HARTWELL EXCAVATING COMPANY
OSHRC Docket No. 1098
Occupational Safety and Health Review Commission
May 13, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge Jerry W. Mitchell, dated August 30, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
The respondent was cited for violating 29 U.S.C. § 654(a)(2) for failing to comply with eight occupational safety and health standards n1 A notice of contest was duly filed as to the violations alleged in items 2 through 7 and the penalties proposed therefor and for item 1.
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n1 The citation and the notice of proposed penalties contained the following alleged violations and penalty proposals:
Item -- Standard -- Proposed Penalty
(1) 2. C.F.R. § 1926.902(c) $60 -- (2) 29 C.F.R. § 1926.902(d) $0 -- (3) 29 C.F.R. § 1926.902(h) $0 -- (4) 29 CFR § 1926.904(b) $30 -- (5) 29 C.F.R. 1926.604(a)(2) $60 -- (6) 29 C.F.R. § 1926.602(a)(9)(i) $30 -- (7) 29 C.F.R. § 1910.95(b)(1) $0 -- (8) 29 C.F.R. § 1910.95(a) $0
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Judge Mitchel affirmed items 2, 3, 4, and 6 and the penalties proposed for item 1 and item [*2] 6. He vacated items 5 and 7 and the penalties proposed for items 4 and 5. Following the direction for review the complainant moved to withdraw with prejudice items 1 through 4 of the citation.
The violations alleged in items 1 and 8 of the citation became final orders of the Commission by operation of law by reason of respondent's failure to contest them within 15 working days after receipt of the penalty notice. n2 Since the violation alleged in item 1 has become a final order of the Commission, it cannot be withdrawn at this time. Secretary v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973); Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974). This is not true, however, in regard to the penalty assessed for item 1 as that was duly contested. Accordingly, we grant the complainant's motion except as to the violation alleged in item 1 and affirm the remaining actions of the Judge. n3
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n2 29 U.S.C. § 659(a).
n3 The respondent questions the Judge's denial of its motion to produce notes of the Government safety inspector and cites our opinion in Secretary v. Frazee Construction Company, 4 OSAHRC 188 (1973), as support for its position. This case, however, cannot be construed in the same context as Frazee. In this instance, the respondent requested production following the conclusion of the testimony. The respondent's request was in the nature of an afterthought, and as such it lacked the elements of relevancy and timeliness necessary to the effectiveness of cross-examination of the inspector. For these reasons, we believe denial of the motion was proper.
[*3]
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The violations alleged in items 2, 3, and 4 of the citation and the penalty assessed for item 1 are vacated. The remaining actions of the Judge are affirmed.
[The Judge's decision referred to herein follows]
MITCHELL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., ) (the Act hereinafter) contesting a Citation issued by the Secretary of Labor (Complainant) against Hartwell Excavating Company (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.
A workplace described as "shoshone sewer" (sic) located at Shoshone, Idaho was inspected on May 16, 1972 by a Compliance Safety and Health Officer (CSHO). The workplace allegedly was under Respondent's ownership, operation or control. During the inspection alleged violations of eight (8) specific occupational safety standards were noted. A Citation covering 8 items of non-serious violations was issued on June 12, 1972. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication [*4] in the Federal Register and are now codified at 29 CFR 1926 and 29 CFR 1910.
The alleged violations are described in the Citation as follows with each standard allegedly violated quoted immediately thereafter:
Item 1 -- The backhoe operator was observed smoking a cigarette, leaning against the bed of the truck, which contained and is used for the transportation of explosives. The driver of the explosive truck was observed carrying a cigarette lighter. -- Abate by Immediately -- Standard -- 20 CFR 1926.902(c) -- Subpart U -- Blasting and the Use of Explosives 1926.902 Surface transportation of explosives. (c) No person shall smoke, or carry matches or any other flame-producing device, nor shall fire arms or loaded cartridges be carried while in or near a motor vehicle or conveyance transporting explosives."
Item 2 -- The same truck is used for the transportation of blasting powder and electric blasting caps. Abate by Immediately -- Standard -- 29 CFR 1926.902(d) Subpart U -- Blasting and the Use of Explosives. 1926.902 Surface transportation of explosives. (d) Explosives, blasting agents, and blasting supplies shall not be transported with other materials or cargoes. [*5] Blasting caps (including electric) shall not be transported in the same vehicle with other explosives.
Item 3 -- The truck that is used for the transportation of explosives does not have signs marked "Explosives" on the sides. Abate by June 19, 1972 -- Standard -- 29 CFR 1926.902(h) -- Subpart U -- Blasting and the Use of Explosives. 1926.902 Surface transportation of explosives. (h) Every motor vehicle or conveyance used for transporting explosives shall be marked or placarded on both sides, the front and the rear with the word 'Explosives' in red letters, not less than 4 inches in height, on white background. In addition to such marking or placarding, the motor vehicle or conveyance may display, in such a manner that it will be readily visible from all directions, a red flat 18 inches by 30 inches, with the word 'Explosives' painted, stamped or sewed thereon, in white letters, at least 6 inches in height.
Item 4 -- The explosive magazine has detonating primers and blasting powder stored in the same magazine. Abate by Immediately -- Standard -- 29 CFR 1926.904(b) -- Subpart U -- Blasting and the Use of Explosives 1926.904 Storage of explosives and blasting agents. (b) Blasting [*6] caps, electric blasting caps, detonating primers, and primed cartridges shall not be stored in the same magazine with other explosives or blasting agents.
