“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 171, 172, 173, 174, 175 ST. LOUIS COUNTY WATER COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 28, 1973DECISIONBefore MORAN, Chairman;VAN NAMEE and CLEARY, CommissionersCLEARY, COMMISSIONER:OnApril 27, 1972, Judge Paul E. Dixon issued his recommended decision and orderin these cases, consolidated upon motion of the Secretary, affirming theSecretary?s citations for other than serious violations and the penaltiesproposed therefor.OnMay 18, 1972, former Commissioner Burch directed review of the proposeddecision and order pursuant to section 12(j) of the Occupational Safety andHealth Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafterreferred to as ?the Act?).TheCommission has reviewed the briefs filed by the parties and has considered theentire record. We adopt the Judge?s recommended decision and order insofar asit is consistent with this decision.Reviewwas directed in order to determine whether evidence other than that utilized bythe Secretary in assessing the proposed penalties should be considered by theCommission.Respondentwas cited for 32 non-serious violations[1] of occupational safety andhealth standards promulgated by the Secretary pursuant to section 6 of the Actand was assessed a total proposed penalty of $1,100.Respondentobjects to being assessed penalties under the previously utilized computationsystem which is more stringent than the present system with respect to theassessment of penalties for violations of low gravity. The Secretary correctlypoints out that respondent has also benefitted by the use of the former system.We find that, when dealing with a procedural device of this sort, it isinappropriate to substitute a more recent system for one which was utilized atthe time the penalties were proposed. However, the Commission does considerthis case in the light of all substantive decisions with respect to penaltyassessment which have been rendered as of the time of this decision.Theprimary factor in the Commission?s statutory authority to assess penalties,pursuant to section 17(j) of the Act, is the determination of the gravity ofviolations. We deem this the most essential factor in any case in which penaltyassessments are under review. The other penalty adjustment factors?good faith,compliance history, and size?are based upon considerations primarily unrelatedto the specific violations in a case.[2] Therefore, we shallconsider these factors initially, decide upon the appropriate adjustments andmodify, accordingly, the penalty assessed for each violation on the basis ofgravity.JudgeDixon affirmed the Secretary?s awarding of a 10% adjustment for respondent?sgood faith. Respondent asserts that its alternative methods of accidentprevention, its reliance on a state inspection that revealed no violationsprior to the instant inspection, and its operation of a safety program whichhad, as of the date of the inspection, not yet resulted in implementation ofinternally proposed changes in order to comply with the Act warrant the maximumgood faith adjustment. We disagree. Respondent?s obligations under this Act areindependent of state requirements.[3] Alternative methods ofaccident prevention are relevant as is respondent?s safety program. However,the large number of violations, the failure to implement changes as of the dateof inspection, and the erroneous belief that all of the instant violations areminor mitigate against according full credit. We agree, however, that some ofthe Secretary?s reasons for allowing only half credit are vague and possiblymisinterpret the facts. We accord a 15% allowance.The20% allowance for respondent?s compliance history (its experience under statelaws is relevant to this factor) and the lack of adjustment on the basis ofsize are affirmed.InSecretary of Labor v. J. E. Chilton Millwork and Lumber Company, Inc.,OSHRC Docket No. 123 (May 15, 1972) the Commission stated that ?. . . theprincipal purpose of this Act is to obtain compliance with its requirements inorder to ensure a safe and healthful workplace. Relatively minor penalties dolittle to effectuate this objective.? In Secretary of Labor v. HydroswiftCorporation, OSHRC Docket No. 591 (October 27, 1972) we held that, ?Inconsidering the appropriateness of monetary penalties there must beconsideration of the relationship between the non-serious violation involvedand the corresponding degree of gravity.? Thus, we have found it appropriate tovacate minor penalties where gravity of violations is low. However, as in Hydroswift,supra, we do not find the following violations to be of such low level ofgravity as to require that the penalties be vacated.Onthe basis of the foregoing discussion with respect to the assessment of minorpenalties and the gravity of violations we affirm the proposed penalties forthese violations:[4] Docket No. 171 \u00a0 Citation 1, Item 1 29 CFR 