Art Specialty Company
Lamp manufacturer receives mixed ruling and $5,700 penalty
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA cited Art Specialty Company, a 29-employee lamp manufacturer, for numerous serious and other-than-serious conditions. The judge vacated a stairway citation because the Secretary did not prove employees used the stairs, and vacated the metal-shear portion of a machine-guarding item because the operator's hands stayed outside the danger zone. He affirmed the remaining violations involving an unguarded riveting machine, unsecured drill presses, a grinder without a work rest, unguarded belts and pulleys, excessive compressed-air pressure, missing lockout procedures, gas-cylinder storage, hazard communication, injury logs, fire-extinguisher training, and unlabeled circuits. The company had no prior violation history and immediately corrected the cited conditions, which supported a partial good-faith penalty reduction. Total penalties of $5,700 were assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.24(h), 1910.212(a)(3)(ii), 1910.212(b), 1910.215(a)(4), 1910.219(d)(1), 1910.219(e)(1)(i), 1910.242(b), 1910.147(c)(4)(i), 1910.253(b)(2)(iv), 1910.253(b)(4)(iii), 1910.1200(e)(1), 1910.1200(h), 1904.2(a), 1910.157(g)(1), and 1910.303(f)
- Outcome: Citation 1 item 1 and item 2(a) were vacated; the remaining items were affirmed with $5,700 in total penalties.
- Key point: Employee exposure must be proven for machine and stair hazards, while prompt abatement can support a penalty reduction without eliminating otherwise established violations.
Full text (OSHRC public release)
OCCUPATIONAL s~~~N~~~E~~~~~c~EVIEW CohdhhISSION
One Lafayette Cents
1120 20th Stf88t, N.W. - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-1227
ART SPECIALTY COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATivE LAW JUDGE’S DECISION .’
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on May 7 .1993. The decision of the Judge
will become a final order of the Commikon on June 7, 1993 unless a
Commission member directs review of the decision on or before that date. ANY -
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW
Any such tition should be received by the Executive Secret on or before
May 27, 1!E3 in order to ermit sufficient time for its review.Y ee .
Commission Rule 91,29 6 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health .
Review Commission .
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
hawng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: May 7, 1993
DOCKET NO. 924227
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. A&k,.-
Counsel for Re ?M& Trial Liti ation
Office of the &&o~, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
John H. Secaras, Esq.
Re lonal Solicitor
Of&e of the Solicitor U.S. DOL
230 South Dearborn St.
Chicago, IL 60604
Robert A. Motel, Esq.
4433 West Touhy Avenue
Suite 465
LincolIlwood, IL 60646
James A. Cronin
Administrative Law Jud e
Occupational Safe9 an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO B0204 3582
00103465274:OS
UNITED STATES
Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVI EW COMMISSION
1244 N. Sf’EER BOCILEVARD
ROOM 250
DENVER, COLORADO80204-3582
t
. PHONE: FM.
COM (303) ml-2261 COM (303) 844037SS
FTS (303) 844-2281 RS (303) 844-37SS
I
SECRETARY OF IABOR, I
Complainant, I
I
v. I OS& DOCKET NO. 924227
I
ART SPECIALTY COMPANY, I
Respondent. I .
APPEARANCES:
. Helen J. Schuitmaker,Esq., OfIia of the Solicitor,
us. Departmentof Labor, chiqo, nllnois .
Robert A Motel, Esq., 4433 West TouhyAvenue,Chicago, Illinois
Before: Administrative Law Judge James A. Cronin, Jr.
DECISION AND ORDER
.
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C. Section 651 g seq.; hereafter called the “Act”).
Respondent, Art Specialty Company (AX), maintains a workplace at 3720 North
Milwaukee Avenue, Chicago, Illinois, where it is engaged in manufacturing lamps. ASC
admits it employs workers in a business affecting commerce and is an employer subject
to the Act.
Following an inspection of AX’s workplace by the Occupational Safety and
Health Administration (OSHA) on February 12, 1992, ASC was cited for eleven
“serious,” and two “other than serious” violations of the general industry standards at
@1910, et seq., as well as for one “other than serious” violation of the recordkeeping
regulations.
.
BY filing a timely notice of contest, m brought this proceeding before the
Occupational Satiety and Health Review commission (chmission). on January 26,
1993 a he&m@MIS held in Chicago, Illinois. Only the Respondent submitted a
posthearing brief on the contested issues, and the matter is now ready for decision.
