Continental Electric Company

Read the official release (oshrc.gov)

Plain-English summary

Continental used a pneumatic air file that produced sound levels as high as 103 decibels. A full-shift dosimeter showed the operator's exposure slightly exceeded a 92-decibel eight-hour average, but the company had no hearing conservation program. The ALJ vacated the citation because the Secretary had not proved that Continental knew the employee's full-shift exposure. The Commission reversed, holding that reasonable diligence requires an employer to measure regulated health hazards when available information suggests an exposure limit may be exceeded. The air file's sound level triggered the standard's monitoring duty, and Continental had in fact conducted its own measurements but did not produce them. The citation was affirmed without a penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(c)
• Outcome: Hearing conservation program citation affirmed with no penalty.
• Key point: Constructive knowledge exists when obvious noise levels require monitoring that a reasonably diligent employer would have used to discover excessive exposure.

Full text (OSHRC public release)

Docket No. 83-0921

SECRETARY OF LABOR,

Complainant,

v.

CONTINENTAL ELECTRIC COMPANY,

Respondent.

OSHRC Docket No. 83-0921

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The issue in this case is whether Administrative Law
Judge Joe D. Sparks properly vacated the Secretary's citation alleging that Continental
Electric Company ("Continental") committed a nonserious violation of the
Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-78, by failing to provide a
hearing conservation program as required by the Secretary's noise standard, 29 C.F.R. �
1910.95.[[1/]] The judge concluded that the Secretary had not proven that Continental knew
or should have known of the allegedly violative conditions.  We reverse the judge's
decision and affirm the citation.

The relevant facts are not in dispute.
  Continental uses a pneumatically-operated tool know as an "air file" to
remove excess material from castings.  During an inspection of Continental's facility
the Secretary's industrial hygienist measured noise levels as high as 120 to 103 decibels
while the air file was operating.  Since these levels indicated that the employee who
operated the air file might be exposed to noise in excess of the limit permitted by the
standard, the hygienist asked whether Continental had taken any noise measurements.
  Continental's representative said that the company had performed its own monitoring
but refused to divulge its noise records.  In the absence of any information as to
the employee's actual noise exposure, the hygienist decided to conduct a full-shift noise
sample by placing a noise dosimeter on the air file operator wore the dosimeter for 7
hours and 17 minutes, during which time he operated the air file intermittently.  The
dosimeter indicated that the operator was exposed to slightly more than 92 decibels on an
8-hour time-weighted average basis.  In response to the hygienist's inquiry, the
operator told the hygienist that the day the air file less than on other days.
  Continental stipulated that it did not have a hearing conservation program when the
inspection occurred.[[2/]]

Continental argued, and Judge Sparks held, that there
was no showing that it had actual or constructive knowledge of the noise levels at the air
file operator;s work station.[[3/]]  We disagree; we conclude that Continental in the
exercise of reasonable diligence should have been aware of the amount of noise to which
the air file operator was exposed.[[4/]]

The Secretary may prove knowledge by establishing
either that the employer actually knew of the hazardous conditions or that the employer
should have taken measures that would have informed it that such conditions existed.
  E.g., R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1668-69, 1986-87 CCH OSHD
�27,500, pp. 35,640-41 (No. 81-1469, 1986), Union Boiler Co., 83 OSAHRC 11/C7, 11BNA OSHC
1241, 1244, 1983-84 CCH OSHD  �26,453, p. 33, 606 (No. 79-232, 1983) aff'd mem., 732
F.2d 151 (4th Cir. 1984).  When employees are exposed to a condition that is
regulated by the Secretary's health standards such as noise, reasonable diligence requires
the employer to use those test procedures or measurements that are available to determine
whether the exposure exceeds the limits set forth in the standard.  Seaboard Foundry,
Inc., 83 OSAHRC 23/C7, 11 BNA OSHC 1398, 1402, 1983-84 CCH OSHD �26,522, p. 33,775 (No.
77-3964, 1983); General Electric Co., 81 OSAHRC 41/A2, 9 BNA OSHC 1722, 1728, 1981 CCH
OSHD �25,345, p. 31, 455 (No. 13732, 1981).  See Union Boiler, supra (general
discussion of employer's duty to anticipate hazards to which employees may be exposed by
inspecting work area).

In addition to an employer's general obligation to
determine the severity of health hazards in it workplace, the hearing conservation
standard requires that the employer conduct noise monitoring "when information
indicates that any employee's exposure may equal or exceed an 8-hour time-weighted average
of 85 decibels." 29 C.F.R. �1910.95(d)(1).  The fact that the air file produced
noise levels as high as 103 decibels[[5/]] would clearly indicate to a reasonably diligent
employer the possibility that the air file operator's overall noise exposure could average
more than 85 decibels over an 8-hour work day.  Thus, Continental had duty to measure
the exposure of the air file operator under the terms of the hearing conservation standard
itself.  See R.D. Anderson, 12 BNA OSHC at 1688, 1986-87 CCH OSHD at p. 35,640
(discussion of monitoring requirement of the asbestos standard, 29 C.F.R.
�1910.1001(f)(1).

The record shows that Continental in fact had taken
noise measurements of it own.  Absent the introduction into evidence of the result of
its noise monitoring, we cannot conclude that Continental had actual knowledge of the
8-hour time-weighted average noise level to which the air file operator was exposed.
  However, considering that the length of time the air file was used on the day of
inspection was typical of, or even less than, it use on other days, [[6/]] we conclude
that Continental's noise measurements should have put it on notice of a need for a hearing
conservation program for the air file operator.  A reasonably diligent employer
conducting its own noise measurements would have been aware that the air file operator
normally is exposed to a noise level considerably in excess of 85 decibels.

Accordingly, the judge's decision is reversed, and
the citation alleging that Continental failed to comply with 29 C.F.R. �1910.95(c) is
affirmed.  The Secretary proposed no penalty and we assess none.

FOR THE COMMISSION

Ray H. Darling, Jr.

EXECUTIVE SECRETARY

DATED: April 18, 1989

SECRETARY OF LABOR

Complainant,

v.

CONTINENTAL ELECTRIC COMPANY,

Respondent.

OSHRC Docket Nos.

83-0920 and 83-0921

(Consolidated)

Appearances:

L.K. Cooper, Jr. Esquire, Office of the Solicitor, U.S. Department of Labor,
Birmingham, Alabama, on behalf of complainant.

Winston B. McCall, Jr., Esquire, Birmingham, Alabama, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge:  This proceeding arises under section 10(c) of the
Occupational Safety and Health Act of 1970 (the "Act").

Compliance officers of OSHA conducted inspections to
determine compliance with the Act.  Citation were issued charging violations of
safety and noise standards.  By amendment, the Secretary withdrew safety citation
number one and deleted items 2b, 5c, and 8b of citation number two.   Item five of
citation number two was modified (Tr. 5-6).  Left at issue from docket number
83-0920, citation number two, are item 1, 2a, 3, 4, 5a, 5b, 6a(a), 6b(a), 6c(b), 6c(c),
and 8a.  The citation in docket number 83-921 alleging a failure to have a
continuing, effective hearing conservation program is also at issue.  All items
remaining for decision are alleged to be other than serious violations.  There are no
issues involving purposed penalties or abatement dates (Tr. 48-49).  The cases were
consolidated by an order of April 12, 1984.