1910.310(o), (lack of identification of disconnecting means on electrical components). \u00a0 Citation 1, Item 3 ?29 CFR 1910.310(d), (improper extension cord). \u00a0 Citation 2, Item 4 ?29 CFR 1910.315(d), (non-weatherproof boxes and fittings in wet locations). \u00a0 Citation 2, Item 5 ?29 CFR 1910.315(n)(4), (pullbox without cover). \u00a0 Citation 2, Item 6 ?29 CFR 1910.24(h), (no handrail on closed stairway). \u00a0 Citation 2, Item 7 \u00a0 ?29 CFR 1910.22(a), (housekeeping violation in basement and tool crib). \u00a0 Citation 4, Item 12 ?29 CFR 1910.252(a), (improper storage of compressed gas cylinders). \u00a0 Citation 5, Item 13 ?29 CFR 1910.252(f)(2), (lack of mechanical ventilation in welding area). \u00a0 Citation 5, Item 14 ?29 CFR 1910.242(a), (unsafe equipment). \u00a0 Citation 6, Item 16 ?29 CFR 1910.27(d)(2), (no landing platform from ladder in excess of 30 feet). \u00a0 Citation 6, Item 17 ?29 CFR 1910.310(j)(1), (unguarded electrical terminal). \u00a0 Citation 6, Item 18 ?29 CFR 1910.36(b)(5), (door not constituting exit but subject to being mistaken for exit not appropriately identified). \u00a0 Docket No. 172 \u00a0 \u00a0 Citation 1, Item 1 \u00a0 ?29 CFR 1910.24(h), (no handrail on stairway in yard). Docket No. 173 \u00a0 \u00a0 Citation 1, Item 3 ?29 CFR 1910.27(b)(1)(iii), (non-conforming ladder rung). \u00a0 Docket No. 174 \u00a0 \u00a0 Citation 1, Item 2 ?29 CFR 1910.24(h), (no handrail on stairway). \u00a0 Citation 1, Item 4 ?29 CFR 1910.242(a), (unsafe equipment). \u00a0 Docket No. 175 \u00a0 \u00a0 Citation 1, Item 1 ?29 CFR 1910.316(c), (flexible electric cords used as substitute for fixed wiring). \u00a0 Citation 1, Item 2 ?29 CFR 1910.310(i)(2), (required clear space behind switchboard used for storage). \u00a0 Theproposed penalty for citation 1, item 2 of Docket No. 171, 29 CFR1910.314(d)(4)(iii)(e), (improper insulation on electrically operated toolsused in wet conditions) is also affirmed because of the high level of gravity.Underthe system used by the Secretary in proposing the instant penalties the gravityof a violation consists of the probability of injury, the probable severity ofany Judge Dixon Committed error the system which is found to be in violation.However, for several specific items, Judge Dixon committed error by limitingrespondent?s examination of witnesses to ?the number of people potentiallyaffected and abatement.? Respondent has been denied the opportunity to show,for example, that alternative safety precautions were in use which are relevantto the probability of an accident occurring as well as to the resultingseverity of any injury. Specific descriptions of the areas in which violationsoccurred and their means of egress, also relevant to the determination ofgravity, were improperly excluded. As the result of the Judge?s rulings therecord lacks necessary relevant evidence with respect to the gravity of variousviolations. Therefore the penalties for the following violations are vacated: Docket No. 171 \u00a0 \u00a0 Citation 3, Item 8 ?29 CFR 1910.106(e)(2)(ii)(b), (improper storage of class 1A liquids). \u00a0 Citation 3, Item 9 \u00a0 ?29 CFR 1910.106(e)(9), (improper storage of flammable liquids). \u00a0 Citation 4, Item 10 \u00a0 ?29 CFR 1910.177(c)(1), (improper storage of flammable liquids). Citation 4, Item 11 \u00a0 ?29 CFR 1910.252(a)(2)(i)(b), (compressed gas cylinders not legibly marked). \u00a0 Citation 5, Item 15 ?29 CFR 1910.132(a), (unreliable safety goggles in tool crib). \u00a0 Docket No. 172 \u00a0 \u00a0 Citation 1, Item 2 ?29 CFR 1910.106(e)(2)(ii)(b), supra. \u00a0 Citation 1, Item 3 ?29 CFR 1910.94(d)(9)(vii), (no water with quick opening valves near acid tank). \u00a0 Docket No. 173 \u00a0 \u00a0 Citation 1, Item 1 ?29 CFR 1910.106(e)(2)(ii)(b), supra. \u00a0 Citation 1, Item 2 ?29 CFR 1910.94(d)(9)(vii), supra. \u00a0 Docket No. 174 \u00a0 \u00a0 Citation 1, Item 1 ?29 CFR 1910.106(e)(2)(ii)(b), supra. \u00a0 Citation 1, Item 3 ?29 CFR 1910.94(d)(9)(vii), supra. \u00a0 \u00a0Theawarding of the increased adjustment for good faith, as discussed herein,results in the following penalties: Docket No. 171 \u00a0 \u00a0 Citation 1, Item 1 ?$49 \u00a0 Citation 1, Item 2 ?65 \u00a0 Citation 1, Item 3 ?17 \u00a0 Citation 2, Item 4 ?17 \u00a0 Citation 2, Item 5 ?12 \u00a0 Citation 2, Item 6 ?12 \u00a0 Citation 2, Item 7 ?33 \u00a0 Citation 4, Item 12 ?17 \u00a0 Citation 5, Item 13 ?33 \u00a0 Citation 5, Item 14 ?33 \u00a0 Citation 6, Item 16 ?17 \u00a0 Citation 6, Item 17 ?17 \u00a0 Citation 6, Item 18 ?12 \u00a0 Docket No. 172 \u00a0 \u00a0 Citation 1, Item 1 ?$12 \u00a0 Docket No. 173 \u00a0 \u00a0 Citation 1, Item 3 ?$18 \u00a0 Docket No. 174 \u00a0 \u00a0 Citation 1, Item 2 ?$8 \u00a0 Citation 1, Item 4 ?17 \u00a0 Docket No. 175 \u00a0 \u00a0 Citation 1, Item 1 ?