Docket Nos. 1231; 1758

WEYERHAEUSER COMPANY

OSHRC Docket Nos. 1231; 1758

Occupational Safety and Health Review Commission

January 13, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Regional Solicitor

Douglas B. M. Ehlke, Weyerhaeuser Company, for the employer

Local 3-12, International Woodworkers Of America, for the employees

Keefe Walker, Financial Secy, Lodge No. 1943, International Association of Machinists, for the employees

OPINION:

DECISION

BY THE COMMISSION:

In June and September of 1972, compliance officers of the Occupational Safety and Health Administration, United States Department of Labor, conducted two inspections of Weyerhaeuser Company's manufacturing complex in Klamath Falls, Oregon, where its several sawmills and plywood mills produce structural lumber and plywood products. Over two thousand persons are employed there.

The June inspection began on June 20, 1972. It lasted two and one-half days, terminating on June 22, 1972. The inspection was limited to sawmills numbered one and two, their concomitant planer mills, and a large log yard. Subsequent to the inspection, four citations for violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter [*2] "the Act") were issued on July 11, 1972. Respondent contested the citations for "serious" violation nos. 2 and 3 of the three citations issued for alleged "serious" violations, and items 1, 2, 5, 6, 9, and 23 of the citation for a "non-serious" violation as well as the corresponding proposed penalties. Weyerhaeuser's notice of contest was docketed as number 1231.

The September inspection began on September 19, 1972, and ended the following day. It covered areas that were not covered in the previous inspections, such as the plywood, hardboard, particleboard, and coating plants, the merchandiser mill, the powerhouse, and other shops and buildings. On October 27, 1972, two citations for violations of section 5(a)(2) of the Act issued. Respondent contested the citation for "serious" violation, items 1, 8, and 9 of the citation for a "non-serious" violation, and the corresponding proposed penalties. The notice of contest was docketed as number 1758.

The cases were assigned to Administrative Law Judge Garl Watkins, who consolidated them for hearing. On May 14, 1974, Judge Watkins issued a decision vacating all but three citations or items of citations. The Secretary of Labor petitioned [*3] for discretionary review. His petition was granted. Briefs by the parties were invited on the various issues raised in the petition.

Both parties have filed briefs. After a full review of the record, we conclude that with respect to the matters which are properly before us. n1 Judge Watkins' decision cannot be adopted.

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n1 In number 1231, Weyerhaeuser's contest of the citation for "serious" violation number two was withdrawn. Only the characterization of the violation as "serious" and the appropriateness of the proposed penalty remained in issue. The Judge's finding that the violation was not "serious" and his assessment of a $100 penalty are not before us for review. Similarly, the parties do not urge review, and review was not directed, of the Judge's actions regarding items 2, 5, and 6 of the citation for a "non-serious" violation in number 1231, and item 9 of the citation for a "non-serious" violation in number 1758. Under the circumstances, we do not pass upon these matters.

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The Noise Items

We turn [*4] first to items one and eight of the citation for "non-serious" violations in docket nos. 1231 and 1758 respectively. It is alleged that on the date of the inspections, employees not protected by personal protective equipment were exposed to excessive noise levels contrary to 29 CFR § 1910.95(a). n2

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n2 Section 1910.95(a) provides, in pertinent part, that "[p]rotection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 . . . ." Table G-16 reads as follows:

TABLE G-16 -- PERMISSIBLE
NOISE EXPOSURES n1
	Sound level dBA
Duration per day, hours	slow response
8	90
6	92
4	95
3	97
2	100
1 1/2	102
1	105
1/2	110
1/4 or less	115

n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C[1]/T[1] + C[2]/T[2] + . . . C[n]/T[n] exceeds unity, then, the mixed exposure should be considered to exceed the limit value. C[n] indicates the total time of exposure at a specified noise level, and T[n] indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

[*5]

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Judge Watkins found that the evidence of the duration of the employees' presence at their work stations and of the representativeness of the sound level samples were not "credible." n3 He held that the Secretary did not adduce sufficient evidence of the length of time that employees were subjected to the measured noise levels, and that the "grab" or "spot" samples taken by the compliance officer in an environment of fluctuating noise are inadequate. The first of these findings is, however, contrary to the record. The second is premised upon a reading of § 1910.95(a) that the Commission has rejected as wrong.

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n3 Though Judge Watkins couched his findings in terms of "credibility," there is no indication that Judge Watkins doubted the veracity, character, or accuracy of the Secretary's witnesses. Rather, he found in his evaluation that their evidence was insufficient or not reliable enough to meet the test of representativeness which he thought the Commission requires to prove the existence of excessive noise levels. Compare A.P. Hopkins Corp. v. Studebaker Corp., Onan Div., 496 F.2d 969, 972 (6th Cir. 1974).

[*6]

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During the inspection, the compliance officers saw many Weyerhaeuser employees working without personal hearing protectors. n4 The compliance officers took noise level readings as close as possible to each employee's hearing zone without interfering with his work. Two sets of noise readings were taken for each employee. The low readings represent the recorded noise levels when the operated machines were idling. The high readings show sound levels when the machines were processing. n5 The duration of the readings lasted from two to five minutes per employee, depending upon whether the sound level was relatively constant or fluctuating. Operations of these machines, whether processing or at idle, were continuous during the periods pertinent here.

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n4 They saw other Weyerhaeuser employees who were wearing ear protectors. Matters concerning these employees are not before us on review. See note 12, infra. Respondent offered general testimony that in areas where it determined noise levels to be excessive it required employees to wear ear protectors. But it does not appear that Weyerhaeuser's witnesses were testifying from direct observation of the employees seen by the compliance officer. Accordingly we are not persuaded that the compliance officer's testimony has been adequately rebutted. We also note that respondent's witness confirmed that one employee was not wearing ear protectors (the operator in the LeTourneau 2963 cab).

n5 See pp. 8-9, infra.

[*7]

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The compliance officers proceeded to determine how long each employee was subjected to these noise levels either by asking each employee, usually in the presence of a Weyerhaeuser representative, or by asking the representative, or both, how long the employee worked in his area, exclusive of lunch breaks and other periods away from his work station. The employees consistently stated that they were at their work stations for at least seven or seven and one-half hours per day. Weyerhaeuser's safety and health coordinator testified that the usual employee shift is nine hours long, and that employees have two 15-minute breaks and a one hour lunch period. He further stated that employees are exposed for seven and one-half hours, including "down time" which he defined to include periods when the machines were not processing but idling.

On review, Weyerhaeuser attacks the statements made to the compliance officers as hearsay. Even if, however, the statements could be characterized as hearsay rather than as admissions (see Huber, Hunt & Nichols, Inc. and Blount Bros. Corp., BNA 4 OSHC 1406, 1409, CCH [*8] 1976-77 OSHD para. 20,837 at 25,012 (No. 6007, 1976) and A.J. McNulty & Co., Inc., BNA 4 OSHC 1097, 1099 n.5, CCH 1975-76 OSHD para. 20,600 at 24,647 n.5 (No. 2295, 1976)), n6 the statements were corroborated by the testimony of Weyerhaeuser's safety and health coordinator, by the fact that the employees' answers are consistent with the known circumstances of their work periods, and by the consistency of their responses. This case, therefore, falls within our decision in B & K Paving Co., 11 OSAHRC 444, BNA 2 OSHC 1173, CCH 1974-75 OSHD para. 18,570 (No. 59, 1974).

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n6 See also Stephenson Enterprises, Inc., BNA 4 OSHC 1702, 1703, 1705, CCH 1976-77 OSHD para. 21,120 (No. 5873, 1976).

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We are therefore satisfied that, under the circumstances of this case, the compliance officer's method of determining the total amount of time n7 that each employee spent at his work station was reliable. As to the sound level measurements, we have said on many occasions that "spot" or "grab" samples may constitute reliable [*9] measurements if it is reasonable to infer that the measured sound levels are representative of sound levels for the pertinent duration of time (here seven or seven and one-half hours). Sun Shipbuilding & Drydock Company, 11 OSAHRC 171, BNA 2 OSHC 1181, CCH 1974-75 OSHD para. 18,537 (No. 268, 1974); WRP Lumber Co., CCH 1976-77 OSHD para. 20,892, BNA 3 OSHC 1815 (No. 4612, 1975); Reynolds Metals Co., BNA 3 OSHC 2051, CCH 1975-76 OSHD para. 20,447 (No. 1551, 1976). n8 The facts before us generally fall well within those cases, and this is so whether the high readings are representative or not. n9 The lower readings were taken when the machines were not processing wood and when the sound levels were lowest. Yet, in most cases, the lower levels were also excessive. For example, in one instance, an employee was subjected to at least 95 dBA n10 (when his machine was idling) for the 7.5 hours he was at his station. By interpolation, the permissible exposure is approximately 90.5 dBA. n11 Accordingly, the subitems of items one and eight (see pages 8 and 9) where the lower readings exceeded the maximum permissible levels, are affirmed. n12 Concerning the remaining subitems, [*10] however, the lower readings were at or below the maximum permissible sound level for seven and one-half and seven hours, 90.5 and 91 dBA respectively. In such cases, it is important here to know the duration of higher sound levels that occur when the machines are processing. Yet, the record does not reveal how long the machines were operating at high levels. Accordingly, the items must be vacated in part. We do not accept the Secretary's advice in penalty assessment, however. The complainant proposed penalties of zero in number 1758 and $80 in number 1231. We do not think that a penalty is appropriate for either item. Our dispositions of the various subitems of items one and eight are as follows:

No. 1231
	dBA levels		Permissi-	Permissible
	when machines		ble dBA	duration
Employee	idle/operating	Duration	over time	at idle	Disposition
1. LeTourneau	90/102	7.5	90.5	8	Vacated
2963 cab
2. No. 1 head
sawyer
in no. 1 sawmill	95/100	7.5	90.5	4	Affirmed
3. No. 2 tail
sawyer
in no. 1 sawmill	98/106	7.5	90.5	2.6	Affirmed
4. No. 2 head
sawyer
in no. 1 sawmill	95/102	7.5	90.5	4	Affirmed
5. No. 3 head
sawyer
in no. 1 sawmill	95/102	7.5	90.5	4	Affirmed
6. No. 4 side
operator
on no. 3 edger in
no. 1 sawmill	93/97	7.5	90.5	5.3	Affirmed
7. No. 3 gang
edgerman
in no. 1 sawmill	95/100	7.5	90.5	4	Affirmed
8. Gangsaw operator
in no. 1 sawmill	92/97	7.5	90.5	6	Affirmed
9. Barkerman
in no. 2
sawmill	88/96	7.5	90.5	8+	Vacated
10. Cutoff
sawyer in
no. 2 sawmill	92/97	7.5	90.5	6	Affirmed
11. No. 1 unstacker
in no. 2 sawmill	88/94	7.5	90.5	8+	Vacated
12. No. 2 unstacker
in no. 2 sawmill	85/92	7.5	90.5	8+	Vacated
13. No. 3 grading
station in planer
mill (1 employee)	92/98	7.5	90.5	6	Affirmed
14. Main chain
area in
planer mill (3
employees)	88/94	7.5	90.5	8+	Vacated
15. No. 3 ripsaw
area
in planer mill (1
employee)	92/102	7.5	90.5	6	Affirmed

[*11]

No. 1758
	dBA levels		Permissi-	Permissible
	when machines		ble dBA	duration
Employee	idle/operating	Duration	over time	at idle	Disposition
1. Operator of 988
Cat log unloader in
high defect yard	95/112	7-7.5	7 hrs.	4	Affirmed
2. Operator of 950
Cat log unloader at
green end of plywood			91 for
mill	96/111	7-7.5	7 hrs.	3.5	Affirmed
3a. Lathe spotter at
green end of plywood
mill	92/98	7.5	90.5	6	Affirmed
3b. Clipper (lower)
operator at green end
of plywood mill	92/98	7.5	90.5	6	Affirmed
3c. Clipper
spotter at
green end of plywood
mill	92/96	7.5	90.5	6	Affirmed
4a. Dryer feeder
(upper)
at the dry end of the
plywood mill	91/93	7.5	90.5	7	Affirmed
4b. Dry section
feeder at
dry end of
plywood mill	93/94	7.5	90.5	5.3	Affirmed

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n7 The duration need not have been continuous. Sun Shipbuilding & Drydock Co., 11 OSAHRC 171, BNA 2 OSHC 1181, CCH 1974-75 OSHD para. 18,537 (No. 268, 1974).

n8 See also Weyerhaeuser Co., 10 OSAHRC 791, BNA 2 OSHC 1152, CCH 1974-75 OSHD para. 18,468 (Nos. 2116 & 2250, 1974).

n9 On review, complainant contends that Weyerhaeuser's own readings corroborate his own. In view of our assessment of the evidence, we need not resolve the question.

n10 When the machine was processing, noise levels reached 100 dBA.

n11 On interpolation, see generally the lead opinion, and footnote 5 of the concurring opinion, in Sun Shipbuilding, supra, note 7. All interpolations used in this opinion are derived from the graph in Sun Shipbuilding and are close approximations. The Commission's official reporter does not accurately reproduce that graph. For clarity and easy reference a copy of the graph is attached as appendix A.

n12 On review, Weyerhaeuser argues that vacation of these items is compelled by the Commission's decision in Weyerhaeuser Co., supra, note 8. Respondent views this case as establishing the principle that "[i]nstantaneous grab samples . . . taken . . . in a work environment of fluctuating noise fail, as a matter of law, to establish a violation of the noise standard." (Footnote omitted). In light of Sun Shipbuilding and subsequent cases, it should be clear that the Commission has not viewed the cited decision so broadly. And indeed, our decision there does not support respondent's reading. In our view, that case reflected only an application of the principle that "grab" or "spot" samples must be representative. There we vacated a citation which alleged exposure to between 97 and 102 dBA because there was insufficient evidence that the measured noise levels continued for an excessive period of time. That deficiency does not appear here.

Weyerhaeuser also defends on the ground that it has complied with subparagraph (1) of section 1910.95(b). Assuming arguendo the correctness of the contention, it is nevertheless immaterial. On review, Weyerhaeuser is alleged to have violated subsection 1910.98(a), and it is only that allegation that is before us for review. Cf. Sun Shipbuilding, supra note 7.

Finally, Weyerhaeuser argues that the evidence is deficient because "[n]o attempt was made to combine the fluctuating readings as required by the noise standard['s] integrating formula." The point is not material here. Excessive noise over periods of 7.0 or 7.5 hours is clearly demonstrated, and resort to the cumulation formula is therefore unnecessary.

[*12]

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The Saw Guarding Matters

On review, the Secretary urges that item 9 of the citation for a "non-serious" violation in docket no. 1231 (alleging that four radial saws lacked lower blade guards), and the citation for "serious" violation number one in no. 1758 (alleging that three radial saws lacked such guards) should have been affirmed. n13 Judge Watkins held that 29 CFR § 1910.213(h)(1) was invalid, and accordingly vacated. Much of the Judge's holding must be rejected under Noblecraft Industries, Inc., BNA 3 OSHC 1727, CCH 1975-76 OSHD para. 20,168 (No. 3367, 1975), wherein the Commission reversed Judge Watkins, and held that the standard was valid. We consider here only matters not covered by Noblecraft.

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n13 The record shows that all of these saws were unguarded and were available for use by employees. Also, some of the saws had been recently used. The use was indicated by the presence of fresh saw dust. Some were plugged into electrical outlets, and one was seen in actual operation. Because this evidence is ample to satisfy the Secretary's burden of proof (Thunderbird Coos Bay, Inc., BNA 3 OSHC 1904, 1906, CCH 1975-76 OSHD para. 20,340 at 24,262-24, 263 (No. 2270, 1976); see Konkolville Lumber Company, Inc., BNA 3 OSHC 1796, 1798, CCH 1975-76 OSHD para. 20,224 (No. 2437, 1975); Huber, Hunt & Nichols, Inc. and Blount Bros. Corp., BNA 4 OSHC 1406, 1408, CCH 1976-77 OSHD para. 20,837 at 25,011 (No. 6007, 1976)), only respondent's affirmative defenses remain to be considered.

[*13]

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On review, n14 Weyerhaeuser defends on the ground that the use of guards now available, meeting the requirements of the standard, would create greater hazards than the hazards which the standard is designed to alleviate. The defense is properly urged, for the Commission has not read section 5(a)(2) so literally as to require a form of compliance that will diminish rather than enhance the safety of employees. Industrial Steel Erectors, Inc., 6 OSAHRC 154, 156, BNA 1 OSHC 1497, CCH 1973-74 OSHD para. 17,136 (No. 703, 1974); Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, CCH 1975-76 OSHD para. 20,250 (No. 7674, 1975). n15 The scope of the defense is, however, narrow. It is not enough that compliance with the literal terms of the standards would create new hazards. Lee Way Motor Freight, Inc., supra. The record must show that: (1) the hazards of compliance are greater than the hazards of noncompliance (id.; Carpenter Rigging & Contracting Corp., 15 OSAHRC 400, 407, BNA 2 OSHC 1544, 1548, CCH 1974-75 OSHD para. 19,252 (No. 1399, 1975); (2) that alternative means of protecting employees [*14] are unavailable (G.A. Hormel & Co., 12 OSAHRC 623, BNA 2 OSHC 1282, CCH 1974-75 OSHD para. 18,685 (No. 1410, 1974) (order on petition for reconsideration); Cimpl Packing Co., 14 OSAHRC 153 n.2, BNA 2 OSHC 1436, 1437 n.2, CCH 1974-75 OSHD para. 19,127 (No. 1987, 1974)); n16 and (3) that a variance (waiver) application under section 6(d) of the Act would be inappropriate (G.A. Hormel & Co., 11 OSAHRC 725, BNA 2 OSHC 1190, CCH 1974-75 OSHD para. 18,685 (NO. 1410, 1974)). The record, however, does not establish these necessary elements.

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n14 Respondent no longer pursues the theory that the standard is invalid because it is so irrational as to violate the due process clause of the Fifth Amendment to the Constitution, nor does it claim any longer that the standard was invalid under section 6(a) because the Secretary failed to determine that § 1910.213(h)(1) would not result in improved safety or health for specifically designated employees. Accordingly, we consider those objections to have been waived, and do not pass upon them.

n15 Both Weyerhaeuser and Judge Watkins placed heavy reliance on the last sentence of section 1910.212(a)(2): "The guard shall be such that it does not offer an accident hazard in itself." Judge Watkins held that section 1910.213(h)(1) is invalid because "any guard now known and meeting the requirements of [1910.213(h)(1)] would 'offer an accident hazard in itself' under 29 CFR 1910.212(a)(2)." J.D. at 60. The contention is unsound. Section 1910.212(a)(2) neither imposes a limitation on the rulemaking powers of the Secretary of Labor, nor does it provide an affirmative defense to avoid guarding requirements. Rather, it has been construed to impose an affirmative duty to use or devise guards that do not present hazards in themselves. Buckeye Industries, Inc., BNA 3 OSHC 1837, CCH 1975-76 OSHD para. 20,239 (No. 8454, 1975); House Wood Products Co., BNA 3 OSHC 1993, CCH 1975-76 OSHD para. 20,386 (No. 11167, 1976); Acme Glass Co., BNA 3 OSHC 2087, CCH 1975-76 OSHD para. 20,488 (No. 3282, 1976).

n16 Thus, see e.g., Continental Kitchens, Inc., BNA 3 OSHC 1859, 1860, CCH 1975-76 OSHD para. 20,249 (No. 2920, 1975), a saw-guarding case in which employees were protected from flying wood chips by the use of personal protective equipment.

[*15]

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Not guarding the sides of the lower exposed portions of the seven radial saw blades exposed Weyerhaeuser's operators to a significant hazard. An employee's left hand or fingers could inadvertently contact the spinning sides of the blades and be thrust down and out toward the leading or cutting edge. If the employee's hand hit only the side of the leading edge, amputation of a finger tip could occur. If it contacted the leading edge itself, the employee would suffer amputation of his fingers, hand, or arm.

