Docket No. 3120

GREYHOUND LINES-WEST

OSHRC Docket No. 3120

Occupational Safety and Health Review Commission

May 27, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry Mahlman, Regional Solicitor

Norbert E. Anderson, GREYHOUND LINES-WEST, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A report of Review Commission Judge Jerry W. Mitchell dated June 25, 1974 is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 The Judge would find Respondent in violation of 29 C.F.R. 1910.22(c) n2 for failure to cover or provide guardrails around a bus service maintenance pit. Judge Mitchell would not assess a penalty.

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n1 29 U.S.C. § 651 et seq., hereinafter "the Act."

n2 The standard provides that:

"covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, di ches, . . ."

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The facts are not in dispute. The big maintenance pit is located in Respondent's garage in Salt Lake City, Utah. It is used to service and repair Respondent's buses. The pit has an open length of 40 feet depth of 5-1/2 feet and [*2] width of 3-1/3 feet. The pit is located in a well-lighted area, and is outlined by a four (4) inch wide yellow stripe. When the pit is not being used it is open and unprotected by a cover or guardrails. When it is used for maintenance or inspection purposes, it is covered completely by the bus upon which work is performed. The record shows that during the summer months the pit is open for periods of two to three minutes at a time. During the winter months, the pit is open for periods of up to two hours. When buses are not being serviced, at least one employee remains in the pit area to clean the base portion, the inside, or the perimeter of the pit. On the basis of these facts and evidence of employee exposure, Judge Mitchell would affirm the citation.

Respondent petitioned for review. Commissioner Moran directed review on the following issues:

(1) Was there sufficient evidence to sustain a finding that Respondent violated the Act as alleged?

(2) Did the occupational safety and health standard 29 C.F.R. § 1910.22(c) apply to Respondent's business?

(3) Does the evidence establish an affirmative defense that compliance with requirements of the standard would (a) interfere [*3] with the work or (b) increase the hazard to employees?

The issues raised by the direction and the arguments of the parties on review are similar if not precisely the same as those advanced in Lee Way Motor Freight, Inc., 7 OSAHRC 1128, BNA 1 OSHC 1689, CCH OSHD para. 17,693 (1974), aff'd, 511 F.2d 864 (10th Cir. 1975). See also Transcon Lines, Inc., 8 OSAHRC 247, BNA 1 OSHC 1747, CCH OSHD para. 17,786 (1974); aff'd, No. 74-1413, unofficially reported BNA 3 OSHC 1137, (10th Cir., April 16, 1975). The only differences between this case and the cited cases are, here the pit is used to service buses rather than trucks, and here, the pit is outlined by a yellow warning stripe. We do not view the differences as being significant enough to distinguish this case from the cited cases. Accordingly, the administrative law judge's report is adopted as the decision of the Commission.

So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

With this decision, the Commission is woodenly applying a job safety standard in a manner which will force respondent to undertake time-consuming and disruptive corrective measures for reasons which are not legally justifiable and cannot improve [*4] the job safety and health regime at the cited workplace.

It is clear to me that the cited standard does not apply to either the motor carrier industry in general or to vehicle maintenance pits in particular. My colleagues' contrary ruling is erroneous for a number of reasons. First of all, the motor carrier industry, of which respondent is a part, is exempt from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. § 653(b)(1). Furthermore, neither the wording nor history of 29 C.F.R. § 1910.22(c) suggests that this standard applies to vehicle maintenance pits. In addition, the application of this standard to respondent's maintenance pit will severely interfere with the performance of work at respondent's bus service center and result in decreasing rather than enhancing employee safety at this worksite.

The standard in question, § 1910.22(c), provides that "[c]overs and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc." Nothing in this standard, nor for that matter in any [*5] other standard that has been brought to our attention, equates a "maintenance pit" with an "open pit." n3 Moreover, the terms used in conjunction with the word "pit" in this standard to not suggest that a "maintenance pit" is included within the term "open pit." The terms "tanks, vats, ditches, etc." do not refer to similar hazards. I therefore heartily agree with Circuit Judge Breitenstein who concluded:

"Maintenance pits are included in the regulation, if at all, by "etc.", a symbol of doubtful significance. I suggest that if the regulation is to apply to maintenance pits, it should specifically mention them."

Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2D 864, 870 (10TH Cir. 1975) (dissenting opinion).

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n3 In fact, a standard brought to our attention by respondent suggests that a "pit" which is frequently used, as is the one involved herein, is not required to be covered or guarded. That standard, which is 29 C.F.R. § 1910.23(a)(5), provides:

"Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction which should be hinged in place. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all sides by removable standard railings."

See Secretary v. Lee Metals Corp., 3 OSAHRC 436, 444-445 (1973), which held that a garage pit was used with sufficient frequency not to fall within the purview of this standard because it was used on a daily basis.

[*6]

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Furthermore, a review of the history of this standard demonstrates that it was never intended to apply to vehicle maintenance pits. For a period of two years following the effective date of the Occupational Safety and Health Act, the Secretary of Labor was authorized to promulgate by rule as an occupational safety and health standard any established Federal standard without giving interested parties an opportunity to object thereto and without following the other procedures for promulgating standards specified in 29 U.S.C. § 655(b) or the Administrative Procedure Act. 29 U.S.C. § 655(a). The standard in issue in this case was promulgated as an established Federal standard pursuant to this authority, and its source was 41 C.F.R. § 50-204.3(g), n4 a regulation that had been promulgated under the Walsh-Healey Act, 41 U.S.C. § 35 et seq. n5

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n4 See 29 C.F.R. § 1910.31.

n5 There is considerable doubt in my mind that this standard, like other Walsh-Healey standards, qualified as an "established Federal standard" as that term is defined in 29 U.S.C. § 652(10). Few employers were aware of the existence of these standards and they were seldom enforced. Thus, they were not truly "operative" or "in effect" as is required by 29 U.S.C. § 652(10). See my dissenting opinion in Secretary v. Lee Way Motor Freight, Inc., 7 OSAHRC 1128, 1134 (1974). Although the circuit court when considering that case on appeal in Lee Way Motor-Freight, Inc. v. OSAHRC, supra, did not agree with my position, it was apparently under the mistaken impression that interested parties were afforded the opportunity to "file objections" to the adoption of the regulation as an occupational safety and health standard. 511 F.2d at 868.

[*7]

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It is clear from examining the above-cited Walsh-Healey regulation that it was never intended to apply to vehicle maintenance pits. The section in which this standard appears is entitled "Material handling and storage." All of the other six subparagraphs in this section relate to the maintenance of storage areas and the handling of materials in those areas. Thus, it is clear that the drafters of this Walsh-Healey standard could never have intended, and would probably now be most startled to discover, that the standard they drafted would be interpreted to require guardrails and covers for motor vehicle maintenance pits. n6

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n6 It should be noted, in addition, that the Walsh-Healey Act, in any event, does not apply to transportation companies. Therefore, a vehicle maintenance pit for a bus company could not be regulated pursuant to that Act. That Act provides that:

"Nothing [herein] shall be construed to apply to carriage of freight or personnel by vessel, airplane, bus, truck, express, or railway line where published traffic rates are in effect or to common carriers subject to the Communications Act of 1934."

[*8]

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By construing this broadly worded and vague standard to require that vehicle maintenance pits have covers or guardrails, the Commission with the sweep of a pen, has created the requirement that vehicle maintenance pits be so encumbered throughout the country. The United States Court of Appeals for the First Circuit has admonished the Commission for this practice in a case involving a different standard. The court said in Cape and Vineyard Division of New Bedford Gas v. OSAHRC, 512 F.2d 1148, 1153 (1st Cir. 1975):

"[W]e observe that the finding of a violation of the broadly worded regulation in this one situation will in effect establish an across-the-board requirement for similar activity in the industry; as a matter of sound policy, OSHA should not accept a nonobvious interpretation of the regulation without the guidance of knowledgeable sources as to the practicability and utility of the safety requirements as so interpreted."