ASC does not defend against the majority of the items cited in the citation, but
questions the appropriateness of the penalties proposed in all Cases.
The determination of what constitutes an appropriate penahy is within the discre-
tion of the Review Commission. tong Manufactzuhg Co. v. OSHRC, 554 F.2d 902 (8th
Cir. 1977). In determining the penalty the Comuksion is required to give due consider-
ation to the size of the employer, the gravity of the violation and the employer’s good
faith and history of previous violations. The gravity of the offense is the principal factor
to be considered. Nacirema OperatingCo., 1 BNA OSHC 1001, 1971-73 CCH OSHD
US,032 (No. 4, 1972). Some of the elements to be considered in determining the gravity
are: (1) the number of employees exposed to the risk of injury; (2) the duration of expo- .
sure; (3) the precautions taken against injury, if an5 and (4) the degree of probability of
occurrence of injury. Secretary v. Natihal Reaiky and Consmcfion Co., -1 BNA OSHC
1049, 1971-73CCH OSHD 115,188 (No. 85, 1971).
ASC is a small employer of 29 employees with no history of prior violations (Tr. 6,
26). In calculating proposed penalties OSHA took AX’s size and no prior history of
violations into account and reduced the calculated penalties by 50 percent. ,
ASC contends that Complainant faiIed to take into account its good faith in imme-
diately abating a11citation items (Tr. 159), and that Complainant overstated the gravity of
the cited violations by exaggerating employee exposure and the probability of injury. ,
OSHA’s Compliance Officer (CO), ‘Walter Gulik, testified that ASC was given no credit
for AK’s immediate abatement of the alleged violations because of the absence of a
written safety program and the significant number of violations found at the worksite (Tr.
26, 56, 124). Co Gulik testified that a 25% reduction in a penalty may be applied for
employers demonstrating good faith (Tr. 25).
A penalty reduction for good faith of the full Z%, however, would be inapprop-
riate due to AX’s ignorance of OSHA standards and the significant number of serious
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violations found at its worksite. The judge, hmwr, finds that based on AX’s demon-
strated desire tu comply with OSHA regulations which is evidenced by its immediate
abatement & tlk cited violations, a partial good faith reductionof 10% is appropriate.
nle-appPopriateness of the gravity designation for each of the cited violations will
be determined ~parately.
Serious Item 1 - Alleg Violation of
29 C.F.R. 81910.24&)
Section 1910.24(h)requires that standard railings be provided “on the open sides
of all exposed stairways and stair platforms.”
It is undisputed that there was a wooden stairway in AX’s dock area which was
only partially guarded; a railing extended halfway down the stairs on one side (Tr. 16,
119; Exh. C-l, C-2, C-3). The stairway was approximately12 feet high (Tr. 16), and led
to two lofts on which cardboard boxes and packing material were stored (Tr. 16). .During
the course of the inspection, Compliance Officer (CO) Gulik was told that the stairs were
used infrequently, perhaps once a month, to retrieve packing materials (Tr. 17). CO
Gulik testified that a fall from the stairwayxould result in fractures (“I?.21, 116): -
Oscar Ramiret, ASc’s manager, first testified that the packing materials stored in
the loft were obsolete and that the cited stainvay had not been used, even to clean the
area, for the last 20 years (Tr. 154,166169). He then stated, however, that the stair had
been used 12 or 13 years ago to check a heater switch box in the loft (Tr. 170). After
the inspection, this alleged viofation was originally abated by adding a railing, but Mr.
Ramirez stated that shortly afterwards the entire stairway was removed because ASC had
no use for it (Tr. 173-174,186-M).
In order to prove a violation of section S(a)(2) of the Act, the Secretary must
show by a preponderance of the evidence that (1) the cited standard applies, (2) there
was a failure to comply with the cited standard, (3) employees had access to the violative
condition and (4) the cited employer either knew or could have known of the condition
with the exercise of reasonable diligence. See, e.g., Walker Towing Cop., 14 BNA OSHC
2072, 2074, 1991 CCH OSHD ll29239, p. 39,157 (No. 87-1359, 1991). In this matter the
only issue is that of employee access to the hazardous condition. The Commission
AA
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has held that in order to show a prima facie WC of employee a-, the Secretary must
demonstrate the probability that employees were or WC&i be in the “zone of danger” in
the course of their normal duties or activities. mn Gordon CO., 15 BNA OSHC 1433,
1449, 1992 CCH OSHD r29,550, p. 39,940 (NO. 84-785, 1991). In this case, the Secretary
has failed to make out her prima facie case. On the subject of employee exposure, the
testimony of Mr. Ramireq who was familiar with operations at ASC, must be credited
over that of CO G&k. CO Gulik had little independent memory of the inspection, and
ws unclear as to the source of his informationthat the stairs were used monthly, at one
point crediting it to Mr. Ramirez (Tr. 28-29). Mr. Ramirez, however, stated that he was
with CO Gulik only a small portion of the inspection (Tr. 155), and contradicted much of
CO Gulik’s testimony at the hearing.
