Docket No. 700

METALS SELLING CORPORATION, INC.

OSHRC Docket No. 700

Occupational Safety and Health Review Commission

April 1, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision made by Judge Abraham Gold. Judge Gold concluded that Respondent had violated the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") in a non-serious manner because it had not complied with certain standards and regulations. He assessed an aggregate penalty of $297.

Among other things the Judge concluded that Respondent was in non-serious violation of the standard prescribed by 29 C.F.R. 1910.106(h)(4)(i) (d). A penalty of $52 was assessed for the violation. We have reviewed the record. For the reasons given hereinafter, we reverse the Judge's finding of a violation of 29 C.F.R. 1910.106(h)(4)(i)(d) and assessment of a penalty of $52 therefor, and we affirm his decision in all other respects.

The relevant facts pertaining to the aforenoted alleged violation follow. Respondent is engaged in the manufacture of metallic chemicals and structures, and more than 50 percent of its business involves the grinding of magnesium ingots. While [*2] making an inspection of Respondent's workplace Complainant's representative noticed that cans of paint and thinner were stored on an open shelf. Some of the cans were open to the extent that their lids were not fastened, i.e., they were on top of the cans but they were not secured. On these facts Complainant was cited for an alleged violation of 29 C.F.R. 1910.106(h)(4)(i) (d) as follows: "[f]ailure to provide an approved cabinet for the storage of combustible liquids. Location-Shop."

The standard provides:

The storage of flammable or combustible liquids in containers shall be in accordance with the applicable provisions of paragraph (d) of this section.

We have searched 29 C.F.R. 1910.106(d) n1 and have not found any provision that would require this Respondent to store its paint and thinners in any type of cabinet regardless of whether it was approved or not. Paragraph (d)(1) prescribes the scope of application of the paragraph and sets forth certain exemptions. n2 As to the remaining paragraphs of section 106 only two may be said to have application.

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n1 Section 106 was amended on September 28, 1973 (38 F.R. 27047 at 27048-49). This case arose prior to the amendments and therefore they do not affect this decision. We would point out, however, that we have examined the section as amended and note that the amendments do not cover the subject matter at issue in this case.

n2 Paragraph (d)(1)(ii) (c) of section 106 exempts flammable and combustible paints and similar materials used for painting or maintenance when not kept for a period in excess of 30 days. Respondent did not plead the exemption as a defense nor was the issue tried by consent. Accordingly, application of the exemptory provision is not in issue.

[*3]

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Paragraph (d)(3) is entitled: "Design, construction and capacity of storage cabinets." Subparagraph (i) of this paragraph prescribes a negative requirement, i.e., not more "than 60 gallons of flammable or 120 gallons of combustible liquids may be stored in a storage cabinet." The other subparagraph of paragraph (d)(3) prescribes design criteria for storage cabinets. Neither one of them specifies a requirement that flammable or combustible materials be stored in a storage cabinet.

The only other paragraph that might be said to have application on the facts is paragraph (d)(5) entitled: "Storage inside building." The paragraph has six subparagraphs. The first prohibits storage so as to block egress. The second states that storage in containers shall comply with the requirements of the subparagraphs three through five. The third refers to office occupancies; the fourth to mercantile occupancies or other retail stores; and the fifth refers to general purpose public warehouses. On the facts, Respondent is not subject to the aforementioned provisions. Finally, the sixth subparagraph refers [*4] to flammable and combustible liquid warehouses or storage buildings and is clearly not applicable on the facts.

Accordingly, the express terms of paragraphs (d)(3) and (d)(5) as applied to this Respondent do not require it to store flammable and combustible liquids in cabinets. And in view of the fact that section 106 also refers to storage rooms and outside storage, we will not imply a requirement that storage cabinets be used. Complainant argues that a ruling to this effect would render the standard meaningless. Even were we to agree, and we do not, the obvious answer is that Complainant may use the provisions of section 6(b) of the Act to impose the requirement he seeks.

For the reasons stated the Judge's order is amended so as to vacate the citation for violation of 29 C.F.R. 1910.106(h)(4)(i) (d) and to assess an aggregate penalty of $245. The Judge's order, as amended, is affirmed, and it is so ORDERED.

[The Judge's decision referred to herein follows]

GOLD, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant [*5] against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 55 Providence Street, Putnam, Connecticut and described as follows, manufacturer of metallic chemicals, Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation for other than serious violations, issued on March 21, 1972, lists the particular standards or regulations allegedly violated, a description of each alleged violation, and the date on which each must be corrected, as follows:

Item -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected.