The hazards which compliance would engender have not been shown to be greater than those against which the standard is directed. This is so even if we were to accept without qualification the testimony of respondent's expert on radial saws, H. Arch McKeever. Mr. McKeever testified that if, in order to prevent the guard from being raised before the stock is contacted, a slot is cut in the fence or backstop, shept pieces of wood can be lodged between that gap and the saw, thereby jamming the saw. He also testified that short pieces could become caught between the blade and the guard, and thus cause [*16] the saw to buck and to throw wood pieces toward the rear of the saw. Mr. McKeever also thought that the guards restrict vision, and cause the operator not to be in the best position to operate the saw. This, however, does not establish the greater serverity of the resulting hazards. Moreover, we note that the jamming problem could perhaps be eliminated if the guard rode over the fence, n17 and that a transparent guard would alleviate the visibility problem. n18 Also it was not shown that employees could not be protected from ricochets by alternative means, such as personal protective equipment. See note 16, supra. Finally, and more importantly in our view, this is a clear case in which a variance application would be appropriate. Thus, Mr. McKeever testified that Weyerhaeuser had devised what he considered to be superior, alternative methods of guarding radial saw blades. He stated that Weyerhaeuser now uses a transparent guard that moves with the saw and brushes the operator's hands away from the blade. It also developed a device which holds the work piece so that the operator's hands do not come near the blade, "nor can he get his hand within the enclosure where the saw [*17] operates." (At the time of the hearing, this latter system had not reached a high enough stage of development to put into operation in Weyerhaeuser plants). Mr. McKeever testified that he had asked Weyerhaeuser's legal department to apply to the Secretary for a variance, but he did not know whether such an application was ever filed, and the record before us does not indicate that a variance has been requested or denied. Under these circumstances, Weyerhaeuser's greater hazards defense has not been established.

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n17 If the guard rode over the fence, the leading edge would be momentarily exposed. During the hearing, Weyerhaeuser laid much emphasis on this fact. We do not. The brief hazard of compliance is obviously not greater than the hazard of not guarding the blade at all.

n18 Though Mr. McKeever thought that a transparent plastic guard would become dirty, and that the operator would attempt to clear the plastic before the saw guard came to a complete stop, the record, however, shows that this problem would be solved by the use of a brake.

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We must dispose of two additional matters. At the hearing, it appeared that one of the saws cited was an inverted swing cut-off saw, and that the applicable subparagraph of 29 CFR § 1910.213 is (g)(4), rather than (h)(1). The parties and the Administrative Law Judge recognized that this error was of no practical significance because the substantive requirements were essentially identical. Accordingly, we amend subitem 4 of item 9 of the citation for a "non-serious" violation in no. 1231 to conform to the evidence concerning § 1910.213(g)(4). Copelan Plumbing Co., 9 OSAHRC 425, BNA 2 OSHC 1007, CCH 1973-74 OSHD para. 18,074 (No. 867, 1974); see D. Federico Co., BNA 3 OSHC 1970, 1972-73, CCH 1975-76 OSHD para. 20,422 (No. 4395, 1976); cf. Kaiser Aluminum & Steel Corp., BNA 4 OSHC 1162, CCH 1975-76 OSHD para. 20,675 (No. 3685, 1976). On review, the Secretary also contends that Judge Watkins erred in denying his repeated motions to amend the same item 9 to characterize the alleged violation as "serious" within the meaning of section 17(k) of the Act.

The first of these motions was made at the commencement of the hearing. The [*19] motion should have been granted. It is a familiar rule of administrative law that so long as fair notice is afforded, administrative pleadings are easily amended. Cf. National Realty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973). Weyerhaeuser cannot be said to have lacked fair notice of the matters at issue, for it had already come prepared to try the "serious" characterization of the saw guarding citation in no. 1758, and indeed as the hearing unfolded it became quite clear that no distinction had been drawn between the two groups of saws in issue. In any event, the parties actually litigated the issues relating to the possible consequences of noncompliance. It is clear that Weyerhaeuser knew that none of the four saws in no. 1231 were guarded. The motion to amend is therefore granted. We further find that the two elements set forth in section 17(k) are established by the record. See generally, Brady-Hamilton Stevedore Co., BNA 3 OSHC 1925, CCH 1975-76 OSHD para. 20,342 (No. 2265, 1976).

In nos. 1231 and 1758, the Secretary proposed penalties of $200 and $900 respectively. In view of the respondent's good faith efforts to [*20] devise suitable guarding devices, its large size, and the severity of a possible injury, we find complainant's proposals to be too high. Instead, we assess a single penalty of $500.

Unguarded Power-Transmission Apparatus

In his citation for "serious" violation number three in docket no. 1231 the Secretary alleged that Weyerhaeuser had failed to comply with 29 CFR § 1910.265(c)(22) because it had not guarded certain apparatus which transmit power at various pieces of machinery. Specifically, the citation consisted of fifteen subitems alleging unguarded gear, chain, and belt drive mechanisms and unguarded shaft ends and couplings at various locations. n19 Judge Watkins vacated all 15 subitems on the basis that the Secretary failed to prove that Weyerhaeuser's employees were exposed to a hazard from the unguarded equipment. For the reasons given below we conclude that the Judge acted properly in vacating subitems 1, 5, 11, 13, and 15. We reverse and affirm the remaining subitems.

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n19 The cited standard applies specifically to sawmills and provides that "[t]he construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements of § 1910.219." The referenced standard governs mechanical power-transmission apparatus generally; paragraphs (e) and (f) thereof essentially require the enclosure of drive mechanisms. Subparagraph (c)(4)(i) states that projecting shaft ends "shall not project more than one-half the diameter of the shaft unless guarded by non-rotating caps or safety sleeves." Subparagraph (i)(2) provides that "[s]haft couplings shall be so constructed as to present no hazard from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will, however, be permitted where they are covered by safety sleeves or where they are used parallel with the shafting and are countersunk or else do not extend beyond the flange of the coupling."

Paragraph (c) also provides exemptions from the guarding requirements for belts, pulleys, and shafting when certain conditions exist. Weyerhaeuser argues that these exemptions are applicable, but it failed to adduce any evidence to show that it had satisfied the conditions precedent. Weyerhaeuser has the burden of proof on this issue. Stephenson Enterprises, Inc., supra note 6.

[*21]

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Compliance officer Richard Jackson observed eight locations at which drive mechanisms consisting of gears, sprockets, and chains were completely unguarded. The chain drive at issue in subitem 1 is the gear and chain drive for a bark conveyor located in the log yard. There was a large amount of debris, primarily bark and small pieces of wood, piled next to the gears and chain. The compliance officer testified that an employee could easily climb this pile and thereby walk directly beside the drive mechanism. However, he did not describe where employees were working in relation to this drive mechanism and even assuming employees did work in the area he did not indicate that they would ever have reason to climb the debris pile.

Subitem 2 concerns a gear and chain drive extending partly above and partly below floor level and situated within a doorway such that part of the door had been cut away on the bottom in order to close over the gear. This doorway is the only access to controls used by one of Weyerhaeuser's sawyers, and during his inspection the compliance officer observed an employee open the [*22] door and walk past the gear.

Two chain drives and an endshaft on an edger machine (subitems 3 and 4) are located approximately 10 feet from the operator's work station. Weyerhaueser's plant engineer stated that these drives are not accessible to the operator because they are blocked by other machinery. However, the Secretary's rebuttal witness, a former employee who had retired as an edger operator on June 17, 1972 shortly before the inspection, testified that the drive machanisms are periodically lubricated while the edger is in operation. In addition, occasionally pieces of wood which have become stuck are removed from the area around the chain drive in subitem 3 during operation. This chain is approximately at waist height. A guard had been installed at one time but thereafter had become dislodged and was not replaced. Subsequent to the inspection the drives were guarded. n20

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n20 Weyerhaeuser argues that the former employee was not a credible witness and that his testimony is not probative of the conditions existing during the inspection because he was not employed at that time and did not participate in the inspection.

We do not think the employee's testimony can be rejected on that basis; we note he retired only three days before the inspection. The witness was clearly testifying from first-hand experience with the machinery in question and there is nothing in the record to show that he was biased or unreliable as a witness. He further stated without contradiction that the conditions as to guarding were unchanged from the time the guard was no longer in place until the time he retired. In the circumstances his testimony is reliable as to the conditions existing at the time of the inspection.

[*23]

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With respect to subitem 6, the evidence as to employee exposure is that two employees were observed at work stations within five feet of an unguarded chain drive at a resaw, and while at their work stations they were in motion. The sprocket and chain drive at issue in subitem 8 is located adjacent to a walkway which gives access to an elevated area. Subitem 9 involves another chain and sprocket drive approximately 36 inches high; the compliance officer testified without rebuttal that the employees working in the area could in the course of their work inadvertently place their hands in the unguarded mechanism. He also observed employees on a walkway extending past the chain drive for a stamper machine at issue in subitem 14; it was necessary to step around the stamper in order to use the walkway.

The compliance officer also observed partial guarding at a planer; a sprocket and chain infeed drive was exposed. He described this condition as "fairly close" to workmen, and he observed as many as five employees moving in and out of the area (subitem 12). He also observed incomplete guarding of the chain [*24] drive at another planer (subitem 13) and opined that "different" employees would be exposed. However, he did not identify the locations of these employees or specify their movements.

By subitems 5 and 11 the Secretary alleged unguarded couplings and by subitem 15 he alleged unguarded couplings and an unguarded endshaft. As to subitems 5 and 15 the Secretary's proofs are only that the protruding bolts and nuts at the couplings and the endshaft which protruded a length of 12 inches were hazardous; he did not show the proximity of the couplings and endshaft to employees or to work stations nor did he adduce testimony concerning any employee movements in relation to the allegedly hazardous apparatus. Similarly, the compliance officer stated the coupling at issue in subitem 11, which was part of a transformer, was accessible to maintenance employees, but he did not say that he observed any such employees in proximity to the coupling or the transformer. Nor did he indicate that the transformer or coupling ever required any maintenance. He also conceded that the transformer was located in a "remote" area.

Subitem 7 involves a row of 29 fans each powered by a multiple V-belt drive [*25] connecting an electric motor to the fan's wheel. The compliance officer observed that these belt drives were located directly adjacent to a walkway and were unguarded along the walkway. Weyerhaeuser's plant engineer agreed and admitted that an operator could be exposed to all 29 fan drives. Lastly (subitem 10), the compliance officer observed employees feeding a Boulter saw in the area of an unguarded combination belt and chain drive. He characterized the conditions as "very close quarters in this area."

The compliance officer further testified that a hand or other part of the body can be caught in the incoming nip or pinch points of the chain and other drive mechanisms and that such an occurrence usually causes amputation. A rotating coupling or endshaft can grab an employee's clothing, and if the clothing does not rip free the employee could become entangled in the equipment. He knew of instances at other plants where such entanglement had resulted in death.

Weyerhaeuser did not present specific testimony as to any of the alleged violative conditions with the exception of subitems 3, 4, and 7. Its plant engineer testified generally, however, that because the locations involved [*26] were dispersed widely through several separate buildings, it would be unlikely that any one machine operator would be exposed to more than one subitem except for the edger operator. He also stated that to his recollection only one subitem, no. 7, was located near or adjacent to a walkway; in his opinion employees who are not operators could conceivably pass by or get into the areas of the other machinery but would not be on conventional walkways or within their normal work responsibilities if they did so.

In his decision to vacate Judge Watkins considered the Secretary's evidence to be vague and indefinite, and he found that with the exception of subitem 2 the Secretary had failed to adduce evidence of any employees near any of the machinery in the course of their regular duties "or otherwise." He further stated that as to those subitems involving walkways, including subitem 2, the Secretary's proofs were deficient because the compliance officer did not observe the walkways in use and because no showing was made of the distance from the walkways to each machine. Lastly, Judge Watkins found from the plant engineer's testimony that no employees in the course of their duties or otherwise [*27] would customarily go "anywhere near" the allegedly hazardous locations with the exception of those in subitems 3 and 4, which he found to be guarded from access by other machinery.

Subsequent to Judge Watkins' decision we held that the determination of employee exposure would be based on a rule of reasonably predictable or foreseeable employee access to hazardous conditions. The Secretary may but is not required to show that employees were actually exposed to the hazard either during or prior to the inspection. It is sufficient that hazardous conditions are accessible to employees such that they can reasonably be expected to come into the zones of danger during either their assigned working duties or activities incident thereto such as ingress to and egress from the jobsite. A. Munder & Son, Inc. and Robert Catino, Inc., BNA 4 OSHC 1593, CCH 1976-77 OSHD para. 21,100 (Nos. 1858 & 1860, 1976); Gilles & Cotting, Inc., BNA 3 OSHC 2002, CCH 1975-76 OSHD para. 20,448 (No. 504, 1976). We therefore agree with Judge Watkins' decision to the extent that he would consider customary, i.e. reasonably foreseeable or predictable, employee movements to be relevant. We do not, [*28] however, agree with his evidentiary findings on this question for in our view in most instances those findings are not supported by the evidence of record.

We consider the Secretary's proofs to be vague and indefinite only as to subitems 1, 5, 11, 13, and 15. As to subitems 5 and 15 the Secretary's evidence not only fails to indicate any employees who could be expected to have access but also fails to show by what means access could be achieved. With respect to subitems 1, 11, and 13 the only evidence presented by the Secretary is the compliance officer's unsubstantiated opinion that employees could be exposed. To conclude that employees are likely to approach the machinery at issue in these subitems would be speculative on this record. We therefore find that a reasonable or foreseeable predictability of access has not been established.

On the other hand, the compliance officer identified employees in the areas of the machinery at issue in subitems 6, 9, 10, and 12, and his testimony as to these subitems indicates how employees could have access. As to subitem 6 where employees were observed at work stations within five feet of the apparatus and were in motion they clearly [*29] were within the zone of danger. We reach the same conclusion concerning the other subitems of this group for in the case of subitem 9 it is undisputed that employees were working sufficiently close for accidental contact and as to subitems 10 and 12 employees were performing duties or were in motion in close proximity to the unguarded apparatus. See Circle Industries Corporation, BNA 4 OSHC 1724, CCH 1976-77 OSHD para. 21,119 (No. 4356, 1976); Hayden Electric Services, Inc., BNA 4 OSHC 1494, CCH 1976-77 OSHD para. 20,939 (Nos. 4034 & 4147, 1976); Underhill Construction Corporation, BNA 4 OSHC 1146, CCH 1975-76 OSHD para. 20,631 (No. 2516, 1976). Similarly, the evidence as to subitems 3 and 4 is that employees occasionally perform maintenance on the edger chain drives while the edger is in operation. Access to the zone of danger is thereby proven.

With respect to subitems 2, 7, 8, and 14 involving walkways Judge Watkins' view of the evidence is obviously in error for in two instances (subitems 2 and 14) the compliance officer observed employees using walkways which were partially obstructed by the machinery at issue. In any event, under our access rule the Secretary [*30] need only show that employee entry into a zone of danger is reasonably predictable or foreseeable.

In this regard, Weyerhaeuser's witness admitted that the walkway alongside the fan drives in subitem 7 provided a means of access thereto, and it is undisputed that the chain drive at issue in subitem 8 is adjacent to a walkway which furnishes access to another area of the plant. In both instances these walkways were shown to be available for employee use and in proximity to the unguarded apparatus. In the absence of evidence to the contrary the reasonable conclusion is that employees would use these walkways and thereby approach the unguarded machinery. n21

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n21 We do not as does Judge Watkins read weyerhaeuser's evidence to show the contrary. Its plant engineer gave general opinion testimony concerning the location of walkways and the circumstances under which employees might approach the unquarded machinery. We do not consider testimony of this nature to be sufficient to rebut the compliance officer's actual observations of subitems 2, 7, 8, and 14. Moreover, as to subitem 7 the engineer's testimony is corroborative. As a general matter it is also corroborative of the compliance officer's testimony on the other subitems with respect to exposure of machine operators and employees at work stations. Therefore Judge Watkins clearly erred in concluding as he did that Weyerhaeuser's evidence shows access to be unlikely. See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

[*31]

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We turn now to assessment of an appropriate penalty. Employees had access to unguarded or incompletely guarded power transmission apparatus at a considerable number of locations but the actual number of employees having access is not shown on the record and by Weyerhaeuser's testimony would be limited. The likelihood of accidental contact varies for in some instances employees were shown to perform normal work duties in proximity to machinery whereas with respect to those items involving walkways the record does not indicate the frequency with which employees could be expected to use the walkways. On the other hand, it is undisputed that if an accident occurs serious injury would be likely and even death could result. n22 We consider the gravity of the violation to be moderate.

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n22 Weyerhaeuser argues that a serious violation was not proven because the Secretary failed to show a substantial probability that an accident would occur. Such proof is not required. Brady-Hamilton Stevedore Co., supra.

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Considering also Weyerhaeuser's large size as well as the fact that the record does not show any prior violations of this standard, a penalty of $300 is appropriate. n23

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n23 Weyerhaeuser argues also that the Secretary should not have grouped the 15 subitems together into a single citation inasmuch as different machines, processes, and employees as well as different provisions of the pertinent standards are in issue. And by his decision Judge Watkins suggested that the Secretary lacked statutory authority to group in this manner. The Judge reasoned that such action results in a disproportionately low penalty to Weyerhaeuser as compared with a smaller employer charged with a single serious violation.

In the case before us, of course, there is no showing that Weyerhaueser is prejudiced in its defense either with regard to the citation or the penalty proposed. Weyerhaeuser's employees do not oppose the Secretary's action, and he does not ask that separate violations be found. It is therefore unnecessary to consider the arguments advanced by Weyerhaeuser and by the Judge. In any event, our duty to assess penalties appropriate in the circumstances is sufficient to ensure fairness to small employers.

[*33]

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Unstable Lumber Piles

Item 23 of the citation for "nonserious" violation in docket no. 1231 alleged that Weyerhaeuser's lumber storage area was not in compliance with 29 CFR § 1910.265(c)(27)(iii). n24

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n24 This standard requires that "[p]iles of lumber which have become unstable shall be immediately made safe, or the area into which they might fall shall be fenced or barricaded and employees prohibited from entering it."

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The pertinent facts are that lumber is dried in kilns in stacks between 10 and 12 feet high. Once dried, the lumber is taken to a planer but to do so it is necessary to unstack the lumber and sort it. This operation is performed in the unstacker building. The piles are unstacked mechanically and once unstacked the lumber is handled by an overhead (bridge) crane. Lumber with broken ends or which for other reasons cannot be processed through the planer is restacked by the crane in separate piles in one area of [*34] the building near a trim saw. This lumber will thereafter be brought to the saw for trimming.

The compliance officer saw one such pile which had already fallen over scattering lumber over about a 10-foot area of the floor. He considered two other piles to be very unstable. These piles were located about 20 feet from the trim saw. Some of the piles he saw were over 12 feet high. Photographic evidence shows each pile to be in very close proximity to the next; adjacent piles appear virtually to touch one another in some places.

Because the crane cannot be used to restack fallen lumber this operation must be performed manually. Workmen will enter the storage area for this purpose. Otherwise they are not supposed to go into the area. However, Weyerhaeuser's plant manager admitted that the trim saw operator could walk into the area where the lumber is stacked; he stated that there are no barriers to prevent the operator from doing so, and he did not know whether or not the area was posted with warning signs.

The standard requires either the immediate securing of unstable piles or prohibition of employee entry into the hazardous area. Weyerhaeuser argues that it is in compliance [*35] with both requirements because access is restricted to employees who enter for the sole purpose of restacking fallen piles. Judge Watkins agreed and vacated the citation, stating that the only employees to enter do so to stabilize unstable piles. We reverse.

On the facts it is obvious that the first requirement of the standard has not been satisfied because one stack had already fallen while two others remained in an unstable condition. It is equally clear that entry by an employee, the trim saw operator, was not precluded as required by the second part of the standard.

Moreover, in the circumstances we think it more likely than not that he would have occasion to enter the area. The purpose of the area is to furnish the lumber which the saw operator is required to process. The area therefore is functionally related to the operator's normal work duties. See Public Improvements, Inc., No. 1955 (Nov. 23, 1976).

Moreover, we would affirm the citation even accepting Weyerhaeuser's argument that access is restricted to authorized employees who enter to restack fallen piles. Contrary to Judge Watkins' decision, the record does not show that these employees would stabilize [*36] existing unstable piles. The record, however, does show that the latter piles were in close proximity to one another and to the pile which had fallen. Accordingly, while restacking a fallen pile employees would be exposed to the hazard of collapse of an existing unstable pile.

The Secretary proposed a penalty of $200 for this violation. The unstable piles could easily cause substantial injury but within a rather limited area. The record does not show the number of employees who would be exposed. Considering also the factors of size and prior history discussed previously, we find the proposed penalty to be appropriate.

Unguarded Platforms

Item 1 of the citation for "nonserious" violation issued in docket no. 1758 (the September inspection) alleged that five elevated platforms did not have guardrails as required by 29 CFR § 1910.23(c)(1). n25

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n25 This standard in pertinent part requires that "[e]very open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. . . ."