Respondent contends the Secretary failed to carry his
burden of proving the violations.  Clarence Brown d/b/a Brown's Contracting,
77  OSAHRC 78/C4, 5 BNA OSHC 1455, 1977-78 CCH OSHD �21,816 (No. 7690, 1977). 
The findings of fact specifically enumerated and those stated in the following discussion
are found to be established by the preponderance of the evidence of record

I

DOCKET NO. 83-0920

CITATION NO. 2

Item one alleges a violation of 29 C.F.R.
�1910.22(d)(1) [[1/]] in that and overhead area was not marked to show its maxim load
limit.  An overhead area used to store flat cardboard boxes was not so marked.  
The evidence fails to identify the building official or the approvedload limit for the
area in question. Although the record establish that respondent occupied and used the
building, it does not establish that respondent is the "owner of the building or his
duly authorized agent."  See Cole, Division of Litton Business Systems, Inc.
,   79 OSAHRC 87/A2, 7 BNA OSHC 2145, 1979 CCH OSHD �23,944 (Nos. 77-3432 BS
78-2939, 1979). The burden is upon the Secretary to prove that a particular standard
applies to the cited working conditions. Howard Barthelmass Painting Co., 81 OSAHRC
84/E1, 9 BNA OSHC 2160, 1981 CCH OSHD � 25,637 (No. 78-5450, 1981).  The Secretary
has failed to carry his burden of showing essential elements of the standard so item one
must be vacated.

Item 2a alleges a violation of 29 C.F.R. �1910.106(e)(2)(iv)(d) [[2/]] in that
paint regularly used in the painting operations was not drawn through a self-closing.
  The drum was marked flammable.  The flash point of Chem Glaze paint was daily
drawn from a drum and through a valve which was not self-closing.  The drum was
marked flammable.  The flash point of Chem Glaze paint was 70� F.  (Tr.
353-354).  Flammable liquid having a flash point below 100� F.  The information
was available to respondent from the specification sheets furnished by the manufacturer.
  A violation of item 2a was established.

Item three alleges a violation of 29 C.F.R. �1910.106(e)(9)(iii) [[3/]] in that
combustible rags were stored in a plastic trash can.  The evidence shows the rags
were used to wipe up paint until they became so stiff they could no longer perform that
purpose and were stored discarded into plastic trash can.  A combustible liquid is
defined as any liquid having a flash point of the hardened paint.  Complainant argues
that the rags themselves, made of cloth, were combustible material subject to the
restrictions of the standard (Comp. Brief P. 2).  The compliance officer testified,
however, it was only because the rags were used to wipe up paint that she considered the
material combustible (Tr. 68,218).  No tests were conducted by the Secretary and
respondent's tests flame up when a flame was applied.  The evidence of the record
does not establish that the soiled rags were combustible waste material.  Item three
must be vacated.

Item four alleges a violation of 29 C.F.R.
�1910.151(c) [[4/]] in that employees were exposed to injurious corrosive materials and
suitable facilities for quick drenching of flushing of the eyes and body were not
available within the work area for immediate emergency use.  Two employees regularly
used epoxy resin, a corrosive material (Tr. 273,282).  Respondent did not have
special safety showers and eye wash facilities, but bathrooms with sinks and a drinking
fountain were located at an end of the building.  The bathrooms had hot and cold
running water (Tr. 347).  The compliance officer estimated the bathrooms were 25 to
50 feet the work area (Tr. 176).  Respondent's supervisor estimated the distance as
20 feet and stated the employees could reach the bathrooms within seconds (Tr. 347-349).

In Gibson Discount Center, Store No. 15, 78 OSHARC 30/C1, ^ BNA OSHC 1526,
1978 CCH OSHD �22,669 (No. 14657, 1978), the Review Commission held that whether a
violation exists depends on consideration of all circumstances.  There it was
established that battery acid is not hazardous if washed out within a short period and
that an exposed employee could reach running water within 29 to 30 seconds.  The
review Commission held that the evidence did not establish a violation.  In E.I.
DuPont De Nemours & Co., Inc., 82 OSAHRC 4/A2, 10 BNA OSHC 1320, 1982 CCH OSHD
�22, 669 (no. 14657, 1978), the Commission held that a violation had not been proved
where the employer provided a standard full-body shower but not a specific eye-wash
facility.  See also Bridgeport Brass Co., __ BNA OSHC ___, 1984
CCH OSHD �27,054 (No. 82-899, 1984).

In the instant case, the evidence establishes that
the employees did wear eye protection (Tr. 178,348).  They could reach the bathrooms
where running water was available within a matter of seconds.  The evidence running
water was available within a matter of seconds.  The evidence fails to show that an
injury to the eyes or body would result within the elapsed time.   Considering all
evidence of record, the Secretary has not established that the available facilities are
not suitable.  Item four is vacated.

Items 5a and 5b allege violations of 29 C.F.R.
�1910.212(a)(1) [[5/]] under conditions stated as follows (as amended):

Machine guarding was not provided to protect
operators and other employees from hazards  created by:  ingoing nip points:

(a) Cutting and grinding area in Fiberglass Building
-nip points where sanding belt meets pulleys were not guarded.  Machine made by
Stephen Bader Company.

(b) In Machine Shop in Iron Building - unguarded nip
points on each of three small floor grinders where the sanding belt and the V-belt meet
the respective pulleys.  Grinders made by Stephen Bader Company.

The machine described in 5a has three possible nip
points formed when the sanding belt comes into contact with rollers or pulleys.   The
nip point A e(Ex. C-6) was accessible to employees in back of the machine if they had
occasion to go back there and could possibly be reached from the front (Tr. 84, 88). 
A well was behind the machine (Tr. 187-188).  Nip point B was guarded by location
from the front but could be reached from the rear (Tr. 88).  The machine was operated
eight hours daily.  The operator stood two or three away from the machine while
operating it and did not put his hands in the point of operation (Tr. 86-87, 186,
189).  Once the machine is in operation, the employee has no reason to touch it (Tr.
35).  No injuries had been reported on the machine (Tr. 189-190).

In Stacey Manufacturing, Inc., 82 OSAHRC
14/B1, 10 BNA 1534, 1982 CCH �25,965 (No. 76-1656, 1982), the Review Commission held as
follows:

In order to establish a violation of 29 C.F.R.
�1910.212(a)(1), the Secretary must first prove the existence of a hazard. A.E.
Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD �21, 573 (No.
12501, 1977), aff'd,

Whether a hazard is presented must be determined from
all circumstances including the manner in which the machine function and how it is
operated by the employees.  Rockwell International Corp., 80 OSHARC 118/A2,
___ BNA OSHC , 1980 CCH OSHD �24,979 (No. 12470, 1980).  See also Syntron,
Inc., 83 OSAHRC 1/C1, 11 BNA OSHC 1158, 1984 CCH OSHD �26,840 (No. 81-1494-S,
1984); Skydyne, Inc., ___ OSAHRC , 11 BNA OSHC 1753, 1984 CCH OSHD �26, 761
(No. 80-5422, 1984).

Here the evidence fails to disclose any reason or occasion for an employee's hands
or other parts of the body to come into contact with one of the nip points.   The
Secretary has failed to carry his burden of proof.

