OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
________________________________ : SECRETARY OF LABOR, : : Complainant, : : v. : Docket No. 97-0469 & 97-0470 : OBERDORFER INDUSTRIES, INC. : : : Respondent. : ________________________________: For Complainant: Nancee Adams-Taylor, Esq., Office of the Solicitor, U. S. Department of Labor, New York, NY.; For Respondent: Paul M. Sansoucy, Esq. and Thomas Owens, Esq., Bond, Schoeneck & King, LLP., Syracuse, NY.Before: Judge Covette Rooney
This proceeding is before the Occupational Safety and Health Review Commission pursuant to Section 10(c) The Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et seq.)("the Act"). Respondent, Oberdorfer Industries, at all times relevant to this action maintained at a worksite at 6259 Thompson Road, Syracuse, NY. Respondent is a foundry that uses molten aluminum to manufacture castings. Respondent admits that it is an employer engaged in a business affecting commerce and is subject to the requirements of the Act.
From September 10, 1996 to January 31, 1997, Industrial Hygienist ("IH") Donalea Landes and Compliance Safety and Health Officer ("CO") Thomas Rezsnyak conducted a health (Docket No. 97- 469) and safety (Docket No. 97-470) inspection of the aforementioned worksite pursuant to a Local Emphasis Program in primary metals. After an opening conference was held, the inspection commenced with area department managers accompanying the compliance officers at various points. As a result of this joint inspection, Respondent was issued five citations - three (3) in the health and two (2) in the safety - consisting of fifty-one (51) items and subitems, with total penalties of $123,000.00. These citations have been amended to reflect an amended proposed penalty of $109,500.00 ($48,000.00 - health and $61,000.00 - safety). By timely Notice of Contest Respondent brought this proceeding before the Review Commission. A hearing was held before the undersigned on January 12 through 16, and January 21 through 23, 1998. Counsel for the parties have submitted Post-Hearing Briefs and Reply Briefs, and this matter is ready for disposition.
Admission of employees
The Review Commission has acknowledged that statements to compliance officers by employees and foremen during the course of inspections are not hearsay but admissible admissions under Rule 801(d)(2)(D) of the Federal Rules of Evidence. Regina Construction Co., 15 BNA OSHC 1044, 1048 (No.87-1309, 1991). The rule states:
(d) Statements which are not hearsay.
A statement is not hearsay if . . .(2) Admissions by party opponent. The statement is offered against a party and is . . . (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.
"Although admissions under Rule 801(d)(2)(D) are not inherently reliable, there are several factors that make them likely to be trustworthy, including: (1) the declarant does not have time to realize his own self-interest or feel pressure from the employer against whom the statement is made; (2) the statement involves a matter of the declarant is well-informed and not likely to speak carelessly; (3) the employer against whom the statement is made is expected to have access to evidence which explains or rebuts the matter asserted. 4 D. Louisell & C. Mueller, Federal Evidence §426 (1980 & Supp. 1990)." Id. The record reveals that statements made by employees met the aforementioned tests. The record reveals that as the compliance officers conducted their inspections they simultaneously questioned employees and management as they made their observations. The employees were persons who actually worked with the equipment and their statements were made spontaneously. There was no evidence introduced by Respondent that these employees were concerned about their own self interest or felt pressure from the employer. Respondent has had ample opportunity to rebut these statements, an unless otherwise indicated, these statements remain unrebutted. Accordingly, these statements constitute admissions whose reliability is unrefuted. See George Campbell Painting Corp., 17 BNA OSHC 1979, n. 7 (No. 93-0984, 1997).
The Secretary's Burden of Proof
The Secretary has the burden proving her case by a preponderance of the evidence. In order to establish of violation of an occupational safety or health standard, the Secretary had the burden of proving: (a) the applicability of the cited standard, (b) the employer's noncompliance with the standard's terms, Landes, (c) employee access to the violative conditions, and (d) the employer's actual or constructive knowledge of the violation (i.e. the employer either knew, or with the exercise of reasonable diligence could have known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No, 90-1747, 1994). Unless otherwise noted, the undersigned finds the cited standards address each of the hazards described within each item where noncompliance has been affirmed.
Exposure
The Secretary must show employee access to the condition by a preponderance of the evidence. Olin Constr. Co. v. OSHRC, 525 F.2d 464 [3 BNA OSHC 1526] (2d Cir. 1975). The Secretary may prove employee exposure to a hazard" by showing that, during the course of their assigned working duties, their personal comfort activities on the job, or their normal ingress-egress to and from their assigned workplaces, employees have been in a zone of danger or that it is reasonably predictable that they will be in a zone of danger.(citations omitted) The zone of danger is determined by the hazard presented by the violative condition, and is normally that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.(citation omitted)". RGM Construction, 17 BNA OSHC 1229, 1234 (No. 91-2107). Thus, the Secretary may prove exposure by actual exposure or that it was reasonably foreseeable that they would have access to the violative conditions.
Employer Knowledge: Generally
To satisfy the element of knowledge, the Complainant must prove that a cited employer either knew, or with the exercise of reasonable diligence could have known of the presence of the violative condition. Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC 1218, 1221 (No. 88-821, 1991); Consolidated Freightways Corp., 15 BNA OSHC 1317, 1320-1321 (No. 86-351, 1991). Employer knowledge is established by a showing of employer awareness of the physical conditions constituting the violation. It need not be shown that the employer understood or acknowledged that the physical conditions were actually hazardous. Phoenix Roofing, Inc., 17 BNA OSHA 1076,1079 (No. 90-2148, 1995), aff'd without op., 79 F. 3d 1146 (5th Cir. 1996) citing East Texas Motor Freight v. OSHRC, 671 F.2d 845, 849 [10 BNA OSHA 1456] (5th Cir. 1982); Vanco Constr., 11 BNA OSHA 1058, 1060 n.3 (No. 79-4945, 1982). With respect to constructive knowledge, the Secretary establishes it by showing that an employer could have known of the violative conditions if it had exercised reasonable diligence. In Pride Oil Well Service, 15 BNA OSHC 1809 (No. 87-692, 1992), the Review Commission set forth criteria to be considered when evaluating reasonable diligence.
Reasonable diligence involves several factors, including an employer's "obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence." Frank Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981) . . . Other factors indicative of reasonable diligence include adequate supervision of employees, and the formulation and implementation of adequate training programs and work rules to ensure that work is safe. (citations omitted).