In addition, Mr. Ramirez’ testimony that the stairway was unused was
corroborated by AK’s removal of the stairway, indicating that access to the ioft was
indeed unnecessary.
Because the Secretary failed to make out her prima facie case, “~rious” citation
I, item 1 *till be vacated.
Serious Item 2 - Alleged Violations of
29 C.F.R. &1910.212(a~ii)
The cited standard requires that where a machine’s point of operation exposes an
employee to injury, a guard shall be installed so as to “prevent the operator from having
any part of his body in the danger zone during the operating cycle.”
CO Gulik testified that he found two metal cutting shears that were not protected
with finger guards (Tr. 27; Exh. C-4, C-5, Cb). A guard was available for the shears, but
the operator had removed it to adjust the machine, and had not replaced it (Tr. 33-34).
An operator accidentally placing his fingers under the point of operation could suffer
amputation (Tr. 39).
It is undisputed that the shears were in use at the time of the inspection (Tr. 29,
32). CO Gulik testified that Mr. Ramirez told him the shears were used three to four
times a week (Tr. 35). At the hearing however, @c~ Ram&z testified that Francisco
Martinez operated the shears only on a weekly basis pro 15%163,189).
a @#& oould not descrjbc the operation of the machine, or remember how
,,.*
close the o~tor’s hands came to the unguarded blade in performing his task (Tr. 33).
He stated that an operator would have had to have his hands within six inches of the
blade in order for him to consider it a hazard (‘I?. 130). Mr. Ramire&testified that the
closest Martinez’ hands came to the shear blade was 18 inches, the length of the material
he was working on FL 194).
CO Gulik also testified that there was no ring guard on the point of operation of a
Chicago riveting machine (Tr. 38), which was in use at the time of his inspection (Tr. 43).
CO Gulik stated that the riveting machine is operated by means of 8 foot pedal, which is
activated bv the ornxator as he holds the rivet between a “hammer and anvil” (Tr. 37).
CO Gulik itated ihat the operator’s fingers normally are within inches of the point of
operation (Tr. 37038), and that an operator placing his finger within the point of opera-
tion could
. suffer fractures or impalement with a rivet (Tr. 39). CO Gulik testified that
Marvin’ Barrio2 and Carlos Estrada used the riveting machines daily (Tr. 43).
4
Mr. Ramirez testified that only Barrio2 operated the riveting machine (T’r. 164,
189).
In order for the Secretary to prove a violation of 51910.212(a)(3)(ii), she must
establish that (1) the points of operation of the machine were unguarded and (2) the l
operation of the machine exposed employees to injury. Rockwell Intematimal
Coporati~n, 9 BNA OSHC 1092, 1980 CCH OSHD 124,979 (No. 12470, 1980). In that
case the Commission held that:
The mere fact that it was not impossl%le for an employee to insert his
hands under the ram of a machine does not itself prove that the point of
operation exposes him to injury. Whether the point of operation exposes
an employee to injury must be determined based on the manner in which
the machine functions and how it is operated by the employees. Id, at
1097-98.
See ako, Jefferson Smurjit Corp., 15 BNA OSHC 1419, 1991 CCH OSHD ll29,SSl (No.
89-0553, 1991).
5
In the case of the metal cutting shears, the secretary failed to jntrodwc any CT&
den= in&at@ that its operator is exposed to a h-d a~ a red of the day the shears
are used, C@ Gulik could not remember how close the operator’s fingers came to the
uqpar&d bt’adewhen using the machine. Mr. Ramireq who was familiarwith the oper-
ation of the shears, testified that the operator never was closer than 18 inches to the
blade. In, the absence of any evidence to the contrary, Mr. Ramirez’ testimony is
credited, and this judge finds that Complainant fded to prcwe that ASCs employees
were exposed to a hazard within the meaning of the standard.
