 2 or 3 monthsafter the inspection, but Complainant did not challenge whether the scenedepicted was the same as that observed at the time of the inspection. From theevidence it is concluded that there was a railing around the ?platform?. Item1(a) is VACATED.ITEM 1(b)?1910.23(c)(2)?as amended??????????? It isalleged here that there was no midrail on one side of the middle walkway of thetray system of the dry kiln. The evidence establishes the presence of a regularguard rail and midrail along the side of the walkway opposite the tray system.It also shows that there was a guard rail along the side next to the traysystem but that the midrail was missing for the entire length along that side.Apparently employees use pike poles along this walkway to straighten the lumberon the tray system and to clear jam-ups. The poles are used through the openspace where the midrail would be located.??????????? Followingthe inspection, Respondent installed a midrail along the inner side of thewalkway. This midrail has created problems in connection with the use of thepike poles. The employees are now complaining about these difficulties.Respondent argues that the provisions of the second paragraph of 1910.23(c)(2)should be applicable to the conditions involved with this particular walkway.That paragraph permits the omission of the rail on one side of a walkway usedexclusively for special purposes. Respondent urges that the greater problemsencountered by its employees in using the pike poles because of the presence ofthe new midrail, taken together with the special use of the walkway, bring itwithin the coverage of the second paragraph.??????????? Thisargument is well taken. Even though the evidence in this record with regard tothe use of the walkway is rather meager, there is sufficient to sustain theconclusion that it is used exclusively for the special purpose of keeping thelumber on the tray system straight. There is no evidence showing any other useof the walkway. Under these circumstances it appears that the walkway comeswithin the coverage of the second paragraph of 1910.23(c)(2). There is no needfor Respondent to seek a variance in this regard. The provisions of theparagraph suffice to authorize the situation found during the inspection.??????????? Accordingly,it is concluded that this walkway was not in violation of the cited section ofthe safety standards because it falls within the special provisions of thesecond paragraph thereof. Item 1(b) is VACATED.ITEM 1(c)?1910.23(c)(1)??????????? It isalleged that employees walk across the tipple in the dry kiln for maintenanceof chain drives and that no guard rail or midrail is installed to protect themin crossing. The evidence establishes that there are no guard rails of any sortacross the superstructure of the tipple in the area where to CSHO indicatesthat men walk. It is also true that the CSHO does not indicate where or in whatmanner the guard rails should have been installed. He did not see anyone crossthe tipple during the inspection. The only indication he had of men making sucha crossing was that he was told that occasional maintenance was performed onthe machinery.??????????? Respondent?switness states that the chains and sprockets are self-lubricating and that theonly time employees cross the tipple is on the occasional times thatmaintenance is required. He testifies that this occurs about once a year. Whenit becomes necessary for employees to cross the tipple for such maintenance thetop of the tray system is full of lumber as shown in Exhibit T.??????????? Underthese circumstances there is no violation of the cited standard. Complainanthas not established exposure. The lumber on the tray system makes a wide andapparently safe place on which the employees may cross. The evidence does notshow anything to the contrary. There is no showing of the employees crossingexcept for the infrequent maintenance. Item 1(c) is VACATED.ITEM 1(d)?1910.23(c)(1)??????????? It isalleged that the platform at the top of the stairway to an overhead crane had abent and twisted guard rail and was not fitted with a midrail. The CSHO did notobserve any employee use the stairway or platform. He was told that thestairway and platform were virtually not used anymore. He observed the crane inoperation but agrees that there may have been access to the crane on the otherside of the building.??????????? Respondent?switness testifies that the cited stairway and platform was used by the craneoperators until 1969 when new cranes were installed. There was a sign at thefoot of the stairs restricting its use to ?authorized employees?. Since theinstallation of the new cranes in 1969 the cited stairway and platform have notbeen used because new access ladders were installed on the other side of thebuilding at the same time. The cited stairway and platform do not lead to thecranes and they are not used for emergency access. The witness admits that theyhave not been removed or blocked off.??????????? Complainanthas not established the exposure of any employee to the danger inherent fromthe distorted guard rail and missing midrail. There is no violation of thecited standard. Item 1(d) is VACATED.ITEM 1(e)?1910.23(c)(2)?as amended??????????? It isalleged that a walkway to the unstacker operator?s station at the dry sorterdid not have a guard rail. Respondent admits the absence of the guard rail inan area 5 feet wide but argues that the walkway is not a ?runway? and that theloads of lumber on the lift form an effective guard. Respondent is in error onboth points. The area cited is used by the unstacker operator to gain access tohis operating booth. It thus fills the purpose of a runway as that term isdefined in 1910.21(a)(5). Respondent admits that there are times when the loadsdo not form a barrier because there is no load on the lift. Respondent alsoadmits that maintenance men, in addition to the unstacker operator, use thearea from time to time. Following the inspection, Respondent installed a guardrail without finding it difficult or expensive.??????????? Underthe foregoing circumstances it is clear that Respondent violated the citedstandard. Item 1(e) is AFFIRMED.ITEM 1(f)?1910.23(a)(9)?as amended??????????? It isalleged that two ?floor openings? next to the press charger were not guarded.The openings in question are approximately 2 feet square. The evidence is thatthese openings are filled (obstructed) with the lift machinery of the presscharger when that machinery is in the down position. When the lift machinery isin the up position the openings are open and unobstructed. When in operationthe lift machinery cycles about every 20 minutes. The openings are clear(unobstructed) for about 5 to 10 minutes during each 20 minute cycle. At leastone employee works in the close vicinity of the openings, using the controlpanel located within 8 inches of one of the openings.??????????? Respondentadmits that these openings are not guarded or covered but argues that thestandard cited does not apply to the situation described by the CSHO. Thestandard, 1910.23(a)(9), applies by its terms to ?floor holes?. The ?openings?described by the CSHO are clearly not ?floor holes? as that term is defined in1910.21(a)(1). The instant openings are larger than the holes covered by thatsection and do not fit into any of the use categories described therein. Theopenings at issue here could, and probably should, be considered to be ?flooropenings?. However, if so classified they would be excluded from coverage under1910.23 because of the last sentence of the 1910.21(a)(2) definition of ?flooropenings?. That sentence excludes ?floor openings? occupied by ?elevators . . .machinery . . .? from the definition of floor openings. Accordingly, since thelift machinery for the press charger occupies the openings during the majorportion of any cycle, they are excluded under this provision. Item 1(f) isVACATED.ITEM 1(g)?1910.23(a)(8)?as amended??????????? Thisalleged violation is described in the Citation as, ?An open sided floor on awalkway along veneer belt to incline drier approximately 12 feet above nextlower level was not guarded, in plywood plant?. The safety standard at1910.23(c)(1) was cited in the Citation. The complaint amends the wording ofthis violation to, ?A floor hole on walkway along veneer belt to incline drierapproximately 12 feet above next lower level in the plywood plant was notguarded or covered, contrary to 29 CFR 1910.23(a)(8)?. Since Respondent has notobjected to this amendment of the Citation, the evidence will be evaluated withrespect to the allegations as set forth in the complaint.??????????? Thewalkway involved here was 200 feet long. Prior to the inspection Respondentinstalled guardrails along each side of the walkway. In the process, thewalkway was widened. At the time of the inspection the guardrails had beencompleted but there was a hole or opening remaining in the surface of thewalkway adjacent to the guardrail on one side. The hole was 6 to 8 inches wideand ran the full 200 foot length of the walkway. Respondent?s witness is notcertain as to the length of time the hole had been in existence?whether one ortwo weeks, or less. Respondent admits the existence of the hole but argues thatthe violation should be considered to be de minimis because the