Docket No. 2792

DEEMER STEEL CASTING COMPANY

OSHRC Docket No. 2792

Occupational Safety and Health Review Commission

January 23, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On November 29, 1973, the decision of Judge Joseph L. Chalk in this case was directed for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act").

Review was directed on the issue raised by the Secretary in his petition for discretionary review. In this petition, the Secretary took exception to that portion of the Judge's decision wherein the abatement date relating to one item of the citation was extended so as to furnish respondent an opportunity to apply for a variance under section 6(d) of the Act.

The abatement issue related to that item of the citation concerning respondent's non-compliance with 29 CFR § 1910.94(b)(1) for failing to equip its portable pneumatic hand grinding wheels with hoods or enclosures connected to an exhaust system to remove point of operation dust. The Judge found that respondent failed to comply with the standard and thus violated section 5(a)(2) of the Act.

This case was decided on a joint stipulation of facts and testimony. In a stipulation relating to [*2] the portable grinding wheels the Secretary conceded that ". . . no workable system to compensate for the varied work positions has been arranged to entrap the dust particles." Noting that above stipulation and the fact that respondent requires the use of respirators during the cleaning operation, Judge Chalk extended the abatement date ". . . to include a period of 90 days from the date of this order, to furnish respondent the opportunity to apply for a variance, if desired."

In his petition for discretionary review, the Secretary maintained that the Judge's action was an infringement upon the variance power granted the Secretary in section 6(d) of the Act. In a subsequent document styled as a "statement of position" the Secretary argued that the issue raised in his petition was mooted by the fact that respondent had requested a variance. We disagree.

The Commission must issue an appropriate order following its adjudication. In doing so, it should not act so single-mindedly as to ignore a relevant variance proceeding pending before the Secretary. Under the circumstances of this case we are hard pressed to act concerning the abatement requirement because the Secretary [*3] has stipulated as to the extreme difficulty of abatement and because action in the variance proceeding may possibly change future methods of compliance by the employer. n1 Accordingly, we will refrain from setting an abatement requirement until the Secretary acts upon the pending variance application.

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n1 While the Secretary indicated that respondent had applied for a variance, neither the record nor the Federal Register reveal any disposition of the application. We, therefore, assume the continuing pendency of the application.

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Accordingly, it is ORDERED that:

(a) The abatement relating to the item of the citation alleging non-compliance with 29 CFR § 1910.94(b)(1) is stayed pending final disposition of respondent's variance application, so long as the employer continues to use respirators in the cleaning operation.

(b) The decision of the Judge is in all other respects affirmed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the result. As to the stay of abatement for item 7(b), I would [*4] go further than the majority. I would vacate the citation to the extent it alleges an abatement date and to the extent it would require Respondent (Deemer) to submit an abatement plan. n2

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n2 Vacation appears more appropriate than a stay because it is unquestionably a final order of the Commission. By granting an indefinite stay, the majority delays the finality of our order by granting what is in effect an interim order.

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By his citation and complaint filed herein the Secretary alleged that 30 days would be a reasonable period for December to submit a plan of abatement including feasible engineering or administrative controls for item 7 of the citation. n3 Deemer contested and as to item 7(b) said that the "use of guards prohibits necessary grinding when used in confined areas. The end result of this item is an improperly finished product." Deemer went on to say that the dust problem had been alleviated by implementation of a respirator program. Thereafter the parties stipulated as stated in the lead [*5] opinion.

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n3 Section 9(a) (29 U.S.C. 658(a)) requires that the citation "shall fix a reasonable time for abatement of the violation."

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The stipulation is the only evidence of record in this case. According to it the Secretary agrees as to item 7(b) that there is no workable system to entrap dust particles. Therefore he agrees that Deemer cannot submit a plan for this item as the citation would have required. Perforce, he agrees that the 30 days period set out in the citation is unreasonable.

