“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13603 GENE L. WILLISON, d\/b\/a GENE L. WILLISON, CONTRACTOR, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July25, 1977?DECISIONBefore: BARNAKO, Chairman; and CLEARY, Commissioner.BARNAKO, Chairman:??????????? Adecision of Administrative Law Judge John J. Morris is before us for review.Judge Morris affirmed Complainant?s citation alleging that Respondent violatedthe Occupational Safety and Health Act of 1970[1] by failing to comply withconstruction safety standards pertaining to the transportation of explosives,maintenance of warning signs indicating a blast area, and provision of warningsignals prior to blasting.[2] Respondent petitioned forreview of the judge?s decision but without assigning specific error, and hepresents no argument to us. Pursuant to 29 U.S.C. 661(i)we have reviewed the judge?s decision and for the reasons given below find noerror therein.??????????? Pursuantto our rules Complainant filed a request for admissions, by which he askedRespondent to admit facts sufficient to establish a prima facie case that thestandards had been violated. Respondent did not file a response to the requestfor admissions. Judge Morris thereby deemed the facts admitted[3] and, upon rejectingRespondent?s arguments concerning the standards, affirmed the citation.??????????? Specifically,the judge rejected the contention that Complainant failed to prove thatRespondent?s method of transporting explosives was hazardous. He properly reasonedthat the standards in issue presume the existence of a hazard in the event ofnoncompliance with their requirements.[4] He also concluded thatRespondent?s other arguments were contrary to the plain terms of the standards,and we agree for the reasons he assigns. We also conclude that the penaltiesassessed by the Judge are appropriate.??????????? Accordingly,it is ORDERED that the decision of the judge be and the same is herebyaffirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATE: JUL 25, 1977\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13603 GENE L. WILLISON, d\/b\/a GENE L. WILLISON, CONTRACTOR, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 1, 1976APPEARANCES:Ann M. Noble, Attorney, Office of Henry C.Mahlman, Associate Regional Solicitor, U. S.Department of Labor, Denver, Colorado, for the Complainant,\u00a0Gene L. Willison (Pro Se) of Missoula,Montana, for the Respondent.\u00a0DECISION AND ORDERMorris, Judge:??????????? Acitation alleges violations of the Occupational Safety and Health Act of 1970(29 U.S.C. 651 et seq., hereinafter ?Act?). Complainant asserts violationsoccurred on May 14, 1975 and were observed when complainant?s representativeinspected a trenching site near Lolo, Montana. The citation issued May 21, 1975.Respondent challenged the citation by letter dated June 2, 1975.??????????? Citation3 alleges nonserious violations of the following enumerated standards: Item Standard Allegedly Violated Proposed Penalty Description of Alleged Violation 2 29 CFR 1926.902(d) $90 The Trojan dynamite, fuse cord, and blasting caps were transported to the construction site in the same vehicle which was also being used to transport other materials. The nitrocarbo nitrate blasting agent oxidizer was also transported to the construction site with other materials or cargos. \u00a0 3 29 CFR 1926.902(g) 70 The exposed spark-producing metal on the inside cab of the pickup truck used for the transportation of explosives to the construction site was not covered with wood, or other nonsparking material to prevent contact with containers of explosives. \u00a0 4 29 CFR 1926.902(h) 35 The pickup truck used for the transportation of explosives to the construction site was not marked or placarded on both sides, the front, and the rear with the word ?Explosives? in red letters, not less than 4 inches in height, on white background. 5 29 CFR 1926.905(p) 60 Warning signs, indicating a blast area, were not maintained at all approaches to the blast area. \u00a0 6 29 CFR 1926.909(b) 60 During the blasting operation observed at the construction site the blaster in charge failed to give a loud warning signal before the blasts were fired. \u00a0 \u00a0The foregoing standards read:? 1926.902 Surface transportation ofexplosives.(d) Explosives, blasting agents, andblasting supplies shall not be transported with other materials or cargoes.Blasting caps (including electric) shall not be transported in the same vehiclewith other explosives.?(g) All vehicles used for thetransportation of explosives shall have tight floors and any exposedspark-producing metal on the inside of the body shall be covered with wood, orother nonsparking material, to prevent contact withcontainers of explosives.?(h) Every motor vehicle or conveyance usedfor transporting explosives shall be marked or placarded on both sides, thefront, and the rear with the word ?explosives? in red letters, not less than 4inches in height, on white background. In addition to such marking orplacarding, the motor vehicle or conveyance may display, in such a manner thatit will be readily visible from all directions, a red flag 18 inches by 30inches, with the word ?explosives? painted, stamped, or sewed thereon, in whiteletters, at least 6 inches in height.\u00a0? 1926.905 Loading of explosives orblasting agents.2 (p) Warning signs, indicating a blastarea, shall be maintained at all approaches to the blast area. The warning signlettering shall not be less than 4 inches in height on a contrastingbackground.? ? 1926.909 Firing the blast.