walkway is onlyused for maintenance purposes by one employee on the average of about once pershift.??????????? Fromthe foregoing it is concluded that Respondent was in violation of the safetystandard found at 1910.23(a)(8). The violation, as described followingamendment in the complaint, is AFFIRMED. The violation is clearly moresubstantial in extent than is indicated by the classification of de minimis.ITEM 1(h)?1910.23(c)(1)??????????? It isalleged that employees walk on a 2 inch by 10 inch piece of lumber to performmaintenance on the tipple. Respondent admits in its brief (page 34) that thelocation did not have any guard rails but urges that this ?deficiency is ofminimum consequences because of the infrequency of exposure?. The evidenceestablishes that 2 employees use the area approximately 6 times a year toperform maintenance on some valves located in the area. If there is a breakdownin the area, the boards are used at that time also Item 1(h) is AFFIRMED.ITEM 1(i)?1910.23(c)(1)??????????? It isalleged that there was no midrail on a work platform on the side of the tipplein the dry kiln. The evidence establishes the existence of a cable installed inthe location where a midrail should have been. The cable was a 1\/4 inchairplane cable and was installed across one end and along one side of theplatform. The other end of the platform, 18 inches wide, did not have amidrail. The platform is used for maintenance of the chains and sprockets inthe area on an average of about once a year.??????????? Underthese circumstances it is concluded that the only violation?the 18 inch endwithout a midrail?is a violation which is de minimis in nature. Accordingly,Item 1(1) is AFFIRMED as a de minimis violation.??????????? Ofthe 9 sub-Items comprising Citation Number Three, only 4 of them are repeatviolations of safety standards cited following previous violations. Items 1(c),1(d), 1(h) and 1(i) cite 1910.23(c)(1). That same safety standard was cited inItem 1 of the Citation which is Exhibit 63 herein. Thus only these 4 sub-Itemsqualify as ?repeats?.??????????? Items1(e), 1(g), 1(h) and 1(i) are affirmed herein. Items 1(e) and 1(g) are firstinstance violations and Items 1(h) and 1(i) are repeat violations. However, Item1(i) is classified as de minimis. Under all of the circumstances involved here,including the rather low gravity of those violations found proven and afterconsideration of the criteria set forth in Section 17(j) of the Act, it isconcluded that a penalty of $50 is warranted and appropriate in connection withthe four affirmed violations.CITATION NUMBER FOUR?REPEATEDNON-SERIOUS?1910.176(a)?Penalty proposed $100??????????? Complainantwithdrew this Citation in the complaint on the basis that upon further considerationit had determined that the cited standard had not been violated in the mannercited. This withdrawal is GRANTED and Citation Number Four is DISMISSED andVACATED.CITATION NUMBER FIVE?REPEATEDNON-SERIOUS?1910.265(c)(4)(ii)?Penalty proposed $100??????????? It isalleged in this Citation that a walkway 3 1\/2 feet above floor level next tothe trim saw in the plywood plant had two broken boards. The evidenceaffirmatively establishes the existence of a small hole about 6 inches long by1 1\/2 inches wide in the surface of this particular walkway. There was also amuch smaller crack in the same area. The CSHO states in his testimony that theboards were not completely broken through but that they did sag below thehorizontal surface of the walkway.??????????? Respondentadmits the existence of these holes, as well as the deterioration of thewalkway in the cited area, but argues that the Citation should be dismissed.Respondent urges that, even though the boards were deteriorated, they weresufficiently strong to resist breaking when a 215 pound man jumped on them. Thedeteriorated boards were located at one end of the walkway where no operatorworks and where maintenance men are required only occasionally.??????????? Respondenturges that it is unclear as to whether the cited standard applies to thisparticular walkway. Respondent would consider the cited area as a platformrather than a walkway and thus exclude it from coverage under1910.265(c)(4)(ii). This argument is without merit. There is no definition inSection 1910.265 for either walkway or platform. However, a platform is definedin Section 1910.21 (a)(4) as a working space for persons and a runway isdefined in Section 1910.21(a)(5) as a passageway for persons, such as afootwalk along shafting. Respondent?s witness identifies this area as beingused for maintenance?not as a workstation. It is concluded that the cited areais a walkway?not a platform. It is thus covered by the requirements of thestandard at 1910.265(c)(4)(ii).??????????? Respondentalso urges that the cited standard is unenforceably vague because it does nottell the employer exactly what is required of him. The standard requires that,?walkways shall be evenly floored and kept in good repair?. (Emphasis added.)This combination of requirements is sufficient to alert Respondent to what isexpected of him. Both of the emphasized terms are easily understood by anyperson of ordinary intelligence. In this instance the walkway was not evenlyfloored. One of the boards sagged an inch and a half below the horizontal levelof the walkway. This alone causes the walkway to be in violation of thestandard. In addition, the known existence of the holes and deteriorationclearly establishes that the walkway was not in ?good repair?.??????????? CitationNumber Five is AFFIRMED. The same standard was cited in Item 27 of the citationwhich is Exhibit 63. This is a ?repeated? violation. The gravity is rather lowin this instance since the only exposure to the danger occurs when amaintenance man enters the area on an occasional basis. It is not a workstationfor any machine operator. The boards were repaired following the inspection.Under all of these circumstances, it is considered that a penalty of $50 isappropriate for this ?repeated? violation.CITATION NUMBER SIX?REPEATEDNON-SERIOUS?1910.265(e)(6)(i)(c)?Penalty proposed $100??????????? It isalleged in this Citation that the ?pineapple? roll on the lath saw in the lathmill was not guarded. Respondent?s witness (Arnett) admits the absence of theguard from this particular pineapple on the date of the inspection but insiststhat a guard had been in place within the last 2 weeks before the inspection.The witness did not know and was unable to determine why the guard had beenremoved. All other pineapples in the plant were guarded. Respondent?s injury recordshows that an employee suffered a hand injury on a pineapple in the planingmill on February 23, 1974.??????????? Thestandard cited appears under a heading dealing with ?planers? and provides that?pressure feed rolls and pineapples shall be guarded?. The evidence clearlyestablishes that the pineapple involved here is located on the lath saw andthat this particular saw is not a planer in any respect. Respondent argues onthis ground that this Citation should be dismissed because the cited standardapplies only to planers.??????????? Onthe facts here Respondent is correct. The standard applies to planers and themachine involved here is obviously a saw?not a planer. Citation Number Six isVACATED.CITATION NUMBER SEVEN?Merged with anddiscussed under Citation Number Ten\u00a0CITATION NUMBER EIGHT?REPEATEDNON-SERIOUS?1910.24(f)?Penalty proposed $100??????????? ThisCitation alleges that the treads on a ?stairway? to an elevated platform in thebasement of the sawmill were bent over to the point of creating a slippinghazard. The evidence clearly establishes that the fixture cited is not astairway?it is a substandard fixed ladder. The fixture was measured followingthe inspection and found to have a pitch of 61 degrees.??????????? Undersection 1910.24(e) a fixed stairway is identified as being inclined at an anglebetween 30 degrees and 50 degrees to the horizontal. Section 1910.27(e)(1)establishes the pitch preferred for a fixed ladder as being in the range of 75degrees to 90 degrees. 