[*37]

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The first alleged platform is the top of a dryer approximately 14 feet high and 14 feet wide. Once or twice a week a dryer tender climbs a stairway to the top and walks out on the surface for a routine inspection which takes about 10 minutes. Once every month this same employee goes on top of the dryer to blow off accumulated dust. This operation requires about one hour. The employee's work duties require him to come within six feet of the edge, but no closer. The dryer was not equipped with a railing.

The second, third, and fourth platforms alleged are respectively an overhead storage area on top of a tool room about eight feet high, an overhead storage area on top of a rest room 11 feet high, and an elevated glue loft about 10 feet above the adjacent floor level. The two storage areas were each situated on opposite sides of a walkway and a ladder led up to each. Both areas were completely unguarded. The glue loft was provided with a handrail except for one side which was open for a length of about 14 feet.

The compliance officer testified that workmen would be exposed to the hazard of a fall [*38] when they went up to each storage area to remove stored material or to place material in storage. He further stated that employees were required to go up to rest room storage area for this purpose and that any employees on the glue loft could possibly fall off the side where the railing was open. Weyerhaeuser presented no evidence as to these three platforms.

The last platform is located at the resaw package lift. The Secretary charged that no guardrail was provided on that side of a platform which adjoins the point at which lumber is brought up by the lift to be taken into the mill. The compliance officer observed this condition on both the June and September inspections. During the June inspection, Weyerhaeuser's representative indicated that the platform had to be used to correct a maintenance problem which occurs in the winter when the lift chains freeze and operate improperly. On the September inspection the compliance officer was informed by the plant engineer that employees go onto the platform to saw off protruding ends of lumber which occasionally create an obstruction when a lumber pile on the lift is brought into the mill. This platform is approximately 22 feet [*39] above ground level.

Weyerhaeuser defended saying that the standard does not apply because areas in issue are not used as working spaces. n26 Judge Watkins agreed that the two storage areas and the glue loft were not work spaces. As to the resaw lift platform, in the Judge's view the evidence did not establish that this platform was in use at the time of the inspection. Lastly, he concluded that the employee on top of the dryer was not exposed to the hazard of a fall. Accordingly, he vacated the citation item in its entirety. We reverse with the exception of the glue loft.

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n26 A "platform" is defined at § 1910.21(a)(4) as "[a] working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment."

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The Secretary's proofs are that employees can and do go up to the two storage areas for the purpose of handling material in storage, and there is no contrary evidence. The preponderance of the evidence therefore shows that these two areas [*40] are used as working space. Accordingly, they are platforms as that term is defined. California Rotogravure Company, 15 OSAHRC 261, BNA 2 OSHC 1515, CCH 1974-75 OSHD para. 19,240 (No. 268, 1975), petition for review docketed, No. 75-1743 (9th Cir., Mar. 27, 1975); accord, Ventre Packing Company, 4 OSAHRC 544, BNA 1 OSHC 1287, CCH 1973-74 OSHD para. 16,475 (No. 396, 1973).

The situation is different with respect to the glue loft for the compliance officer did not identify any particular work duties or activities which might require employees to go up to this area. Nor did he indicate how employees might have access to the loft, for unlike the two storage areas, his testimony does not show that the loft was provided with a ladder n27 or was located near a walkway or working area. In the circumstances his testimony is speculative and we cannot conclude therefrom that this loft is used as a work area within the meaning of the standard. n28

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n27 On review the Secretary properly argues that he may establish his case by reasonable inferences drawn from circumstantial evidence. Okland Constr. Co., BNA 3 OSHC 2023, CCH 1975-76 OSHD para. 20,441 (No. 3395, 1976). He specifically asks us to infer from the existence of an access ladder, in the absence of rebuttal, that employees in fact go up to the platform. On the record before us we cannot draw such an inference with respect to the glue loft.

n28 By vacating this subitem we hold only that the Secretary failed to establish by a preponderance of the evidence that the glue loft was used as a working space. Commissioner Cleary notes that should the glue loft be utilized in the future for the performance of work Weyerhaeuser will, of course, be obligated to provide adequate guardrail protection. Cf. Continental Can Co., BNA 4 OSHC 1541, 1548, CCH 1976-77 OSHD para. 21,009 at 22,257-58 (Nos. 3973 et al., 1976).

[*41]

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The resaw package lift platform, however, is clearly shown to be a working space because it is undisputed that employees go onto the platform to saw off protruding ends of lumber. The compliance officer was so informed during the September inspection, and it is reasonable to conclude, in the absence of evidence to the contrary, that this was the work practice existing at the time of the inspection. n29

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n29 Judge Watkins noted this testimony but misread it. (T 253-54). In his view the Secretary showed only that employees occasionally used the platform during the winter months. He further stated that the compliance officer was so informed during the June inspection rather than the September inspection. Thus he concluded that Weyerhaeuser's statements during the June inspection about use of the platform in previous winter months do not establish a violation alleged to have occurred the following September.

We reject these findings and resultant conclusion for they are plainly contrary to the compliance officer's actual testimony. The statements to the compliance officer during the June inspection concern a maintenance problem which occurs only in the winter. At the September inspection the compliance officer was advised of the usual work practice which requires employees to go into the platform to correct a condition incident to the manner in which the lift is used in the normal production process.

[*42]

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It is also undisputed that an employee regularly performed work on top of the dryer. The question here is whether this employee was exposed to the hazard of a fall. While his duties do not require him to come closer than six feet from the unguarded edge he is in motion and there is no barrier or any sort of warning device between the employee and the edge. Hayden Electric Services, supra; Underhill Construction, supra. In any event, the employee would be exposed at the point where he enters and leaves the stairway.

We therefore affirm the citation as to four of the five alleged platforms. The maximum fall distance is 22 feet and with the exception of the one employee who occasionally works on top of the dryer for short periods of time the record does not show how many employees would be exposed or the duration of their exposure. In the circumstances a penalty of $50 is appropriate.

Accordingly, item 8 of the citation in number 1758 alleging excessive noise is affirmed and item 1 of the citation in number 1231 alleging the same violation is in part affirmed and in part vacated [*43] as indicated herein. No penalties are assessed for either item. The citation for "serious" violation in number 1758 alleging unguarded saws is affirmed and item 9 of the citation in number 1231 for this violation is affirmed as amended herein. An aggregate penalty of $500 is assessed. The citation for "serious" violation in number 1231 alleging unguarded power-transmission apparatus is in part affirmed and in part vacated as indicated herein and a penalty of $300 is assessed therefor. Item 23 of the citation in number 1231 for unstable lumber piles is affirmed and the proposed penalty of $200 is assessed therefor. Lastly, item 1 of the citation in number 1758 alleging unguarded platforms is affirmed with the exception of the glue loft and a penalty of $50 is assessed. The judge's decision is affirmed to the extent it is consistent herewith.

So ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Judge Watkins' disposition of the charges was correct and should be affirmed except for the three matters discussed below:

Noise

(1) The noise violations alleged in item 8 of the Nonserious Citation in Docket Number 1758 and subitems [*44] 2-8, 10, 13, and 15 of item 1 of the Nonserious Citation in Docket Number 1231.

I concur in the affirmance of the noise violations enumerated in the lead opinion since the record as a whole establishes that some of respondent's employees, who were not wearing personal protective equipment, were exposed to impermissible noise levels as specified in that opinion. Although noise readings for a duration of "two to five" minutes would normally be inadequate to establish employee exposure to excessive noise levels, in this case I find the evidence sufficient because the complainant's readings are corroborated by independent readings taken by respondent which were posted by respondent at various localities within its plant. Judge Watkins vacated these charges because he determined that there was insufficient evidence of the duration of time during which each employee was exposed to excessive noise and because of the wide fluctuations in the noise. However, the record shows a minimum 7-hour exposure in each and even if the machines were idling during this time period, the noise levels still exceeded the permissible levels. Consequently I concur with the majority's reversal of the Judge [*45] on these charges.

Power Transmission Guarding

(2) The guarding violations pertaining to power transmissions alleged in subitems 2-4, 6, 9, and 14 of Serious Citation Number 3 in Docket Number 1231.

Judge Watkins vacated Serious Citation Number 3, Docket Number 1231, in its entirety because the evidence was too vague, indefinite, and incomplete to establish that respondent's employees were exposed to the alleged hazard. I agree with his determination except as to subitems 2-4, 6, 9, and 14. The evidence shows with respect to these charges that it was necessary for respondent's sawyers to walk past the unguarded gear and chain drive involved in subitem 2. Respondent's employees lubricated the unguarded equipment cited in subitems 3 and 4 while it was in operation and worked within 5 feet of the machinery involved in subitem 6. As to subitems 9 and 14, respondent's employees were observed in locations within close proximity of the unguarded sprocket and chain drives. Thus, the evidence establishes that respondent's employees were actually exposed to the hazards alleged in these subitems. n30 I agree, however, with Judge Watkins' disposition of subitems 7, 8, 10, and 12 [*46] because there is insufficient evidence to establish that any of respondent's employees were actually exposed to the noncompliant conditions alleged therein. I, therefore, dissent from the majority's affirmance of these subitems.

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n30 My reasons for requiring an actual exposure test are expressed in Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion).

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Lumber Storage

(3) The lumber storage violation alleged in item 23 of the Nonserious Citation in Docket Number 1231.

Judge Watkins vacated item 23 of the Nonserious Citation in item 23 because no employee worked in the "'unstacked storage area' . . . except [for] employees who come in to straighten the uneven piles, and stabilize the unstable piles." As the majority indicates, respondent's employees entered the area to restack fallen piles, not to stabilize existing unstable piles. If the unstable piles had been properly stacked at the outset, the necessity for exposing respondent's employees would have been [*47] eliminated. For this reason, I agree with my colleagues' affirmance of this violation. However, I disassociate myself from what my colleagues "think" about the likelihood of respondent's trim saw operator having occasion to enter the area where the unstable piles of lumber were located. Such speculation is improper n31 and unnecessary for the disposition of this item.

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n31 National Realty and Construction Company v. OSAHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973).

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Except as indicated above I disagree with the lead opinion insofar as it reverses the Judge's action on all additional charges.

I take particular exception from the majority's reversal of the Judge's vacation of the § 1910.213(h)(1) charge. They err in this disposition for several reasons. First, because the standards published at 29 C.F.R. § 1910.213 are unenforceable due to improper promulgation. Judge Watkins pointed this out in great detail and I am in full agreement with his disposition in this regard, both for the reasons contained in his opinion [*48] and the reasons I discussed previously in Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissenting opinion). Secondly, the complainant failed to establish, as required by 29 C.F.R. § 1910.212(a)(2), that respondent's saws could be equipped with guards which did not "offer an accident hazard in [them]selves." Furthermore, assuming the validity of the majority holdings in the three cases cited in footnote 15, supa, in each of which I dissented, vacation is required because respondent established that guarding of its radial arm saws would diminish rather than enhance employee safety. My colleagues reach a contrary conclusion by improperly overturning a credibility determination of the Judge, an action which they take regularly when it is beneficial to complainant. n32 Moreover, a showing of greater hazardousness by complying with the cited standard is all that is required to establish the defense under Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). n33 My colleagues' addition of further requirements is improper for the reasons I have previously stated in my dissenting opinions in Secretary v. Cimpl Packing Company, [*49] 14 OSAHRC 153 (1974), and Secretary v. George A. Hormel and Company, 11 OSAHRC 725 (1974).

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n32 See, e.g., Secretary v. B. C. Crocker d/b/a B. C. Crocker Cedar Products, OSAHRC Docket No. 4387, October 13, 1976; Secretary v. J.D. Blum Construction Company, OSAHRC Docket No. 3543, May 25, 1976; Secretary v. Candler-Rusche, Inc., OSAHRC Docket No. 4675, May 19, 1976; Secretary v. Slyter Chair, Inc., OSAHRC Docket No. 1263, April 8, 1976.

n33 Accord, Secretary v. American Bridge, Division of U.S. Steel Corporation, 12 OSAHRC 22 (1974).

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I also wish to specifically note my disagreement with the two amendments to item 9 of the Nonserious Citation in Docket No. 1231 which are granted by my colleagues. Since a job safety citation is a unique creature of statute, rules of amendment applicable to ordinary civil pleadings do not apply thereto. n34

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n34 Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion); 29 U.S.C. § 658(a).

[*50]

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The majority's affirmance of Judge Watkins' vacation of the portion of item 1 of the Nonserious Citation in Docket Number 1758 which pertains to respondent's glue loft is correct. However, I would go further, as did Judge Watkins, and vacate the entire item. The evidence fails to establish that any of respondent's employees were actually exposed to any hazards resulting from respondent's failure to guard the two overhead storage areas. The remaining objects, respondent's dryer and resaw package lift, are not the types of structures that fall within the purview of 29 C.F.R. § 1910.23(c)(1). See Secretary v. Allis-Chalmers Corporation, OSAHRC Docket No. 5210, April 30, 1976.

Since this decision does not cover all matters discussed in Judge Watkins' decision, his decision is attached hereto as Appendix B and incorporated by reference herein.

APPENDIX A

[Form omitted]

APPENDIX B

DECISION AND ORDER

Robert A. Friel, Associate Regional Solicitor, United States Department of Labor, For the Secretary

Douglas B. M. Ehlke, For Respondent

Robert A. Friel, Associate Regional Solicitor and Jane Ann [*51] McKenzie, United States Department of Labor, For the Secretary, at Consolidated Supplemantal Hearing

Douglas B. M. Ehlke, For Respondent Weyerhaeuser Company in Dockets 1231 and 1758, at Consolidated Supplemental Hearing

George J. Tichy, For Respondent Konkolville Lumber Company in Docket 2437, at Consolidated Supplemental Hearing

GARL WATKINS, Judge:

At Klamath Falls, Oregon the Weyerhaeuser Company operates a very large industrial complex, including sawmills and other facilities for the manufacture of wood products. It cost upwards of one hundred million dollars, covers eighty acres, and employees two thousand people.

In June and September of 1972, a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor, inspected the complex looking for violations of the Occupational Safety and Health Act of 1970, 29 USCA 651, et seq. Different parts of the facility were covered each time. The first inspection, starting June 21, consumed two and onehalf days; the second, on September 19, took two days. Each resulted in the issuance of Citations for violations alleged to be serious and other violations not so considered.

After [*52] Respondent contested certain Citations and Items, there emerged two enforcement actions, Docket #1231 -- June inspection -- alleges two serious violations and six other items. Docket #1758 -- September inspection -- alleges one serious violation and three not serious. In the two cases, with multiple sub-items, there are 157 different acts or omissions alleged to be in violation of the Act. All are set out in full in the Appendix which is attached and made a part of this decision.

Counsel having previously agreed, the cases were consolidated at the start of the first four-day hearing in Klamath Falls on January 16, 1973. The order was they would remain consolidated for all purposes unless one of the parties or the trial judge sought to sever them. Since no action was taken, they remain consolidated.

The record shows compliance with rules of procedure regarding service and posting of various documents. Neither at that hearing nor later did anyone appear and seek to assert a party status.

Two kinds of alleged violations are identical in both groups of citations and therefore can best be discussed together. They involve saw guarding and noise.

SAW GUARDING

All alleged saw [*53] guarding violations are of 29 CFR 1910.213(h)(1) for failure to have a lower blade guard on radial saws. Item 9 of the June Citation for non-serious violations alleges four saws without such guard. The first alleged serious violation in the September group alleges the absence of the guard from three saws.

There is no connection between the saws or their use. There is no evidence one saw is more dangerous without a lower blade guard than any other; or that any one saw is used more than any other. It is therefore interesting to note that in June the total operation of four was not considered to be a serious violation. In September the total operation of three was considered to be serious as that term is defined in the statute.

As the record reflects, shortly after this first hearing I became concerned about the question of the validity of the saw guarding standard and the authority of the Secretary in enacting it. It asked for assistance from counsel in two further conferences on April 26 and August 7, 1973. Transcripts of these are part of the record. All this led to the reopening of the cases, the pre-hearing conference on August 28 and the supplemental hearing on August [*54] 29, 30 and 31 and September 17, 1973.

In the supplemental hearing ten cases were consolidated for the purpose of receiving evidence on the validity of the standards set out in 29 CFR 1910.213 and the legality of the actions of the Secretary in adopting them. These are two of the ten cases. At the conclusion of the session on September 17, an order of severance of the cases was entered, but it left the two here consolidated as before.

Three more cases containing the identical question have since been assigned to me. One has been heard. n1

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n1 Wording of the decision from this point will probably be identical to that covering the same questions in the decisions of the other cases. Footnotes will point out the start and finish of the decisional language repeated in each case.

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Perhaps a few words about the background of the inquiry and the reasons for the scrutiny of the standards having to do with machine guarding requirements for woodworking machinery would be in order.

After hearing the two consolidated Weyerhaeuser [*55] cases (Dockets 1231 and 1758) in Klamath Falls, Oregon on January 16 through 19, 1973, I was in the process of preparing decisions in two other cases involving lineal pine moulding plants in Prineville, Oregon (Consolidated Pine, Docket #945 and Prineville Mouldings, #1045). The only violation charged in one of those cases and the only serious violation alleged in the other was a deficiency in the guard of hand fed crosscut table saws under 29 CFR 1910.213(d)(1). The facts of both cases were almost identical.

The guards went completely around the circular saws except for about six inches at the top of each where the moulding was lowered onto the saws to be trimmed. They are called "trim saws" in the industry.

The superintendents of the two Respondents and of one other similar plant with 30, 30 and 20 years respective experience, and broad knowledge of practices in the industry, testified the use of such saws was uniform in the kind of plants they managed. They had never heard of such saws being guarded as required by the cited standard.

I became curious about how the guarding requirements could be "national consensus standards." This line of inquiry led me to the Seattle Public [*56] Library where I found only the 1971 standard 01.1 -- Revised, of the American National Standards Institute (hereinafter "ANSI", whether reference is to the organization with its present name, or previous names of American Standards Association or United States Standards Association). A telephone call to the New York office of ANSI brought me the source standard -- ANSI 01.1 1954, reaffirmed 1961. (29 CFR 1910.221 lists the source as "AMCI." All parties stipulated this was a misprint. "ANSI" 01.1 1954 R ("reaffirmed") 1961 is correct.)

My curiosity was further aroused by the headnote on Section 4.1 of that standard. This Section includes all substantive material adopted in the OSHA standards in the cases before me. The headnote is:

"NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate [*57] protection. It may be expected that by so doing further progress in saw guarding will be encouraged."

Further inquiries within the ANSI organization, with a few members of the ANSI "01" committee which adopted the standard in 1954 and reaffirmed it in 1961, as well as with Mr. Patrick F. Cestrone, who was Director of the Office of Safety and Health Standards, United States Department of Labor, when 29 CFR 1910.213 was adopted as a national consensus standard; convinced me it would be advisable to obtain additional evidence in some areas having to do with the question of the validity of the woodworking machine guarding sections of the Occupational Safety and Health standards.

Three rather obvious questions having to do with the validity of the standards seemed not to be answered adequately by the record. They were:

(1) The effect of the headnote; which was not adopted by the Secretary and which, in itself, constituted an integral part of the standard,

(2) Whether the ANSI 01 standard is in fact a national consensus standard as defined in the Act. Stated more precisely and in the reverse, the real question here is whether Congress adopted a definition of a national consensus [*58] standard which could be met by the ANSI promulgation as one adopted "under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, . . .", (Sec. 3(9)(1) of the Act)

(3) Whether the standards were "formulated in a manner which afforded an opportunity for diverse views to be considered . . ." (Sec. 3(9)(2) of the Act)

Respondent Weyerhaeuser, and later Konkolville (Docket 2347), squarely raised the question of legality and validity of the standard from every point of approach necessary to test it.

In the meantime, eight more cases (including Konkolville) were assigned to me, all alleging violations of subsections of 29 CFR 1910.213. In some the question of the validity of the standard was raised. In some it was not. Two of the Respondents were not represented by counsel.

Under the circumstances it seemed unconscionable to me to make an extensive inquiry tending to show whether or not the woodworking machine guarding standards were valid in a few cases, and reach whatever decision might be forthcoming; without going into the same question in all the [*59] cases. The two Respondents not represented by counsel had no way of knowing how to raise the defense of invalidity of the standard. Counsel in the others had at best a difficult task in finding out that their clients might be charged under unenforceable regulations.

Consequently, the question was raised at the hearings on the merits in all cases thus far heard. In the case of pro se Respondents, I interpreted their answers to include a defense of illegality and invalidity of the standards. Other counsel were given an opportunity to amend their pleadings. The posture of all cases on which hearings have been held is now such that the question is properly raised in all.