The machine described described in item 5b also
contained unguarded nip points (Ex. C-8, C-9; Tr. 91, 102).  The machine was used
less than weekly by an employee (Tr. 104, 201).  If an employee were to get any part
of his body into the nip points; abrasions, cuts, pinches and amputations could result
(Tr. 105).  The operator stands in front of the machine and feeds material to a
sanding belt.  At that time, the operator  is about 37 inches from the nip point
(Tr. 199).  Any injuries on the sanders have been minor (Tr. 354).  Again, the
evidence does not reveal any occasions for employees to come into contact with the nip
points.

Complaint's alternative pleading to reallege item 1a
of serious citation number one is denied (Tr. 325).

Items 6a(a) and 6a(b) allege violations of 29 C.F.R.
�1910.215(a)(2) [[6/]]  in that two abrasive wheels used on grinding machinery were
not provided with safety guards which covered the conditions observed by the compliance
officer.  A hazard of injury is presented to the operator and any other person
nearby.

Respondent contends that the Packer bench grinder
[item 6a(a)] was not in use at the time of the inspection and was later discarded.  
The compliance officer did not see it in use, and a photograph taken the date of the
inspection shows the electric cord and plug wrapped around the machine (Ex. C-10; Tr.
109). Respondent's representatives on the walkaround inspection stated the machine was
used for short times one or two times weekly (Tr. 112). At the hearing, a supervisor
testified that the machine had not been used in a while; but, if needed, it would have
been used (Tr. 359, 376-377).  The conclusion to be drawn from the evidence is that
the grinder was available for use when needed.  The fact that it was not used more
frequently does not relieve respondent from such exposure which presented the hazard of a
wheel coming off or apart.

The shop built grinder in item 6a(b) was also used
infrequently, but employee exposure and the condition of the unguarded grinder were clear.

Item 6b alleges two violations, (a) and (b), of 29
C.F.R. � 1910.215(a)(4)[[7]] in that work rests on grinding machinery were not adjusted
closely to the wheel with a maximum opening of one-eight inch.  Such conditions
present hazards that fingers or work product may become caught between the rest and
wheel.  The evidence establishes the conditions alleged.  Respondent contends
the machines are used for only short periods of time and no injuries have resulted from
those machines.  The machines are regularly used and are available for use.  The
conditions of use present a hazard of injury giving rise to other than serious
violations. 

Item 6c alleges three instances of violations of 29
C.F.R. � 1910.215(b)(9)[[8]] as a result of the distances between the abrasive wheels and
the peripheral guards.  It is not disputed that the distance in each case was greater
than the one-quarter inch permitted by the regulation.  Respondent argues that there
have been no injuries, that the machines are not used frequently, employees used
protective equipment and in one instance the deviation from the standard was not
great.  Such guards are designed to contain fragments should an abrasive wheel break
(Tr. 119-120, 130).  Other than serious violations described in 6c(a), and 6c(c) were
established.

Item seven alleges three areas of the facility where
respondent failed to mark electrical dis connect boxes to indicated their purposes c ontrary
to 29 C.F.R. � 1910.303(f).[[9]] The evidence clearly shows that the electrical boxes on
the front wall of the iron ship, the assembly areas of the iron building and near the
shipping and receiving area of the fiberglass building were not so marked, nor were their
purposes evident from their locations.  The boxes control circuits to lights,
equipment and appliances.  Respondent points out that the machines also had ON-OFF
switches and plugs which could be pulled out of the wall outlets.   The alternate
means of disconnecting machinery does not obviate the necessity for properly marking the
electrical disconnect boxes.

Item 8a alleges a violation of 29 C.F.R. �
1910.305(b((1)[[10]] in that knockout plugs were not present in a temporary outlet near a
drill press.  The evidence establishes the facts alleged (ex. C-10).  Although
the outlet was used only for a short period of time once a week, a hazard was present at
that time (Tr. 144-146).  Fingers or tools could come into contact with live
electrical wires through the holes.  A violation has been established.

II

DOCKET NO. 83-921

CITATION NO. 1

The only citation of docket number 83-921 alleges a
violation of the noise conservation standard at 29 C.F.R. � 1910.95(c)[[11]] in that the
employer failed to administer a continuing, effective hearing conservation program where
employee noise exposure equaled or exceeded an eight-hour time-weighted sound level of 85
dBA.

The evidence established that the air file operator
in the fiberglass department was exposed to noise at 120.5% of the allowable exposure at
90 dBA.  The findings are sufficient to require a noise conservation program as
provided in 29 C.F.R. � 1910.95(c).

Respondent stipulated it did not have a continuing,
effective hearing conservation program within the meaning of the Act (Tr. 285). 
Respondent attacks the reliability of the findings. The industrial hygienist, Ms. Etterer,
however, demonstrated a through knowledge of her equipment and the procedures necessary to
take accurate and fair samples of the environment.  The equipment was properly
calibrated before and after use.  The findings were checked and calculations
carefully made.  She is found to be a competent and reliable expert witness.

Two legal problems are presented.  In Forging
Industry Association v. Secretary of Labor, 748 F.2d 210 (4th Cir. 1984), 12 BNA OSHC
1041, 1984 CCH OSHD � 27,102 (No. 83-1420, 1984), the Court of Appeals for the Fourth
Circuit held the hearing conservation amendment to be invalid.  It is not certain
that the matter has been exhausted so the issue will not be decided on that basis.  
The record is deficient of evidence that the employer knew or should have known of the
conditions, an element of proof of an other than serious as well as a serious
violation.  The Commission has held such evidence necessary because an employer
cannot be expected to have corrected a hazard of which he was unaware.

The alleged violation, therefore, must be
vacated.  L.M. Sessler Excavating & Wrecking, Inc.,  
OSAHRC,BNA OSCH, 1984 CCH OSHD � 26,943 (No. 79-2168, 1984).

FINDINGS OF FACT

1.    Respondent is a corporation with
a manufacturing facility located at Lovic Road, Birmingham, Alabama, where it is engaged
in the production of electric pole hardware.

2.    Pursuant to a warrant,
Compliance Officer Virginia Simmons and Industrial Hygienist Judith Etterer entered
respondent's plant on August 17, 1983, to inspect for compliance with the Occupational
Safety and Health Act.  Employees had been sent home on that day so the agents
returned on August 24 to observe operations and interview employees.  Noise
monitoring was conducted on August 25 (Tr. 14, 21, 94, 236, 246).

3.    In the air file department, an
overhead storage area was not marked to show the maximum weight load limit (Ex. C-1, C-2;
Tr. 26-34, 215).

4.    An employee worked under the
unmarked overhead storage area (Ex. C-2; Tr. 32-33, 150-153, 266).

5.    The overhead storage area was
constructed of three-to-four-inch steel post supports and heavy lumber flooring (Tr.
155-156, 331, 334).

6.    The overhead storage area was
used to store flat cardboard boxes.  The boxes usually exerted a weight of 50 pounds
per square foot on storage floor.  The maximum exerted was 75 pounds (Tr. 154, 157,
332).

7.    The maximum weight the overhead
storage area could hold was 200 pounds per square foot, but the storage area was not so
marked (Tr. 333).

8.    There were no signs of stress on
the storage area (Tr. 158, 334).

9.    A paint product marked
"Chem Glaze" was contained in a drum in the paint area (Ex. C-3; Tr. 38-39,
41-42, 335-556).