Id. at 1814.
"Because corporate employers can only obtain knowledge through their agents, the actions and knowledge of supervisory personnel are generally imputed to their employers, and the Secretary can make a prima facie showing of knowledge by proving that a supervisory employee knew of or was responsible for the violation." Todd Shipyards Corporation, 11 BNA OSHC 2177, 2179 (No. 77-1598, 1984). See also Superior Electric Co., 17 BNA OSHA 1636 (No. 91-1597, 1996)( when an supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer). Where the record establishes that the cited conditions were in plain view and that supervisory personnel were present throughout the work operation, this constitutes constructive of the violative conditions. Kokosing Construction Co., 17 BNA OSHC 1869 (No. 92-2596, 1996) and cases cited therein; American Airlines, Inc. 17 BNA OSHC 1552, 1555 (No. 93-1817 and 93-1965, 1996).
Docket No. 97-469 (1)
CITATION 1, ITEM 1a
29 C.F.R. §1910.106(e)(6)(I) "General." Adequate precautions shall be taken to prevent the ignition of flammable vapors. Sources of ignition include but are not limited to open flames; lightning; smoking; cutting and welding; hot surfaces; frictional heat; static, electrical, and mechanical sparks; spontaneous ignition, including heat-producing chemical reactions; and radiant heat.
a) CORE FINISHING: ROCKER BOX/PARASPRAY PREP AREA, ON OR ABOUT 9/16/96: AN EMPLOYEE WAS OBSERVED SMOKING WHERE EMPLOYEES SPRAY CORES WITH PARASPRAY, A CLASS 1B FLAMMABLE LIQUID, THUS EXPOSING EMPLOYEES TO A FIRE HAZARD.
b) CORE BOX STAGING: CHILL COATING SPRAY AREA, ON OR ABOUT 9/16/96: EMPLOYEES WERE ALLOWED TO SMOKE WHERE EMPLOYEES SPRAY CHILL PIECES WITH THERMOCOAT Z-A PREMIX, A CLASS 1B FLAMMABLE LIQUID, THUS EXPOSING EMPLOYEES TO A FIRE HAZARD.
Employer Noncompliance
Michael Casler, an OSHA compliance officer with nine years of experience and 24 years of experience in the fire fighting industry, testified as to the flammable properties of Paraspray (Tr. 287-88). (2) He referred to the Material Safety Data Sheet ("MSDS") for the chemical, and noted that the compound's main catalyst is the chemical toluene (Ex. C-6) (3). With regard to instance a, IH Landes observed employees smoking in the area where the Paraspray was sprayed. (Tr. 24-25). She also observed cigarettes on the floor of the rocker box/para spray prep area.(Tr. 25-28, Ex. C-8, C-14, p. 2, photo 2). IH Landes testified that she also relied on NAPA 30, Flammable and Combustible Liquids Code, Sections 5-6.1 and 5-6.2 in issuing the citation. (Tr. 27-28; Ex. C-9, p. 30-46). (4) With regard to instance b, Michael Casler testified that Thermocoat is a flammable liquid base. Its most dangerous ingredients are isopropanol and methanol. (Tr. 292, Ex. C-7). IH Landes testified with regard to instance b, although she did not observe employees actually smoking during her inspection, she observed cigarettes on the floor, an indication that employees smoked in the area (Tr. 25; Ex. 8). In both instances she determined that the use of flammable materials in the area was not incidental (Tr. 30).
The standard requires that adequate precautions be taken to avoid ignition of "flammable
vapors". It is undisputed that Respondent's employees sprayed Paraspray and Thermocoat, both
of which it is undisputed were Class IB flammable liquids (Tr. 23 ; Exs. C-6 and 7). Flammable
liquids are defined as liquids which give off vapors which become flammable at specified
flashpoints. (5)
The record contains undisputed evidence that smoking is a source of ignition.
Accordingly, the undersigned finds that the standard is applicable and non compliance has been
established. Employee Access to the Violative Condition IH Landes testified that she observed an employee smoking in the Paraspray area, and
there was evidence of smoking (cigarette butts) in the rocker box Paraspray prep area(Tr. 24-25;
204). Both of these areas were areas where she observed employees working with flammable
liquids. Employer Knowledge of the Violation The undersigned finds that with the exercise of reasonable diligence Respondent could
have known of the violative condition. IH Landes testified that Oberdorfer "could tell that the
employee was smoking in the area." (Tr. 28-29). The conspicuous location, the readily
observable nature of the violative condition, and the presence of supervisory personnel
throughout the plant warrant a finding of constructive knowledge. CITATION 1, ITEM 1b 29 C.F.R. §1910.107(g)(7) "No Smoking" signs. "No smoking" signs in large letters on
contrasting color background shall be conspicuously posted at all spraying areas and paint
storage rooms. a) CORE FINISHING: ROCKER BOX/PARASPRAY PREP
AREA, ON OR ABOUT 9/16/96: NO SMOKING SIGNS
WERE NOT POSTED WHERE EMPLOYEES SPRAY
CORES WITH PARASPRAY, A CLASS 1B FLAMMABLE
LIQUID, THUS EXPOSING EMPLOYEES TO A FIRE
HAZARD. b) CORE BOX STAGING: CHILL COATING SPRAY AREA,
ON OR ABOUT 9/16/96: NO SMOKING SIGNS WERE NOT
POSTED WHERE EMPLOYEES SPRAY CHILL PIECES
WITH THERMOCOAT Z-A PREMIX, A CLASS 1B
FLAMMABLE LIQUID, THUS EXPOSING EMPLOYEES
TO A FIRE HAZARDS. Employer Noncompliance IH Landes testified that she did not observe no-smoking signs in the Paraspray and
Thermocoat spraying areas (Tr. 33). The cited standard requires "No smoking" signs in
"spraying areas". The term "spraying area" within in the meaning of the standard is defined at
§1910.107(a)(2) as "[a]ny area in which dangerous quantities of flammable vapors or mists, or
combustible residues, dusts, or deposits are present due to the operation of spraying processes."
It is undisputed that the cited areas were areas where spraying occurred. However, in order to
determine the applicability of the cited standard to the violative condition an examination of the
definition of the "spraying area" within the context of the standard is necessary. The Review
Commission in Ed Jackman Pontiac-Olds, Inc. 8 BNA OSHC 1211, 1215 (No. 76-20, 1980),
interpreted this definition to mean that "a violation is proved if either dangerous quantities of
flammable vapors or mists are present or if combustible residues dusts, or deposits are found. . .