In the case of the riveting machine, however, CO Gulilc’s testimony that the
operator’s fingers come within inches of the point of operation is uNebutted and is suffi-
cjent to establish the cited violation. CO Gulik’s testimony as to the frequencyof expo-
sure and the severity of the hazard is also uncontradicted.
The Secretary proposes a penalty of Sl,OOO.OO
reduced from an original assess-
ment of $2,000.00. Because only one of the items cited was proven, and because ASC .
immediately abated both items, a penalty of $400.00 is considered appropriate.
Serious Item 3 - Alleged Violation of
29 C.F.R. 61910.212Cb~
The cited standard requires that machines designed for a fixed location be
securely anchored. At the hearing, CO Gulik testified, without contradiction, that four
drill presses were not anchored to prevent ‘balking” or movement while in bperation
(Tr. 44-45; Exh. C-8). CO Gulik stated that an unmounted drill press could fall, resulting
in cuts or lacerations to the operator’s hands and arms (Tr. 46). CO Gulik testified that
the unmounted drill presses were in use during his inspection (Tr. 46).
Mr. Ramirez stated that Louis Palencia operates the drill presses three or four
days a week (Tr. 165-166, 189). In its briec ASC argues that other drill presses, which
were secured to the floor (Tr. 47), were used to the exclusion of the unsecured presses.
At the hearing, however, ASC introduced no evidence contradicting CO Gulik’s
testimony that the unsecured drill press was in use at the time of the inspection. More
over, metal shaving around the base of the unsecured press indicate that it was in use
(Tr. 46, &he c-8). . \
The Secret8ry pro- a penalty of $750.00, reduced from the original assessment
of $1,500.~ &vever, because A% immediately abated the violation (Tr. 49), this
judge finds that a penalty of $600.00 is appropriate.
Serious Item 4 - Alleged Violation of
29 CF.R. 81910.2lS(a~4~
The cited standard requires that work rests be afExed a maximum of l/8”. from
the wheel of offiand grinding machines to support the material being worked. CO Gulik
testified, without contradiction, that ASC’s bench grinder was missing its work rest at the
.
emery wheel (Tr. 49; Exh. C-9). CO Gulik stated that without the work rest, the material
being worked could slip into the wheel well, causing the emev wheel to shatter (‘I’r.490
51). The shattered wheel could cause facial lacerations and possibly the I-’ of an eye
(Tr. 49). CO Gulik stated that the bench grinder w used weekly (Tr. 53). .
Mr. Ramirez stated that Louis Pale&a operated the bench grinder.‘%eryseldom,”
but could not elaborate (Tr. 190). In its brief, ASC asserts that eye protection was worn
by employees using the grinder, however, no evidence to that effect was adduced at the
hearing.
The citation proposed a penalty of $950.00. However, CO Gulik testified at the
hearing that OSHA intended a penalty of $750.00, reduced from Sl,SOO.OO
(Tr. 54, 65).
This judge finds that the gravity of the violation was moderately high, but the severity of
the hazard, possible loss of an eye, is balanced by the infrequent use of the grinder and
the absence of any previous injuries (Tr. 203). The penalty will be reduced an additional
10% based on ASCs good faith in immediately abating the hazard (Tr. 53). A penalty of
$600.00 will be assessed.
Serious Items Sa. Sb - Akgd Violations of
29 C.F.R. 81910.2l~d~ and (e)(l)@
Sect- 1910.219(d)(l) and (e)(l)(i), respectively, require that pulleys less than
seven feet from the floor be equipped with a standard guard, and that horizontal belt
drives less than seven feet from floor level be guarded, both as described elsewhere in
that section.
During the course of his inspection CO Gulik found that the belt and pulley drive
for ASS metal parts tumbler had been remwed to adjust the pulley and not replaced
(Tr. 51, 59; Exh. GlO). CO Gulik testified that the area around the drive pulley was
accessible to empluyees who stored materials there QYr.58), and that the equipment was
used on a daily basis by Francis Martinez (‘I’r.59). Mr. Ramirez,
. however, stated that
only Louis Palencia operated the metal parts tumbler and only on a weekly basis (Tr.
190)0
CO Gulik also testified that the belt and pulley drive for an air compressor had
only a partial guard which would not prevent a hand or fingers from being caught-at the
ingoing nip points (Tr. 60; Exh. C-11). CO Gulik testified that employees lubricating,
adjusting or servicing the compressor would be exposed to the hazard (Tr. 61). Mr.
