“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?5344 \u00a0 GENERAL MOTORS CORPORATION, CHEVROLET MOTOR DIVISION, RESPONDENT AND UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 \u00a0 ????????????????????????????????????????????? \u00a0 \u00a0January 25, 1982DECISIONBefore ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge George W. Otto is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Ottoaffirmed three nonserious items alleging that General Motors Corporation(?GMC?) violated several occupational safety and health standards for generalindustry. In his decision, the judge declined to consider certain affirmativedefenses which GMC raised at the hearing. For the following reasons, we holdthat the defenses should have been considered and, having considered them now,we affirm two of the three items as nonserious violations and the remainingitem as a de minimis violation. We also deny a motion filed by GMC before thejudge?s decision was filed with the Commission in which GMC asserts that thedecision must be vacated because of lack of subject matter jurisdiction.I??????????? GMCasserts in its motion that the judge and the Commission were deprived ofsubject matter jurisdiction over this case when, while it was pending beforeJudge Otto, the Secretary of Labor (?the Secretary?) gave ?final? approval tothe occupational safety and health plan implemented by the State of Michigan.GMC relies on section 18 of the Act, 29 U.S.C. ? 667.??????????? OnOctober 28, 1976, an Occupational Safety and Health Administration (?OSHA?)compliance officer inspected GMC?s Warren, Michigan plant. On November 17,1976, OSHA issued to GMC a nonserious citation, three items of which are atissue in this case. On December 9, 1976, GMC filed a notice of contest which,pursuant to section 10(c) of the Act, 29 U.S.C ?\u00a0659(c), OSHA forwarded tothe Commission so that a hearing could be held.??????????? Whenthese events occurred, Michigan was in the process of developing andimplementing a state occupational safety and health plan pursuant to section 18of the Act. Section 18 provides that any state may submit to the Secretary astate plan for the development and enforcement of occupational safety andhealth standards covering issues on which OSHA has developed standards. Section18(b), 29 U.S.C. ? 667(b). The Secretary must approve the plan if it meetscertain criteria stated in section 18(c), 29 U.S.C. ? 667(c). Michigan hadsubmitted such a plan, which the Secretary approved under section 18(c). See 38Fed. Reg. 27388 (1973).??????????? Afterthe Secretary approves a plan under section 18(c), he has discretion tocontinue to exercise his own enforcement authority under the Act in the state.Section 18(e), 29 U.S.C. ?\u00a0667(e). However, after at least three years ofdiscretionary enforcement, the Secretary may determine ?that the criteria setforth in subsection (c) are being applied? and, after making thisdetermination, the Secretary?s enforcement authority in the state issubstantially circumscribed:Upon making the determination referred toin the preceding sentence, the provisions of section 5(a)(2), 8 (except for thepurpose of carrying out subsection (f) of this section), 9, 10, 13, and 17, andstandards promulgated under section 6 of the Act, shall not apply with respectto any occupational safety or health issues covered under the plan, but theSecretary may retain jurisdiction under the above provisions in any proceedingcommenced under section 9 or 10 before the date of determination.?Section 18(e), 29 U.S.C. ? 667(e). Basically, theSecretary may not initiate enforcement proceedings concerning issues covered bythe state plan but he may ?retain jurisdiction? in enforcement proceedingsinitiated before he made the determination to which this part of section 18(e)refers.??????????? GMCcontends that, while this case was pending before Judge Otto, the Secretarymade the ?final? determination with respect to the Michigan state plan andthereby triggered the jurisdictional limitation in section 18(e). GMC alsocontends that, because section 18(e) mentions only that ?the Secretary mayretain jurisdiction,? it is plain that neither the Commission nor anadministrative law judge retains jurisdiction. Therefore, GMC asserts that thejudge?s decision must be vacated.??????????? Asthe ?final? determination, GMC refers to the Secretary?s announcement on March22, 1977, which stated that the Michigan plan became ?operational? as ofJanuary 6, 1977,[1]and that, therefore, OSHA and Michigan entered into an agreement limitingfederal enforcement in the state. The announcement also stated that, inaccordance with the agreement, 29 C.F.R. ?\u00a01952.262 was publishedconcerning the level of federal enforcement under the Michigan plan.??????????? Section1952.262 provides that OSHA will not initiate enforcement proceedingsconcerning issues covered by standards in 29 C.F.R. Part 1910 and Part 1926except to enforce subsequently promulgated OSHA standards until Michigan adopts?equivalent? standards. Section 1952.262 also provides for OSHA investigationsand inspections to evaluate the plan under sections 18(e) and (f) of the Act,29 U.S.C. ?? 667(e) and (f), which provide for continuing evaluation of thestate?s implementation of its plan.??????????? TheSecretary?s announcement and section 1952.262 do not at any point state thatthe Secretary has made the ?final? section 18(e) determination which limits hisauthority as a matter of law. Additionally, the determination of operationalstatus is not the ?final? section 18(e) determination. The ?Background?statement in the announcement states:Part1954of Title 29, Code of Federal Regulations, setsout procedures under section 18 of the Occupational Safety and Health Actof 1970 (29 U.S.C. 667) (hereinafter referred to as the Act) for the evaluation and monitoring of Stateplans which have been approved under section 18(c) of the Act and 29 CFRPart 1902. Section 1954.3 of this chapterprovides guidelines and procedures for the exercise of discretionary concurrentFederal enforcement authority under section 18(e) of the Act with regard toFederal standards in issues covered under an approved State plan. In accordance with ? 1954.3(b) of thischapter, Federal enforcement authoritywill not be exercised as to occupational safety and health issues coveredunder a State plan where a State isoperational.?42 Fed. Reg. 15411 (emphasis added). Because section1954.3 concerns the exercise of discretionary concurrent OSHA enforcementauthority while a plan is being evaluated and monitored under section 18(e)subsequent to section 18(c) approval, the operational status accorded pursuantto section 1954.3(b) is no more than a step in development of the final stateplan. See AFL-CIO v. Marshall, 570F.2d 1030 (D.C. Cir. 1978). The status is not a determination that the plan hasthe ?final? approval of the Secretary. See 29 C.F.R ? 