1 -- 29 CFR 1910.22(a)(i) -- Failure to keep the workplace in clean and orderly condition. Location -- Shop, basement, garage. -- 4/12/72.

2 -- 29 CFR 1910.22(b)(2) -- Failure to appropriately mark permanent aisles and passageways. Location -- shop and garage. -- 3/29/72.

3 [*6] -- 29 CFR 1910.23(d)(1)(iv) -- Failure to provide a handrail on the right side of the stairs descending. Location -- Basement stairs. -- 3/29/72.

4 -- 29 CFR 1910.36(b)(5) -- Failure to adequately mark emergency exit door from the building. Location -- Vehicle maintenance and all others. -- 3/29/72

5 -- 29 CFR 1910.101(b) -- Failure to secure compressed gas cylinders to a stationary object to prevent their falling over. Location -- Basement. -- 3/23/72.

6 -- 29 CFR 1910.102(a) -- Failure to store acetylene gas cylinder with the value end up to prevent discharge of the acetylene as a liquid. Location -- Shop. -- 3/23/72.

7 -- 29 CFR 1910.106(h)(4)(i)(d) -- Failure to provide an approved cabinet for the storage of combustible liquids. Location -- Shop. -- 5/3/72.

8 -- 29 CFR 1910.133(a)(1) -- Failure to provide and require to be worn suitable eye protectors where machines or operations present a hazard of flying objects. 3/29/72.

9 -- 29 CFR 1910.157(b)(1) -- Failure to provide fire extinguishers for the character of fires anticipated. Location -- Shop and garage. -- 4/12/72.

10 -- 29 CFR 1910.212(a)(1) -- Failure to provide a guard for the side of the belt sander. [*7] Location -- Basement. -- 3/29/72.

11 -- 29 CFR 1910.212(a)(1) -- Failure to provide eye shields on the bench grinder. Location -- Shop. -- 4/5/72.

12 -- 29 CFR 1910.212(b) -- Failure to securely anchor machines designed for fixed location to prevent walking or moving. Location -- Basement. -- 3/29/72.

13 -- 29 CFR 1910.215(a)(4) -- Failure to provide a tool rest on the bench grinder. Location -- Shop. -- 3/29/72.

14 -- 29 CFR 1910.242(b) -- Failure to reduce compressed air where used for cleaning to less than 30 PSI. Location -- Shop. -- 4/15/72.

15 -- 29 CFR 1910.310(i) -- Failure to provide sufficient access and working space about electrical equipment. Location -- Shop. -- 3/29/72.

16 -- 29 CFR 1910.315(n) -- Failure to provide a cover for an electrical outlet box. Location -- Office. -- 3/24/72.

17 -- 29 CFR 1910.316(c) -- Failure to provide permanent wiring to a ceiling light. Location -- Shop crib area. -- 3/29/72.

18 -- 29 CFR 1903.2(a) -- Failure to post the OSHA notice informing employees of their obligations and protections under the Act. -- 3/22/72.

19 -- 29 CFR 1904.2(a) -- Failure to maintain a log of occupational injuries and illnesses as required by [*8] the Act. (OSHA 100) -- 3/22/72.

20 -- 29 CFR 1904.5(d) -- Failure to compile and post a summary of occupational injuries and illnesses as required by the Act. (OSHA 102) -- 3/22/72.

Pursuant to Section 10(a) of the Act, a Notification of Proposed Penalty, forwarded to Respondent on March 21, 1972, proposed a total penalty of $297.00 as shown below.

Item No.	Proposed Penalty
1	$35.00
2	35.00
3	0
4	0
5	0
6	0
7	52.00
8	0
9	70.00
10	0
11	0
12	35.00
13	0
14	35.00
15	35.00
16	0
17	0
18	0
19	0
20	0

After Respondent contested the action, and a Complaint and Answer had been timely filed by the parties, hearing was held at Hartford, Connecticut on October 11, 1972.

