The Bucket Elevator Company

Plain-English summary

The Bucket Elevator Company accepted serious citations involving flammable-liquid transfer near ignition sources and inadequate screening of a welding area, but contested the two proposed $600 penalties. The fire hazard involved vapors that could ignite near welding, while unshielded arc rays could injure the eyes of nearby employees. The judge credited the company's explosion-proof paint room, practice of stopping welding during spraying, ventilation, supervisory inspections, lack of prior violations, and prompt purchase of safety cans and welding screens. He reduced each penalty to $100, for a total of $200. No party objected after the Commission directed review, so the Commission declined substantive review and affirmed the judge's decision with the significance of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.106(e)(2)(iv)(c); 29 C.F.R. § 1910.106(e)(2)(iv)(d); 29 C.F.R. § 1910.252(e)(2)(iii)
• Outcome: Both serious citations remained final, and their penalties were reduced from $600 each to $100 each.
• Key point: Prompt correction, existing precautions, cooperation, and a clean history supported substantial penalty reductions.

Full text (OSHRC public release)

Docket No. 16254

THE BUCKET ELEVATOR COMPANY

OSHRC Docket No. 16254

Occupational Safety and Health Review Commission

April 25, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Wallace W. Barnes, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.
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The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.
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Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); See also keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an
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unreviewed Judge's decision.
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Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20, 387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.
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CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.
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For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

Appendix A

DECISION AND ORDER

Jithender Rao, For Complainant

Wallace W. Barnes, For Respondent

Furcolo, Judge

This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Sec. 651 et seq.) hereinafter called the Act.
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The Complainant alleges that the Respondent has violated section 5(a)(2) of the Act (sec. 654) by not complying with Occupational Safety and Health standards 29 C.F.R. $1910.106(e)(2)(iv)(c), 29 C.F.R. �
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1910.106(e)(2)(iv)(d) and �
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1910.252(e)(2)(iii).

The Respondent is a corporation engaged in the business of manufacturing of bucket elevator [*3]
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conveyors and its business affects the commerce of the United States.

The Respondent's worksite at 24 Commerce Street, Chatham, New Jersey, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on November 25, 1975.

On December 5, 1975, the following Citations, together with Notice of Proposed Penalty, were issued against the Respondent:

Citation No. 2, Item #1, the serious violation of standards 29 C.F.R. �
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1910.106(e)(2)(iv)(c) and (d)       $600

Citation No. 3, Item #1, the serious violation of standard 29 C.F.R. �
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1910.252(e)(2)(iii)       $600

On or about December 12, 1975, the Respondent filed Notice of Contest to the penalties proposed therefor.

The pertinent words of the standards involved are:

106(e)(2)(iv)(c): Flames or sources of ignition were within path of travel of vapor from Class I liquids.

106(e)(2)(iv)(d): Flammable liquids were not drawn from or transferred into containers from safety cans.

252(e)(2)(iii): Welding areas were not properly screened or shielded.

EVIDENCE

The Respondent agreed that it is contesting only the penalties proposed and not the citations . . . (Tr. 4).
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The Respondent uses materials and supplies [*4]
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manufactured outside the state and its employees work on goods that have crossed state lines . . . (Tr. 5).
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It has no prior record of violations . . . (Tr. 5).
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The Respondent had 18 employees at the time of the inspection . . . (Tr. 21).

Concerning 106(e)(2)(iv)(c) and (d): the Complainant's evidence tended to establish that the hazard was the possibility of the vapors igniting and causing a fire or explosion, causing employees to sustain burns or death . . . (Tr. 15-18).
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The vapors are highly flammable and welding being done in the vicinity could ignite the vapors . . . (Tr. 18, 49).
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The Respondent's supervisors made regular inspections for safety . . . (Tr. 20).

Concerning 252(e)(2)(iii): the Complainant's evidence tended to establish that the hazard from the failure to properly screen the welding area was that the intense brightness of the welding arc rays could cause eye damage or blindness . . . (Tr. 34).
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The welders themselves had proper protective equipment but other employees within 15 to 20 feet did not . . . (Tr. 33-36).
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There was no history of any eye damage resulting from the welding . . . (Tr. 36).

The Respondent presented testimony that painting is normally [*5]
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done in the paint room, which is explosion-proof . . . (Tr. 28, 41).
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The amount of painting is minimal . . . (Tr. 40).
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Another precaution was that welding is stopped when spraying is done . . . (Tr. 42).
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An oversized fan with great suction power is usually on to keep vapors away from any possible ignition source . . . (Tr. 42).
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To improve conditions, the Respondent has purchased safety cans and screens to protect employees from the welding operation . . . (Tr. 43, 47, 48).
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The Respondent is inspected by the local fire department and an insurance company and it complies with all recommendations of both . . . (Tr. 43).
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The Respondent also pointed to its cooperation with the government in complying with various sanitary rules and regulations applying to its business . . . (Tr. 44-46).

DISCUSSION

The Respondent apparently has always tried to conform to all safety and health regulations. For example, the paint room was explosion-proof, the welding was stopped during spraying, and the fan was supposed to be on when spraying was done.
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In addition, the Respondent took immediate steps to improve conditions by purchasing safety cans and protective screens. The welders themselves,
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who were the ones most exposed to the hazard, have always had proper equipment.
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There has been no history of eye injury to any employees and the Respondent has no record of OSHA violations.

Although the Respondent did not have a safety committee with regular meetings, and records, the Respondent's supervisory employees did make regular inspections and were concerned with the safety of the employees.

On all the evidence, the Respondent has always tried to comply with all safety and health regulations and to cooperate with all governmental agencies.

CONCLUSIONS OF LAW

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At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties.

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By virtue of the Respondent's not contesting the citations, the items have become final orders under section 10(a) of the Act (section 659).

ORDER

The whole record having been considered, and due consideration having been given to 29 U.S.C. section 66(j), it is ordered:

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A penalty of $100 is assessed for Item #1 of Citation No. 2.

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A penalty of $100 is assessed [*7]
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for Item #1 of Citation No. 3.

So ordered.

Dated: May 25, 1976

Boston, Massachusetts

FOSTER FURCOLO, Judge, OSAHRC