UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 31, 1983

DECISION

Before: ROWLAND, Chairman; CLEARY, Commissioner.

BY THE COMMISSION:

  This case is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, §§ 651-678 (‘the Act’). The Commission must decide whether Administrative Law Judge John Patton erred when he vacated a citation alleging a violation of section 5(a)(1) of the Act1 based on his finding that the Secretary failed to prove a feasible means of abating the hazard. After reviewing the record we adopt Judge Patton’s finding and vacate the citation.

I

  From January 28, 1980, through February 4, 1980, an OSHA compliance officer conducted an inspection of the Cardinal Operating Company’s (‘Cardinal’) electrical facility in Brilliance, Ohio. As a result of the inspection, the Secretary issued two citations against Cardinal. The first citation contained nine alleged serious violations of the Act including five alleged violations of section 5(a)(1), the general duty clause. The second citation alleged twenty-seven nonserious violations of the Act.

  The parties conducted pretrial negotiations and eventually settled many of the citations including five of the alleged serious violations. After a hearing on the merits, Judge Patton dismissed two of the remaining serious violations and modified the two other serious citations and reduced their penalties. The judge also affirmed eight of the remaining nonserious violations.

  All parties petitioned the Commission for review. However, only the Secretary’s petition and the portion of the authorized employee representative’s petition that raised the same issue as the Secretary’s petition were granted. The issues involved in Cardinal’s petition have been appealed separately to the Sixth Circuit Court of Appeals.

  The single issue directed for review involves a possible fall hazard in several tanks at Cardinal’s workplace. Cardinal is engaged in the generation and distribution of electricity. Cardinal’s plants contain anion and cation tanks which are part of the water treatment system of the plants. The tanks are six feet in diameter and eight feet high, with domed tops and entry holes on the side about one foot from the top. A vertical pole runs through the middle of each tank. Laterals extend like the spokes of a wheel from the pole almost to the edge of the tank. In the cation tanks, the laterals are located four feet below the tank’s opening. In the anion tanks the laterals are located 4 ½ feet from the tank’s opening.

  Cardinal employees experience some difficulty when entering the tanks to perform repairs. To enter a side entry tank, an employee claims a ladder to a platform on the side of the tank. He holds onto piping outside the tank, enters the tank feet first, turns over onto his stomach and reaches out with his feet toward the center of the laterals to support his weight.

  Cardinal was aware of the problem and had lined the tanks with more resistant materials to minimize the number of times employees had to enter the tanks for repairs. This measure did not entirely eliminate the need for employees to enter the tanks. Therefore, Cardinal attempted to use small ladders, which had been successful in some larger, top entry cation tanks at the Cardinal facility, to facilitate entry into the side entry anion and cation tanks. The small ladders, however, were ineffective.

  The Secretary cited Cardinal for a violation of section 5(a)(1) in that Cardinal employees were exposed to serious injury if they were to fall on the laterals or through the laterals to the uneven bottom of the tank. The judge vacated the citation, stating,

The burden is upon the government in an allegation of violation of § 5(a)(1) of the Act to prove that there is a feasible way to remedy a hazardous situation. It would appear that this burden has not been carried. The Respondent seems to have made a diligent effort to find a way to cure the problem but totally without substantial success. It must, therefore, be held that the allegation with reference to these tanks cannot be sustained.

In a letter to the Commission, the Secretary now argues,

the judge apparently ignored unrebutted testimony concerning certain methods of abatement such as the installation of handholds on the exterior of the tanks (Tr. 184, 372-373, 376, 921-922) and a step on the outside platform next to the tanks. (Tr. 372) These methods of abatement were not addressed by the administrative law judge in his decision. Accordingly, his finding that the Secretary did not meet his burden of proof as to feasibility of abatement is erroneous and must be set aside. (Emphasis in the original.)2

II

  An element of a section 5(a)(1) violation which the Secretary must prove is that a feasible means exists by which the employer could eliminate or materially reduce the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

  We have reviewed the record for evidence bearing on the feasibility and utility of adding an exterior handhold and a step on the outside platform next to the tanks. We conclude that the evidence is insufficient to establish that these are feasible means of eliminating or materially reducing the hazard.

  Only one witness, an employee who had entered the tanks to make repairs, testified regarding a platform step or an exterior handhold.3 The sum total of that testimony is as follows:

Q. What, if any, methods do you think would solve this problem of entering and leaving these tanks, specifically where you worked upon them?

A. Well, one thing I had thought would help is a handhold. . . .

Q. A handhold?

A. Yes. To the structural steel or something above getting away from the piping, I thought that perhaps that might help and another thing that we had kicked around was something on the end of the pipe itself, or the inlet pipe itself to possibly get your foot up higher and also a step of some sort on that platform. . . .

Q. You’re talking about the outside?

A. That’s the outside to get closer to the hole before you get ready to make the first step and get in there.

And that’s basically, other than the thing that we talked about before about locating the access hole somewhere else on the tank, that’s about it.

  We find such testimony, standing alone, too unfocused and speculative to establish a prima facie case of feasibility and utility. See National Realty & Construction Co. v. OSHRC, supra, at n. 40. Champlin Petroleum Co. v. OSHRC, 593 F.2d 637 (5th Cir. 1979).

  We agree with Judge Patton’s finding that the Secretary has failed his burden to establish a feasible means of abating the hazard.4 Judge Patton’s decision is affirmed.

SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: AUG 31, 1983

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

June 22, 1981

APPEARANCES:

Ted Pethia, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of the complainant.

J. Sean Keenan, Esquire, and William S. Cline, Esquire, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, on behalf of the respondent.

Thomas M. Valerio, 361 Central Court, Steubenville, Ohio, on behalf of the intervenor.

DECISION AND ORDER

  This case is before the Occupational Safety and Health Review Commission on the complaint of complainant alleging that respondent has violated § 5(a)(1) and (2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq. 84 Stat. 1590, hereinafter referred to as the Act). It is alleged that the violations of § 5(a)(2) of the Act consist of violations of the following standards: 29 C.F.R. § 1910.132(a), 29 C.F.R. § 1910.22(a)(1), 29 C.F.R. § 1910.22(a)(2), 29 C.F.R. § 1910.36(b)(8) and 29 C.F.R. § 1910.184(d). A hearing was held on this cause on December 2, 3, 4, and 5 and February 9, 10, 11 and 12 at Steubenville, Ohio. Local Union 478, Utility Workers of America, AFL-CIO, intervened in the cause and participated fully in the entire hearing.

ISSUES IN THE CASE

  The citation originally encompassed allegations of violation of numerous standards other than those referred to above. Some of the allegations of violation were withdrawn. With the exception of those standards set forth above, the parties settled the issues as to all of the other allegations. The settled portion of the case was severed from the part remaining in litigation and was docketed as 80–1500a. The only issues remaining for determination relate to the standards set forth above and those are the only allegations that will be discussed in this decision.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.132(a) in that employees were permitted to go into an area beneath the hosting for the overhead crane at the north end of C–P elevation for Unit Two.

  The respondent, at the conclusion of complainant’s proof, moved to dismiss as to this allegation on the ground that said standard relates only to the wearing of personal protective equipment and in no way relates to employees going into certain areas. The motion was granted.

