LADISH CO., TRI-CLOVER DIVISION, a Corporation

OSHRC Docket No. 78-2499

Occupational Safety and Health Review Commission

July 31, 1980

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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").

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n1 29 U.S.C. � � 661(i).

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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

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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.

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(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).

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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.

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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:

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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.

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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    , 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. �