“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. Docket No. 3449 KOPPERS CO., INC. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 14, 1974??????????? VanNamee, Commissioner:??????????? Thismatter was originally consolidated with Dockets 2975 and 4349 (United StatesSteel Corporation) by Judge Charles K. Chaplin for purposes of argument anddecision regarding a question of law common to all three cases.[1]? It arose out of two citations.? One alleged a serious violation of theOccupational Safety and Health Act of 1970[2] (the ?Act?) saying that Respondent(Koppers) failed to control the exposure of a shift foreman and a pusher man tothe level specified by 29 C.F.R. 1910.93 for coal tar pitch volatiles byfeasible engineering or administrative controls contrary to the requirements of29 C.F.R. 1910.93(e).? The secondcitation alleged a non-serious violation of the Act saying that Koppers failedto provide a lidman and lorry-man with respirators of an approved designcontrary to the requirements of 29 C.F. R. 1910.134 (a)(2).??????????? Kopperstimely filed a notice contest as to both citations.? Thereafter a complaint was filed.? The serious allegation included a statementsaying that Koppers had failed to provide ?protective equipment or any otherprotective measures? for the shift foreman and pusher man.? Koppers answered and raised no objection tothe change in allegation concerning the serious citation.? Thereafter, Koppers moved to dismiss thecitation for a serious violation saying the cited standard was inappropriate tocoke oven operations by virtue of a decision rendered by the Secretary onSeptember 1, 1971.[3]? By its brief filed in support of its motionto dismiss Koppers conceded the existence of the alleged non-serious violationof 29 C.F.R. 1910.134(a)(2).??????????? JudgeChaplin granted the motion.? We reversedin the companion U.S. Steel cases, and we do so here for the reasons given inthose cases.? A copy of our decisiontherein is attached hereto and made a part of.?Judge Chaplin also dismissed the personal protective equipmentallegation under 29 C.F.R. 1910..93 saying that it arose out of the samefactual situation as the charge made under 29 C.F.R. 1910.134(a)(2).? He noted that the latter allegation had beenadmitted, and he dismissed it because he was of the view that an employercannot be found in violation of two standards based on the same factualsituation.??????????? Hisdecision dismissing the personal protective protective measure allegation under29 C.F.R. 1910.93(e) was plain error.?Although we can conceive of many circumstances wherein the same factualcircumstances will support findings of violations of two standards we need notrest reversal on such grounds.? The plainfact is that the alleged violations of 29 C.F.R. 1910.93 herein were withrespect to the shift foreman and the pusher man whereas 1910.134(a)(2)allegation was made with respect to two other individuals on a differentbasis.? The foreman and pusher man weresaid not to be wearing or using personal protective measures at all.? The lidman and lorryman were said to be usinginadequate equipment.? There beingdifferent factual situations involved it was plain error to dismiss allegationsas being duplicative.??????????? Accordingly,the Judge?s decision is reversed. Since his disposition was on a pre-hearingmotion the matter is remanded for a hearing consistent with this decision. Itis so ORDERED.\u00a0Moran, Chairman, dissenting:??????????? JudgeChaplin?s disposition of the charge relating to 29 C.F.R. 1910.93 should beaffirmed for the reasons set forth in my dissenting opinion in Secretary v. United States Steel Corporation,(Docket No. 2975\/4349, November 14, 1974).??????????? Thedecision below also dismissed the charge of failure to comply with theoccupational safety and health standard codified at 29 C.F.R.1910.134(a)(2).? That decision shouldalso be affirmed.??????????? Sec.1910.134(a)(2) requires that:Respirators shall be provided by theemployer when such equipment is necessary to protect the health of theemployee. The employer shall provide the respirators which are applicable andsuitable for the purposes intended?\u00a0Sec. 1910.93 provides:\u00a0To achieve compliance?feasibleadministrative?controls must first be determined and implemented.? Incases where protective equipment or protective equipment in addition to othermeasures is used as the method of protecting the employee, such protectionmust be approved?.(Emphasis added).\u00a0These standards obviously overlap; both apply topersonal protective equipment.? Thedecision below held that an employer cannot be found in violation of twostandards based on the same factual situation.?I agree.??????????? TheCommission attempts here, however, to distinguish specific employees notprotected or adequately protected by equipment.?This distinction is without merit.??????????? Thenub of both standards is that protective equipment must be supplied that issuitable to protect against the hazards contemplated therein.? Adequate protection of the one in this casesatisfies the requirements to the other.??????????? Thisremand, therefore, requires a trial where respondent could twice be found inviolation of the Act and where an abatement of one satisfies both.? Once again we find the Commission imposing a punitivesanction with has no place in remedial type legislation, the purposes of which are?to assure so far as possible?safe?working conditions?? 29 U.S.C. 651(b).[1] By our decisionin the U.S. Steel cases we severed this case for our decisional purposes.[2] 29 U.S.C. 651 et. seq.[3] 36 Fed. Reg.18128 (September 9, 1971).”