Before proceeding to the three main questions raised, disposition must first be made of certain preliminary matters.

While not arguing the point at length in his briefs, the Secretary has consistently taken the position that neither the Review Commission as an independent or administrative adjudicatory agency, nor I as a judge conducting its hearings, had the right to reopen the cases, call witnesses and consider evidence not produced by counsel for the parties. (Konkolville was not reopened.

The record was [*60] left open for the supplemental hearing.) I have been told repeatedly that I am not (and of course the Review Commission is not) a "court." Apparently the feeling is that a "judicial" adjudicatory body can do what an independent or "administrative" adjudicatory body cannot do.

The question is interesting, and it must be resolved contrary to the Secretary's position. While most authorities refer to the "inherent power" of courts to call witnesses in order to develop the truth in a judicial inquiry; the fact is, it is an "inherent duty." However far able and competent advocacy may cause us to digress from some fundamental principles involved in adjudicatory proceedings under our system, the fact remains that the primary responsibility for developing the record lies with the presiding officer of the tribunal.

Briefly expressed, "courts have inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction." (20 Am Jur 2d, Courts § 79)

Federal Rule of Evidence 614(a) provides

"CALLING AND INTERROGATION OF WITNESSES BY JUDGE

(a) Calling by judge. The judge may, on his own motion or at the suggestion of a [*61] party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by judge. The judge may interrogate witnesses, whether called by himself or by a party.

(c) Objections. Objections to the calling of witnesses by the judge or to interrogation by him may be made at the time or at the next available opportunity when the jury is not present."

McCormick has been rather widely quoted. § 8, pages 12 - 13 provides:

"8. THE JUDGE MAY EXAMINE AND CALL WITNESSES.

Not only may the judge examine witnesses called by the parties, but in his discretion he may also, for the purpose of bringing out needed facts, call witnesses whom the parties might not have chosen to call."

While the Administrative Procedure Act does not specifically provide for the calling of witnesses by a hearing examiner or administrative law judge, numerous cases have upheld this right even over the objections of the parties; usually basing it on 5 USCA 556(c)(9).

Professor Davis in his Administrative Law Treatise takes the position that such power and authority are present under the quoted section of the Administrative Procedure Act; and cites authorities encouraging such [*62] action in agencies having rules similar to our Rule of Procedure 66, as well as those not having such rules. A clear inference from Davis is that there is a greater need for independent action of this kind on the part of an administrative law judge or hearing examiner than in the case of a judge in the judicial branch of the government. He cites Congressional history in the adoption of the APA:

(§ 10.02) ". . . that presiding officers have 'the authority and duty -- as a court does -- to make sure that all necessary evidence is adduced and to keep the hearing orderly and efficient. . . . The trial examiner shall have authority . . . (j) To call, examine and cross-examine witnesses, and to introduce into the record documentary or other evidence.' The courts have often upheld the active role of examiners: 'It is the function of an examiner, just as it is the recognized function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made.'"

Rule of Procedure 66 of the Review Commission provides:

"Rule 66 DUTIES AND POWERS OF JUDGES.

It shall be the duty of the Judge to conduct a [*63] fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay. The Judge shall have authority . . ., to:

(h) . . . order hearings reopened. . . .

(j) Call and examine witnesses and to introduce into the record documentary or other evidence;"

The only United States Court of Appeals case under our Rule 66 which has come to our attention is: Brennan, Secretary of Labor v. OSAHRC and John J. Gordon Company 2nd Circuit, Feb. 25, 1974 -- Docket 73-1729.

The second preliminary question requiring decision is whether Section 6(f) of the Act provides an exclusive method -- the only method which may be used at any time -- to challenge the validity of any standard issued by the Secretary.

The section provides:

SEC.6.(f) "Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the [*64] petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." (Emphasis supplied)

The Solicitor contends that since a specific section of the Act provides a procedure to challenge the validity of a standard if the action is started within sixty days after its effective date, this method is exclusive; even though the Act doesn't say so.

Respondents, on the other hand, take the position that this is a pre-enforcement remedy only, and that the validity of any standard may be challenged in an enforcement proceeding.

Respondents' position seems fundamentally correct. The words underlined above indicate the action is optional, not mandatory. There is no express language indicating this is an exclusive method for attacking a standard. Additionally it would seem that investing "any person who may be adversely affected" with a right to test the validity of a standard, but limiting that right to 60 [*65] days from the effective date indicates an intent on the part of Congress to provide this as a preliminary pre-enforcement procedure, rather than as the sole procedure by which a standard can be challenged.

Respondent Weyerhaeuser quotes from Divesco Roofing & Insulation Company, Docket 345, 1 OSHC 1079:

". . . the legal validity of the standards under the Constitution and Statutes of the United States is necessarily involved in the adjudication of enforcement proceedings, and this function has been reserved for the Commission subject to judicial review."

Admittedly the language of the entire statute could provide a clearer guide to the answer we seek here. Perhaps it is ambiguous or unclear and subject to construction. If so, then it is proper to examine the Legislative History for assistance.

Two such references would seem sufficient. In the final Senate report, No. 91-1282, page 8, as reprinted in the Legislative History, page 148, we find the following:

"Judicial Review of Standards. -- Section 6(f) provides that any person who may be adversely affected by a standard may, within 60 days of its issuance, seek judicial review in an appropriate United States [*66] court of appeals. While this would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding. Uniess otherwise ordered by the court, the filing of the petition would not operate as a stay of the standard." (Emphasis supplied)

In explaining the real need for a twofold system of standards review, Senator Williams stated in a speech on the Senate floor -- and in support of the provision as it was enacted --

"The bill as reported by the committee provides an opportunity for a person affected by the promulgation of a standard to seek judicial review within 60 days of the promulgation of such standard or the standard may also be challenged during an enforcement proceeding.

This is a very broad-scaled judicial review protection that completely meets any industry concerns regarding the ability to contest the standards in court." (Underlining added)

Legislative History, p. 431

Other references in the Legislative History of the Act are to the same effect, but their inclusion would only lengthen [*67] this decision unnecessarily.

Neither the Review Commission nor its judges have hesitated to invalidate a standard for a variety of reasons -- but all on the basic ground that the action of the Secretary in adopting the particular standard was in excess of the power granted him by the Act. A few cases discussing the principle -- most holding the standard invalid -- follow:

Joseph Bucheit and Sons Company, Docket 295, 1 OSHC 3106. ("validity" distinguished from "wisdom")

Oberhelman-Ritter Foundry, Inc., Docket 572, 1 OSHC 3087, ("should" changed to "shall". Standard invalidated.)

Divesco Roofing & Insulation Company, supra.

Tilo Company, Inc., Docket 211, 1 OSHC 1206 (Standard invalid -- unenforceably vague)

Santa Fe Trail Transport Company, Docket 331, 1 OSHC 1457 (whether hospital, infirmary, or clinic; in "near proximity to work place." Invalid as unenforceably vague.)

More standards have been held invalid by the Commission -- and judges -- on this ground than on any other.

The third preliminary question for decision before we may reach the heart of the case, is whether the Review Commission has the right to pass on the legality or validity of a standard at all. Whether [*68] this be called a "right", "power", "authority" or "jurisdiction" makes no difference. The specific question is whether the validity and legality of those portions of 29 CFR 1910.213 under review, as derived from ANSI 01.1 1954, reaffirmed 1961, may be adjudicated by the Review Commission, an independent or "administrative" adjudicatory tribunal; or whether they must be left untouched until they come before a "judicial" adjudicatory tribunal.

It is worthy of note in passing that insofar as the precise issues involved in this case are concerned, the trial judge's duty, authority and power at the hearing stage of the proceeding, are no different from the Review Commission's duty, authority and power at its review stage of the proceeding. No contention has been made on the part of any party that there is a difference, and no authority in support of any such position has been cited.

It should likewise be noted that the questions involved here are sufficiently closely related to those last discussed, that some authorities cited are persuasive to the issues in both. There are more differences than similarities, however, and thus the subjects lend themselves more readily to separate [*69] discussion.

We may start on the assumption that unless the Secretary acts in some manner authorized by statute to withdraw his regulation (we call it a "standard") or otherwise invalidate it, and if litigation then develops questioning its legality or validity, the answers can only be determined by "adjudication." The question is -- in what forum; considering the precise questions raised and all parts of the particular statute?

The Secretary would have us believe the tribunal must be so marked as to indicate it is a "court" or part of the judicial branch of the government.

I have read and considered the briefs filed, and the cases cited therein; and have conducted some independent research. On the basis of this Act, I find no authority, even persuasive, in support of the Secretary's position.

For example, the Secretary's greatest emphasis as authority for his position -- as determined by its prominent position and repeated citation in the Solicitor's briefs -- is on the case of Stark v. Wickard (1944), 321 U.S. 559, 88 L.Ed. 733, 64 S.Ct. 559, 571. In that case, the court, speaking through Mr. Justice Reed said:

"The responsibility of determining the limits of statutory [*70] grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction."

As quoted out of context, this is persuasive language in favor of the position of the Secretary here.

The court neither says nor implies, however, that Congress cannot adopt a law wherein the initial adjudication "to protect justiciable individual rights against administrative action" is by an independent or "administrative court", subject to judicial review by the United States Court of Appeals. The real question involved in our case is whether Congress did adopt such a law.

Nor could the court have so stated or implied, because the holding of the case was simply that the plaintiffs had standing to sue in Federal District Court to question the validity of a milk marketing regulation of the Secretary of Agriculture.

The authority cited by Mr. Justice Reed in support of the quoted statement above is U.S. v. Morgan (1939) 307 U.S. 183, 83 L.Ed. 1211, 59 S.Ct. 795 - 799, 800. In the opinion by Mr. Justice Stone may be found language even more favorable in this instance to the position of the Respondents [*71] in our case; if we consider it out of context also, and assume the "agency" to be the Review Commission, and its "action" adjudicatory.

". . . In construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, an so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common [*72] aim. . ." (Emphasis added)

If this language could be used literally, it would be decisive of the issue of this case. It cannot, however, because the administrative action to which reference was made was not adjudication. It was the adoption of an order by the Secretary of Agriculture fixing maximum rates to be charged at the Kansas City stock yards; and the question in the case was the validity of the order.

Neither case can be considered as precedent in the one before us.

Judge Burchmore's statement in Divesco, supra, warrants repeating:

The problem is to find the intent of Congress -- either from the plain language of the Act or from inferences to be drawn from its. If a point is reached where it may be concluded that the language is not clear and unambiguous, that it may be subject to construction, then -- and only then -- may we consult the Legislative History for aid in finding an answer to our inquiry.

There is no [*73] specific provision in the Act spelling out in exact words the power of the Review Commission to adjudicate the validity of the standards adopted by the Secretary and the legality of his actions in so adopting them. Our considered conclusion is that this power and authority are so clearly granted by inferences to be drawn from the Act, there is no reasonable ground for disagreement about it. Our further conclusion is that the Review Commission is not only a proper forum for such adjudication, but it is the only one where the question may be raised past the pre-enforcement status of the standard.

Suppose we enumerate and explain briefly the reasons for these statements.

(1) The Review Commission's function is adjudicatory; nothing more, nothing less. The basic grant of this power is in Section 2(b) of the Act:

"CONGRESSIONAL FINDINGS AND PURPOSE

SEC. (2)

(b) The congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to [*74] preserve our human resources --

(3) . . . by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;"

(2) All findings of violations and imposition of penalties by default -- for failure to contest an action of the Secretary -- are those of the Review Commission. The statute provides: "They shall be deemed a final order of the Commission . . ." (Sec. 10(a)(3))

(3) With the exception of certain equitable powers to restrain conditions or practices in the event of imminent danger, vested in the United States District Courts (Sec. 13), all civil actions and adjudications under the Act are in the Review Commission. All findings of violations of the Act are functions of the Review Commission.

Under Section 10(c), if a proposal of the Secretary is contested, "the Commission shall afford an opportunity for a hearing" under the provisions of the Administrative Procedure Act. Thereafter the Commission must enter an order "based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, . . ."

We have referred to a common practice by both the Review [*75] Commission and its judges to hold various standards of the Secretary invalid for a variety of announced reasons. In each case the challenge to the standard was in the Commission proceedings and the real basis for the holding was that the Secretary was acting in excess of his statutory power and authority in adopting the standard. A few examples were given.

Of equal -- or greater -- importance is the fact that implicit in every finding of a violation of an occupational safety or health standard under Section 5(a)(2) of the Act, is a holding that the standard is valid -- that it was enacted by the Secretary in a proper exercise of his legislative power and authority.

The Commission is directed to "affirm" a citation and proposed penalty in some cases. If a standard is questioned and can be held valid only by a "judicial" court; the Commission might find itself in the completely untenable position of being required to affirm a penalty without a finding that the standard is valid.

Can this be the intention of the Congress? We think not.

(4) Not only does it have sole power to find violations of the law and standards with respect to occupational safety and health, but "The Commission [*76] shall have authority to assess all civil penalties . . ." (Sec. 17 (j)). This is not a review -- it is the first adjudicatory act with respect to the penalty.

(5) Contempt powers are granted as under the National Labor Relations Act (Sec. 12(i)).

(6) The Chairman is authorized to "appoint such hearing examiners . . . as he deems necessary to assist in the performance of the Commission's functions . . ." (Sec. 12(e)). Some of these functions are enumerated (Sec. 12(j)). As stated above, and for the purpose of this inquiry, the duties and powers of a hearing examiner (judge) are no greater or less at the hearing level than are those of the Review Commission at the review level.

(7) A direct method of review is provided of all decisions of the Commission to the United States Court of Appeals. Section 11(a) provides:

"JUDICIAL REVIEW

SEC.11.(a) Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10 may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the [*77] District of Columbia Circuit, by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the Commission shall file in the court the record in the proceeding as provided in section 2112 of title 28, United States Code. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect [*78] to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court may order such additional evidence to be taken before the Commission and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except [*79] that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code. Petitions filed under this subsection shall be heard expeditiously."

Two provisions are particularly worthy of note here. First, no objection that has not been urged before the Commission can be considered by the Court of Appeals. Thus, if there has been no question, or decision, on the validity of a standard; it cannot be considered by the Court of Appeals on review.

Secondly, additional evidence may be ordered in exceptional circumstances. In this case it is taken "before the Commission," which may thereafter modify its findings or make new ones; and any review thereafter shall be considered as from the beginning.

The foregoing should show without question the intent of Congress to allow the Review Commission the right to pass on the validity and legality of standards adopted by the Secretary; and also require that they be challenged in the Review Commission proceedings. Perhaps viewing the question from a somewhat different angle might be helpful.

As a practical matter, how would an employer test the validity of a standard [*80] promulgated by the Secretary in a "court" rather than before the Review Commission?

He could not make his first request for a ruling on review to the United States Court of Appeals under Section 11(a) of the Act after a Commission decision. This Section provides: "No objection that has not been urged before the Commission shall be considered by the court, . . ."

Should the employer then start an action in the United States District Court seeking an injunction? Again, this action would fail. On the state of the record of every one of the cases I now have before me, relief would be denied because of failure to exhaust administrative remedies. Perhaps not all decisions would be on exactly the same basis as that of the three judge panel in Lance Roofing Co. vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012, 343 F.Supp. 685. Good reasons exist in all for holdings other than on the identical ground. For a variety of holdings involving the principle of exhausting administrative remedies, see cases cited in Davis-Administrative Law Treatise, Chapter 20.

An action for declaratory judgment would meet no better fate. The doctrine of exhaustion of administrative remedies applies [*81] alike to such actions. In Lance Roofing, supra, the plaintiffs sought declaratory -- as well as injunctive -- relief.

The question was asked as to how an employer wishing to challenge the validity of a standard now may go about doing it in a "judicial" court. The obvious answer is that he has no way of doing it. The first challenge must be made before the trial judge at the hearing stage of the Review Commission proceeding. Failing this, a Respondent will necessarily be held to have failed to exhaust his administrative remedies.

We believe the implication is so clear that the Review Commission proceeding is not only the proper, but the exclusive forum for a current challenge to the validity of a standard of the Secretary, there should be no need to resort to legislative history as an aid in reaching this conclusion. Since the Act does not so provide by its express terms, however, a contention considered by some to be reasonable might be made that it is subject to construction to the extent that legislative history may be invoked, and we shall therefore turn in this direction for additional assistance.

In the Legislative History, there are references carrying a [*82] clear implication of the Congressional intent that the legality and validity of a regulation (standard) of the Secretary may be tested and decided by the Review Commission. These are in two contexts. First, in reference to the fact that Section 6(f) of the Act is a pre-enforcement remedy only and that the standard may be tested in an enforcement proceeding. Secondly, in emphasis on the adjudicatory function of the Review Commission.

Two such references have already been cited. Following are additional expressions of Congressional intent.

For example, in the Index itself, under "Standards", is the following:

"Standards, pre-enforcement review. (See Section 6(f) in Section-by-Section Index, 'Judicial Review of Standards')"

In a Section by Section analysis and comparison of the Committee reported Bill S.2193 -- containing the pertinent language of the present Act -- and substitute Bill S.4044, is this reference to the former:

"6. Judicial Review of Standards Judicial review of standards is provided in the various United States Courts of Appeals. This right may be exercised up to 60 days after the standard is promulgated. (sec. 6(f)). Judicial review of standards would also [*83] be possible in enforcement proceedings." (Emphasis supplied)

(Legislative History, p. 304)

Representative Steiger of Wisconsin made the following statement with respect to the specific language of the Bill which became part of the law having to do with the Review Commission and its adjudicatory procedures:

"Persons aggrieved by a citation of the Secretary of Labor will appeal to the Commission rather than to the Secretary, as is the case in the committee bill. We will, with this amendment, provide for a separation of powers. Standards will be promulgated by the Secretary of Labor and contested citations will be considered by an independent court, so to speak, an independent review commission."

(Legislative History, p. 1074)

In preparing this decision, we are not unmindful of the decision in Secretary of Labor vs. Boise Cascade Corporation, Docket 2944. By stipulation of counsel, Judge Kennedy had before him a transcript of a major portion of the proceedings in our cases, (three of four days of the supplemental hearing), but none of the 17 exhibits.

This brings us to the heart of the case. We are faced squarely with the necessity of deciding the merits of Respondents' challenge [*84] to particular sections of 29 CFR 1910.213 -- and only those sections as they apply to the facts in this record.

Perhaps a word of caution -- and of limitation -- might be appropriate here. Not only have there been inferences, but also broad sweeping statements that the effect of this action may be to establish the validity or invalidity of all parts of section 213 of Part 1910. These are all the sections having to do with machine guarding of woodworking machinery. Hopefully such statements were inadvertent, but at best they show a disregard of the actual effect of decisional law.

Neither this forum nor any other can do more than pass on the precise questions before it in a particular case, here the validity or invalidity of enumerated sections or subsections of standards; and then only with reference to the record before it. The practical effect of some holdings may go much farther; but the adjudications themselves are so limited.

Before going into a detailed consideration of the specific sections of the standards and the grounds on which they are challenged, a brief review of some of the evidence in the record would seem to be in order.

I called six witnesses who testified [*85] at the supplemental hearing. They are:

Patrick F. Cestrone, Silver Springs, Maryland; Consultant, Occupational Safety and Health Associates. In 1971, Mr. Cestrone was Director of the Office of Safety and Health Standards, United States Department of Labor. He was charged with the responsibility of what has been aptly termed a "crash program" to develop national consensus standards and established Federal standards for the Secretary to ". . . by rule promulgate as occupational safety or health" standards under Section 6(a) of the Act.

Nixon deTarnowsky, Scarsdale, New York; Standards Coordinator for Safety and Health Standards, American National Standards Institute, New York City.

David Zabriskie, Fairlawn, New Jersey; Manager of Construction Safety Division, Engineering and Safety Services, American Insurance Association, New York City; Secretary of the ANSI 01 Committee since June of 1970.

Lewis R. Morrison, Ardsley, New York, Corporate Safety Manager, ACF Industries, Inc., New York City. As an employee of the Lumbermen's Mutual Casualty Company of Chicago and as a representative of the National Association of Mutual Casualty Companies, he was a member of the ANSI 01 Committee [*86] at the time ANSI 01.1 was adopted in 1954.

A. A. Skonning, Riverside, Illinois; retired Senior Engineer, Western Electric Company; 29 years experience in safety engineering, particularly woodworking; representative of the National Safety Council on the ANSI 01 Committee in 1954 and 1961.