According to the terms of section 10(c) (29 U.S.C. 659(c)) we are to issue an order based on findings of fact which affirms, modifies, or vacates the citation. The Secretary has the burden of proof. Armor Elevator Co., Inc., 5 OSAHRC 260, BNA 1 OSHC 1409, CCH E.S.H.G. para. 16,958 (Rev. Com'n., 1973). He admits that as to item 7(b) there are no facts that will support his abatement allegations or any modification thereof. Accordingly, we should vacate the citation to that extent.

[The Judge's decision referred to herein [*6] follows]

CHALK, JUDGE: Following an inspection of Respondent's workplace in New Castle, Delaware, on December 29, 1972, a Citation for twenty-eight alleged non-serious violations of the Occupational Safety and Health Act of 1970 and a Notification of Proposed Penalty were issued against Respondent on April 3, 1973. On April 19, 1973, Respondent duly filed a Notice of Contest with respect to three of the alleged violations and the penalties proposed therefor. Pertinent information relating to the contested items is as follows:

Item No. -- Standards Allegedly Violated -- Descriptions of Alleged Violation

4 -- 29 CFR 1910.132(a) -- Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. [*7] -- Respondent failed to enforce use of lower arm protection, where necessary, and during molten hand pouring operation to avoid burns from accidental splash or spillage of molten metal.

7 -- 29 CFR 1910.94(b)(2)(i) -- Every establishment performing dry grinding, dry polishing, or buffing shall provide suitable hood or enclosures that are connected to exhaust systems. -- Respondent failed to limit to the point of operation dust produced in production hand grinding with abrasive wheels at the following locations: (b) portable pneumatic hand grinding wheels used in steel casting cleaning operation.

10 -- 29 CFR 1910.243(c)(1)(ii)(a) -- The safety guard shall cover the spindle end, nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard. -- Respondent failed to provide guards for abrasive grinding wheels (larger than two inches) on portable pneumatic hand grinders used in cleaning operation of steel castings.

The penalties proposed for these alleged violations were $35.00, $60.00, and $35.00, respectively.

On August 31, 1973, the parties jointly moved [*8] for permission to submit the case for decision on a stipulation of facts and testimony, and briefs, without a formal hearing. The motion was granted the same date. Accordingly, all facts hereafter set forth in this decision are derived from a joint stipulation appended to the record.

Respondent is a Delaware corporation with eighty-two employees that receive supplies from out of state and ships products to customers in other states. Its workplace was inspected by Department of Labor compliance officers on December 29, 1973.

As it relates to the three contested charges, the stipulation provides, inter alia, as follows:

Item Number 4 (29 CFR 1910.132(a))

6) Complainant and Respondent agree that there was a failure to enforce lower arm protection during molten metal hand pouring operation to avoid burns from accidental splash or spillage of molten metal.

7) Respondent alleges and Complainant admits for the purpose of this hearing only that the use of lower arm protection would provide a place for molten steel to become entrapped. Molten steel will bounce off unprotected skin.

Item Number 7 (29 CFR 1910.94(B)(1))

8) Complainant and Respondent agree that there [*9] was a failure to limit to the point of operation, dust produced in production hand grinding with abrasive wheels at the following locations:

(b) Portable pneumatic hand grinding wheels used in steel casting cleaning operation.

9) Respondent alleges as a defense and Complainant agrees only for the purpose of this hearing that with respect to the portable hand grinders, due to the diversification required of a job-shop foundry, no workable system to compensate for the varied work positions has been arranged to entrap the dust particles. To alleviate this problem, a respirator program has, since the date of the issuance of the Citation herein, been established for those affected employees involved in the hand grinding operations.

Item Number 10 (29 CFR 1910.243(c)(1)(ii)(a))

10) Complainant and Respondent agree that there was a failure to provide guards for abrasive grinding wheels (larger than two inches) on portable pneumatic hand grinders used in cleaning operation of steel castings.

11) Respondent alleges as a defense and Complainant agrees for the purpose of this hearing only that following the aforesaid inspection guards were installed on grinders used on exterior surfaces. [*10] These guards, however, restrict necessary finishing on the interior surfaces of the castings and in most cases, the use of a guard will not permit entry of the grinder into the cavity. Therefore, Respondent is not using guards when performing grinding on interior surfaces. To compensate for this problem, reinforced wheels are used as a safety factor.