Either would be sufficient to sustain a violation".(emphasis added). IH Landes testified that she observed combustible residue and deposits in the cited areas.
In the Paraspray and Theromocoat spraying areas, flammable vapors were sprayed, resulting in
the presence of combustible residues or deposits due to the operations of the spraying process (
Tr. 42-44, 207, 209-10, 214; Ex. C-14). She concluded that the deposits were combustible based
upon the information within the MSDS which stated that Thermocoat and Paraspray were
flammable. Mr. Casler testified that the Paraspray and Thermocoat were flammable and that it
remained flammable for some period of time. He testified that the over-spray is a hazard as it is
over-sprayed and continually over-sprayed, it creates pockets and valleys and as the spray
continues, these pockets start absorbing the liquid and the liquid does not have a chance to
evaporate (Tr. 293-94). It was his opinion that the cited over-spray was a large accumulation of
over-spray and was hazardous (Tr. 294-95). He opined that he residues of spray material cited
were a solid form of fuel (Tr. 299). The undersigned finds that the record contains no evidence
which rebuts this opinion; and also finds that the cited standard is applicable and noncompliance
has been established. Employee Exposure IH Landes observed Respondent's employees working in the cited areas where there were
no "No Smoking" signs . She also observed employees smoking in said area (Tr. 33-34). Employer Knowledge. The undersigned finds that with the exercise of reasonable diligence Respondent could
have known of the violative condition. IH Landes testified that Respondent could have observed
the employees smoking in the area (Tr. 34). The conspicuous location, the readily observable
nature of the violative condition, and the presence of supervisory personnel throughout the plant
warrant a finding of constructive knowledge. Classification and Penalty - Items 1a and 1b IH Landes testified that employees were exposed to a fire hazard. She classified the
violation as serious based upon the nature of resultant injury - severe burns (Tr. 31, 36). IH
Landes recommended a grouped penalty of $2,500.00. She testified that the gravity of the
violation reflected that the severity of the violative condition was high, citing a possible injury of
severe burns, and that there was a "lesser" probability of an accident occurring, based upon the
amount of time the employees performed the operation (Tr. 31). She testified Oberdorfer
received no reductions for size - Respondent employed more than 250 employees; no reductions
for history - Respondent had been cited within the prior three years for serious violations, and no
reductions for good faith- there was a repeat violation and the citation had a greater probability
and a high severity violation (Tr. 31-32; 1551; Ex-C-1). (6) The undersigned is not bound by OSHA's internal policies and finds that the record
supports an adjustment in the gravity based penalty. The record establishes that the Respondent's
attitude toward employee safety and its cooperation during the inspection were indicative of good
faith. Respondent put forth great effort in abating the cited conditions, such as hiring outside
contractors and requiring maintenance employees to work additional shifts to make corrections
(Tr. 1538). Additionally, the Respondent had recognized in June 1996, that there was a need to
modernize the facility and was in the planning stages at the time of the inspection (Tr. 1572-73). (7)
The Respondent also had taken advantage of a state consulting service and participated in a
Occupational Health Hazard Survey in 1995, which included various sampling (Tr. 452-53,
1569-71; Ex. C-45). Respondent's health and safety program also included job hazard
assessments (Tr. 1539). The undersigned finds that these factors indicate a commitment to safety
by Respondent. Accordingly, the undersigned finds that a reduction in penalty in the amount of
15% for good faith would be appropriate, for a penalty of $2,125.00. CITATION 1, ITEM 2 29 C.F.R. §1910.107(c)(6) "Wiring type approved." Electrical wiring and equipment not subject
to deposits of combustible residues but located in a spraying area as herein defined shall be of
explosion-proof type approved for Class I, group D locations and shall otherwise conform to the
provisions of subpart S of this part, for Class I, Division 1, Hazardous Locations. Electrical
wiring, motors, and other equipment outside of but within twenty (20) feet of any spraying area,
and not separated therefrom by partitions, shall not produce sparks under normal operating
conditions and shall otherwise conform to the provisions of subpart S of this part for Class I,
Division 2 Hazardous Locations. a) CORE FINISHING: ROCKER BOX/PARASPRAY PREP
AREA, ON OR ABOUT 9/16/96: FIRE IGNITION SOURCES
INCLUDING BUT NOT LIMITED TO: NON-EXPLOSION
PROOF LIGHTS; NON-APPROVED WIRING
THROUGHOUT SPRAYING AREA; NON-APPROVED
CORDS PLUGGING IN LIGHTS AND PORTABLE FAINÉANT NON APPROVED DUPLEX RECEPTACLES
WERE LOCATED WITHIN AN AREA WHERE
EMPLOYEES SPRAY CORES WITH PARASPRAY, C LASS
1B FLAMMABLE LIQUID, EXPOSING EMPLOYEES TO A
FIRE HAZARD. b) CORE BOX STAGING: CHILL COATING SPRAY AREA,
ON OR ABOUT 9/16/96: FIRE IGNITION SOURCES
INCLUDING BUT NOT LIMITED TO NON-APPROVED
WIRING AND NON-APPROVED DUPLEX
RECEPTACLES, WERE LOCATED WITHIN AN AREA
WHERE EMPLOYEES SPRAY CHILL PIECES WITH
THERMOCOAT Z-A PREMIX, A CLASS 1B FLAMMABLE
LIQUID, EXPOSING EMPLOYEES TO A FIRE HAZARD. Employer Noncompliance The standard is applicable in that the cited areas were within "spraying areas". supra.
The standard requires that proper electrical wiring and equipment be used within the spray area
that conforms to Class 1, Division 2. IH Landes testified that she observed employees using
Paraspray to spray cores in the rocker box Paraspray prep area and that there were fire ignition
sources, including non-explosion approved lights, non-approved wiring and cords, and non-approved duplex receptacles within ten feet of the spray area (Tr. 37-38 , Ex. C-14, p. 2, C-15).