Item 5 -- Failure to provide overhead and rear canopy guard for the John Deere L 121 tractor in the lagoon area -- Abate by July 12, 1973 -- Standard -- 29 CFR 1926.604(a)(2) -- Subpart U -- Motor Vehicles, Mechanical Equipment, and Marine Operations 1926.604 Site clearing. (a) General requirements. (2) All equipment used in site clearing operations shall be equipped with rollover guards meeting requirements of this subpart. In addition, rider-operated equipment shall be equipped with an overhead and rear canopy guard meeting the following requirements: (i) The overhead covering on this canopy structure shall be of not less than 1/8-inch steel plate or 1/4-inch woven wire mesh with openings no greater than 1 inch, or equivalent. (ii) The opening in the rear of the canopy structure shall be covered with not less than 1/4-inch woven wire mesh with openings no greater than 1 inch.
Item 6 -- The bidirectional machines on the job site are not equipped with audible horns. Abate by July 12, 1972 -- Standard -- 29 CFR 1926.602(a)(9)(i) [*7] -- Subpart O -- Motor Vehicles, Mechanized Equipment, and Marine Operations 1926.602 Material handling equipment. (a) Earth moving equipment; (9) Audible alarms. (i) All bidirectional machines, such as rollers, compacters, front-end loaders, bulldozers, and similar equipment, shall be equipped with a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction. The horn shall be maintained in an operative condition.
Item 7 -- Failure to provide and implement a plan of administrative or engineering controls to reduce sound levels for employees to permissible exposure as defined in Table G 16 under 1910.95; these employees being present in the following locations with sound level noted for the locations: (1) John Deere B112 operator area 95-98 dBA. -- Abate by December 12, 1972 -- Standard -- 29 CFR 1910.95(b)(1) -- Subpart G -- Occupational Health and Environmental Control 1910.95 Occupational noise exposure. (b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound [*8] levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.
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Table G-16 -- Permissible Noise Exposures |
|
|
|
|
|
|
Sound level |
|
Duration per day, |
dBA slow |
|
hours |
response |
|
8 |
90 |
|
6 |
92 |
|
4 |
95 |
|
3 |
97 |
|
2 |
100 |
|
1 1/2 |
102 |
|
1 |
105 |
|
1/2 |
110 |
|
1/4 or less |
115 |
When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1+C2/T2Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level. Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.
Item 8 -- The workmen in the following locations are not protected against excessive noise levels: (1) John Deere B112 operator area. -- Abate by July 5, 1972 -- Standard -- 29 CFR 1910.95a (sic) -- Subpart G -- Occupational Health and Environmental Control 1910.95 [*9] Occupational noise exposure (a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response . . . . (See Item 7 for Table G-16)
Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a Notification of Proposed Penalty dated June 12, 1972 of Complainant's proposal to assess penalties of $60, $30, $60 and $30 in connection with Items 1, 4, 5 and 6 respectively and $0 in connection with Items 2, 3, 7 and 8 for a total penalty of $180. In a timely manner Respondent ". . . contests Items 2-7 . . ." In the letter of contest Respondent also admits the "violations" set forth in Item 1 but ". . . challenges the propriety of the proposed penalty to be assessed for such violations." A complaint was filed by Complainant and answered by Respondent. Eight Affirmative Defenses are included in the Answer.
The case was assigned to this Judge on August 1, 1972. Trial was initially set for September 26. That trial date was continued to October 16 upon motion of counsel for Complainant and was subsequently [*10] continued to October 27th on motion of counsel for Respondent. The trial convened on October 27th.
PROCEEDINGS AND EVIDENCE
When the trial convened each party was represented by competent legal counsel. Although the file contains affidavits and certificates attesting to the appropriate posting of all proceedings there was no appearance by or on behalf of any of Respondent's employees.
As a preliminary matter counsel for Complainant questioned whether Item 8 was in contest since Respondent had failed to specifically mention it in the letter contesting the Citation. Respondent acknowledged the absence of Item 8 from the contest but argued that it was an oversight which was cured by the Eighth Affirmative Defense set forth in its Answer. At the same time Respondent objected to the entire proceeding on the ground that the trial was not completed within thirty days of assignment of the case to this Judge. Respondent relied on Commission Rule 2200.21 in this argument. Ruling on each of these objections was held in abeyance with the agreement of the parties that each side would offer their full evidence and reserve legal argument for their briefs.
The Compliance Safety [*11] and Health Officer (CSHO) who made the inspection was the only witness called by Complainant. He describes the worksite as sewer construction throughout the town of Shoshone. The work site was obvious to him as he entered town on the night before the actual inspection. Excavations were about town and noticed by him from his motel as well as when he drove down town for dinner. His inspection did not start, however until the following morning. It was a routine inspection and was not made at the suggestion of any official of the state of Idaho.
The inspection commenced on the morning of May 16th when the witness presented his credentials to Respondent's jobsite superintendent. At that time the superintendent, in response to questions by the CSHO, advised that there was no employee bargaining unit and that no employee had been designated as employee representative. The witness advised the superintendent that he would indiscriminately speak with several employees. During the inspection he did speak with several of Respondent's employees. Fifteen employees of Respondent were working about the worksite. The witness also conducted a closing conference with Respondent's superintendent. [*12]
The witness observed a flat-bed truck with two portable explosive magazines on the back of the truck. One magazine contained 75 pounds of dynamite and the other contained seven boxes of electric blasting caps. There was no separator between the two magazines on the truck; they were only apaced a little distance apart. The lid of the magazine containing the dynamite was open before the witness and the superintendent climbed onto the truck to look into them. The truck had a sign on top of its cab with the word "Explosives" painted on it so that it could be seen from the front and rear of the truck but not from the sides. The magazine containing dynamite had the word "Explosives" in white letters on a red background on it. The letters were small and could not be seen very far. They were also obstructed by some sacks so that an observer on the driver's side of the truck would have to climb upon the truck to read them. There was no sign clearly visible from the sides to indicate that the truck was carrying explosives.