  It was requested that the complaint be amended to allege a violation of § 5(a)(1) of the Act. The case had been pending for many months during which a request to amend could have been made. A preliminary hearing on the question of validity of the warrant was held in September 1980 and four days of hearing on the merits of the case were held in the first part of December 1980. The motion to amend was not made until February 1981. The requirement of proof for an alleged violation of § 5(a)(1) differs from that required for § 5(a)(2). Had a request to amend been made even at the December 1980 hearing, the respondent would have had two months to prepare before presenting its own proof. The motion to amend was therefor denied. These rulings are hereby reaffirmed.

  It was alleged that respondent violated § 5(a)(1) of the Act in that employees were exposed to hazards of falls and/or being struck by loads when hoisting materials to high elevations without proper hoisting methods being provided and/or used at silos 6(A) and (B) in the coal-handling area.

  It was also alleged that respondent violated § 5(a)(1) of the Act in that no means were used to protect against the hazards of falls when entering or leaving confined spaces of the cation and/or anion tanks at B–2 elevation for Unit One and Unit Two and at ground elevation for Unit Three.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.22(a)(1) in that places of employment were not kept clean and orderly or in a sanitary condition. It was alleged that there were coal residues on the floor areas around the coal belt conveyors at CC floor on elevation eight for Unit Three. It was further alleged that there was accumulation of coal residues on the outside platform in front of the east doorway to No. Two belt take-up for Station No. Two at the coal-handling area.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.22(a)(2) in that the floors of the workrooms were not maintained as far as possible in a dry condition. It was alleged that the floor areas adjacent to the slurry pumps in the southwest corner of the slurry room on the main floor level at Unit Three were not in a dry condition.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.22(a)(2) in that floors of the workroom were not maintained as far as possible in a dry condition at the ground level of the acids station at Unit Three.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.36(b)(8) in that there were not at least two means of egress remote from each other and so arranged as to minimize any possibility that both might be blocked by any one fire or other emergency condition in the area leading from the tail pulley for No. Four belt at Station Three tunnel for the coal-handling area.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.184(d) in that damaged or defective slings were not immediately removed from service. It was alleged that the wire rope bridle sling used by the maintenance department on the turbine floor of Unit Two was defective.

EVIDENCE AND EVALUATION OF THE CASE

  The answer of the respondent admitted that respondent at all times relevant to this cause has been a firm having an office and place of business at Brilliant, Ohio, where respondent is engaged in the generating and distribution of electricity, employing approximately 420 individuals in the conduct and operation of said business. It was admitted that in the operation of the business, respondent engaged regularly in the purchase, receipt and handling of substantial amounts of supplies, materials, equipment, machinery, tools and other goods manufactured, produced, processed or obtained outside the State of Ohio. It was further admitted that in the production and distribution of electricity, substantial quantities of same were transmitted across state lines and supplied to firms for use in the production of goods intended for shipment across state lines. It was admitted that as a result of these activities, respondent is and at all times relevant to this cause, was engaged in a business affecting interstate commerce within the meaning of § 3(5) of the Act.

  It was alleged that respondent violated § 5(a)(1) of the Act in that respondent did not furnish employment and a place of employment that were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees, in that they were exposed to hazards of falls and/or being struck by loads when hoisting materials to high elevations without proper hoisting methods being procured and/or used at Silo 6, A and B in the coal-handling area.

  On a normal day, a total of approximately 15,000 tons of coal are burned at the respondent’s place of business (Tr. 991). The coal is delivered by truck, railroad car and river barge (Tr. 99–91). The coal is stored for short periods of time in three coal silos and, on a long term basis, it is stored in the coal yard, an area 3/4 of a mile long by 1/4 to 1/3 of a mile wide (Tr. 91, 92, 1202). The respondent had on hand approximately 600,000 tons of coal at the time of the hearing.

  All of the coal initially goes into the silos which are designated Silo 6, Silo A and Silo B. There are two conveyors which travel to the top of Silo A. The conveyors connect the top of all three of the silos. The silo tops also have other structures on them (Tr. 1212, 1213). Since 1977 larger substantial pieces of equipment have been hoisted to the top of the silos about three times a year (Tr. 1238).

  It was alleged that an employee, lead man Elwyn Saiter, was exposed to a fall when hanging a snatch block on part of the conveyor superstructure adjacent to the top of Silo 6. There is some confusion as to the date on which this happened and the respondent contends that the date was May 24, 1979. The citation was issued on February 25, 1980. It is therefore the position of the respondent that the incident occurred more than six months after the issuance of the citation and is barred by the statutory limitation (Tr. 1217, 1218). Exhibit R–7, which was the job order requiring installation of a new actuator on Silo 6, sustains the respondent’s position as to this date. On the other hand, the compliance officer testified that upon information supplied to him by employee Miller, it was his understanding that the incident occurred a few weeks before the date of the inspection (Tr. 257). The inspection occurred between January 28, 1980, and February 4, 1980. The response to interrogatories served upon complainant by respondent elicited a response that the hoisting took place in September or October of 1979 (Respondent’s Ex. 1). The weight of the evidence would appear to sustain the date of May 24, 1979 as the date of the occurrence and, therefore, the position of the respondent that the incident occurred more than six months before the filing of the citation is sustained. It will also be noted that the complaint incorporates the citations by reference and the citations state that the violations occurred on or about the dates of inspection. The dates of inspection were January 28, 1980, to February 4, 1980. An occurrence in May 1979 could hardly be said to conform to the dates alleged in the pleadings. ‘On or about’ would allow a few days variance but even several weeks before the inspection would appear to be beyond the alleged dates. Mr. Saiter testified that when lifting is done by hoist, it is uniformly done according to the following procedure: A cable is thrown over the top of the superstructure that sticks out beyond the silo and beyond the conveyor and a snatch block, which is a pulley with a hook on it, it is hooked on and a cable run down to the ground (Tr. 499). One end of the cable which is dropped to the ground is attached to whatever it is desired to lift and the other end is attached to a pick-up truck or a cherry picker which is used to provide the power to lift it. In order to attach the cable at the top, he stands on a handrail, throws the sling over with one hand, hooks the snatch block in and tries to bring the other sling in and hook it and let it hang (Tr. 502). The handrail is along the conveyor and is part of the superstructure that supports the conveyor and runway. It is necessary to be away from the silo to make the lift because, if a person is too far from the edge, the lift will catch on the side of the silo and will make the lift harder. The handrail is part of the conveyor, itself. When standing on the handrail, he holds to the steel gangwire or anything else he can hold to (Tr. 502–503). The handrail consist of three rails, one about a foot off the structure, another about ten inches higher and another about ten inches above that (Tr. 503). He would stand on the top rail. If he was to lose his handhold and his foot slipped, he would fall to the coal pile below which would be a distance of anywhere from 70 to 150 feet, depending on how high the coal pile was (Tr. 505). He stated that in instances where it is necessary to lift, that is the way it is always done (Tr. 505).

  It appears from the above testimony that the instance of May 24, 1979 is not an isolated incidence but that every instance where there is lifting of a major object by Mr. Saiter, he stands on a handrail, taking the chance of falling 70 to 150 feet.