$49 \u00a0 Citation 1, Item 2 ?12 \u00a0 \u00a0Itis ORDERED that the Judge?s recommended decision and order be modified inaccordance with this decision and that a total penalty of $450 be assessed.MORAN, CHAIRMAN,dissenting:Thisdecision reverses with neither explanation nor reason positions taken in atleast two prior opinions of this Commission: Secretary of labor v. NaciremaOperating Company, Inc., OSAHRC Docket No. 4, decided February 4, 1972, andSecretary of Labor v. Thorleif Larsen and Son, Inc., OSAHRC Docket No.370, decided January 17, 1973.InNacirema we expressly disagreed with complainant?s use of a formulaapproach for arriving at the amount to be proposed as a penalty which beginswith the maximum amount allowable under the Act, then discounts it byarbitrarily assigned percentage factors.TheCommission, in this decision, has done an about-face and is now acceptingcomplainant?s formula approach to penalty proposals?even to the extent of anotherwise unidentified ?maximum good faith adjustment,? whatever that is.Althoughthis decision approves of complainant?s use of a ?computation system,? itrejected out-of-hand a penalty arrived at through the use of the self-samesystem in the Thorleif Larsen case. The reason assigned for that actionwas that penalty assessment was a statutory duty which the Commission mustperform.NowI ask you?if the Commission has the sole duty to assess penalties, whatdifference does it make what ?computation system? the Secretary of Labor?oranyone else?utilizes to propose them? Why does this decision talk of?adjustments? and ?allowances? and ?abatement credits?? These are words unknownto the Act. The Secretary of Labor currently uses them to arrive at his penaltyproposals but he does so of his own volition and despite our earlierdisapproval.ThisCommission ought to make up its mind whether the ground rules for theassessment of penalties are going to be set by the Secretary of Labor or by theCommission.TheThorleif Larsen case, as well as a number of other decisions, said theCommission alone would decide. This decision adopts the Secretary of Labor?spenalty assessment formula and by so doing retreats from that ThorleifLarsen position.Ithink the correct rule on penalties can be stated very simply: The Commissionwill decide the amount by applying the criteria in the Act to the factsintroduced at the hearing in those cases where the proposed penalty is disputedby the respondent or the parties have not otherwise agreed upon an appropriateamount.Thefact that at some time prior to the hearing one of the parties to the case (theSecretary of Labor), without benefit of the information adduced at the hearingand without regard for the rules of evidence, proposed to the other party (therespondent) an amount that would become the penalty if the respondent did notdispute it, is immaterial if the Commission is to exercise its authority toassess penalties.Ifthe Commission is to decide penalties, neither the opinions nor the thoughtprocesses nor the calculation methods of any party to the case should be partof the evidence. After the hearing the facts relevant to the statutory criteriashould be considered by the Judge and on that basis he should arrive at theamount of the penalty, if he decides that a penalty is appropriate.Ifurther believe that this case should never have been reviewed. Respondentconceded that it was in violation of the Act as charged. The Judge?s ruling onthe penalties to be assessed was not so far out-of-line as to justify a delayof well over a year in the issuance of a final order in this case. The amountsassessed here are virtually inconsequential?an average of $16.57 per violation.Surely penalties of this size are not going to do anything to improve theoccupational safety and health situation in industry generally or in thisrespondent?s workplace in particular. I submit that this Commission has moreimportant issues with which to concern itself than to run through a nickel anddime accounting for sixteen dollar and fifty-seven cent penalties.\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 171, 172, 173, 174, 175 ST. LOUIS COUNTY WATER COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 27, 1972DIXON, JUDGE, OSAHRC:Thesefive cases, consolidated upon motion of the Secretary, involve citations andproposed penalties for nonserious violations, issued under the OccupationalSafety and Health Act of 1970 (29 U.S.C. section 651, et seq.) hereinaftercalled the Act.Noticeof contest was made by respondent as to a total of eleven citations issuedfollowing an inspection of respondent?s central plant and four otherworkplaces. Thereafter, a complaint was filed in each case by the Secretary,alleging the violation of certain provisions of 29 CFR Part 1910 at each of thefive locations.Inanswering each complaint, respondent admitted, that it is an employer withinthe meaning of the Act, but denied the alleged violations, the reasonablenessof the abatement period and the appropriateness