“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-1895 NORANDA ALUMINUM, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 7, 1979ORDERBefore CLEARY, Chairman; BARNAKO AND COTTINE,Commissioners.BY THE COMMISSION:??????????? OnAugust 16, 1978, Administrative Law Judge Alan M. Wienman issued his decisionand order in this case, affirming a single serious violation of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 [hereinafterreferred to as ?the Act?], for respondent?s failure to comply with the standardpublished at 29 C.F.R. ? 1910.176(b)[1] and assessing a penalty inthe amount of $400, as proposed. The case was not directed for review by thefull Commission pursuant to section 12(j) of the Act. Thereafter, respondentpetitioned for review of the decision of the Judge to the United States Courtof Appeals for the Eighth Circuit. The petition for review was granted.??????????? OnMarch 8, 1979, the Court of Appeals for the Eighth Circuit issued a decision inNoranda Aluminum, Inc. v. O.S.H.R.C. and Marshall, No. 78-1861 (8thCir., March 8, 1979). In its decision, the court affirmed the finding of theviolation and the assessment of the $400 penalty. The court, however, vacatedthe date in the citation by which abatement was to be accomplished becauserespondent had changed the methods of stacking and securing that were thesubject of the citation in this case while the administrative proceedings werepending. Accordingly, the court remanded the part of the case involving theabatement order for proceedings by the Secretary consistent with the followinginstructions:If upon reexamination the [Secretary]finds that petitioner is in compliance with applicable requirements, well andgood. Otherwise, in fairness we think that the [Secretary] should advisepetitioner what it needs to do in order to get into compliance and should givepetitioner a reasonable but limited time within which to do so. Should thedispute between petitioner and [Secretary] persist, the latter can always issuea new citation and additional proceedings can be had.? Id, slip op. at 7.\u00a0??????????? Althoughthe court did not, in its opinion, explicitly direct the Commission to take anyaction, this order is issued to implement and take action as follows: (1) Commissionretains continuing jurisdiction of this matter until all aspects of the case,including abatement, are final under section 10(c) of the Act.??????????? Therefore,it is hereby ORDERED that the Secretary shall examine respondent?s alteredstacking procedures and take action as follows: (1) If the Secretary determinesthat the modified procedures are in compliance with the cited standard, theCommission shall be so notified. Abatement will be considered to beaccomplished and the case will be closed effective the date of receipt of theSecretary?s notification that the modified stacking methods are acceptable. (2)If the Secretary determines that the modified stacking procedures areinadequate, he will issue to respondent abatement instructions and fix a date bywhich abatement is to be accomplished. The Commission shall also be givennotice of this action, and, if there is no dispute, shall enter an appropriateorder. (3) In the event a dispute arises under the terms of the cited standardeither over the adequacy of respondent?s modified stacking procedures or overinstructions issued by the Secretary under part (2) of this order, the matterwill be submitted to the Commission for appropriate action.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAY 7, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-1895 NORANDA ALUMINUM, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: October 5, 1978DECISION & ORDERAPPEARANCES:EUGENE F. DESHAZO, Esq., U.S. Departmentof Labor, Office of the Solicitor, Kansas City, Missouri, for the Complainant\u00a0GERALD TOCKMAN, Esq., 706 Chestnut Street,St. Louis, Missouri, for the Respondent\u00a0WIENMAN, JUDGE, OSHRC:STATEMENT OF THE CASE??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 USC 651 et seq., hereafter called the Act) contesting aCitation for serious violation issued to Respondent June 1, 1977. The Citationfor alleged violation of occupational safety regulation 29 CFR 1910.176(b)[2] resulted from a fatalityinvestigation conducted during a period from May 18?20, 1977, at Respondent?splant in St. Jude Industrial Park, Marston, Missouri. The alleged violation wasdescribed on the Citation as follows:The storage of material created a hazard:a) At the 7 (seven) inch billet polestorage rack area at north end of bay 2, in the metal services building theL-Racks, spacers, and retainers did not prevent the billet poles from rollingoff the top of the rack.???????????? Complainantproposed a $400 penalty in connection with the alleged violation. After Complaintand Answer were filed, a hearing was held on February 21, 1978, at CapeGirardeau, Missouri, with