In this case, no evidence was presented that the guarding of vehicle maintenance pits will be practical or useful. In fact, the only witness who testified, respondent's [*9] safety director, was of the opinion that this requirement was pointless and impractical.

The above considerations, in my view, are compelling reasons why the citation against this respondent should be vacated. A review of the evidence in this case, however, provides yet additional reasons why this citation should be vacated.

The testimony of respondent's safety director indicates that both railings and covers would have to be removed in order to perform required maintenance. Use of a cover would be extremely impractical. Since covers must meet certain specifications for weight bearing capacity, acceptable covers would be extremely heavy because they would have to cover an area of at least 140 square feet. The covers could thus be removed only by a motorized or mechanized device.

Respondent's safety director testified further that only service employees, and not bus drivers and passengers, are allowed in the service area. Workmen from the service crews are not allowed to remain in the pit area when a bus is not being serviced unless they have specific duties in the pit, such as cleaning it up. Respondent's safety rules prohibit any employee from jumping or stepping over any [*10] portion of the pit, and employees are subject to disciplinary measures if they break this rule. There has been only one instance when any employee stepped or jumped over the pit so far, and he was disciplined for it. No injuries have been caused by anyone falling into the pit for the entire period the pit had been in use, a period of six years.

When being serviced, buses remain over the pit for a minimum of 15 to 20 minutes. During the winter months when about 30 buses are serviced each day, the pit might not be in use and therefore not covered with a bus for periods of from 20 minutes to 2 hours. During the summer months, when about 60 buses are serviced daily, the pit is uncovered for only 2 to 3 minutes at a time. As is apparent from these statistics, erecting and removing guardrails, or placing and removing a cover, would seriously interfere with the servicing of buses throughout the year. In addition, during the summer, n7 the time required to complete either of these operations would probably be greater than the intervals between servicing.

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n7 The violation allegedly occurred in the month of May. This provides additional validity for respondent's contention that the standard does not apply because the pit was frequently used. See note 3, supra, for a discussion thereof.

[*11]

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Moreover, the execution of either of these procedures will require that employees spend time near the edge of the pit that they would otherwise spend elsewhere. This will increase the employee exposure to the hazard of falling into the pit. As a net result, all of this disruptive and unnecessary activity around the pit will inevitably make compliance more hazardous than noncompliance.

Longstanding Commission precedent holds that compliance with a standard is not required when compliance would be more hazardous than noncompliance n8 or when noncompliance is necessary to permit the accomplishment of required work. n9 Respondent, in my view, has established both of these defenses.

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n8 Secretary of Labor v. Carpenter Rigging & Contracting Corp., 15 OSAHRC 400, 407 (1975); Secretary of Labor v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974).

n9 Secretary v. Consolidated Engineering, Inc., 12 OSAHRC 490 (1974), and the cases cited therein; Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245, 246 (1974).

[*12]

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Since my colleagues adopt Judge Mitchell's decision, the same is attached hereto as Appendix A so that the Commission's position may be fully known.

APPENDIX A

DECISION AND ORDER

Donald F. Rector, for Complainant

Richard M. Hannon, for Respondent

STATEMENT OF THE CASE

Jerry W. Mitchell, Judge

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) contesting one Item of a Citation for Non-Serious Violations issued by the Secretary of Labor (Complainant) against Greyhound Lines-West (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "bus maintenance service" located at 22 North, 200 West, Salt Lake City, Utah, was inspected on May 9, 1973 by a Compliance Safety and Health Officer (CSHO) on behalf of the Secretary of Labor. Alleged violations of certain safety standards were noted during the inspection. A Citation for Non-Serious Violations (4 Items) was issued on May 18th. The safety standards allegedly violated were duly promulgated by the Secretary of Labor [*13] pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations at Part 1910.

Respondent has only contested Item 4 of the Citation together with the penalty proposed therefore. The alleged violation covered by that Item is described as follows with the standard cited quoted immediately thereafter:

Item 4 --

"In the service section the pit was not provided with covers and/or guardrails when not in use.