The truck was driven each morning to a remote site where Respondent's explosives storage magazine was located. The driver, who was also Respondent's [*13] "blaster," selected the explosives needed for the day's excavation work and placed them on the truck. The truck was then driven to the site where the blasting was to be done. At the end of the day the remaining explosives were returned to the storage magazine.
While the witness was discussing the blasting procedures with Respondent's superintendent and the blaster, Respondent's backhoe operator joined the group. As he, the backhoe operator, leaned against the truck near the rear wheels on the driver's side he lit a cigarette. The lid on the portable magazine containing the dynamite was open at this time. The witness promplty warned the smoker of what the boxes on the truck contained.
Later, as the witness and Respondent's employees walked away from the explosives laden truck Respondent's blaster, who was also driver of the truck, pulled out a cigarette lighter and lit a cigarette. When questioned by the witness the driver stated that he always carried the lighter.
During the day the witness visited the explosives storage magazine in the company of Respondent's superintendent. It was constructed in an old school bus and was of appropriate design and construction. Many boxes [*14] of dynamite were stored in the magazine. Four 1000 foot rolls of primer, an "igniting agent," were also stored in a corner of the magazine. There was no barrier between the primer cord and the dynamite.
While at the magazine the witness noticed a cleat type tractor parked near by. It had been used to clear the "lagoon" area but was not in use when the witness observed it since the clearing operation had previously been completed. The witness observed that the tractor did not have any overhead or rear protective guards over the operator area. When questioned concerning a backup alarm Respondent's superintendent stated that it did not have an operating horn.
The witness took noise level readings on the various pieces of machinery in use of Respondent at the worksite. A recently purchased backhoe was checked at the specific request of Respondent's superintendent. The test resulted in a reading of 95 dBA when the machine was transporting material, 98 dBA when it was actually digging with a consistent running at 96 dBA. All of the readings were taken at operator's position and were recorded with the meter set on the slow scale. The operator was obviously not using [*15] any ear plugs.
On cross-examination the witness testified as to his considerable experience with the use of explosives so as to indicate an ability to identify the various classes.
At the conclusion of the presentation of Complainant's case counsel for Respondent moved to dismiss the entire matter on the basis of the rules and regulations requiring the trial to be concluded within thirty days of assignment to a judge. He also moved to dismiss Items 2, 3 and 4 dealing with storage and transportation of explosives since they are allegedly covered by regulations issued by the Internal Revenue Service and the Department of Transportation, respectively. Counsel for Respondent conceded that use of explosives on the job is governed by the Act. This part of the motion is based on Section 4(b)(1) of the Act. The motion was submitted on the record with the agreement of each counsel that it would be fully briefed in simultaneous briefs by counsel and disposed of by this Judge prior to any consideration of the merits of the case. Each counsel agreed to rpoceed with presentation of the case and resperve the briefing to follow conclusion of the trial and receipt of the record.
Counsel for [*16] Complainant called as its first witness, a hardware dealer who had been in the business of supplying and selling dynamite and explosives for some ninteen years. His only special training in explosives consists of two years and two months as a demolition expert in the service while holding the highest rank of Private First Class on two occasions. He also received a week's training from one of the suppliers of the explosives he sells.
This witness testified at length concerning various regulations issued by the Internal Revenue Service (IRS) and Department of Transportation (DOT) with regard to explosives. The IRS regulations govern storage and the DOT regulations govern transportation of explosives. His testimony is that use (emphasis added) of explosives is governed by regulations issued by OSHA under the Act. He also testified in confused detail concerning various kinds and classes of primer cords, igniting agents, caps and explosives. He concluded by testifying that he would not store a detonating primer and blasting powder together.
Respondent called its superintendent at the inspected worksite as a witness. He testifies that he accompanied the CSHO on the [*17] walkaround. He denies that the CSHO asked him concerning employee representatives or bargaining units.
As concerns the truck with the two explosive magazines he insists that the letters on the dynamite magazine were four inches high but admits they were white on a red background. He also insists that the letters could be seen from each side of the truck from a distance. As to the storage magazine -- he insists that the "E-cord" (a class of primer cord) was properly stored with the dynamite.
The testimony of this witness is that the John Deere bull-dozer had been used in smoothing ("harrowing") the land surface on the dike in the lagoon area in preparation for planting grass. That work was completed prior to the inspection. At the time of the inspection the bull-dozer was parked and not in use. The witness admits that it did not have overhead or rear guards over the driver but insists they were unnecessary in the use to which the machine had been put. He also admits that it did not have an operating horn.
This witness is not certain, but believes that the backhoe operator lit his cigarette on the sidewalk before approaching the explosives truck. He admits that the operator [*18] was actually smoking while standing alongside the truck. He also admits that the driver of the explosives truck was carrying a cigarette lighter.
The testimony of this witness is that the backhoe was only used intermittently during each day and never at full power because it was used to dig short side trenches and had to go around gas pipes and other obstructions. He admits that the operator was not wearing earplugs at the time of the inspection by the CSHO even though the operator actually had a pair of such plugs.
Respondent's Safety Director was called as the last witness for Respondent. He has served in this capacity for the last year. He testifies that he studies the safety requirements of the various state and federal agencies and attempts to implement those which he believes apply to Respondent's operations. A program of noise protection was established during the previous winter and implemented through the issuance of earplugs and earmuffs at the beginning of the spring working period. Other than that no noise control plans were initiated. He insists that the intermittent use of the backhoe was in effect an administrative control.
His testimony is that [*19] harrowing is not site clearing. He also testifies that site clearing protection for the bull-dozer would not protect it against rollover accidents because of its lighter construction.
Following completion of the testimony of Respondent's witnesses, counsel for Respondent moved for the production of the "Field Notes" prepared by the CSHO in connection with the inspection. Counsel also requested production of the penalty computations made by the CSHO. Since the CSHO had testified fully in this regard, the motion was denied. The trial was closed after a short closing argument by Respondent's counsel.