both parties present and participating.THE ISSUES??????????? Nojurisdictional matters remain in issue, the parties having pleaded factssufficient to establish that Respondent is subject to the Act and that theCommission has jurisdiction of the parties and the subject matter.??????????? Theissues for decision are whether Respondent violated occupational safetyregulation 29 CFR 1910.176(b) as alleged in the Citation, and if so, whatpenalty is appropriate for said violation.SUMMARY OF THE EVIDENCE AND DISCUSSION??????????? Fivewitnesses testified at the hearing, all appearing on behalf of Complainant.These included the OSHA Compliance Officer who conducted the inspection, and fourof Respondent?s employees who worked in the cited plant area at various times.Respondent presented no witnesses, electing to move for dismissal at theconclusion of Complainant?s case on two grounds: (1) That the cited regulationis inapposite applying only to completed stacks and storage and not to theprocess of stacking and storing; and (2) that the Complainant?s evidence failedto establish a violation for multiple reasons. The two grounds will bediscussed separately.??????????? Respondent?smotion to dismiss on the ground that ? 1910.176(b) is applicable only tocompleted stacking and storing is premised on the theory that the Citation andComplaint are directed and confined to the fatal accident which led to the OSHAinspection. This is not the case. Neither the Citation nor Complaint makes anyallegations with respect to the episode on May 13, 1977, when three aluminumbillets rolled off the top row of a rack(redacted), the metal handler who had made up the stack. Not at issue areany factual questions concerning the actual manner by which (redacted) assembled the particularstack, or whether he had completed the stacking process when the billets moved.??????????? Thecontest is focused on the charge that billet poles ?during May 18?20, 1977, andat times prior thereto? were stored in violation of ? 1910.176(b) whichmandates that materials stored in tiers be ?stacked, blocked, interlocked andlimited in height so that they are stable and secure against sliding orcollapse.? The crucial allegation is a failure to secure the stacks to preventaccidental movement. Construing the standard to apply only to completed tiersor racks of material does not, in our judgment, render it inapplicable toRespondent?s workplace. To date the Commission has not defined ?storage? in thecontext of ? 1910.176(b), but the duration or time period that materials mustremain in place in order to constitute ?storage? has been a frequent subject ofCommission discussion. In a line of cases dealing with such diverse regulationsas those governing excavations, explosives and blasting agents, andconstruction materials handling, the Commission has uniformly ruled that?stored? is synonymous with ?placed? or ?deposited;? and that temporaryplacement of materials constitutes ?storage.? See, Secretary v. PeriniCorporation, 5 BNA OSHC 1343, CCH OSHD para. 20,030 (No. 12589, 1977); Secretaryv. Whitcomb Logging Co., 2 BNA OSHC 1419, CCH OSHD para. 19,128 (No. 1323,1974); Secretary v. Perini Corporation, CCH OSHD para. 22,772 (No.13029, 1978); Secretary v. Sierra Construction Co., CCH OSHD para.22,506 (No. 13638, 1978); Secretary v. Gerard Leone & Sons, 6 BNAOSHC 1512 (No. 14157, 1978). Frequently cited by the Commission in this regardis the appellate court decision in Brennan v. OSHRC and Dic-UnderhillConstruction Corp., 513 F.2d 1032 (2nd Cir., 1975) dealing with regulation?\u00a01926.250(b)(1) in re construction material storage.??????????? Therecord is not generous in providing a description of Respondent?s productionprocesses, but witnesses related that billets, stacked in Bay 2 in tiers wellabove a man?s head (Ex. C?4), are next either placed on a furnace car or in astorage area (T. 293). Such deposit or placement is synonymous with ?storage,?a contrary interpretation not serving the regulatory purpose. See, Brennanv. OSHRC & Gerosa, Inc., 491 F.2d 1340, 1343 (2nd Cir., 1974).??????????? Wetherefore deny the motion to dismiss based on the ground that the regulation isinapplicable and consider whether the evidence establishes a violation of ?1910.176(b).??????????? Nowitness described in unbroken sequence the manner in which aluminum bars orbillets were processed in the cited area of Respondent?s metal services building,but composite testimony provides the following general outline:??????????? Thealuminum is melted and cast in molds of various diameters in an area termed the?DC pits? (T. 121). The diameters range from 6? to 14? (T. 200). The 7?diameter bars, cast in ?drops? of 40 billets (T. 204), are 300? long and weighapproximately 1100 pounds (T. 35).??????????? Aftercasting, billets are transported to the inspection area and deposited on thefloor (T. 122). This completes the