of the Secretary?s proposedpenalties.Bystipulation, the parties agreed prior to the hearing that, irrespective of anystatements to the contrary contained in the pleadings, respondent no longercontests the validity of the citations or abatement periods, and that the onlyissue remaining is the appropriateness of the proposed penalties.FINDINGSOF FACTOSHRC DOCKET NO. 171Central Plant, Chesterfield,MissouriCITATIONI, Item 1?29 CFR 1910.310(o)??Lack of identification of disconnecting means onmotors, appliances, service feeders, branch circuits, and other electricalcomponents where its purpose is not evident.PROPOSED PENALTY: $53.00Inspectionby the Secretary?s witness, Mr. Hargreaves, disclosed several locations wherethere were disconnects which were unidentified presenting the hazard that aworkman might go to work on a circuit thinking it was disconnected and becomeelectrocuted if he was in error (T. 12?13).Exhibit2 is a worksheet on which the gravity of each item of a citation is analyzed interms of the probability that injury could result from it, the severity ordegree of injury likely to result and the relationship of the particular itemfound to be substandard to the entire system in the workplace. A rating isgiven to each item of the citation for each of these three factors, undercolumns headed Probability, Severity and System. The rating in each categorymay be A, B, C, or X with A representing the least serious rating and X themost serious. Thus, in the Probability column, an A rating would mean lightexposure to the hazard, B, moderate exposure, C, heavy exposure and X aflagrant violation of known safety principles. Similarly, in the Severitycolumn, A would mean a minor injury, B, an injury which would require adoctor?s attention, C, one that requires hospitalization, and X, fatal. In theSystem column, A would mean that a minor part of the particular system involvedwas in violation, B, a moderate part in violation, C, 50 percent or more inviolation and X, the entire system in violation (T. 14?16).Theviolation in Citation I, Item 1, was given a B rating for probability becausethere were workmen other than qualified electricians working on electricalcircuits, who might not know how to test a circuit to be sure of thedisconnection, and the exposure was, in the opinion of the Compliance Officer,moderate (T. 14). The severity or degree of injury likely to result from anelectric shock could be fatal or at least require medical attention andtherefore the violation was given a C rating for Severity (T. 14). Theelectrical system was judged to be about 20 to 30 percent in violation and soit was rated B in that category (T. 16). The overall gravity of the violationis expressed as the resultant of these three category ratings, with greaterweight given to Probability and Severity than to System, in this case a Brating overall (T. 16?17). This summary evaluation of the gravity of theviolation is then used to determine the unadjusted penalty upon which the finalproposed penalty is based (T. 20).Thefinal rating given each violation is thus based upon the observations of theCompliance Officer as to the nature of the hazard, the number of employeesexposed to it and its relationship to the rest of the workplace, as well as hisqualified judgment as to the type and degree of injury likely to result and theprobability of injury.Foreach overall letter rating there is a range of penalties within which anappropriate unadjusted penalty is assessed (T. 17). This is then reduced bypercentages depending on the prior history of violations, the size of theemployer and the good faith demonstrated by the employer. In this case, all unadjustedpenalties were reduced by 20 percent because the employer had no history ofprevious violations and by 10 percent because of good faith evidenced by theemployer?s efforts to maintain a safe workplace. No reduction was made for sizebecause this employer was considered large enough to bear the penalties withoutsubstantial hardship (T. 50). An additional 50 percent advance creditcontingent on abatement within the specified periods was also given (T. 51).CITATIONI, Item 2?29 CFR 1910.314(d)(4)(iii)(e)?Line operated portable tools which arenot double insulated and are likely to be used in wet and conductive conditionsare not grounded.PROPOSEDPENALTY: $70.00Therewere four such tools used in the maintenance of the water plant in wet andconductive locations. The hazard presented by not grounding such portableelectric tools is that stray electrical currents may be carried to the metalholding parts of the tool and consequently cause electric shock to the user.The probability of such an occurrence was rated as moderate.Anelectric shock in a wet location could cause severe injury to the user of thetool. Since all tools inspected were found to be ungrounded in violation of thestandards, the entire system was evaluated to be