1954.3.??????????? Moreover,Michigan and OSHA entered into an agreement to limit OSHA?s exercise of itsdiscretionary enforcement authority and OSHA agreed not to initiate certainenforcement activity. OSHA continued to have discretionary enforcementauthority and this determination of ?operational status? did not limit OSHAauthority as a matter of law under section 18(e). See General Motors Corp., Central Foundry Division, 80 OSAHRC42\/A2, 8 BNA OSHC 1298, 1980 CCH OSHD ? 24,452 (No. 78?2696, 1980). Inaddition, in section 1952.262, OSHA stated that it may recommend resumption ofits enforcement authority ?under section 18(e)? to assure occupational safetyand health protection. Accordingly, because the Secretary had not made a?final? section 18(e) determination respecting the Michigan plan, GMC?s basisfor contending that we have been divested of jurisdiction is based on amisconception of the status of the Michigan plan.??????????? However,even if the Secretary had given ?final? approval to that plan, we would stillconclude that we retain jurisdiction over this case. Because section 18(e)?sreference to the Secretary?s retention of jurisdiction concerns proceedingscommenced under sections 9 or 10, the discretion given to the Secretary bysection 18(e) to ?retain jurisdiction? can only mean that the Secretary has theoption of continuing with the proceedings in any case commenced under sections9 or 10 before ?final? approval was given to a state plan. If the Secretarydecides to continue prosecuting such a case, the Commission must retain jurisdiction,for otherwise the Secretary would have no forum in which the case couldproceed. Accordingly, we would deny GMC?s motion even if the Secretary hadgiven ?final? approval to the Michigan state plan.[2]II??????????? Inits answer, GMC denied the Secretary?s alleged violations of crane inspection,housekeeping, and electrical standards (the three non-serious items at issue inthis case) and pleaded, as the only ?Affirmative Defense,? that the Secretary?scomplaint failed to state a claim upon which relief could be granted. At thehearing, GMC?s attorney stated, however, that GMC would rely on affirmativedefenses that compliance with the housekeeping standard was impossible, thatthe electrical standards are vague, and that compliance with them would createa greater hazard. The Secretary?s attorney moved to strike these defenses. Heargued that GMC waived them in its answer to the complaint and claimedprejudice because further discovery would be needed to meet them.??????????? JudgeOtto reserved ruling on the Secretary?s motion. During the hearing, evidencewas presented on the defenses without objection by the Secretary. However, atthe close of the hearing, the Secretary?s attorney reiterated the Secretary?sobjections and asked for a continuance if GMC?s defenses were allowed.??????????? Inhis decision, Judge Otto disallowed GMC?s impossibility and greater hazarddefenses on the basis that they were raised too late in the proceedings. Hereasoned that the Secretary is entitled to notice of affirmative defenseseither in the answer or, at the latest, during a prehearing conference.However, Judge Otto additionally stated, ?The stated affirmative defenses, iftimely, would have failed to negate the . . . violation items. . . .? He alsodiscussed GMC?s vagueness defense on its merits and concluded that theelectrical standards are not vague.??????????? GMCargues on review that general notice of affirmative defenses was given in GMC?sanswer, which included the plea of failure to state a claim upon which reliefcould be granted. GMC asserts that the Secretary could have used discovery tolearn the specific nature of the affirmative defenses. In any event, GMCasserts, the judge should have granted a continuance rather than striking thedefenses. The Secretary argues that affirmative defenses must be specificallypleaded in the answer and that the plea of failure to state a claim did notgive notice of GMC?s affirmative defenses. However, the Secretary does notcontinue to claim prejudice.??????????? FederalRule of Civil Procedure 8(c)[3] requires a defendant toaffirmatively plead in its answer any matter that is an affirmative defenseunder applicable law. See United Statesv. Demmon, 72 F.Supp. 336 (D. Montana, 1947); see generally 5 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE ? 1271. By the time of theinspection in this case, the affirmative defenses of vagueness of a standard,impossibility of compliance, and greater hazard had been recognized by theCommission. See Brady-Hamilton StevedoreCo., 75 OSAHRC 5\/D9, 3 BNA OSHC 1925, 1975?76 CCH OSHD ?20,342 (No. 2265,1976) (vagueness as a defense); RiverTerminal Railway Co., 75 OSAHRC 13\/A2, 3 BNA OSHC 1808, 1975?76 CCH OSHD?20,215 (No. 4419, 1975) (an employer?s claim of vagueness must be raisedsufficiently before the hearing to allow development of a record); Garrison & Associates, Inc., 75OSAHRC 51\/D5, 3 BNA OSHC 1110, 1974?75 CCH OSHD ?19,550 (No. 4235, 1975) (leadand concurring opinions), and cases cited therein (impossibility as anaffirmative defense); Lee Way Motor Freight,Inc., 75 OSAHRC 20\/E12, 3 BNA OSHC 1843, 1975?76 CCH OSHD ?20, 250 (No.7674, 1975), and cases cited therein (greater hazard as an affirmativedefense). Therefore, GMC was required to affirmatively plead these defenses.??????????? GMC?sreliance on its plea of failure to state a claim for relief is misplaced. Thisplea only challenges the sufficiency of the Secretary?s complaint alleging thefactual and legal basis of his claim. It does not raise any affirmativedefenses except if the complaint alleges the facts of a defense along with theclaim. See Pointer v. American Oil Co.,295 F.Supp. 573 (S.D. Indiana, 1969); seegenerally 5 WRIGHT AND MILLER, FEDERALPRACTICE AND PROCEDURES ?? 1355, 1356, 1357 along with ? 1202 on FederalRule 8(a). Accordingly, GMC?s plea in its answer did not give notice ofaffirmative defenses.??????????? AlthoughGMC did not raise the defenses until the hearing, the answer can be amended toinclude them so long as the opposing party is not prejudiced. See Fed. R. Civ.P. 15(b); Texland Drilling Corp., 80OSAHRC 106\/C13, 9 BNA OSHC 1023, 1980 CCH OSHD ?24,954 (No. 76?5307, 1980); Bill C. Carroll Co., 79 OSAHRC 47\/C13, 7BNA OSHC 1806, 1979 CCH OSHD ?23,940 (No. 76?2748, 1979); see generally 5 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE ? 1278. In this case, theaffirmative defenses were raised at the outset of the hearing and, because thejudge reserved ruling on the Secretary?s motion to strike, these issues weretried. Furthermore, the record reflects that at an informal conference betweencounsel prior to the hearing GMC advised the Secretary of its intention toraise certain affirmative defenses. As a result, the Secretary had notice thatthe defenses might be allowed and had an opportunity to explore the defenseswith all witnesses. Moreover, although the Secretary claimed prejudice in hisargument to the judge, there has been no showing of actual prejudice and theSecretary does not argue prejudice on review. Accordingly, we amend the answerto add the defenses and shall consider the merits of the defenses.III??????????? JudgeOtto affirmed item 1 of the nonserious citation, in which the Secretary allegedthat ?