10.    The contents of the drum were
flammable (Tr. 38-39, 41, 161, 337-338, 369-370).

11.    Two employees regularly used
the  paint product Chem Glaze (Tr. 41-42, 44-45).

12.    The employees removed paint
from the drum at least once a day (Tr. 46, 165-166).

13.    The paint was removed from the
drum by means of a ball or turn valve not a self-closing valve (Tr. 47, 160, 215-216,
368-369).

14.    A non self-closing valve allows
vapors to escape the container presenting a hazard of fire (Tr. 49-50, 166).

15.    The chance of a spark igniting
the paint was low (Tr. 168).

16.    A plastic trash can in the
Fiberglas Department was used to store soiled cloth rags (Ex. C-4; Tr. 52, 217).

17.    The rags were used to wipe up
paint.  After the paint in the rags began to harden, the rags were no longer suitable
for use and were discarded into the plastic trash can (Tr. 53, 55, 58-60, 340).

18.    When the top of the trash can
was removed, the odor of paint was smelled; but the paint smell could have come from other
areas (Tr. 55, 69, 170).

19.    The paint wiped up by the rags
was flammable (Tr. 66/68, 218).

20.    The trash can contained only a
few rags; it was not as much as half-filled (Tr. 168).

21.    Tests performed by respondent
after the inspection showed that, when a flame was applied to a rag hardened with paint,
the rag charred and turned red but did not flame up (Tr. 345).

22.    Respondent's employees daily
placed an epoxy resin on pole line hardware products (Ex. C-5; Tr. 69-71, 78, 269).

23.    The epoxy resin was obtained
from Southeast Resin Company, Shalimar, Florida (Tr. 71, 174-175).

24.    Employees also used methylene
chloride and acetone in the area (Tr. 72, 73, 271).

25.    The epoxy resin, methylene
chloride and acetone are corrosive materials (Tr. 72, 73-74, 276-275, 282, 302).

26.    Respondent did not have an eye
wash or a quick drenching shower for the body (Tr. 78, 175).

27.    Respondent's building has a
water fountain and two bathrooms with sinks for men and women located near the area where
corrosive materials were being used (Tr. 177, 180, 292-293, 346-349).

28.    Bathroom sinks and drinking
water fountains provide hot and cold running water (Tr. 347).

29.    An asindales grinder
manufactured by Stephen Bader Company located in the cutting and grinding area of the
Fiberglass Building had three nip points (Ex. C-6; Tr. 80-83).

30.    A nip point is the point is at
which two moving pieces come together (Tr. 81).

31.    A sanding belt made of
reinforced paper created nip points as it rotated around rollers or pulleys of the grinder
(Tr. 182, 350).

32.    Two of the three nip points
were partially but not completely guarded by location (Tr. 82, 83, 86, 88, 186-189).

33.    Two of the nip points could be
reached from the rear, and one from the front (tr. 83, 88).

34.    Employees of respondent
operated the Asindales grinder eight hours a day grinding the ends of fiberglass rods (Tr.
87-88, 350).

35.    The sanding belt breaks an
average of twice a day (Tr. 350).

36.    Respondent performed a test
shortly after the inspection by placing an object five-eights inch in diameter in the nip
point between the wheel and the sanding belt at which time the belt broke.  The test
has no validity in establishing the potential damage to a human finger as a fiberglass rod
is of much harder material (Tr. 352, 371-372).

37.    An operator stands three or
four feet away and feeds rods into the machine but has no reason to touch the machine
while it is operating (Tr. 350, 353).

38.    The only occasion for a person
to be behind the machine is to change out a broken belt (Tr. 353).

39.    Three grinders in the machine
shop manufactured by Stephen Bader Company had exposed nip points created by a sanding
belt and a V-belt on each moving over rollers or pulleys (C-8, C-9; Tr. 91, 101, 190).

40.    The four nip points were not
guarded (Tr. 101-102, 200-202).

41.    The grinder in the machine area
was available for use and was used less than weekly (Tr. 105, 220).

42.    If a person got any part of his
body into nip points, the result could be abrasions, cuts, pinches and amputations (Tr.
105, 202).

43.    The nip points of the grinders
could be guarded (Ex. C-9; Tr. 106).

44.    If the sanding belts broke, the
machine stopped (Tr. 194, 356).

45.    Respondent performed a test
after the inspection during which a glove was placed between the belt and pulley at which
time the belt broke, but it is not known how far the glove entered into the nip point
before the belt was broken (Tr. 356, 374-376).

46.    A Packard bench grinder did not
have a guard over the spindle and nut and flange projection (Ex. C-10; Tr. 110).

47.    At the time of the inspection,
the grinder was available for use and was used one or two times weekly (Tr. 111-112, 204).

48.    The hazards presented by the
unguarded machine include the wheel coming off or shattering thereby striking someone (Tr.
113-114).

49.    The photograph of the machine
shows the electrical plug wrapped around the machine (Ex. C-10).

50.    After the inspection, the
Packard bench grinder was removed from operation (Tr. 203-204, 357-359).

51.    The grinder was used to grind a
level edge on fiberglass rods (Tr. 222).

52.    A grinder in the machine shop
of the Iron Building had an unguarded flange projection and spindle end nut (Ex. C-11; Tr.
115-116).

53.    The grinder described above was
available for use and was used one or two times weekly (Tr. 117, 205, 362).

54.    Respondent's representatives
Randy Hall and Mr. Argo agreed the grinder presented a potentially hazardous condition and
requested sufficient time to have a guard made (Tr. 117).

55.    On the date of the inspection,
the work rests of a dual-wheel Dayton bench grinder located in the machine shop in the
Fiberglass Building were improperly adjusted.  The left work rest was three-quarters
inch from the wheel.  The right work rest was one-quarter inch from the wheel (Ex.
C-12; Tr. 126, 365).

56.    The grinder was used one to two
times weekly (Tr. 127).

57.    There were no tongue guards on
either wheel of the Dayton bench grinder at the time of the inspection, but such guards
were added prior to a discovery inspection in August 1984 (Ex. C-12; tr. 130, 207-208).

58.    The improperly adjusted work
rests present a hazard that work may become jammed against the wheel causing it to break
or that fingers may be pulled against the wheel (Tr. 208).

59.    A Dayton bench grinder in the
machine shop of the Iron Building had an improperly adjusted work rest.  The work
rest was three-quarters inch from the wheel (Ex. C-13; Tr. 133).

60.    The grinder was used regularly
(Tr. 134-135).

61.    The left tongue guard on the
Dayton bench grinder in the machine shop of the Iron Building was three-quarters inch from
the wheel (Tr. 135-136).

62.    The same dual-wheel shop-built
grinder referred to in item 6a(b) also lacked a tongue guard (Ex. C-11; Tr. 119, 121).

63.    A tongue guard is an adjustable
protrusion from the top of the peripheral guard designed to protect an operator should the
wheel break (Ex. C-11; Tr. 119-120).

64.    The distance between the
abrasive wheel and the edge of the peripheral guard where the tongue guard should have
been attached was three inches (Tr. 121).

65.    During the inspection,
electrical disconnect boxes on the front wall of the Iron Shop were not marked to show the
electrical systems which they controlled (Tr. 136-137, 308).

