Docket No. 829

ALUMINUM COIL ANODIZING CORP.

OSHRC Docket No. 829

Occupational Safety and Health Review Commission

April 28, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Charles F. Marino and Samuel J. Bullaro, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

In this case, Judge Robert P. Weil affirmed fifteen items of the Secretary's citation and vacated eleven items. The issues before us are whether the Judge erred in not vacating the entire citation on the bases 1) that the underlying inspection was invalid and 2) that the citation was not issued with reasonable promptness within the meaning of section 9(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). For the reasons below, we conclude that Judge Weil properly disposed of the issues, and affirm his decision.

Respondent first argues that the Secretary's inspection was invalid because at the time of the inspection the Secretary purported to be conducting a special inspection pursuant to subsection 8(f) of the Act. The subsection is directed to employee complaints, and requires the Secretary to conduct an inspection in some circumstances involving such complaints. In this case, the [*2] Secretary received a complaint from a person other than an employee or employee representative. Judge Weil originally granted the Respondent's motion to dismiss the citation on the basis that the inspection was invalid. The Commission unanimously reversed his decision, however, reasoning that the Secretary's general authority to inspect granted by subsection 8(a) of the Act is not limited by the special inspection provision of subsection 8(f), and it held that the inspection in this case was made pursuant to an exercise of the Secretary's general inspection authority. The Commission therefore remanded the case for a hearing on the merits. Aluminum Coil Anodizing Corp., No. 829, BNA 1 OSHC 1508, CCH OSHD para. 17,185 (1974).

In rendering the decision on remand which is now before us, Judge Weil acknowledged Respondent's arguments but correctly rejected them on the basis that the Commission's decision to remand was the law of the case. On review, Respondent asks us to reverse our prior decision. Respondent argues that the record now contains additional evidence concerning the identity of the non-employee informer and establishes that the intent of the informer was to "harass" [*3] Respondent. Our prior decision, however, recognized that the informer was not an employee or employee representative. The identity or purpose of the individual responsible for making the complaint does not alter the fact that the Secretary is broadly authorized by subsection 8(a) to conduct inspections. Accordingly, our prior ruling is controlling.

Respondent further contends that the citation was not issued with reasonable promptness. Although it received the citation approximately two weeks after the inspection, Respondent maintains that the Secretary could have mailed the citation earlier since he mailed a copy to the informer approximately a week prior to the Respondent's receipt of the citation. The Judge found that the Respondent failed to establish that the citation was not issued with reasonable promptness. We agree with that conclusion. Respondent did not show that it was prejudiced by the delay in the issuance of the citation or that the delay was unconscionable. Coughlan Construction Co., Inc., 20 OSAHRC 641, BNA 3 OSHC 1636, CCH OSHD para. 20,106 (1975); Jack Conie & Sons Corp., 76 OSAHRC 70/A2, BNA 4 OSHC 1378, CCH OSHD para. 20,949 (1976) (concurring). [*4] n1

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n1 In Jack Conie, the Commission members expressed differing views concerning the nature of the reasonable promptness defense. Although the "unconscionble delay" criterion represents only my personal view, the net result will be that, absent prejudice to the employer, a reasonable promptness defense will prevail if and only if a citation is issued following an unconscionable delay. Commissioner Cleary adheres to the view he expressed in Jack Conie that prejudice to the employer is the only reason for vacating a citation on grounds of reasonable promptness.

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Accordingly, the Judge's decision is affirmed. It is so ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

The entire citation should be vacated because complainant failed to issue the citation "with reasonable promptness," as required by 29 U.S.C. § 658(a). As I have explained in some detail on a number of occasions, n2 Congress made it clear that, in the absence of a showing by complainant of exceptional [*5] circumstances, each citation under the Act was to be issued within 72 hours after the detection of a violation by an inspector. n3 Since complainant has failed to establish any such "exceptional circumstances" to explain why the citation in this case was not issued until two weeks after the inspection, the citation should therefore be vacated.

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n2 See Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976 and my dissenting opinions in Secretary v. Chessie System, OSAHRC Docket No. 10687, November 16, 1976; Secretary v. Underhill Construction Corp., 20 OSAHRC 534 (1975); Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

n3 Staff of the Senate Committee on Labor and Public Welfare, 92d. Congress, 1st. Session, Legislative History of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print, 1971).

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Moreover, there are additional reasons why four of the items that have been affirmed by the Commission should be vacated.

Items 3 and 24 of the citation should [*6] be vacated because the standards codified at 29 C.F.R. § 1910.213 are invalid due to improper promulgation. Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissenting opinion), appeal docketed, No 76-1106, 9th Cir., January 9, 1976.

In item 8 of the citation, respondent was cited for noncompliance with 29 C.F.R. § 1910.252(a)(2)(ii)(b) because oxygen cylinders were positioned in a location where they could be knocked over. The evidence reveals that the two or three oxygen cylinders were standing near a door in the shipping and receiving area of respondent's plant. They were empty and were awaiting removal from the plant. The cited standard prohibits the storage of cylinders in areas where they are subject to being knocked over. The cited standard is not applicable to respondent's cylinders because the evidence shows that the cylinders were not stored but were in the shipping area of the plant awaiting removal.

In item 17 of the citation, respondent was cited for noncompliance with the standard that is codified at 29 C.F.R. § 1910.212(a)(1) for failure to guard the moving parts on various machines. Section 1910.212(a)(1) is an introductory [*7] provision that generally describes the scope of the machine guarding requirements. The standards pertinent to machine guarding are vast and occupy more than 44 pages in the Code of Federal Regulations.

At the hearing, complainant moved to amend the citation to the specific standards that pertain to the machines that were the subject of the citation. The Judge granted the motion and affirmed the citation with respect to some of the cited machines. These amendments should not have been allowed. Because of the unique nature of citations under the Act, such amendments are inherently prejudicial and should be denied except in the most extraordinary circumstances. Secretary v. Warnel Corp., OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). Accordingly, item 17 should be vacated in its entirety.

Since this decision does not address all of the matters covered in Judge Weil's decision, his decision is attached hereto as Appendix A.

APPENDIX A

ON FINAL HEARING

Herman Grant, Regional Solicitor of Labor, Richard J. Fiore and George Faris, for complainant

Charles F. Marino and Samuel J. Bullaro, for respondent

WEIL, J.:

This is a preceeding under the Occupational Safety [*8] and Health Act 29 USC § 651-682, by the Secretary of Labor for a final order affirming a citation and penalty notice. The Commission has jurisdiction because respondent is engaged in a business which affects interestate commerce.

Respondent anodizes aluminum parts in a plant at Streamwood, Illinois. In February and March 1972 respondent also had a plant at Fox River Grove, a small town in McHenry County, Illinois, where it employed 57 people in the same operation; but that plant has been closed since the end of that year.

Facts Surrounding the Inspection and Issuance of the Citation

The facts surrounding the inspection of the Fox River Grove plant are unusual and give rise to unusual questions. On February 16, 1972, the OSHA Area Director of the Chicago Area, which embraces McHenry County, received a letter from an individual setting forth various alleged conditions in the plant which he claimed violated OSHA standards. The letter identified the writer as a person not an employee or employee representative.

The Act in § 657(f)(1) provides that upon receipt of such a "notice" from an employee or "representative of employees" * alleging that a violation or danger exists [*9] in a place of employment, the Secretary shall determine whether there are reasonable grounds to believe that such violation or danger exists. If his determination is affirmative, "he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employee or representative of the employee in writing of such determination". § 657(f)(1) also provides that any such complaint shall be in writing, "signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy. . . ." * Finally, § 657(f)(1) provides that if the Secretary determines that there are no "reasonable grounds" to believe that violation or danger exists "he shall notify the employees or representative of employees in writing of such determination." Thus upon receipt of the [*10] letter the Secretary was obliged by the Act and by regulations promulgated by him thereunder to take no action against respondent on the letter. Of course this did not preclude him from making en ordinary inspection under § 657(a).