[f]requent inspections of the cranes and lifting equipment [were] notperformed and recorded as required? by 29 C.F.R. ? 1910.179(j)(2).[4] Judge Otto found thatGMC?s crane records were three or four months behind and that during threemonths no crane inspections were made other than daily visual inspections ofupper limit switches. On review, GMC contends that these findings have insufficientsupport and do not show a violation.??????????? Wehave reviewed the record in light of GMC?s arguments, which are basically thesame as made to Judge Otto. We conclude that the factual findings are supportedby a preponderance of the evidence, and that the item was properly affirmed.Accordingly, we affirm the judge?s decision on this item. See Gulf Oil Co., 77 OSAHRC 216\/B10, 6 BNA OSHC 1240, 1978 CCH OSHD?22,737 (No. 14281, 1977).IV??????????? JudgeOtto affirmed item 10, which alleged that GMC failed to comply with 29 C.F.R. ?\u00a01910.22(a)(1)[5] because the floor of the?hy-bay basement? was ?covered? with ?metal scrap and deep puddles of oil.? Thehy-bay basement is a 1000-foot by 150-foot area through which a main scrapconveyor and several feed conveyors carry metal scrap to the outside from theground level plant floor, where metal forming presses are located. Serviceemployees, including millwrights, electricians, pipefitters, and machinerepairmen, generally pass through or work in the basement on a daily basis.When the conveyors are operating properly, they are adequate to convey most ofthe scrap out of the basement. However, GMC additionally employs clean-upcrews, consisting of four or five employees per shift for three shifts, toclean up any metal scrap that falls from the conveyors onto the basement floorand to hose away accumulations of oil. During a 24-hour period, the threeclean-up crews can generally clean the entire basement.??????????? Aboutonce a month, one or more conveyors may break down. Because the presses on theground floor continue to operate, metal scrap falls from the conveyors onto thebasement floor in more than usual amounts. Additional employees may be assignedas needed to assist the clean-up crews to stack the scrap in piles and rows.Also, the clean-up crews will clean any area of the basement in which anemployee has to work if the employee makes a request.??????????? Thejudge found that there was metal scrap and oil on the hy-bay basement floor atthe time of the inspection and that service employees had access to the poorhousekeeping conditions. He also found that larger clean-up crews could havereduced the scrap and oil build-up.??????????? Onreview, GMC argues that no employees were exposed except the clean-up crews andthat the floor was not unreasonably unclean, disorderly or unsanitary. Weconclude that the judge?s factual findings on employee access to noncomplyingconditions and on the possibility of more effective clean-up are supported by apreponderance of the evidence. Because GMC did not show that compliance wouldprevent performance of required work or that compliance would be functionallyimpossible, GMC has not established an impossibility defense. See Frank Swidzinski Co., 81 OSAHRC4\/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ?25,129 (No. 76?4327, 1981); cf. Marinas of the Future, Inc., 77OSAHRC 201\/B1, 6 BNA OSHC 1120, 1977?78 CCH OSHD ?22,406 (No. 13507, 1977)(section 1910.22(a)(1) citation vacated because the record established that thematerials and tools on the floor at the time of the inspection were not inexcess of those required to accomplish the work being performed). However,because the safety and health of employees was not substantially diminished, weconclude that the violation was de minimis. SeeGeneral Motors Corp., Rochester Products Division, 81 OSAHRC 30\/E13, 9 BNAOSHC 1575, 1981 CCH OSHD ?25,279 (No. 78?2894, 1981), and cases cited therein.[6] Accordingly, we assess nopenalty and do not require additional abatement measures.V??????????? JudgeOtto affirmed item 13, which alleged that, because the ?electrical disconnectscontrolling the conveyors throughout the plant had overcurrent devices locatedover 12 feet in the air,? the overcurrent devices were not ?readily accessible?as required by the National Electrical Code (?NEC?). The Secretary alleged thatGMC violated section 240?16[7] of the NEC and 29 C.F.R.?1910.309(a).[8]The Secretary also alleged that GMC violated section 430?107[9]9 of the NEC and 29 C.F.R.? 1910.309(b).[10]GMC contends that the judge?s decision was in error in several respects, whichwe consider in turn.A??????????? Sections1910.309(a) and (b) are in ?Subpart S?Electrical? of Part 1910. The firstprovisions in this subpart, 29 C.F.R. ?? 1910.308(a) and (b), state thefollowing:(a) General. Section 1910.309 adopts as anational consensus standard the National Electrical Code NFPA 70?1971; ANSIC1?1971 (Rev. of C1?1968), which is incorporated by reference in this subpart.?(b) Purpose of the National ElectricalCode. (1) The purpose of the National Electrical Code is the practicalsafeguarding of any persons and of buildings and their contents from hazardsarising from the use of electricity for light, heat, power, radio, signaling,and for other purposes. The standards contained therein are occupational safetyand health standards to the extent that they safeguard any person who is anemployee of an employer.?(2) The National Electrical Code containsbasic minimum provisions considered necessary for safety.???????????? Becausesection 1910.308(b)(1) says that the NEC standards are occupational safety andhealth standards ?to the extent that they safeguard any person who is anemployee of an employer,? GMC contends that the Secretary adopted only a partof the NEC, that is, the NEC provisions affecting the safety of employees.Because the Secretary has not stated which NEC standards have this effect andare therefore adopted, GMC contends that the Secretary?s adoption of the NECstandards was improper and the Secretary?s electrical standards areimpermissibly vague. Judge Otto rejected these contentions on the basis thatthe cited NEC standards cover employees. We agree that the contentions must berejected and add the following comments.??????????? Inseveral places, the electrical standards straightforwardly indicate that thewhole NEC was adopted. Section 1910.308(a) states, ?Section 1910.309 adopts . .. the National Electrical Code . . . which is incorporated by reference in thissubpart.? Section 1910.309(a), note 8 supra,concerns the broad class of ?all electrical installations and utilizationequipment,? no matter when it was installed, and lists the NEC provisions whichapply to all such equipment. Section 1910.309(b), note 10 supra, pertains to a subclass of such equipment?equipment installedor repairs and improvements made after March 15, 1972?and states that theinstallation, repair, or improvement ?shall be in accordance with theprovisions of the 1971 National Electrical Code. . . .? These provisions implythat in time the whole NEC is to apply to all electrical installations andutilization equipment.??????????? Section1910.308(b)(1), on which GMC relies, does not necessarily indicate thecontrary. It states that the NEC?s purpose is the protection of people, as wellas buildings and their contents. Therefore, the statement that NEC standardsare OSHA standards ?to the extent that they safeguard any person who is anemployee . . .? simply indicates that ?people? includes ?employees? present onthe site of electrical equipment.