in violation (T. 18?19).?AB-rating for the overall gravity of the violation resulted, and an unadjustedpenalty of $200.00 was assessed. This was reduced as discussed above, makingthe final proposed penalty $70.00CITATIONI, Item 3?29 CFR 1910.310(d)??Extension cord connected to heater circuit at No.6 Pump Pit was not made of materials approved for damp or wet locations.?PROPOSEDPENALTY: $18.00Theextension cord in question was connected from an outlet in the Pump Pit andconsisted of two pieces of No. 12 or No. 14 electrical cord, designed to beenclosed in a conduit or spool and thimble insulation. The insulation wasbroken and the cord was in a bad state of repair. The probability of injury wasrated as light because, although there were a number of employees involved inconcrete work who might come in contact with the defective cord, the piece ofequipment it was connected to was not being constantly used. The severity ofinjury was evaluated the same as for the other two items discussed above. Thiswas only one of many extension cords inspected so that the system rating waslight.Incombining his evaluation for this violation, Hargreaves arrived at an A-plusrating and, consequently, a $50.00 unadjusted penalty based on the gravity ofthe violation. This was reduced to the $18.00 proposed penalty on the basis ofthe previous history and good faith of the employer (T. 21?22).CITATIONII, Item 4?29 CFR 1910.315(d)??Boxes and fittings in wet locations were notweatherproof (High Service Pump Pits No. 3, 4 and 5).?PROPOSEDPENALTY: $18.00Thesepits are below grade level and are wet due to high humidity. There were anumber of junction boxes of a type designed to be used in dry atmospheres.Because the number of employees working in the pits was relatively light, theprobability of an accident was not great. The severity of injury due toelectric shock in a wet area was rated as above. This part of the electricalsystem constituted less than 5 percent of the whole. Combining his evaluation,Hargreaves arrived at an A plus rating and a $50.00 unadjusted penalty (T.22?23).CITATIONII, Item 5?29 CFR 1910.315(n)(4)??Pull box not provided with cover approved forthe purpose (High Service Pump Pit No. 4)?PROPOSEDPENALTY: $13.00Thisviolation consisted of a box containing protruding wires and pigtails whichcould cause electric shock. The gravity was evaluated the same as for theprevious item, except in the system category. There was only one unit involvedrather than three. Consequently, the unadjusted penalty was $35.00 (T. 23?24).CITATIONII, Item 6?29 CFR 1910.24(h)??Lack of handrail on one side of closed stairway(Shop Basement Accessway).?PROPOSEDPENALTY: $13.00Thiswas a wooden stairway consisting of approximately 10 steps. The absence of ahandrail subjects a person on the steps to possible injury from a slip or fall.The probability of accident was graded light, inasmuch as the stairway was notfrequently used by the work force. The severity of injury which could resultwas moderate in Hargreaves? opinion. This was the only stairway in theworkplace that was found without a handrail. An overall rating of A-plus wasgiven for the gravity of the violation and an unadjusted penalty of $35.00assessed.CITATIONII, Item 7?29 CFR 1910.22(a)??All places of employment, passageways,storerooms, and service rooms are not orderly with specific reference to ShopBasement and Shop Tool Crib.?PROPOSEDPENALTY: $35.00Hargreavesfound the Tool Crib and Shop in what he described as ?a rather messy situationwith many pieces of materials placed on the floor of the aisleways between thestorage bins.? There was material stored on top of the storage bins, and thus ahazard that something might fall on a workman?s head. Material in the basementwas stored on the floor where it presented a tripping hazard.Theprobability of accident was rated moderate because there was considerabletraffic through the tool crib and slightly less in the storeroom basement. Aperson falling in this area could sustain a fracture or other serious injury.The system evaluation was light since the general work area was in bettercondition. The overall rating as to the gravity of the violation was B-minusand the unadjusted penalty was $100.00 (T. 26?27).CITATIONIII, Item 8?29 CFR 1910.106(e)(2)(ii)(b)??Over 25 gallons of Class 1A liquidsand over 120 gallons of Classes IB, IC, II or III liquids in containers werestored in the building with no inside storage room or cabinet provided(Maintenance Shop Tool Crib).?PROPOSEDPENALTY: $70.00Thisitem concerned storage of flammable liquids, as determined from the labels ofthe storage containers, and exposed approximately 18 employees to a fire hazard(T. 29?31, 102?104). These materials consisted of paint thinners, paints,lubricants and gasoline in various amounts (T. 31). The gravity of theviolation was B-plus and the unadjusted penalty was $200.00.CITATIONIII, Item 9?29 CFR 