pit crews? task, and the inspection areametal handler assumes responsibility for stacking the billets on L-shaped metalframes and marking identifying data on the aluminum. This was the function ofRichard Allen on May 13, 1977. Allen was stacking triple tiers of 7? billets oneach L-frame, placing eight billets on the lower two tiers and five billets onthe top tier. The completed pattern was three L-frames high with an overallheight of 95? (T. 35, 54).??????????? Atvarious times through the inspection dates Respondent employed other stackingpatterns, but the standard procedure by which the metal handler sought tosecure the racked billets against movement was always a strategic distributionof devices termed ?spacer bars? and ?retainer clips.? Whether the procedure waseffective in preventing billets from rolling off the racks is the pivotal issuein the case.??????????? ??Spacer bars? are 3? x 3? blocks of aluminum,approximately 56? to 59? in length, inserted at intervals in the billet rows(T. 33). ?Retainer clips? are specially designed devices placed on the end ofthe spacer bars to block billet movement (T. 34).??????????? Atthe time of inspection the retainers were either of ?window? or ?horseshoe?(?U?) design. The rectangular ?window? retainers, depicted in Exhibit C?2, aredesigned to impede billet movement by tilting and exerting countervailingfrictional force (T. 54). Compliance Officer Robert T. Dwyer constructed amodel in an attempt to demonstrate how this function could be theoreticallydefeated if the billet rows were so close as to prevent the retainer from?laying over? (T. 45?53). However, this testimony was considerably impacted byDwyer?s admissions that he could not calculate the forces involved (T. 94), andthat he had conducted no tests of the system (T. 80).??????????? The?horseshoe? type retainer presumably functioned in a similar fashion to the?window,? but its physical characteristics were not described by any witness.It apparently was less frequently used. Dwyer saw none during the inspection(T. 61), and one employee, George Woollums, testified he saw none prior to (redacted) (T. 141). Another metalhandler, Mike Zoellner, did recall use of the ?U? retainers prior to theaccident (T. 277), and one appears in Exhibit C?1, a photograph made by Dwyer.??????????? Allfour employee witnesses declared they had observed multiple instances whenretainers failed to keep billets in place (T. 200?201, 207, 220, 270, 278).Mike Zoellner testified that a 7? billet had rolled off on the foot of a reliefman (T. 272). Since Respondent presented no witnesses, the employee testimonyrelative to falling retainers and billets stands unrebutted in the record.Respondent did cross examine in an effort to establish that retainers andbillets did not move without the application of some external force, butadmissions on this point were not elicited from all witnesses (T. 220, 270).??????????? Theemployee testimony is persuasive that use of ?window? and ?U?-type retainerclips did not always result in stable and secure storage of the tiered billets.Rather, both retainers and heavy billets fell with sufficient frequency tocreate a hazard contrary to the mandate of ?\u00a01910.176(b). We thereforeconclude that the evidence establishes a prima facie case of violation.??????????? Inconcluding that Complainant has succeeded in meeting its burden of proof, weare mindful of the arguments urged by Respondent in support of a contrary view.We note, however, that many of Respondent?s contentions are based on arestricted view of the pleadings and issues which we do not share.??????????? Respondentcontends, inter alia, that there has been a failure of proof because there wasno showing that: (1) That 7? aluminum billet stacked eight wide with ?U?-typeretainers rolled or moved; and (2) that the deceased employee, Richard Allen,was responsible for his own death, having failed to use retainers on the toprack and having failed to position L-frames according to company practices.??????????? Asnoted earlier in this decision, the resolution of the central issue herein doesnot depend on the circumstances of Richard Allen?s death. Complainant made noallegations in that regard, and the Compliance Officer candidly stated that hedid not know the cause of Allen?s accident (T. 76).??????????? Respondent?scontention that charge is limited to its procedure while employing oneparticular stacking pattern?7? billet stacked in rows eight billets wide?has nosupport in the pleadings. The Citation identifies ?the 7 (seven) inch billetpole storage rack area at the north end of bay 2, in the metal servicesbuilding? as the site of the violation but does not restrict the allegations interms of stacking patterns, types of retainer clips, etc. Respondent ratherartfully suggests that the pleadings were narrowed by certain answersComplainant made in response to interrogatories