  Respondent’s evidence, however, is to the effect that significant lifting by a hoist is done only an average of about three times a year (Tr. 1337). There is no evidence as to when Mr. Saiter used the hoist except for the May 24, 1979, date. Mr. Miller testified of another hoisting but stated that the employee was standing behind the guardrail. There is no evidence establishing that any employee used the hoist in January or February 1980 in the manner it was used on May 24, 1979, by Mr. Saiter, nor even that it was so used within six months of the date the citation issued.

  Maintenance supervisor Eskey testified that, if he saw anyone hoisting in the manner Mr. Saiter did on May 24, he would stop the job and tell the employee to get a tag-line or something else to safeguard himself (Tr. 1236). He said he knew of no other instance of hoisting being done as Mr. Saiter did it (Tr. 1338, 1339). He testified that Mr. Saiter was supposed to use an actuator and had been told to do so (Tr. 1248).

  It appears that the complainant has failed to prove that hoisting was done in a dangerous way on or about the dates alleged and the allegations as to hoisting must therefore be dismissed.

  Employees below the hoisting were required to stand away from the area of hoisting so there was no hazard of employees being struck by falling objects being hoisted.

  It was alleged in serious Citation One, Item Five, that respondent violated § 5(a)(1) of the Act in that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees. It was alleged that no means were used to protect against the hazard of falls when entering or leaving confined spaces of cation and/or anion tanks at B–2 elevation for Unit One and Unit Two and at ground elevation for Unit three. The cation and anion tanks were part of the condensate cleanup systems for water treatment in all three of respondent’s units (Tr. 1360). These tanks are part of the system which removes the dissolved impurities that are in the water which moves through the boiler tubes in the generating units (Tr. 1362). The objective of this condensate cleanup is to achieve zero conductivity of the water. The process which takes place is known as demineralization (Tr. 1363). The cation tanks at Units One and Two receive resin from an exhausted demineralizer. The anion tanks at those units contain the regenerated resin. The condensate polishing equipment on Unit Three is involved in the water-making process for the unit (Tr. 1366). The cation tank at Unit One is a cylindrical tank with an outside diameter of six feet. It is a slightly domed vessel with vertical sides eight feet tall. The manhole in the cation tank at Unit One is on the side of the tank approximately 12 inches down from the vertical line of the tank. The manhole is approximately 17 inches in diameter. Inside the cation tank on Unit One, there are laterals which extend like spokes from a hub from the middle of the tank. The distance from the center line of the manhole to the surface area laterals is four feet. The cation tank at Unit Two is identical to the cation tank at Unit One (Tr. 1367).

  The anion tanks at Units One and Two are identical to one another, they are of the same outside dimension and the same height as the cation tanks at Units One and Two. The manholes in the anion tanks are in the same position as on the cation tanks on Units 1 and 2 and are of the same dimension. The laterals in the anion tanks, however, are slightly lower than the laterals in the cation tanks, making the distance from the center line of the manhole to the laterals approximately four and one half feet (Tr. 1368). The cation tank at Unit Three is larger than the cation tanks at Units One and Two. It measured approximately 12 feet on its vertical sides (Tr. 1369). The manhole in this cation tank is on top of the dome, slightly offcenter. The distance from the manhole to the laterals inside is approximately four feet. The laterals are composed of spoke-like pipes and another layer.

  The respondent takes the position that an employee could stand on the laterals upon entering the tank and that the distance of approximately four to five feet is so slight as not to present a hazard. There is a dispute of testimony as to the strength of the laterals, it being testified by the complainant that the laterals would not support a man’s weight (Tr. 331), and on the other hand, being testified by the respondent that the laterals would support a man’s weight (Tr. 1379, 1391). It was testified that no one had never fallen or broken a lateral (Tr. 1379). The fact that people have stood on the laterals when entering and leaving and that laterals have never broken would appear to substantiate the opinion that a lateral would not break. It is therefore held that the laterals will support a man’s weight. Mr. Robert Beisel testified that an employee could fall, straddling the laterals and thereby injuring himself or fall further to an uneven surface of spoke lateral pipes (Tr. 107). Mr. Martin Dalton, Senior Performance Technician, testified that he had had a number of slipping experiences and that this was a danger every time anyone went in or out. The small resins are damp and have a tendency to stick to the shoes which is something which contributes to the slipping on the way back out (Tr. 343). He stated that there is a possibility of injury each time the tank is entered or left.

  It appears that there is a hazard in entering or leaving the tanks and therefore, the position of the respondent that there is no danger cannot be sustained. The question still remains, however, as to whether any remedy exist to cure this danger. It would appear that the respondent has made a diligent effort to make the tanks safer. The respondent has tried to reduce the need to go into the tanks. The deterioration of gasket material and the necessity to replace them is one reason for the necessity to enter the tanks. Extremely caustic resistent rubber was secured for the anion tanks and an extremely acid resistant rubber gasket was secured for the cation tanks (Tr. 1381). A big strainer basket, that it was testified ‘cost Mr. Walton a fortune’, was placed in the top of the anion tank dome to prevent operations from blowing resin out. This decreased the need to show concern about tanks (Tr. 1381, 1382). About $13,000 was spent to get all new valves to put on the whole condensate cleanup system to increase the performance of it (Tr. 1382).

  A small steel ladder was purchased. The performance supervisor engineer, Dana Gibson, testified that he talked to the manufacturers concerning a ladder and secured a ladder specifically designated as a tank entry ladder, a manhole-type ladder. It had hooks on it where it could be hung over a handrail or a manhole and hinges in the middle. This was ordered in response to concerns of his employees (Tr. 1383). He found, however, that it was no improvement over what they had been doing before (Tr. 1390). They also tried a wooden ladder in the tank. They found it was too long. They tried a rope ladder with wooden rungs around it, similar to the type that would be placed on a ship to throw over the side and then climb up, or to use as a homemade fire escape in the home to throw out a window. Ti wasn’t successful because it swayed and moved if someone was going down it (Tr. 111, 112). They considered a safety line but the concern was that a safety line could become entangled in the tank if care was not used (Tr. 113). Safety lines and unrelated equipment were available. (Tr. 1145). A platform was also erected as well as an outside ladder. It was testified that these helped but did not cure the problem (Tr. 1147). Mr. Dalton, senior performance technician, testified that lifelines would not work (Tr. 372). Mr. Dalton suggested a larger manhole. He admitted, however, that he had no expertise to determine whether another manhole or a larger manhole was a feasible means of correcting the problem (Tr. 450). Mr. Balerio, an employee of respondent, and the representative of the bargaining agent, suggested another larger manhole but admitted that he did not have the expertise (Tr. 939). The tanks are high-pressure tanks and it probably would take an expert to determine whether a larger or different hole would be practical.

  The burden is upon the government in an allegation of violation of § 5(a)(1) of the Act to prove that there is a feasible way to remedy a hazardous situation. It would appear that this burden has not been carried. The respondent seems to have made a diligent effort to find a way to cure the problem but totally without substantial success. It must, therefore, be held that the allegations of violation with reference to these tanks cannot be sustained.