The alleged violations will be discussed seratim.

In view of the Secretary's description of the violation of 29 CFR 1910.132(a) in Item Number 4 of the Citation and the Complaint, the contested matter at issue is and must be limited to an allegation of a failure on Respondent's part to enforce the use of lower arm protection as an act constituting noncompliance with the standard. The standard, of course, makes no mention of lower arm protection; rather, its provisions are expressed in broad, general terms. As a result, the Secretary must prove that the standard requires what he says it requires.

In its brief, Respondent avers that its experience shows that there is a tendency for molten metal to become entrapped in lower arm protection with the result that injuries are more frequent among employees who wear [*11] such equipment during the pouring process over those who do not. Respondent also avers that its experience shows that molten metal will "readily bounce off bare skin causing a lesser chance for injury than if it were to become entrapped in some form of protective clothing."

The Secretary apparently concedes the foregoing facts advanced by Respondent, for he saw fit to enter into a stipulation to that effect. Moreover, as the stipulation uses the phrase "lower arm protection" without limitation, it must be concluded that the Secretary agreed that the stipulation covers lower arm protection of every variety. The Secretary than compounds the anomaly between his charge and the stipulation by asserting that Respondent should "either seek arm protection of another design or seek a variance if the standard is not helpful to protect employees from the hazards of molten metal coming into contact with their skin." For the reasons that follow, Respondent is not required to follow either course of action.

The Act makes it clear that its purpose is to provide safe and healthful working conditions, in so far as possible, for every man and woman in the Nation. In furtherance of this objective, [*12] the Congress directed the Secretary to promulgate only those occupational safety and health standrds that would, in his opinion, result in improved safety and health for employees. Accordingly, as the purpose of a standard, by Congressional decree, is to reduce if not eliminate the risk of injury, not to increase it, the Secretary's argument that 29 CFR 1910.132(a) requires the use of lower arm protection in the circumstances of this case is not in the least persuasive. Stated otherwise, the Secretary has failed to prove that the standard requires the use of lower arm protection in the circumstances of this case. The charge, therefore, cannot be sustained.

As to Item Number 7 of the Citation, 29 CFR 1910.94(b)(1) requires that hand grinders, such as those involved in this case, as well as other types of grinders, be equipped with hoods or enclosures connected to an exhaust system to remove dust particles at the point of operation, thereby removing them from the breathing zone of the operator and others. While the Citation and Complaint specified three types of grinders operated by Respondent that were not in compliance, Respondent contested only one of the three [*13] that involved hand grinders used in the cleaning of steel castings.

In the stipulation, the parties agree in substance that Respondent was not in compliance with the standard in the use of the hand grinders on the date of the inspection. They also agree that there is no "workable" way that the standard can be complied with because of Respondent's diversified cleaning operation. Finally, they agree that Respondent has required the wearing of respirators by employees engaged in the clearning operation since the issuance of the Citation.

In its brief, Respondent makes the following statements in connection with this charge:

Our production operation can be discribed [sic] as a "job shop." By this I mean we make an unlimited quantity of different castings in comparison to a 'production shop' that would make the same product or group of products time and time again. Our job shop conditions lend themselves to an infinite number of working conditions within our cleaning shop. In short we need the capability of a complete 360 degrees work position. The portable grinders used would be restricted in job applications if required to conform to the dust collection equipment we have seen [*14] to date. The variery of castings produced does not lend itself to directing the flow of sparks and dust into fixed duct work. The units that attach to the grinder restrict the workers ability to grind interior or intricae surfaces. We find that if we cannot continue our manner of grinder usage we will have to limit production to specific types of castings or suffer the more severe problem of losing customers. It therefore becomes a financial problem critical to the continuance of Deemer Steel Casting Company. This is not to say that the dust problem has been eliminated. But we do feel that the employee's exposure to dust can be restricted to certain work areas where our strenous respirator program is effectively compensating for dust collection equipment.