1910.27(e)(2) identifies ladders with a pitch in the rangeof 60 degrees to 75 degrees as being substandard. This section of the standardstates that pitch in this range (60 to 75 degrees) should be considered acritical range to be avoided if possible.??????????? Sincethe pitch of the fixture cited here is 61 degrees, that fixture is a ?fixedladder? which is controlled by the safety standards found in 1910.27,particularly 1910.27(e) and (f). Complainant has relied on the standardscovering fixed stairways which are inappropriate here. Accordingly CitationNumber Eight is VACATED.CITATION NUMBER NINE?REPEATEDSERIOUS?1910.219(f)(3)?Penalty proposed $2000?ITEM 1(a)??????????? ThisItem alleges that chain drive for the conveyor to the No. 3 hog in the basementof the sawmill was not guarded. Respondent admits that the chain drive wasunguarded. It is located on a platform 8 feet above floor level. The platformis accessible by a single ladder which has a chain across the top and a signstating, ?Notice?Unauthorized Personnel Keep Out?. One of Respondent?semployees goes to the platform once a week to oil the chain. This oiling isperformed on Saturdays when the sawmill is shut down.??????????? Underthese circumstances it is clear there is no exposure of Respondent?s employeesto any hazard from the unguarded chain. Item 1(a) is VACATED.ITEM 1(b)??????????? ThisItem alleges that a chain drive for a belt conveyor in the basement of thesawmill was not guarded. The chain drive was admittedly not fitted with a guardbut is located on a small platform accessible only by ladder. The chain driveis actually outside of the standard railing around the platform. The motor andthe gear box also prevent someone from stepping into the chain drive. A mancomes to the platform 4 or 5 times a day for a visual inspection of the chaindrive. The evidence as to whether oiling is required is inconclusive as to theextent of exposure resulting from it.??????????? Underthe circumstances of the absence of observed or proven exposure of Respondent?semployees to the hazard of the unguarded chain, Item 1(b) is VACATED.ITEM 1(c)??????????? ThisItem alleges that a slab chain drive on head rig No. 3 in the sawmill was notguarded. This particular chain drive had been guarded but the guard admittedlyhad been removed prior to the inspection, rendering it unguarded. The guard waslocated following the inspection and returned to its proper position. It wasfound at some distance from the chain drive. The only approach to the chaindrive is practically directly over the motor which is 18 to 20 inches long.Servicing is accomplished approximately once a week while the machine is shutdown.??????????? Theevidence places this particular chain drive in such a position as to be guardedby location so that it does not pose any realistic danger to employees. Item1(c) is VACATED.ITEM 1(d)??????????? Achain drive on the outfeed to the trimmer in the sawmill allegedly was notguarded. This chain and sprocket was located about 2 feet above the floor, some8 inches in back of a pipe guard and 5 to 6 inches in back of and under theedge of the machine framing. It was under the framing so as to be guardedexcept from below. The pipe guard, installed following a previous OSHAinspection, was passed as satisfactory after a re-inspection by the first OSHAinspector. Respondent has added a guard over the nip point since the March 1974inspection. There is nothing to support Respondent?s contention that this chaindrive is part of a conveyor as opposed to power transmission apparatus.??????????? Underthe circumstances shown here it is clear that this chain drive was adequatelyguarded. Respondent had been so advised previously. There is no violation. Item1(d) is VACATED.ITEM 1(e)??????????? Achain drive on the package maker in the dry kiln green chain area was allegedlyunguarded. The chain and sprocket involved here are located some 20 inchesabove the floor or working level. The danger area (ingoing nip point) is 10inches in back of a vertical frame and under the surface of the machine.Respondent had installed a partial guard which is 6 inches to the right of thenip point, leaving the actual danger point open. There is no evidenceestablishing this particular chain drive as being part of a conveyor as opposedto power transmission apparatus.??????????? Underthese circumstances it appears that the danger area was adequately guarded bylocation. Item 1(e) is VACATED.ITEM 1(f)??????????? Twochain drives, one in the middle of the tipple frame and one on the opposite endof the tipple allegedly were not guarded. The sprocket in the middle of thetipple frame was inaccessible except by walking on a narrow beam. It was some10 to 12 feet from the nearest walkway. The other sprocket (on the end of thetipple) was near a platform used about once a year for maintenance when themachinery was shut down.??????????? Accordingly,there being no exposure to any danger since these sprockets are guarded bylocation, Item 1(f) is VACATED.ITEM 1(g)??????????? ThisItem alleges that a chain drive on the sorting chain in the shipping departmentwas not guarded. The evidence locates this chain drive 4 inches above the workplatform. The actual danger point is beneath the sorting table and back fromthe edge 12 to 18 inches, depending on the witness testifying. There is a chainreturn trough between the drive and the edge of the sorting table, being 10 to15 inches closer to the work platform than the chain drive. This chain returntrough acts as a partial guard.??????????? Underthe circumstances established here the cited chain drive is fully guarded bylocation under and recessed from the edge of the sorting table and with thechain return trough in front of it. Accordingly, Item 1(g) is VACATED.ITEM 1(h)??????????? Theback side of a chain drive on the moisture content machine in the plywood plantis allegedly not guarded. At the time of the inspection the chain drive inquestion was fitted with a guard covering and enclosing its face and perimeter.The perimeter guard extended 4 to 6 inches towards the machine from thesprocket so that the sprocket was recessed 4 to 6 inches under the protectionof the perimeter guard. In addition, the shaft mounting and bearing fitting blocksaccess to any danger.??????????? Theguard fitted on this chain drive adequately protects this chain from access.Item 1(h) is VACATED.ITEM 1(i)??????????? Theback side of a chain drive on the dry chipper in the plywood plant wasallegedly not guarded. This cited chain drive is also guarded and fullyenclosed on its face and perimeter with the perimeter guard extending a fairdistance towards the motors. Access from the backside of the chain (the sidetowards the motors) was blocked by the motors and other machinery in the area.??????????? Thischain drive is adequately guarded by the face and perimeter guard and locationso as to prevent access to the danger area. Item 1(i) is VACATED.ITEM 1(j)??????????? It isalleged that two chain and sprocket drives, 6 feet 7 inches above floor level,on the trim saw were not guarded. These 2 chain and sprocket drives wereadmittedly not guarded in any way. It is possible to enter into the danger areaby passing between the post located in line with the side of the conveyor andthe stacks of veneer stored nearby. This open space is usually 3 to 3 1\/2 feetin width. Employees enter into the area from time to time even though there isno regular workstation located in that area. No employees were observed in thearea during the inspection.??????????? ?Under these facts Complainant has establishedthe existence of a violation. The gravity here is very low since there is noclear routine exposure?it appears that any exposure would be happenstance onlysince there is no workstation in the area. Item 1(j) is AFFIRMED.ITEM 1(k)??????????? It isalleged that a chain drive approximately 12 inches above the floor under thetrim saw in the plywood plant was not guarded. The cited sprocket is set backunder the machine a distance of 27 inches from the machines side. The only timean employee would approach the sprocket is while he is cleaning the debris fromunder the machine. This is only done where the machine is shut down.??????????? Complainanthas not shown any exposure to a danger. The location of this sprocket under themachine is adequate guarding to eliminate any exposure of Respondent?semployees. Item 1(k) is VACATED.ITEM 1(1)??????????? It isalleged that a chain drive approximately 12 inches above the floor on thechipper in the plywood plant was not guarded on the backside. The face and perimeterof this sprocket is completely enclosed and guarded. The guard has a horizontalwidth of at least 4 inches extending towards the machine. The bracket supportfor the guard and the bearing housing on the shaft support obstruct access tothe danger point. The Citation erroneously alleged this location as being onthe ?chipper? when it is actually on the ?clipper?.??????????? Theguarding by installed guard and location adequately precludes entry ofRespondent?s employees into the danger area. Item 1(l) is VACATED.ITEM 1(m)??????????? It isalleged that a chain drive on the trim saw in the plywood plant located 36inches above the walkway was not guarded. The unguarded sprocket is actuallylocated ?close up? under the trim saw and set back 24 inches from the side ofthe walkway in such a manner as to be fully guarded from accidental access.??????????? Thissprocket and chain are guarded by location against access. Item 1(m) isVACATED.ITEM 1(n)??????????? ThisItem alleges that the back side of a chain drive for belts on the lay-up linein the plywood plant was not guarded. The face and perimeter of this chaindrive is fully covered and enclosed by a metal guard. Access to the nip pointsbehind this guard is precluded by the machine fittings in the vicinity of thesprockets. These fittings include the piping and gauges at the lower end andthe flat plate at the upper end which comes to within 1\/2 inch of the guard.Complainant has not established anyviolation here. Item 1(n) is VACATED.ITEM 1(o)??????????? It isalleged that a chain drive on the scissors hoist feed to the lay-up line in theplywood plant was not guarded. Admittedly both sprockets were unguarded. Thedanger point (ingoing nips) was not guarded in any manner. An operator workswithin 10 feet of that point and is not restricted from access to the dangerpoint. The veneer is loaded on the scissors hoist by a lift truck.??????????? Complainanthas established