Ramirez admitted that Francisco Martinez started up the compressor every day, but
stated that no other employees had reason to be in the area (Tr. 190). .
CO Gulik testified that the unguarded belts and pulleys could result in fractures
and lacerations to the fingers (Tr. 65). A penalty of Sl,OOO.OO
was proposed.
For the reasons discussed above on the subject of employee exposure, the testi-
mony of Oscar Ramirez is credited over that of Co Gulik. This judge finds that the
. gravity of the violations, which was based on Co Gulik’s estimate of employee exposure,
was overstated. In addition, ASC’s demonstrated good faith in immediately abating the -
violation warrants a reduction in the penalty.(Tr. 60, 159). A penalty of $600.00 is consi-
dered appropriate and will be assessed.
8
Serious Item 6 - Alleged Violation of
29 CF.R. 81910.242&\
The c&d standard requires that where compressed aii is used for cleaning it shall
not exceed 30 pd. of pressure.
CO Gulik testified that ASC used compressed air hoses in its machine shop for
cleaning machinery. CO Gdik measured the air pressure on the hoses at 90 p.s.i. (Tr.
66.68). Excessive pressure in the hoses could cause eye damage if directed at an
empbyee’s face, or force an air bubble, or embolism, into the blood stream of an
employee with a cut in an area exposed to the stream of air (Tr.. 68-69).
CO Gulik testified that Louis Palencia used the air hoses on a daily basis .(‘I?.69).
Again, his testimony was contradicted by Mr. Ramirez, who stated that ML Palencia
operated the air hose approximately once a month (Tr. 191).
Again, the testimony of Mr. Ramirez regarding employee exposure is credited
over that of CO Gulik because of his greater familiarity with Respondent’s operations..
The gravity of the cited violation is deemed to be low based on the infrequent exposure
of one employee to the hazard and the low probability of an accident actually occuning.~
The proposed penalty of $750.00 is reduced to $300.00 to reflect the overstated gravity
and a 10% reduction for ASfns good faith in immediately abating the violation (Tr. 70).
Serious Item 7 - Alleged Violation of .
29 C.F.R. N910.147(c)(4)(iJ .
The cited standard requires that employers develop written energy control proce-
dures where employees are engaged in “the servicing and maintenance of machines and
equipment in which the unarpected energization or start up of the machines or equip- ’
ment, or release of stored energy could cause injury to employees l 0 0 0 ”
It is undisputed that ASC had no written lock-cdtag-out program for controlling
unexpected start ups (Tr. 70-71). ASC argues that an outside agency performs all their
equipment repair’ and servicing (Tr. 71). CO Gulik testified, however, that ASC
employees remove dies from punch presses (Tr. 72). CO Gulik stated that the inadver-
tent start up of equipment could result in serious injury or death (Tr. 73).
c
9
ASC argues that the c&cl standard is not applicable because its own employees
perform no repgin or service on equipment. The lock-out/tag-out standards, however,
are intended tmpmtect not orily maintenance employees, but “affected employees,” that
is, employees “whose job[s] require (them] to operate or use a machine or equipment on
which servicing or maintenance is being performed under lockout or tagout, or whose
job[s] requires [them] to work in an area in which such seticing or maintenance is being
performed.” See, 51910.147(b)Dt@ai’tions. Employers are expected to develop an energy
control program for the benefit of such affected employees, who must be instructed in
the purpose and use of the plan (See, §1910.147[c][7J),and for exchange with outside
maintenance contractors, who are required to coordinate their activities with the on-site
employer. See §1910.147fl(2).
The Secretary has made out a prima facie case, and the cited violation will be
affirmed. Based on AX’s good faith, however, the proposed penalty of $750.00 will be
reduced to $600.00.
Serious Items 8a. 8b - Alleged Violations of
29 C.F.R. 81910.253fb’I(2Xiv1and lbX4UiiQ
Section 1910.253@)(2)(iv) requires that valve protection caps be in place on
stored gas cylinders. Subsection @)(4)(iii) requires that oxygen cylinders be separated
from fuel gas cylinders by 20 feet or by a non combustible barrier.
CO Gulik testified without contradiction that oxygen and acetylene cylinders were
chained together in the machine shop, where employees were present daily (Tr. 75-76,
78). The valve protection cap was missing from one of the acetylene cylinders (Tr. 77).