She also observed employees spraying chilled pieces with Thermocoat; and within ten feet of the
area, she observed non-approved wiring and duplex receptacles, and a chill blaster without
approved wiring (Tr. 38-39, C-14, p. 2, photo 1). She testified that she determined that the
electrical connections were not approved from her conversation with Mr. Wolf , who informed
her that the wiring for a spraying operation was not approved wiring, it was just normal wiring
(Tr. 215-16). She indicated that in issuing the citation for this item, she also relied on NFPA 33,
Standard for Spray Application Using Flammable and Combustible Materials (Ex. C-13). (8) Employee Exposure IH Landes observed Respondent's employees working in the cited areas (Tr. 45-46). Employer Knowledge IH Landes testified that she noticed the violation as she walked through the area (Tr. 42,
215). The employer with the exercise of reasonable diligence during its inspection of the work
area could have known of the presence of the violative condition. Classification and Penalty IH Landes testified that employees were exposed to a fire or explosion hazard (Tr. 45).
She classified the violation as serious based upon the nature of resultant injury- severe burns (Tr.
47). IH Landes recommended a grouped penalty of $2,500.00. She testified that the gravity of
the violation reflected that the severity of the violative condition was high, citing a possible
injury of severe burns, and that there was a "lesser" probability of an accident occurring, based
on the amount of time the employees performed the operation (Tr. 31). The undersigned finds
that for the reasons set forth above, "good faith" factors should be applied to the proposed
penalty. Accordingly, the undersigned finds that a penalty in the amount of $2,125.00 would be
appropriate. CITATION 1, ITEM 3 29 C.F.R. §1910.107(e)(6)(iv) Piping systems conveying flammable or combustible liquids shall
be of steel or other material having comparable properties of resistance to heat and physical
damage. Piping systems shall be properly bonded and grounded. a) CORE FINISHING: ROCKER BOX/PARASPRAY PREP
AREA, ON OR ABOUT 9/16/96: EMPLOYEE SPRAYING
CORES WITH PARASPRAY, A CLASS 1B FLAMMABLE
LIQUID, WAS USING A SPRAYER TO APPLY THE
PARASPRAY AND THE SPRAY NOZZLE WAS NOT
BONDED TO THE SPRAYER, EXPOSING EMPLOYEES
TO A FIRE HAZARD. Employer Noncompliance CO Rezsnyak testified that he tested the continuity between the Paraspray sprayer and the
nozzle of the sprayer, and found that they were not bonded. (Tr. 159-62). CO Rezsnyak testified
that the hazard was an explosion or fire. (Tr. 161). The condition could have been abated by
installing a semi-conductor post between the sprayer body and the nozzles, or by attaching a wire
between the sprayer body and the nozzle (Tr. 161). (9) Section 107(e)(6) addresses "pipes and hoses." Subsection (iv) thereof provides that
piping systems conveying flammable liquids shall be of steel or other comparable material. The
cited condition was for the spray nozzle not being bonded to the sprayer. The Secretary explains
that the piping system consisted of a "metal container, a flexible rubber hose, and a nozzle with a
shutoff valve" (Secretary's Post- Hearing Memorandum, p. 15). IH Landes testified that her
recommendation was based upon her observation of a sprayer that was used to apply Paraspray,
and on the sprayer there was a spray nozzle that was not bonded to the sprayer (Tr. 48, 51; Ex. C-17). She described the sprayer as a can with a black hose (Tr. 220). She further testified that she
relied upon NFPA Section 33-10, paragraph 6-4 in issuing this citation, which addresses piping
systems conveying flammable or combustible liquids between storage tanks, mixing room, and
spray areas (Ex C-13). (10) The cited standard does not define "piping system", however, the undersigned finds that
at §1910.106 (c) the design specifications of piping systems containing flammable or
combustible liquids are specified. (11)
The undersigned finds that a metal can/container was not a
piping system within the meaning of the flammable or combustible liquid OSHA standard.
Furthermore, the metal can/ container was not conveying flammable liquids from a storage tank,
mixing room or mixing room per paragraph 6-4.1, NFPA 33. The undersigned also notes that the
IH testified that she does not recall the basis for the conclusion that this was a piping system and
that she had no understanding of a piping system (Tr. 226-28). In view of the above, the undersigned finds that the cited standard is not applicable, and
thus, the violation is Vacated. CITATION, ITEM 4 29 C.F.R. §1910.107(g)(2)"Cleaning." All spraying areas shall be kept as free from the
accumulation of deposits of combustible residues as practical, with cleaning conducted daily if
necessary. Scrapers, spuds, or other such tools used for cleaning purposes shall be of non-sparking material. a) CORE FINISHING: ROCKER BOX/PARASPRAY AREA,
ON OR ABOUT 9/16/96: THERE WAS AN
ACCUMULATION OF COMBUSTIBLE RESIDUES
THROUGHOUT THE SPRAYING AREA ON THE WALLS
AND FLOORS WHERE EMPLOYEES SPRAY CORES
WITH PARASPRAY, A CLASS IB FLAMMABLE LIQUID,
EXPOSING EMPLOYEES TO A FIRE HAZARD. b) CORE BOX STAGING: CHILL SPRAY AREA, ON OR
ABOUT 9/16/96: THERE WAS AN ACCUMULATION OF
COMBUSTIBLE RESIDUES ON THE WALL, QUICK
DISCONNECT AND DUPLEX RECEPTACLE WHERE
EMPLOYEES SPRAY CHILL PIECES WITH
THERMOCOAT Z-A PREMIX, A CLASS 1B FLAMMABLE
LIQUID, EXPOSING EMPLOYEES TO A FIRE HAZARD Employer Noncompliance The cited standard requires that spraying areas be kept free of accumulations of deposits
of combustible residue. IH Landes testified that she observed combustible residue and deposits
in the cited spray areas (Tr. 53). IH Landes testified that the residue in the rocker box/Paraspray
area was approximately 1/4" to 1/2" thick (Tr. 53-54 (12), 56, 59; Ex. C-14, p. 1, p. 2, photo 2; Ex.