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* The Secretary's published Compliance Operations Manual, in Chapter VI(a)(2)(d)(2), defines "representative of employees" as follows:

"(a) Any authorized representative of the employee bargaining unit, such as a certified or recognized labor organization";

"(b) An attorney acting for an employee"; and

"(c) Any other person acting in a representative capacity. . . ."

* The Secretary's regulations at 29 CFR § 1903.11 make it clear that the Secretary reads the statute as requiring not only a showing of probable cause, but also a showing that the notice comes from an employee or representative of employee. Thus § 1903.11(a) sets forth the requirement that the notice be signed by an employee or representative of employees, and § 1903.11(b) predicates affirmative action by the Secretary on a determination by him "that the complaint meets the requirements set forth in paragraph (a) of this section and that there are reasonable grounds to believe that the alleged violation exists . . ." (emphasis added). The Compliance Operations Manual in Chapter IV(A)(3)(c) spells out the obvious, i.e., that where the "notice" is from a person other than an employee or employee representative, the Area Director shall return it with a statement that "the complaint cannot be given consideration for this reason".

[*11]

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Instead, however, the Area Director turned the letter over to Compliance Officer Cunningham for action. Cunningham compared the allegations of the letter with the requirements of the standards and then he, Cunningham, prepared an anonymous "employee" complaint in which he set forth in condensed form on Form OSHA-7 seven allegations of facts constituting violations with references to five subsections of 29 CFR Part 1910. The original form contained boxes which Cunningham checked to indicate that the author was an employee representative who wished to remain anonymous. * At the end there was a line headed "Signature" following which Cunningham printed in "See letter of 2/14/72." The next line was headed "Typed or printed name." This was filled in by Cunningham with the name of the signer of the letter of February 14th and identifying material. The next line was headed "If you are a representative of employees, state the name of your organization." Cunningham filled that in with the name of the body with which the signer of the letter was affiliated -- not a labor organization, a law firm or other representational [*12] group -- and the street address, telephone number, city, state, and zip code of the body. Cunningham placed the original in the file and made a copy, blocking out the name and following information. He made his inspection of respondent's Fox River Grove plant on March 15, 1972, about a month after the Area Director had received the letter; and preliminary to the inspection he handed the expurgated copy of the bogus employee complaint to respondent's representative.

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* "The undersigned (check one)

[ ] Employee

[X] Representative of employees

[ ] Other (specify)

believes that a violation at the following place of employment of an occupational safety and health standard exists which is a job safety or health hazard."

"9. Please indicate your desire:

[X] I do not want my name revealed to the employer.

[ ] My name may be revealed to the employer.

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During the period March 16-20, containing three working days, Cunningham had developed the photographs which he took during the inspection and he filled in six forms [*13] comprising 18 pages. * These documents were reviewed and approved without change by the Area Director's deputy during the ensuing two days; and on March 22nd the citation and penalty notice were typed in four working days so that they reached the Area Director's desk on March 28th. The

Area Director approved the citation and penalty notice without change; and he sent a copy of the penalty notice to the writer of the letter of February 14th under cover of a letter dated March 28th which, with the address deleted, was as follows (I-33, 34):

"Re: Aluminum Coil Anodizing Corporation

Dear Sir:

Your complaint regarding the above company was investigated on March 15, 1972. Those items in your complaint which were found to be valid have been cited as you will note from the attached citation issued to the company. However, the toilet facilities were found to be clean and properly supplied at the time of the inspection.

We wish to inform you that you have the right to an informal conference with the Regional Administrator per 29 CFR 1903.12(a) of the Occupational Safety and Health Act [sic] if you are not satisfied with our answer regarding your complaint.

Very truly yours,

William [*14] E. Funcheon, Jr., Area Director"

The Area Director signed the citation and penalty notice on March 28th or 29th. Thereafter the citation went back to the clerical section which translated Cunningham's proposals for abatement from numbers of days to stated dates. It then filled in such dates, dated the citation and penalty notice March 29th and, according to the Area Director, mailed them to the respondent on March 29th or 30th. Although the mailing was by certified mail and although it was the practice of the Area Director's office to retain the dated receipts for such mail issued by the Post Office, no positive date of mailing could be established. April 1st and 2nd fell on Saturday and Sunday respectively; and the letter reached Bartlett, Illinois, in the course of the mails between Chicago and Fox River Grove on April 3rd and was received by respondent on April 4th. The Postmaster at Bartlett stated that the normal period for the receipt of mail from Chicago was one to four days, which would fairly well substantiate the Area Director's testimony that the citation was issued on March 29th or 30th.

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Form OSHA - 1	Safety and Health Report	1 page
OSHA - 1A	Compliance Worksheet	2 pages
OSHA - 1C	Narrative	1 page
OSHA - 2	Draft Citation
	(26 items)	9 pages
OSHA - 3	Draft Notification of
	Proposed Penalty	2 pages
OSHA - 10	Penalty Assistant Worksheet	3 pages

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According to Cunningham, while the case was originally "set up as a complaint inspection", it was at some undetermined later date "changed to a general schedule inspection" because "the determination was made that the complaint was invalid" (III-10). The Area Director made no comment on this testimony.

The draft citation, with 26 items, took Cunningham about 14 hours to prepare. He gave no estimate as to how long it took him to prepare the "employee" complaint which, as mentioned above, contained seven items referenced to five subsections of Part 1910. Other than as indicated above, the record refers to no activity on the case between February 16th and March 15th.

Pretrial Procedures

The Secretary filed an amended complaint which contained the usual jurisdictional allegations together with paraphrases [*16] of the 26 items of the citation. The answer to the amended complaint admitted the jurisdictional allegations; it denied the allegations of violation; and it pleaded the following affirmative defenses: 1, that the employee complaint was bogus to the knowledge of the Secretary at the time of the inspection, which rendered the inspection and the citation illegal and void; and 2, that the Act is invalid because (a), § 657(f)(1), providing for anonymous employee complaints, deprives respondent of procedural due process; and (b), because, although criminal in nature, it fails to provide the safeguards to which respondent is constitutionally entitled in criminal cases. On the issues so joined respondent moved for discovery and for judgment on the pleading sustaining its first affirmative defense. Over the Secretary's objection I ordered that the Secretary's file, other than the Solicitor's materials, be disclosed to me in camera. On the basis of that inspection I made findings that the "employee" complaint had, in fact, been made by one neither an employee nor an employee representative; that these facts were known to the Secretary when the inspection was made; and that the inspection [*17] and the resulting citation were illegal and void, as contrary to the Act and to the Secretary's own regulations, which were biding on him. Accordingly I vacated the citation and dismissed the complaint. The Commission reversed. It reasoned that § 657(a) conferred on the Secretary indivisible, plenary power to make inspections; that § 657(f)(1) merely provides a means whereby that power may be invoked; that the § 657(a) power, once reasonably exercised, is validly exercised however invoked; and that therefore the inspection and the citation were not invalid although the power was not properly invoked under § 657(f)(1). The Commission remanded the case for trial on the issues of violation.

On April 25, 1974, a pretrial conference was held at which the pleadings were amended as follows. Paragraph IV(a) (2), (3), (5), (6), (7), (8), (9), (10), (11), (12) (15), (16), (18), (19), and (20) of the amended complaint each alleges multiple, unspecified instances of violative conditions, with stated examples. Each such subparagraph was amended so as to allege violation only as set forth in the examples.* Paragraph V(b) of the amended complaint was striken out for failure to state facts [*18] on which relief could be granted. Paragraphs IV(c) and IV(d) of the answer to the amended complaint were amended to deny that respondent had knowledge or information sufficient to form a belief as to the truth of the corresponding allegations of the complaint that the citation and penalty notice were mailed to respondent on March 29, 1972; and a third affirmative defense was added to the effect that the Secretary failed to issue the citation with reasonable promptness as required by the Act.