The briefing period was extended due to delay in receipt of the transcript. Each party submitted simultaneous briefs including proposed findings and conclusions. Respondent also filed a Motion to Dismiss with a supporting memorandum. Complainant replied to the Motion to Dismiss and each party filed reply briefs.
DISCUSSION
Respondent's Motion to Dismiss
Counsel for Respondent moved for dismissal of the proceedings during a preliminary discussion at the outset of the trial on the grounds the trial was not completed within thirty days from the date the case was assigned [*20] to this Judge. This Motion was renewed at the conclusion of Complainant's evidence. In addition to the previously stated ground Respondent urged dismissal under the provisions of Section 4(b) of the Act. This same motion is again renewed by written motion and memorandum accompanying Respondent's initial brief.
The argument relying on the fact that the hearing was not completed within thirty days of assignment to this Judge relies on an early Commission Rule of Procedure originally found at 29 CFR 2200.21. That rule was an interim procedural rule which was eliminated from Commission procedures before this trial convened. Rule 2200.21 was an internal attempt by the Commission to facilitate case scheduling. It was realized that the time limitation of thirty days was unrealistic. It was accordingly discarded. The present Rules of Procedure which became effective on September 28, 1972, do not include any sort of time limitation. Each case progresses as rapidly as it develops and as rapidly as the parties are able to prepare.
The interim rule requiring completion of the trial within thirty days was not jurisdictional, nor did it confer any new rights upon Respondent. There is [*21] no sanction mentioned. Respondent has not shown nor even intimated that any prejudice has resulted from delay in completing the trial. I conclude that there is no reason to dismiss this matter nor to give further consideration to this argument. The Motion to Dismiss grounded on old Commission Rule 2200.21, is denied.
Respondent's primary argument in support of the Motion to Dismiss is grounded on Section 4(b)(1) of the Act. That Section in pertinent part, provides:
Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, . . ., exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
Respondent cites certain regulations issued by the Internal Revenue Service (26 CFR 181.1-181.200) and by the Department of Transportation (49 CFR 177.800-177.848) as being regulations which bring Section 4(b)(1) into operation to exclude Items 2, 3 and 4 from coverage by any standards issued under the Act.
First, it is to be noted that even if Respondent prevailed on this argument the only Items to be dismissed would be 2, 3 and 4, not the entire proceeding. [*22] However, Respondent's argument must fail entirely. Section 4(b)(1) deals with ". . . working conditions of employees " and requires that the other Federal agency ". . . exercise authority to prescribe or enforce standards or regulations affecting occupational safety or health. " (Emphasis added.)
Neither of the sets of regulations cited by Respondent deal with or affect occupational safety or health. The regulations promulgated by the Internal Revenue Service (26 CFR 181.1-181.200) are issued under authority of the Organized Crime Control Act of 1970 (Title 18, U.S. Code, Chapter 40). The intent of Congress is clearly stated in Section 1101 of Public Law 91-452. In pertinent part, we read:
The Congress hereby declares that the purpose of this title is to protect interstate and foreign commerce against interference and interruption by reducing the hazard to persons and property arising from misuse and unsafe or insecure storage of explosive materials. It is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, storage or use of explosive materials [*23] for industrial, mining, agriculture or other lawful purposes or to provide for the imposition of Federal regulations of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title. (Emphasis added.)
The purpose could not be more clearly expressed -- ". . . to protect interstate and foreign commerce against interference and interruption . . ." No mention or even vague suggestion that the Title involves consideration of occupational safety and health.
The regulations issued by the I.R.S. under this Title only emphasize the expressed Congressional intent and purpose. The first two sections, 26 CFR 181.1 and 181.2 in pertinent part specifically provide:
181.1 Scope of regulations. (a) In general. The regulations contained in this part relate to commerce in explosives . . . (b) Procedural and substantive requirements. This part contains the procedural and substantive requirements relative to: (1) Interstate or foreign commerce in explosive materials; (2) The licensing of manufacturers and importers of, and dealers in explosive materials; (3) The issuance of use permits; (4) The conduct of business [*24] by licensees and operations by permittees; (5) The storage of explosive materials; (6) The records and reports required of licensees and permittees; (7) Relief from disabilities under this part; and (8) Exemptions, unlawful acts, penalties, seizures, and forfeitures.
181.2 Relation to other provisions of law. The provisions in this part are in addition to, and are not in lieu of, any other provision of law, or regulations respecting commerce in explosive materials. (Emphasis added.)
Again, the wording of these regulations limit their application to "commerce in explosives." The mention of storage is in connection with "commerce" not in connection with or in any way affecting occupational safety and health as such. Thus the regulations carry out the Congressional purpose quoted above.
The regulations issued by the Department of Transportation (49 CFR 177.800-177.848) are also far from any application to occupational safety and health. 49 CFR 177.800 and 177.802 provide in pertinent part:
Part 177 Shipments Made By Way of Common, Contract or Private Carriers By Public Highway Subpart A -- General Information and Regulations 177.800 Purpose of regulations in Parts [*25] 170-189 of this chapter. (a) To promote the uniform enforcement of law and to minimize the dangers to life and property incident to transportation of hazardous materials, by private, common and contract carriers, by motor vehicle engaged in interstate or foreign commerce . . .
177.802 Application of regulations in Parts 170-189 of this chapter. (a) Parts 170-189 of this chapter apply to all private, common and contract carriers by motor vehicle transporting hazardous materials . . . (Emphasis added.)
The foregoing quotes make it abundantly clear that the regulations relied on by Respondent do not deal in any way with occupational safety and health. The I.R.S. regulations relate to and regulate commerce in explosives while the D.C.T. regulations deal with the actual transportation of hazardous materials over public highways. The regulations and standards at issue in connection with Items 2, 3 and 4 deal with safety precautions to be taken in storing and using explosives in connection with the excavation work being done by Respondent.