C- 17). IH Landes testified that she observed a residue of 1/8" to 1/4" thick on the walls, quick
disconnect, and the duplex receptacles in the chill coat spray area where employee were using
Thermocoat (Tr. 53-54, 57-58 Ex. C-14, p. 2, photo 1). She testified that she examined the
residue, and measured it. In issuing both items, she also relied on MSDS for the Paraspray and
Thermocoat, and NFPA 33, Standard for Spray Application Using Flammable and Combustible
Materials (13) (Tr. 61). Employee Exposure IH Landes observed Respondent's employees working in the cited areas. She learned
through speaking to employees that the spray area was being used in the condition in which she
observed it (Tr. 60). (14) Employer Knowledge The employer with the exercise of reasonable diligence during its inspection of the work
area could have known of the presence of the cited accumulations of combustible residue. The
violative condition was readily observable. Classification and Penalty IH Landes testified that employees were exposed to a fire hazard (Tr. 60). She classified
the violation as serious based upon the nature of resultant injury - severe burns (Tr. 64). She
testified that the gravity of the violation reflected that the severity of the violative condition was
high, citing a possible injury of severe burns; and that there was a "lesser" probability of an
accident occurring, based on the amount of time the employees performed the operation (Tr. 31,
64). She recommended a penalty of $2,500.00. The undersigned finds that for the reasons set
forth above, "good faith" factors should be applied to the proposed penalty. Accordingly, the
undersigned finds that a penalty in the amount of $2,125.00 would be appropriate. CITATION 1, ITEM 5 29 C.F.R. §1910.151(c) 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. a) CYLINDER HEAD LINE, CHLORINE STORAGE AREA,
ON OR ABOUT 9/24/96: NO QUICK DRENCH FACILITY
FOR FLUSHING OF THE EYES AND BODY WAS MADE
AVAILABLE FOR USE BY EMPLOYEES IN THE EVENT
THEY COME IN CONTACT WITH CHEMICALS
INCLUDING BUT NOT LIMITED TO CHLORINE
CONTAINED IN 100 POUND CYLINDERS, WHILE
PERFORMING OPERATIONS SUCH AS BUT NOT
LIMITED TO CHANGING THE CYLINDERS OF
CHLORINE. b) GENERAL METAL MOLDING, POT LINE AREA, ON OR
ABOUT 9/25/96: NO QUICK DRENCH FACILITY FOR
FLUSHING OF THE EYES AND BODY WAS MADE
AVAILABLE FOR USE BY EMPLOYEES IN THE EVENT
THEY COME IN CONTACT WITH CHEMICALS
INCLUDING BUT NOT LIMITED TO CHLORINE
CONTAINED IN 100 POUND CYLINDERS, WHILE
PREFORMING OPERATIONS SUCH AS BUT NOT
LIMITED TO CHANGING THE CYLINDERS OF
CHLORINE. Employer Noncompliance IH Landes testified that there was no quick drench facility in the immediate area of the
cylinder head line (Tr. 66, Ex. C-20, photo 1). She also testified that in general metal molding
hot line there was not a quick drench facility in the immediate area (Tr. 66, Ex. C-20, photo 2).
She testified that employees change the chlorine cylinders in the area every three days. She
made this determination after speaking with an employee who changed the cylinder, although she
did not observe the actual change (Tr. 66,70, 234). She did not measure the distance from the
cylinders to the quick drench facility in the rocket machine area or the maintenance area. In her
opinion, it was "too far" away to measure and she could not see them from the chlorine storage
area (Tr. 234-35). The employee told her that he wore a full-face respirator and rubber gloves
while changing the cylinder (Tr. 236-38). She testified that this equipment would not completely
protect the employee from chlorine exposure should an accident occur. The chlorine could "leak"
through the employee's clothes and burn the skin on his arms, body, neck and/or leg (Tr. 237-39).
She determined that the material was corrosive by consulting the MSDS for chlorine. (Tr. 68, Ex.
C-21). In her opinion, a quick drench facility should have been located within 10 feet of the area
where exposure to the corrosive material may occur. (Tr. 240) Viletta Linton, Citation Corporation Safety Director, testified that at the time of the
inspection, when one of the cylinders was empty, a new one would be brought in and hooked up.
The employees wore a full face respirator and gloves while performing this task. Furthermore,
she testified that there was an eye-wash and shower approximately 70-75 feet away from both
locations. In her opinion, these facilities complied with the general rule of thumb calling for a
100 foot distance (Tr.1634). (15) The primary purpose of §1910.151(c) is to assure that employees who work with
corrosive chemicals have facilities readily available to wash such chemicals from their eyes or
body before they suffer injury. Bridgeport Brass Co.,11 BNA OSHC 2255 (No. 82-899, 1984).
This requirement provides a type of protection separate and dissimilar from that afforded by
personal protective equipment, such as chemical goggles, gloves and aprons, all of which are
designed to shield the eyes and body from any physical contact with such materials. The record contains unrefuted evidence that chlorine is a corrosive (Ex. C-2. ¶ 20, 21).
Thus, the standard is applicable to the cited condition. The standard, which does not state what
distance the quick drenching facilities must be from a given work area, requires that such
facilities be placed within the work area. Review Commission precedent has recognized that
whether an employer's facilities are adequate to comply with the standard depends on the
particular circumstances present at the workplace, including the nature and amount of corrosive
materials to which employees are exposed, the configuration of the work area, and the distance
between the spot where corrosive chemicals are used and the drenching facilities. Gibson
Discount Center, Store No. 15, 6 BNA OSHC 1526, 1527, (No. 14657, 1978). The undersigned
finds that the quick drenching facilities were not within the cited work areas for immediate
emergency use. IH Landes testified that she could not view the available facilities from the cited
areas. The configuration of the facility corroborates the fact that the cited work areas were not
within the work areas containing the drenching facilities some 70-75 feet away. Accordingly, the
cited condition is violative of the standard. Employee Access to the Violative Condition Employees were exposed to this condition when they changed the chlorine cylinders (Tr.
70). Employer Knowledge of the Violation IH Landes testified that the employer knew that the employees changed the chlorine
cylinders. (Tr. 70). The record establishes that there were quick drenching facilities in other
work areas of the plant. Furthermore, the Hazard Evaluation Report prepared by State of New
York consultant in 1995 contained a recommendation that "eyewash stations always be near the
hazardous work areas" (Ex. C-45). Classification and Penalty IH Landes testified that employees were exposed to the hazard of severe skin burns or
corneal damage (Tr. 68, 70) She recommended that the item be classified as serious (Tr. 70-71).
The record establishes that the gravity of the violation reflected that the that the resultant injury
or illness would be of a high severity; and the probability of an accident occurring was
"lesser."in light of the protective equipment employees wore when performing this task (Tr. 71).