ABATE -- "6/20/73"

STANDARD -- 29 CFR 1910.22(c) --

"Subpart D -- Walking-Working Surfaces

* * *

1910.22 General requirements.

This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. Measures for the control of toxic materials are considered to be outside the scope of this section.

* * *

(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc."

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated May 18th of the proposal to assess a penalty of $30 in connection with Item 4. In a [*14] timely manner Respondent filed a Notice of Contest challenging Item 4 of the Citation and the penalty proposed in connection therewith. Respondent also stated that he intended to press the contest in proceedings before the Review Commission.

Complainant's formal complaint was answered by Respondent with the answer being filed on July 2nd. At the same time Respondent filed a Motion to Dismiss and/or strike on the grounds that Respondent as then named did not exist as "an entity sui generis." On August 16th OSAHRC Judge Bates issued an Order requiring Complainant to "Show Cause" why Respondent's motion should not be granted. On August 24th Complainant filed a motion to amend its complaint so as to identify Respondent by the name, "Greyhound Lines-West, a Division of Greyhound Lines, Inc., a California corporation." Complainant's motion to amend was granted on September 17th. Two months later the case was Noticed for hearing in Salt Lake City, Utah on January 3, 1974. That hearing date was subsequently changed to January 29th to be heard in San Francisco and the case assigned to the undersigned Judge for trial. By agreement of the parties the trial date was changed to [*15] February 7th. Trial was held at San Francisco on February 7th.

PROCEEDINGS AND EVIDENCE

When the trial convened, Complainant and Respondent were each represented by competent legal counsel. There was no appearance by or on behalf of any affected employee. Respondent's counsel stated that all of the notices and documents had been posted as required. None of the employees had communicated with either counsel concerning any desire or intention to attend the trial.

During a discussion preliminary to the receipt of formal evidence, counsel stipulated that three (3) eight-hour shifts are worked at Respondent's workplace each day. Each shift consists of a mechanic in charge and 2 service men. Counsel agreed that Item 4 is the only part of the Citation under contest. They also agreed to the admission into evidence of a stipulation and attached photograph. The admission of an additional stipulation concerning the appropriateness of the proposed penalty was also arranged. This last stipulation, to be prepared subsequent to the trial, was admitted as an Exhibit by agreement.

The stipulations contain all of the evidence upon which Complainant rests its case. Complainant did not [*16] call any witnesses. Respondent called one witness only -- the Director of Safety for its parent corporation. He testifies that the service facility in Salt Lake City serves all of Respondent's buses passing through Salt Lake City as well as some buses of other lines on a contract basis. The pit in question here has an open length of 40 feet. It is 5 1/2 feet deep and 3 1/2 feet across. Buses are parked over the pit for inspection and servicing with the men entering the pit to service the underside of the bus. The buses remain over the pit for a minimum of 15-20 minutes. During the winter months when work is slack the pit is uncovered with no bus over it for a period of from 20 minutes to 2 hours. During the summer months when they are very busy, the pit is uncovered for a period of 2 to 3 minutes at a time. About 30 buses are serviced each day during the winter and about 60 during the summer.

The witness testifies that there are 3 employees on each of the two night shifts and that 6 employees plus a supervisor work on the day shift. All of the employees are fully familiar with the pit area. Bus drivers and passengers do not enter the service area. The service area is [*17] well lighted and the pit is outlined by a yellow line which is 4 inches wide. When there is no bus over the pit, one man from the service crew remains in the pit area to clean up, in and around the pit while the other men from the crew go to other areas to work. This witness describes the difficulties he envisions if a cover and guard rails are installed. Respondent's safety rules prohibit any employee from stepping or jumping over any portion of the pit. There have been no injuries from anyone falling into the pit in the 6 years that it has been in use.

Subsequent to receipt of the transcript the parties filed the stipulation agreed upon during the trial. Respondent filed a brief but Complainant did not file any further documents by the deadline of April 19th.