I conclude that Respondent has not shown, and cannot show, any exercise of statutory authority to prescribe or enforce standards [*26] affecting occupational safety and health by either the I.R.S. or D.O.T. in connection with Items 2, 3 and 4. Section 4(b)(1) does not in this case exclude the OSHA standards from application. Respondent's Motion to Dismiss is denied. The foregoing discussion also supports, and in fact requires, the overruling of Respondent's Third Affirmative Defense. It is overruled.
Item 8 and the Eighth Affirmative Defense
In preliminaries before the trial, Complainant argued that Respondent failed to mention Item 8 in its letter of contest and urges, that as a result of that oversight, coupled with the operation of Section 10(a) of the Act, Item 8 became a final order of the Commission, not subject to review. Respondent argues that failure to mention Item 8 in its Contest is not an admission of the violation and urges further that the oversight regarding Item 8 is cured by its Eighth Affirmative Defense in its Answer.
Respondent attributes the requirement that the contest be served upon the Secretary of Labor within 15 working days of the receipt of the Citation and Notification of Proposed Penalty to a rule of the Secretary. This is not the case. The requirement was specifically [*27] written into Section 10(a) of the Act by Congress. Congress unequivocally provided that failure to comply with the 15 working day limit caused the Citation and proposed assessment to become a final order of the Commission not subject to review by any court or agency.
Interestingly enough here, Complainant initially missed Respondent's oversight with regard to Item 8 and included Item 8 as a violation in its Complaint. This does not, however, serve to preserve Respondent's contest. Complainant cannot by such inclusion confer a right upon Respondent to contest Item 8 anymore than Respondent can cure its oversight by including it as an affirmative defense. Respondent received the Citation and Notice of Proposed Penalty not later than June 15th. According to Respondent's Certificate of Posting this is the date on which they were posted. Respondent's Contest (Not raising Item 8) was received by the Secretary of Labor on June 29th. Respondent's Answer was filed on July 24th. There is no possible way to find compliance with the requirements of Section 10(a) insofar as Item 8 is concerned. The file in fact appears to demonstrate that Respondent did not intend to contest item 8. [*28] At the same time Respondent filed its contest it filed a document entitled "Notice of Abatement" wherein it is certified that Item 8 has been abated. This is consistent with not contesting the Item.
The foregoing only leads to one conclusion. Respondent did not timely contest Item 8 of the Citation. I conclude and find that Item 8 and the proposed penalty of $0 is a final order of the Commission by operation of Section 10(a). The Eighth Affirmative Defense is overruled.
Item 1 and the Second Affirmative Defense
Respondent admits the occurrence of this violation involving a man leaning against the side of the explosives truck and the driver of the truck carrying a cigarette lighter. Each of these instances are without doubt violations of the cited standard. The evidence supports such a conclusion.
Respondent challenges the propriety of the proposed penalty in its contest. This challenge is converted to the Second Affirmative Defense. Respondent charges that the CSHO contributed to and participated in the violation. On this basis it is urged that the penalty proposed is excessive. The evidence does not support Respondent's charge. The CSHO testifies that the [*29] backhoe operator was leaning against the explosives truck near the rear wheels on the driver's side at the time he, the backhoe operator, lit the cigarette. This is direct and unequivocal testimony. On the other hand, Respondent's superintendent testifies that "I firmly believe" that the operator lit his cigarette on the sidewalk about fifty feet from the truck and then walked with the CSHO and the superintendent to the explosives truck. The superintendent is thus not sure where the cigarette was lit -- he is only sure that the operator was standing by the side of the explosives truck with a lit cigarette in his hand. There is no real showing -- only speculation -- that the operator walked to the truck with the CSHO while carrying a lit cigarette. If this occurred then Respondent's superintendent also was in the group. Even if the evidence did show such an occurrence there is no reason to attribute any participation on or contribution to the violation by the CSHO. The Second Affirmative Defense is without foundation. It is overruled.
Complainant classed this violation as non-serious and proposed a penalty of $60 in connection with this Item. The gravity is [*30] moderate in that such fire producing agents brought into close proximity to explosives may well result in disaster. However, giving due consideration to Respondent's size, previous history and obvious good faith as is required by Section 17(j) of the Act I conclude that a penalty of $60 is appropriate in these circumstances and will serve to effectuate the purpose of the Act.
Items Two and Three
These two Items can be disposed of jointly since Respondent admitted the violations in the Answer. (See Paragraph III) The evidence also fully supports the conclusion that these violations did occur. No penalty is proposed in connection with either violation. Under the circumstances of these violations and the exposure involved, taken in conjunction with Respondent's prompt abatement, it is concluded that a penalty of $0 is appropriate under Section 17(j) of the Act.
Item 4 and the Fourth Affirmative Defense
This Item alleges that "detonating primers and blasting powder" were stored in the same magazine at the main explosives storage area. Respondent contests this Item on the basis that the so-called "detonating primer" does not have self detonating qualities and can therefore be stored [*31] with other explosives. The contention thus turns on the contents of the magazine and the specific identification of the items in it.
The testimony of the CSHO is that many boxes of dynamite were stored in the magazine. In addition there was also four rolls, each 1,000 feet long, of what the CSHO identified as primer cord. There is no disagreement by Respondent's witnesses as to the presence of the dynamite and the four rolls. The only contention is as to the identification of the material comprising the rolls.
The CSHO identified the rolls as "primer cord." In elaboration he said, "This primer cord is what you might say is an igniting agent that is used to ignite dynamite in certain circumstances." On cross examination counsel for Respondent questioned the CSHO very closely --
Q. I want to know what you mean in the industry, the explosives industry, the blasting industry, what does the term as you understand it 'detonating primer' mean?