The undersigned finds that for the reasons set forth above, "good faith" factors should be applied
to the proposed penalty. Accordingly, the undersigned finds that a penalty in the amount of
$2,125.00 would be appropriate. CITATION 1, ITEM 6 29 C.F.R. §1910.215(b)(9) 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 O-18, O-19,
O-20, O-21, O-22, and O- 23.) a) PATTERN SHOP: METAL SHOP, ON OR ABOUT 9/20/96:
BALDOR GRINDER/BUFFER SERIAL NO W683 WAS
MISSING TONGUE GUARDS ON BOTH LEFT AND
RIGHT SIDES, EXPOSING EMPLOYEES TO BEING
STRUCK BY WHEEL PARTS SHOULD THEY BREAK. b) MAINTENANCE SHOP, ON OR ABOUT 9/24/96: BALDOR
GRINDER/BUFFER SERIAL NO. F579: OPENINGS
MEASURED ONE INCH AT LEFT WHEEL AND 3/4-INCH
AT RIGHT WHEEL. G.E. GRINDER/BUFFER SERIAL NO.
219502 WAS MISSING TONGUE GUARDS ON BOTH LEFT
AND RIGHT SIDES, EXPOSING EMPLOYEES TO BEING
STRUCK BY WHEEL PARTS SHOULD THEY BREAK. Employer Noncompliance IH Landes testified that the standard requires that abrasive wheels, adjustable tongues be
adjusted within 1/4 of an inch, and that tongue guards be adjusted within 1/4 of an inch (Tr. 71).
The Respondent does not dispute the applicability of the standards. IH Landes testified that the
tongue guard was missing from both the right and left side of the Baldor grinder in the pattern
shop (Tr. 72, 74-75, 241; Ex. C-22, p.1, photo 1). She also referenced the results of a New York
State Department of Labor Safety Survey of Oberdorfer's facilities, conducted on August 22,
1995, which indicated that in "various locations," the "[d]istance between abrasive wheel
peripheries and adjustable tongue or end of safety guard peripheral member at the top exceeded
one-fourth inch."(Ex. C-23, p. 6). IH Landes testified that the guards on the Baldor grinder were not adjusted properly (Tr.
241). The opening on the left measured 1", and the opening on the right measured 3/4". (Tr. 72,
C-22, p. 1, photo 2). She further testified that the G.E. grinder/buffer was missing the tongue
guards on both the right and left side. (Tr. 72, C-22, p. 2). Employee Access to the Violative Condition IH Landes testified that she determined that employees used the grinder from her
conversations with Respondent's employees. They informed her that they used the grinder on an
as needed basis in the condition in which she observed them (Tr. 75, 242-43). They worked in
close proximity to the grinder (Tr. 75). The undersigned finds that with respect to instance b, the
Baldor grinder in the maintenance shop, the Secretary has not proven employee exposure. The
guards on this grinder were not properly adjusted at the time of the inspection. IH Landes
conceded it was possible that the guards could be adjusted before the grinder was used (Tr. 243).
Accordingly, this violative condition is vacated from this item. Employer Knowledge of the Violation The Respondent had at least 10 to 15 other grinders on the worksite which had the
tongue guards properly adjusted (Tr. 241-42). Respondent could have determined the violation
through observation (Tr. 76). Classification and Penalty IH Landes testified that if an accident were to occur, the grinder wheel could break,
exposing employees to the hazard of being struck by wheel parts. (Tr. 76). She recommended
that the violation be classified as serious, based on a possible injury of severe abrasions (Tr. 78).
She recommended that the gravity of the violation reflect the severity of any potential injuries as
"low," and the probability of an accident occurring as "lesser." (Tr. 78). Again, all but two
grinders on site were properly adjusted. The undersigned finds that for the reasons set forth
above, "good faith" factors should be applied to the proposed penalty. Accordingly, the
undersigned finds that a penalty in the amount of $1,275.00 would be appropriate. CITATION 1. ITEM 7 29 C.F.R. §1910.304 (e)(1)(iv) Location in or on premises. Overcurrent devices shall be readily
accessible to each employee or authorized building management personnel. These overcurrent
devices may not be located where they will be exposed to physical damage nor in the vicinity of
easily ignitable material. a) COMPRESSOR ROOM, ON OR ABOUT 10/9/96: ACCESS
TO 440 VOLT DISTRIBUTION PANEL 600A WAS
BLOCKED BY A 55 GALLON DRUM, EXPOSING
EMPLOYEES TO AN ELECTRICAL HAZARD. 1. Employer Noncompliance CO Rezsnyak testified that he observed that access to a 440 volt distribution panel was
blocked by a 55 gallon drum with a wooden pallet blocking the panel door from being open fully
for access (Tr. 163, Ex. C-24). He indicated that employees may need access to the panel to shut
off or to replace a breaker (Tr. 163). He further testified that by not having the door fully open,
an employee accessing inside to shut off a breaker or repair a breaker could be subject to an
electrical hazard (Tr. 164-65, 1108). On cross-examination, CO Rezsnyak admitted that the door was not blocked by the 55-gallon drum. He amended his testimony to reflect that the wooden pallet sat on top of a 55 gallon
drum and as on opened the door, it made contact with the edge of the pallet (Tr. 1107, 1113-14).
Thus, instead of opening to a 90 degree angle the door opened to approximately a 70 degree
angle - opening 2/3's or 3/4's of the way (Tr. 1109-1110). He testified that in this position, the
door would restrict access to all parts of the panel - you would not have access to hinged right
side of the panel as you would on left side (Tr. 1109) The undersigned finds that the testimony of the compliance officer was at best
speculative and uncertain. Additionally, the photo of the alleged violation shows the door open
and readily accessible. The Secretary has not proven by a preponderance of the evidence that the
panel was not fully accessible. Accordingly, this violation is Vacated. CITATION 1, ITEM 8 (16) 29 C.F.R. §1910.303(g)(2)(I) "Guarding of Live Parts" Except as required or permitted
elsewhere in this subpart, live parts of electric equipment operating at 50 volts or more shall be
guarded against accidental contact by approved cabinets or other forms of approved enclosures,
or by any of the following means: (A) By location in a room, vault, or similar enclosure that is accessible only to
qualified persons. (B) By suitable permanent, substantial partitions or screens so arranged that only
qualified persons will have access to the space within reach of the live parts. Any openings in
such partitions or screens shall be so sized and located that persons are not likely to come into
accidental contact with the live parts or to bring conducting objects into contact with them. (c) By location on a suitable balcony, gallery, or platform so elevated and arranged as
to exclude unqualified persons. (D) By elevation of 8 feet or more above the floor or other working surface. The undersigned finds that in each instance the standard was applicable. The record
establishes that Respondent's operations were 120-volt, 220-volt and 460 (average) systems (Tr.
