“Docket No. 78-2499 1 of 202 DOCUMENTS TURNER COMPANY A. SCHONBEK & CO., INC.? NORANDA ALUMINUM, INC.? GENERAL MOTORS CORP., GM ASSEMBLY DIV.? ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.? CLEMENT FOOD COMPANY MILLCON CORPORATION FWA DRILLING COMPANY, INC.? CCI, INC.? GENERAL ELECTRIC COMPANY CONSOLIDATED ALUMINUM CORPORATION THE BRONZE CRAFT CORPORATION CARGILL, INC.? CHAPMAN CONSTRUCTION CO., INC.? GALLO MECHANICAL CONTRACTORS, INC.? SPECIAL METALS CORPORATION WILLAMETTE IRON AND STEEL COMPANY NASHUA CORPORATION WESTINGHOUSE ELECTRIC CORPORATION RESEARCH-COTTRELL, INC.? ROCKWELL INTERNATIONAL CORPORATION NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? BUNKOFF CONSTRUCTION CO., INC.? GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION HARRIS BROTHERS ROOFING CO.? GENERAL DIVERS COMPANY ORMET CORPORATION R. ZOPPO CO., INC.? COEUR D’ALENE TRIBAL FARM L. A. DREYFUS COMPANY CMH COMPANY, INC.? BENTON FOUNDRY, INC.? MICHAEL CONSTRUCTION CO., INC.? WHIRLPOOL CORPORATION BROWN & ROOT, POWER PLANT DIVISION MARION POWER SHOVEL CO., INC.? ERSKINE-FRASER CO.? MORRISON-KNUDSEN AND ASSOCIATES THE BOAM COMPANY DIC-UNDERHILL, a Joint Venture C. R. BURNETT AND SONS, INC.; HARLLEE FARMS STRIPE-A-ZONE, INC.? FORTE BROTHERS, INC.? RAYBESTOS FRICTION MATERIALS COMPANY TEXLAND DRILLING CORPORATION THE ANACONDA COMPANY, WIRE AND CABLE DIVISION SAM HALL & SONS, INC.? VAMPCO METAL PRODUCTS, INC.? LEONE INDUSTRIES, INC.? ASARCO, INC.? DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY PLUM CREEK LUMBER COMPANY PLUM CREEK LUMBER COMPANY STEARNS-ROGER, INC.? FERRO CORPORATION, (ELECTRO DIVISION) AMERICAN PACKAGE COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION FLEETWOOD HOMES OF TEXAS, INC.? DONALD HARRIS, INC.? A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.? ELECTRICAL CONSTRUCTORS OF AMERICA, INC.? DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company) ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY NAVAJO FOREST PRODUCTS INDUSTRIES METROPAK CONTAINERS CORPORATION AUSTIN BUILDING COMPANY BABCOCK AND WILCOX COMPANY DARRAGH COMPANY BABCOCK & WILCOX COMPANY OTIS ELEVATOR COMPANY R. ZOPPO COMPANY, INC.? LUTZ, DAILY & BRAIN – CONSULTING ENGINEERS PENNSYLVANIA POWER & LIGHT CO.? HARSCO CORPORATION, d\/b\/a PLANT CITY STEEL COMPANY NORTHWEST AIRLINES, INC.? INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.? GENERAL MOTORS CORPORATION, INLAND DIVISION WELDSHIP CORPORATION S & S DIVING COMPANY SNIDER INDUSTRIES, INC.? NATIONAL STEEL AND SHIPBUILDING COMPANY MAXWELL WIREBOUND BOX CO., INC.? CONTINENTAL GRAIN COMPANY MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d\/b\/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY CAPITAL CITY EXCAVATING CO., INC.? GAF CORPORATION PPG INDUSTRIES (CARIBE) a Corporation DRUTH PACKAGING CORPORATION SOUTHWESTERN ELECTRIC POWER COMPANY TUNNEL ELECTRIC CONSTRUCTION CO.? WEATHERBY ENGINEERING COMPANY JOHNSON STEEL & WIRE CO., INC.? AUSTIN ROAD CO.? MAYHEW STEEL PRODUCTS, INC.? LADISH CO., TRI-CLOVER DIVISION, a Corporation OSHRC Docket No. 78-2499 Occupational Safety and Health Review Commission July 31, 1980 ?[*1]? Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.? COUNSEL: Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL Herman Grant, Regional Solicitor, USDOL Peter C. Karegeannes, for the employer OPINION: DECISION BY THE COMMISSION: A decision of Administrative Law Judge Edward V. Alfieri is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? ?? 651-678 (\”the Act\”). – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n1 29 U.S.C. ?? 661(i). – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – Judge Alfieri affirmed a citation issued by the Secretary of Labor (\”the Secretary\”) alleging that Respondent, Ladish Co., Tri-Clover Division, committed a serious violation of section 5(a)(2) of the Act n2 by failing to provide sufficient access and working space for certain electrical equipment with the result that safe operation and maintenance could not be performed. n3 – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n2 29 U.S.C. ?? 654(a)(2). n3 The Secretary’s amended complaint alleged that Respondent failed to comply with section 110-16(a) of the National Electrical Code, NFPA 70-1971, as adopted by 29 C.F.R. ?? 1910.309(b).? Section 1910.309(b) provides: ?? 1910.309 National Electrical Code. * * * (b) Every new electrical installation and all new utilization equipment installed after March 15, 1972, and every replacement, modification, or repair or rehabilitation, after March 15, 1972, of any part of any electrical installation or utilization equipment installed before March 15, 1972, shall be installed or made, and maintained, in accordance with the provisions of the 1971 National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968). ?[*2]? – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – The parties entered into a stipulation of facts and submitted briefs to the judge addressing the sole issue of whether section 110-16(a) of the 1971 National Electrical Code (\”NEC\”) is incorporated by reference into 29 C.F.R. ?? 1910.309(b).? Respondent stipulated that the cited condition was \”contrary\” to section 110-16(a).? Respondent further stipulated that, in the event that a violation is found, the proposed penalty and the abatement date are reasonable. The judge concluded that section 1910.309(b) incorporates by reference the entire NEC.? The judge rejected Respondent’s argument that only those sections of the NEC specified in 29 C.F.R. ?? 1910.309(a) n4 are incorporated and that section 1910.309(b) merely specifies the effective date.? Respondent’s petition for review of the judge’s ruling on this issue was granted by Commissioner Cottine. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n4 29 C.F.R. ?? 1910.309(a) provides in pertinent part: ?? 1910.309 National Electrical Code. (a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI CI-1971 (Rev. of Cl-1968) shall apply to all electrical installations and utilization equipment: * * * The remainder of this section consists of a list of more than 30 articles and sections of the NEC.? Section 110-16(a) is not included in this list. ?[*3]? – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – After the judge issued his decision, the Commission held that 29 C.F.R. ?? 1910.309(b) incorporates the entire NEC with respect to equipment installed, replaced, modified, repaired, or rehabilitated after March 15, 1972.? Delaware & Hudson Railway, 80 OSAHRC \u00a0\u00a0\u00a0, 8 BNA OSHC 1252, 1980 CCH OSHD P24,422 (No. 76-787, 1980).? The stipulation of the parties indicates that the electrical equipment at issue was installed during 1976.? Accordingly, the judge correctly interpreted and applied section 1910.309(b) and his finding of a violation based upon the applicability of section 110-16(a) of the NEC to the cited condition is affirmed. SO ORDERED.? “