[11] Essentially, then,section 1910.308(b)(1) indicates that the whole NEC is adopted because itprotects employees.??????????? SinceSubpart S states that the whole NEC is adopted and specifies which NECstandards apply depending on when the electrical equipment was installed,repaired, or improved, adequate notice of the requirements was given.Accordingly, we reject GMC?s arguments of vagueness and improper adoption.B??????????? Weturn now to the alleged violation. GMC uses many electrically-powered conveyorsto transport parts. Several hundred employees work along the conveyors removingand replacing parts in connection with tasks they perform. The complianceofficer observed these conveyors and became concerned that, if an employeebecame entangled in a conveyor, it might not be stopped in time to preventinjury. Each conveyor has several sets of stop-start buttons located atoperator stations along the conveyor. Each conveyor also has a disconnectswitch in an electrical equipment box containing an overcurrent device?a fuse?locatedfourteen to sixteen feet above the production floor where the conveyors arelocated. A ladder would be required (and would have to be brought to the area)to reach the disconnect switch. The compliance officer?s concern was with thelack of ready access to the disconnect switch if the stop-start buttons shouldfail.??????????? Accordingly,the Secretary charged GMC with violating sections 240?16 and 430?107 of NEC.Section 240?16 requires, in pertinent part, ?Overcurrent devices shall belocated where they will be: (a) Readily accessible. . . .? Section 430?107requires, ?One of the disconnecting means shall be readily accessible.? InArticle 100, the NEC defines ?readily accessible:? ?Capable of being reachedquickly, for operation, renewal, or inspection, without requiring those to whomready access is requisite to climb over or remove obstacles or to resort toportable ladders, chairs, etc.???????????? BecauseGMC contends that lack of ready access did not present any hazards to theproduction employees and that abatement would expose them to greater hazards,the main issue between the parties has been the nature of the hazard presentedby the lack of ready access to the disconnect switch located adjacent to theovercurrent device. GMC argues and the evidence shows that its disconnectswitches are not designed to be opened ?under load,? that is, while theelectrical circuit is complete. Accordingly, GMC argues, the switches are notintended for use as a secondary disconnecting means, that is, a stop switch, inan emergency.??????????? Examinationof the NEC indicates that disconnect switches associated with overcurrentdevices are normally not intended for use as stop switches. See sections240?18, 430?101, 430?107 through 430?109, along with definitions of?disconnecting means? and ?isolating switch? in Article 100. Further, a GMCelectrical engineer testified that a disconnect switch?s purpose is to?isolate? or ?lock-out? a circuit while an electrician or millwright works onassociated electrical equipment. A GMC electrician who testified on behalf ofthe Secretary gave similar testimony, although he also asserted that thedisconnect switch must be readily accessible for use as a stop switch. Becausethe NEC indicates that the purpose is isolation of the circuit, see section 240?18,we conclude that lack of ready access presents a hazard to electricians andmillwrights from their possible failure to isolate the circuit before workingon associated equipment.??????????? Therecord shows that electricians and millwrights did not have ready access to theovercurrent devices and disconnect switches. Accordingly, the record showsnoncompliance with section 240?16 and, because GMC agrees that the stop-startbuttons are not a ?disconnecting means? under the NEC and does not argue thatother disconnecting means were readily accessible, noncompliance with section430?107 has also been shown.[12] GMC argues that readyaccess to the disconnect switches will present a greater hazard in that therecan be an arcing or explosion hazard if the production employees use thedisconnect switches as secondary stop switches. However, section 501?6(b)(1) ofthe NEC indicates that such hazards can be eliminated if switches used tointerrupt current are contained within proper enclosures. If the switch is notintended to be used to interrupt current, then the NEC suggests it should belabelled that it must not be opened under load. Compare section 501?6(b)(1)with section 430?109. Thus, compliance with the NEC should eliminate thehazards of arcing and explosion that concern GMC. Accordingly, we reject GMC?sgreater hazard defense and affirm the citation. See Ed Cheff d\/b\/a Ed Cheff Logging, 81 OSAHRC 60\/A2, 9 BNA OSHC1883, 1981 CCH OSHD ?25,431 (No. 77?2778, 1981), appeal filed, No. 81?7493 (9th Cir. July 27, 1981); Duncanson-Harrelson Co., 81 OSAHRC28\/A2, 9 BNA OSHC 1539, 1981 CCH OSHD ?25,296 (No. 76?1567, 1981).C??????????? JudgeOtto required abatement of this violation in one year. GMC takes exception tothis requirement but does not argue how it is unreasonable. Abatement involvesmoving the overcurrent devices and disconnect switches to the production floor.Because this equipment is in an equipment box, abatement essentially involvesmoving the boxes. This matter of altering the electrical wiring will have to beperformed on each conveyor. The record does not show how many conveyors areinvolved, but one year appears to be sufficient time for the task involved.Accordingly, we affirm the judge?s requirement of abatement in one year.IV??????????? JudgeOtto assessed no penalty for items 1 and 13 which we affirm as nonseriousviolations. Having considered the factors stated in section 17(j), 29 U.S.C. ?666(i), we agree that no penalty should be assessed.??????????? Accordingly,we deny GMC?s motion to vacate the judge?s decision; we affirm items 1 and 13as nonserious violations but we assess no penalty for either item, and requireabatement of item 13 in one year; we affirm item 10 as a de minimis violationfor which abatement is not required. SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: JAN 25, 1982\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?5344 \u00a0 GENERAL MOTORS CORPORATION, CHEVROLET MOTOR DIVISION, RESPONDENT AND UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 \u00a0 ????????????????????????????????????????????? \u00a0 May 2, 1978DECISION AND ORDERAppearances:Karl C. Overman, Esq., for Complainant.