UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13603

GENE L. WILLISON, d/b/a GENE L. WILLISON, CONTRACTOR,

 

                                              Respondent.

 

July 25, 1977

 

DECISION

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

BARNAKO, Chairman:

            A decision of Administrative Law Judge John J. Morris is before us for review. Judge Morris affirmed Complainant’s citation alleging that Respondent violated the Occupational Safety and Health Act of 1970[1] by failing to comply with construction safety standards pertaining to the transportation of explosives, maintenance of warning signs indicating a blast area, and provision of warning signals prior to blasting.[2] Respondent petitioned for review of the judge’s decision but without assigning specific error, and he presents no argument to us. Pursuant to 29 U.S.C. 661(i) we have reviewed the judge’s decision and for the reasons given below find no error therein.

            Pursuant to our rules Complainant filed a request for admissions, by which he asked Respondent to admit facts sufficient to establish a prima facie case that the standards had been violated. Respondent did not file a response to the request for admissions. Judge Morris thereby deemed the facts admitted[3] and, upon rejecting Respondent’s arguments concerning the standards, affirmed the citation.

            Specifically, the judge rejected the contention that Complainant failed to prove that Respondent’s method of transporting explosives was hazardous. He properly reasoned that the standards in issue presume the existence of a hazard in the event of noncompliance with their requirements.[4] He also concluded that Respondent’s other arguments were contrary to the plain terms of the standards, and we agree for the reasons he assigns. We also conclude that the penalties assessed by the Judge are appropriate.

            Accordingly, it is ORDERED that the decision of the judge be and the same is hereby affirmed.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

DATE: JUL 25, 1977

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13603

GENE L. WILLISON, d/b/a GENE L. WILLISON, CONTRACTOR,

 

                                              Respondent.

 

 

March 1, 1976

APPEARANCES:

Ann M. Noble, Attorney, Office of Henry C. Mahlman, Associate Regional Solicitor, U. S. Department of Labor, Denver, Colorado,

for the Complainant,

 

Gene L. Willison (Pro Se) of Missoula, Montana,

for the Respondent.

 

DECISION AND ORDER

Morris, Judge:

            A citation alleges violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ‘Act’). Complainant asserts violations occurred on May 14, 1975 and were observed when complainant’s representative inspected a trenching site near Lolo, Montana. The citation issued May 21, 1975. Respondent challenged the citation by letter dated June 2, 1975.

            Citation 3 alleges nonserious violations of the following enumerated standards:

Item

Standard Allegedly Violated

Proposed Penalty

Description of Alleged Violation

2

29 CFR 1926.902(d)

$90

The Trojan dynamite, fuse cord, and blasting caps were transported to the construction site in the same vehicle which was also being used to transport other materials. The nitrocarbo nitrate blasting agent oxidizer was also transported to the construction site with other materials or cargos.

 

3

29 CFR 1926.902(g)

70

The exposed spark-producing metal on the inside cab of the pickup truck used for the transportation of explosives to the construction site was not covered with wood, or other nonsparking material to prevent contact with containers of explosives.

 

4

29 CFR 1926.902(h)

35

The pickup truck used for the transportation of explosives to the construction site was not 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.

5

29 CFR 1926.905(p)

60

Warning signs, indicating a blast area, were not maintained at all approaches to the blast area.

 

6

29 CFR 1926.909(b)

60

During the blasting operation observed at the construction site the blaster in charge failed to give a loud warning signal before the blasts were fired.

 

 

The foregoing standards read:

§ 1926.902 Surface transportation of explosives.

(d) Explosives, blasting agents, and blasting supplies shall not be transported with other materials or cargoes. Blasting caps (including electric) shall not be transported in the same vehicle with other explosives.

 

(g) All vehicles used for the transportation of explosives shall have tight floors and any exposed spark-producing metal on the inside of the body shall be covered with wood, or other nonsparking material, to prevent contact with containers 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 flag 18 inches by 30 inches, with the word ‘explosives’ painted, stamped, or sewed thereon, in white letters, at least 6 inches in height.

 

§ 1926.905 Loading of explosives or blasting agents.

2 (p) Warning signs, indicating a blast area, shall be maintained at all approaches to the blast area. The warning sign lettering shall not be less than 4 inches in height on a contrasting background.

 

§ 1926.909 Firing the blast.

(b) Before a blast is fired, a loud warning signal shall be given by the blaster in charge, who has made certain that all surplus explosives are in a safe place and all employees, vehicles, and equipment are at a safe distance, or under sufficient cover.

 

            The evidence: Complainant relied on the pleadings to establish a case. The Occupational Safety and Health Act applies to the respondent since he failed to deny such allegations in the complaint (Tr. 7, Answer). Commission Rule 33(b)(2) states that ‘Any allegation not denied shall be deemed admitted.’

