UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REMAND

July 10, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

VAN NAMEE, COMMISSIONER:

  This matter is before the Commission on my order and Chairman Moran’s order directing review of a decision made by Judge David H. Harris.

  Following an inspection of Respondent’s workplace wherein it was engaged in the demolition of a building Complainant issued a citation whereby he alleged that Respondent committed nine non-serious violations of occupational safety standards. Respondent timely contested two items of the citation.

  Thereafter Complainant filed a complaint and Respondent duly answered. Respondent admitted that it had not demolished the building by horizontal leveling methods as 29 C.F.R. 1926.850(j) purports to require.1 However, as an affirmative matter Respondent stated that the demolition method required by the standard was inferior to that actually used on the site, and that the method required by the standard presents substantially greater hazards to employees than the method used by Respondent.

  Respondent also admitted that contrary to the requirements of 29 C.F.R. 1926.601(b)(10)2 its truck having a trailer dump body was not provided with a positive means of support permanently attached and capable of being locked into position to prevent accidental lowering of the body while maintenance or inspection work is being performed. As to this allegation Respondent stated affirmatively its belief that no such device was available for use with trailer dump bodies.

  Complainant then moved for summary judgment. He stated that there was no dispute as to the material facts, that Respondent admitted the violations, and that Respondent’s defenses were insufficient as a matter of law. Judge Harris determined that the defenses were frivolous, and he granted the motion. For the reasons given hereinafter we reverse and remand.

  It is apparent that Respondent admits non-compliance with the horizontal leveling standard. But as we said in a case decided after Judge Harris rendered his decision herein the said standard is not exclusive in view of the provisions of the mechanical demolition standards.3 Harvey Wrecking Company, OSHRC Docket No. 680, BNA 1 O.S.H.R. 1404, CCH Employ. S. & H. Guide para. 16,937 (Rev. Com’n., 1973). Respondent has affirmatively pleaded inapplicability of the horizontal leveling standard, and should be permitted to present its defense.

  Turning now to the other allegation herein Respondent has said that the means for abatement is unavailable. Perforce it has said that the abatement period prescribed by the citation is unreasonable. Accordingly, there is a genuine issue of material fact as to a matter in contest. Cf. Eastern Knitting Mills, Docket No. 2019, BNA 1 O.S.H.R. 1677 (Rev. Com’n., April 23, 1974). Therefore, summary judgment is not appropriate.

  In view of the foregoing, the decision below is reversed, and the matter is remanded for a hearing on the merits.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

HARRIS, JUDGE:

  Ruling of motions; defenses interposed by Respondent’s answer are frivolous and are ordered struck and the citation in all respects and the penalties proposed thereon are affirmed.

1 The standard provides in relevant part:

1926.850(j) . . . demolition of exterior walls and floor construction shall begin at the top of the structure and proceed downward. Each story of exterior wall and floor construction shall be removed and dropped into the storage space before commencing the removal of exterior walls and floors in the story next below.

2 The standard provides as follows:

1926.601(b)(10) Trucks with dump bodies shall be equipped with positive means of support, permanently attached, and capable of being locked in position to prevent accidental lowering of the body while maintenance or inspection work is being done.

3 29 C.F.R. 1926.859.