\u00a0Wallet B. Rogers, Esq., for Respondent.\u00a0Jerome Eichbauer, Health and SafetyRepresentative, UAW Local 909.\u00a0Judge Otto??????????? Thisis a proceeding under the Occupational Safety and Health Act of 1970 (Act).[13] Following inspection ofrespondent?s Warren, Ohio plant on October 28, 1976, complainant issued onecitation November 17, 1976 containing 13 items of alleged nonserious violation,fixing abatement dates and proposing related penalties. Respondent dulycontested the citation. Local 909 UAW, authorized representative of affectedWarren plant employees, elected to participate as a party.??????????? Hearingwas held in Detroit, Michigan on December 13, 1977, at which time respondentwithdrew its contest of all cited items except items 1, 10 and 13 (T 1, 2, 3).??????????? CITATIONNUMBER 1?Item #1[14]??????????? Description:Frequent inspections of the cranes and lifting equipment was not performed andrecorded as required. Abatement date November 24, 1976. No proposed penalty(original $30 amended to zero). ??????????? 29CFR 1910.179(j): (2) Frequent inspection. The following items shall beinspected for defects at intervals as defined in subparagraph (1)(ii) of thisparagraph or as specifically indicated, including observation during operationfor any defects which might appear between regular inspections. Alldeficiencies such as listed shall be carefully examined and determination madeas to whether they constitute a safety hazard:?(i) All functional operating mechanismsfor maladjustment interfering with proper operation. Daily.?(ii) Deterioration of leakage in lines,tanks, valves, drain pumps, and other parts of air or hydraulic systems. Daily.?(iii) Hooks with deformation or cracks.Visual inspection daily; monthly inspection with signed reports. For hooks withcracks or having more than 15 percent in excess of normal throat opening ormore than 10?-twist from the plane of the unbent hook refer to paragraph(1)(3)(iii)(a) of this section.?(iv) Hoist chains, including endconnections, for excessive wear, twist, distorted links interfering with properfunction or stretch beyond manufacturer?s recommendations. Visual inspectiondaily; monthly inspection with signed report.?(v) (Revoked).?(vi) All functional operating mechanismsfor excessive wear of components.?(vii) Rope reeving for noncompliance withmanufacturer?s recommendations.???????????? Cranerecords were three to four months behind, due to vacations and increasedworkload. Signed reports were three months old for hoist chains; there was norecord of chain hoist inspections. No crane inspections were made in June,July, August 1976, beyond crane operators checking the upper limit switchesmornings before using cranes. Maximum period with no inspection was fourmonths.??????????? Thecited standard requires ?frequent inspection,? defined in 29 CFR1910.179(j)(1)(ii)(a) as ?Daily to monthly intervals.? Respondent failed tocomply with the requirements of subparagraphs (2)(i)(ii)(iv)(vi). Reasonscontended by respondent do not justify the failure to comply with the standard.Abatement date at time of citation issuance was reasonable. A zero penalty wasultimately proposed by complainant. Considering statutory factors, no penaltyis assessed.??????????? CITATIONNUMBER 1?Item #10[15]?Description: Places of employment were notkept clean and orderly, or in a sanitary condition: In the hy-bay basementwhere metal scrap and deep puddles of oil covered the floor. Abatement dateNovember 24, 1976; no proposed penalty.?29 CFR 1910.22(a)(1): All places ofemployment, passageways, storerooms, and service rooms shall be kept clean andorderly and in a sanitary condition.???????????? Respondentadmits the floor of the hy-bay basement was not in a clean and orderly orsanitary condition, (that) the floor of the hy-bay basement was littered withmetal scrap and approximately 25 to 30 percent of the floor area was oily(Request for Admissions #24 and #25, C?3 and C?4).??????????? Thecited area is under the ground level plant floor where about 12 large and 100 smallerpresses are located, forming sheets of metal and continuously generating scrapswhich are conveyed to the basement for continued removal to the outside. Thearea is about 1000 feet long and 150 feet wide, with a main scrap conveyor andseveral feeder conveyors. There was a clean-up crew on each shift and cleaningup the basement was their sole responsibility. Oil was hosed down with steamhoses. According to respondent, there were five employees on the first andsecond shifts and about four on the third shift. According to the authorizedemployee representative, there were three employees on the first two shifts andtwo or three on the third shift. The compliance officer saw three or fourcleaning up, and observed oil puddles one to two inches deep and scrap layingabout. During the walkaround respondent?s safety director saw three employeesand testified about 40 to 45 percent of the basement had been cleaned, thatthree to five employees could clean about 50 to 100 feet in eight hours.??????????? Scrapfell off the conveyors?chutes could jam, get holes and scrap shavings fallthrough overhead roller conveyor cracks. Oil accumulated on the floor; anemployee was injured June 6, 1976 when a ladder slipped on oil. Respondent hasdisciplined employees for refusing to work in the hy-bay basement. The employeerepresentative testified he had to walk on a fire hose on Friday beforehearing, to prevent stepping in oil.??????????? Althoughthe basement is not a production area, all the first floor service isdistributed out of the basement. Service employees?millwrights, electricians,pipefitters, machine repairman?work in the basement as service needs require,on a daily basis although a given employee may not be required to enter thebasement every day. Employees other than members of the clean-up crews used thebasement daily and were exposed to the hazards caused by the failure ofrespondent to keep the inspected basement reasonably clean and orderly.??????????? Theabatement date in relation to the date of citation issuance is reasonable andno penalty is assessed.??????????? Atthe hearing, respondent alleged as affirmative defenses lack of employee accessto the hazard and impossibility of compliance. The allegation was not timelyand complainant?s objection is sustained (T 1, 2, 3).[16] Complainant has provenaccess and exposure; compliance was possible and readily available.??????????? CITATIONNUMBER 1?Item #13[17]Description[18]: The electricaldisconnects controlling the conveyors throughout the plant had the over-currentdevices located over 12 feet in the air and were not immediately accesible(sic). (29 CFR 1910.309(a) 240?16: Section 240?16, National Electric (sic)Code; as adopted by 29 CFR 1910.309(a): Section 430?107 as adopted by 29 CFR1910.309(b).?Abatement date November 17, 1977. No penalty.?29 CFR 1910.309?National Electrical Code?