DISCUSSION

Respondent raises the issue of whether the cited standard, 29 CFR 1910.22(c), is applicable to the work situation inspected at Respondent's workplace. Respondent's attack and argument is threefold --

1. Application of the standard to bus service pits violates Respondent's due process rights for the reason that the standard fails to afford sufficient notice to Respondent and other potential violators [*18] similarily situated.

2. Assuming, "arguendo," that bus maintenance pits are "open pits" for OSHA purposes, "the pits fall within the exception of 1910.23(a)(5) that pits frequently used are not required to be covered or guarded."

3. Complainant has failed to meet the burden of proof in that he has failed to prove that bus maintenance pits present the hazards of open pits.

1. The promulgated standard affords sufficient notice.

Respondent's argument under this subheading relies on the language of the standard, its source, and its placement with relation to all other standards. The source argument is easily disposed of. The present promulgation of the standard makes it applicable to industry generally and thus to Respondent in this instance.

The cited standard is codified at Subpart D of the safety and health standards. That Subpart is entitled "Walking-Working Surfaces." The first section of the Subpart contains definitions of terms. The second section contains the cited standard. This standard sets forth the "General requirements" for walking-working surfaces and specifically makes the section [*19] applicable to "all permanent places of employment," with certain exceptions which are not applicable here. This general application of the section -- indicated both by the Subpart title and the wording of the cited standard -- should alert any employer to the fact that his workplace is subject to this specific standard. It is surely sufficient and adequate notice to satisfy any due process requirements.

Respondent argues that the language and placement of the standard imply that it was intended to protect employees from falling tools or falling into open shafts several floors high. We do not read that implication into the standard. It rather clearly requires that covers and/or guardrails shall be provided to protect personnel from the hazards of "open pits, tanks, vats, ditches, etc.". Nothing in this language even remotely suggests the narrow limits which Respondent would put upon the section. Certainly the bus maintenance pit involved here is an open pit in a walking-working surface. Service personnel are moving around the area at all times, even when there is no bus over the pit. This portion of Respondent's argument must fail.

2. Section 1910.23(a)(5) does not exempt [*20] Respondent's bus maintenance pit.

This section does not state directly, nor imply, that frequently used pits need not be covered. It simply provides that infrequently used pits shall be guarded by a floor opening cover or, if the cover is not in place, then the opening must be constantly attended by someone or be protected with standard railings. Clearly the pit involved here is frequently used -- but that fact does not exempt it from the general requirements of the cited standard. If that were the case, there would be no requirement that a frequently used pit be guarded at any time -- even when it is not in use for short periods of time. This would defeat the purpose and intent of the Act to provide a safe working place for all employees. This argument must also fail.

3. Bus maintenance pits present open pit hazards.

Respondent argues at this point that Complainant has failed to establish that bus maintenance pits present the hazards of open pits. The pit involved here is located in the floor of Respondent's bus maintenance area where service is performed on many buses. It is 40 feet long by 3 1/2 feet wide and is 5 1/2 feet deep. Respondent's bus maintenance employees [*21] work in the pit and around the area at all times -- regardless of whether a bus is over the pit. When a bus is over the pit, the pit is fully covered and thus guarded. However, when a bus is not over the pit, the pit presents a rather obvious hazard. The period of time during which the pit is uncovered varies. In the busy summer months the pit only remains uncovered for extremely short intervals -- 2 or 3 minutes. However, in the slower winter months the uncovered time runs anywhere from 20 minutes to 2 hours at a time. Surely a hazard exists during these uncovered times and it is exactly the hazard of an open pit which 1910.22(c) is designed to protect against. Respondent's argument fails. The standard set forth at 1910.22(c) applies to Respondent's workplace.

Violation of 1910.22(c)

This standard requires a cover or guardrails around an open pit. The parties have stipulated with the bus maintenance pit at Respondent's workplace was not provided with either. The standard is thus violated.

Appropriateness of Penalty

The Act specifically requires that (a) the size of the business of the employer, (b) his good faith and (c) history of previous violations, as well as (d) [*22] the gravity of the violation shall be given due consideration in determining the appropriateness of the penalty assessed. (Section 17(j) of the Act.)