An unprotected gas valve may be damaged, causing the gas to escape explosively,
and propelling the cylinder like a missile (Tr. 78). Escaping acetylene may also ignite, a
possibility which is increased by the presence of the nearby oxygen (Tr. 79).
Three employees work in the machine shop area (Tr. 163).
A penalty of $750.00 was proposed. Because the violation was immediately
abated (Tr. 81), the original penalty will be reduced by an additional 10%; $600.00 will
be assessed.
10
Serious Items 9. 10 - Aked Violations o(
29 C.F.R. 81910 120@~1! and fh\
l
The c&d standards respectively require that the employer develop and implement
a Atten h& communication program, and that it train its employees as to chemical
.
hazards in the workplace. Specifically, the employer must inform employees of the loca-
tion and availabilityof its written hazard communication ph.
Hazardous materials including xylene, lead based paints, and 4O-CE machine
cleaner and RC-42 compressor oil were present in ASS machine shop and painting
areas (Tr. 149-151). It is undisputed that ASC had not developed a written program (Ti.
82), and had not made the availability of information about hazardous chemicals known
to ASC employees (Tr. 94-95).
Absent a hazard communication program, employees may remain ignorant of the
harmful effects of hazardous chemicals, and may not take proper precautions or use
protective equipment to avoid harmful contact (Tr. 86, 90,92).
Approximately six employees worked in the machine shop and painting areas (73.
133, 163-164).
Penalties of $750.00 for each violation of §1910.1200 et seq. were proposed. Based
on AX’s good faith in immediately abating the violations (‘II. 89, 95), a penalty of $600
for each violation is considered appropriate and will be assessed.
Other than Serious Item 1 - Alleged Violation of
29 CF.R_?91904.2(a)
The cited violation requires employers to maintain a log of recordable
occupational injuries and illnesses. ASC admits that no OSHA log was maintained in
1991 or 1992 until the time of the inspection ur. 200).
A “regulatory penalty” of Sl,OOO.OO
is proposed, reduced from an original recom-
mended penalty of $2,000.00. Because the violation was immediately abated, the penalty
will be reduced by 10%. A penalty of $800.00 will be assessed.
11
Other than Serious Item 2 - Alleged Violation of
29 C.F.R. 81910.157(g)~3~
T’hecite& standard rquires employers to provide training in the use of portable
fire &tinguishe~ to employees designated to use ‘them as part of an emergency plan.
CO Gulik testified that no training was provided regarding the use of wall
mounted fire extinguishers (Tr. 98). However, there was no wideme that ASC had an
emergency plan invotig the use of the fire extinguishers, and ML Gulikstated it was
just as likely employees would just leave the plant without attempting to fight incipient
stage fires (Tr. 99).
No evidence in the record indicates that ASC designated any of. its employees to
use fire fightingequipment. The cited standard, therefore, appears to be inapplicable in
this case. Section 1910.157(g)(l), however, requires employers to provide training‘for all
employees whenever portable fire extinguishers are provided for use. CO Gulik’s testi- .
mony that no training in the use of fire extinguishers was unrebutted; the citqtion, there-
fore, is amended to conform to the evidence, and a violation of ~1910.1~7(g)(l) will be
affirmed. No penalty is assessed.
Other than Serious Item 3 - Alleged Violation of
29 C.F.R. &1910.303(Q
The cited standard requires that circuits and their disconnecting beans or
overcurrent devices be legibly marked to indicate their purposes. CO Gulik testified,
without contradiction, that circuit breaker boxes on the machine room’s south wall were
not identified with the circuits they controlled (Tr. 102403).
No penalty was proposed, and the citation will be afEbmed without penalty.
Findinns of Fact
All findings of fact relevant and necessary to a determination of the contested
issues have been found specially and appear above in the decision. See Rule 52(a) of
the Federal Rules of Civil Procedure. Proposed Findings of Fact that are inconsistent
with this decision are denied.
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Basedb!OXB
the findings of fact, conclusions of law, and upon the entire record, it is
ordered:
10 Item 1 and Item 2(a), Citation No. 1 are VACATED.
2 l Item Nos. 2(b) through 10, Citation No. 1, are AFFIRMED.
3 l The following penalties are assesed:
Citation No. f
Item 2 $ 400.00
Item 3 600.00
Item 4 600.00
Item 5 600.00
Item 6 300.00
Item 7 600.00
Item 8 600.00
Item 9 600.00
Item 10 600.00
Citation No. 2
Item 1 - $ 800.00
Total Penalties: $5,700.00
Dated: April 23, 1993
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