a violation here. Item 1(o) is AFFIRMED. Gravity here is lessthan moderate since the employees most likely to be exposed actually start andstop the movement of the chain. It only moves 4 to 8 feet at a time.ITEM 1(p)??????????? It isalleged that there was no guard covering the ingoing nip point on a chain driveon the re-dry infeed to the inline drier in the plywood plant. This ingoing nippoint admittedly is unguarded. There is nothing to keep anyone from walkinginto the danger area. Approximately 10 men per hour pass this point, turningaround the end of the machine. Some of them pass on bicycles. The CSHO observedat least 10 employees in the area. The cited machine is used not more than acouple of hours every 2 weeks to continue work when the belt system to thein-line drier breaks down.??????????? Complainanthas established a violation here. Item 1(p) is AFFIRMED. Gravity is very lowsince the machine is only used a couple of hours every 2 weeks. When in use itonly moves stacks of veneer a short distance at a time and then only when theoperator activates it.ITEM 1(q)??????????? It isalleged that 4 chain drives, 2 feet to 7 feet above floor level, on the tippleroll in the plywood plant were not guarded. These chain drives were admittedlycompletely unguarded from one side at the time of the inspection. Respondent?switness insists that they were fully guarded not over 1 1\/2 months before theinspection. However, at the time of inspection an employee could walk rightinto them.??????????? Theevidence establishes a violation here. Item 1(q) is AFFIRMED. Gravity ismoderate since the nearest work-station is 15 to 20 feet away and 10 employeeswere observed using the walkway passing near the area.ITEM 1(r)??????????? It isalleged that a chain drive on the unit intake in the stud mill was not guarded.This chain drive was fully guarded until the swing shift on the night beforethe inspection. During that work period a load of lumber shifted and dislodgeda length of the guard which had been previously spot-welded in place. The daycrew had not yet replaced it.??????????? Thereis an admitted violation here. Item 1(r) is AFFIRMED. Gravity is very, very lowsince the guard was only off for a few hours and employees ordinarily do notapproach very close to the area.ITEM 1(s)??????????? It isalleged that a chain drive on the barker surge bin was not guarded. This chaindrive was admittedly unguarded. It is located on a small platform 10 to 12 feetabove the ground. The only employees who would climb to the platform aremaintenance men. Respondent?s witness estimates such maintenance visits at afrequency of once a week.??????????? Thereis a clear and obvious violation here. Item 1(s) is AFFIRMED. Gravity is a littleless than moderate since there is absolutely no guard around this chain driveand exposure of at least one employee occurs each week.ITEM 1(t)??????????? It isalleged that the back side of a chain drive for rolls on the veneer core bandsaw in the plywood plant were not guarded. This chain was covered on its faceand perimeter by a full metal guard. The perimeter guard was about 2 1\/2 incheswide. Respondent?s witness states that it is possible to move along next to theguarded side of the chain but that it is not a walkway and does not lead to anyother area. He has never seen any employees in the area.??????????? Theevidence establishes the existence of a guard over the face and perimetertogether with a lack of access. Item 1(t) is VACATED.??????????? Sixof the 20 Items of violations alleged in this Citation are affirmed here. Thestandard violated in each of the six instances here, 1910.219(f)(3), was alsoviolated in Item 22 of Exhibit 63 and Item 20 of Exhibit 64. Since the standardviolated is the same in each case these 6 affirmed Items are ?repeated?violations.??????????? Eachof these 6 violations are serious in that any employee unfortunate enough tobecome entangled in a chain and sprocket will surely suffer serious injury oramputation. In the instance of fast moving chains an employee could very easilybe killed.??????????? Givingdue consideration to all of the Section 17(j) criteria, including the gravityas discussed in connection with the affirmed Items and the fact these are all?repeated? violations it is concluded that a penalty of $300 is appropriate inconnection with the serious violations found here. The great number of properlyguarded sprockets has also been given appropriate weight here.CITATION NUMBER TEN?REPEATEDSERIOUS?Penalty proposed $2000ITEM 1?1910.219(e)(3)(i)???????????? (a)It is alleged that the lower run of a vertical belt and pulley system on headrig No. 2 in the basement of the sawmill was inadequately guarded in that theside of the belt and pulley were exposed. The evidence establishes the locationof the belts involved here as being 31 and 45 inches in back of some metalframing. There is a gap in the framing through which an employee might reachand touch the belt but such reaching would have to be deliberate. There is noshowing of the exposure of any pulley. A guard fully enclosing these belts wasinstalled within 3 months after the inspection.??????????? Theevidence does not establish any violation here. Item 1(a) is VACATED.??????????? (b)It is alleged that a vertical belt and pulley system on the lath saw in thelath mill did not have the nip point guarded. Respondent admits that the nippoint was exposed in this instance but would minimize this by noting that onlyone man works in the area and that his workstation is on the opposite side ofthe saw.??????????? Thereis a clear violation here. Item 1(b) is AFFIRMED. Gravity is less than moderatesince most of the areas of the belts are fully covered. Only one employee worksin the area. Others may pass on occasion.??????????? (c)It is alleged that a vertical belt on the saw grinder in the file room of theplywood plant is unguarded. The belt cited here was a single strand 3\/8ths inchV belt. It moved at the rate of 12 feet per minute. It is thus excluded fromthe provisions of 1910.219 by the specific provisions of 1910.219(a)(1). Item1(c) is VACATED.??????????? (d)It is alleged that the lower run of a vertical belt drive on the conveyor thatdumps into the Lilly Pad chipper in the barker was unguarded. The evidenceclearly establishes the absence of any guard on this belt and pulley. The lowerportion of the pulley is 62 inches above the first step down from the dead endplatform. The pulley and belt are set back about 1 foot from the nearest sideof the stairway.??????????? Theevidence establishes a violation. Item 1(d) is AFFIRMED. Gravity here is lessthan moderate because the danger is somewhat removed from accidental encounter,being substantially out of reach. The platform is used monthly for maintenance.??????????? Twoof the 4 sub-Items of alleged violation in Item 1 are affirmed here. Thestandard violated here, 1910.219(e)(3)(i), was also violated in Item 19 ofExhibit 64. Since the standard violated is the same in each case these 2affirmed sub-Items are ?repeated? violations.??????????? Thereis no showing in the evidence here that potential injuries arising from theseviolations will probably result in death or serious physical harm. These 2violations are non-serious.ITEM 2?1910.219(e)(1)(i)?(a) It is alleged that a horizontal belt drive on theair compressor in the dry sorter was not guarded. This belt was not fitted withany guard. However, it was on the side of the compressor next to a wall whereno one could pass between it and the wall. The tank and compressor machinerywas 30 inches wide putting that much space between the belt and anyoneapproaching it. In short it was effectively guarded by position. Thecompressor, although in operating condition, had not been operated in the monthpreceding the inspection and was not operated subsequent to the inspection.However, a guard was installed after the inspection.??????????? Thereis no violation here because of the location guarding preventing exposure tothe hazard. Item 2(a) is VACATED.??????????? (b)It is alleged that a horizontal belt drive on the saw grinder in the saw filingroom of the planer mill was not guarded. This particular belt was unguarded asobserved by the CSHO. However, he did not see the belt in operation or themachine set up as it would be when operated. The machine is used to sharpen sawblades. When a saw blade is installed in position for sharpening, the saw bladeeffectively protects the cited belt from access. The cited belt drives thegrinding wheel which is only activated after the saw blade is in position forsharpening. The grinding wheel is idle at all other times, including during theplacing of a saw blade in position for sharpening.??????????? Thereis no violation here because the saw blade effectively guards the cited belt.Item 2(b) is VACATED.CITATION NUMBER SEVEN?REPEATEDNON-SERIOUS?Combined with Citation Number Ten pursuant to previous discussionITEM 1?1910.219(e)(1)(i)??????????? ?