(a) Size - Respondent employs a total of about 7,731 employees overall. Of this number about 19 are employed at the bus maintenance facilities involved here. Financially Respondent is a very large concern with an income of about $205,000,000 in 1973.

(b) Good faith - Respondent has an extensive safety program involving regular safety meetings, publication of safety bulletins, regular twice-monthly safety inspections of the service facility, review of OSHA standards, and other steps to keep its employees conscious of safety.

(d) Gravity - The area involved is well lighted and is only frequented by employees who are familiar with the existence of the pit. Exposure is very limited by reason of the fact that only 3 men work in the area on each shift. A 4-inch wide yellow line is painted around the pit in such a way as to outline it very clearly. The pit is fully guarded whenever a bus is over it for servicing. The periods [*23] when the pit is open are of short duration and the men would be fully aware of them because they would be awaiting the next bus. Accordingly it is concluded that the gravity of this violation is minimal.

Applying the Section 17(j) criteria in the light of the foregoing discussion, it is concluded that a penalty of $0 is appropriate in this instance.

Consequently, based upon the evidence adduced by testimony and stipulation, and after consideration of Respondent's brief and proposed Findings of Fact and Conclusions of Law, we make the following:

FINDINGS OF FACT

1. On May 9, 1973 and at all other times material hereto Respondent Greyhound Lines-West, a Division of Greybound Lines, Inc., was a corporation organized and existing under by virtue of the laws of the State of California. At all times material hereto Respondent operated a place of business and employment at 22 North 200 West in Salt Lake City, Utah where service and maintenance work was performed on interstate buses. Respondent is an interstate carrier of passengers and package express and, as such, is an employer within the meaning of Section 3 of the Act. (File- Amendment to Complaint, Answer, Respondent's [*24] proposed Finding #1 Transcript pg 21.)

2. On May 9, 1973 a Compliance Safety and Health Officer (CSHO) inspected Respondent's workplace. During the inspection the CSHO observed an uncovered service pit that was not provided with guardrails or covers. (Exhibit 1.)

3. Respondent's service pit involved here is 40 feet long by 3 1/2 feet wide and is 5 1/2 feet deep. A band of yellow paint, 4 inches wide, outlines the top of the pit. It is located in a well lighted area which is ONLY frequented by Respondent's service personnel. Bus drivers and passengers do not enter the area. The pit is fully covered when a bus is in position for servicing. During the busy summer months the pit is only uncovered for periods of 2 or 3 minutes at a time while another bus is being moved into position. During the less busy winter months the pit is uncovered for periods varying from 20 minutes to 2 hours. (Transcript pgs 22-31, 34 and Exhibit 1.)

4. Respondent employs approximately 19 employees at the service facility. Each of the 3 shifts working during a 24-hour day consists of 3 men. (Transcript pg 14 and Exhibit 2.)

5. As a result of the May 9, 1973 inspection a Citation for Non-Serious [*25] Violation (4 Items) was issued on May 18th. On the same date a Notification of Proposed Penalty proposing penalties of $0 for Items 1, 2 and 3 and $30 for Item 4, was also issued. Respondent contested Item 4 and the penalty proposed therefore in a letter filed on May 31st. (File.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all times material hereto, Respondent Greyhound Lines-West, a Division of Greyhound Lines, Inc., was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On May 31, 1973 Respondent filed a letter contesting Item 4 of the Citation as well as the penalty proposed in connection therewith. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission.

2. The safety standard set forth at 29 CFR 1910.22(c) is applicable to Respondent's workplace. Respondent's failure to provide covers or guardrails for its open bus maintenance pit, as found in Finding #2, is a violation of this standard.

ORDER

Based upon the foregoing [*26] Findings of Fact and Conclusions of Law and for good cause shown, it is hereby ORDERED that:

1. Item 4 of the Citation be, and the same hereby is, AFFIRMED; and that

2. The penalty of $30 proposed in connection with Item 4 be modified to $0 and as so modified be, and the same hereby is, ASSESSED.

Dated this 25 day of June, 1974.

Jerry W. Mitchell, Judge, OSAHRC