(a) The requirements contained in thefollowing articles and sections of the National Electrical Code, NFPA No.70?1971; ANSI C1?1971 (Rev. of C1?1968) shall apply to all electricalinstallations and utilization equipment: . . . 240?16(a), (b), (c), and (d)Location in Premises (for Overcurrent Protection Devices).?(b) Every new electrical installation andall new utilization equipment installed after March 15, 1972, and everyreplacement, modification, or repair or rehabilitation, after March 15, 1972,of any part of any electrical installation or utilization equipment installedbefore March 15, 1972, shall be installed or made, and maintained, inaccordance with the Provisions of the 1971 National Electrical Code, NFPA No.70?1971; ANSI C1?1971 (Rev. of C1?1968).?29 CFR 1910.308?SubpartS?Electrical?Application?(a) General. Section 1910.309 adopts as anational consensus standard the National Electrical Code NFPA No. 70?1971; ANSIC1?1971 (Rev. of C1?1968), which is incorporated by reference in this support.?(b) Purpose of the National ElectricalCode.(1) The purpose of the National ElectricalCode is the practical safeguarding of any persons and of buildings and theircontents from hazards arising from the use of electricity for light, heat,power, radio, signaling, and for other purposes. The standards containedtherein are occupational safety and health standards to the extent that theysafeguard any person who is an employee of an employer.?(2) The National Electrical Code containsbasic minimum provisions considered necessary for safety.\u00a0240?16. Location in Premises. Overcurrentdevices shall be located where they will be:(a) Readily accessible, except as providedin Sections 230?91 and 230?92 for service equipment and Section 364?11 forbusways.?(b) Not exposed to physical damage.?(c) Not in the vicinity of easily ignitablematerial.?(d) Occupant to Have Ready Access. Eachoccupant shall have ready access to all overcurrent devices protecting theconductors supplying his occupancy . . .?National Electrical Code (NEC), Chapter 1.General?Article 100?Definitions.?Accessible: (As applied to wiringmethods). Capable of being removed or exposed without damaging the buildingstructure or finish, or not permanently closed in by the structure or finish ofthe building. (See ?Concealed? and ?Exposed?). page 70?4.?Accessible: (As applied to equipment).Admitting close approach because not guarded by locked doors, elevation orother effective means. (See ?Readily Accessible?). 70?4.?Readily Accessible: Capable of beingreached quickly, for operation, renewal, or inspections, without requiringthose to whom ready access is requisite to climb over or remove obstacles or toresort to portable ladders, chairs, etc. (See ?accessible?). 70?10.?430?101. General. The provisions of Part Hare intended to require disconnecting means capable of disconnecting motors andcontrollers from the circuit.[19]?430?107. Readily Accessible. One of thedisconnecting means shall be readily accessible.\u00a0??????????? Circuitboxes containing overcurrent protection devices and disconnect switches arelocated from 14 to 16 feet above floor level, at millwright drive locations foroverhead monorail conveyors. Stop\/start switch buttons are accessible toemployees working at or adjacent to the conveyors. The millwright stations havea screenguard on the bottom and a 30? screenguard around the perimeter. Toservice these circuit boxes, access can be gained only by using an extensionladder and climbing over the screenguard enclosure.[20]??????????? Thestop\/start buttons are tied in series; in the event the switch shorts out orotherwise fails, there is no other means of shutting off the conveyor. Many ofthe conveyors have 4 to 7 buttons in series (T. 22, 74, 75). If an employeebecame entangled in the conveyor system and the switch buttons failed, there isno way to readily stop it.??????????? Theamended description of this item states the electrical disconnects controllingthe conveyors were not ?immediately? accessible, rather than ?readily?accessible. The distinction, if any, is not misleading or prejudicial.??????????? Respondentin his brief challenges the constitutionality of 29 CFR 1910.308 and.308(b)(1), that there was no exposure to a hazard, that NEC 240?16 does notapply to the facts, that sections 240?4 through 240?30 apply only toovercurrent protection for conductors, not equipment, that the stop\/startbutton is a disconnecting means within the meaning of NEC 430?107, that therewas no hazard, that compliance would be more hazardous than noncompliance.??????????? Theunion representative for affected employees points out that the overcurrentdevices must be readily accessible and capable of being reached quickly foroperation, renewal or inspection, without requiring those to whom ready accessis requisite to climb over or remove obstacles or to resort to portableladders, chairs, etc., that the purpose of overcurrent protection is notlimited to conductors, as contended by respondent. He refers to NEC 240?2 and240?3.[21]In evaluating this record,[22] it is clear the citedstandards do not require more than one overcurrent device. There is but one,located in the circuit box and not readily accessible. The 110 volt stop\/startswitch is not an overcurrent device; the circuitry contained in the box, on thesource side of 440 volts, is an overcurrent device, and in performing itsfunction interrupts and disconnects the main power source from the equipment inquestion. (T 160?163, 183).??????????? If anemployee became entangled in the conveyor and buttons were inoperative, therewas no means readily available for shutting off the power (T 42). The hazard isinherent in the standard alleged. As distinguished from the general dutyclause, section 654(a)(1), a cited standard presupposes the existence of ahazard when its terms are not met. Del-CookLumber Company, Docket #16093, February 2, 1978.??????????? Respondent?schallenge to the National Electrical Code caused by the Secretary?s ?failure?to interpret and declare which sections and portions apply to employees, iswithout merit. The NEC provisions hereinbefore set forth include worksites, andworksites contain employees.??????????? Thecited standards were violated. Complainant moved to amend the abatement datefor item 13 to November 17, 1977. (T 106, 107); the citation was issuedNovember 17, 1976. The abatement date shall be 12 months from the effectivedate of this decision and order. No penalty was proposed and no penalty isassessed, considering statutory factors.??????????? Respondentis not entitled to consideration of affirmative defenses if raised for thefirst time at hearing, but contends the Complainant was duly apprised in theAnswer to the Complaint. The Answer included as an Affirmative Defense,?Respondent states that the Complaint herein fails to state a cause of actionupon which relief can be granted.? This is sufficient and timely, according