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* The pretrial order of August 30, 1972, had diverted the service of an amended complaint to remedy this defect. The amended complaint ignored this requirement.

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Since respondent's affirmative defenses are independent of the issues as to violation, and if sustained could dispose of the whole case, I deal with the first and third defenses at this point.

III

Defense Based on Bogus Nature of "Employee" Complaint

While in general recognizing the binding nature of the law of the case established by the Commission's decision, [*19] respondent argues that the Commission's decision is limited to the facts which I found in my dismissal decision. Respondent points to newly discovered evidence, formerly denied to it, which, it asserts, entitles it to a reconsideration of the issue, on which reconsideration it should prevail. The evidence discovered to respondent after the Commission's decision herein is as follows. (a) The Area Director's letter of March 28, 1972, to the writer of the letter of February 14, 1972, in which the Area Director informs him that there was an inspection "on your complaint"; and that one of the times of violation alleged in such complaint was found not to exist, thereby giving rise to the rights under 29 CFR § 1910.12 of an employee complainant. (b) The evidence of Cunningham that the inspection was first treated by the Secretary as a "complaint" inspection but later changed to a "general schedule" inspection because a determination was made that the complaint was invalid; and that contrary to what the "employee" complaint seemed to indicate, the original of that document was prepared by Cunningham and never signed by the writer of the letter of February 14, 1972.

But the Commission's [*20] decision was not a determination which turned on the facts. On the contrary, based on uncontested findings, it was an interpretation, as a matter of law, of the effect of Subsections (a) and (f)(1) of § 657. Hence respondent is not entitled at this level to reconsideration of the issue as to the effect of the bogus complaint; indeed, under the law of the case as established by the Commission, evidence, including newly discovered evidence, as to the validity of that complaint is here irrelevant and immaterial and is excluded accordingly.

Defense Based on "Reasonable Promptness"

Clearly respondent failed to sustain the burden of proving its affirmative defense that the Secretary failed to issue the citation with reasonable promptness after the inspection, within the meaning of § 657(a). Brennan v. Chicago Bridge & Iron Co., 514 F. 2d 1082 (CA 7, 1975). Thus there is not reached the question as to the necessity of a showing of prejudice, dealt with in Secretary v. Coughlin Construction Co., Inc., 20 OSAHRC Nos. 5303, 5304 (1975); Secretary v. Southern Railway Co., 20 OSAHRC No. 5960 (1975); and Secretary v. Underhill Construction Corp., [*21] 20 OSAHRC No. 3725 (1975).

To be sure, if the "employee" complaint had been genuine, the proceeding could perhaps have been dismissed on the ground that after receipt of the letter of February 14, 1975, on February 16th, there was almost no activity in the case until March 15th -- surely the inspection did not on its face appear to have been made "as soon as practicable," within the meaning of § 657(f)(1). But because the employee complaint was not genuine, § 657(f)(1) is inapplicable, as everyone agrees; and the Draconian remedy of dismissal can be granted only in a case which comes four square within the law.

Respondent's defense based on failure to act with reasonable promptness has not been proved.

The Violations

The issues have are confined to whether or not there were violations; i.e., there is no issue as to the reasonableness of the abatement dates or as to the appropriateness of the penalties. Compliance Officer Cunningham and Industrial Hygienist Largent were the only witnesses on the issues of violation.

Item 1. Employee Notice Not Posted. § 1903.2

Respondent admitted that the employee notice was not displayed at the Fox River Grove plant. Respondent [*22] denied that the notice had ever been furnished by OSHA to that plant, although respondent admitted that the notice had been furnished to its Streamwood plant and displayed there. The Secretary offered no proof that he had furnished a copy of the notice to the Fox River Grove plant.

In the case of an employer with one plant, the Secretary does not establish a violation of § 1903.2 without proof that the notice has been furnished. Secretary v. Oak Lane Diner, 3 OSAHRC 936 (1973); Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 721 (1974). This is based on the wording of the standard that the employer shall post a notice "to be furnished by the Occupational Safety and Health Administration . . . ." A question remains, however, as to the effect where, as here, respondent's main plant receives a copy of the notice and is apprised of the requirement that it be displayed, while another plant does not receive a copy of the notice with its accompanying regulations and instructions. Pertinent to that issue, the regulation goes on to provide that the notice is to be posted at each "establishment" of a respondent where "industrial operations are performed"; and that [*23] where distinctly separate activities are performed at a single physical location, "each activity shall be treated as a separate physical establishment, and a separate notice . . . shall be posted in each such establishment, to the extent that such notices have been furnished by the Occupational Safety and Health Administration . . ." (emphasis added). Thus if respondent had been carrying on at the Fox River Grove plant anodizing and another distinctly separate activity, furnishing a copy of the notice to the anodizing division but not to the other division would not have required the other division to obtain and display a copy of the notice. A fortiori, there was no obligation and no violation here. See, e.g., Secretary v. Ira Holliday Logging Co., Inc., 2 OSAHRC 1421, 1435-6, afd 2 OSAHRC 1415 (1973), petition for review dism. No. 73-2170, CA 9 (1973); Secretary v. Woerful Corp., 6 OSAHRC 428, 431-3 (1974); Secretary v. Southeast Contractors, Inc., 8 OSAHRC 294, 300-03, afd 8 OSAHRC 285 (1974).

Item 1 of the citation and penalty notice are vacated.

Item 2. Summary of Occupational Injuries and Illnesses Not Posted at Fox River Grove Plant. [*24] § 1904.5(c), (d).

The standard requires that from the current reports of occupational injuries or illnesses there be prepared and certified by the employer on Form OSHA-102, an annual summary of the injuries and illnesses which occurred in each establishment, which shall be prominently displayed in such establishment from February 1st to March 1st of the succeeding year.

Here an annual summary for the Fox River Grove plant was not on display at the time of the inspection, March 15, 1972, or at any time during the month of February, 1972. Form OSHA-102 had never been supplied by OSHA to the Fox River Grove plant; but unlike the § 1903.2 notice, the obligation to compile and display the annual summary of injuries and illnesses is not dependent on the form having been furnished to the establishment by OSHA. Secretary v. Peterbaugh Enterprises, supra; Secretary v. Woerful Corp., supra. The uncertified form kept at the Streamwood plant for the Fox River Grove plant, and brought to the opening conference at the Fox River Grove plant, did not constitute compliance with § 1904.5(c) and (d).

Item 2 of the citation is affirmed.

Item 3. A Radial Saw in the Shipping [*25] Area Was Not Properly Installed or Guarded. § 1910.213(h)(1), (4)

In the shipping area, an alcove off the main working space of the plant and accessible to employees generally, there was an electrically operated radial saw with a blade twelve inches in diameter. The lower half of the blade was unguarded and the cutting head was not installed or adjusted so that when released by the operator it would automatically recede to a position away from the operation's station.

These conditions exposed the operator and passers-by to cuts when the saw was not in operation and to possible amputation when it was.

Item 3 is affirmed.

Item 4. An Electric Drill in the Supply Area and a Coffee Machine in the Lunch Room, Which Were Connected to Their Respective Power Sources by Cord and Plug, Were Not Properly Grounded. § 1910.314(d)(4)

This and the following item place the Secretary in an anomalous, untenable position.