Joseph J. Prabulos, Woodbury, Connecticut; retired Safety Director, National Distillers and Chemical Corporation; member of ANSI 01 Committee in 1954, 1961 and 1971; representative on the committee of a trade association, Associated Cooperage Industries.

Dan Adair, Portland, Oregon; Vice President of consulting firm, Hearing Conservation and Noise Control, Inc.; representative of National Safety Council on ANSI 01 Committee in 1954 and 1961.

In addition, Respondent Weyerhaeuser called Thaden Demas, Assistant Director for the Division of Products Approval, American Plywood Association, Tacoma, Washington.

There is no conflict in evidence on any material fact in this part of the case.

ANSI does not write standards. In case of a consensus standard, one of its prime functions is to certify that standards presented to it are in fact representative of a "consensus" of those parties who have an interest [*87] in the subject covered.

Usually the standards are written by committees of the organization, commonly sponsored by one or more members. There are 160 national organizations and 1,000 individual company duespaying members. The areas of activity of the organization in promulgating standards and approving them are very broad. The Safety Technical Advisory Board involved with the standard here under consideration is only one of 26 such advisory boards, each concerned with its own category of standards.

In this case, the 01 Committee was sponsored by the Association of Casualty and Surety Companies, a large trade association of the biggest stock casualty companies in the country (now a part of the American Insurance Association by reason of merger with the National Board of Fire Underwriters); and the International Association of Government Labor Officials.

When a request is made for permission to sponsor a standard, and certain formalities have been completed such as a finding by ANSI of the need for such a standard, approval of its scope, the competence of the proposed sponsors, membership of the committee, including competence and comprehensive interests of committee members (usually [*88] trade associations or other organizations of groups of companies rather than individual companies, along with labor and governmental organizations); the committee is pretty much left alone to do its job of writing the standard. In the process, technical assistance is supplied by the ANSI organization only on request. Committee members are usually highly skilled experts in the field in which they are working.

When the job is completed and the proposed standard approved by a "consensus" of the committee, it then undergoes further scrutiny. In this case the Safety Technical Advisory Board passed on the technical competence of the standard and the Board of Standards Review on whether it represented a "consensus." Involved in the process now is a public review and comment period following distribution of the proposed standard to recipients of "ANSI Reporter." This has a circulation of 10,000, including The Bureau of National Affairs, Commerce Clearing House, National Safety Council, and other publishers of trade periodicals.

Early in 1971, Patrick F. Cestrone had completed about 31 years of government service as a professional safety engineer, most of it in supervisory capacities. [*89] He was Director of the Office of Safety and Health Standards, United States Department of Labor. For more than 2 years, Cestrone and those under his supervision had worked on planning for the Labor Department in anticipation of some type of comprehensive Federal occupational safety and health law.

The "crash program" to which reference was made was principally the preparation of a comprehensive set of occupational safety and health standards promulgated by the Secretary of Labor under Section 6(a) of the Occupational Safety and Health Act of 1970. These were published on May 29, 1971 in 36 Federal Register, commencing at page 10466.

Adoption of these standards by the Secretary was mandated by Section 6(a) of the Act. They were of two kinds, "national consensus standards" and "established Federal standards." As the man primarily responsible for "putting together the package" Cestrone was familiar with all the details of the project.

Cestrone does not remember specifically the details of rewriting ANSI 01.1 and its adoption as 29 CFR 1910.213 and 214. Nor does he have a definite recollection of considering and eliminating the headnote previously quoted at the beginning of Section [*90] 4, "Woodworking Machinery", on page 9 of the ANSI printed standard (Respondent's Exhibits S-1 and S-3); or the reason for its omission from Section 213 of Part 1910. He does recall ANSI 01.1, and that it was adopted as a national consensus standard.

Among the objectives of the group headed by Mr. Cestrone was to make no changes in either the scope or the substance of any national consensus standard. Part of the job also was to eliminate any consensus standards that were advisory, or recommended. No provision was intended to be included in the final product unless its requirements were mandatory.

Neither Cestrone nor, so far as he knew, anyone else engaged in the project took any steps to insure the legality of the standards being adopted; for example, to determine whether the national consensus standards met the statutory definitions of Section 3(9) of the Act. As to ANSI 01.1 there were two reasons for this.

First, the Secretary was not only under a mandate of the statute (Section 6(a)) to adopt national consensus standards produced by ANSI and the National Fire Protection Association (NFPA); but the legislative history of the Act contained numerous committee reports and other [*91] comments urging speed and purporting to explain why the standards, having already met the "consensus principle", could and should be adopted without further ado.

Further scrutiny will show that the language of the legislative history tending to show compliance of the ANSI standards with the statutory definition of a national consensus standard was in error.

In his testimony, Mr. Cestrone referred to several such passages from the legislative history:

"Q. What part of the legislative history, and to what part of the legislative history do you refer there, if you know?

A. May I sit and refer and to my notes?

Q. Yes, yes, refer to any notes you have.

A. With respect to support of the legislative history and support of interim standards, my reference is to report 21-82, starting on page 141, which accompanied the Senate version of the bill S 2193, particularly legislative history starting on page 146-6.

Q. Is that in the legislative history?

A. It's in the green June book, and I can read to you if you want me.

Q. If you have the pertinent language it might be good to put it in the record.

A. Senate Report 91-1282, page 141, calendar number 1300; Accompanying Senate Bill [*92] S 2193, page 146-6. 'The purpose of this procedure is to establish as rapidly as possible National Occupational Safety and Health standards with which industry is familiar. These standards may not be as effective or up to date as is desirable, but they will be useful for immediately providing a nation wide minimal level of safety and health. Two private organizations are the major sources of consensus standards; the American National Standards Institute, Incorporated and the National Fire Protection Association. By the Act's definition a consensus standard is one which has been adopted under procedures which have given diverse views an opportunity to be considered, and which indicated interested and affected persons have reached substantial agreement on its adoption.'

Q. Pardon me, sir. I'm interested in the part before "affected persons."

A. Which indicate that interested and affected persons have reached substantial agreement on its adoption.

Q. This is saying what has been done and the statute says it must be done, is that correct, sir?

A. Yes, sir, and if I may finish this last phrase, the point I wanted to make here. I don't know whether I left what I thought was [*93] non-applicable language out but it follows that, "It is appropriate to permit the Secretary to promulgate such standards without regard to the provisions of the Administrative Procedures Act. The bill also provides for the issuance in similar fashion of those standards --

Q. Are you quoting now?

A. Yes, sir. ". . . which have been issued under other federal standards and which under this Act may be applicable to additional employees who are not under the protection of such other federal laws. Such standards have already been subjected to the procedural scrutiny mandated by law under which they were issued. Such standards moreover in large part represent the incorporation of voluntary industrial standards."

Your Honor, in the House Report 911291 which accompanied HR 16785 starting on page 831, but the pages of specific reference are page 847. The intent of this interim standards provision is to give the Secretary of Labor a speedy mechanism to promulgate standards with which industry is familiar. These may not be as effective as the current standards promulgated under formal procedures but they will be useful for immediately providing a nation-wide minimum level of health [*94] and safety.

Section 6 --

Q. Does that refer to the reference or standards referred to by the terms of the statement elsewhere? Did those include ANSI national consensus standards?

A. Yes."

(Tr. S54, S55, S56 and S57)

As to the adoption of ANSI 01.1 as a national consensus standard, Cestrone recalled believing the legality of the standard was protected not only by the congressional mandate of the statute and congressional urgency in reports and debates, but also by the fact that the Labor Department's Solicitor advised that the standard had been adopted "by reference" under the Walsh-Healy Act.

There is some question as to what was intended by the witness when he referred to adoption "by reference."

Cestrone referred specifically to the provisions of Section 4(b)(2) of the Act. This simply purported to "blanket in" all existing Walsh-Healy regulations -- as well as those under other safety Acts -- as Occupational Safety and Health standards; by "deeming" all such -- without further identification or reference -- to be occupational safety and health standards.

The witness may have been referring to the adoption "by reference" in 41 CFR 50.204-2. This reference applies to [*95] the general machine guarding requirements for all machines and states that all standards on this subject produced by the four named major standards-producing organizations are effective under the Walsh-Healy Act; without specific reference to any such privately produced standards, their provisions, or their application.

This section was mentioned by the Solicitor at the beginning of the supplemental hearing on the Secretary's Motion for Judgment on the pleadings. It was not urged thereafter by the Solicitor except in connection with his argument that 29 CFR 1910.213 is in fact a national consensus standard.

The fact is ANSI 01.1954 (R 1961) was taken apart and reassembled, under the direction of Mr. Cestrone, to become 29 CFR 1910.213 and 214. (See Respondent's Exhibit S-3, showing details of the dismantling and reassembling job.) It was then adopted as a national consensus standard. In the process the headnote at the beginning of Section 4 was removed and appears nowhere in the Occupational Safety and Health standards.

There was no intent or effort to adopt any standard in the alternative, or as both a national consensus standard and an established [*96] Federal standard.

"The new Part 1910 contains Occupational Safety and Health standards which are either national consensus standards or established Federal standards."

(36 Fed. Reg. 10466, May 29, 1971)

The Secretary's own regulation showing source -- 29 CFR 1910.221 -- shows that both Sections 213 and 214 were derived from "ANSI-01.1 -- 1954 -- (R-1961) -- Safety Code for Woodworking Machinery."

There is no statutory authority to promulgate the standard except as one or the other.

Thus, the standard under scrutiny in this case -- or portions of it -- is either a valid general industry occupational safety and health standard adopted as a national consensus standard; or so far as we are here concerned, it has no relevance.

We now come to consideration of the three principal questions to be answered by this decision.

The first is the effect of deleting the headnote to Section 4.1 "Woodworking Machinery", page 9, ANSI 01.1 1954 (R 1961). It is as follows:

"NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. [*97] Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged."

The record shows a similar note to have been part of the 01.1 standard in 1944. Another is a part of the 1971 revision.

The record further shows that at a meeting in the summer of 1973, for the first time the ANSI 01 Committee considered removing the text of the note as it has appeared and placing its provisions as part of the text of the various sections applicable. (See Secretary's Exhibit S-2.)

A number of undisputed facts should be considered.

First, all of the provisions of 29 CFR 1910.213 are mandatory. The headnote is not.

The note is not "explanatory," "preliminary", "a suggestion", "a recommendation", "for informational purposes", or even an "exhortation." It is an integral part of the standard itself.

"JUDGE WATKINS: Mr. Ehlke, I forgot to ask Mr. deTarnowsky something. If you want to cover it, okay; if not, I'll ask him again.

I want [*98] to make sure he testified as to whether the headnote that we've been talking about is a part of the standard. Would you cover that?

MR. EHLKE: That's my next question.

Q. (By Mr. Ehlke) Turn to page 9 of that document, sir. Is there a note at the beginning of section 4 entitled Woodworking Machinery?"

A. Yes, it is.

Q. What type of note would that be, sir?

A. We call it a headnote.

Q. Are headnotes an integral part of the standards?

A. Yes.

Q. Is this headnote an integral part of that standard?

A. Yes, it is."

(Tr. S172)

There is considerably more evidence in the record to the same effect. There is no evidence to the contrary.

The saws covered by Section 213 of Part 1910 simply cannot be used for many jobs they are designed to do while guarded as required by the standard. This evidence is also undisputed and from expert and technically competent witnesses -- members of the Committee.

All Committee members stated that ANSI 01.1 would not be -- and could not be -- a "consensus" standard with the headnote removed. Those asked stated they would not have voted for it as a consensus standard in the absence of the headnote.

It is interesting to note the difference [*99] in the method used by the Secretary in adopting ANSI 01.1 in the Construction Standards, from that used here in the General Industry Standards.

Subpart I of the Construction Standards covers "Tools -- Hand and Power", and includes 29 CFR 1926.300 "General Requirements", through Section 305. Section 304 of Part 1926, entitled "Woodworking Tools", has some specific requirements for portable, power driven circular saws (subparagraph (d)); and then provides:

"(f) Other requirements. All woodworking tools and machinery shall meet other applicable requirements of American National Standards Institute, 01.1-1961. Safety Code for Woodworking Machinery."

Leaving aside other questions for the purpose of discussion; the result is the adoption of ANSI 01.1 with its headnote. This is the procedure -- and the result -- intended by Congress in Sec. 6(a) of the Act.

Whatever may be the good or bad things about mandatory standards, or the validity or invalidity of adoption by reference; this was the enactment of what appeared on its face to be a national consensus standard -- as such; not as changed. With the headnote still a part of the standard, enforcement of Construction [*100] standards must consider that all parts of Section 4.1 of ANSI 01.1 are optional -- not mandatory.

In adopting Part 1910, including Section 213, on the other hand, the Secretary states in Volume 36, No. 105, Federal Register, page 10466, May 29, 1971:

"The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. The standards of ANSI and NFPA may also contain advisory provisions and recommendations, the adoption of which by employers is encouraged, but they are not adopted in Part 1910."

Perhaps the Secretary made a mistake in including Section 213 of Part 1910. With the headnote, provisions of Section 4.1 of ANSI 01.1: "are not perfectly applicable to all operations for which saws are used." The standards are only those "which woodworkers have agreed are most generally useful." ". . . there are a considerable number of cases not satisfactorily met by these standards."

With the headnote, ANSI 01.1 is not mandatory. Without the headnote, all provisions as they appear in 29 CFR 1910.213 are mandatory. The answer is that simple.

The Secretary exceeded his statutory authority in failing to retain the headnote [*101] as it was -- an integral part of the standard.

The second and third questions for consideration are whether, in two respects, ANSI 01.1 1954 (R 1961) meets the statutory definition of national consensus standard.

The Act provides:

"SEC 3. For the purposes of this Act --

(9) The term "national consensus standard" means any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies."

Although Section 3(9) of the Act contains only three numbered subsections, as we view it two requirements are contained in the first. There are therefore, four requirements for a standard to meet this statutory definition.

(1) It must have been "adopted and promulgated by a nationally [*102] recognized standards-producing organization."

(2) "Under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption."

(3) "Was formulated in a manner which afforded an opportunity for diverse views to be considered."

(4) "Has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies."

Respondent Konkolville argues in its brief that the first and fourth requirements are not met. We find it unnecessary to decide these questions because we hold that ANSI 01.1 does not meet the statutory definition of a national consensus standard under the second.

A word about the fourth (has been designated, etc.) is in order, however, because it has significance in our holding that the standard under discussion was adopted as a national consensus standard. It was designated as such, and as nothing else. Further, it was ". . . by rule promulgated" as such by the Secretary, as provided by Section 6(a) of the Act.

In the Federal Register adopting Part 1910, "Occupational Safety and Health Standards" (36 Fed. Reg. [*103] 10466, May 29, 1971), the Secretary states:

"The national consensus standards are occupational safety and health standards adopted and promulgated either by the American National Standards Institute (ANSI) or by the National Fire Protection Association (NFPA) under procedures whereby it can be determined that persons interested and affected by the scope or provisions of the standards have reached substantial agreement on their adoption. I have determined that those standards have been adopted and promulgated under such procedures. Accordingly, pursuant to this determination, after consultation with other appropriate Federal agencies, and in accordance with section 3(9) of the Act, I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association." (Emphasis added)

The first question which must be decided under this statutory definition (the second of the principal questions in the case) is whether the standard was promulgated

"under procedures whereby it can be determined by the Secretary that persons interested and affected [*104] by the scope or provisions of the standard have reached substantial agreement on its adoption,"

Assuming first of all that the "procedures" are those of ANSI -- the standards-producing organization -- a number of other unanswered questions are immediately apparent. For example,

(1) Who are persons interested and affected by the scope or provisions of the standards?

(2) How many such persons are there?

(3) How many must "have reached substantial agreement on its adoption?

(4) What is "substantial agreement on its adoption?"

It might be pointed out there is no requirement that the Secretary find or "determine" that the persons contemplated have reached substantial agreement. Rather the requirement is that the circumstances of adoption of the standard be such that these things "can be determined by the Secretary."

The Secretary does purport to so find in the Federal Register cited. His statement to this effect is in the last quotation from it.

We may assume the Secretary cannot find that which is untrue. He cannot "determine" that something happened when in fact it did not happen. Thus, although the statute does not require the Secretary to "determine" the specific facts [*105] regarding the adoption of the standard by ANSI; those facts must exist so that the Secretary could so determine them. Those facts are "that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption,"

Who are "persons interested and affected by the scope or provisions of the standard?" Little time need be spent in answering this question. The record shows so many thousands of persons who are clearly within this class we need not concern ourselves with the niceties of deciding in a borderline case whether or not a particular person or class of persons is within it.

For example, these are shown by the record:

Workmen who operate the machinery

Labor organizations to which the workmen belong

Employers who hire the workmen

Trade associations of those employers

Workmens compensation or industrial insurance carriers who insure the employers and workmen, both by reason of their financial interest in the safety of the workmen and the insurance companies' traditional interest in safety.

Trade associations of the workmens compensation insurance carriers

Governmental organizations with an interest in employee safety [*106]

Private safety organizations, for example, the National Safety Council

Producers of safety standards, such as ANSI

The last two questions posed above present greater difficulties of solution. How many "persons interested and affected" must have agreed on the adoption of an ANSI standard? The literal language of the statute would be satisfied if the answer were either "two" or "all." Either answer is ridiculous.

Might the answer be "a representative number"; or "a substantial number"; whatever either of these expressions means? I have been unable to find anything in the Legislative History helpful in trying to answer this question.

It would rather seem from numerous passages in the history that Congress became enamored of its own definition and began to assume that both ANSI and NFPA standards met it. At the same time, from some of the testimony, one might draw the inference that ANSI began to believe its standards met the Congressional definition.

As will be shown, the answer to the question is academic. Since we are talking about "consensus" standards, however, would it not be sensible to believe Congress intended that "a consensus" of "persons interested and affected" [*107] agreed to the adoption of the standard?

Consensus means

"General agreement." "Collective opinion. The judgment arrived at by most of those concerned."

(Webster -- 3rd Unabridged)

"Majority of opinion."

(Random House -- College Edition)

DeTarnowsky quoted from one of ANSI's principal publications, "Consensus implies much more than a concept of a simple majority, not necessarily unanimity."

Perhaps it would be helpful to delve slightly deeper into ANSI procedures, particularly in its method of "obtaining a consensus." There is reference to the question in the testimony of Mr. deTarnowsky:

"Q. (By Judge) The other day when we had - well, that was Tuesday - and we had this meeting with all of us there, I asked, I believe, if there is an ANSI -- if ANSI defines consensus anywhere. I didn't ask then, but I meant it, of course, as a guide. You then consulted your files, and would you tell us what you found about that?

A. The term "consensus in standardization practice is achieved when substantial agreement is reached by concerned interests according to the judgment of duly appointed authority."

Q. Then we ought to identify it. I'm reading in a different place.

A. I'm reading [*108] from the "Guide of the Development of American National Standards", dated November 2, 1972, page 6, the third paragraph, "Consensus Principle." I better read the whole paragraph.

Q. Go ahead, sir.

A. The title of this paragraph is "Consensus Principle", "The basic principle underlying ANSI approval of a standard is that a consensus must be reached of those having substantial concern with its scope and provisions. In standardization practice a consensus is achieved when substantial agreement is reached by concerned interests according to the judgment of a duly appointed authority. Consensus implies much more than a concept of a simple majority, not necessarily unanimity."

(Tr. S164 - 165)

From the record it is not clear who is the "duly appointed authority" whose judgment is used to determine when a "consensus is achieved" by "substantial agreement." Although the Board of Standards Review of ANSI is charged with only one function -- to determine whether or not the standard "represents a consensus" -- other procedures of ANSI apparently also go into the determination.

First there is the selection and approval of the committee which is to write the standard and the determination [*109] that it has as broad a base in the particular field as possible. One factor not considered at length in testimony is the theory of placing somewhat unusual duties and responsibilities on members of ANSI, and their individual committee members, to keep the member organization informed of the work of ANSI committees in writing standards. At the same time the individual is charged with the responsibility of interpreting the attitude of the organization he represents -- and its members -- in the development of the standards work.

Testimony of Committee members does not disclose any particular attention having been paid to these responsibilities.

The following quotation from "The ASA System" (Secretary's Exhibit S-1) is of interest in this connection.