  It was alleged in Citation 2, Items 1c and 1d, that respondent violated standard 29 C.F.R. § 1910.22(a)(1) in that the places of employment were not kept clean and orderly or in a sanitary condition. It was alleged that there were coal residues on the floor area around the coal belt conveyors at CC floor on elevation eight where Unit Three was located at the time of the inspection. It was also alleged that there was an accumulation of coal residues on the outside platform in the front of the east doorway to Number Two belt take-up for Station Two at the coal-handling area.

  Approximately 15,000 tons of coal are used each day. The coal is delivered by truck, railroad car and river barge. The respondent maintains on hand 600,000 tons of coal. Coal is moved by a conveyor belt system from various unloading points to the silos, then to other storage areas, and ultimately to the boilers themselves. The conveyor belt systems consist of over 26,000 feet of belting (Tr. 999). These belts are made of rubber and reinforced with natural or synthetic fibers. Their load capacity ranges from 11,000 to 25,000 tons of coal per hour (Tr. 1023).

  The condition of the coal is materially affected by the weather. Most of the coal is delivered by barge and arrives wet. The wetness of the coal causes spillage as well as maintenance and operational problems all along the conveying system (Tr. 996). Wet coal is sticky and it adheres to the belt which can result in carryback along the conveying system and causes belts to run out of line. Belt scrapers are utilized to prevent carryback. Wet coal clogs the sheets which are needed at transfer points and interferes with the floor coal going into the shoot. This can cause significant spillage of coal from the belts (Tr. 997). The abrasive nature of coal also causes the conveyance system to deteriorate. The belts are worn as are the shoot liners (Tr. 996). A number of feeders of coal increases, which increases the load on the belt and spillage can result. Given the amount of coal that the belts carry, the accumulation can very quickly become significant. Tons of coal can spill from a belt which is not automatically shut down. It was testified that if someone cleaned up the coal every other day, they could still encounter an accumulation (Tr. 454). There are over 26,000 feet of conveyor belts that might move up to 30,000 tons in a day (Tr. 998). If the armoriters are out of adjustment, it will cause spillage. Properly maintained, they will help control the spillage (Tr. 879, 882).

  Inspection revealed a substantial amount of coal at various places around the belts.

  Respondent has made a number of efforts to control coal spillage. They have a belt scraper for taking the droppings off the belt. The scrapper is designed to put coal in a drip shoot (Tr. 1462, 1477). If the coal is wet, however, they will get a buildup in the drip shoot and then it is not totally effective (Tr. 1478, 1479). What falls off, however, is picked up (Tr. 1480). Each day when they start work, a man checks for any buildup of coal under the rails or tail pulleys (Tr. 1448). If there is a malfunction in the system, it will shut down automatically (Tr. 1453). There are people specifically designated to clean up the coal any time that it is found that a pile has accumulated.

  Various training devices are employed to maintain the alignment of the conveyors (Tr. 1024). There are shoots at the discharge points on the conveyors where the tail end of one conveyor meets the head end of another conveyor to move the coal from one belt to another. The shoots have skirt boards and armorites which also serve to contain the coal on the conveyor at these transfer points as much as possible (Tr. 1024). All of these devices are subject to wear. A large number of employees from several departments are responsible for cleaning up coal spillage. The maintenance department, the largest department at the respondent’s, is responsible for maintaining the conveyor system. Within the department is the ultility department which has the responsibility of cleaning coal spillage. A total of 210 employees are in the maintenance department. The operations department has the primary responsibility of shoveling coal off the floor (Tr. 1028). Operations personnel are also required to clean the coal out from underneath the tail pulley so there is no rubbing of coal against the belt and to shovel the coal off the belt that is spilled from the belts (Tr. 637, 638). If an operations employee inspects the belt and pulleys and coal is cleaned out from underneath the tail pulley, he is also responsible for general cleaning of the area (Tr. 638). An employee is assigned on a general basis to go into the area to clean the coal out from underneath the tail pulley. In the event of a major spill, a crew from the utility department is sent to assist the department primarily responsible.

  The coal on the floor does constitute some tripping hazard, it being slippery particularly when wet. Having coal on the floor is not an ideal condition. The fact remains, however, that in view of the extreme amount of coal handled, the respondent would appear to have done all that could have reasonably been required. It is apparent that with 26,000 feet of conveyor belt, with 15,000 tons of coal passing on the conveyor belt daily, and at times, up to 30,000 tons daily passing on the belts, and with the numerous causes which may arise for coal spillage set forth above, it is an impossibility to avoid all coal spillages. The respondent constantly inspects to determine if there is coal spillage, when there is coal spillage there are a number of employees assigned to clean it up, which is done with reasonable promptness, and to require that there be no coal spillage would be to require what appears to be the impossible. The complainant seeks an ideal situation which, however, is not under the circumstances obtainable. It must therefore be held that the allegations of violation by coal falling from the belt have not been sustained.

  It is also alleged that a hazardous condition was created by coal which was on the platform in front of the east doorway to Number Two belt take-up for Station Two at the coal-handling area.

  The platform in question is not a regular walkway nor a regular work area. The doorway platform is outside of a doorway area and the doorway is used only for the purpose of permitting access to the belt take-up pulley area on the occasions when an employee must measure the belt take-up pulley in conjunction with the calibration of the coal scales at the barge unloader (Tr. 1117). There is also a periodic necessary lubrication of the equipment required approximately once every three months (Tr. 1461). The belt which terminates at said doorway comes from the barge unloader (Tr. 1459). On the average six barges ranging in size from 900 to 1500 tons are unloaded each day (Tr. 1463). Due to the fact that the coal is transported over water, the coal which comes from the barges is extremely wet and muddy. The muddy coal drips off the conveyor belt from the belt scraper above the doorway area (Tr. 1462). When the shoot becomes plugged by the wet clay-like coal, scrapings can rapidly build up on the platform (Tr. 1478). A very large accumulation of coal is not uncommon (Tr. 1462). If the doorway was cleaned daily, an employee, who might have occasion to open the door the very next day, could encounter a large accumulation of material on the platform.

  The responsibility for cleaning the accumulation of sticky coal on the platform belongs to the coal handlers in the coal yard (Tr. 1463). When there is no request submitted to the coal yard for cleaning of the platform, it is scheduled to be cleaned approximately twice a week (Tr. 1460). At times, the coal does not build up at all on the platform, making the twice weekly cleanup unnecessary (Tr. 1467).

  The point is made by the respondent that there are many days in which there is no employee on the platform at all and it would, therefore, be a waste of time if the platform was cleaned every shift. When an employee is required to go on the platform and finds a large accumulation of coal, he can place a request with the coal yard that the platform be cleaned (Tr. 1463). The calibration that has to be made of the coal scale is not an emergency situation and, therefore, the delay occasioned by calling the coal yard to have the platform cleaned would not jeopardize the work that has to be done (Tr. 1464).

  It was testified by the compliance officer that an increase of coal on the platform in addition to creating a slipping hazard creates a hazard of fall because it raises the coal to such a level that an employee could easily fall over the guardrail (Tr. 416, 117).