            Item 2: Dynamite, fuse cords, and blasting caps were transported with other materials (Admissions: 1, 2, 3).

            Item 3: The vehicle used to transport the above described materials had exposed spark producing metal on the inside cab (Admissions: 5, 6).

            Item 4: The vehicle used to transport the materials described above was not marked or placarded on both sides, front, and rear with the word ‘Explosives’ as required by Part 1926.902(h) (Admissions: 7, 8).

            Item 5: Respondent excavated a portion of the worksite using blasting methods. Warning signs, indicating a blast area, were not maintained at all approaches to the blast area (Admissions: 10).

            Item 6: During the blasting operation at the worksite the blaster in charge failed to give a loud warning signal before the blasts were fired (Admissions: 11).

            Respondent’s evidence establishes use of dynamite over many years without any accident (Tr. 16–22). He therefore argues complainant must show a danger to employees and in absence of such a showing the citation should be vacated.

            This argument overlooks the scope and purpose of the Act. In Section 651 the Congress declares, in part, that the Act is:

‘. . . to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources . . ..’

 

Under Section 654(a):

‘Each employer shall comply with occupational safety and health standards promulgated under the chapter.’

 

            Complainant, the Secretary of Labor, duly promulgated the regulations herein. A presumption of hazard exists if such a standard is violated.

            It is not incumbent on complainant to establish that a hazard exists if the specific standard can be considered generally with complainant’s legislative grant of authority. A caveat lies in those situations where the specific standard in contest incorporates such terms as hazard, probability of injury, or accidental injury.

            Respondent argues that placarding a truck with the sign ‘EXPLOSIVES’ only attracts attention to the vehicle (Tr. 28–31).

            The above argument disregards complainant’s regulations. Placarding a truck serves to warn all persons, including motorists of the potential danger.

            Respondent further contends he exceeds the ‘warning before blasting’ standard in that he or his employees personally contact persons in the vicinity to warn them of an imminent blast (Tr. 31–36).

            Respondent is to be commended for this effort. However, a loud warning signal immediately before blasting warns all persons nearby to take ‘sufficient cover.’ Personally warning and using a warning signal before blasting are not mutually exclusive remedies. Respondent’s argument that he doesn’t know what constitutes ‘a loud warning signal’ lacks merit; he admits giving no signal whatsoever (Tr. 33–34).

            Relating to proposed civil penalties complainant contends that by the pleadings respondent admits he has two employees. Further, a prior case (Cause Number 9508, 19 OSAHRC ——) shows his knowledge of the Act. Respondent indicates he is a small contractor in relation to other contractors grossing $150,000 to $200,000 (Tr. 36–38). He has safety and training programs and no employees have sustained any injury in the last 8 or 9 years (Tr. 39–41).

            Evaluations as to civil penalties are to be made independently of complainant’s proposals, Secretary v. Dreher Pickle Company, 2 OSAHRC 497 (1973). The Commission has ruled that of the four statutory factors bearing on the appropriateness of the penalty the gravity of the violation should generally be accorded the greatest weight, Secretary v. Baltz Brothers Packing Company, 2 OSAHRC 384 (1973). Transporting and using dynamite involves a considerable hazard all established by the case law and relevant statutes; for example, see 18 U.S.C. 832. Though complainant has alleged the violations here are of a nonserious nature, they nevertheless fall with the Commission doctrine expressed in Secretary v. Hydroswift 1 OSAHRC 921 (1972). The Commission therein ruled that the assessment of small penalties where the gravity of the violation is other than low serves to remind all employers ‘that their primary responsibility under the Act is adherence to its protective mechanisms.’

            No substantial controversy of fact is involved in these violations. Accordingly, based on the uncontroverted record the undersigned enters the following:

ORDER

            1. Item 2, 3, 4, 5, and 6 of citation 3 are AFFIRMED.

            2. The proposed civil penalties:

 

Item

2

$90

Item

3

70

Item

4

35

Item

5

60

Item

6

60

 

are AFFIRMED.

 

So ordered in the City and County of Denver, Colorado.

 

John J. Morris

Judge, OSAHRC

Dated: March 1, 1976

 


[1] 29 U.S.C. 651 et seq.

[2] 29 C.F.R. 1926.902(d), (g), and (h); 1926.905(p); and 1926.909(b).

[3] Commission Rule 52(a), 29 C.F.R. 2200.52(a), provides that ‘(t)he matter shall be deemed admitted unless . . . the party to whom the request is directed serves upon the party requesting the admission a specific written response.’

[4] See Lee Way Motor Freight, Inc., 7 OSAHRC 1128, 1 BNA 1689, 1973 74 OSHD para. 17,693 (1974), aff’d, 511 F.2d 864 (10th Cir. 1975).