(b) Before a blast is fired, a loudwarning signal shall be given by the blaster in charge, who has made certainthat all surplus explosives are in a safe place and all employees, vehicles,and equipment are at a safe distance, or under sufficient cover.\u00a0??????????? Theevidence: Complainant relied on the pleadings to establish a case. TheOccupational Safety and Health Act applies to the respondent since he failed todeny such allegations in the complaint (Tr. 7, Answer). Commission Rule33(b)(2) states that ?Any allegation not denied shall be deemed admitted.???????????? Item2: Dynamite, fuse cords, and blasting caps were transported with othermaterials (Admissions: 1, 2, 3).??????????? Item3: The vehicle used to transport the above described materials had exposedspark producing metal on the inside cab (Admissions: 5, 6).??????????? Item4: The vehicle used to transport the materials described above was not markedor placarded on both sides, front, and rear with the word ?Explosives? asrequired by Part 1926.902(h) (Admissions: 7, 8).??????????? Item5: Respondent excavated a portion of the worksite using blasting methods.Warning signs, indicating a blast area, were not maintained at all approachesto the blast area (Admissions: 10).??????????? Item6: During the blasting operation at the worksite the blaster in charge failedto give a loud warning signal before the blasts were fired (Admissions: 11).??????????? Respondent?sevidence establishes use of dynamite over many years without any accident (Tr.16?22). He therefore argues complainant must show a danger to employees and inabsence of such a showing the citation should be vacated.??????????? Thisargument overlooks the scope and purpose of the Act. In Section 651 theCongress declares, in part, that the Act is:?. . . to assure so far as possible everyworking man and woman in the nation safe and healthful working conditions andto preserve our human resources . . ..??Under Section 654(a):?Each employer shall comply withoccupational safety and health standards promulgated under the chapter.????????????? Complainant,the Secretary of Labor, duly promulgated the regulations herein. A presumptionof hazard exists if such a standard is violated.??????????? It isnot incumbent on complainant to establish that a hazard exists if the specificstandard can be considered generally with complainant?s legislative grant ofauthority. A caveat lies in those situations where the specific standard incontest incorporates such terms as hazard, probability of injury, or accidentalinjury.??????????? Respondentargues that placarding a truck with the sign ?EXPLOSIVES? only attractsattention to the vehicle (Tr. 28?31).??????????? Theabove argument disregards complainant?s regulations. Placarding a truck servesto warn all persons, including motorists of the potential danger.??????????? Respondentfurther contends he exceeds the ?warning before blasting? standard in that heor his employees personally contact persons in the vicinity to warn them of animminent blast (Tr. 31?36).??????????? Respondentis to be commended for this effort. However, a loud warning signal immediately beforeblasting warns all persons nearby to take ?sufficient cover.? Personallywarning and using a warning signal before blasting are not mutually exclusiveremedies. Respondent?s argument that he doesn?t know what constitutes ?a loudwarning signal? lacks merit; he admits giving no signal whatsoever (Tr. 33?34).??????????? Relatingto proposed civil penalties complainant contends that by the pleadingsrespondent admits he has two employees. Further, a prior case (Cause Number9508, 19 OSAHRC ??) shows his knowledge of the Act. Respondent indicates he isa small contractor in relation to other contractors grossing $150,000 to$200,000 (Tr. 36?38). He has safety and training programs and no employees havesustained any injury in the last 8 or 9 years (Tr. 39?41).??????????? Evaluationsas to civil penalties are to be made independently of complainant?s proposals, Secretaryv. Dreher Pickle Company, 2 OSAHRC 497 (1973). The Commission has ruledthat of the four statutory factors bearing on the appropriateness of thepenalty the gravity of the violation should generally be accorded the greatestweight, Secretary v. Baltz Brothers Packing Company, 2 OSAHRC 384(1973). Transporting and using dynamite involves a considerable hazard allestablished by the case law and relevant statutes; for example, see 18 U.S.C.832. Though complainant has alleged the violations here are of a nonseriousnature, they nevertheless fall with the Commission doctrine expressed in Secretaryv. Hydroswift 1 OSAHRC 921 (1972). The Commissiontherein ruled that the assessment of small penalties where the gravity of theviolation is other than low serves to remind all employers ?that their primaryresponsibility under the Act is adherence to its protective mechanisms.???????????? Nosubstantial controversy of fact is involved in these violations. Accordingly,based on the uncontroverted record the undersigned enters the following:ORDER??????????? 1. Item 2, 3, 4, 5, and 6 of citation3 are AFFIRMED.??????????? 2.The proposed civil penalties:? Item 2 $90 Item 3 70 Item 4 35 Item 5 60 Item 6 60 \u00a0are AFFIRMED.?Soordered in the City and County of Denver, Colorado.?John J. MorrisJudge, OSAHRCDated: March 1, 1976?[1] 29 U.S.C. 651 etseq.[2] 29 C.F.R.1926.902(d), (g), and (h); 1926.905(p); and 1926.909(b).[3] Commission Rule52(a), 29 C.F.R. 2200.52(a), provides that ?(t)he matter shall be deemedadmitted unless . . . the party to whom the request is directed serves upon theparty requesting the admission a specific written response.?[4] See Lee WayMotor Freight, Inc., 7 OSAHRC 1128, 1 BNA 1689, 1973 74 OSHD para. 17,693(1974), aff?d, 511 F.2d 864 (10th Cir. 1975).”