torespondent, by authority of Rule 12(b), Federal Rules of Civil Procedure, thatit is under no obligation to disclose to complainant in any detail the specificfactual bases of such defense, except in response to properly framed,permissible discovery. The specific affirmative defenses contended at time ofhearing, for both citation item #10 and #13, were not asserted prior thereto.Counsel met informally at some period prior to hearing and respondent claimsthere was affirmative defense specificity at that time; such occasion was not apre-hearing conference pursuant to Commission Rule 51 and no prehearing motionfor amended answer was filed, and no order upon this subject was requested orissued. Parties are encouraged to meet informally to expedite or settleproceedings, or to simplify issues and presentation of testimony, but suchactivity cannot serve as a substitute for or amendment of required formalpleadings. Complainant was entitled to know the specific affirmative defensesupon which respondent relied. Information for that purpose was available andcould have been timely provided prior to hearing. Complainant is not requiredto guess as to which of many affirmative defenses respondent might elect todevelop to negate a violation?compliance prevents work, compliance impossibleor not feasible, violation not foreseeable, lack of knowledge, employee fault,increased hazard, isolated occurrence, alternative protection, company rulesand safety program, industry practice, quality or production affected, no orfew injuries, removal from exposure, employee experience. These and many otheraffirmative defenses are reflected in Commission decisions.[23]FINDINGS OF FACT??????????? Item#1:??????????? 1.Crane records were 3 to 4 months late.??????????? 2.Chain hoist inspections were not recorded.??????????? 3.Adequate crane inspections were not made in June, July or August, 1976.??????????? item#10:??????????? 4.The hy-bay basement area contained metal scrap fallen from conveyors, with thefloor containing puddles of oil.??????????? 5.Service employees used this basement and were exposed to contact with scrap andoil.??????????? 6.The floor was not in a clean and orderly or sanitary condition at time ofinspection.??????????? 7.The floor conditions inspected were not unusual, nor isolated in time.??????????? 8.Clean-up crews were insufficient in number to adequately reduce the amount ofscrap and oil on the floor.??????????? 9.Larger clean-up crews, adequately equipped, could materially reduce accumulationand could accelerate removal of scrap and oil.??????????? Item#13:??????????? 10.Provisions of the NEC incorporated by reference and relevant to the citedstandards were included as national consensus standards and duly promulgated byrule as occupational safety or health standards, pursuant to Section 655(a) ofthe Act.??????????? 11.The cited standards apply to respondent employees.??????????? 12.The applicable and cited provisions of the NEC indicate what constitutescompliant behavior, without specific or interpretive notice.??????????? 13.Section 240?16, NEC, applies to overcurrent protection for conductors andequipment.??????????? 14.The start\/stop switch buttons were not disconnect devices, within the meaningof the cited standards.??????????? 15.Start\/stop switch buttons were readily accessible to employees working at oradjacent to conveyors.??????????? 16.Overcurrent protection is required for the conductors and equipment comprisingrespondent?s conveyor electrical system.??????????? 17.Circuit boxes containing overcurrent protection devices and disconnect switcheswere located from about 14 to 16 feet above floor level, and could be reachedonly by use of an extension ladder and climbing over a screenguard atmillwright stations.??????????? 18. Thecircuit boxes contained overcurrent or disconnect devices, within the meaningof the cited standards.??????????? 19.The inspected and cited overcurrent devices were not readily accessible.??????????? 20.Employees were exposed to hazard caused by respondent?s failure to locate theovercurrent devices at levels readily accessible to employees.??????????? 21.The violation is other than serious, with no substantial probability that deathor serious physical harm could result.??????????? 22. A12-month period, commencing from the effective date of this decision and order,is a reasonable time for abatement of this violation.CONCLUSIONS OF LAW??????????? 1.Respondent failed to comply with occupational safety and health standard 29 CFR1910.179(j)(2).??????????? 2.Respondent failed to comply with occupational safety and health standard 29 CFR1910.22(a)(1).??????????? 3.Respondent failed to comply with occupational safety and health standard 29 CFR1910.309(a) 240?16, National Electrical Code; 29 CFR 1910.309(b), Section240?107, National Electrical Code.ORDER??????????? Thecitation issued November 17, 1976, as amended, is hereby affirmed. No penaltyis assessed.?George W. OttoJudge, OSHRCDated: May 2, 1978[1] GMC also refersto a determination effective December 6, 1977. However, GMC does not show wherethis was published and we have not found it in the Federal Register. Weaccordingly conclude that only the March 22, 1977 determination is in question.[2] GMC argues thatit would be inequitable to subject it to two sets of standards, federal andstate, which could contain ?inconsistent obligations.? However, GMC has notshown any conflict between state and federal requirements relevant to thealleged violations in this case. Accordingly, we need not address thispotential problem of the concurrent authority contemplated by section 18(e).[3] Unless theCommission adopts a different rule, its proceedings are governed by the FederalRules of Civil Procedure (?Federal Rules?). Section 12(g), 29 U.S.C. ? 661(f).In pertinent part, Federal Rule8(c) provides, ?In pleading to a preceeding pleading, a party shall set forthaffirmatively . . . any other matter constituting an avoidance or affirmativedefense.?[4] The standardprovides:?1910.179 Overhead and gantry cranes.(j)Inspection?(2)Frequent inspection. The following items shall be inspected for defects atintervals as defined in paragraph (j)(1)(ii) of this section [which states thatfrequent inspection means inspection at daily to monthly intervals] or asspecifically indicated, including observation during operation for any defectswhich might appear between regular inspections. All deficiencies such as listedshall be carefully examined and determination made as to whether theyconstitute a safety hazard:(i)All functional operating mechanisms for maladjustment interfering with properoperation. Daily.(ii)Deterioration or leaking in lines, tanks, valves, drain pumps, and other partsof air or hydraulic systems. Daily.(iii)Hooks with deformation or cracks. Visual inspection daily; monthly inspectionwith signed reports. For hooks with cracks or having more than 15 percent inexcess of normal throat opening or more than 10? twist from the plane of theunbent hook refer to paragraph (1)(3)(iii)(a) of this section.