In his occupational safety and health standards for general industry, the Secretary deals with electrical hazards for the most part in Part 1910, Subpart S. Prior to March 15, 1972 Subpart S contained § § 314 and 312. On February 11, 1972, the Secretary took steps [*26] to revoke § § 314 and 312 -- indeed, to revoke all of Subpart S following § 309 -- and to incorporate by reference into § 309, 78 articles, sections and subsections of the National Electrical Code, ANSI CI-1971, revision of 1968. Thus the Secretary issued a document which, in Paragraph A(8), stated that "Subpart S is amended by revising § § 1910.308 and 1910.309 to read as follows:" and then there appeared the text of the sections as they now appear, with slight corrections noted below. The stated effective date was March 15, 1972, the date of the inspection herein. The document was filed by the Secretary with the Federal Register on February 15, 1972, thereby becoming FR Document 72,2360, and was published on February 16th at 37 FR 3431. On March 15th the Secretary inspected respondent as aforesaid. On March 24th the Federal Register carried a "Correction", bearing no Department of Labor signature, no date or effective date, and no FR Document number. It simply stated that:

"In F.R. Doc. 72,2360 appearing on page 3431 in the issue of February 16, 1972, the following changes should be made:

"1. Amending paragraph 8 on page 3432 should read as follows:

"8. Subpart 8 is [*27] revised in its entirety to read as follows:

"2. In § 1910.309(a) the article designated as "410-10" should read "400-10".

"3. In § 1910.309(a) the word "grounding" in article 240-19(a) and (b) should read "guarding".

And on March 29th or 30th, the Secretary issued to respondent the citation herein charging it with violation, on March 15th, of repealed § § 314 and 312. Thus the Secretary could entitle himself to consideration as to whether or not there was a violation of those sections only upon a showing, and a finding by the Commission, that his purported revokation of the sections as of March 15th was somehow invalid and ineffective. Stated another way, the burden was on the Secretary to overcome, if he were so advised, and if he could, the presumption of regularity which attached to his own amendment. United States v. Chemical Foundation, 272 USI, 14-15 (1926); Secretary v. Nasso Beach Concrete, 15 OSAHRC 459, 460 (1975).

Instead of attempting any such showing, the Secretary proceeded at the trial on the representation that § § 314 and 312 were in force at the time of "this investigation" (III-103), a term which was objectionably imprecise, especially in view [*28] of the strange history of this proceeding. Surely the circumstance that 44 USC § 1507 put respondent on notice of the Federal Register publications mentioned above did no hing to overcome the presumption that the amendment was regular and that accordingly, § § 314 and 312 were duly revoked at the time of the inspection. Furthermore 44 USC § 1507 did not impose on respondent the duty to sort through the 78 ANSI provisions incorporated into § 309 and to guess at its peril which one the Secretary should have been proceeding under. There was no litigation by consent of issues under any ANSI standard. On the contrary, it would appear that respondent supposed at the trial, as indeed the Solicitor of Labor represented, that the litigation was proceeding under the two sections which, in fact, the Secretary had revoked as of the date of the inspection.

For the reasons indicated, Item 4 is vacated.

Item 5. The Over-current Protecrive Devices for the Readial Saw in the Supply Department and the Electric Blower On a Salamander in the Piece Part Department Were Improperly Wired, in Violation of § 1910.312(c).

For the reasons indicated above with respect to Item 4, Item 5 is vacated. [*29]

Item 6. The Forks of an Unattended Industrial Truck Were Not Fully Lowered. § 1910.178(m)(5)

The forks of a powered industrial truck left unattended outside the office were elevated about 2-1/2 feet above the ground. The forks were 3-1/2 feet long. An employee accidentally colliding with or stumbling over the forks could have suffered abrasions, contusions, and possible lacerations.

Item 6 is affirmed.

Item 7. A Powered Industrial Truck Was in Use with an Inoperative Horn. § 1910.178(p)(1)

Respondent's powered industrial truck, operating in the shipping area and the piece parts room had an inoperative horn. Respondent does not contest the above. Instead it argues on brief that the occupational safety and health standards do not require that a truck used within a plant have a horn. In making this contention respondent overlooks § 178(n)(4), with which § 178(p)(1) must be read. The failure to have a horn in working order could have resulted in an employee being struck by the truck, with resulting personal injuries.

Item 7 is affirmed.

Item 8. Oxygen Cylinders Were So Positioned that They Could Easily Have Been Knocked Over, thereby Creating a Potential [*30] Hazard. § 1910.252(a)(2)(ii)(b).

At the southeasterly corner of the building there is an overhead door for vehicles and within it, a small door for personnel. The large door encloses the main cargo entrance to the plant. About a foot inside the large door, to one side but still in the area of traffic through the door, there were two or three empty oxygen cylinders awaiting removal. About four feet tall, with a round base about nine inches in diameter and weighing about fifty pounds a piece, they were unenclosed and unsupported and could easily have been knocked over accidentially by a vehicle or pedestrian, with a potential for serious personal injury. The second sentence of the standard was violated.

Item 8 is affirmed.

Item 9. The Wooden Ladder Available for Use Near the Southeast Exit Had Broken Rungs. § 1910.25(d)(1)(i).

Near the southeast exit there was available for use by respondent's employees generally a wooden ladder with broken rungs. An employee descending the ladder and being surprised by the absence of expected rungs could suffer serious injuries such as a broken leg or a twisted ankle.

Item 9 is affirmed.

Item 10. A Metal Ladder in the Shipping [*31] Area Had a Broken Rail and a Corroded Rail. § 1910.26(c)(2)(iv).

Lying against the wall of the shipping area there was an aluminum ladder available for the general use of employees. From a distance the Compliance Officer could see that one of the rails was corroded. Approaching to within a foot or two to get a better look, he found that the other rail was broken. In use, the entire ladder could have broken, with minor injuries if the climber succeeded in jumping clear and serious ones if he did not.

Item 10 is affirmed.

Item 11. A Large Pit, Open Due to the Removal of the So-Called No. 2 Coil Line, Was Not Surrounded by the Necessary Railing. § 1926.500(b)(7)

One of the main operations which had been carried on in respondent's Fox River Grove plant was the anodizing of coils of aluminum, a process carried on in part in large tanks about 40 feet long, eight feet wide and six feet deep. The Fox River Grove operation was being moved to respondent's plant in Streamwood. In the course of the removal, one of these tanks had been taken from the Fox River Grove plant, leaving empty the pit which had housed it. The empty pit was not surrounded by protective "standard railings". [*32] The Compliance Officer was familiar with a provision of the code of standards for general industry covering this type of alleged hazard, namely § 1910.23(a)(7), but he choose to recommend that respondent be cited under the corresponding clause of the code of standards for the construction industry, § 1926.500(b)(7), formerly § 1518.500(b)(7), because, as he reasoned, the events which led to the unguarded open pit arose not out of respondent's normal operations but out of moving its plant. The Area Director accepted this reasoning and the Solicitor of Labor did likewise when he pleaded the facts as a violation of the construction standard in Paragraph IV(a)(9) of the Secretary's complaint and amended complaint. But causing machinery to be moved out of a plant in the course of completely dismantling that plant does not constitute "construction" of that plant within the meaning of § 1910.12(b). *

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* § 1910.12 "(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. . . ."

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When at the trial respondent moved to vacate Item 11 the Solicitor sought to amend so as to plead under § 1910(a)(7); and 29 USC § 658(c) did not preclude the amendment. The citation, issued timely, was sufficient to warn respondent that it was the subject of a proceeding involving the validity, under the Occupational Safety and Health Act, of its treatment of the open pit; and under Rule 15(c), FRCP, the Secretary could, by amendment, change his legal theory in the premises without running afoul of the statute of limitations. * But nothing in Rule 15(c) was a warrant for depriving respondent of procedural due process. If the amendment had been allowed, nothing in the rule authorized the Commission to deny respondent's motion to dismiss, and so to force respondent to proceed instanter to litigate an issue on which, but for the amendment, respondent could have expected to succeed without litigating the facts. If the motion to amend had come even at the pretrial conference of April 25th, two days before the item was reached for trial, a different question might have been presented. As it was, the motion, in the midst [*34] of the trial of that item, came too late for fairness. The motion to amend is denied. The motion to dismiss Paragraph 4(a)(9) of the complaint is granted; and Item 11 of the citation is vacated.