A. Well, actually we can come down to actually what you call primer cord. I believe this is basically what we are referring to.
Q. In your citation for violation No. 4 or Item No. 4 on your citation you used the word detonating [*32] primer. Did you have reference to primacord in that citation?
A. Yes.
Q. Do you understand primacord to be in the classification of a detonating primer in the blasting industry?
A. I would not classify detonating primer, what we are referring to as primacord, in the A class as commercial dynamite.
Q. Well let me rephrase the question, Mr. Jackson. Is it your understanding that from your familiarity in the explosives industry or blasting industry is it your understanding that the explosive known as primer cord is classified as a detonating primer?
A. Yes, I would classify it as a detonating primer.
Q. And that is how you understand the term as used in the industry?.
A. In my familiarity with it, yes.
It is to be noted here that the CSHO had personal experience with the use of explosives while serving with the Corps of Combat Engineers in the military service. He also was employed in connection with the use of explosives from 1969 to 1971 while working in the ship dismantling industry. He is thus familiar with explosives and their use but declines to call himself an expert.
Respondent called a dealer in explosives to fill the roll of an expert. The experience [*33] of this witness in the use and handling of explosives covers a period of 19 years, including two years as a demolition expert while serving in the military as a PFC. In connection with his testimony, Respondent introduced a handbook published by an explosives manufacturer as Exhibit C. Exhibit C is entitled "Primacord detonating primer." The witness testifies that "Primacord" is a trade name and that a "more common or generic term" would be "detonating cord or E-cord." Respondent's counsel then elicited the witness' elaboration as follows:
Q. Is E-cord a type of primer cord?
A. Yes.
Q. A classification of it?
A. Yes, we continue to use the word Primacord.
This covers all the different types of primer cord; they all have the same type explosive in it basically. It is called Penta is a chemical name. The difference is, E-cord is around 28 grains per inch, reinforced is around 50 grains and so on, it is just different sizes.
On cross-examination this witness testifies that a "detonating cord" is something that can initiate or detonate other explosives. He also admits that primer cord is used to detonate other explosives and identifies E-cord as a detonating cord. [*34]
To summarize the testimony of this witness -- Primacord is a term covering all the different types of primer cord. A more common or generic term for Primacord is "detonating cord or E-cord." Primer cord is used to initiate other explosives in the same manner as is E-cord which he identifies as a detonating cord.
Respondent's superintendent at the job site testified that E-cord was stored with the dynamite in the main magazine. He also identifies E-cord as a class of primer cord.
The standard cited (29 CFR 1926.904(b)) provides that:
Blasting caps, electric blasting caps, detonating primers, and primed cartridges shall not be stored in the same magazine with other explosives or blasting agents.
There is no disagreement as to what was in the magazine -- dynamite and four rolls (each 1,000 feet long) of E-cord or primer cord. The consensus of the testimony is that primer cord is E-cord and that E-cord is a detonating cord. None of the testimony makes a clear distinction between a detonating cord and a detonating primer. They each apparently fulfill the same function in that they are employed to initiate other explosives. Thus the evidence does not differentiate between them. [*35] I am convinced that the two terms mean the same thing. The standard prohibits the storing of detonating primers with dynamite. Respondent stored detonating cord, a term which identifies or refers to the same product as detonating primers, with dynamite in its main magazine. Respondent is thus clearly in violation of the cited standard.
In its Fourth Affirmative Defense Respondent states "that the detonating primers referred to in sub-paragraph 4 of Paragraph IV of the complaint are characterized by the manufacturer and the Internal Revenue Service as explosives . . ." This seems to be a concession that the product stored in the magazine with the dynamite was a detonating primer. Since the conclusion reached earlier in this decision is that the IRS regulations are not applicable here, classification by that agency is not material here. So, likewise is the character attached to the product by its manufacturer. Neither changes, nor can change, the cited standard. Detonating cord (primer) was stored with dynamite. Such storage is prohibited. The Fourth Affirmative Defense is overruled. The violation set forth in Item 4 of the Citation is affirmed.
Complainant has [*36] proposed a penalty of $30 in connection with this Item of the Citation. The gravity here is considered to be minimal. There is a violation, but the evidence indicates that it is technical in nature. Respondent apparently sincerely believed that the applicable standards were being complied with. The IRS regulations and the manufacturers recommendations were mistakenly followed. In addition, it appears that there may be some genuine confusion as to how the primer cord in question should be characterized. More thorough and complete evidence could possibly change the conclusion made here, but on this record I must conclude that the primer cord in question is the same as a detonating primer.
Considering this technical conclusion in conjunction with the criteria set forth in Section 17(j) of the Act and Respondent's prompt abatement, it is found that assessment of a monetary penalty is not warranted. Accordingly, Item 4 of the Citation is affirmed but the proposed $30 penalty is vacated.
Item 5 and the Fifth Affirmative Defense
This Item involves Respondent's failure to provide overhead and rear canopy guards on a bull-dozer tractor. Respondent admits that the guards were not [*37] in place and then argues that they were not required because the tractor was not employed in "site clearing" operations. This is also the specific thrust of the Fifth Affirmative Defense.
The tractor was parked in the lagoon area at the time of the inspection and was not in use. The only information available to the CSHO concerning the tractor's use came from Respondent's superintendent. Apparently that information was sketchy at best and perhaps not fully understood. Specifically, the superintendent testifies that clearing of the lagoon site was completed several months before the inspection. At some time subsequent the bull-dozer in question had been used to "harrow" the dike so as to smooth it for planting grass. There is no showing as to when this was accomplished. At the time of the inspection the bull-dozer was not in use. Additionally, it was too small to use in site clearing. No attack was made on this testimony and there is no reason to discredit it.