The parties stipulated (Exh. J-1) that Respondent is a Connecticut Corporation, with its principal office and place of business at 55 Providence Street, Putnam, Connecticut, and is engaged in the manufacture of metallic chemicals and structures; more than 50% of its business involves grinding and processing magnesium ingots; its facilities consist of seven buildings, with about 50,000 square feet of space; it regularly receives and [*9] handles materials and products which have moved across state lines in interstate commerce; all equipment and machinery referred to in the Citation and Complaint are owned and controlled by Respondent; on or about March 1, 1972, Respondent employed about 19 persons, and on October 11, 1972, it had about 9 employees; it employed about 19 employees on an average daily basis during the past year; the annual dollar volume of Respondent corporation is about $400,000.00.

In the written stipulation (Exh. J-1) Respondent admitted Items 3, 14, 17, 18, 19 and 20 alleged in the Citation; and Respondent orally stipulated at the hearing (Tr. 6) an admission of Items 4 and 15 of the Citation.

This leaves Items 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15 as the only contested items to be decided here.

A Compliance Officer of the Department of Labor inspected the workplace on March 1, 1972 (Tr. 11).

As to Item 1 in the Citation, the Compliance Officer observed items on the floor of the shop, near and around the machines, creating a tripping hazard (Tr. 11, Exh. C-2); in the basement there were boxes, pipes, and stock stored on the floor (Tr. 15); and in the garage there was congestion [*10] caused by pallets, and an A frame crane in the aisle (Tr. 15, Exh. C-3). In the shop a bag of material protruded well over a balcony railing (Exh. C-2). The Secretary of Respondent Corporation testified that he and his brother own and manage the corporation (Tr. 102); that he was not at the plant on the day of the inspection (Tr. 114). He said that the same areas are used as aisles and work spaces, and it is the practice to pile work pieces in the aisle (Tr. 115); but he opined that there is always an adequate passageway for employees (Tr. 105). Item 1 of the Citation is established by the evidence of record.

As to Item 2, inspection revealed that there were no aisle markings in the shop or garage (Tr. 16), as alleged.

The next contested item is No. 5. The Compliance Officer found two compressed gas cylinders standing against a wall in the basement, not secured to a stationary object (Tr. 24). The Corporation Secretary said that filled compressed gas cylinders are stored in a rack with a belt, against one wall of the plant, chained in place; that empty cylinders are placed in an L shape area in the southeast corner of the basement, where the gas company picks them [*11] up at weekly intervals (Tr. 105, 118); that when a cylinder is empty, the gauge is removed, a cap is put in its place, and the letters "MT" written on he cylinder (Tr. 106); and that normally, all cylinders are stored on their bases, that is, with the valve end up, and chocked as soon as they are empty (Tr. 106). The Compliance Officer testified that he did not observe the two gas cylinders in the basement to be marked "MT" (Tr. 133). The Corporation Officer said that he did not think that an empty cylinder would be allowed to stand more than a few hours (Tr. 118) before being brought to the L area. The Area Director of the Department of Labor opined that a standing unsecured gas cylinder, where empty or full, is a hazard because it is top-heavy and can cause injury to a person if the cylinder were to fall against him (Tr. 89). Item 5 established by the weight of the evidence.

An acetylene gas cylinder was lying on its side on a pallet, in the shop, according to the Compliance Officer (Tr. 25), who did not see an "MT" marking on the cylinder (Tr. 133). Item 6 is established.

Item 7 is demonstrated by the fact that cans of paint and thinner were observed on an open shelf of [*12] a metal rack on the west wall of the shop, with the cans not covered tightly (Tr. 28).

A cutting machine operator was not wearing safety glasses while operating a machine which was throwing off flying metal (Tr. 29, 51). The Corporation Officer stated that he tells the employees to wear goggles or full face shields, but he admitted that an employee may be reminded as many as a dozen times of his failure to comply with the instruction, without disciplinary action being taken by Respondent. Item 8 is thereby shown to be as alleged.

As to Items 9, 10, 11 and 12, the allegations are established by the testimony of the Compliance Officer who saw no fire extinguishers in the shop or garage (Tr. 29); in the basement he saw a belt sander which did not have a guard on the side, where a person could be caught up on the nip points on the wheel (Tr. 30, 122); in the shop there was a bench grinder (which had grinding wheels on it) without eye shields (Tr. 31); and a pedestal grinder in the basement was not secured to the floor (Tr. 32).