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* Rule 15 "(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurance set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. * * *"

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Item 12, The Southeast Corner Exit Was Not Adequately Illuminated. § 1910.36(b)(6).

The Fox River Grove plant had a total area of about 14,000 square feet. In it worked shifts consisting of up to 22 persons. There was an office entrance which was locked, and a main entrance and two emergency exits which were unlocked. The emergency exit referred to in this item of the citation was the one located at the southeast corner of the building. The bottom of the exit door was about twelve feet above the general floor level, [*35] with which it was connected by a flight of stairs. As part of respondent's move from Fox River Grove machines had been taken out of the southeast area of the plant and electric circuits serving that part of the building, including one or more lighting circuits, had been deactivated. The sign over the exit was not separately illuminated. The nearest working light was about 30 feet from the exit. It and other illumination sources hung at a level such that the steps were visible from a distance of about 40 feet but the exit itself and its sign were dark and visible only from about ten feet. Of course, with the door open and daylight streaming in through it, as shown in respondent's Exhibit 12, the exit was plainly visibile; but the test was visibility under the least favorable conditions, i.e., with the door closed.

More than half of the members of each shift worked more than 40 feet from the exit. Furthermore the area contained stored material which increased the need for lighting to enable personnel to make a safe rapid approach to the exit. The lack of illumination exposed employees, in the event of an emergency, to the hazards of smoke, fire, tripping and falling.

Item 12 [*36] is affirmed.

Item 13. Reasonably Visible Markings Were Not Provided For the Northeast and Southeast Emergency Exits and For the Direction of Travel to the Nearest Exit From the Maintenance Crib. § 1910.37(q).

The southeast and northeast emergency exit signs were black and white and opaque and not individually lighted. They were dirty and difficult to read. The sign on the northeast emergency exit could be seen only from a distance of about 15 feet. Furthermore the path to the northeast exit led down a passageway with a straight portion which ended in the entrance to the maintenance crib, at which point, to reach the exit, one would have to make a 90 degree turn to the left. This was not marked, so that employees seeking the emergency exit could instead enter the maintenance crib. The lack of a readily visible marking on the southeast emergency exit has been dealt with in Item 12 under § 1910.36(b)(6) and therefore cannot be made the subject of a second violation under this closely related section. The potential hazard is of the same type as that under Item 12.

Item 13 is affirmed to the extent that it refers to the northeast exit and to the lack of a directional sign, [*37] and vacated as to the southeast exit.

Item 14. The Mechanical Ventilation for the Sulfuric Acid Tanks Forming Part of Respondent's No. 1 Coil Line Was Not Functioning While the Tank Was in Operation. § 1910.94(d)(8).

During the inspection there was in operation a tank of indeterminate surface area, containing an indeterminate solution of sulfuric acid, energized by an electric current of indeterminate voltage, in which was immerced a coil of aluminum in pocess of being anodized, a form of electroplating. Immediately adjacent was the sealing tank, in which the aluminum coil, after the electroplating process, was being passed through a bath of water just below the boiling point -- much hotter than the sulfuric acid solution. The Compliance Officer saw mist or vapor suspended in the air over the tanks. But as explained by Edward Largent, the Secretary's expert, it would be impossible to determine from its appearance whether this was mist given off from the sulfuric acid tank or steam from the sealing tank. According to Largent the anodizing process produces bubbles which come to the surface, break, and liberate sulfuric acid to the air, which, depending on the strength [*38] of the sulfuric acid solution, the "density" of the electric current, the surface area of the tank, and the intensity and duration of the worker's exposure, could produce temporary or chronic inflamation of the worker's sensitive membranes and skin. The sulfuric acid tank was equipped with a mechanical ventilating device to be powered by an electric motor; but at the time of the inspection the electric motor was not in place and the ventilating device was inoperative. However, there were factors which could have been mitigating in any curbstone evaluation, if that had here been determinative. The No. 1 coil line and the No. 2 coil line had originally been in a large room with a high ceiling, with natural ventilation through louverted domes in the roof. Now the No. 2 coil line was gone and the natural ventilation had to cope only with the No. 1 line. The only employee observed by to Compliance Officer working in the vicinity of the sulfuric acid tank advised the Compliance Officer that he was unaware of any symptom due to exposure to sulfuric acid. No air sample in the workman's working area was taken. Upon these facts respondent was cited for failure to maintain "[t]he required [*39] air flow", which "shall be maintained at all times during which gas, mist or vapor is emitted from the tank. . . ." For the reasons set forth below Item 14 is vacated.

In order to define the problem presented by Item 14, it is necessary to consider employee protection against contaminants as that subject is treated in the General Industry Part as a whole. In § 93, including Table G-1, many substance which produce airborne contamination are listed with the eight-hour weighted average of contamination in milligrams of mist per cubic meter of air (mg/M3) below which ill effects are unlikely to occur to the worker exposed during a work week consisting of eighthour days. Each of these is termed a "threshold limit value", a "TLV." For sulfuric acid the number of milligrams shown in the table is 1. § 94 goes a step further. In respect of four operations in which the potential hazard from airborne contamination may be particularly great, i.e., abrasive blasting (§ 94(a)), grinding, polishing and buffing (§ 94(b)), spray finishing (§ 94(c)), and open surface tank operations (§ 94(d)), various methods are set forth to prevent worker exposure to potential hazard from such contaminants. [*40] In the case of grinding, polishing and buffing, and in the case of spray finishing, protective measures are required based on the type of operation being carried on, without reference to the substance used in the process. * But in the cases of abrasive blasting and open surface tank operations, protective measures are required to the extent necessary to keep the concentration of airborne contamination below the level specified in § 93. This is stated in so many words in the case of abrasive blasting. § 94(a)(2)(ii). In the case of open surface tanks, various methods may be employed, provided that the one chosen must hold the level of contamination resulting from the use of a given substance below the TLV for that substance. Thus tank covers, foams, beads, chips, or other material floating on the tank surface may be used so as to confine the gases, mists or vapors to the area under the cover or to the foam, bead, or chip layer, or surface tension depressive agents may be added to the liquid in the tank to minimize the formation of gases. mists or vapors, or any combination thereof may be used as gas, mist or vapor control means, "provided that they effectively reduce the concentrations [*41] of hazardous materials in the vicinity of the worker" below the TLV. § 94(d)(6).

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* Two cases appear to have been decided on the theory that airborne contamination in the breathing zone of a worker by a specific substance in excess of that permitted by § 93 must be shown in order to establish a violation even under the grinding, polishing and buffing standard and under the spray painting standard. See Secretary v. Omni Metal Castings, Inc., 19 OSAHRC No. 2896 (1975), affirmed by an equally divided Commission, and Secretary v. Bethlehem Fabrications, Inc., OSAHRC No. 7176 (1974), pending before the Commission on review.

Another area in which the Secretary seems to have elected to require protection against potential airborne contamination irrespective of proof of a concentration ruled toxic in another standard is the requirement for medical examinations for asbestos workers, 29 CFR § 1910.93a(j). See Secretary v. GAF Corp., and United Engineers & Constructors, Inc., 21 OSAHRC Nos. 3203, 4008, 7355 (1975).

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Likewise in § 94(d)(3) the purpose of ventilation as an optional control method is clearly stated, i.e.,

"to control potential exposures to workers as defined in subparagraph (2)(iii) of this paragraph . . ." (emphasis added).