(a) It is alleged that a horizontal flat beltand pulley drive on the skinner saw in the plywood plant were not guarded. Thisbelt and pulley were unguarded exposing the ingoing nip point. However, thebelt and pulley are set back at least 10 inches inside two guard rails so thatit is somewhat inaccessible. Respondent argues that this is a conveyor ratherthan a power transmission apparatus. The CSHO testified that material iscarried on the belt. Respondent is thus correct. It is a conveyor.??????????? SinceComplainant has cited an inappropriate standard, Item 1(a) is VACATED.??????????? (b)It is alleged that a horizontal flat belt and pulley on the No. 2 drill pressin the basement of the sawmill was not guarded. The belt and pulley were notguarded. However, the provisions of 1910.219(e)(1)(i) do not apply to thisbelt. It was a leather belt 1 1\/4 inches wide. It was used to power the drillpress in drilling holes in steel of 1 inch or more in diameter. When working itturned so slowly that the grooves in the drill could be seen.??????????? Underthe circumstances established here this belt is excluded from the provisions of1910.219 by the specific wording of 1910.219(a)(1). Item 1(b) is VACATED.??????????? (c)This sub-Item alleges that a horizontal flat belt and pulley on the stickerbelt in the dry sorter was not guarded. This belt and pulley, including theingoing nip point at the bottom of the pulley, were admittedly unguarded. Thebelt moves at a rapid pace.??????????? Thisis a clear violation. Item 1(c) is AFFIRMED. Gravity is considered less thanmoderate because the nearest work station is 10 feet away in a booth enteredfrom the opposite side. The only exposure comes from an occasional employee,maintenance man or foreman entering upon the closely adjacent platform.??????????? Item1(c) of Citation Number Seven is the only sub-Item of this Citation which isaffirmed. The standard violated here, 1910.219(e)(1)(i), was also violated inItem 18 of Exhibit 64. Since the standard violated is the same in eachinstance, this affirmed violation is a ?repeated? violation.??????????? Thereis no showing in the evidence here that a potential injury arising from thisviolation will probably result in death or serious physical harm. This affirmedviolation is non-serious.??????????? Complainantclassified Citation Number Ten as ?Repeated Serious?. Citation Number Seven wasmerged into Citation Ten because the same standard was cited in both. (Seediscussion above at page 25.) As noted earlier, none of the violations affirmedunder Citations Numbers Ten and Seven are ?serious?. They are considered to benon-serious. They are ?repeated?, however.??????????? Givingdue consideration to the criteria set forth in Section 17(j) of the Act,including the finding that the gravity in each of the three violations is lessthan moderate, a penalty of $60 is considered to be appropriate for combinedCitations Numbers Ten and Seven.??????????? Consequently,based upon the evidence adduced and after full and searching consideration ofthe record and all of the submissions and arguments of the parties, we make thefollowing:FINDINGS OF FACT??????????? 1. OnMarch 19, 1974 and at all times material hereto Edward Hines Lumber Co.,Respondent herein, was engaged in a business affecting commerce within themeaning of Section 3 (5) of the Occupational Safety and Health Act of 1970. Onthat date Respondent owned and operated a sawmill complex at Hines, Oregon. Thesawmill, which covers some 320 acres and employs about 717 out of Respondent?stotal of approximately 950 employees, is one of the largest sawmills in the stateof Oregon as well as in the nation. (File, Complaint-paragraphs I and II;Admitted in Answer-paragraph I; also admitted during trial-Transcript pg 11;also Transcript pgs 13, 387, 399?402, and 407?408.)???????????? 2. OnMarch 19 through 21, 1974 a Compliance Safety and Health Officer (CSHO)inspected Respondent?s sawmill complex at Hines, Oregon on behalf of theSecretary of Labor. The findings and recommendations of the CSHO were submittedto the Area Director on Monday, March 25th. Subsequent to that date and priorto issuance of the Citations the CSHO participated in a number of discussionswith the Area Director regarding the inspection. As a result of the inspectionCitation Number One (Non-Serious), Citations Numbers Two through Eight(Repeated Non-Serious), and Citations Numbers Nine and Ten (Repeated Serious)were issued to Respondent on Wednesday, April 3rd. On the same date aNotification of Proposed Penalty was also issued to Respondent proposingpenalties totaling $5,015 for the 10 Citations. On April 18th Respondent timelycontested Citations Numbers Two through Ten as well as Items 1, 2, 3, 10, 11,and 12 of Citation Number One. The contest goes to the alleged violations andthe proposed penalties. (File; Transcript pgs 9?10, 12?15, 357, 384?386, and 394?395.)??????????? 3.The complaint filed by Complainant on May 15th seeks to amend Citations Numbers2 and 3 to charge violations of different standards than those cited in therespective Citations. The complaint also reduces the penalty proposed forCitation Number Three from $180 to $130 and apportions this penalty amongst the9 sub-Items of that Citation. In the complaint Complainant withdraws CitationNumber Four on the ground that after further consideration it has beendetermined that Respondent did not violate the standard cited in CitationNumber Four. Respondent filed an answer admitting and denying certain portionsof the complaint. Respondent specifically denies that the Citations were issuedwith reasonable promptness. (File.)??????????? 4.Millwrights and maintenance men are employees of Respondent who are assigned toperform routine up-keep, lubrication and repair duties on machinery anywhere inthe sawmill complex during their regular workdays. They also perform emergencyrepairs and up-keep on the same machinery. Their work-stations may be anywherethroughout the sawmill where their services are required. (Transcript pgs 405,480?484 and 620?627.)??????????? 5.The inspecting CSHO did not furnish copies of the standards cited or of thebasic ANSI source documents to Respondent at any time during or following theinspection. Respondent did not request such copies during the inspection.(Transcript pgs 55?56 and 417?418.)??????????? 6.Respondent?s worksite was previously inspected by OSHA in April and June of1972. Each of these inspections resulted in the issuance of Citations whichhave become final orders by reason of Respondent?s affirmative determination tonot contest them. (Transcript pgs 360?375, 383?384, 390, 405, 409, and Exhibits63 and 64.)??????????? 7.Alleged violation of the safety standard found at 29 CFR 1910.219(e)(1)(i) wascited on Citation Number Seven in connection with horizontal belts and again onCitation Number 10, Item 2, also in connection with horizontal belts. (File.)??????????? 8.Respondent has an organized safety program with the employees divided intoapproximately 40 safety groups and committees according to the areas of thesawmill where they work. Two supervisory employees oversee the safety program.Many safety publications are issued to the employees, including a regularperiodical which, amongst other things, reviews accidents and safety themes.Respondent also has an active incentive awards program to foster and encouragesafety consciousness amongst its employees. Safety meetings are held duringworking hours and first aid training is provided for many of the employees,including the foremen in particular. (Transcript pgs 361, 399, 403?407,411?417, 422?444, 446?449 and 624.)??????????? 9.The operating controls (power switch) on the Delta bandsaw in the electricalshop of the sawmill were not located within easy reach of the operator?sworkstation. [Citation Number One, Item 1] The safety standard cited inconnection with this alleged violation [1910.213(b)(4)] uses the words ?shouldbe? in specifying the degree of compliance with the standard that is required.(Transcript pgs 16?22, 450?456, 630?632, and Exhibit 1.)??????????? 10.Two of Respondent?s employees were standing on a conveyor while unplugging abin. The controls of the conveyor were within view of one of the men but werenot locked out so that only the men working to unplug the bin could turn themon. [Citation Number One, item 2(a)] The safety standard cited requires that ?.. . operation. . . of conveyors shall be in accordance with American NationalStandard B20.1?1957. (Emphasis added.) This ANSI safety standard [ANSI B20.1,Section 10(f)] is prefaced with a statement which uses the word ?recommended?in specifying the degree of compliance to the standard that is required.(Transcript pgs 22?38, 457?458, and Exhibits 2 and 3.)??????????? 11.There is no evidence that lumber fell from the feed chain conveyor in the areacited [Citation Number One, Item 2(b)] or that employees crossed under or hadoccasion to cross under the feed chain conveyor in the manner cited. Lumber didfall from the conveyor at another location where the conveyor changed level andinclination, but that area was 20 to 25 feet away from the cited area and wasprotected from entry into the danger area by a stretched wire as a barrier.(Transcript pgs 38?47, 458?466 and Exhibit 4.)??????????? 12.The low overheads in the passageways under the lumber conveyors on the No. 1,2, 3 and 4 planers were marked with bright red striping. [Citation Number One,Item 2(c)] The striping was about 4 inches wide and so located as to indicatethe lower edge of the overheads as the passageways were approached from eitherdirection. The bright red colored paint satisfies the requirements of a?telltale?. (Transcript pgs 48?50, 466?477 and 629?630.)