  It would appear unreasonable to require the respondent to clean coal off of the platform on those occasions when no employee is using the platform. It does, however, appear to be a hazard to have coal on the platform on those occasions when it is used, which hazard can be at least in part remedied. The respondent, as above stated, concedes that it would cause no problem to the respondent to have the employee who must go on the platform to first have the platform cleaned. It is not enough to accord an employee this privilege, but if there is a hazard presented, the employee should be required to have the platform cleared. Certainly, when the coal is of such height as to remove the safety factor that the guardrails provide, it is incumbent upon the respondent to require the employee to have the coal removed.

  The question was asked by counsel for the respondent, ‘Has anyone ever made such a request to the coal yard for that platform to be cleaned? Answer-Yes.’ It therefore would appear that such a request has been made but that it is not the required or normal practice. No penalty is requested for this violation and, therefore, no penalty will be assessed.

  It was alleged that respondent violated standard 29 C.F.R. § 1910.22(a)(2) in that floors of the workroom were not maintained as far as possible in a dry condition. It was alleged that the floor areas adjacent to the slurry pumps in the southwest corner of the slurry room on the main floor level at Unit Three were in a wet condition.

  The slurry room was estimated by the plant manager to be 70 x 90 in size and Mr. Jerry Williams, an employee in the operations department, estimated it to be 90 x 120 (Tr. 861, 1005). There are three sets of slurry pumps. Each set consists of three pumps, a low pressure pump, an intermediate pump and a high pressure pump. There are other pumping systems located in the slurry room including sealed water pumping systems and sump pumps (Tr. 860, 1005).

  Slurry is a mixture of water and ash. When coal is burned, the ash that falls to the bottom of the steam generator is called jargon bottom ash and the ash that is carried up through the steam generator out through the electra-static percipitator where it is collecting is called fly-ash (Tr. 1006, 1007). As gases exit the boiler, they pass through a precipitator box. The gases are charged electronically, and the ash which is attracted to plates is collected in hoppers beneath the precipitator. A vacuum system removes the ash which is subsequently mixed with water which results in slurry and aids to ease the disposal of the ash (Tr. 107, 108). Even though the slurry pumps and other handling systems for slurry are built of substantial material, the liners and housings in the pumps wear and periodically must be replaced. Packing around pumps or shafts can be destroyed by the abrasive slurry which results in considerable leakage. These problems frequently occur and do not occur in any set pattern (Tr. 1008–1010). Operators check the various pumps and other systems in the slurry room at least once each shift and often several times a shift (Tr. 1009, 1010). Mr. Dennis, who accompanied the inspection party, testified that at the time of the inspection, ‘there was sort of a pattern-type dampness. From being in there before I assumed the floor had been hosed down very recently because it was very damp in spots and it was dry in spots’. Hosing down the slurry room is a normal procedure in cleaning up the slurry room (Tr. 611, 890). Mr. Dennis testified he saw no leaks at the time of inspection (Tr. 1187). Mr. Dennis also said that he put his hand in the water and it appeared to be water rather than slurry although there was ash grittiness in the water (Tr. 1126). Mr. Williams testified there would be some ash grittiness even after the floor had been hosed down (Tr. 890).

  The slurry was 20 parts water to one part ash. There are six floor drains as well as other drains in the room (Tr. 1125, 1126). Maintenance mechanic Charles Cuddihy, testified that packing could have been improved on the pumps and they could have had ditching or drains closer to the water supply. He testified that water is a normal condition and the packing in the pumps causes wear, creating excessive leaking (Tr. 763). He said the drains were located improperly and most of the water and slurry cannot find its way to the drains (Tr. 763). The slurry is abrasive and hard on the pipes, pipejoints and packing around the pumps (Tr. 809).

  It was testified that there is 24 hours maintenance, seven days a week (Tr. 1075). It is inspected every shift (Tr. 1084). Increased frequency of inspection by maintenance would improve the situation (Tr. 1076). The leaks are frequent (Tr. 1155). It was testified by the respondent that the drains prevent water and slurry from discharging upon the floor by carrying it away (Tr. 1186). Any time they see water on the floor, they check as to why it is there and whether it has been cleaned up (Tr. 1188).

  It would appear that the frequency of inspection is all that could reasonably be expected. The weight of the testimony is to the effect that the drains are so located that the water does not normally find its way to the drains and, therefore, the drains are not as adequate as they could be for the purpose of clearing the floor. The charge as to the slurry resulting from leaks in the slurry pumps is sustained for want of proper drainage. No penalty is requested for this violation and, therefore, no penalty will be assessed.

  It was further alleged that the respondent was in violation of 29 C.F.R. § 1910.22(a)(2) in that floors of the workroom were not maintained as far as possible in a dry condition as a result of liquid on the ground level of the acid station at Unit Three.

  The acid station on ground level at Unit Three is a part of the water treatment system for that generating unit. From its original installation, there have been problems of acid leaking from pipes and valves as well as other fittings (Tr. 1119). A new type of piping and valve was tried. Prior to the installation of new pipes, water was run on the floor around the station where acid was leaking to dilute the acid as a safety measure. The water ran into a drain in the floor near the acid station (Tr. 1119). The putting of water on the floor to dilute the acid was an interim measure until repair of the acid station could be accomplished. The water came from a 3/4‘ hose left to dilute any acid which might be there (Tr. 1119).

  The compliance officer testified that the acid on the floor created a slippery condition for walking on working surfaces at the ground level of acid station Unit Three (Tr. 126). The curving or diking around the acid mix station was broken away as a result of the eating by the acid (Tr. 127). He was concerned not only about the wet floor but about the fact that someone might slip and fall into the acid solution, getting burned (Tr. 128). It was also greasy, causing it to be slippery (Tr. 128). There were 10 to 15 x 40 in this condition (Tr. 128). The depth varied (Tr. 128). Floor drainage was adjacent to the acid mix station (Tr. 129). He recommended other drainage methods and ditching covering pipes to carry the unwanted solution away. He also suggested the possibility of false floors made with gratings to elevate the people above the problem (Tr. 130). He stated it would be possible to apply special non-slip surface (Tr. 130, 131).

  It was the position of the respondent that the station could not be taken out of service for any long period of time in order to wait for installation of new material and this was the reason it was watered down pending the installation of new materials.

  It would appear that using water to dilute the acid and to wash it away was a reasonable precaution. The question remains, however, as to whether the respondent was derelict in its duty in having acid on the floor in the first place and also, whether the respondent did all in its power to get rid of the water and acid by proper drainage. It was suggested by the compliance officer that elevating the floor with grating might have been a solution. The respondent takes the position that the condition was temporary and would be alleviated by the installation of new piping which was being installed. It does not appear that the respondent should have been required to go to the very substantial expense of erecting a new floor if new piping to cure the problem was going to be promptly installed.

  The compliance officer also stated that drainage could be accomplished through getting rid of the substance by means of pipes and by having better arrangement of drainage. Unlike the situation at the slurry pumps, however, the witness did not state what was wrong with the drainage or in what way the drainage could be improved. He merely stated the conclusion that the drainage could be improved. This does not establish that the drainage was defective. The respondent did replace the original piping with similar material which did not prove effective. Respondent thereupon began the program of installation of a new type of piping and new valves.