As Respondent has contested only one of three integral parts of this particular charge, and does not appear to go so far as to claim toal impossibility of compliance with the standard with regard to the contested part, I do not feel it necessary to decide in this case whether impossibility of compliance with a standard is available as an affirmative defense (see Secretary of Labor v. W. C. Sivers Company, Docket No. [*15] 239, November 9, 1972, and secretary of Labor v. J. H. Baxter & Co., Docket No. 2043, August 20, 1973). This item of the Citation, accordingly, will be affirmed. However, as I believe that Respondent should have an opportunity to make appropriate application for a variance, I will postpone the effective date of abatement for a reasonable period of time.

III

As to Item Number 10 of the Citation, 29 CFR 1910.243(c)(1)(ii)(a), in conjunction with 29 CFR 1910.243(c)(1)(i), requires safety guards of certain specifications on portable abraisve wheels in excess of two inches in diameter. In the stipultion, the parties agree that Respondent did not have such guards on its hand grinders used in its cleaning operation of steel castings on the date of the inspection. They also agree that after the inspection, such guards were installed on portable grinders used on interior surfaces of the castings because in most cases, the use of the guard would not permit entry of the grinder into the cavity.

As 29 CFR 1910.243(c)(1)(a) provides an exception from its requirement where abrasive wheels are used "for internal work while within the work being ground," Respondent was and [*16] is expressly exempt from compliance with the standard with regard to its internal cleaning operation. Accordingly, Item Number 10 of the Citation will be affirmed only as it relates to Respondent's cleaning operation on external surfaces.

As to Item Numbers 7 and 10, Complainant, in arriving at the appropriateness of penalties to be proposed, considered the gravity of each alleged violation, as well as the size of Respondent's business, its good faith, and its history of no prior violations. Respondent received no credit for size because it had eighty-two employees. It was given full credit, however, for prior history and good faith. The gravity of both violations was considered to be moderate. V

On the basis of the entire record, I reach the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. That at the time and place in question, Respondent was a Delaware corporation that used materials received from out of state and shipped its products to customers in other states.

2. That at the time and place in question, Respondent did not enforce the use by employes of lower arm protection during molten hand pouring operation to avoid burns from [*17] accidential splash or spillage of molten metal.

3. That at the time and place in question, Respondent failed to limit to the point of operation dust produced in production hand grinding with abrasive wheels of hand grinders used in its cleaning operation of steel castings.

4. That at the time and place in question, Respondent did not provide guards for abrasive grinding wheels on portable hand grinders used in its cleaning operation of steel castings.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That 29 CFR 1910.132(a) does not require the use by employees of lower arm protection during molten hand pouring operation to avoid burns from accidental splash or spillage of molten metal, and that Respondent was not in violation of the Act by not complying with 29 CFR 1910.132(a).

3. That Respondent was in violation of the Act by not complying with 29 CFR 1910.94(b)(2)(i) by failing to limit to the point of operation dust produced in production hand grinding with abrasive wheels used on hand grinders in its steel casting operation.

4. That Respondent was in violation of the Act by not complying with 29 CFR 1910.243(c)(1)(ii)(a) by failing to [*18] provide guards for abrasive grinding wheels on portable hand grinders used in its cleaning operation of steel castings on exterior surfaces only.

5. That the penalties herein assessed are appropriate in light of Section 17(j) of the Act.

Item Number 4 of the Citation and the penalty of $35.00 proposed therefor are vacated. Item Number 7 of the Citation is affirmed and a penalty of $60.00 is assessed therefor. Item Number 10 of the Citation, only to the extent that it relates to hand grinding on exterior surfaces, is affirmed and a penalty of $35.00 is assessed therefor. The abatement period for Item Number 7 of the Citation is extended to include a period of ninety days from the date of this Order, to furnish Respondent the opportunity to apply for a variance, if desired. If such variance is applied for and granted, abatement of Item 7 of the Citation, to the extent covered by the variance, shall not be required.

It is so ORDERED.