The standard then goes on to state the extent to which the method shall be so used, i.e.,

"it shall be adequate to reduce the concentration of the air contaminant to the degree that a hazard to the worker does not exist" (emphasis added).

Turning to § 94(d)(2), we find named as the criterion TLV, the dividing line above which there are "potential exposures to workers" and below which "a hazard to the worker does not exist." The words of (d)(2)(iii) further emphasize the intention of the regulatory scheme not to create a general, abstract quality of air but to protect the worker at the tank from concentrations forbidden by § 93 and Table G-1:

"The toxic hazard is determined from the concentration, measured . . . in milligrams of mist per cubic meter of air (mg/M<3>), below which ill effects are unlikely to occur to the exposed worker. The concentrations shall be those in § 1910.93" (emphasis added).

The purpose [*43] of the standard to protect the worker at the tank from concentrations in excess of the applicable TLV is finally driven home by the language of (d)(4): the application of the standard is limited to cases where "the flow of air past the breathing or working zone of the operator" is undisturbed (emphasis added).

Mr. Largent in his cross-examination made it clear that what the standard sought to protect against was worker exposure beyond the TLV of the contaminant in question; and that the way in which this was determined was by timed samples taken in the breathing zone of the worker (IV 85-89):

Q Mr. Largent, the surface area of the tank would also be important then in determining how much action you might be getting on the surface as far as the hydrogen bursting out of the liquid and spraying any of the solution, is that correct?

A Correct.

Q And the depth and length and width of the tank would be important also? In determining what volume of solution there was, would it not?

A Only the surface area is all that we would be concerned with. The total gas is a function of the current density and the surface area at the top from which this evolution of mist could occur.

Q So the [*44] depth of the tank is really not too important?

A I see no relationship.

Q And the smaller the surface area, the less mist you would have, is that correct?

A Correct.

Q Now the amount or the concentration of the sulfuric acid in the solution would be an important consideration in determining how much concentration of sulfuric acid the mist might contain?

A Correct.

Q So if you had a very weak solution of sulfuric acid, then the mist would be very weak?

A Correct.

Q Now how much in quantity of sulfuric acid would be emitted into the atmosphere per hour based upon this phenomenon?

A I'd have no basis for guessing. Our basis for appraisal would be the level of sulfuric acid in the air where the men would be at work. . . . our standard for that does not permit a level of sulfuric acid in excess of one milligram per cubic meter.

Q Now this is the standard that is set out in the regulation?

A 1910.93, Table G-1.

THE COURT: 1910.93 what?

A Table G-1.

BY MR. MARINO:

Q That is one milligram per cubic meter?

A Correct.

Q For what period of time?

A That is an eight hour time . . . [weighted] average.

THE COURT: Now, what does that mean, Mr. Largent?

A Well, it means that [*45] it might conceivably vary from half a milligram per cubic meter to two or three milligrams per cubic meter up and down all day long.

The average for the work shift, if it were one milligram per meter or below over that time period, would not be a violation of our standard.

THE COURT: What is the time unit you use for averaging purposes?

A In arriving at an average time unit that we would use, would be the length of time of sampling and there are sampling procedures which would be used where we collect samples, say of an hour's duration, others where say over a period of a day, collect six or eight samples or otherwise we could collect a sample during the eight hour work shift.

But it is the function --

THE COURT: That is an arbitrary thing?

A That is the judgment of the compliance officer who might be doing that kind of sampling.

BY MR. MARINO:

Q Now he uses some sort of an instrument that collects this sampling, does he not?

A The common way of collecting samples of this work when this is required is to have a pump attached to a workman. This aspirates air through a rubber tube. The rubber tube has a collector on the end of it which may be attached to the breathing zone. [*46]

It has a collector on the end of the rubber tube which is attached to the breathing zone of the worker. This is the common way when we find it necessary to make such measurements.

Q In other words, the units are attached to the worker?

A Yes, the entire unit and the collector is right here at his breathing zone. (Indicating.)

THE COURT: Right here means attached to the lapel or the collar?

A Correct.

BY MR. MARINO:

Q So that really you are not concerned then with the distance from the tank that the sample is taken at wherever the worker may be?

A Correct.

Q For how long a period is the sample taken?

A This can vary from one hour to eight hours.

Q And if it were taken for one hour, then it would still be averaged out over the eight hour period?

A Each of the one hour samples would be averaged out over the eight hour period, yes.

Q So if the worker was within ten feet of the anodizing tank for just a very short period in the whole eight hour time schedule, then the amount when averaged over the hours would be very small, would it not?

A I wouldn't be able to speculate without actually having measured it.

Since here no samples were taken and there was no proof that there [*47] was a concentration of sulfuric acid in the breathing zone of any worker exceeding the TLV, there was no need either for mechanical ventilation under § 94(d)(3) or for control by other means under § 94(d)(6); and § 94(d)(8) could not come into play because a "required air flow" was never established pursuant to (d)(3) and (d)(4).

To be sure, (d)(4), if it stood alone, might seem to speak in terms of an unqualified mandate; and that, according to the Secretary, is where the case on Item 14 ends. But if (d)(3) were not read as imposing a lower limit on the operation of (d)(4), the words of (d)(3), "to control potential exposures to workers as defined in subparagraphs (2)(iii) of this paragraph," would, to all intents and purposes, be striken out, which result may not be presumed. The Commission will not read one of these remedial provisions out of context with the other so as to produce irreconcilable conflict and invalidity, in preference to one which preserves validity by harmonizing all provisions.

Item 15. The Floors of the Maintenance Crib and the Piece Parts Room Were Not Maintained in a Dry Condition. § 1910.22 (a)(2).

The maintenance crib was an area partitioned [*48] off from the main work area where maintenance operations were performed on plant equipment. The Compliance Officer saw one person working there. On occasion the plant manager, supervisors and other workers would go there. The piece parts room contained various machines including the centrifugal spin dryer and the anomatic machine. About four persons worked in this room. There was water on the floor of both areas. The condition had lasted for several days. On the night shifts it was "squeegeed" into the drains with a rubber-faced device similar to that used by window washers. The hazards were electrical, in that there were switch boxes and fuse boxes which could be reached from wet areas, and slipping and falling in the wet.

Item 15 is affirmed.

Item 16. An Aisle Along the Side of the Coil Line Room Which Was in Part Floored With Metal Plates Over the Steam Pit Had a Triangular Gap About One Foot on a Side. § 1910.22(b)(1).

Along the side of the coil line room there was a passageway runing over the steam pit. It was covered over with loose metal plates which had come apart so as to leave a triangular gap about one foot on a side through which live steam escaped. [*49] It was "approximately in the middle of the walkway in front of the No. 1 coil line . . ." (V-132). This exposed workers to tripping and falling and to burns.

Item 16 must nevertheless be vacated. § 1910.22(b)(1) is a standard intended to assure that "Where mechanical handling equipment is used" aisles and pedestrian passage-ways are to be marked and kept clear so that fork lift trucks and other intra-plant transport will not strike pedestrians, fixed equipment, piled-up work in progress, boxed supplies, etc. That the Secretary did not intend to cover the condition which obtained here by the standard cited is made clear by § 1910.23(a)(7)-(9), in which he covered such a condition explicitly.

Item 17. Various Machines Were Not Properly Guarded. § 1910.212(a)(1).