66.    The handles of the disconnect
boxes were in the ON position and the electrical service was in use (Tr. 136, 309).

67.    The location or arrangement of
the disconnect boxes did not reveal the equipment served by the electrical boxes (Tr.
137).

68.    Respondent's representatives
acknowledged that the electrical boxes controlled the electric service, but they were
uncertain exactly which equipment was served from each box (Tr. 136-137, 139, 213, 308).

69.    Individual machines could be
disconnected by unplugging it from the wall outlet or by means of the ON-OFF switch (Tr.
211-212).

70.    Electrical disconnect boxes in
the assembly area of the Iron Building were in service but were not marked to show their
purposes (Tr. 139-140, 313).

71.    The electric disconnect boxes
were not so located or arranged so that their purpose was evident (Tr. 140, 313).

72.    The disconnect boxes in the
Assembly Area control the main source of electrical service and heaters, fans and machines
(Tr. 311-315).

73.    Electrical disconnect boxes in
the shipping and receiving area were in operation but were not marked to show what they
controlled (Ex. C-14; Tr. 142-144, 314).

74.    The boxes were not located or
arranged so that their purposes were evident (Tr. 143).

75.    The electrical boxes controlled
circuits to drill presses, lights and oven (Tr. 143).

76.    Knockout plugs were missing
from a temporary electrical outlet in the Fiberglass Building (Ex. C-10; Tr. 144-146).

77.    A knockout plug is a piece of
metal which can be pushed out to allow conduit into the box (Tr. 146).

78.    The temporary outlet was
energized and available for use.  The outlet was used for five minutes or less one
day a week (Tr. 145-146, 213-214).

79.    The absence of knockout plugs
would permit fingers or tools to come into contact with live electrical wires (Tr. 146).

80.    Judith Shell Etterer is an
industrial hygienist who has been employed by OSHA for nine years.  She holds a B.S.
degree in chemistry with a minor in biology.  She has completed all course work for a
Master of Science degree in industrial hygiene and was writing her thesis.  In
addition, she had completed approximately 30 training courses, primarily in industrial
hygiene and occupational health (Tr. 230-232, 236).

81.    On August 24, Ms. Etterer took
screening samples for noise levels with a sound level meter (Tr. 237-238, 242).

82.    On August 25, full-shift
monitoring was conducted to determine noise exposure of the air file operator, Mr. Edward
Self (Ex. C-15; Tr. 246-247, 286-287).

83.    The air file operator used a
pneumatic tool called an air file to knock burrs off of castings.  The operation of
the tool was intermittent (Ex. C-16; Tr. 261, 263).

84.    The noise was monitored by a
dosimeter which was placed on the employee (Tr. 248, 297-289).

85.    Prior to and after its use, the
dosimeter was calibrated (Tr. 249-250, 260-261).

86.    The dosimeter remained on the
air file operator for a total period of 437 minutes beginning at 5:20 a.m. (Tr. 252, 262).

87.    The noise readings were made in
four segments; 5:20 a.m. to 7:30 a.m., 7:30 a.m. to 10:00 a.m., 10:42 a.m. to 12:05 p.m.,
and 12:06 p.m. to 1:20 p.m. (Tr. 252-253, 258-260).

88.    The dosimeter is programmed to
show the percentage of noise and employee has been exposed to based upon 90 decibels for
an eight-hour time-weighted average (Tr. 254, 256-257).

89.    By adding the readings for each
segment, the total exposure was obtained (Tr. 258-260).

90.    The air file operator was
exposed to a noise level of 92.02 decibels on the A-scale (Tr. 255, 291).

91.    The noise levels were typical
or normal during the day the sampling was performed (Tr. 262).

92.    On August 17, 24 and 25, 1983,
the dates of the inspection, respondent did not have a continuing, effective hearing
conservation program within the meaning of � 1910.95(c) (Tr. 285-286).

CONCLUSIONS OF LAW

1.    Respondent is subject to the Act
and this proceeding.

2.    Respondent violated the
following items under conditions constituting other than serious violations:

Docket No. 83-920

Citation No. 2

Item 2a

Items 6a, 6b and 6c

Item 7

Item 8a

3.    Respondent's motions to dismiss
are denied as to the foregoing violations.

4.    Respondent did not violate the
following items:

Docket No. 83-920

Citation No. 1

Items 1a and 1b

Citation No. 2

Item 1

Item 2b

Item 3

Item 4

Items 5a, 5b and 5c

Item 8b

Docket No. 83-921

Citation No. 1

ORDER

It is ORDERED:

The items listed in paragraph two are affirmed; those
listed in paragraph four are vacated.

Dated this 16th day of April, 1985.

JOE D. SPARKS

Judge

CONTINENTAL ELECTRIC COMPANY,

APPLICANT,

v.

SECRETARY OF LABOR,

RESPONDENT.

OSHRC Docket Nos.

83-0920 and 83-0921

(Consolidated)

APPEARANCES:

L.K. Cooper, JR., Esquire, Office of the Solicitor,
U. S. Department of Labor, Birmingham, Alabama, on behalf of respondent.

Winston B. McCall, Jr., Esquire, Birmingham, Alabama,
on behalf of appellant.

DECISION AND ORDER

SPARKS, Judge:    This proceeding was
instituted by Continental Electric Company for legal fees and expenses under the Equal
Access to Justice Act, as amended.

One of the two captioned cases alleged safety issues
and the other involved alleged violations of the hearing conservation standard.   The
cases were consolidated under Docket No. 83-0920.

Applicant prevailed on several safety items,
including some which were withdrawn by the Secretary prior to decision, but lost on the
hearing conservation issue and several safety items.

This case was brought by applicant to recover
reasonable attorney fees and expenses.

Pertinent portions of 28 U.S.C.A. � 2412 provide as
follows:

(d) (1) (A) except as otherwise
specifically provided by statute, a court shall award to a prevailing party other than the
United States fees and other expenses,...(a), incurred by that party...including
proceedings for judicial review of agency action, brought by or against the United States
in any court having jurisdiction of that action, unless the court finds that the position
of the United States was substantially justified or that special circumstances make an
award unjust.

---

(B) A party seeking an award of
fees and other expenses shall, within thirty days of final judgment in the action, submit
to the court an application for fees and other expenses which shows that the party is a
prevailing party and is eligible to receive an award under this subsection, and the amount
sought, including an itemized statement from any attorney or expert witness representing
or appearing in behalf of the party stating the actual time expended and the rate at which
fees and other expenses are computed.  The party shall also allege that the position
of the United States was not substantially justified.  Whether or not the position of
the United States was substantially justified shall be determined on the basis of the
record (including the record with respect to the action or failure to act by the agency
upon which the civil action is based)  which is made in the civil action for which
fees and other expenses are sought.

(C) The court, in its discretion,
may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the
extent that the prevailing party during the course of the proceedings engaged in conduct
which unduly and unreasonably protracted the final resolution of the matter in
controversy.