  It appears that respondent made an effort to cure the problem and to make the proper installation of a type of piping and valves that would alleviate the leakage. The respondent cannot be blamed for seeking to dilute the acid which was done as a safety measure. The respondent was at the time of inspection planning to install other pipe. The respondent has acted in good faith and even if a penalty had been requested, no penalty should be assessed. No penalty has been requested. The evidence indicates there is a recognized hazard and a remedy odes exist. It therefore must be held that a violation has occurred.

  It is alleged respondent violated standard 29 C.F.R. § 1910.36(b)(a) in that there was only one means of egress from the area leading from the tail pulley for No. Four belt at Station Three tunnel to the coal-handling area.

  Station Three tunnel which houses the No. Four conveyor belt is a shaft or tunnel to which entry is gained at ground level and which proceeds on an angle below ground level for a distance of approximately 150 feet from the point of entry. At the lowest point in the tunnel, near the tail pulley for No. Four belt, the tunnel is approximately 40 feet below ground level (Tr. 131). The tunnel is fabricated on concrete and is approximately eight feet wide allowing for a five foot conveyor belt and a stairway approximately three feet in width. The concrete steps do not run the entire length of the tunnel but are replaced by a metal runway, platform, and steps at the lower extremes of the tunnel where the tail pulley for the No. Four belt is located (Tr. 131, 132). Above the tail pulley area of the tunnel is the feeder room which houses two feeder units which direct coal into the No. Four belt (Tr. 1446). Above the feeder room level, but not accessible from the feeder room level, is the rotary railcar dumper. This facility picks up, turns over, and dumps railroad cars full of coal in the hoppers which then feed into the feeder units (Tr. 1445, 1446). The only exit from the feeder room in the tail pulley area of the tunnel is back up the steps leading down to those areas (Tr. 134).

  It was the position of the complainant that the coal constituted flammable material and the danger of fire necessitated more than one exit. It was testified by the respondent that estimates were secured and another exit would cost $88,000. This price, however, included the type of exit from which materials as well as persons could be made and the cost would be somewhat less if an exit existed only for employees (Tr. 1081). A number of precautions were taken including installation of fire extinguishers, aspirators, heat detecting devices, a telephone and a PA system. The telephone was not working but all other of the above—mentioned precautions were functional (Tr. 1128–1132).

  It was testified by an expert witness presented by the respondent that, during routine unloading of coal in Station Three tunnel, the atmosphere is not sufficient to propagate a flame should a source of ignition occur (Tr. 1336). He stated that a minimum explosion would require concentrations of coal dust 45 milligrams per liter and the highest sample was .029 (Tr. 1336, 1337). He did not see any sources of ignition (Tr. 1337). Housekeeping was adequate to minimize the possibility of explosion (Tr. 1339). There was no combustible gas (Tr. 1340). The electrical apparatus, either in conduit or in metal enclosures for actual contact mechanisms, was exposed to the atmosphere (Tr. 1340, 1341). Motors were brushless and nonarcing and he did not see any exposed area where sparks could occur. There were no sources of ignition for any fire in the tunnel (Tr. 1341, 1348). It was stated that most coal-handling facilities do not have an exhaust system, but one existed at the respondent’s tunnel (Tr. 1349). He testified that respondent does not have a housekeeping problem there (Tr. 1351). There has never been a fire from a spontaneous combustion (Tr. 1458). There is an automatic control shutdown of the conveyor system, but it does not always work properly (Tr. 1474).

  On the other hand, there was evidence that although there was no smoldering coal from rubbing against rollers, the bearings have been seen to be on fire. It was testified that any bearing that loses its lubrication will get hot and, if it keeps running and there is no grease left, it will catch on fire (Tr. 545). The bearings get so hot they will be smoking and with the belts running in, the coal will be hot and smoldering (Tr. 619). The equipment operator, Charles Harmon, stated that around two years ago, he saw a fire in the tunnel about 15 feet from the tunnel opening. The fire was under the belt and caused by the friction from coal buildup around the rollers rubbing the rollers (Tr. 665, 666). He was of the opinion that the bearings getting hot could lead to a fire (Tr. 619, 620). Where there is a lack of grease, he has seen the bearings get extremely hot (Tr. 670).

  It was testified by the respondent that the only fire of which they were aware was one where contractors were working on the ventilation ducts. They cut the belt off which fell behind the conveyor and caught the coal on fire (Tr. 1457). It was stated that there were no flames and very little smoke (Tr. 1457).

  From the above evidence, it would appear that the condition is not such as to cause a spontaneous combustion. It is not likely that there would be an explosion. There does, however, appear to be some possibility of a fire. Testimony of Mr. Harmon that he has seen the bearings on fire when about two years ago there was a fire under the belt caused by friction from coal buildup around the rollers rubbing the rollers, that any bearing that loses its lubrication will get hot if it keeps running and no grease is left it will catch on fire, that bearings get so hot that they are seen smoking and coal gets so hot that it will start smoldering with the belts running in the coal also being hot and smoldering, establishes that there is some possibility of a fire arising. For the employees to be working 40 feet underground with a single entrance under these conditions does seem to present a condition of peril. The possibility of a fire cannot be totally excluded. It is expensive for the respondent to alleviate the situation but it does not appear that the expense is as great as the $88,000 figure given because that figure included an exit for materials as well as persons. Apparently, the cost for an exit for persons only would be less severe and is justified by the possibility of employees being trapped if there is a fire. It must therefore be held that this allegation has been sustained. No penalty is requested for this violation and, therefore, no penalty will be assessed.

  It was alleged that the respondent violated standard 29 C.F.R. § 1910.184(b) in that a damaged or defective sling was not immediately removed from service. It was alleged that the wire rope bridle sling used by the maintenance department on the turbine floor of Unit Two was the sling in question.

  Maintenance mechanic William Duncan stated that a sling was used with broken strands, kinks and bends that had had a bird-caging effect in the wire rope. He was of the opinion that the condition of the sling would not permit its use (Tr. (749). The respondent’s testimony was that cables are inspected monthly or quarterly except the main turbine cables. Anytime the sling is used it is supposed to be inspected, and the employee using it is to make sure that it is in good shape (Tr. 1404, 1409). If it is not good, he is supposed to cut the eyes in two and make sure somebody knows about it so a new cable can be ordered (Tr. 1409). When a sling is found with worn strands or possibly broken wires, it is taken out of service. Several wires could be broken in the strand and still be strong enough since there is some overload built in (Tr. 1411, 1412). If there is a broken wire, there is a hazard of the wire getting caught in the hand (Tr. 1412). A bent thimble doesn’t affect the lifting capacity but could get in the hand (Tr. 1413). The respondent has enough slings that there is no need to use a bad one (Tr. 1414). A sling may be used four or five times a day and every time it is supposed to be inspected (Tr. 1414). The employees are told to take a torch and cut the eye out of any damaged cable (Tr. 1421). They keep defective slings long enough to get the measurement and also to see if the eyes and hooks can be salvaged and used over (Tr. 1434, 1435).

  It was testified, however, by maintenance mechanic Duncan that there have been occasions when the foreman discarded a defective sling and cases where the foreman has said not to discard it (Tr. 729). On occasions, he would agree that there was a defect and other times agree to a defect but not enough to cause a hazard (Tr. 729).