1910.106(e)(9)??Housekeeping and maintenance practicesregarding storage of flammable and combustible liquids not in accordance withestablished procedures to control leakage and prevent accidental escape ofliquids (Storage Yard near Maintenance Shop).?PROPOSEDPENALTY: $70.00Therewere diesel oil storage tanks of greater than 500 gallon capacity in the yardarea and within an estimated 60 feet there were some 19 drums of other types offlammable or combustible materials: mineral oil, solvents and the like. Therewas also a gasoline pump, pumping from an underground storage tank. There wasan empty wire reel made of wood, and other debris around the diesel storagetanks.Thispresented both a fire and explosion hazard to approximately 20 employees. Theprobability of accident was rated as moderate, inasmuch as employees werecoming and going through this area constantly to use materials from the drums.The severity was rated as moderate because of the fire hazard as well as thepossibility of suffocation or thermal shock. Poor housekeeping prevailed in allflammable and combustible storage areas inspected, so the system was given aletter rating of C. An overall rating of B plus and, therefore, a $200.00unadjusted penalty was assessed. Mr. Hargreaves? observations in this area weresupported by his description of photographs introduced as Exhibits 3 and 4 (T.32?35).CITATIONIV, Item 10?29 CFR 1910.177(c)(1)??Flammable and combustible liquids in outsidestorage area not handled and piled with due regard to their firecharacteristics (Outside Drum Storage Area).?PROPOSEDPENALTY: $70.00Thisitem concerned a cylinder of oxygen stored with combustible and flammableliquids in the outside storage area discussed above. The hazard presented isthat the oxygen would add to any fire which might occur, the probability beingrated as light. The severity of the burn hazard presented was moderate andsince there was no order to any of the storage of materials, the system ratingwas high. An overall B plus rating and an unadjusted penalty of $200.00resulted.CITATIONIV, Item 11?29 CFR 1910.252(a)(2)(i)(b)??Compressed gas cylinders are not legiblymarked (Maintenance Shop and Outside Drum Storage Area).?PROPOSEDPENTALTY: $18.00The probability ofsomeone being injured from the incorrect use of these materials was lightbecause most people would be familiar with the shape and color of compressedgas cylinders and don?t necessarily rely on legible marking. The severity ofinjury would likewise be light, however, none of the cylinders inspected wereidentified by any legible marking as required. An overall A plus evaluation wasmade as to the gravity of the violation and a $50.00 unadjusted penaltyresulted.CITATIONIV, Item 12?29 CFR 1910.252(a)(2)(iv)(a)??Compressed gas cylinders containingoxygen stored near combustible materials, more specifically oils and acetylene(Outside Drum Storage Area).?PROPOSEDPENALTY: $18.00Thisitem deals with the same physical area as did Item 9 and 10. The hazardpresented is that oxygen would contribute to combustion of the combustiblematerials it was stored with. The probability of injury from this situation waslight because only one or two men were likely to be working with the gascylinders, moving a cylinder one at a time. The severity of any injury receivedwas rated light, but the system was evaluated as heavy. An A plus overallrating and a $50.00 unadjusted penalty was assessed (T. 38?40).CITATIONV, Item 13?29 CFR 1910.252(f)(2)??Mechanical ventilation is not provided inwelding area, which is a confined space (Maintenance Shop).?PROPOSEDPENALTY: $35.00Thissituation would present a fume hazard to a welder that could be injurious tohis respiratory system and irritation to the eyes. The probability of injurywas considered relatively light because only one or two welders worked at atime in this area. The severity was evaluated as moderate because of the lungirritation which might result. Not all of the welding in respondent?s plant wasdone in this area. A B rating was assessed overall and an unadjusted penalty of$100.00 (T. 41?42).CITATIONV, Item 14?29 CFR 1910.242(a)??Chain hoist being used which has spread hooks onboth ends and several tools, more specifically eye bolts and clevises, are inan unsafe condition (Electric Station Basement and Maintenance Shop ToolCrib).?PROPOSEDPENALTY: $35.00Theequipment here might be overstressed and therefore not hold the indicated load.The probability of accident from these was moderate because so many of themwere in a state of disrepair. The severity of injury could be quite severesince the equipment was used to handle heavy loads. However, there werenumerous heavy cranes in the workplace and only one, along with other hoistingequipment, found to be in violation. An overall rating of B as to gravity ofviolation and a $100.00 unadjusted penalty was assessed.CITATIONV, Item 15?29 CFR 1910.132(a)??Safety