This item alleges that respondent violated § 212(a)(1) by failing properly to guard the following moving parts: (1) an exposed coupling and shaft between a portable pump and its power source, a small electric motor; (2) the exposed belt and pulleys on an abrasive wheel grinder; (3) an exposed belt and pulleys on an air compressor; (4) two spin dryers, each of which lacked a safety lid which would prevent opening [*50] while the machine was in operation; and (5) an exposed belt and pulleys on a table saw. The Secretary cited respondent under the introductory provision generally describing the scope of § § 212-219, instead of under the coupling standard, § 219(i), the vertical and inclined shafting standard, § 219(c)(3), the belt and pulley standard, § § 219(d) and (e), and the revolving container standard, § 212(a)(4). Respondent did not object that § 212(a)(1) did not give him notice as to what was expected of him and he did not object that the citation and pleadings did not give him notice of the violations which the Secretary would seek to prove against him at the trial. Thus it must be assumed that respondent was sufficiently concerned with employee safety in general and with the occupational safety and health standards in particular so that it was familiar with § 212(a)(1) and that this impelled it to read on to § 219 and its more detailed provisions. At any rate respondent treated § 212(a) as raising justiciable issues, which it litigated on the merits. Unlike respondent's motion to dismiss as to Item 11, Item 17 presents no problem as to due process: § 212(a)(1) will be read as incorporating [*51] the detailed requirements of § 219 as here applicable and as indicated above.

Exposed shaft and coupling on pump. The mechanical pump in the piece parts room had an exposed vertical or inclined shaft and so violated § 212(a)(1) as modified by § 219(c)(3). The coupling likewise had a rotating surface. These could have caused lacerations and broken bones. Item 17 is affirmed to the extent that it refers to the pump.

Exposed pulleys and belts on abrasive grinder, air compressor and table saw. Under § 219(a)(1), the pulley and belt standard does not apply to flat belts not over one inch wide, flat belts not over two inches wide free from metal lacings or fastenings, round belts not over half an inch in diameter and single strand V-belts not over 13/32 of an inch wide, when such belts are operating at not more than 250 feet per minute. This is not a condition subsequent, creating an affirmative defense. Although negative in form, these criteria are part of the specifications of the devices to which the subsequently stated standards are to apply. Congress and the Commission have squarely placed the burden of proving violation on the Government. 5 USC § 556(d); 29 CFR § [*52] 2200.73(a). The Government may not shift part of that burden to the employer by electing for its own convenience the burdensome practice of pleading under the introductory clause instead of the specific. It was part of the Government's case to prove that the belts were of characteristics required by § 219(a). Since there is no evidence on these points, Item 17 to the extent that it refers to the abrasive wheel, the air compressor and the table saw is vacated.

Failure of covers on containers of spin dryers to interlock. Respondent had two spin dryers connected to their power sources and generally available for use. These are devices which have an inner mechanism which holds small parts and rotates them, so that liquid covering them is thrown off by centrifugal force. § 212(a)(4) requires that such a device be enclosed in a covering interlocked with the power source so that it cannot be opened while the rotating device is in motion. On one of respondent's spin dryers the lid could be fully opened while the rotor was in motion, and on the other one the lid could be raised about 30 degrees. This malfunction could result in hazard either in case a piece should come loose and [*53] be thrown out of the dryer or in case a workman's hand or arm should become caught in the moving mechanism, resulting in abrasions, broken bones or worse.

Item 17 is affirmed to the extent that it refers to the spin dryers.

Item 18. The Operator on the No. 1 Coil Line Did Not Know the Location of the Emergency Shower and Was Not Wearing Suitable Eye Protection. § 1910.94(d)(9)(i).

At the No. 1 coil line the Compliance Officer found the operator of the line, an employee of respondent named Bill Krebeck. Krebeck, who had only been on the job one day, did not know the location of the emergency shower and was not wearing effective eye protection. Dawson, respondent's plant manager, who was accompanying the Compliance Officer, admitted that he had not instructed Krebeck as to the hazards of the coil line job or as to the location of the shower; and that, to the best of his knowledge and belief, no one else had either.

The failure to instruct Krebeck as to the job hazards -- see the discussion of this subject in Item 14 above -- was a direct violation of the standard. Furthermore, reading Subparagraph (vii) into Subparagraph (i) -- permissible since respondent litigated the [*54] merits instead of objecting to the Government's failure expressly to cite Subparagraph (vii) with Subparagraph (i), the failure to instruct Krebeck as to the location of the shower was a violation of the duty to instruct him as to the first aid procedures applicable to the job hazards. But respondent's failure to require Krebeck to wear "tight-fitting chemical goggles or an effective face shield" was a violation of Subparagraph (v), which was not cited and could not be read into Subparagraph (i), and so may not, after trial, fairly be made the subject of a finding of violation. *

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* After warning as to this deficiency at the trial, the Solicitor made no motion to amend. III 168-9.

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Item 18 is affirmed to the extent that it refers to respondenths failure to instruct Krebeck as to job hazards and the location of the emergency shower, but vacated to the extent that it refers to respondent's failure to compel Krebeck to wear suitable eye protection.

Item 19. Respondent Failed to Provide, Near the Tanks in the Coil [*55] Line, the Piece Part Line, and the Anomatic Line, an Emergency Water Supply With a Quick-opening Valve and a 3/4 Inch Hose, Or Deluge Showers and Eye Flushing Facilities. § 1910.93(d)(vii).

Item 22. The Emergency Shower on the Piece Parts Line Did Not Operate At All and the Emergency Shower on the Anomatic Line Was Weak and Ineffective. § 1910.132(a).

These two items were consolidated at the trial (IV-184-9) because as here applicable the two standards provide that employees working at open surface tanks containing liquid which may burn, irritate or otherwise harm the worker's skin if splashed upon it shall each be protected either by the presence of a water pipe equipped with a quick-opening valve and four feet of 3/4 inch hose or by a "deluge shower" and an "eye flush", and because the two standards charge respondent with failure to provide such protection, i.e., with a single violation. As appears from the above the predicate for the obligation to provide this type of protection is the presence of an open tank from which may be splashed on a worker a liquid which may harm the worker's skin or eyes, which harm may be ameliorated by the prompt application of clean, cold [*56] water. The Secretary proved the predicate in respect of the No. 1 coil line through Mr. Largent's testimony as to sulfuric acid solution bubbles in one tank and very hot water in the next; and as to that group of tanks the Compliance Officer found an emergency shower in good operating condition but no eye flush; instead, there was a water line with a conventional, rather than a quick-opening valve; and a hose slightly below the minimum required diameter. As to the piece part line and the anomatic line, the Secretary failed to bear his burden of proving the predicate.

Item 19 is affirmed to the extent that it alleges that respondent failed to provide a required eye-washing device at the No. 1 coil line; otherwise Items 19 and 22 are vacated.

Item 20. A Salamander Was Filled With Combustible Liquid Within a Building by an Impermissible Method of Transfer. § 1910.106(e)(iv)(d).

The Compliance Officer observed, and complainant's Exhibit 7 shows, a five gallon can within a few inches of a salamander. The top of the can had a spout for pouring out the contents and a plain opening for filling the can. The can, which had been used to fill the salamander, still contained No. [*57] 1 fuel oil which becomes flammable if spread on a flat surface, as by spilling on the floor. The spout was not equipped with a spring loaded flame arrester.

The standard provides that within a building a flammable liquid shall be transferred only (1) through a closed piping system or (2) from a safety can by means of a device drawing through the top or (3) by gravity through an approved self-closing valve.

Respondent does not seek to controvert the facts. Instead it argues that the opening in the top of the can constituted "a device drawing through the top", a permitted alternative to a self-closing valve in the spout. Thus under respondent's argument, if the liquid is transferred by gravity through a spout, a self-closing valve is required, but if by gravity without a spout, and therefore by a method more subject to danger through spillage, e.g., fire and slipping, no self-closing valve is needed. Obviously the Secretary did not intend this ridiculous result, as is clear if the provision is given its ordinary, common-sensed meaning.

Item 20 is affirmed.