??????????? 13.There was no crossover where employees ordinarily crossed the outfeed rollercasing conveyor from No. 1, 2 and 3 head rigs. [Citation Number One, Item 2(d)]The passageway crossing the conveyor caused employees using it to step directlyinto the path of cants, weighing up to 75 pounds, propelled along the conveyorby the power rollers. There was no protection to keep the cants from strikinganyone unfortunate enough to be crossing at the moment a cant was propelledalong the conveyor. Two employees were observed crossing using the passageway and5 employees worked in the immediate area. (Transcript pas 50?58 and Exhibits 5,6 and 7.)??????????? 14.Respondent did not have rail sweeps installed over the outer rails on theNumber 1, 2 and 3 head rigs. [Citation Number One, Item 3] There is no evidenceindicating that any debris collects on the outer rails. Respondent has not hadany problem with debris collecting on the outer rails but has had such aproblem with the inner rails and has installed rail sweeps over those innerrails. (Transcript pas 58?64, 74?75, 478?479 and Exhibits 8, 9 and 10.)??????????? 15.The tail pulleys cited in sub-Items (a), (b) and (e) [Citation Number One, Item10] are each part of a conveyor system. The sides and in-going nip points ofeach of these pulleys were adequately guarded. The pulley cited in sub-Item (a)was also guarded by location because of being 23 inches in back of a framebarring close approach to it. (Transcript pgs 64?103, 480?491 and Exhibits 11,12 and 17.)??????????? 16.The crushing wheel in the chipper room of the plywood plant was located insidea small room where no employees worked and where a visual inspection was made 2times a day from the doorway. [Citation Number One, Item 10(c)] The crushingwheel was located away from the door, with other machinery protected by expandedmetal guards located between the door and the wheel. There is no evidence ofthe exposure of any employee to danger from this crushing wheel. (Transcriptpgs 84?88, 504?536 and Exhibits 13 and 14.)??????????? 17.Unguarded, rotating wheels were located 6 feet 9 inches above the floor of apassageway under the trim saw and panel turner. [Citation Number One, Item10(d)] The wheels were about 2 feet to one side of the path usually taken byemployees using the passageway. The outer surfaces of the wheels were smooth withoutany keyways, slots or screw heads protruding from them. There is no indicationthat these rotating wheels were any part of a mechanical power transmissionapparatus. Three or four employees were observed using the passageway duringthe inspection. (Transcript pgs 88?97 and Exhibits 15 and 16.)??????????? 18.There was no barrier guard or other protection around the trim saw blades onthe ends of grader table No. 6 and 7 in the moulding shop. [Citation NumberOne, Item 11] The guards had been removed while transferring the saws to thenew moulding plant. They had been off for two days at the time of theinspection and were replaced before the CSHO left the plant. The operatoralways remains at least 5 feet from either saw. The employees picking up lumberscraps around the saw only perform their duties when the saws are not inoperation. (Transcript pag 104?114, 388?390, 491?496 and Exhibits 18 and 19.)??????????? 19.Three spoked wheels on the core bandsaw were not guarded over 1\/4 to 1\/2 ofeach wheel. [Citation Number One, Item 12] There was nothing to keep employeesfrom approaching the danger area. The nearest work station was 20 to 25 feetfrom the danger. Millwrights pass through the area in routine inspection andmaintenance. Guards were installed within 2 or 3 months after the inspection soas to cover the danger areas. (Transcript pgs 114?121, 497?501 and Exhibits 20and R.)??????????? 20.Three couplings were not fitted with sleeves, covers or guards. [CitationNumber Two] Complainant amended this Citation in its complaint so that it isalleged that the standard found at 1910.219(i)(2) was violated rather than1910.219(i)(1) as cited in the Citation.??????????? a)The coupling involved in Item 1(a) was located on top of a platform with accessblocked by a ?No Admittance? sign. The only employee approaching this couplingis a maintenance man who goes to the platform once a week to oil the machinery.Such oiling is done only when the machinery is not operating. (Transcript pgs121?123, 126?129, 503 504 and Exhibit 21.)??????????? b)There is no evidence concerning the location or condition of the coupling citedin Item 1(b). (Transcript pgs 123 and 129.)???????????? c)The coupling involved in Item 1(c) is located inside the chipper room wherethere is no work station and where direct access to the coupling is blocked byother machinery located between the door and the coupling. A millwright looksin at the door to the chipper room 4 times a day for visual inspection but doesnot enter the room. (Transcript pgs 124?125, 127, 504?506 and Exhibit 22.)??????????? 21.Contrary to the allegations of the Citation [Citation Number Three, Item 1(a)],the platform adjacent to the hoist was fitted with top rail, midrail andtoeboards. The area cited as a walkway in the Citation actually fills thefunction and purpose of, and therefore is, a ?platform?. (Transcript pgs130?134, 507?509 and Exhibit S.)??????????? 22.There is no midrail along the inner side of the walkway of the tray system ofthe dry kiln. [Citation Number Three, Item 1(b)] Employees use pike poles alongthis walk to straighten the lumber on the tray system and to clear jam ups. Theploes are used through the open space where the midrail would be located. Therequirement for guard rails is governed by the provisions of 1910.23(c)(2),particularly the second paragraph thereof. (Transcript pgs 134?137, 510?511 andExhibit 23.)??????????? 23.Employees cross the tipple in the dry kiln without the protection of guardrails or midrails. [Citation Number Three, Item 1(c)] Such crossing occursabout once a year when the chains and sprockets require maintenance. The chainsand sprockets are self lubricating. When such a crossing is made the top of thetray system is full of lumber making a solid flooring for them to walk on.(Transcript pgs 137?141, 511?514 and Exhibits 24 and T.)??????????? 24.The platform at the top of a stairway had a bent and twisted guard rail and wasnot fitted with a midrail. [Citation Number Three, Item 1(d)] The citedstairway and platform are not in use and have not been used, except veryoccasionally, since the installation of new cranes in 1969. A sign at the footof the stairway restricts use of authorized personnel only. There is noevidence of the exposure of any of Respondent?s employees to the cited danger.(Transcript pgs 141?145, 514?516 and Exhibits 24 and T.)??????????? 25. Awalkway to the unstacker operator?s station at the dry sorter did not have aguard rail in an area 5 feet wide. [Citation Number Three, Item 1(e)] There aretimes during the operating cycle of the lift when there is no lumber on thelift, thus exposing the unguarded area. The walkway is used by the unstackeroperator and by maintenance men. Following the inspection Respondent installedguard rails without finding it difficult or expensive. (Transcript pgs 145?149,517?520 and Exhibits 26 and U.)??????????? 26.Two floor openings next to the press charger were not guarded during a portionof each operating cycle. [Citation Number Three, Item 1(f)] When the liftmachinery is in the up position the openings are open and unobstructed. Thiscondition occurs about 4 to 10 minutes out of every 20 minute cycle. Oneemployee works in close proximity to the openings. The openings cited are?floor openings? rather than ?floor holes?. (Transcript pgs 149?155, 520?255and Exhibits 27, 28 and V.)??????????? 27.Complainant amended this Item of the Citation to allege that a floor hole on awalkway along the veneer belt to the incline drier was not guarded or covered.[Citation Number Three, Item 1(g) as amended in Article XIII of the complaint]There was a hole 6 to 8 inches wide along one side of the walkway for itsentire length. It was not covered or guarded. The walkway is used formaintenance purposes by one employee an average of once per shift. (Transcriptpgs 155?158, 162?163, 552?553 and Exhibit 29.)??????????? 28.Employees walk on a 2 inch by 10 inch piece of lumber to perform maintenance onthe tipple without the protection of any guard rails. [Citation Number Three,Item 1(h)] Two employees use the cited area approximately 6 times per year toperform maintenance on valves located in the area. (Transcript pgs 158?161,524?525 and Exhibits 30 and 31.)??????????? 29.The evidence establishes the existence of a cable midrail on a work platform onthe side of the tipple in the dry kiln. [Citation Number Three, Item 1(i)] Themidrail was missing on one end of the platform which was 18 inches wide. Theplatform is used on the average of about once a year. (Transcript pgs 163?165,525?527 and Exhibits 24, 32, 43 and T.)??????????? 30.The safety standard cited in Citation Number Three, 1910.23(c)(1), was alsoviolated by Respondent in 1972 at which time this standard was cited as Item 1of the Citation which is Exhibit 63 herein. Items 1(h) and 1(i) are repeatedviolations of a standard previously violated by Respondent. (Exhibit 63.)