"These principles require thoroughgoing responsibility on the part of cooperating bodies and their representatives -- responsibility in three senses, viz:

(a) Responsibility in representation. It is the duty of a representative (1) to keep sufficiently in touch with his organization so that he can correctly interpret its attitude in the development of the work and can participate in decisions in committees; (2) to keep his organization [*110] informed of developments; (3) to act as a leader in the formulation of the policies of his organization in regard to the matters with which he is dealing; and (4) to refer back to his organization questions upon which he feels unauthorized to speak for it; . . ."

The statement was made above that the number of "persons interested and affected" who reach "substantial agreement" on the adoption of the standard is academic. The fact is, nobody reaches substantial agreement -- or any other kind of agreement -- on the adoption of an ANSI consensus standard except the individual committee members writing the standard and the organizations they represent.

The organizations are usually not the employers but trade or other associations, or the like. "Substantial agreement" could also be said to be reached by subsequent reviewing authorities within the ANSI organization itself.

It is not only a matter of common knowledge, but it is the uncontradicted evidence in this record; that except in unusual circumstances not here shown, no member of a trade association or similar organization allows the organization to act for it, agree to anything for it, to [*111] speak for it, to express an opinion for it, or to commit it in any way.

The evidence in this record does not include all the 13 or 14 organizations constituting the ANSI 01 committee in 1954 and 1961. It does, however, include the following:

Nixon deTarnowsky testified that ANSI's members do not authorize the organization to make any decision for them involving judgment or to speak for them on any matter involving the technical content of a standard. He is familiar with the operation and practices of trade associations and has represented at least one. With respect to the representative and in connection with ANSI procedures, he testified:

"Q. But he normally speaks for the association and industry or the trade association only, not for individual members?

A. That's right. He's a representative of the association. This is his function.

Q. I wonder if it isn't usually the practice for a trade association representative to be very careful not to speak in the names of the individual members?

A. That is correct, they do. They must remember they are speaking for an association and not for their company or themselves."

(Tr. S166 - 167)

David Zabriskie is an employee of [*112] the American Insurance Association and Secretary of the ANSI Committee. "Roughly" all company members who subscribe to the engineering and safety services of the Association write workmens compensation insurance. These are the largest stock casualty companies in the country (formerly constituting the Association of Casualty and Surety Companies). Zabriskie testified that there are some mutual companies who are now members.

There are 150 to 160 of these companies writing workmen's compensation insurance. The record does not show how many million policy holders they have or how many such policy holders own or operate saws of the type covered by the woodworking machine guarding standards in question. A fair inference can be drawn the number is very large.

Neither Zabriskie nor any other representative of the American Insurance Association had authority from any member company to "agree" to anything, to speak for it, or to make any decision or express an opinion on the question of the adoption of any safety standard. If the committee member is a company employee, he is authorized to speak and vote for the Association only, not for his company. This situation is often the case. [*113] Nelson, the current chairman of the ANSI 01 Committee, is an employee of St. Paul Fire and Marine. Steinman, the previous Chairman, was an employee of the United States Fidelity and Guaranty Company.

No company member of the American Insurance Association has authority from any policy holder to speak for it, "agree" for it, take any position for it or express any opinion for it on any matter having to do with a safety standard. Every policy holder (in case of its insurance company) and every company (in case of its trade association) jealously guards its own right to "agree", "assent", "take a position", "take action", or withhold it, and in all respects to form its own opinions and conclusions and to express them on all matters -- including safety.

Lewis R. Morrison was a representative of the National Association of Mutual Casualty Companies on the ANSI 01 Committee in 1954. He was an employee of the Lumbermens Mutual Casualty Company of Chicago. The trade association he represented was made up of the large mutual companies writing workmens compensation insurance.

The same facts are true with respect to Mr. Morrison as with Mr. Zabriskie. He spoke for -- voted for -- only [*114] the trade association -- not his employer or any other company. No company member of the trade association had authority to take any action or position or express any view on behalf of any of its policy holders.

A.A. Skonning, Senior Engineer, Western Electric Company, was a representative on the committee in 1954 and 1961 for the National Safety Council. Dan Adair, an employee of the Safety Council, was also a representative. Both were active in the work of the committee for a considerable number of years.

In 1970, the National Safety Council had 9,000 members, 8,000 of them industrial concerns. Others included labor unions and insurance companies. In 1963, a listing was developed of 28,000 industrial plants involved in memberships of the National Safety Council.

No member of the National Safety Council authorized either Skonning or Adair to speak for it, act for it, or do anything else in connection with safety. As a member of the committee, Mr. Skonning voted only on behalf of the National Safety Council, not on behalf of Western Electric.

Joseph J. Prabulos represented the Associated Cooperage Industries, a trade association, on the committee in its work resulting in [*115] the revision of the standard in 1954, its reaffirmation in 1961 and its further revision in 1971. He was employed as Safety Director of the National Distillers and Chemical Corporation.

Prabulos' recollection was that the trade association had about 130 member companies. As a committee member, he spoke and voted only for the trade association, not for his employer. In other respects his testimony is the same as that of the witnesses just mentioned except that, in addition, he had no specific instructions or authorization from the trade association on how to cast any vote with respect to the standard.

As with the other witnesses, Mr. Prabulos had no contact or communication with the member companies of his trade association, or with his own company, with respect to the work of the ANSI committee.

In fact, each committee member who testified was an expert in his field, and used his own judgment in casting his vote in a manner that caused the committee to be in substantial agreement.

It would serve no useful purpose to speculate on the precise meaning of "substantial agreement" to the extent of framing a definition. Certainly it means much less than a formal and recorded agreement, [*116] either written or oral. It might be inferred from inaction -- with knowledge of essential facts -- rather than from any positive action.

At a minimum there must be some communication -- or chance to communicate -- by a person held to be in "substantial agreement." In any event, to hold that many thousands of people are in "substantial agreement" means more than the best judgment of safety experts about what they are thinking; when the experts have received no communications from them as to what they are thinking, and no authority from anyone to take or withhold any action.

At the conclusion of the first three days of testimony and at the request of counsel for Respondent, the case was continued to September 17. Although not so limited, this was principally for the purpose of obtaining further evidence tending to improve the record as to the number of "persons interested and affected by the scope or provisions of the standard."

Most of the evidence we have is general -- some of it vague. From the total, however, certain valid inferences may be drawn, particularly with respect to minimum numbers of persons who may be so interested and affected.

A number of documents, or portions [*117] of them, were introduced in evidence. With the background record of the insurance and cooperage industries, the National Safety Council, and the ANSI members, perhaps reference to one and a stipulation in connection with it would be sufficient for our present purpose.

Mr. George J. Tichy, counsel for Konkolville, did not testify. By stipulation, however, the equivalent of his testimony was received.

It was stipulated that, based on Respondent's Exhibit S-8, that portion having to do with lumber, sawmills and wood products, Mr. Tichy would testify if he were called as a witness, and based upon his experience in the industry, not only as counsel but also including extensive experience as a workman; that in 1954, 1961, 1971 and 1973 there were no less than 30,000 industrial users of the types of saws found in Section 4.1 of ANSI 01.1 1954 (R 1961) and adopted thereafter as 29 CFR 1910.213. The stipulation was further that on each of the dates the number of such saws in use was no less than 50,000.

It was further agreed that the stipulation might be accepted in lieu of Mr. Tichy's testimony, that he was qualified to testify to the facts stated, and that the stipulation might be [*118] so used even though Tichy was in court and could have taken the witness stand.

It is of interest to note that so far as all the logging and sawmill, as well as the Northwest Plywood industries are concerned; there was no representative -- either company or trade association -- on the ANSI 01 Committee. One of the reasons assigned for this was that at the time a "vertical" standard for sawmills was being considered and prepared. (29 CFR 1910.265)

From the foregoing it is abundantly clear that the ANSI national consensus standard here under consideration does not meet the definition of Section 3(9)(1) of the Act, as having been adopted "under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption."

One can but conclude that Congress mandated the use of national consensus standards as occupational safety and health standards under the Act, espoused their adoption as interim regulations and under abbreviated procedures, sought to speed their promulgation and implementation; and at the same time adopted a statutory definition that no national consensus [*119] standard could meet. At least the standard here under consideration does not meet it.

The third question for decision is whether the ANSI 01.1 1954 (R 1961) standard "was formulated in a manner which afforded an opportunity for diverse views to be considered. . ."

In an earlier explanation of the working of ANSI, reference was made to "a public review and comment period." References to this procedure under the same or similar language are in several places in the Legislative History.

Nixon deTarnowsky testified the present system started in 1969. Previous efforts, while not haphazard, were much less complete.

"The old ASA system did not include a public review and comment period such as we have now. The old system relied exclusively on the membership of the ASA system. It was published in the Magazine of Standards, however, which was given general distribution, and was subscribed to by a great many more companies, but as I understand it the public review and comment, as we have it today, did not exist at the time 01 was promulgated."

(Tr. S154 - 155)

The Magazine of Standards was published by ANSI. Its circulation is not shown. Other trade publications reproduced [*120] proposals with respect to the adoption of standards.

Mr. Cestrone testified he had no difficulty in knowing of any ANSI action contemplated in which he was interested over the years. At the same time, however, it appears that for many years he was active in ANSI and served on many of its committees and bodies.

In general, the record indicates dissemination of information about proposed actions regarding standards before the change in 1969. The change brought about a much wider and more selective distribution of information, and also brought into effect a number of new procedures with respect to comments received.

The statute does not designate whose "diverse views" are to be considered; or who must be "afforded an opportunity." If the "opportunity" and "diverse views" are limited to safety professionals, there would be compliance with the statute.

Nor is there a specific provision about who is to do the "considering." By implication, however, this would be some part of the ANSI organization.

There is no indication Congress intended that a procedure such as that provided by Section 6(b) of the Act was thought to be required of private standards-producing organizations. [*121] No attempt is made to spell out times, places, manners of publication or other dissemination of information or methods used.

Under all the circumstances, we feel there was no failure on the part of ANSI to meet the requirements of Section 3(9)(2) in its adoption or promulgation of the standard here under consideration.

In order that there may be no misunderstanding, I should like to make it clear there is no intention in this decision to criticize anybody.

First, the Secretary of Labor was required by Section 6(a) of the Act to adopt national consensus standards as occupational safety and health standards "unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees."

There are numerous references in the Legislative History to the assumption -- stated as fact -- that national consensus standards of ANSI and NFPA met the tests of the definition Section of the Act; even though the ANSI standard here under review did not. All the Congressional views were known to the people in the Labor Department charged with the responsibility of developing the program.

Mr. Cestrone and his organization of about [*122] 60 people did a monumental job in about 34 days in putting together the package. There must have been many other people in the Department of Labor under similar pressure. It just happens their identities and efforts have not come to our attention.

Least of all do we consider this decision any criticism of the American National Standards Institute; its philosophies, its procedure or its results. The procedures have been tested by time and found to be in the public interest, and specifically in the interest of occupational safety and health. Nothing here should be construed as in any way reflecting on the integrity or effectiveness of ANSI or of any of its procedures or results. It simply has a statutory definition of "consensus" that its procedures cannot meet -- nor could those of any other private organization setting out to do the same job. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 This ends that part of the decision which is the same as a number of others, as mentioned in footnote 1.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In these two consolidated cases there is a third reason why [*123] 29 CFR 1910.213(h)(1) must be held invalid.

At the first hearing and in subsequent briefs, Respondent placed chief emphasis as a ground for invalidating the standard on the fact that it does nothing to promote occupational safety and health -- in fact any guards thus far devised create greater hazards than they eliminate -- and thus the Secretary exceeded his statutory power and authority in enacting this standard as a mandatory requirement for all operations of all the saws contemplated.

In its opening brief, Respondent says:

"Thus, 'occupational or health standards' are the only type of standards Congress gave the Secretary to promulgate.

"The term 'occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." § 3(8) of the Act. (Emphasis supplied.)

Moreover, the very purpose of the entire Act was stated by Congress in § 2(b)(1) to

". . . assure every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources [*124] -- by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment. . ." (Emphasis supplied)

If the Secretary then promulgates a standard which does not contribute to safety and health, or which standard in fact increases employment hazards, that standard is inconsistent with the Act's purposes and provisions and is beyond the scope of the statutory power conferred upon the Secretary.

This argument of Respondent must be considered in connection with the standard prohibiting a guard which offers an accident hazard in itself.

"29 CFR 1912.212 GENERAL REQUIREMENTS FOR ALL MACHINES.

(a) Machine guarding --

(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself." (Emphasis supplied)

The secretary has classified Respondent's position as an attack on the wisdom or engineering feasibility of the standard. It is true, of course, that an adjudicatory tribunal may not set aside or invalidate [*125] an administrative rule or regulation on the ground that it is unwise, and may not substitute its own discretion or judgment for that of the administrator; so long as the adoption of the rule or regulation attacked is within the statutory authority of the administrator. American Telephone & Telegraph Co. vs. United States. 229 U.S. 232, S.Ct. 170, 81 L.Ed. 142.

At the same time however, such a regulation must be

(1) consistent with the statute, its purpose and the powers it grants, and

(2) reasonable.

Manhattan General Equipment Co. vs. CIR, 56 S.Ct. 397, 297 U.S. 129, 80 L.Ed. 528. Helverling vs. Sabine Transportation Co., 318 U.S. 306, 87 L.Ed. 773, 63 S.Ct. 569.

It should be emphasized that our decision on this point is based upon the evidence in this record. No other Respondent in the group of cases we have had under consideration has raised the question, and also supplied sufficient evidence to support its position.

This is not a case where the questions of hazard and danger must of necessity be decided solely on expert evidence. The general knowledge of the trial judge, and his observations, are of some value.

As in any other case, findings must be based on [*126] a preponderance of the whole of the substantial credible evidence. The complexity of the issues are such, however, that credible opinion evidence should weigh heavily. If it is sufficient in scope and depth; substantial, believable, expert evidence is of great importance in determining the issues of hazard and danger, as well as the uses to which the saws are -- and may be -- put. This is the situation contemplated by McCormick when he said ". . . courts will admit expert opinion concerning matters about which jurors may have general knowledge if the expert opinion would still aid their understanding of the fact issue. This . . . approach emphasizes the true function of expert testimony." McCormick § 13, p. 30.

The only evidence of the Secretary which might be classified as expert came from his Compliance Officer. His qualifications are sufficient to make his opinions on the issues mentioned admissible, but they carry little weight.

On direct examination there was no qualification as an expert on saws. Then it was brought out he had been safety director of the Astoria Plywood Corporation, and Zidell Industries -- a steel fabricator -- still with no mention of saws. He did [*127] testify to the absence of guards on the lower blades of Respondent's saws, and the type of guard required. He also testified in a limited way to one or two manners of use of a radial arm saw.

Finally, on rebuttal he said he had used the saws as a laborer for a door company and a spruce company in Anacortes, Washington; and for Astoria Plywood. He has a radial arm saw in his home workshop.

At one point in his career, Mr. Jackson worked his way up from the green chain of a lumber mill to vice president of the company. We accept this testimony without qualification; but observe in passing that in his ascent he failed to pause in the area where the kind of saws here involved were used.

As to hazard or danger in failing to guard the lower blades of Respondent's saws, the Secretary presented no evidence more detailed or complete than the following -- from its Compliance Officer:

"A. All three of these saws were totally absent of any type of guarding for the lower half of the blade guard.

Q. What is the hazard involved, Mr. Jackson, to workmen?

A. The hazard involved on this when you have a blade that is running wide open the lower half is exposed to any contact from the side, [*128] and this normally is where a workman would hold the wood against a backstop from the side. If there is any slip of a motion toward the saw blade there is nothing to obstruct his hand or any part of his body from contacting that saw blade from the side.

Q. In the event the saw blade contacted a hand or body what would the result be, sir?

A. I am sorry to say I believe there would be amputation or very serious injury."

(Tr. 36)

Testifying for Respondent was H. Arch McKeever, Director of Research Facilities and Planning for Respondent. Mr. McKeever's stated qualifications as an expert over a period of over 35 years are impressive. Much more impressive however, was his testimony and the common sense manner in which he analyzed facts and reached opinions from them. As to all his testimony having to do with a decision on the issue in the case now under consideration, McKeever's testimony is accepted without qualification.

Without burdening this decision with additional details, we conclude that there are no guards now available which would meet the test of the standard and improve or increase employee safety when the saws are making ordinary crosscuts. Guards would create greater [*129] dangers -- hazard -- in every other kind of cut. Additional accident "hazards" within the meaning of Section 212(a)(2) of Part 1910, and creating dangers far more grave with any guard now known than would be eliminated by such guard, include the following:

(1) Early raising of the guard in order for it to pass over the fence unless a pathway in the fence is made for it, with exposure of the cutting teeth -- the real danger -- unexpected to the operator.

(2) In the event of such pathway in the fence, danger from flying wood particles, creation of a false sense of security on the part of the operator that he is protected from the cutting teeth of the saw.

(3) Jamming of small pieces of wood such as trimmer ends between the guard and the saw, creating a greater likelihood of the operator making an unwise move to clear it and also danger from such pieces being thrown by the saw.

(4) Impaired visibility of the wood being cut, resulting in the operator putting himself in an unsafe position to see it.

(5) Jamming of pieces of wood between the saw and the guard in such a way that the saw "bucks" -- in some cases getting out of control.

(6) On compound cuts the difficulties are multiplied. [*130] In some instances the use of the saw is impossible with the lower guard. These are operations the saws are designed to do.

Because of emphasis placed on the question by Respondent, we should say in passing we do not hold the standard invalid because of the failure of the Secretary to take affirmative action to "determine that promulgation of such a standard would not result in improved safety or health for specifically designated employees" under Section 6(a) of the Act.

We do hold on this record the standard is invalid for this further reason assigned by Respondent. Further, the Secretary was acting in excess of his statutory authority in enacting it, because any guard now known and meeting the requirements of the standard would "offer an accident hazard in itself" under 29 CFR 1910.212(a)(2).

NOISE

Another area where the same kind of violations is charged in both cases and thus where the subject matter can best be discussed together has to do with noise.

In each case there are two items in the Citation for non-serious violations (Items 1 and 2 in Docket #1231 -- Items 8 and 9 in Docket #1758).

The first item in each case alleges "The workmen in the following locations [*131] are not protected against excessive noise levels: ." Fifteen locations are then noted in Docket #1231 and four in Docket #1758. Both are alleged to be in violation of 29 CFR 1910.95(a).

The second item in each case charges "failure to provide and implement a plan of administrative or engineering controls to reduce sound levels for employees to permissible exposures as defined in Table G-16 under 1910.95; these employees being present in the following locations with the sound level noted for each location."

Thirty-nine locations are then alleged in Docket #1231 and twenty in Docket #1758. In the latter, alleged ranges of sound levels (dba) are stated as to each location. In Docket #1231 there are no allegations of sound levels as the charge indicates there would be.

It would seem logical to start discussion of these alleged violations in reverse order, paying attention first to 29 CFR 1910.95(b)(1).

We are somewhat at a loss to determine on what elements the Secretary must meet his burden of proof before we can find violations of this, the second noise offense charged in each case; or whether a violation of the standard is charged at all. What is stated to be a violation is [*132] clear. It is "failure to provide and implement a plan . . . to reduce sound levels." To support a finding of violation however, these things must be proved:

(1) First, employees must be subjected to excessive noise.

(2) Then the Secretary must prove that administrative or engineering controls are "feasible", but not "utilized."

The standard must contemplate that "feasible" controls may be "utilized" and still not be effective, because the last part of subparagraph (b)(2) provides that if the engineering or administrative controls don't work, "a continuing, effective conservation program shall be administered."

Our task is simplified by the fact there is no proof that any employee was exposed to noise above that permitted in Table G-16. This brings into issue the other two items of the Citations charging only excessive noise exposure.

The Compliance Officer completely failed to prove any excessive noise exposure by anybody at any location at any time; because there is no credible evidence of length of exposure. The Compliance Officer asked workmen (the record does not disclose how many, or at how many or what locations) "the time he is spending in the locality." Most of [*133] the answers were seven and one-half hours. "The other method was to ask the employer representative."

"Q. And what is the other method, sir?

A. I ask the same question in some instances if the man is real busy of the employer's representative.

Q. And what custom was followed in this case?

A. I would say probably both."

(Tr. 48)

This was the only method used to establish noise exposure under a system which by its own explanation includes duration as equally important to the level of noise.

It is of interest, but not necessary to a decision on all four items in the two Citations, that the duration of the Compliance Officer's tests did not produce credible evidence. The longest was five minutes. Most were one to two minutes and many were instantaneous.

The Secretary would have us find violations of the noise standards on this evidence in face of the following, all of which is undisputed.