goggles were in an unsanitary andunreliable condition (Maintenance Shop Tool Crib).?PROPOSEDPENALTY: $53.00Mr.Hargreaves found the personal protective equipment in question in ?horriblecondition? and in his opinion the probability of accident was very great. Thetype of injury possible is loss of an eye which is quite severe but will notalways be the result. A B-plus rating was given and a $150.00 unadjustedpenalty assessed.CITATIONVI, Item 16?29 CFR 1910.27(d)(2)??Ladder which provides access from ground towash water tank exceeds 30 feet in height and is not equipped with landingplatforms (Wash Water Tank).?PROPOSEDPENALTY: $18.00Theprobability of accident from a fall was rated light with respect to the entirework force. However, the severity of injury should a man fall is likely to begreat. This ladder was only one of several in the workplace. An A-plusevaluation and a $50.00 unadjusted penalty was assessed (T. 44?46).CITATIONVI, Item 17?29 CFR 1910.310(j)(1)??480 volt terminals for pump primingelectrical system located on top of intake pumps is not guarded.?PROPOSEDPENALTY: $18.00Theseterminals were uninsulated and exposed to workers without electrical knowledge,such as a crew pouring concrete. The probability of injury was light, becausethere was less traffic through the pump area with respect to the entireworkplace, thereby reducing exposure. Because of the 480 volt potential whichcould cause near fatal effects, severity was rated heavily. However, this wasonly a minor part of a large electrical system. The summary rating was A plus,leading to a $50.00 unadjusted penalty.CITATIONVI, Item 18?29 CFR 1910.36(b)(5)??Single door leading to river side of thebuilding not constituting an exit but of such character as to be subject tobeing mistaken for an exit was not marked to minimize its possible confusionwith an exit (Intake Pump Houses No. 1, 2, and 3).?PROPOSEDPENALTY: $13.00Becauseof space restrictions, the probability of accident was rated light. However, theseverity of injury was considered to be moderate because an employee might fallamong structural steel members outside the door should he mistake it for anexit. The particular door was only one of many in the workplace.Thesummary rating was an A plus and a $35.00 unadjusted penalty was assessed (T.48?49).OSHRCDOCKET NO. 172?North Plant, Florissant, MissouriCITATIONI, Item 1?29 CFR 1910.24(h)??Standard railings are not provided on the opensides of exposed stairway (Yard Area Between Pump Station and StorageBuilding).?PROPOSEDPENALTY: $18.00CITATIONI, Item 2?29 CFR 1910.106(e)(2)(ii)(b)??Over 25 gallons of Class IA liquids andover 120 gallons of Classes IB, IC, II or III liquids in containers were storedin the building with no inside storage room or cabinet provided (StorageBuilding).?PROPOSEDPENTALTY: $70.00Thesetwo items were similar to corresponding items discussed in No. 171 above andwere evaluated in the same manner (T. 56).CITATIONI, Item 3?29 CFR 1910.94(d)(9)(vii)??No supply of clean cool water with a quickopening valve and at least 48 inches of hose or deluge showers and eye flushesprovided near acid solution tank (Laboratory).?PROPOSEDPENALTY: $27.00Thehazard presented by this item was harm to eyes, nose and mouth from anaccidental splash of hydrochloric acid.Thegravity of the above violations and the proposed penalty for each were assessedin the same manner and on the same type of form as for each item of theprevious citation (T. 55?58, Exhibits 6 and 7). It was stated that the witnesswould testify that the approximate number of employees affected by eachviolation, i.e., the number exposed to the hazard, would be the same as in theapplicable paragraph of the complaint (T. 59?60). Thus, for Item 1approximately 19 employees regularly using this stairway were affected; and forItem 3 approximately 4 laboratory employees were affected.OSHRCDOCKET NO. 173SouthPlant, Sunset Hills, MissouriCITATIONI, Item 1?29 CFR 1910.106(e)(2)(ii)(b)??Over 25 gallons of Class IA liquids andover 120 gallons of Classes IB, IC, II or III liquids in containers were storedin the building with no inside storage room or cabinet provided (StorageBuilding).?PROPOSEDPENALTY: $200.00, adjusted to $70.00CITATIONI, Item 2?29 CFR 1910.94(d)(9)(vii)??No supply of clean cool water with a quickopening valve and at least 48 inches of hose or deluge showers and eye flushesprovided near acid solution tank (Laboratory).?PROPOSEDPENALTY: $75.00, adjusted to $27.00Thesetwo items presented the same hazard as did corresponding violations discussedabove. The complaint alleges that approximately five employees were affected byItem 1 and approximately four employees by Item 2.CITATIONI, Item 3?29 CFR 1910.27(b)(1)(iii)??Minimum clear length of rung of Fixedladder is not 16 of fixed ladder is not 16 Substation).?PROPOSEDPENALTY: $5.00, adjusted to $2.00.Thelast three items relate to one physical location which presented an overallfalling hazard because the ladder did not meet specifications of the standards(T. 68). The complaint alleged that approximately two employees were affectedby this violation, and such would have been the testimony of Mr. Hargreaves.OSHRCDOCKET NO. 174ServiceBuilding, University City, MissouriExhibitNo. 