(2) For the purposes of this
subsection--

(A) "fees and other
expenses" includes the reasonable expenses of expert witnesses, the reasonable cost
of any study, analysis, engineering report, test, or project which is found by the court
to be necessary for the preparation of the party's case, and reasonable attorney fees (The
amount of fees awarded under this subsection shall be based upon prevailing market rates
for the kind and quality of the services furnished, except that (i) no expert witness
shall be compensated at a rate in excess of the highest rate of compensation for expert
witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess
of $75 per hour unless the court determines that an increase in the cost of living or a
special factor, such as the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.);

(B) "party" means (i) an
individual whose net worth did not exceed $2,000,000 at the time the civil action was
filed, or (ii) any owner of an unincorporated business, or any partnership, corporation,
association, unit of local government, or organization, the net worth of which did not
exceed $7,000,000 at the time the civil action was filed, and which had not more than 500
employees at the time the civil action was filed;....

The Secretary of Labor does not dispute that
applicant is a qualified party and was the prevailing party on several items but contends
it did not prevail on all items for which expenses are claimed.

The Secretary does also contend, however, that its
position was substantially justified, that applicant unduly and unreasonably protracted
the proceedings, that applicant failed to prove the amount of attorney's fees and
expenses, and special circumstances make an award unjust in this case.

I

QUALIFIED PARTY

Continental submitted a financial statement showing
net worth of less than five million dollars.  Applicant also asserts it had fewer
than 100 employees.

II

THE ITEMS AT ISSUE AND THE PREVAILING PARTY

Applicant manufactured components for the electric
transmission industry at its facility on Lovic Road, Birmingham, Alabama. Pursuant to an
inspection warrant, Compliance Officer Virginia Simmons and Industrial Hygienist Judith
Etterer went to applicant's plant to conduct an inspection on August 17, 1983.  The
employees were sent home on that day, but the inspection did take place on August 24. On
September 9, 1983, two citations alleging safety violations were issued as follows:

Serious Citation No. 1

Item 1a, 29 C.F.R. � 1910.219(d) (i)

(a) In Machine Shop in Iron
Building-unguarded pulleys on each of three small floor grinders made by Stephen Bader
Company.

Item 1b, 29 C.F.R. � 1910.219(e)(3)(i)

(a) In the Machine Sop (sic)
in the Iron Building - unguarded 'v' belt on each of three small floor grinders made by
Stephen Bader Company.

Proposed penalty $210.

Other Citation No. 2

Item 1, 29 C.F.R. � 1610.22(d) (1)

(a) In air File Department in
Fiberglass Building - overhead storage area not marked to indicate maximum weight load
limit.

Item 2a, 29 C.F.R. � 1910.106(e) (2) (iv) (d)

(a) In the paint Department in the
Fiberglass Building - paint was not drawn through a self-closing valve.

Item 2b, 29 C.F.R. � 1910.106(e)(6)(i)

(a) At the Paint Department in
the Fiberglass Building - container of flammable "Chemglaze" paint was not
grounded.

Item 3, 29 C.F.R. � 1910.106(e)(9)(i)

(a) Paint area in the Fiberglass
Department-rags used to clean up flammable paints were stored in a covered plastic
container.

Item 4, 29 C.F.R. � 1910.151(c)

Facilities for quick drenching or flushing of the
eyes and body were not provided for immediate emergency use in the fiberglass assembly
area.

Item 5, 29 C.F.R. � 1910.212(a)(1)

Machine guarding was not provided to protect
operator(s) and other employees from hazard(s) created by: ingoing nip points:

(a) Cutting and grinding area in
Fiberglass Building - nip points where sanding belt meets pulleys were not guarded.  
Machine made by Stephen Bader Company.

(b) In Machine Shop in Iron
Building-unguarded nip points on each of three small floor grinders where sanding belt
meets pulleys.  Grinders made by Stephen Bader Company.

(c) In Assembly Area of Iron
Building-unguarded nip points on vertical table grinder where sanding belt meets pulleys.

Item 6a, 29 C.F.R. � 1910.215(a)(2)

Abrasive wheel(s) used on grinding machinery were not
provided with safety guard(s) which covered the spindle end, nut, flange projections:

(a) Grinding area in Fiberglass
Building-Packard Bench Grinder did not have a guard over the spindle end, nut projection.

(b) At Machine Shop in Iron
Building - shop built dual wheel grinder did not have guards over the spindle end, nut,
flange projections.

Item 6b, 29 C.F.R. � 1910.215(a) (4)

Work rest(s) on grinding machinery were not adjusted
closely to the wheel with a maximum opening of one-eighth inch:

(a) At corner of Machine Shop in
Fiberglass Building - work rests on Dayton Beach Grinder were in excess of 1/8 inch from
the wheel.

(b) In Machine Shop in Iron
Building - work rest on Dayton Bench Grinder was 3/4 inches from grinding wheel.

Item 6c, 29 C.F.R. � 1910.215(b) (9)

The distance between the abrasive wheel periphery(s)
and the adjustable tongue or the end of the safety guard peripheral member at the top
exceeded one-fourth inch:

(a) In Machine Shop in Iron
Building - tongue guard on left wheel of Dayton Bench Grinder was 3/4" from wheel.

(b) At corner of Machine Shop in
Fiberglass Building - left side grinding wheel on Dayton Bench Grinder was 1 1/2"
from outer peripheral guard.  Right side wheel was 1/2" from outer peripheral
guard.

(c) In Machine Shop in Iron
Building - on dual wheel, shop built grinder, both wheels were 3" from outer
peripheral guard.

Item 7, 29 C.F.R. � 1910.303(f)

(a) On front wall of Iron Shop -
electrical disconnect boxes were not marked to indicate purpose.

(b) Assembly Area of Iron
Building-electrical disconnect boxes were not marked to indicate purpose.

(c) By shipping and receiving in
Fiberglass Building - electrical disconnect boxes were not marked to indicate purpose.

Item 8a, 29 C.F.R. � 1910.305(b)(1)

(a) At Grinding Area in
Fiberglass Building-knockout plugs were missing from the temporary outlet hanging on wall
by drill presses.

Item 8b, 29 C.F.R. � 1910.305(g)(l)(i)

(a) In Grinding area of Fiberglass
Building-flexible cord hanging on nails on wall was used to supply power for drill
presses.

The total penalty proposed for both citations was
$210.

Prior to the trial on the merits, the Secretary
withdrew item 1b of the serious citation and items 2b, 5c and 8b of the other than serious
citation.  After trial and decision, the applicant prevailed on the following items:

Serious Citation No. 1

Item 1a

Other Than Serious Citation No. 2

Items 1, 2b, 3, 4, 5a, 5b, 5c, 8b

The Secretary prevailed on the following items:

Serious Citation No. 1

None

Other Than Serious Citation No. 2

Items 2a, 6a, 6b, 6c, 7, 8a

None of the proposed $210 penalty was assessed.

III

WAS THE POSITION OF THE SECRETARY SUBSTANTIALLY
JUSTIFIED?

The Secretary offered evidence to support its
position regarding each alleged violation including those on which it did not prevail.
  The factual evidence and legal precedence are discussed in detail in the Decision
and Order of the undersigned dated April 16, 1985.  A total of 86 findings of fact
were made.  Of course, the position of the Secretary was more firmly supported and
more reasonable regarding some items than others.

Although the government is certainly not responsible
for fees and expenses as to every issue upon which it does not prevail, it seems clear
that the 1985 amendments to the EAJA intended to increase the government's burden of
showing it was substantially justified in its position.  A review of the findings,
decision and briefs of the parties establishes in this case that the Secretary has not
shown it was substantially justified within the meaning of the EAJA, regarding any of the
issues upon which the applicant prevailed.  See Sierra Club v. Secretary of Army, 280
F2.d 513 (1st Cir. 1987).