(1) In all areas tested, there was great fluctuation in the amount of noise, with the majority of the time very low compared to the peak. (Since the evidence is undisputed, we trust we are not going too far outside the record in saying that anyone who has ever been around a sawmill knows [*134] this.)

(2) Each man had an hour lunch break.

(3) Each man had at least a fifteen minute break during each half of the shift.

(4) There is no evidence about how much time any part of the equipment was or was not operating.

(5) Workmen were regularly provided reliefs during their shifts.

On this last point, Respondent's evidence is not detailed and probably would not rebut convincing evidence to the contrary. Fortunately for Respondent there is nothing to rebut.

There is nothing else -- except the purported answers of a few unnamed, unknown employees, and an attempt to generalize from these to cover more work stations. The Secretary's evidence attempting to show time of exposure is completely invalid.

Respondent has the most comprehensive and complete noise control program about which we have ever heard testimony.

The Compliance Officer didn't know anything about it. He didn't ask.

"Q. Mr. Jackson, how did you determine that there were no engineering controls by the Respondent, Weyerhaeuser Company, during your inspection in the facility September 19th, 20th, 1972?

A. In a closing conference one of the things we discussed is go through all of the alleged violations. [*135]

Q. Yes, sir.

A. In going through the alleged violations one of the things that comes up or one of the things that came up here was the high noise and the noise over extended periods throughout the plant and different workmen.

Q. You brought it up?

A. I brought this up to them, what basically would be the extent of an alleged violation stating that we would ask for a six-month, a period of approximately six months a forthcoming letter of plan of engineering controls to be submitted to our office, what they planned on taking place.

Q. Did they offer you any plan that they may have had available at that time?

A. No, they did not.

Q. Thereafter was any plan ever submitted to you or your office?

A. No, there was no plan submitted to our office that I know of.

Q. Was there any plan in evidence during your investigation?

A. No, there was no plan in evidence.

Q. Have you ever seen a plan by the Firm?

A. No, I have never seen a plan from the Firm."

(Tr. 64, 65)

The question occurs, "Why didn't Respondent's employees tell him about the plan?" The above quotation is from the evidence about the September inspection. An adequate answer is they weren't asked.

In addition [*136] however, it appears from the evidence that the inspector made no mention of the same thing after the June inspection. No reading taken during the course of his noise testing was made known to Respondent's employees. They did not know -- nor could they reasonably be expected to know -- that Respondent would be cited for noise violations.

The fact is Weyerhaeuser has had a continuing and ongoing noise control program since long before the Occupational Safety and Health Act of 1970. It was apparently speeded up about 1971 in connection with two letters in evidence from the plant engineer to an industrial hygienist of the State of Oregon. Reference is made to complying with Walsh-Healey standards.

All parts of the complex are tested periodically. Where noise is excessive, signs are posted and a condition of employment for those working there is that they wear ear plugs or ear muffs which the Company provides. Two types of plugs are provided. One is a standard rubber plug. The other is specially made of silicone from an individual mold taken by the Company nurse.

Audiometric testing is required of every man when hired, and periodically of all employees on the job. As to extensive [*137] engineering and some administrative controls, the following is a correct statement from Respondent's brief.

"Here are the uncontradicted physical and process engineering controls planned for and implemented prior to Mr. Jackson's inspections:

1. Three planer machine enclosures in full operation in October 1971 - eight months before Mr. Jackson's first inspection of the Weyerhaeuser facility and the planer mill at a cost of $20,000 (Tr. 400, Resp. Ex. 4, 5, 6, 7).

2. Four sawyer's booths completed prior to June 1972. (Tr. 399, 401, Resp. Ex. 9, 10).

3. Redesigned speed of many fans which were too noisy. (Tr. 400).

4. Engineering specifications completed and construction nearing on machine enclosure of waste wood chipper and merchandisers. (Tr. 401).

5. Supervised the taking of noise measurements throughout this engineering program against noise even before OSHA. (Tr. 400).

6. Worked with acoustical engineers for planer enclosures and recent wastewood chipper and merchandiser enclosures. (Tr. 402).

7. Purchased new and replacement equipment specifying OSHA dBA compliance, such as front end loader (Tr. 402-403).

8. In newly constructed particleboard plant (prior [*138] to second inspection by Mr. Jackson in September), constructed two enclosed booths for operators (Tr. 402).

9. Totally enclosed and isolated hog machines (Tr. 403).

10. Isolated veneer chipper (Tr. 403-404).

11. Enclosed booth for merchandiser mill conveyor operation (Tr. 404).

12. Soundproofed cabs for Le Tourneau and other cab operators in the Timberlands Division (Tr. 475-476)."

OPEN-SIDED FLOORS AND PLATFORMS

One alleged non-serious violation in Docket #1758 remains for discussion. It is Item No. 1 and alleges a violation of 29 CFR 1910.23(c)(1) for failure to have standard railings around the open sides of five different platforms or overhead areas. The five areas are not separately numbered.

There is no need to discuss any except the first and last. None are work areas and all are overhead except the last. There is no need for an employee to be on any of them except in connection with his job. There is no evidence in the record that any employee ever was in the second, third or fourth such areas.

The first is the space on top the Coe veneer drier. There is a stairway up to this area with standard stairs and handrails. The plant superintendent testified [*139] that about once a week it is necessary for the drier tender to go up there to check to see if the dampers on the stacks are closed. This takes about ten minutes.

The platform is 14 feet wide. The employee's duties are at the side away from the open edge and none of the man's activities would ever take him closer than six, seven or eight feet to the edge of the platform. He is simply not exposed to any hazard existing because of the absence of a railing.

The last item is a small platform outside a door next to what is described as the "resaw package lift." It is shown in Secretary's Exhibit 4. There is a railing on two sides but not on the third.

In his direct examination the Compliance Officer testified to nothing indicating an employee ever went near the platform. On redirect however, he was asked:

"Q. Mr. Jackson, calling your attention to Item Number 4 of the July Citation, the loft, packing lift Number 1 and Item Number 1, the last sentence in the October Citation, both dealing with the same resaw package lift, Sawmill Number 1, sir, were you ever up on that platform or near that platform?

A. Yes."

(Tr. 252)

There is no other identification in the record showing [*140] this to be the same platform as "Item Number 4 of the July Citation." At the conclusion of his redirect examination, the following occurred:

"The Court: What is that item number on the June Citation, Mr. Friel?

Mr. Friel: I believe it is Item Number 4, Judge, let me recheck. What is the item number, Mr. Jackson, do you have it handy, that is the last sentence in Item 4 of the July 11th, 1972 Citation.

A. (By the Witness:) July 11th Citation, yes, Number 4, second sentence."

(Tr. 255, 256)

In the testimony between the two quotations, Jackson said in June an employer representative accompanying him told him it had been necessary on occasion because of ice and freezing weather and lumber stacks not being piled properly, for an employee to go out on the platform to saw off protruding ends. In addition, in June he saw three employees inside the door six or eight feet from it with the door unlocked. By inference it was closed.

This evidence falls far short of meeting the Secretary's burden of proof. The area is not sufficiently identified as being the same on both Citations. The three employees in June were not exposed to any hazard and the hearsay statement in June about an [*141] occasional happening during previous winters does not prove a violation alleged to have occurred in September of 1972. If the area is the same it was the subject of an Item in the July Citation which was not contested.

LIFE JACKETS

Docket #1231

There remain for decision five alleged violations from the June inspection -- Docket #1231. The first is the allegedly serious claim that three boom men were working without life vests contrary to 29 CFR 1910.265(d)(2)(iii)(g), which requires them to "wear appropriate buoyant devices" in specific situations.

Respondent admitted the violation at the hearing but contests the fact that it is serious and the amount of the penalty. It is doubtful the Solicitor produced less evidence because of the admission. If he did not, then the admission is fortunate for his case, because the evidence is not sufficient to prove a violation.

The Compliance Officer, standing on the log deck of a sawmill, saw three men in the boom area some distance away. One was on a log and two were on a floating walkway. He took pictures and did not go closer to the men.

We may assume the Compliance Officer was able to determine from his distant viewpoint that [*142] the men did not wear the common bulky life jacket. He had no way of knowing, and did not attempt to determine, whether they may have had on some other less noticeable, "appropriate" buoyant device.

The pictures show only two men (Respondent's Exhibits 7 and 8). When it appeared that the pictures showed one man on a log and the other on a fixed stable walkway, the Compliance Officer then moved the third man to a protable floating log walkway out of view of the camera.

So far as the Secretary's contention there was a serious violation is concerned, it is sufficient to say there is no evidence from which any knowledge or notice to the employer could possibly be inferred.

On the question of penalty we should perhaps note that statements in the briefs by counsel for both parties are distorted and misleading. We find no evidence to support them.

Taking into consideration all statutory factors in the entire record, we find that a penalty of $100.00 is appropriate for this violation.

GUARDING OF MECHANICAL POWER TRANSMISSION APPARATUS

Docket #1231

Citation for Serious Violation Number 3

In this Citation for an alleged serious violation of 29 CFR 1910.265(c)(22), the Secretary [*143] lists fifteen places where it is alleged mechanical power transmission apparatus or equipment was not in compliance with Section 219 of Part 1910 as required by the above standard. There is no connection between any two places. They are on three different floor levels. They are located in wide areas of the total complex -- only Items 3 and 4 are close enough together that one employee might be near both places while performing the duties of one job. No employee could be exposed to a hazard from more than one at a time. (See Respondent's Exhibit 14.)

The Compliance Officer testified that each, in his opinion, constituted a serious violation, that no one was dependent on any other. He said his sole reason for so grouping them was to "save Weyerhaeuser money." (Tr. 198)

This action is contrary to our construction of the statute and additionally we question the power of the Secretary to show favoritism to this Respondent over, for example, a small employer charged with one serious violation.

If the Secretary's judgment about the violation is correct, there is a potential saving to Weyerhaeuser of $14,000.00 in penalties. If his judgment is likewise correct about the penalties, [*144] the saving is actually $11,200.00. If we consider also the saw violations in Citation for Servious Violation Number One in Docket #1758, where the testimony was the same about three independent and unrelated offenses, with $900.00 a reasonable penalty for each; the total saving would be $13,000.00.

We find no authority, statutory or otherwise, for this unusual action. Granted, an administrative officer has broad discretion in selective enforcement. But here the discretion had already been exercised -- the violations of law and proposed penalties evaluated.

We find it unnecessary to decide this question, however, because there is a complete failure of proof of every violation alleged. As to all, the evidence presented by the Secretary was vague, indefinite, incomplete and at least in one instance, not credible.

In no case is the actual mechanism -- the machinery -- described sufficiently to show what it is and how it operates. At two places in his testimony, the Compliance Officer explained in a vague way the hazard resulting from various kinds of equipment included in the 15 Items. In none did he relate an opinion to a specific Item.

Three photographs are helpful (Secretary's [*145] Exhibits 9, 10 and 11 -- Items 1, 7 and 9) but are not sufficient to compensate for inadequate correlative evidence.

Following are a few examples of the inadequacy of Complainant's proof. As to Items 1, 5 and 15 there is no evidence indicating that an employee of Respondent would ever be near the place where the machine was located.

Item 6 was in the same posture until cross examination when Respondent brought out that the Compliance Officer saw two employees who were "basically" at their work stations in walking by the machinery and within five feet of it. What machinery? How did it operate? What was the hazard? The Secretary's total testimony about it follows:

"Q. With regard to Sub-item Number 6, what, if anything, did you observe about the chain drive for the guide roll for Mill Number 1, resaw?

A. Well, this is a chain drive with a sprocket and this is again an open type of chain, when I say open I mean it is not guarded, and the sprocket is not guarded."

(Tr. 93)

Cross examination brought out no further facts about the machinery.

With the exception of the head sawyer who had to go through a door mentioned in Item 2, there is no evidence of any other [*146] employees being near any other machinery, in the course of their regular duties or otherwise.

Items 2, 7, 8 and 14 are located where the Compliance Officer said there was an adjacent "walkway." He didn't see anybody walking in any of the four places. There is no evidence of distance -- measured or estimated -- of the "walkway" from a machine. There is no better evidence than that set out above as to what the machines are, how they operate and how anyone going near them might be injured.

The "vertical incline chain . . . not guarded" was "near" the doorway through which the head sawyer had to pass to get to his job station (Item 2). We are unable to determine from the record -- and from hearing the witness -- whether this "vertical incline chain" was six inches or sixteen feet from the door. We are unable to determine what hazard it presented.

On Items 3 and 4, the Compliance Officer said that workman was within five feet, "maybe a little more", of the "chain drive on the infeed roll." He did not mention any other machinery or guard which might be between the workman and the unguarded thing.

Robert Elliott, Respondent's chief engineer at Klamath Falls, testified the workman [*147] was ten feet away. The machine has an additional guard now but at the time of the inspection there was other machinery acting as a barrier guard between each of the workmen involved in the two Items and the point alleged to be dangerous. This machinery is still there.

Elliott further testified that in the regular course of their jobs, no workmen customarily went anywhere near any of the other allegedly hazardous places in the course of their duties or otherwise. We accept this evidence as correct.

RAILING ON WALKWAYS

Docket #1231

Item 5, Non-Serious Violation

First of all we will strike the third item (or subitem). "Throughout the sawmill there are many hand railings that do not have midrails."

These are two similar walkways in similar places. The Compliance Officer measured 29" and 30" as the height of the top railings. At the same time he did not measure the distance from the walkway to the floor below it. Nonetheless it appears that the handrailings at the two locations were not of the height required by 29 CFR 1910.23(e)(1) and that there was a violation -- not serious. The zero penalty proposed is appropriate considering all statutory factors.

FLOOR HOLES [*148]

Docket #1231

Item 6, Non-Serious Violation

This item contains three alleged violations of 29 CFR 1910.23(a)(8) for failure to guard floor holes.

The first item is not a floor hole because its least dimension is 16". (29 CFR 1910.21(a)(1) and (2)). Nevertheless evidence was introduced about it without objection. Counsel for Respondent did not mention until his briefs that the opening is a "floor opening" -- if it is anything defined in the standard.

The emphasis in the last sentence was added because the Compliance Officer testified he did not measure the dimension of the openings at the bottom of each or the bottom part of the floor. He did not know what was immediately beneath them. The evidence unrebutted is sufficient to establish there were two unguarded -- or inadequately guarded floor holes and one floor opening.

The proposed zero penalty is proper, considering all statutory factors.

UNSTABLE LUMBER PILES

Docket #1231

Item 23, Non-Serious Violation

Respondent is charged with a violation of 1910.265(c)(27)(iii) because the Compliance Officer found lumber piles which were uneven and unstable.

The uncontradicted evidence is that this is the "unstacked storage [*149] area." No one works there except employees who come in to straighten the uneven piles, and stabilize the unstable piles. There is no reason for any employee to be there otherwise.

This item of the Citation, and proposed penalty of $200.00, are vacated.

Based upon the entire record, the undersigned now makes the following

FINDINGS OF FACT

The following findings refer to Item 9, Citation for Non-Serious Violation, based on inspection June 21 and 22, 1972, nocket 1231; and Citation for Serious Violation No. 1, based on inspection September 19 and 20, 1972, Docket 1758.

On the dates and at the places alleged Respondent maintains the seven saws described for use by its employees. None of the seven saws had a guard on the lower portion of the blade.

The Secretary purported to promulgate 29 CFR 1910.213 as a national consensus standard by publication on May 29, 1971 in 34 Fed. Reg. 10466. The source standard is one of the American National Standards Institute, adopted in 1954 and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R 1961).

III

A headnote to ANSI 01.1 1954 (R 1961) at the beginning Section 4.1 thereof provides:

"NOTE: It is recognized that the standards [*150] for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged."

Section 213(h)(1) of Part 1910 was derived from Section 4.1.9 RADIAL SAWS (a) Hoods and Guards of ANSI 01.1 1954 (R 1961). The headnote is an integral part of Section 4.1 and every subsection and part thereof. Section 4.1.9(a) with the headnote produces the result that the use of lower blade guards for radial arm saws is optional. Section 213(h)(1) of Part 1910 has the effect of requiring the use of lower blade guards for all radial arm saws, at all times used. Its requirements are mandatory. The meaning, scope and application of the source standard are thereby materially changed.

ANSI 01.1 1954 (R 1961) before its purported adoption by the Secretary, had not been [*151] adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it could be determined by the Secretary that persons interested and affected by the scope of provisions of the standard had reached substantial agreement on its adoption. In fact, only the 13 or 14 organizational members of the committee writing the standard -- not the corporations or other persons constituting such organizations -- and the individuals representing them, along with members of the Safety Technical Advisory Board and the Board of Standards Review of ANSI had reached such substantial agreement.

ANSI 01.1 1954 (R 1961) was formulated in a manner which afforded an opportunity for diverse views to be considered.

No lower blade guard now known to experts in the industry, or experts on saws; and meeting the definition of 29 CFR 1910.213(h)(1); would lessen the danger or increase the safety of the radial arm saws on simple cross cuts. On other cuts the saws are designed to make -- and do make in industrial uses -- the guard would cause greater danger and hazard to the operator. The total effect of the use of any guard now known would be to increase danger [*152] and hazard, rather than promote occupational safety. Such a guard offers an accident hazard in itself greater than any against which it protects.

On many cuts the saws are designed to make -- and do make in normal use -- the guard described by the standard cannot be used at all.

The following findings refer to Citations issued following inspection June 21 and 22, 1972, Docket 1231.

VII

Citation for Serious Violation No. 2

Three of Respondent's employees were working on the mill pond adjacent to #1 sawmill while not wearing appropriate buoyant devices, in violation of 29 CFR 1910.265(d)(2)(iii)(g). This is not a serious violation. A reasonable penalty is $100.00.

VIII

Citation for Serious Violation No. 3

Complainant has failed to meet his burden of proof of violation by Respondent of any standard covering power transmission apparatus.

Items 1 and 2, Citation No. 1 (Non-Serious Violations)

Complainant has failed to meet his burden of proof that workmen were not protected against excessive noise levels in any of the locations alleged, or that Respondent failed to provide and implement a plan of administrative or engineering controls to reduce sound levels for employees [*153] to permissible exposures at any of the locations alleged.

Item 5, Citation No. 1 (Non-Serious)

Two cross-over conveyor walkways in mill #1 had top hand rails 29" and 30" high respectively, instead of 42" as required by 29 CFR 1910.23(e)(1). No monetary penalty is justified for this violation.

Item 6, Citation No. 1 (Non-Serious)

At two places in Respondent's plant it maintained floor holes, and in one, a floor opening, without adequate guarding contrary to 29 CFR 1910.23(a)(7) and (8). No monetary penalty is justified for this violation.

XII

Item 23, Citation No. 1 (Non-Serious)

Complainant has failed to meet his burden of proof regarding a violation of the standard referring to unstable lumber piles.

The following findings refer to Citation resulting from inspection of September 19 and 20, 1972, Docket 1758

XIII

Item 1, Citation No. 1 (Non-Serious)

Complainant has failed to meet his burden of proof of a violation of 29 CFR 1910.23(c)(1) at any of five locations, not separately numbered.

XIV

Items 8 and 9, Citation No. 1 (Non-Serious)

Complainant has failed to meet his burden of proof that workmen were not protected against excessive noise levels in any of the [*154] locations alleged, or that Respondent failed to provide and implement a plan of administrative or engineering controls to reduce sound levels for employees to permissible exposures at any of the locations alleged.

Based upon the foregoing and upon all facts admitted, stipulated, or proved by uncontradicted substantial credible evidence, the undersigned hereby makes the following

CONCLUSIONS OF LAW

Respondent is engaged in a business affecting commerce within the provisions of Section 3(3) of the Occupational Safety and Health Act of 1970. The Review Commission has jurisdiction of the parties and subject matter of this action.

ANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR 1910.213(h)(1) because the Secretary was acting in excess of his statutory authority in the deletion of the headnote to Section 4.1.

III

ANSI 01.1 1954 (R 1961) is not a national consensus standard as defined in Section 3(9) of the Act.

29 CFR 1910.213(h)(1) was not a valid enactment by the Secretary of a national consensus standard under Section 6(a) of the Act. 29 CFR 1910.213(h)(1) is invalid and unenforceable.

Citation for Serious Violation No. 2, dated July 11, 1972 should [*155] be affirmed as a non-serious violation. The penalty therefor should be $100.00.

Item 5, Citation No. 1, dated July 12, 1972, sub-items 1 and 2 regarding hand railings on two walkways should be affirmed and no penalty assessed therefor.