The other 2 contested items, numbers 13 and 15, are also found to be as alleged. The bench grinder in the shop did not have a tool rest on it at [*13] the time of the inspection (Tr. 33). In the northwest corner of the shop, where the electrical distribution board was located, there were boxes stored underneath, so that it would have been necessary to climb over these articles to get to the board or switches (Tr. 34). There was insufficient room for a man to walk directly to the electrical board (Tr. 34). The Secretary of the Corporation said that piles of plywood are often kept in the adjacent area, and there might be barrels of rubbish waiting to go to the dump "or something like that." (Tr. 125).

The plant has no formal safety program (Tr. 112), but the two owners go through the plant at about hourly intervals, observing conditions (Tr. 112). The plant has been grinding magnesium for 25 years and has not had a serious accident (Tr. 113).

The proposed penalties for the 20 items are considered appropriate, taking into account the size of the employer's business, the gravity of the violation, the good faith of the employer, and history of previous violations.

The facts necessary to confer jurisdiction have been admitted by Respondent, and it has admitted Item 3, 4, 14, 16, 17, 18, 19 and 20. Findings of fact will [*14] be limited to matters not stipulated.

The Citation names Respondent as "Metal Selling Corp., Inc." and as "Metal Snelling Corp., Inc." The Complaint correctly lists Respondent as "The Metals Selling Corporation" and thereby amends the Citation accordingly.

FINDINGS OF FACT

1. On March 1, 1972 Respondent violated the standard in 29 CFR 1910.22(a)(1) by failure to keep the workplace at 55 Providence Street, Putnam, Connecticut, specifically the shop, basement and garage, clean and orderly.

2. On said date, and at said place, Respondent violated 29 CFR 1910.22(b)(2) by failure to appropriately mark permanent aisles and passageways.

3. At said time and place Respondent violated 29 CFR 1910.101(b) by failing to secure two standing compressed gas cylinders to a stationary object to prevent them from falling over.

4. At said time and place Respondent violated 29 CFR 1910.102(a) by failing to store an acetylene gas cylinder with the valve end up to prevent discharge of the acetylene is a liquid.

5. At said time and place Respondent violated 29 CFR 1910.106(h)(4)(i)(d) by failure to store combustible liquids in an approved cabinet.

6. At said time and place Respondent violated [*15] 29 CFR 1910.133(a)(1) by failing to provide and require the use of suitable eye protectors where machines or operations present the hazard of flying objects.

7. At said time and place Respondent violated 29 CFR 1910.157(b)(1) by failure to provide fire extinguishers for the character of fires anticipated.

8. At said time and place Respondent violated 29 CFR 1910.212(a)(1) by failing to provide a guard to protect the operator of a belt sander.

9. At said time and place Respondent violated 29 CFR 1910.212(a)(1) by failing to provide eye shields on a bench grinder.

10. At said time and place Respondent violated 29 CFR 1910.212(b) by failing to securely anchor a machine, designed for a fixed location, to prevent walking or moving.

11. At said time and place Respondent violated 29 CFR 1910.215(a)(4) by failing to provide a work rest on a bench grinder.

12. At said time and place Respondent violated 29 CFR 1910.310(i) by failing to provide and maintain sufficient access and working space about electrical equipment to permit ready and safe operation and maintenance of such equipment.

13. The proposed penalties of $35 for each of Items 1, 2, 12, 14 and 15, $52 for [*16] Item 7, $70 for Item 9, and no monetary penalty for each of the other 13 Items in the Citation, are all appropriate, considering the size of the business of Respondent, the gravity of the violation, the good faith of Respondent, and history of previous violations.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction as to the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. On March 1, 1972 Respondent was in violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, as alleged in the Citation of March 21, 1972, as amended, for other than serious violations, by failure to comply with the following standards contained in 29 CFR: 1910.22(a)(1), 1910.22(b)(2), 1910.23(d)(1)(iv), 1910.36(b)(5), 1910.101(b), 1910.102(a), 1910.106(h)(4)(i)(d), 1910.133(a)(1), 1910.157(b)(1), 1910.212(a)(1)(2 items), 1910.212(b), 1910.215(a)(4), 1910.242(b), 1910.310(i), 1910.315(n), 1910.316(c), 1903.2(a), 1904.2(a), and 1904.5(d).

3. The proposed total penalty of $297 for the non-serious violations listed in Conclusion of Law 2 is appropriate and reasonable, in [*17] accordance with Section 17(c) and (j) of the Act.

ORDER

It is ORDERED that the Citation, as amended, and Notification of Proposed Penalties be, and the same hereby are, AFFIRMED.