The Secretary makes essentially the same arguments to
establish that her positions were substantially justified as she did originally to
establish the existence of violations. While the Secretary's case in each instance was not
frivolous nor arbitrary or capricious, it had weaknesses of fact or law, set forth in the
decision, which renders it not substantially justified for the purposes of the EAJA as
amended.

IV

AMOUNT OF AWARD   

Applicant submitted a claim for $9,200 attorney fees
and $676 expenses with its brief received March 17, 1986.  The claim for attorney
fees were subsequently reduced to $7,467, but an additional claim for fees of $3,934 was
made for time spent preparing its claim under the EAJA.

Applicant's attorney did not maintain logs precisely
describing the work performed on the cases so there is no way to state with any degree of
certainty how much time was spent on the various items upon which it prevailed and how
much time was spent on items which were affirmed.  The attorney originally claimed a
total of 206.5 hours defending all items which he agreed should be reduced to 184.5
hours.  He arbitrarily assessed 50% of the total hours as work on the serious
citation on which applicant prevailed and claimed $70 per hour for 92.25 hours or a total
of $5,166.  For the other than serious citation, he claimed $807 (11.53 hours each)
for each time on which applicant prevailed for a total of $4,034.  It is certain that
the time spend on items upon which applicant prevailed is, at best, only a rough guess.
  The total expenses of $965 were allocated according to the same formula for a total
of $676. 

The Act provides only for the payment of
"reasonable" attorney fees.  The time claimed by applicant's attorney is
excessive considering the relatively simple factual and legal issues involved in these
cases.  The extensive discovery, briefs and other paperwork generated by this case
suggest that applicant's attorney likely did spend all the hours claimed working on the
case.  But it was unreasonable for any attorney to spend so much time preparing,
trying and briefing the issues involved here.  That is particularly true of Serious
Citation No. 1 which involved only two simple items, one of which was withdrawn prior to
hearing.  The only alleged serious violation tried charged that applicant had
"... unguarded pulleys on each of three small floor grinders made by Stephen Bader
Company."  Applicant is entitled to fees for time spent on the item which was
withdrawn (an unguarded v-belt).  For work on that citation, applicant claims to have
worked 92.55 hours for a fee of $5,166.  The claim is unreasonable in time and money.
  The factual and legal contentions were very simple and the proposed penalty was
only $210.  Only "reasonable" fees can be recovered the Act. William B.
Hopke Co., 12 BNA OSHC 2159 (No. 81-206, 1986). Even considering that applicant's
attorney is not experienced in the Occupational Safety and Health Act, no more than 20
hours would be considered reasonable for work on the serious citation.

Applicant was the prevailing party on four items and
subparts to two items of the other than serious citation.  Applicant's attorney
claims fewer hours for his work on the other than serious citation than on the serious one
although more items were involved.  As more other than serious items were cited, it
is reasonable that more time was required to defend against the charges, therefore, 30
hours is found to constitute a reasonable expenditure of time for such items.  It is
concluded that 50 hours is a reasonable time for defending against the serious and other
than serious citations.  That time multiplied by the stipulated prevailing fee of $70
per hour yields a reasonable fee of $3,500. A further reasonable attorney's fee of $700 is
justified for 10 hours work preparing applicant's EAJA claim.  Its claim for $3,934
for such is patently unreasonable.  Expenses of $676 appear supported.

V

SPECIAL CIRCUMSTANCES

The Secretary contends that "special
circumstances" make any award unjustified.  The Secretary points out that
abusive language and subterfuge were used to impede the investigation and intimidate the
compliance officers.  Applicant's officials certainly did not display a cooperative
attitude or good manners, and some of their actions might have been viewed as threatening
the female inspectors.  But, there is no evidence of any illegal actions or that
applicant prevented OSHA from conducting a complete inspection of its facilities.  
Applicant's actions do not rise to the level which would bar a recovery of attorney fees
and expenses.]

VI

DID APPLICANT UNDULY AND UNREASONABLY PROTRACT THE
PROCEEDINGS?

Without question, the amount of discovery, motions
and trial time was far above average for a case involving such relatively simple issues
and so small ($210) proposed penalty.  The Secretary implies that applicant
intentionally prolonged the case to tie-up the Secretary's legal resources.  Without
doubt, the case was exhaustively contested, but there is no evidence that it was done with
such evil motive.  It may be that much of the excessive time was due to respondent's
attorney's unfamiliarity with proceedings under OSHA.  In any event, the time claimed
by applicant's attorney was beyond the bounds of reasonableness and is so treated when
determining the amount of reasonable attorney fees for which reimbursement is due.

The above constitute findings of fact.

CONCLUSIONS OF LAW

1.    Applicant is a qualified party
eligible for benefits within the meaning of the EAJA.

2.    Applicant was the prevailing
party on both items of the serious citation and four items and two partial items of the
other than serious citations.

3.    The position of the Secretary
was not substantially justified.

4.    Applicant had reasonable
attorney's fees of $4,200 and expenses of $676 defending against the charges on which it
was the prevailing party.

ORDER

Applicant is entitled to reasonable attorney's fees
of $4,200 and expenses of $676.

Dated this 14th day of September, 1989.

JOE D. SPARKS

Judge

FOOTNOTES:

[ [1/]] The standard provided in pertinent part as
follows:

�1910.95 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...

Table G-16--- Permissible noise Exposures

The table referred to above is not available in this
format.

Please telephone the Review Commission Public
Information Office, 202-606-5398, to request a paper copy; TTY 202-606-5386; FAX:
202-606-5050; email: [email protected]

(c) Hearing conservation program. (1) The employer
shall administer a continuing, effective hearing conservation program, as described in
paragraphs (c) through (o) of this section, whenever employee noise exposures equal or
exceed an 8-hour time-weighted average sound level (TWA) of 85 decibels.....

[[2/]] A hearing conservation program, as prescribed
in �1910.95(c)-(o), consists of a number of measures to prevent or reduce the incidence
of hearing loss.  Among other requirements, the employer must administer audiometric
testing to employees exposed to an 8-hour time-weighted average of 85 or more decibels.
  Hearing protection devices such as earmuffs or plug \s must be made available to
these employees, and the employer must insure that employees who show a certain degree of
hearing loss wear these hearing protectors.  There are additional requirements for
training employees in the use and care of hearing protectors, and some information and
recordkeeping provisions.

[[3/]] Judge Sparks found that the air file operator
was exposed to varying levels of noise that were equivalent to a constant noise level of
92.02 decibels, that these levels were typical or normal for the air file operation, and
that Continental did not have a hearing conservation program when inspection took places
that is , the judge found that the condition in Continental plant fail to comply with the
terms of the hearing conservation standard.  In vacating the citation for failure of
the Secretary to prove knowledge, the judge stated that the record did not show the
Continental knew or should have known of the "conditions" at issue.
  Although the judge decision is not specific, the parties agree that their knowledge
dispute is limited to the question of whether Continental knew or could have known of the
existence  of excessive noise exposure.

[[4/]] Review was also directed on whether employer
knowledge is a proper element of a nonserious violation of the Act and, if so, whether it
is proper to place on the Secretary the burden of proving knowledge.