12 evidences the method of evaluating the gravity of the violations and therating arrived at the following items (T. 73).CITATIONI, Item 1?29 CFR 1910.106(e)(2)(ii)(b)??Over 25 gallons of Class IA liquids andover 120 gallons of Classes IB, IC, II or III liquids in containers were storedin the building with no inside storage room or cabinet provided.?PROPOSEDPENALTY: $250.00, adjusted to $88.00.Thehazard presented by this violation is the same as for other items involvinginside storage of flammable liquids. The probability of ignition was slightlygreater due to the storage area also being used as a welding shop and forstorage of equipment with internal combustion engines (T. 74).Thisitem presented a shock hazard to as many as four employees. The gravity andpenalties were assessed as for the previous citations (T. 80).CITATIONI, Item 2?29 CFR 1910.310(i)(2)??Required clear working space behindswitchboard is used for incidental storage.?PROPOSEDPENALTY: $35.00, adjusted to $13.00.Therewas exposed wiring behind the switchboard and at the time of the inspectionthere was a pair of boots and some rain gear. The clearance behind the boardwas thus reduced causing a shock hazard to the operator who had occasion to gobehind the board to perform maintenance (T. 82). The gravity and penalties wereassessed as for the previous citations (T. 80).Section17(j) provides that the Commission shall have authority to assess all civilpenalties provided in this section, giving due consideration to the appropriatenessof the penalty with respect to the size of the business of the employer beingcharged, the gravity of the violation, the good faith of the employer and thehistory of previous violations.TheSecretary through his enforcement officer in assessing the penalties utilized aformalized report worksheet which took into account the gravity of each item ofa citation, as analyzed in terms of probability of injury resulting from theviolation, also, the worksheet took into account the severity or degree of injurylikely to result in relationship to the entire system of the workplace. Ratingsof A, B, C, or X made with ?A? representing light exposure and ?X? a flagrantviolation with an initial unadjusted penalty being proposed (T. 20). And with afinal rating being given with respect to the nature of the hazard, the numberof employees, etc. There is further reduction by percentages depending upon theprior history of violations (T. 17), the size of the employer and good faithdemonstrated by the employer.Theemployer does $17 million annual gross revenue serving something less than onemillion people (T. 169) and among the largest of the private owned watercompanies. The company has had lost time accidents (T. 170).Thecompany promptly abated the violations and has had and continues to have aviable safety program maintained both by the company and in coordination withunion representatives and safety committees.However,giving due consideration to the respondent?s size and the other criteria set forthin section 17(j) of the Act it is felt that the proposed penalties wereappropriate.CONCLUSIONSOF LAW1.Respondent is, and at all material times was, an employer within the meaning ofsection 5(a) as defined in section 3(3) and 3(5) of the Act.2.Jurisdiction is conferred upon the Commission by section 10(c) of the Act andthe citations issued were in accordance with section 9(a) of the Act.3.Respondent withdrew its contest as to the violations alleged and the abatementperiods in the citations. The abatement periods were not contested by anyemployees or representative of employees, as provided in section 10 of the Act.4.The penalties proposed by the Secretary are appropriate within the meaning ofsection 17(j) of the Act.ORDERItis hereby ORDERED that the citations previously issued be affirmed as toviolations and abatement periods, and that the penalties proposed by theSecretary for each item of said citations be assessed.[1] In Docket No.173, the Judge found that item 3 of citation 1 and items 4 and 5 of citation 2all relate to one physical location. The Judge treated them as one denominatingit as citation 1, item 3 alleging a failure to comply with 29 CFR1910.27(b)(1)(iii).[2] Good faith considerations includepreventive measures taken by an employer to prevent accidents from occurringdespite the existence of a violation and thus are also related to the gravityof a violation.\u00a0[3] Compliance withstate laws is relevant to compliance history.[4]Theadditional 5% adjustment for respondent?s good faith is accorded to allpenalties. See infra.”