??????????? 31.Citation Number Four was withdrawn by Complainant in its complaint.(File-Complaint, Article XIII and Transcript pgs 10 and 166.)??????????? 32.The walkway next to the trim saw in the plywood plant was deteriorated at oneend with two holes in is. [Citation Number Five] The larger hole was 6 incheslong by 1 1\/2 inches wide. One of the boards sagged an inch and a half belowthe horizontal surface of the walkway. None of the boards were brokencompletely through. Respondent was aware of the holes and the deterioration.There is no work station on the walkway. The cited area is not a ?platform?. Amaintenance man enters the area on an occasional basis only. The boards wererepaired following the inspection. (Transcript pgs 166?169, 527?532 and ExhibitW.)??????????? 33.The pineapple which was unguarded [Citation Number Six] was part of andattached to the lath saw. It was not in any way attached to nor part of aplaner. (Transcript pgs 170?177, 533?534 and Exhibit 33.) The standard cited,1910.265(e)(6)(i)(c), by its terms applies to planers.??????????? 34.The fixture cited as a stairway [Citation Number Eight] was inclined at a pitchof 61 degrees to the horizontal. It is therefore a sub-standard ladder. Thestandard cited, 1910.24(f) applies to stairways, not ladders. Ladders arecovered by 1910.27. (Transcript pgs 192?197, 538?542 and Exhibit 37.)??????????? 35.Complainant has not established any exposure of Respondent?s employees todanger from the unguarded chains [Citation Number Nine, Items 1(a), (b), (c),and (f)] cited as violations of 1910.219(f)(3). (Transcript pgs (a) 126, 200?203,502?503, 544?545 and Exhibits 21 and 38; (b) 204?207, 545?547 and Exhibit 39;(c) 208?211, 547?551 and Exhibit 40; and (f) 225?236, 552?554 and Exhibits 24,32 and T.)??????????? 36.The allegedly unguarded chains [Citation Number Nine, Items 1(d), (e), (g),(h), (i), (k), (l), (m), (n) and (t)] were actually adequately guarded by theguards in place or by the location of each of the chains cited. (Transcript pgs(d) 212?216, 552 and Exhibit 44; (e) 220?225 and Exhibit 42; (g) 237?245, 557and Exhibit 44; (h) 245?250, 558?560 and Exhibit 45; 212?216, 552 and Exhibit41; (e) 46; (k) 262?266, 569?572, 615?617 and Exhibit 48; (1) 266?272, 316?317,356 and Exhibit 46; (m) 272?277, 572?573 and Exhibits 50 and W; (n) 277?281,574?575 and Exhibit 51; and (t) 306?313, 595?597 and Exhibit 57.)??????????? 37.Two chain and sprocket drives on the trim saw [Citation Number Nine, Item 1(j)]were not guarded. Employees enter into the danger area from time to time byaccess between the post and the stacks of veneer. (Transcript pgs 257?261,563?569 and Exhibit 47.)??????????? 38.Both sprockets and the ingoing nip points on the scissors hoist feed to thelay-up line in the plywood plant [Citation Number Nine, Item 1(o)] were notguarded. An operator works within 10 feet of the danger point. (Transcript pgs282?287, 575?579 and Exhibit 52.)??????????? 39.There was no guard covering the in-going nip point on a chain drive on there-dry infeed to the inline drier in the plywood plant. [Citation Number Nine,Item 1(p)] Approximately 10 men per hour pass this area which is used about 2hours every 2 weeks. (Transcript pgs 287?291, 580?583 and Exhibit 53.)??????????? 40.Four chain drives on the back of the tipple roll in the plywood plant wereunguarded. [Citation Number Nine, Item 1(q)] (Transcript pgs 291?296, 584?585and Exhibits 30 and 53.)??????????? 41. Aportion of the chain drive on the unit intake in the stud mill was unguarded.[Citation Number Nine, Item 1(r)] The guard was accidentally dislodged duringthe swing shift on the night before the inspection and had not yet beenreplaced. (Transcript pgs 296?302, 585?594 and Exhibit 55.)??????????? 42.The chain drive on the barker surge bin was not guarded. [Citation Number Nine,Item 1(s)] The only employees approaching the chain are maintenance men whoperform work on it once a week. (Transcript pgs 302?305, 594 and Exhibit 56.)??????????? 43.Of the more than 12,000 chains and sprockets at Respondent?s workplace the CSHOonly cited 20 as being improperly guarded. (Transcript pgs 199 and 622?624.)??????????? 44.The standards codified at 1910.219(e)(1)(i), 1910.219(e)(3)(i) and1910.219(f)(3) were previously violated by Respondent. (Exhibits 63 and 64.)??????????? 45.It is practically impossible to lubricate the chains and sprockets while theyare operating. (Transcript pgs 626?627.)??????????? 46.The lower run of the vertical belt and pulley system on head rig No. 2 in thebasement of the sawmill was at least 31 inches in back of metal framing.[Citation Number Ten, Item 1(a)] The pulleys were not exposed. Respondent fullyenclosed these belts after the inspection. (Transcript pgs 318?334, 598?603 andExhibits 58 and X.)??????????? 47.The vertical belt and pulley system on the lath saw in the lath mill did nothave a nip point guard. [Citation Number Ten, Item 1(b)] Only one man works inthe area. Most of the run of the belts is guarded. (Transcript pgs 323?329 andExhibit 59.)??????????? 48.The vertical belt on the saw grinder in the file room of the plywood plant[Citation Number Ten, Item 1(c)] is a 3\/8ths inch V belt. It moves at the rateof 12 feet per minute. (Transcript pgs 334?340, 603?607 and Exhibit Y.)??????????? 49.The vertical pulley and belt on the conveyor that dumps into the Lilly Padchipper in the barker was not guarded. [Citation Number Ten, Item 1(d)] Thepulley is removed about 1 foot from the access stairway which is used aboutonce a month for maintenance. (Transcript pgs 341?344, 607?610 and Exhibit 60.)??????????? 50.The horizontal belt drive on the air compressor in the dry sorter [CitationNumber Ten, Item 2(a)] was on the side of the compressor next to the wall with30 inches of machinery between it and the approach to it. There was no accessbetween the compressor and the wall. (Transcript pgs 344?348, 610?613 andExhibit 61.)??????????? 51.The horizontal belt drive on the saw grinder in the saw filing room of theplaner mill [Citation Number Ten, Item 2(b)] was guarded by the saw blade beingsharpened when the cited belt drive is in use. This belt only operates whilethe saw is actually being sharpened. (Transcript pgs 348?353, 614?615 andExhibits 62 and Y.)??????????? 52.The flat belt and pulley on the skinner saw in the plywood plant [CitationNumber Seven, Item 1(c)] are actually a conveyor system which carries materialson the belt. (Transcript pgs 177?183 and Exhibit 34.)??????????? 53.The flat belt and pulley on the No. 2 drill press in the basement of the sawmill [Citation Number Seven, Item 1(b)] involve a flat leather belt 1 1\/4inches wide which operates at a very low speed. The drill was used to drillholes of 1 inch diameter or greater in steel. (Transcript pgs 183?196, 534?536and Exhibit 35.)??????????? 54.The horizontal flat belt and pulley on the sticker belt in the dry sorter werenot guarded. [Citation Number Seven, Item 1(c)] The belt moves at a rapid pace.(Transcript pgs 187?192, 5360537 and Exhibit 73.)??????????? Fromthe foregoing Findings of Fact we now make and enter the following:CONCLUSIONS OF LAW??????????? 1. Atall times material hereto Edward Hines Lumber Co., Respondent herein, was anemployer engaged in a business affecting commerce within the meaning of Section3 of the Occupational Safety and Health Act of 1970. On April 18, 1974Respondent filed a letter contesting Citations Numbers Two through Ten andItems 1, 2, 3, 10, 11, and 12 of Citation Number One. Respondent therebybrought itself and the subject matter of this proceeding within the jurisdictionof the Occupational Safety and Health Review Commission pursuant to Section 10of the Act.??????????? 2.The Citations herein were issued on the 9th working day following completion ofthe inspection. Under the circumstances existing in this instance such issuanceis with the reasonable promptness required by Section 9(a) of the Act. There isno indication whatsoever that issuance of the Citations was unreasonablydelayed or that Respondent has been prejudiced in any manner because of this 9day period.??????????? 3.The amendments to the Citations made by Complainant in its complaint areappropriate and are approved.??????????? 4.Citation Number Four was withdrawn by Complainant in its complaint following adetermination that Respondent did not violate 1910.176(a) in the manner alleged.Such withdrawal is Granted and Citation Number Four is VACATED and DISMISSED.??????????? 5.Failure of the CSHO to furnish Respondent copies of the standards cited, ortheir sources, does not invalidate the Citations issued to Respondent herein.??????????? 6.The inspections of Respondent?s workplace in April and June of 1972 resulted infinal orders being entered against Respondent. Any violation of standards citedduring the April and June 1972 inspections, found during the March 19th to21st, 1974 inspection, is a repeated violation within the meaning of Section17(a) of the Act.??????????? 7.Since Citation Number Seven and Item 2 of Citation Number Ten specify violationof the same safety standard, Number 10.??????????? 8.The safety standard found at 1910.213(b)(4) is advisory only. Since it is notmandatory, failure to comply with its provisions is not a violation under theAct. (Item 1 of Citation Number One.)