We decline to disturb the well-settled and
longstanding precedent holding that knowledge of conditions that fail to comply with a
standard is a necessary prerequisite to finding an employer in violation of the Act,
regardless of the characterization of the violation of the Act, regardless of the
characterization of the violation, and that the Secretary has the burden of proving all
elements of a violation, including knowledge.  E.g., Horne Plumbing & Heating Co.
v. OSHRC, 528 F.2d 564, 570-71 (5th Cir. 1976) (requiring Secretary to prove knowledge,
even of nonserious violations, so as to avoid imposing strict liability on employers);
R.D. Anderson Constr. Co., 12 BNA OSHC 1665, 1668, 1986-87 CCH OSHD � 27,500, p. 35,640
(No. 81-1469, 1986); Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH
OSHD � 25,358 (No. 16147, 1981) (lead and concurring opinions).  See Dun-Par
Engineered Form Co., 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD � 27,650, p. 36,019 (No.
79-2553), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988) (elements of the
Secretary's burden). 

[[5/]] Noise levels of this magnitude are substantial
and are capable of causing hearing loss.  See Castle & Cooke Foods, 77 OSAHRC
87/A2, 5 BNA OSHC 1435, 1439-40, 1977-78 CCH OSHD � 21,854, pp. 26,330-31 (No. 10925,
1977), aff'd, 692 F.2d 741 (9th Cir. 1982).

[[6/]] There is no first-hand testimony of the extent
to which the air file was used on days other than the inspection.  The evidence that
the air file was used at least as much on other days as it was during the inspection
consists of a statement the air file operator made to the Secretary's industrial
hygienist.  As an out of court declaration, the employee's statement inherently has
less probative value than would the employee's own testimony and is not necessarily
entitled to dispositive weight.  Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1123,
1986-87 CCH OSHD � 27,869, p. 36,540 (No. 80-345, 1987). 

In this case, however, Continental does not question
the employee's statement and does not contend that is should not be taken at face value.
  Rather, Continental expresses agreement with the summary of the case set forth in
the Secretary's brief, in which the Secretary contends that the noise levels measured
during the inspection were typical or normal.  Accordingly, the parties in effect
have stipulated that the noise levels at the time of the inspection are representative of
those on other days.  We also note that, in the absence of evidence to the contrary,
we would consider the Secretary's measurements to be probative of other days.
  Seaboard Foundry, Inc., 83 OSAHRC 23/C7, 11 BNA OSHC 1398, 1401, 1983-84 CCH OSHD
� 26,552, p. 33,774 (No. 77-3964, 1983).

[[1]] Section 1910.22)(d)(1) of 29 C.F.R. provides as
follows:

floor loading protection. (1) In every building or
other structure, or part thereof, used for mercantile, business, industrial, or storage
purposes, the loads approved by the building official shall be marked on plates of
approved design which shall be supplied and securely affixed by the owner of the building,
or his duly authorized agent, in a conspicuous place n each space to which they
relate.  Such plates shall not be removed or defaced but, if lost, removed, or
defaced, shall be replaced by the owner or his agent.

[[2]] Section 1910.106(e)(2)(iv)(d) of 29 C.F.R.
states as follows:

Flammable or combustible liquids shall be drawn from
or transferred into vessels, containers, or portable tanks within a building only through
a closed piping systems, from safety cans, by means of a device drawing through the top,
or from a container or portable tanks by gravity through an approved self-closing
valve.  Transferring by means of air pressure on the container or portable tanks
shall be prohibited.

[[3]] Section 1910.106(e)(9)(iii) of 29 C.F.R. reads
as follows:

Waste and residue.   Combustible waste
material and residues in a building or unit operation area shall be kept to a minimum,
stored in covered metal receptacles and disposed of daily.

[[4]] Section 1910.15(c) of 29 C.F.R. provides as
follows:

Where the eyes or body of any person may be exposed
to injurious corrosive materials, suitable facilities for quick drenching or flushing of
the eyes and body shall be provided within the work area for immediate emergency use.

[[5]] Section 1910.212(a)(1) of 29 C.F.R. states as
follows:

(a) Machine guarding --(1) Types of
guarding .  One or more methods of machine guarding shall be provided to protect
the operator and other employees in the machine area from hazards such as those created by
point of operation, ingoing nip points, rotating parts, flying chips and sparks. 
Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic
safety devices, etc.

[[6]] Section 1910.215(a)(2) of 29 C.F.R. reads as
follows:

Guard design. The safety guard shall cover the
spindle, 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, except:

[[7]] Section 1910.215(a)(4) of 29 C.F.R. states as
follows:

Work rests.  On offhand grinding
machines, work rests shall be used to support the work.  They shall be of rigid
construction and designed to be adjustable to compensate for wheel wear.  Work rests
shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to
prevent the work from being jammed between the wheel and the rest, which may cause wheel
breakage.  The work rest shall be securely clamped after each adjustment.  The
adjustment shall not be made with the wheel in motion.

[[8]] Section 1910.215(b)(9) of 29 C.F.R. states as
follows:

Exposure adjustment.   Safety guards of
the types described in subparagraphs (3) and (4) of this paragraph, where the operator
stands in front of the opening, shall be constructed so that the peripheral protecting
member can be adjusted to the constantly decreasing diameter of the wheel.  The
maximum angular exposure above the horizontal plane of the wheel spindle as specified in
paragraphs (b)(3) and (4) of this section shall never be exceeded, and the distance
between the wheel periphery and the adjustable tongue or the end of the peripheral member
at the top shall never exceed one-fourth inch. (See Figures 0-18, 0-19, 0-20, 0-21, 0-22,
and 0-23.)

[[9]] Section 1910.303(f) of 29 C.F.R. provides as
follows:

Identification of disconnecting means and
circuits.   Each disconnecting means required by this subpart for motors and
appliances shall be legibly marked to indicate its purpose, unless located and arranged so
the purpose is evident.  Each service, feeder, and branch circuit, at its
disconnecting means or overcurrent device, shall be legibly marked to indicate its
purpose, unless located and arranged so the purpose is evident.  These marking shall
be of sufficient durability to withstand the environment involved.

[[10]] Section 1910.305(b)(1) of 29 C.F.R. reads as
follows:

Cabinets, boxes, and fittings. (1) Conductors
entering boxes, cabinets, or fittings. Conductors entering boxes, cabinets, or
fittings shall be protected from abrasion, and openings through which conductors enter
shall be effectively closed.   Unused openings in cabinets, boxes, and fittings shall
also be effectively closed.

[[11]] Section 1910.85(c) of 29 C.F.R. states:  Hearing
conservation program. (1) The employer shall administer a continuing, effective
hearing conservation program, as described in paragraphs (c) through (o) of this section,
whenever employee noise exposures equal or exceed an 8-hour time-weighted average sound
level (TWA) of 85 decibels measured on the A scale (slow response) or, equivalently, a
dose of fifty percent.  For purposes of the hearing conservation program, employee
noise exposures shall be computed in accordance with Appendix A and Table G-16a, and
without regard to any attenuation provided by the use of personal protective equipment.

(2) For purposes of paragraphs (c) through (n) of
this section, an 8-hour time-weighted average of 85 decibels or a dose of fifty percent
shall also be referred to as the action level.