VII

Item 6, Citation No. 1, dated July 12, 1972, regarding two floor holes and one floor opening should be affirmed. No penalty should be assessed therefor.

ORDER

Based upon inspections of Respondent's plant and worksite at Klamath Falls, Oregon on June 20 and 21, 1972 and Citations of July 11, 1972; and inspections of September 19 and 20, 1972, with Citations of October 27, 1972,

IT IS HEREBY ORDERED THAT:

Citation for Serious Violation No. 2, dated July 11, 1972, is hereby affirmed as a non-serious violation. A civil penalty of $100.00 is assessed.

Item 5, Citation No. 1 (non-serious) dated July 11, 1972 is hereby affirmed as to sub-items 1 and 2 thereof. Proposed penalty in the amount of $0 is affirmed.

III

Item 6, Citation No. 1 (non-serious) dated July 12, 1972 is affirmed as amended by the proof to show two unguarded floor holes and one unguarded floor opening. Proposed penalty in the amount of $0 is affirmed.

IV [*156]

All other Citations and Items thereof issued to Respondent July 11 and October 27, 1972, growing out of an inspection of its worksite at Klamath Falls, Oregon on June 21 and 22, 1972 and September 19 and 20, 1972 be and the same hereby are Vacated. The proposed penalties therefor are Vacated.

GARL WATKINS, Judge

APPENDIX

Docket 1231

CITATION FOR SERIOUS VIOLATION, Citation Number 2 of 3

"Standard or regulation
allegedly violated	Description of alleged violation
29 CFR 1910	June 21, 1972
1910.265(d)(2)(iii)(g)	One workmen was observed working on
	the logs #1 sawmill pond without
	bouyant life vests. Two workmen
	were observed working from walkway
	at pond shack #1 sawmill without
	bouyant life vests."

COMPLAINT

"IV.

On June 21, 22, 1972, at the aforesaid worksite and place of business and of employment, the respondent violated the safety and health regulations in the following respects:

2. One workman was observed working on the logs #1 sawmill pond without bouyant life vests. Two workmen were observed working from walkway at pond shack #1 sawmill without boyant life vests, contrary to 29 CFR 1910.265(d)(2)(iii)(g);"

STANDARD

"1910.265(d)(2) Log [*157] unloading and storage areas

(iii) Log booms and ponds

(g) Employees whose duties require them to work from boats, floating logs, boom sticks, or walkways along or on water shall be provided with and shall wear appropriate buoyant devides while performing such duties."

PROPOSED PENALTY: $800.00

CITATION FOR SERIOUS VIOLATION, Citation Number 3 of 3

"Standard or regulation
allegedly violated	Description of alleged violation
29 CFR 1910	June 21 & 22, 1972
1910.265(c)(22)	1. The drive gear & chain is not guarded
	on the yard bark conveyor.
	2. The vertical inclined chain is not guarded
	at the doorway to #4 head rig in #1 sawmill.
	3. #3 edger #4 side the chain drive on the
	infeed roll is not guarded.
	4. #3 gang edger has a not guarded endshaft
	with open keyway and a chain drive that is
	not guarded.
	5. The last section on #2 head rig by the
	cant drop, the last section on #4 head rig
	by cant drop, has coupling that are not guarded.
	6. The chain drive for the guide roll to the
	resaw in mill #1 are not guarded.
	7. In the kiln pits there are 29 fan drives
	that are not completely guarded.
	8. In mill #2 the long green chain decline
	area has a S chain drive that is not guarded.
	9. The sweed puller on the green chain grading
	station mill #1, has a unguarded chain & gear.
	10. The Boulder saw in car strip area of mill
	#1 has an unguarded chain & belt drive.
	11. The coupling drive to the amplidyne for
	#3 planer feed table in the planer mill is
	not guarded.
	12. The feed table chain drive is not completely
	guarded on #1 planer in the planer
	mill.
	13. The drive chain is not completely guarded
	on #4 planer in the planer mill.
	14. The end stamper drives are not guarded on
	#2 and #3 grading station in the planer mill.
	15. The #2 and 3 roll casings have 4 unguarded
	drive couplings & a 2&1/2 X 12" unguarded end
	shaft."

[*158]

COMPLAINT

"IV.

On June 21, 22, 1972, at the aforesaid worksite and place of business and of employment, the respondent violated the safety and health regulations in the following respects:

1. The drive gear and chain are not guarded on the yard bark conveyor.

2. The vertical inclined chain is not guarded at the doorway to #4 head rig in #1 sawmill.

3. #3 edger #4 side the chain drive on the infeed roll is not guarded.

4. #3 gang edger has a not guarded endshaft with open keyway and a chain drive that is not guarded.

5. The last section on #2 head rig by the cant drop, the last section on #4 head rig by cant drop, has coupling that are not guarded.

6. The chain drive for the guide roll to the resaw in mill #1 are not guarded.

7. In the kiln pits there are 29 fan drives that are not completely guarded.

8. In mill #2 the long green chain decline area has an S chain drive that is not guarded.

9. The sweed puller on the green chain grading station mill #1, has an unguarded chain and gear.

10. The Boulder saw in car strip area of mill #1 has an unguarded chain and belt drive.

11. The coupling drive to the amplidyne for #3 planer feed table in the planer [*159] mill is not guarded.

12. The feed table chain drive is not completely guarded on #1 planer in the planer mill.

13. The drive chain is not completely guarded on #4 planer in the planer mill.

14. The end stamper drives are not guarded on #2 and #3 grading station in the planer mill.

15. The #2 and #3 roll casings have 4 unguarded drive couplings and a 2&1/2 X 12" unguarded end shaft.

All contrary 29 CFR 1910.265(c)(22)."

STANDARD

"1910.265(c) Building facilities, and isolated equipment --

(22) Mechanical power-transmission apparatus. The construction, operation, and maintenance of all machanical power-transmission apparatus shall be in accordance with the requirements of § 1910.219."

PROPOSED PENALTY: $800.00

CITATION NUMBER 1 (Non-Serious)

"Item	Standard or regulation
Number	allegedly violated	Description of alleged violation
	29 CFR 1910	June 21 & 22, 1972
1	1910.95(a)	The workman in the following locations are
		not protected against excessive noise levels:
		1. Le Touneau 2963 cab.
		2. #1 headsawyer #1 sawmill.
		3. #2 tailsawyer #1 sawmill.
		4. #2 headsawyer #1 sawmill.
		5. #3 headsawyer #1 sawmill.
		6. #4 side operator on #3 edger #1 sawmill.
		7. #3 gang edgerman #1 sawmill.
		8. Gangsaw operator #1 sawmill.
		9. Barkerman #2 sawmill.
		10. Cutoff sawyer #2 sawmill.
		11. #1 unstacker.
		12. #2 unstacker.
		13. #3 grading station in planer mill
		one workman.
		14. Main chain area in planer mill three
		workmen.
		15. #3 ripsaw area in planer mill one
		workman."

[*160]

COMPLAINT

"V.

On June 21, 22, 1972, at the aforesaid place of business and of employment, the respondent in addition violated the safety and health regulations, in other respects, involving 24 enumerated items, all fully described with particularity in Citation Number 1, dated July 11, 1972, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference as if fully rewritten herein, and hereinafter referred to as Exhibit A or Citation Number 1."

STANDARD

"1910.95 Occupational noise exposure.

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response.

(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous. [*161]

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

TABLE G-16 -- PERMISSIBLE
NOISE EXPOSURES n1
	Sound level
	dBA slow
Duration per day, hours	response
8	90
6	92
4	95
3	97
2	100
1&1/2	102
1	105
1/2	110
1/4 or less	115

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1 + C2/T2 Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. On indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

PROPOSED PENALTY: $80.00

CITATION NUMBER 1 (Non-Serious)

"Item	Standard or regulation
Number	allegedly violated	Description of alleged violation
	29 CFR 1910	June 21 & 22, 1972
2	1910.95(b)(1)	Failure to provide and implement a plan
		of administrative or engineering controls
		to reduce sound levels for employees to
		permissible exposures as defined in
		Table G16 under 1910.95, these employees
		being present in the following locations
		with the sound levels noted for each
		location:
		1. Le Tourneaus Cab area
		2. Barkerman #1 sawmill
		3. #1 Head & tailsawer #1 Sawmill
		4. #2 Head & tailsawer #1 Sawmill
		5. #3 Head & tailsawer #1 Sawmill
		6. #4 Head & tailsawer #1 Sawmill
		7. #4 edgermen right & left #1 sawmill
		8. #3 gang edgerman #1 sawmill
		9. #2 gang edgerman #1 sawmill
		10. #1 edgerman #1 sawmill
		11. Gangsaw sawyer & helper #1 sawmill
		12. #1 & 2 edger offbear #1 sawmill
		13. #4 holeman #1 sawmill
		14. Slasher sawman #1 sawmill
		15. #1, 2, 3 & 4 trimmermen #1 sawmill
		16. Resawman #1 sawmill
		17. Stockpicherman #1 sawmill
		18. Sorter graderman #1 sawmill
		19. #1 green chain grader #1 sawmill
		20. Board hop area #1 sawmill
		21. Slab mill feeder & offbear #1 sawmill
		22. Slabmill striper & bolter #1 sawmill
		23. Barkerman #2 sawmill
		24. Cut off sawyer #2 sawmill
		25. Quad sawyer & off bear #2 sawmill
		26. Edgerman #2 sawmill
		27. Trimmerman #2 sawmill
		28. #1 & 2 unstacker area
		29. #1 & 2 planer station feeders
		30. #1 & 2 planer grader & offbears
		31. #4 planer short feed station.
		32. #2 planer trimmer station
		33. #3 planer edgerman
		34. #3 planer grading station
		35. #3 planer trimmer operators station
		36. #3 planer trimmer offbears
		37. Main chain workman
		38. #3 ripsaw area
		39. #1, 2, & 3 molder area

[*162]

COMPLAINT

See Item 1, page 4

STANDARD

1910.95(b)(1). See Item 1, pages 4 & 5.

PROPOSED PENALTY: $0

	Standard or regulation
"Item	allegedly violated	Description of alleged violation
Number	29 CFR 1910	June 21 & 22, 1972
5	1910.23(e)(1)	1. The crossover conveyor walkway in
		mill #1, headrig #2 has a handrailing
		which is 29" high & does not have a
		midrail.
		2. The crossover conveyor walkway in
		mill #1, headrig #3 going to #4 has a
		handrailing which is 30" high and does
		not have a midrail.
		3. Throughout the sawmill there are
		many handrailings that do not have
		midrails."

COMPLAINT

See Item 1, page 4

STANDARD

"1910.23 Guarding floor and wall openings and holes.

(e) Railing, toe boards, and cover specifications.

(1) A standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway, or ramp level. The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be approximately halfway between the top rail and the floor, platform, runway, or ramp. The [*163] ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard."

PROPOSED PENALTY: $0

	Standard or regulation
"Item	allegedly violated	Description of alleged violation
Number	29 CFR 1910	June 21 & 22, 1972
6	1910.23(a)(8)	1. In mill #2 slab drop area there is a
		floor hole approx. 16" X 25" which has a
		18" railing around it.
		2. In mill #2 trimmer area back drive
		side there is a floor hole irregular
		size of approx. 26" X 24" X 10" with no
		railings around it.
		3. In mill #1 car strip area there is
		a floor hole approx. 11" X 12" which
		has no railings on the front side."

COMPLAINT

See Item 1, page 4

STANDARD

"1910.23 Guarding floor and wall openings and holes.

(a) Protection for floor openings.

(8) Every floor hole into which persons can accidentally walk shall be guarded by either:

(i) A standard railing with standard toeboard on all exposed sides, or

(ii) A floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable [*164] standard railing."

PROPOSED PENALTY: $0

	Standard or regulation
"Item	allegedly violated	Description of alleged violation
Number	29 CFR 1910	June 21 & 22, 1972
9	1910.213(h)(1)	1. By the electricians shop is a radial
		saw, which does not have a guard on the
		lower half of the blade.
		2. At the east end of the unstacker bldg.
		is a radial saw, which does not have a
		guard on the lower half of the blade.
		3. In shed #3 the Dunmage saw does not
		have a guard on the lower half of the blade.
		4. In mill #1 planer #4 area the radial
		jump saw does not have a guard on the
		lower half of the blade.

COMPLAINT

See Item 1, page 4

STANDARD

"1910.213 Woodworking machinery requirements.

(h) Radial saws.

(1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade [*165] by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed."

PROPOSED PENALTY: $200.00

	Standard or regulation
"Item	allegedly violated	Description of alleged violation
Number	29 CFR 1910	June 21 & 22, 1972
23	1910.265(c)(27)(iii)	In the storage area at the east end of
		the unstacker bldg. lumber is stacked
		3 & 4 units high, (approx. 16') and the
		way some of stacks are stacked it is a
		hazard to be in the area. One unit of
		lumber had fallen over and one stack was
		3 "off center at the top."

COMPLAINT

See Item 1, page 4

STANDARD

"1910.265 Sawmills.

(27) Lumber piling and storage

(iii) Unstable piles. Piles of lumber which have become unstable shall be immediately made safe, or the area into which they might fall shall be fenced or barricaded and employees prohibited from entering it."

PROPOSED PENALTY: $200.00

Docket 1758

CITATION FOR SERIOUS VIOLATION, Citation Number 1 of 1

"Standard or regulation	Description of alleged violation
allegedly violated	September 19-20, 1972
29 CFR 1910.213(h)(1)	The following radial saws are not equipped
	with a guard to cover the sides of the
	lower exposed portion of the saw blade.

	1. Riptrack 14" DeWalt
	2. Jt Finish 13&1/2" Coe
	3. Jt Finish 14" DeWalt

[*166]

COMPLAINT

"IV.

On September 19, 20, 1972, at the aforesaid worksite and place of business and employment, the respondent violated the safety and health regulations in the following respects:

The following radial saws are not equipped with a guard to cover the sides of the lower exposed portion of the saw blade:

1. Riptrack 14" DeWalt

2. Jt Finish 13-1/2" Coe

3. Jt Finish 14" DeWalt

All contrary to 29 C.F.R. 1910.213(h)(1)."

STANDARD

"1910.213 Woodworking machinery requirements.

(h) Radial saws.

(1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a devide that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed."

PROPOSED PENALTY: $900.00

CITATION [*167] NUMBER 1 (Non-Serious)

	Standard or regulation
"Item	allegedly violated	Description of alleged violations
Number	29 CFR Part 1910	September 19-20, 1972
1	1910.23(c)(1)	The top of the Coe veneer dryer does not
		have handrails and it is approximately
		a 14 foot drop to floor level. The
		overhead storage above the tool room in
		the plywood maintenance shop does not
		have handrails and it is approximately
		an 8 foot drop to floor level. The
		overhead storage above the restroom in the
		plywood maintenance shop does not have
		handrails and it is approximately and
		11 foot drop to floor level. The over-
		head glue loft has approximately a 14
		foot open side which is not protected
		by handrails; the drop to floor level
		is approximately 10 feet. The elevated
		platform on the right side of the resaw
		package lift to sawmill #1 does not have
		handrails on the package life side; it is
		approximately a 22 foot drop to ground
		level."

COMPLAINT

"V.

1. The top of the Coe Veneer dryer does not have handrails and it is approximately a 14 foot drop to floor level. The overhead storage above the tool room in the plywood maintenance [*168] shop does not have handrails and it is approximately an 8 foot drop to floor level. The overhead storage above the restroom in the plywood maintenance shop does not have handrails and it is approximately an 11 foot drop to floor level. The overhead glue loft has approximately a 14 foot open side which is not protected by handrails; the drop to floor level is approximately 10 feet. The elevated platform on the right side of the resaw package lift to sawmill #1 does not have handrails on the package lift side; it is approximately a 22 foot drop to ground level, contrary to 29 C.F.R. 1910.23(c)(1);"

STANDARD

"1910.23 Guarding floor and wall openings and holes.

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides.

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which [*169] falling materials could create a hazard."

PROPOSED PENALTY: $90.00

	Standard or regulation
"Item	allegedly violated	Description of alleged violation
Number	29 CFR Part 1910	September 19-20, 1972
8	1910.95(a)	The workmen in the following locations
		are not protected against excessive
		noise levels.

		1. High defect yard - the operator of
		980 Cat log unloader #952977
		2. Green end of plywood mill - the
		operator 950 Cat log loader.
		3. Green end of plywood mill - the
		lathe spotter, the clipper (lower)
		operator, the clipper spotter.
		4. Dry end of plywood mill - the
		dryer feeder (upper), the dry
		section feeder.

COMPLAINT

"V.

2. The workmen in the following locations are not protected against excessive noise levels.

1. High defect yard - the operator of 980 cat log unloader 952977

2. Green end of plywood mill - the operator 950 Cat log loader.

3. Green end of plywood mill - the lathe spotter, the clipper (lower) operator, the clipper spotter.

4. Dry end of plywood mill - the dryer feeder (upper), the dry section feeder.

All contrary to 29 CFR 1910.95(a);"

STANDARD

"1910.95 Occupational noise exposure.

(a) Protection [*170] against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

TABLE G-16 -- PERMISSIBLE
NOISE EXPOSURES n1
	Sound level
	dBA slow
Duration per day, hours	response
8	90
6	92
4	95
3	97
2	100
1 & 1/2	102
1	105
1/2	110
1/4 or less	115

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1 + C2/T2 Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level."

[*171]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

PROPOSED PENALTY: $0

	Standard or regulation
"Item	allegedly violated	Description of alleged violation
Number	29 CFR Part 1910	September 19-20, 1972
9	1910.95(b)(1)	Failure to provide and implement a plan
		of administrative or engineering controls
		to reduce sound levels for employees to
		permissible exposures as defined in
		Table G16 under 1910.95; these employees
		being present in the following locations
		with the sound level noted for each
		location.

		1. Merchandiser edger operator
		101-103 dBA
		2. Merchandiser head sawyer 94-99 dBA
		3. Merchandiser trimmer operator
		105-107 dBA
		4. High defect yard #952977 Cat log
		unloader 980 operator 95-112 dBA
		5. Plywood green end Cat log loader
		95 operator 96-111 dBA
		6. Plywood green end lathe operator
		94-100 dBA
		7. Plywood green end lathe spotter
		92-98 dBA
		8. Plywood green end clipper spotter
		92-96 dBA
		9. Plywood green end lower clipper
		operator 92-98 dBA
		10. Plywood dry end upper dryer feeder
		91-93 dBA
		11. Plywood dry end dry section feeder
		93-94 dBA
		12. Grade line grader (shinner saw)
		98-103 dBA
		13. Grade line off bears (4 men) 93 dBA
		14. Panel grader 92-94 dBA
		15. Hardboard plant press unloader
		operator 92-97 dBA
		16. Hardboard plant automatic trim saw
		operator 92-95 dBA
		17. Hardboard plant out of line planer
		operator 92-96 dBA
		18. Clean up man in Hog house 96-101 dBA
		19. Hog tender in Hog house 95-111 dBA
		20. Chipper feeder in Hog house 94-101 dBA"

[*172]

COMPLAINT

"V.

3. Failure to provide and implement a plan of administrative or engineering controls to reduce sound levels for employees to permissible exposures as defined in Table G16 under 1910.95; these employees being present in the following locations with the sound level noted for each location.

1. Merchandiser edger operator 101-103 dBA

2. Merchandiser head sawyer 94-99 dBA

3. Merchandiser trimmer operator 105-107 dBA

4. High defect yard #952977 Cat log unloader 980 operator 95-112 dBA

5. Plywood green end Cat log loader 95 operator 96-111 dBA

6. Plywood green end lathe operator 94-100 dBA

7. Plywood green end lathe spotter 92-98 dBA

8. Plywood green and clipper spotter 92-96 dBA

9. Plywood green end lower clipper operator 92-98 dBA

10. Plywood dry end upper dryer feeder 91-93 dBA

11. Plywood dry end dry section feeder 93-94 dBA

12. Grade line grader (shinner saw) 98-103 dBA

13. Grade line off bears (4 men) 93 dBA

14. Panel grader 92-94 dBA

15. Hardboard plant press unloader operator 92-97 dBA

16. Hardboard plant automatic trim saw operator 92-95 dBA

17. Hardboard plant out of line planer operator 92-96 dBA

18. Clean up man in Hog [*173] house 96-101 dBA

19. Hog tender in Hog house 95-111 dBA

20. Chipper feeder in Hog house 94-101 dBA

All contrary to 29 C.F.R. 1910.95(b)(1)."

STANDARD

See Item 8, page 4

PROPOSED PENALTY: $0