1197). Thus, the voltage of exposed wire exceeded 50 volts. In each case IH Landes determined
that the wires were live by the use of an AC sensor (Tr. 92). As discussed below the Secretary
proved by a preponderance of evidence these exposed wires were subject to accidental contact by
any employee in the area or who had access to the panels. IH Landes determined that
Respondent's were exposed to the violative conditions. She either observed or talked to
employees near the cited areas (Tr. 93). The Respondent argues that in those instances where the
"live parts" were located within panels there was no violation because they were guarded against
accidental contact by doors of the panel. The undersigned finds that the record does not contain
evidence which reveals that these panels were locked in any manner or off limits to any group of
employees. For example, the record contains no evidence that the doors of the panels were not
marked to indicate that only qualified persons were permitted to open and/or access them. Upon
anyone opening said panel there was exposure to any employee. The record also establishes
employer knowledge. a) CYLINDER HEAD LINE: LADLE REPAIR AREA, ON OR
ABOUT 9/24/96 VOLT MAIN DISTRIBUTION PANEL HAD
ONE BLANK MISSING, EXPOSING EMPLOYEES TO
LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes testified that in the cylinder head line, in the ladle repair area, she observed
that a 440 volt main distribution panel was missing a blank. (Tr. 82, Ex. C-25. photo 2). This
opening was 15 inches by 7 inches, and was 44 inches from the floor (Tr. 84). The missing blank
would have provided protection against accidental contact by an employee who was engaged at
the panel. Employee Access to the Violative Condition IH Landes testified that employees would be exposed to this condition when they
attempted to use the distribution panel. They would be right there at the hazard as they accessed
the panel (Tr. 93). Thus, exposure would occur when an employee opened the door to the panel
to turn something on or off, or servicing needed to be done with that panel (Tr. 246). Employer Knowledge This violation was readily observable by anyone at the panel. e) CYLINDER HEAD LINE: PLATFORM FOR CLAM
PUMPS, ON OR ABOUT 9/26/96: 440 VOLT HEATER
CONNECTION JUNCTION BOX WAS MISSING COVER,
EXPOSING EMPLOYEES TO LIVE ELECTRICAL PARTS. Employer Noncompliance CO Rezsnyak testified that he observed 440 volt heater connection junction box in the
cylinder head line that was missing its cover exposing employees to electrical parts (Tr. 166-67,
Ex. C-26, photo 1 and photo 2). He testified that maintenance technician, Earl Wicks was with
him when he observed this condition. Mr. Wicks used CO Rezsnyak's voltage tester and
determined that the box was energized (Tr. 171). Employee Access to the Violative Condition The box was located on top of the platform which was not blocked off to anyone and,
where an employee, such as a molder, could walk by and accidently strike it (Tr. 173-74, 1136).
The condition was abated immediately - a cover was placed over the heater (Ex. 26, photo 2). Employer Knowledge This condition was readily observable. f) PERMANENT MOLD AREA, SERVICE TRENCH
TERMINAL, ON OR ABOUT 9/25/96: ON ONE DUPLEX
RECEPTACLE BOX WIRING GOING TO BOX WAS
PULLED OUT, EXPOSING ENERGIZED CONDUCTOR
(HOT LEG) WHILE THE NEUTRAL LEG WAS STILL
CONNECTED TO BOX. EMPLOYEES WERE EXPOSED
TO LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes observed a service trench terminal with a wire pulled from the box, exposing
the energized conductor (Tr. 85-86, Ex. C-27). The neutral wire was still connected to the box
(Tr. 85-86). The exposed wire protruded approximately two or three inches (Tr. 87). A voltage
indicator device was used to determine that the wire was energized (Tr. 171-72, 251). Employee Access to the Violative Condition Employees in the mold area, walked through this area on a daily basis (Tr. 93, 1137).
The area was not locked or blocked off. The terminal was in the middle of an aisle which was
accessed by employees and subject to accidental contact (Tr. 173, 252-53, 1137). 3. Employer Knowledge of the Violation The condition was in plain view, and testing revealed that the wiring was energized (Tr.
174). g) GREEN SAND DEPARTMENT: 6A FEED BELT, ON OR
ABOUT 9/27/96: 220 VOLT ELECTRICAL PANELS
MOUNTED ON WEST WALL UNDERNEATH 6A FEED
BELT WERE MISSING PANEL COVERS, EXPOSING
EMPLOYEES TO LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes and CO Rezsnyak testified that they observed 220 volt electrical panels
mounted on the west wall under the 6-A feed belt that were missing covers and exposing
employees to live wires (Tr. 89, 169, Ex. C-28). CO Rezsnyak testified that he used the voltage
tester to determine that the exposed wires were live (Tr. 170). He testified further that Richard
Tucci indicated that the panels operated the lighting circuit for the foundry area (Tr. 172). Employee Access to the Violative Condition CO Rezsnyak testified that employees would be exposed to the hazard while shutting off
or turning on a breaker (Tr. 173). IH Landes testified that the panel was located on an elevated
platform which she accessed by ladder. Employees informed her that they would be on that
platform when they needed to repair equipment or replace a light bulb. She also learned that an
employee would go up there to check the sand line Although this was not a general work area
accessible to anyone other than maintenance employees, she recalled that the area was not
blocked off (Tr. 246-48). Employer Knowledge of the Violation CO Rezsnyak testified that the condition was in plain view. (Tr. 174) I) MAINTENANCE SHOP, ON OR ABOUT 9/24/96: CIRCUIT-BREAKER PANEL ON WALL NEAR MAINTENANCE
OFFICE HAD TWO BLANKS MISSING, EXPOSING
EMPLOYEES TO LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes testified that she observed a circuit breaker panel on the wall in the
maintenance shop near the maintenance office that was missing two blanks exposing employees
to accidental contact (Tr. 89, C-29). Employee Access to the Violative Condition IH Landes testified that employees were close to exposed electrical parts when they
opened the panel doors and turned the breakers on or off. (Tr. 91, 93, 254). They would be
exposed to live wires from these open spaces within the panel. She testified that maintenance
employees or other employees in the area, who were not necessarily electricians had access to the
panel (Tr. 254). Employer Knowledge of the Violation This violation was readily observable by anyone at the panel. j) CYLINDER HEAD LINE: DRY SAND POUR OFF AREA,
ON OR ABOUT 9/26/96: CIRCUIT-BREAKER PANEL HAD
ONE BLANK MISSING, EXPOSING EMPLOYEES TO
LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes testified that in the dry sand pour-off area she observed a circuit panel box