The standard cited is titled "Site clearing" and therefore deals with equipment engaged in such operations. Such operations involving the bull-dozer in question have not been shown here. Accordingly it [*38] is concluded that the cited standard has not been violated. Item 5 of the Citation and the $60 penalty proposed in connection herewith is vacated. The Fifth Affirmative Defense is sustained.
Item 6 and the Sixth Affirmative Defense
Involved here is the absence of an audible horn on the small bull-dozer. Respondent admits, through its superintendent, that the bull-dozer did not have an operable horn even though it could go forward and in reverse. In its affirmative defense Respondent argues that the standards do not require that a bulldozer have a horn because the view to the rear is not obstructed. This assertion is based on the requirements set forth at 29 CFR 1926.602(a)(9)(i). The photograph introduced as Exhibit D clearly supports the argument that the view to the rear is unobstructed. The operator's seat is located at the extreme rear of the machine so that he can almost see the rear of the tread. Thus there is no disagreement as to whether the operator's view to the rear is obstructed. It is not.
However, Respondent apparently misses the full meaning of the cited standard, 29 CFR 1926.602(a)(9)(i), which provides:
(9) Audible alarms. (i) All bidirectional [*39] machines such as . . . bulldozers . . . shall be equipped with a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction. The horn shall be maintained in an operative condition. (Emphasis added.)
This paragraph requires that the horn be installed and that it be maintained in an operative condition on equipment such as the bull-dozer involved here. It also requires that the horn shall be operated as needed when the machine is moving in either direction. This is a very specific requirement. There is no waiving of the operable horn requirement for machines which have an unobstructed view to the rear.
Respondent cites and relies on 29 CFR 1926.602(a)(9)(ii) which states:
(ii) No employer shall permit earth-moving or compacting equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm . . .
This paragraph was not cited by Complainant in the Citation, and correctly so. The situation covered by paragraph (i) deals with required installation of the horn and operation as needed while moving in either [*40] direction. Paragraph (ii) deals only with equipment having an obstructed view to the rear while actually moving in reverse. These are two different situations requiring separate and distinct coverage in the standards. Being different situations, neither excludes the other. Rather, they are complimentary. Respondent has not complied with (i), the paragraph cited. It is the standard applicable to the situation established by the evidence. Respondent is in violation. Item 6 is affirmed and the Sixth Affirmative Defense is overruled.
Giving consideration to the circumstances of this violation and the criteria set forth in Section 17(j) of the Act, it is concluded that the proposed penalty of $30 is appropriate here.
Item 7 and the Seventh Affirmative Defense
An alleged excessive sound level at the operating station of a recently purchased backhoe is at issue under this Item. The CSHO took readings of the noise level at the operator's seat and obtained readings of 95 -- 98 dBA on the slow scale. These were obtained while the machine was operating at fully open throttle with the higher reading occurring when the machine was actually digging and the lower reading occurring [*41] when it was transporting material. The average reading was 96 dBA.
The CAHO testifies that the operator told him that he, the operator, would be in the operating seat while the machine was actually digging a minimum of four hours a day and in some instances five or more hours per day. Respondent's superintendent testifies that the backhoe was operated "maybe two or three hours in a nine hour day." He also testifies that the machine was ordinarily operated at a slower speed than the wide open speed at which the CSHO instructed the operator to run it during the sound volume testing period. The evidence is thus contradictory. The CSHO's testimony is as to what he remembers the operator telling him whereas the testimony of Respondent's superintendent is based on his work on the job and his actual knowledge of the work assigned to the specific machine. Because of this, there appears to be less likelihood of error in the testimony of the superintendent.
Accordingly, I conclude that the machine was operated two or at the most three hours per day and that the operating speed was at less than the full throttle used during the metering period. This combination lowers the sound level [*42] sufficiently to bring it below the proscribed level. Since the actual normal operation, as opposed to the high speed operation during the test, was apparently within limits which are not proscribed, Respondent was not in violation of the standard.
It should also be noted here that Respondent furnished ear plugs to its employees and requested that they wear them. As enforcement of such request Respondent had temporarily "laid a man off" at a previous worksite for failure to wear ear plugs. Even though Respondent's employees were aware of this request and had been furnished ear plugs the operator of the backhoe was not wearing them at the time of the test.
As an additional factor here it is noted that the backhoe was only operated at short intervals throughout the day, thereby tending to lessen the effect of the amount of noise actually emitted.
Taking all of the foregoing into consideration, I conclude that Item 7 should be vacated as should the proposed penalty. This in effect sustains the Seventh Affirmative Defense although obviously not for the specific reason set forth in the defense.
Consequently, based upon the evidence adduced, and after exhaustive consideration [*43] of the briefs and other submissions by the parties, I make the following:
FINDINGS OF FACT
1. Respondent, Hartwell Excavating Company, is a corporation with principal offices at Idaho Falls, Idaho and was at all times material hereto engaged in construction work as that term is defined at 29 CFR 1910.12(b) at a worksite at Shoshone, Idaho. (Complaint, Article I and Answer, Article I.)
2. On May 16, 1972 Respondent was engaged in constructing a sewer in Shoshone, Idaho and was using building goods and other materials brough directly or indirectly to Respondent from points outside the state of Idaho. Respondent was engaged in business affecting Interstate Commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. (Complaint, Article II and Answer, Article II.)
3. As the result of an inspection of Respondent's worksite on May 16, 1972, Respondent was issued a Citation dated June 12, 1972 alleging other than serious violation of eight specific safety standards. On the same date a Notification of Proposed Penalty was also sent to Respondent proposing penalties of $60, $30, $60 and $30 for Items 1, 4, 5 and 6 respectively and $0 for Items 2, 3, [*44] 7 and 8. The violations are as set forth above at pages 2, 2a, 3, 4 and 5. (File -- Citation and Notification of Proposed Penalty.)