  There have been several occasions when an employee complained about a sling; and it was not taken out of service, but he was told to use it (Tr. 732, 736, 737, 743, 744).

  Apparently, the general policy of the company was to remove defective slings from service. A defective sling was brought to the attention of Mr. Don Robson, one of employee Duncan’s immediate supervisors, and Mr. Robson told him to use it (Tr. 731, 732). He testified that he had been instructed that any defect in the cable is supposed to be reported or he is to discard the cable himself (Tr. 735). He observed a bird caging effect. He stated that under these circumstances, he would be required to inform his supervisor and discard the cable. He told Mr. Robson that there were broken strands on the high sling. He brought this to the attention of Mr. Robson and Mr. Robson’s response was to continue to use it until they could get another one (Tr. 736, 737). He stated they would be getting another one in a few days (Tr. 737). He took it up with the immediate foreman because he was available for comment. He asked for advice as to whether to use the sling or not. There was some question in the witness’ mind as to whether it really was defective or not (Tr. 743). He has questioned use of several slings on different jobs. There was a question in his mind whether they might be defective. He could not say definitely that they were defective as he is not an expert (Tr. 744, 745).

  While the above witness initially testified that the slings he was instructed to use were defective, he stated on cross-examination that at the time he took it up with the supervisors, he had some doubt, and that he is not expert enough to say definitely that they were unsafe.

  Mr. Robert Deisel, compliance officer, however, testified that he was shown the sling in question and pointed out what he considered to be substantial defects. He stated that there was obvious damage to the thimble and the eye of one leg of a bridle rope sling. The thimble is the protective portion inside the eye and in this instance, according to Mr. Robson, it had been pushed out beyond the eye. There were three legs and the middle leg showed that there was no thimble in place in the eye. The eye, itself, indicated several broken wires within the strands. At the bend in the eye of the wire rope sling, there on a leg, where there were separations between the strands which would allow deterioration of the inside portion of the wire rope sling. On the third leg of the sling, there appeared at the bend of the eye that was attached to the eye of the hook, on obvious separation of the strands. This separation was to a point to allow inside deterioration. There was also abrasive wear on several strands (Tr. 161, 162). He found separation of the strands where the eye was attached to the eye of the hood (Tr. 165). It is stated that the thimble was to prevent physical wear and damage to the expansion and contraction of the wire rope. With the thimble extended beyond the eye of that portion of the leg, it could serve as a snagging hazard for anyone. Distribution of the weight in lifting would probably not be as effective as it should be (Tr. 166).

  The respondent’s general policy appears to conform to the requirements of the Act. The employee, however, was instructed to call the matter to his foreman, Mr. Robson’s, attention and Mr. Robson, in his actions was a part of management. Apparently, Mr. Robson instructed that the sling be used for several days when the weight of the evidence indicates that it was in an unsafe condition. A proper policy must be implemented by the subordinate supervisors of the company. If this is not done, the company is responsible. It therefore must be held that a violation has occurred. No penalty was proposed and, therefore, none will be assessed.

FINDINGS OF FACT

  1. At all times relevant to this cause, respondent was engaged in the generating and distribution of electricity from its place of business at Brilliant, Ohio.

  2. Respondent regularly engaged in the purchase, receipt, handing and use of substantial amounts of supplies, material, equipment, machinery, tools and other goods manufactured, produced, processed or obtained outside the State of Ohio. Respondent was engaged in the production and distribution of electricity, substantial quantities of which was transmitted across state lines.

  3. Respondent maintained three silos for the storage of coal and occasionally hoisted heavy equipment to the top of the silos. At least one of respondent’s employees made a practice of standing on the guardrail while connecting a temporary hoist to be used for the hoisting of equipment.

  4. Said employee was exposed to the possibility of fall which would have resulted in serious injury or death.

  5. There is no evidence that any employee of respondent engaged in hoisting in a dangerous manner on or about the dates alleged in the complaint or even within six months of the date the citation was issued.

  6. The respondent maintained tanks known as cation and anion tanks which were part of the condensate clean up systems for water treatment for all three of respondent’s units.

  7. The tanks are part of the system to remove the dissolved impurities which are in the water which moves through the boiler tubes in the generating units.

  8. The cation tanks are for the purpose of receiving resin from an exhaust demineralizer.

  9. The anion tanks contain the regenerated resin.

  10. It was necessary for the employees to enter said tanks, primarily for the purpose of making repairs.

  11. There was danger of employees entering or leaving the tanks falling, thereby straddling laterals and injuring themselves, or falling to the bottom of the tanks.

  12. The respondent has made a diligent effort to remove the danger by securing ladders and other means, but all such efforts have failed to prove a feasible solution.

  13. The complainant has not established that there is a feasible way of remedying said hazard.

  14. The respondent uses an average of 15,000 tons of coal a day which is transported across 26,000 feet of conveyor belts.

  15. At times, there are substantial accumulations of coal which fall from the conveyor belts.

  16. The coal residues on the floor area around the coal belt conveyors at CC floor on elevation eight for Unit Three constitute a slipping hazard for respondent’s employees.

  17. The respondent has made every practical effort to prevent and remove coal which falls from the conveyor belts.

  18. There is no way to completely prevent the temporary accumulation of coal which falls from the conveyor belts.

  19. The respondent maintains an outside platform in front of the east doorway to the Number Two belt take-up for Station Two at the coal-handling area.

  20. Substantial accumulations of coal occur on said platform.

  21. Employees do not work on the platform daily. The respondent has coal periodically removed from the platform twice a week.

  22. The coal, at times, piles up to such height as to make it possible for an employee to fall over the guardrails.

  23. The employees of the respondent, when required to work on the platform, may request that the coal first be removed and, if such request is made, the coal will be removed before they go upon the platform.

  24. The evidence does not establish that the employees are required to have the platform cleaned before working on it or that they always do so.

  25. The respondent could make the platform safe by requiring the employees to have the coal removed before working on the platform.

  26. The respondent maintains slurry pumps in the southwest corner of the slurry room on the main floor at Unit Three.

  27. The slurry is a mixture of water and ash.

  28. The purpose of the pumps is to prevent the ash from being in the atmosphere.

  29. The ash and dye product slurry is very abrasive and causes defects in the liners and housings of the pump. Packing around the pump shafts can be destroyed, causing considerable leakage.

  30. Leakage does very frequently result.

  31. The slurry pump area is inspected at least once every shift and often several times a shift.

  32. The respondent inspects the slurry area with reasonable frequency.

  33. The drains are not so located that the floor slants toward the drains. Therefore, the drains inadequately drain the slurry from the floor.

  34. If proper drains were installed, the condition would improve.

  35. The respondent maintains an acid station on the ground level at Unit Three as a part of the water treatment system for that generating unit.

  36. From the time of the original installation, there have been problems of leakage from the pipes and valves.

  37. The respondent replaced the pipes which did not prove effective.

  38. The respondent subsequently arranged for the installation of a new type of pipe with new valves in a further attempt to prevent leakage.

  39. The respondent watered the floor with a hose so as to dilute the acid solution and so as to make it drain from the floor.