prior to the hearing. Ourreview of the interrogatories and answers reveals no sufficient basis for sucha conclusion.??????????? Alsourged in support of the motion to dismiss are two additional arguments: (1)That the Citation does not inform the Respondent of what is considered to be ahazard; and (2) Complainant failed to suggest any means of correcting thealleged hazard.??????????? Again,we find neither argument persuasive. The hazard expressly alleged in theCitation is the manner of storage of material, namely, that ?the L-Racks,spacers, and retainers did not prevent the billet poles from rolling off thetop of the rack.? It is fatuous to insist that the hazard is not clearlydelineated by such express language.??????????? Thecontention that Complainant failed to suggest abatement measures is accuratevis-a-vis the pleadings but does not entirely comport with the testimony.[3] In any event the argumentassumes that the Complainant?s burden in establishing a ? 1910.176(b) violationincludes proof of the likely utility of abatement measures. Again, this is notthe case since ? 1910.176(b) is a ?performance standard.? And the performancerequired by the standard is clear enough, namely, storage of material so thatit does not create a hazard but is stable and secure against sliding orcollapse. Section 1910.176(b) therefore may be enforced without proof by theSecretary of the feasibility and likely utility of abatement measures. Cf., Secretaryv. Hughes Brothers, Inc. (No. 12523, July 27, 1978); Irvington-Moore,Div. of U.S. Natural Resources v. OSHRC, 556 F.2d 431, 436 (9th Cir.,1977).??????????? Theviolation was serious within the meaning of section 17(k) of the Act in view ofthe fact that serious physical harm or death could result from accidentalmovement of the heavy billets and the employer could, with the exercise ofreasonable diligence, have ascertained the fact the retainer clips and billetshad often been observed to fall from the racks. Mindful of the gravity of theviolation, the number of employees exposed, and the Respondent?s size, history,and good faith, we find a civil penalty in the sum of $400 appropriate underthe circumstances.FINDINGS OF FACT??????????? Havingheld a hearing and considered the entire record herein, it is concluded that apreponderance of the reliable, probative, and substantial evidence supports thefindings of fact set forth in the foregoing summary of evidence.CONCLUSIONS OF LAW??????????? 1. Atall times material hereto Respondent was an employer within the meaning ofsection 3 of the Occupational Safety and Health Act of 1970.??????????? 2.Jurisdiction of these proceedings is conferred upon the Occupational Safety andHealth Review Commission by section 10(c) of the Act.??????????? 3.During a period from May 18?20, 1977, and at various times prior thereto insaid month, at Respondent?s workplace in St. Jude Industrial Park, Marston,Missouri, Respondent violated occupational safety regulation 29 CFR 1910.176(b)as alleged in the Citation for serious violation issued to Respondent June 1,1977. There was substantial probability that death or serious physical harmcould result from the violative conditions and Respondent knew or with theexercise of reasonable diligence should have known of the presence of theviolation. The aforesaid violation was a serious violation within the meaningof section 17(k) of the Act, and a penalty of $400 is appropriate for saidviolation.ORDER??????????? Basedon the above findings of fact and conclusions of law, it is ORDERED that theCitation for serious violation issued to Respondent June 1, 1977, is herebyaffirmed and a penalty in the sum of $400 is assessed thereon.?Alan M. WienmanJudge, OSHRCDated: September 5, 1978[1] The citedstandard reads as follows:? 1910.176 Handling materials?general.(b) Secure storage. Storage of materialshall not create a hazard. Bags, containers, bundles, etc., stored in tiersshall be stacked, blocked, interlocked and limited in height so that they arestable and secure against sliding or collapse.[2] Regulation 29 CFR1910.176(b) provides:Storage of material shall not create ahazard. Bags, containers, bundles, etc., stored in tiers shall be stacked,blocked, interlocked and limited in height so that they are stable and secureagainst sliding or collapse.[3] ComplianceOfficer Dwyer (T. 71?72) and George Woollums (T. 142?144, 163) both suggestedabatement measures. And curiously enough Respondent, through its cross examinationof Mike Zoellner, established that at the time of the hearing it was usingnewly modified L-frames and retainers. The new retainer is a ?horse-shoe?equipped with two teeth on a bar welded to what formerly was the open end ofthe ?U.? The portion of the retainer containing the teeth is bent at angle ofsome 26? to 27? from the vertical axis. A scale drawing of the new retainerappears in the record as Exhibit R?7.”