Item 21. In the Piece Parts Room and in the Coil Room There Were Open Top Containers of Fuel Oil. § 1910.106(e)(2)(ii). [*58]

In each of the areas mentioned there was a can about five inches in diameter and eight inches high, with no top at all, containing a substance. According to the recollection of the Compliance Officer it was fuel oil of an indeterminate grade and his notes seemed not to refresh his recollection; but in his opinion the hazard was similar to but greater than that presented in Item 20. He did not know why the liquid was used, as for instance whether it was there for storage or or immediate use; and Dawson, respondent's plant manager, whom he questioned, could not elucidate the point.

The standard cited lays down requirements as to how flammable liquids are to be "stored" in a plant where the use of such liquid is "only incidental to the principal business. . . ." And it is part of a broader requirement which differentiates and treats separately "storage", "transfer", and "use" in such a plant. Thus storage is covered in § 106(e)(2)(ii), transfer is covered in § 106(e)(2)(iii), and use is covered in § 106(e)(2)(iv). As has been held in another context, "storage' is not, by inter-pretetation, to be equated with "not in use at the moment of inspection." See Secretary v. United [*59] Engineers v. Constructors, Inc., 18 OSAHRC (No. 2414, pp. 20-23) (1974), afd 18 OSAHRC (1975). In the case at bar the Secretary failed to meet his burden of proving that the liquid in question was "stored", and that it was flammable or combustible.

Item 21 is vacated.

Item 23. An abrasive Wheel Was Used on a Machine Not Provided With the Required Safety Guard and Work Rest. § 1910.215(a).

There was no guard and no work rest on the machine to which an abrasive wheel was attached in the maintenance crib. The absence of the safety guard exposed the operator to the hazard that one or more of his fingers could come into contact with the rapidly rotating stone, that chips might be thrown off into his eyes or into other parts of his face, or, most serious of all, that the stone might explode from centrifugal force. The absence of the work rest exposed the operator to the hazard of having his hands drawn against the stone by the force of its rotation. There is no issue as to the facts and no objection by respondent that the standard is so vague that it failed to give him notice of his duty in premises, or that the citation and pleadings failed to give him notice as [*60] to the allegations which he was being called upon to defend against. But there is more to the case than that. As above indicated, the charge is that respondent violated the Occupational Safety and Health Act in that it permitted the use of a machine to which a grinding wheel was attached, which machine lacked a guard and a work rest. The requirement as to a guard on such a machine is explicitly covered by § 215(a)(4), while that as to "guarding" is covered in § 215(b), which comprises some 84 statements and substatements as to different kinds of guards required in different kinds of conditions. In spite of its superior expertise in this complex area and in spite of the circumstance that it was the moving party, subject to all of the procedural due process burdens of notifying respondent as to the civil charge against it, the Government elected to refer, in its citation and pleadings only to the introductory clause of § 215, which reads as follows:

"(a)(1) General Requirements. (1) Machine guarding. Abrasive wheels shall be used only on machines provided with safety guards as defined in the following paragraphs of this section except:

"(i) Wheels used for internal work [*61] while within the work being ground;

"(ii) Mounted wheels, used in portable operations, 2 inches and smaller in diameter; and

"(iii) Types 16, 17, 18, 18R and 19 cones, plugs, and threaded hole pot balls where the work offers protection."

When under Item 17 a question arose as to the validity of pleading the introductory clause instead of the specific standards, the kinds of hazards were so obviously different that it was reasonable to infer that a conscientious employer of ordinary intelligence could read the specific provisions into the general one; and, since the employer did not object, that he had done so. Here, on the one hand, because of the very long and detailed nature of § 215(b), relating to guards, and because work rests are not even mentioned in § 215(a)(1), it is much more difficult to give the same effect to the corresponding clauses, introductory and specific. On the other hand it would be an unduly stern remedy for poor, even oppressive pleading, to strike out what amounts to an entire cause of action after trial, especially where, as here, respondent is represented by experienced trial counsel, fully familiar with the arsenal of discovery measures provided [*62] by the Federal Rules of Civil Procedure. Indeed, here respondent took a lengthly pretrial deposition from the Compliance Officer. Surely if counsel had been so advised they could have questioned him as to the meaning of Item 23 and of Paragraph IV(a)(21) of the amended complaint, or they could have administered interrogatories as to those matters. Having elected to proceed without these safeguards, they assumed the attendent risk.

However the Government failed to meet its burden of proving that respondent's device fell within all of the specifications of § 215(a), which it chose to cite; and because of the considerations discussed above under Item 17, that included the specifications spelled out in negative form as well as those decribed affirmatively.

Item 23 is vacated.

Item 24. A Hand Fed Table Saw Was Not Guarded By a Hood Or Equipped With a Spreader. § 1910.213(d).

In the maintenance crib there was a table saw which lacked a hood and a spreader. The item is cited under the standard for crosscut saws and there was no proof as to whether the saw was in fact for crosscut work or for ripping; but since the requirements for the two types are identical, the deficiency [*63] in the proof is harmless. The saw was observed in operation.

The lack of the guard could cause amputation and/or lacerations; and the lack of the spreader could result in the work being forcibly ejected from the saw so as to strike the operator.

Item 24 is affirmed.

Item 25. There Were Switches in the Anomatic Room Which Did Not Bear Labels Identifying the Circuits Controlled. § 1910.310(o).

Item 26. There was a Junction Box in the Anomatic Room Which Had No Cover. § 1910.315(n)(4).

As shown in the discussion of Item 4 above, § § 310(o) and 315(n)(4) had been revoked on March 15, 1972, the date of the inspection.

Items 25 and 26 are vacated.

Hazards Accessible

In the case of each item affirmed, either one of more employees of respondent were observed to be exposed to the hazard found or the hazard was accessible to respondent's employees generally. Either condition was sufficient to sustain the holding of violation. Brennan v. OSAHRC and Underhill Construction Corp., 513 F. 2d 1032, 1038 (CA 2, 1975).

VII

Penalties

Respondent conceded that as to each item of the citation as to which the alleged violation is affirmed, the amount of the proposed [*64] penalty is appropriate. Pursuant to that concession, penalties proposed in respect of affirmed items are affirmed as follows.

Item No.	Amount
2	$100
3	0
6	25
7	0
8	25
9	0
10	0
12	25
15	25
24	0

Total	$200

As to items affirmed only in part, the proposed penalties are affirmed to the following extent.

		Affirmed to
Item No.	Proposed Penalty	the Extent of
13	0	$ 0
17	25	10
18	0	0
19 and 22	195	50

		$ 60

		$260

VIII

Respondent's Second Defense

Respondent's second defense seeks to challenge the constitutional validity of the Occupational Safety and Health Act on its face. The Commission deems such an issue beyond the jurisdiction conferred by Congress in 29 USC § 659(c). Secretary v. American Smelting & Refining Co., 4 OSAHRC 445, 447 (1973); Secretary v. Engstrom & Nourse, 2 OSAHRC 452, 462, afd 2 OSAHRC 447 (1973). Hence there are noted below merely certain considerations bearing on the intended scope of this decision vis-a-vis the second defense.

First. No constitutional issue is reached and left open as an alternative ground of decision with respect to the items and [*65] portions of items as to which the citation is vacated. Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 772-3 (1947); W.E.B. DuBois Clubs v. Clark, 389 U.S. 309 (1967), reh. den. 390 U.S. 913.

Second. No constitutional issue is reached and left open with respect to the defense based on the alleged invalidity of 29 USC § 657(f)(1). Pursuant to the Commission's decision the present order is not based on a holding that § 657(f)(1) is valid and binding on respondent. On the contrary it is based on a finding that § 657(f)(1) was not complied with, and upon a conclusion of law that as a matter of statutory interpretation this did not invalidate the inspection and the citation.

Dated: December 11, 1975

Boston, Massachusetts

ROBERT P. WEIL, Judge, OSAHRC