??????????? 9.The American National Standard standard for conveyors cited in1910.265(c)(18)(i) [ANSI B20.1, Section 10(f)] is advisory only. Since it isnot mandatory, but only recommended, failure to comply with its provisions isnot a violation under the Act. (Item 2(a) of Citation Number One.)??????????? 10.The standard cited [1910.265(c)(18)(i) which refers to ANSI B20.1 609(a) and705(b), respectively] was not violated as cited in either instance. (Items 2(b)and 2(c) of Citation Number One.)??????????? 11.Failure to have a crossover to protect employees from being struck by lumberpowered along the outfeed roller casing conveyor from No. 1, 2 and 3 headrigsis a violation of the safety standard found at 1910.265(c)(18)(i) and ANSIB20.1 705(a). (Item 2(d) of Citation Number One.)??????????? 12.The evidence does not establish a violation of 1910.265(e)(1)(vii). There is noshowing of any need for a rail sweep on the outer rail of the Number 1, 2 and 3headings. (Item 3 of Citation Number One.)??????????? 13.Items 10(a), 10(b) and 10(e) involve portions of conveyor systems and shouldhave been cited under specific standards applying to such systems rather thanthe general machine guarding standard cited. (Items 10(a), 10(b) and 10(e) ofCitation Number One.)??????????? 14.There was no exposure of any employees to danger from the crushing wheel in thechipper room of the plywood plant. (Item 10(c) of Citation Number One.)??????????? 15.Failure to have the rotating wheels under the trim saw and panel turner in theplywood plant guarded is a violation of 1910.212(a)(1). (Item 10(d) of CitationNumber One.)??????????? 16.Failure to have barrier guards around the saw blades at the ends of gradertable No. 6 and 7 in the moulding plant is a violation of 1910.213(r)(4). (Item11 of Citation Number One.)??????????? 17.Failure to have the three spoked wheels on the veneer core band saw in theplywood plant fully guarded is a violation of 1910.213(i)(1). (Item 12 of CitationNumber One)??????????? 18.There is no exposure of employees to the danger of the unguarded coupling onthe motor for the hog conveyor in the basement of the sawmill or to thecoupling on the drive motor in the chipper. (Items 1(a) and 1(c) of CitationNumber Two.)??????????? 19.Complainant did not offer any evidence in connection with Item 1(b) of CitationNumber Two.??????????? 20.Since there was a guard rail around that platform to the hoist by the No. 1edger in the sawmill there was no violation. (Item 1(a) of Citation NumberThree.)??????????? 21.The middle walkway on the tray system in the dry kiln was a walkway usedexclusively for a special purpose. Accordingly failure to have a midrail alongits inner side was not a violation of 1910.23(c)(2). (Item 1(b) of CitationNumber Three.)??????????? 22.Since the top of the tray system is full of lumber when the maintenance mencross the tipple to do necessary maintenance work there is no violation of1910.23(c)(1). (Item 1(c) of Citation Number Three.)??????????? 23.The platform with a bent and twisted guardrail and no midrail is not used byany of Respondent?s employees. (Item 1(d) of Citation Number Three.)??????????? 24.The absence of a guardrail on a portion of the walkway to the unstackeroperator?s station is a violation of 1910.23(c)(2). (Item 1(e) of CitationNumber Three.)??????????? 25.Failure to guard the two floor openings next to the press charger is not aviolation of 1910.23(a)(9) as cited. The unguarded spaces are ?floor openings?rather than ?floor holes? and thus are controlled by the standard at 1910.23(a)(1).(Item 1(f) of Citation Number Three.)??????????? 26.The unguarded open space running the full length of the surface of the walkwayalong the veneer belt to the incline drier in the plywood plant is a violationof 1910.23(a)(8). (Item 1(g) of Citation Number Three.)??????????? 27.Failure to have guardrails on lumber which was used by employees as a walkwayfrom which to perform maintenance on the tipple in the plywood plant is aviolation of 1910.23(c)(1). (Item 1(h) of Citation Number Three.)??????????? 28.The absence of a midrail on one end of the platform on the side of the tipplein the dry kiln is a de minimis violation of 1910.23(c)(1). (Item 1(i) ofCitation Number Three.)??????????? 29.Items 1(h) and 1(i) of Citation Number Three are ?repeat? violations since1910.23(c)(1) was previously violated by Respondent.??????????? 30.Citation Number Four has been withdrawn and is VACATED and DISMISSED.??????????? 31.The permitted deterioration of the walkway next to the trim saw in the plywoodplant with the existence of the holes in its surface and the sagging board area violation of 1910.265(c)(4)(ii). This is a ?repeated? violation. (CitationNumber Five.)??????????? 32.Complainant has cited an inapplicable standard in connection with CitationNumber Six. The pineapple is not any part of a ?planer?.??????????? 33.Complainant has cited an inapplicable standard in connection with CitationNumber Eight. The fixture cited is a fixed ladder?not a stairway.??????????? 34.Complainant has not proven any exposure of Respondent?s employees to dangerfrom the unguarded chains cited in Items 1(a), (b), (c) and (f) of CitationNumber Nine.??????????? 35.The evidence establishes adequate guarding by actual guards in place, or bylocation, or by a combination of guards and location of the chains cited inItems 1(d), (e), (g), (h), (i), (k), (l), (m), (n) and (t) of Citation NumberNine.??????????? 36.Respondent has failed to:??????????? 1)Guard-two chain and sprocket drives on the trim saw [Item 1(j)];??????????? 2)Guard two sprockets and ingoing nip points on the scissors hoist feed to thelay-up line in the plywood plant [Item 1(o)];??????????? 3)Guard or cover the ingoing nip points on the chain drive on the re-dry infeedto the inline drier in the plywood plant [Item 1(p)];??????????? 4)Guard 4 chains on the back of the tipple roll in the plywood plant [Item 1(q)];??????????? 5)Guard a portion of the chain drive on the unit intake in the stud mill [Item1(r)];??????????? 6)Guard the chain drive on the barker surge bin [Item 1(s)].??????????? Eachof the six foregoing failures to guard, cited in Citation Number Nine, areviolations of 1910.219(f)(3). They are ?repeated violations? because Respondentviolated this same standard on previous occasions.??????????? 37.The lower run of the vertical belt and pulley system on head rig No. 2 in thebasement of the saw mill was adequately guarded. [Item 1(a) of Citation Number10.]??????????? 38.Respondent?s failure to guard the nip point on the vertical belt and pulleysystem on the lath saw in the lath mill is a violation of 1910.219(e)(3)(i).[Item 1(b) of Citation Number Ten.]??????????? 39.The standard at 1910.219(e)(3)(i) does not apply to the vertical belt on thesaw grinder in the file room of the plywood plant. [Item 1(c) of CitationNumber Ten.]??????????? 40.Failure to guard the vertical pulley and belt on the conveyor that dumps intothe Lilly Pad chipper in the barker is a violation of 1910.219(e)(3)(i). [Item1(d) of Citation Number Ten.]??????????? 41.Neither the horizontal belt drive on the air compressor in the dry sorter northe horizontal belt drive on the saw grinder in the saw filing room of theplaner mill were in violation of 1910.219(e)(1)(i). [Items 2(a) and (b) ofCitation Number Ten.]??????????? 42.The flat belt and pulley on the skinner saw in the plywood plant are part of aconveyor system and are not covered by the standard at 1910.219(e)(1)(i). [Item1(a) of Citation Number Seven.]??????????? 43.The flat belt and pulley on the No. 2 drill press in the basement of the sawmill are not subject to the standard at 1910.219(e)(1)(i). [Item 1(b) ofCitation Number Seven.]??????????? 44.Failure to guard the horizontal flat belt and pulley on the sticker belt in thedry sorter is a violation of 1910.219(e)(1)(i). [Item 1(c) of Citation NumberSeven.]ORDER??????????? Basedupon the foregoing Findings of Fact and Conclusions of Law and for good causeshown, it is ORDERED that:??????????? 1.Items 1, 2(a), 2(b), 2(c), 3, 10(a), 10(b), 10(c), and 10(e) of Citation NumberOne; Citation Number Two (all 3 Items); Items 1(a), 1(b), 1(c), 1(d) and 1(f)of Citation Number Three; Citation Number Four; Citation Number Six; Items 1(a)and 1(b) of Citation Number Seven; Citation Number Eight; Items 1(a) through1(i), 1(k) through 1(n) and 1(t) of Citation Number Nine; and Items 1(a), 1(c),2(a) and 2(b) of Citation Number Ten be, and the same hereby are, VACATEDtogether with all penalties proposed in connection with them; and that??????????? 2.Item 2(d) [$25], Item 10(d) [$0], Item 11 [$0], and Item 12 [$25] of CitationNumber One; Items 1(e), (g), (h) and (i) of Citation Number Three [$50];Citation Number Five [$50]; Items 1(j) and 1(o) through 1(s) of Citation NumberNine [$300]; and Item 1(c) of Citation Number Seven combined with Items 1(b)and 1(d) of Citation Number Ten [$60] be, and the same hereby are, AFFIRMED.Penalties are assessed in the respective amounts indicated in the brackets ([]) hereinabove for a total penalty of $510.?Dated this 25th day of September 1975.JERRY W. MITCHELLJudge, OSAHRC[1]Chairman Barnako does not agree to this attachment.”