(iv)Hoist chains, including end connections, for excessive wear, twist, distortedlinks interfering with proper function, or stretch beyond manufacturer?srecommendations. Visual inspection daily; monthly inspection with signedreport.(v)[Reserved](vi)All functional operating mechanisms for excessive wear of components.(vii)Rope reeving for noncompliance with manufacturer?s recommendations.[5] The standardprovides:?1910.22 General requirements.(a)Housekeeping. (1) All places of employment, passageways, storerooms, andservice rooms shall be kept clean and orderly and in a sanitary condition.[6] Under Commissionprecedent a violation is properly classified as de minimis only where therelationship of the violation to employee safety and health is so remote as tobe negligible. General Motors Corp.,Rochester Products Division, supra (lead and dissenting opinions); Continental Oil Co., 79 OSAHRC 42\/C3, 7BNA OSHC 1432, 1979 CCH OSHD ?23,626 (No. 13750, 1979). Commissioner Cottineconcludes that, because this violation has a direct and immediate relationshipto employee safety and health, it is nonserious rather than de minimis. See Gallo Mechanical Contractors, Inc.,80 OSAHRC 122\/A2, 9 BNA OSHC 1178, 1981 CCH OSHD ?25,008 (No. 76?4371, 1980); Southwestern Electric Power Co., 80OSAHRC 81\/C7, 8 BNA OSHC 1974, 1980 CCH OSHD ?74, 732 (No. 77?3890, 1980)(dissenting opinion).In Commissioner Cottine?s view, theSecretary has established the existence of conditions presenting fall hazardsfrom either tripping or slipping. GMC has not shown that these conditions havebeen rendered insignificant by efforts made to control accumulations of scrapand oil. In addition, employees are exposed to the hazards on a regular basisand the injury that could result from the fall hazards associated with trippingor slipping cannot be viewed as negligible. A fall against structural supportslocated in the basement, onto metal scrap littering the floor, or even onto theconcrete floor itself could result in injury. See Gallo Mechanical Contractors, Inc., supra.[7] The citedprovision of the NEC provides:Article240?Overcurrent Protection240?16.Location in Premises. Overcurrent devices shall be located where they will be:(a)Readily accessible, except as provided in sections 230?91 and 230?92 forservice equipment and section 364?11 for busways.(b)Not exposed to physical damage.(c)Not in the vicinity of easily ignitable material.(d)Occupant shall have Ready Access. Each occupant shall have ready access to allovercurrent devices protecting the conductors supplying his occupancy.Exception:In a multiple-occupancy building where electric service and electrical maintenanceare provided by the building management and where these are under continuousbuilding management supervision, the service overcurrent devices and feederovercurrent devices supplying more than one occupancy may be accessible toauthorized management personnel only.[8]The standardprovides, in pertinent part:?1910.309 National Electrical Code.(a)The requirements contained in the following articles and sections of theNational Electrical Code, NFPA 70?1971; ANSI C1?1971 (Rev. of C1?1968) shall applyto all electrical installations and utilization equipment:Sections240?16(a),(b), (c), and (d). Location in Premises (for Overcurrent Protection Devices).[9] The citedprovision of the NEC provides:Article430?Motors, Motor Circuits and ControllersH.Disconnecting Means430?107.Readily Accessible. One of the disconnecting means shall be readily accessible.[10]The standardprovides:?1910.309 National Electrical Code.(b)Every new electrical installation and all new utilization equipment installed afterMarch 15, 1972, and every replacement, modification, or repair orrehabilitation, after March 15, 1972, of any part of any electricalinstallation or utilization installed before March 15, 1972, shall be installedor made, and maintained, in accordance with the provisions of the 1971 NationalElectrical Code, NFPA 70?1971; ANSI C1?1971 (Rev. of C1?1968).[11] The NECprovisions cited in this case were not deleted as occupational safety andhealth standards in the Secretary?s new electrical standards, 29 C.F.R. ??1910.301?1910.399. See ? 1910.304(e)(1)(iv), (v); ? 1910.305(j)(4)(ii)(A), (E),and (F). It therefore appears that the Secretary did not consider that thecited provisions were only directed to the protection of buildings. See also Power Systems Div., UnitedTechnologies Corp., 81 OSAHRC 40\/C13, 9 BNA OSHC 1813, 1981 CCH OSHD?25,350 (No. 79?1552, 1981) (the Secretary?s proposed rulemaking does notdemonstrate that portions of the NEC ?are unintelligible or . . . irrelevant tooccupational safety and health? and the Secretary?s recognition that a revisionwould make the NEC provisions easier to understand does not mean that thestandards are unenforceably vague as written.)[12] GMC argues thatthe lack of ready access to the disconnect switches presented no hazard toproduction employees because there was little, if any, likelihood that asecondary stop switch would be needed. However, because the lack of readyaccess affects the electricians and millwrights rather than the productionemployees, we do not need to reach this argument. We note that the lack ofready access to the disconnect switches has more than a negligible relationshipto the safety and health of the affected employees and therefore we could notconclude that the violation is de minimis. See Gallo Mechanical Contractors,Inc., supra note 6, and cases cited therein.[13] 29 U.S.C. 651 etseq., 84 Stat. 1590.[14] T 17, 18, 19, 26,28, 29, 30, 51, 52, 53, 129, 130, 131.[15] T. 2, 3, 26, 27,31?35, 53?57, 108?127, 131, 136, c?3, c?4, r?2?r?6.[16] See further discussion, item #13, pages11, 12, infra.[17] T 20?25, 36?47,60?107, 137?199, C?1?C?4, C?5(a)(b)(c), C?6?C?9.[18] Stipulation July1, 1977, amending complainant?s amended complaint. [19] NEC Article430?Motors, Motor Circuits and Controllers?Part H. Disconnecting Means.[20] T 13, 20, 43, 67,68, 71?74, 142?144, 155, 161, 181, 183, C?3(D), C?6(#11).[21] NEC 240?2.Purpose of Overcurrent Protection. Overcurrent protection for conductors andequipment is provided for the purpose of opening the electric circuit if thecurrent reaches a value which will cause an excessive or dangerous temperaturein the conductor or conductor insulation.NEC 240?3. Protection of Equipment.Equipment shall be protected against overcurrent as specified in the referencesin the following list . . . Motors, Motor Circuits and Controllers, Article No.430.[22] Respondent fileda posthearing ?motion to correct record,? to change the testimony of itswitness on page 154, line 19. Complainant objects. There is no contention thetranscript does not accurately reflect what was stated by this witness, asrecorded on page 154, line 19. Respondent?s motion is denied.[23] The statedaffirmative defenses, if timely, would have failed to negate the effect ofviolation items #10 and #13.”