  40. The acid created a slippery surface for walking.

  41. There was danger of an employee slipping down or being burned by the acid.

  42. The respondent made a diligent effort to abate the hazard.

  43. It is possible to abate the hazard by either installing different pipe or by elevating with grating the area in which employees must walk.

  44. The wetting of the floor was for the purpose of removing the acid and, therefore, was justified.

  45. Station Three tunnel houses the Number Four conveyor belt.

  46. Said tunnel is a shaft tunnel to which entry is gained at ground level and which proceeds on an angle below ground level for a distance of approximately 150 feet from the point of entry.

  47. At the lowest point, the tunnel is 40 feet below ground level.

  48. There is only one means of entering the tunnel.

  49. There is no likelihood of spontaneous combustion or explosion.

  50. There is some danger of a fire occurring from coal rubbing against rollers and from bearings losing their lubrication and becoming overheated.

  51. A second means of exit is necessary to adequately protect the employees in case of a fire.

  52. The respondent uses wire rope bridle slings.

  53. The slings become unsafe if wires are broken or if the thimble is damaged or removed.

  54. The slings are used to dismantle equipment upon which work is needed and also for lifting parts and smaller pieces of equipment.

  55. The slings are frequently inspected.

  56. The respondent had a rule that defective slings were to be taken out of service.

  57. The foreman of respondent required employees to use defective slings.

CONCLUSIONS OF LAW

  1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

  2. The motion of respondent to dismiss the allegations of violation of standard 29 C.F.R. § 1910.132(a) because the standard does not conform to the proof, has merit and was properly granted at the hearing.

  3. The respondent was not, on or about January 28, 1980, to February 4, 1980, in violation of § 5(a)(1) of the Act by exposing its employees to hazards of falls when hoisting materials to high elevations without proper hoisting methods being used by its employees.

  4. Respondent did not expose its employees to being struck by loads from hoisting materials in violation of § 5(a)(1) of the Act.

  5. Respondent did not violate § 5(a)(1) of the Act by failing to provide proper means to protect against hazards of falls when entering or leaving the cation or anion tanks.

  6. Respondent did not violate standard 29 C.F.R. § 1910.22(a)(1) by permitting coal residues on the floor areas around the coal belt conveyors at CC floor on elevation eight for Unit Three.

  7. Respondent violated standard 29 C.F.R. § 1910.22(a)(1) by permitting and not having removed the accumulation of coal residues on the outside platform in front of the east doorway to the Number Two belt take-up for Station Two at coal-handling area.

  8. Respondent violated standard 29 C.F.R. § 1910.22(a)(2) by not having proper drainage and thereby not maintaining a dry condition in the floor areas adjacent to the slurry pumps in the southwest corner of the slurry room on the main floor level at Unit Three.

  9. Respondent violated standard 29 C.F.R. § 1910.22(a)(2) by failing to maintain a dry condition on the ground level of acid station at Unit Three.

  10. Respondent violated standard 29 C.F.R. § 1910.36(b)(8) by not providing at least two ways of egress remote from each other in the area leading from the tail pulley number four belt at Station Three tunnel for the coal-handling area.

  11. The respondent violated standard 29 C.F.R. § 1910.184(d) by requiring employees to use damaged or defective slings which were not immediately removed from service.

ORDER

  It is therefore ordered that:

  Respondent’s Motion to Dismiss the allegations of violation of standard 29 § C.F.R. 1910.132(a) is granted.

  The allegations that respondent was, on or about January 28, 1980, to February 4, 1980, in violation of § 5(a)(1) of the Act in that employees were exposed to hazards of falls or being struck by falling objects when hoisting materials to high elevations without proper hoisting methods are dismissed.

  The allegations that respondent violated § 5(a)(1) of the Act by failing to use means to protect against the hazards of falls to its employees when entering or leaving confined spaces in cation and/or anion tanks at B–2 elevation of Unit One and Unit Two and ground elevation of Unit Three are dismissed.

  The allegations that respondent violated standard 29 C.F.R. § 1910.22(a)(1) by permitting coal residues on the floor areas around the coal belt conveyors at CC floor on elevation eight for Unit Three are dismissed.

  Respondent committed a nonserious violation of standard 29 C.F.R. § 1910.22(a)(1) by permitting and not removing accumulation of coal residues on the outside platform in front of the east doorway to Number Two belt take-up for Station Two at coal-handling area. No penalties are assessed for this violation. This violation shall be immediately abated.

  Respondent was, on or about January 28, 1980 to February 4, 1980, in nonserious serious violation of Standard 29 C.F.R. 1910.22(a)(2) by failing to have proper drainage for the floor areas adjacent to the slurry pumps in the southwest corner of the slurry room on the main floor level at Unit 3. No penalty is assessed for this violation. The violation shall be abated within two months of the date this decision becomes a final order.

  Respondent was, on or about January 28, 1980, to February 4, 1980, in nonserious violation of standard 29 C.F.R. § 1910.22(a)(2) by permitting acid to be on the floor on which employees must walk at the acid station at Unit Three. No penalty is assessed for this violation. The violation shall be abated within two months of the date this decision becomes a final order.

  The respondent was, on or about January 28, 1980, to February 4, 1980, in nonserious violation of Standard 29 C.F.R. 1910.36(b)(8) in failing to maintain at least two means of exist, remote from each other, in the area leading from the tail pulley Number Four belt at Station Three tunnel for the coal handling area. No penalty is assessed for this violation. The violation shall be abated within four months of this decision becoming a final order.

  Respondent was, on or about January 28, 1980, to February 4, 1980, in violation of standard 29 C.F.R. § 1910.184(d) in requiring its employees to use damaged or defective slings which were not immediately removed from service. No penalty is assessed for this violation. The violation shall be immediately abated.

Dated this 22nd day of June, 1981.

JOHN S. PATTON

Judge

1 Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:

Sec. 5(a) Each employer—

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

2 While the Secretary claims in his letter to the Commission that the administrative law judge overlooked this unrebutted testimony, the Secretary never cited the testimony to the judge nor argued before him that handholds or a step next to the tank was feasible. The Union’s brief to the judge referred to the feasibility of handholds, as well as other possible measures, but cited no testimony on the subject.

3 With respect to handholds, the record contains testimony directed at interior handholds, at exterior handholds, and simply at ‘handholds.’ The compliance officer testified very generally about handholds, but admitted that he had never seen the interior of the tanks or seen employees entering the tanks. Inasmuch as the union made no mention of handholds of any kind in its petition for discretionary review and the Secretary specified exterior handholds in his letter in lieu of a brief, we consider the issue to be limited to the feasibility of exterior handholds. We note, however, that even if the Secretary placed interior handholds at issue on review our disposition would not be altered, because those witnesses who raised the possibility of interior handholds subsequently testified that they lacked the necessary expertise to judge the feasibility of such a measure.

4 Given the very short distance between the tank opening and the laterals and because the manner in which employees entered the tank made it highly unlikely that any employee would fall from the opening to the bottom of the tank, Chairman Rowland would find that the workplace was free from a hazard which could cause serious harm. However, he agrees to vacate the citation on the ground that the Secretary failed to establish a feasible means of abatement.