4. On June 22, 1972 Respondent contested Items 2 through 7 of the Citation and the propriety of the penalty proposed in connection with Item 1. Respondent admitted the violation charged in Item 1. Item 8 was not mentioned in the Contest. (File.)
5. On May 16, 1972 a Compliance Safety and Health Officer (CSHO) inspected Respondent's worksite where Respondent was installing a sewer system in the town of Shoshone, Idaho. The work of excavating and laying the sewer involved much of the town and was obvious to anyone moving about the town. The CSHO commenced the inspection by meeting with Respondent's worksite superintendent on the morning of May 16th. Respondent had fifteen employees working at the site. Respondent's superintendent accompanied the CSHO during the walkaround, and the CSHO talked to some of Respondent's employees during the inspection.
6. During the inspection the CSHO observed a truck used by Respondent as an explosives truck. It had two portable magazines located on its flatbed. One contained 75 pounds of dynamite [*45] and the other, seven boxes of electric blasting caps. There were no separators between these two magazines. The truck had a sign on top of the cab reading "Explosives." There was no sign facing the sides proclaiming that the truck carried explosives.
7. While inspecting the explosives truck, Respondent's backhoe operator was observed standing alongside the bed of the truck on the driver's side near the rear wheels with a lit eigarette in his hand. At the time, the lid on the magazine containing the dynamite was open.
8. Following the incident described in Finding 7 the CSHO moved away from the explosives truck, accompanied by Respondent's blaster who was also driver of the explosives truck. When they were out in the street the blaster lit a cigarette with a cigarette lighter. When questioned by the CSHO he, the blaster, stated that he always carried the lighter because he smoked.
9. Respondent's main explosives magazine had many cases of dynamite and four rolls of primer cord, each 1,000 feet long, stowed in the same magazine without any separators. Primer cord and E-cord are the same. E-cord is a detonating cord.
10. Clearing of the lagoon area of Respondent's worksite [*46] was completed several months before the inspection. During the inspection a bull-dozer was parked near the lagoon area and not in use. It was too small for site clearing work but had been used at some time prior to the inspection to "harrow" (smooth) the surface of the dike in preparation for planting grass.
11. Respondent's newest backhoe had been in use at the worksite approximately four weeks. It was ordinarily operated at low power and only for short intervals of time for a total of two to three hours in a nine hour day. The CSHO tested the noise level at the operator's station while the machine was running at full power. He obtained a reading of 98 dBA while the machine was digging and 95 DBA while moving material. Both readings were on the slow scale. At the time of the test the operator was not wearing ear plugs. Respondent furnishes ear plugs to all employees and requires that they be worn.
12. Respondent conducts weekly safety meetings with its employees.
CONCLUSIONS OF LAW
1. At all times material hereto Respondent, Hartwell Excavating Company, was an employer engaged in construction business affecting interstate commerce within the meaning of Section [*47] 3 of the Occupational Safety and Health Act of 1970. On June 22, 1972 Respondent filed a letter contesting Items two through seven of the Citation and the propriety of the penalty proposed in connection with Item one. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission.
2. The regulations issued by the Internal Revenue Service (29 CFR 181.1-181.200) and by the Department of Transportation (49 CFR 177.800-177.848) are not regulations affecting occupational safety and health but rather are regulations relating to commerce in explosives and transportation of hazardous materials, respectively. They are not standards or regulations as are contemplated by Section 4(b)(1) of the Act so as to exclude Respondent's business or any part of it from coverage by the Occupational Safety and Health Act of 1970. Respondent's Motion to Dismiss based on this ground is denied.
3. The fact that trial of this matter was not completed within thirty days of assignment to this Judge does not invalidate these proceedings. Respondent's Motion to Dismiss based on this ground is denied.
4. The incidents [*48] in Findings Seven and Eight are violations of 29 CFR 1926.902(c). Respondent admits their occurrence.
5. The violations described in Finding Six are violations of 29 CFR 902(d) and .902(h). Respondent admits these violations in its Answer.
6. The situation described in Finding Nine is a violation of 29 CFR 1926.904(b).
7. The bull-dozer mentioned in Finding Ten was not used in Site clearing operations. In this circumstance, Respondent's failure to equip it with overhead and rear canopy guards is not a violation of 29 CFR 1926.604(a)(2).
8. Respondent's failure to have an operable horn on the bull-dozer is a violation of 29 CFR 1926.602(a)(9)(i).
9. The level of noise at the operator's station on Respondent's new backhoe during ordinary operations at the power and for the elapsed time per day as found in Finding Eleven is not in violation of 29 CFR 1910.95(b)(1).
10. Respondent did not contest Item 8 of the Citation in a timely manner. The violation of 29 CFR 1910.95(a) described in Item 8 of the Citation has become a final order of the Commission by the operation of Section 10(a) of the Act.
11. Affirmative defenses 1, 2, 3, 4, 6 and 8 are overruled and [*49] affirmative defenses 5 and 6 are sustained.
12. Each of the violations found herein are other than serious in nature.
13. A total penalty of $90 is considered appropriate in the circumstances here. The penalties proposed in connection with Items 1 and 6 are affirmed and the penalties proposed in connection with Items 4 and 5 vacated.
ORDER
Based upon the foregoing Findings and Conclusions and for good cause shown, it is hereby
ORDERED that:
1. Items 1, 2, 3, 4, 6 and 8 of the Citation together with penalties of $60 for Item 1 and $30 for Item 6 be, and the same hereby are, AFFIRMED;
2. Items 5 and 7 of the Citation together with penalties of $30 for Item 4 and $60 for Item 5 be, and the same hereby are VACATED; and
3. Respondent's Motion to Dismiss is DENIED.