with one blank missing exposing employees to accidental contact with electrical parts. (Tr. 91) Employee Access to the Violative Condition IH Landes testified that employees in the area as well as maintenance employees would
have access to this condition when turning on or off breakers at the panel. An employee was
exposed to live electrical wire at the open space (Tr. 93, 254). Employer Knowledge of the Violation This violation was readily observable by anyone at the panel. k) METAL LAB, ON OR ABOUT 10/8/96: CIRCUIT-BREAKER PANEL HAD TWO BLANKS MISSING,
EXPOSING EMPLOYEES TO LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes testified that in the metal lab, she observed a circuit breaker panel that was
missing two blanks exposing employees to accidental contact with live electrical parts (Tr. 91). Employee Access to the Violative Condition IH Landes testified that employees in the area as well as maintenance employees would
have access to this condition when turning on or off breakers at the panel (Tr. 93, 254). Employer Knowledge of the Violation This violation was readily observable by anyone at the panel. l) CORE ROOM: COLUMN 10' WEST OF STATION #37, ON OR ABOUT
9/11/96: A DUPLEX RECEPTACLE OUTLET HAD THE COVER
PULLED AWAY FROM BOX, EXPOSING EMPLOYEES TO LIVE
ELECTRICAL PARTS. Employer Noncompliance IH Landes testified that in the core room, she observed a duplex receptacle outlet with the
cover pulled away (Tr. 91, Ex. C-25). Employee Access to the Violative Condition IH Landes testified that employees would have access to this condition when they
attempted to use the outlet which was available for use (Tr. 94). Employer Knowledge of the Violation This violation was readily observable by anyone at the panel. m) CORE ROOM: CORE BOX STAGING AREA, ON OR ABOUT 9/16/96: A
DUPLEX RECEPTACLE OUTLET WAS DAMAGED, EXPOSING
EMPLOYEES TO LIVE ELECTRICAL PARTS. Employer Noncompliance IH Landes testified that she observed a damaged duplex receptacle outlet in the core box
staging area (Tr. 92). Employee Access to the Violative Condition IH Landes testified that employees would be exposed to this condition when they went to
use the outlet. The cited outlet was available for use (Tr. 94). Employer Knowledge of the Violation IH Landes and CO Rezsnyak testified that the cited conditions were in plain view. (Tr.
94, 174) Classification and Penalty IH Landes testified that in each instance, employees were exposed to the hazard of live
electrical parts, and that employees could be exposed to an electric shock possibly resulting in
death (Tr. 94). Thus, the item was classified as serious. The record reflects that gravity of the
violation reflects that the severity of injury was high - death; and the probability of an accident
occurring was "greater" in light of the number of instances, and the fact that these panels were
accessible to employees other than electricians (Tr. 94-95, 245-54). IH Landes proposed a
penalty of $5,000.00 (Tr. 95). The undersigned finds that for the reasons set forth above, "good
faith" factors should be applied to the proposed penalty. Accordingly, the undersigned finds that
a penalty in the amount of $4,250.00 would be appropriate. CITATION 1, ITEM 9 29 C.F.R. §1910.304(a)(2) Polarity of connections. No grounded conductor may be attached to
any terminal or lead so as to reverse designated polarity. Employee Exposure and Employer Knowledge This standard requires that grounded conductors attached to terminal or leads not have
reverse polarity. IH Landes testified that in each instance, using the receptacle tester, (Ex. C-30),
she determined whether the outlet was wired properly. She also determined by speaking to
employees in each of the instances that Respondent's employees were exposed. In each instance,
if the employees in the area were to plug something into one of the outlets, they would be
exposed to an electrical hazard. The outlets were used in the condition in which she observed
them - an outlet with reverse polarity will continue to operate. She determined this by observing
that there were items plug into the outlets, or by speaking to the employees (Tr.105-06). Because
of the reverse polarity employees were exposed to electrical shocks and even to electrocution
when they used the equipment with reverse polarity or plugged equipment into outlets with
reverse polarity (Tr. 105-06). The Secretary's electrical expert, Phil Peist, further explained the
principles of reverse polarity (Tr. 1232-39). IH Landes testified that Respondent could have determined that the violations existed by
using a circuit tester to determine the proper wiring. This is how she determined that the
violation existed (Tr. 97-98, 106). Respondent argues that the Secretary did not establish
knowledge of the alleged violations - the Secretary must prove more than "it is theoretically
possible for an employer it obtain knowledge of the violation"(Respondent's Post-Hearing
Memorandum, p. 31). The company electrician, Richard Tucci, testified that did not receive
complaints from employees concerning the receptacles with perverse polarity and without
receiving a complaint, he would have no way of knowing. He stated that the problem with an
outlet with perverse polarity is that no matter how something is plugged in, it will work. Unless
a meter is plugged in, one would not know about the problem (Tr. 1446-47). The undersigned finds that the Respondent has not disputed the applicability of the cited
standard. The discussion above in conjunction with the discussion below establishes
noncompliance in each instance and employee exposure. The undersigned further finds that
constructive knowledge of the violation has been established - with the exercise of reasonable
diligence Respondent would have been aware of this condition. Furthermore, Respondent's
obligation to inspect the workplace was not theoretical. Review Commission precedent has
established that an employer's reasonable diligence includes an obligation to inspect and take
measures to prevent the occurrence of exposure to hazards. Swidzinski, supra. The record
establishes that Respondent had no such inspections and had no preventative measures in place.
Respondent placed the duty to locate electrical hazards upon the employees. Respondent's
maintenance technician, Mr. Tucci testified that he had the responsibility to ensure that electrical
equipment was working properly. He had no way of knowing that there was a problem unless
someone reported it to him. He did not check equipment and this had been his practice during
his employment with Respondent which began in 1988 to the present (except for a period of time
in 1990 to 1993)(Tr. 1448-50, 1460-61). a) INSPECTION DEPARTMENT: ZYGLO DIG OUT
STATION, ON OR ABOUT 10/8/96: ONE DUPLEX
RECEPTACLE OUTLET MOUNTED INSIDE STATION
WAS WIRED IN REVERSE POLARITY MODE, EXPOSING
EMPLOYEES TO AN ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex outlet wired in reverse polarity in the
zyglo dig out station (Tr. 96-97). Additionally, there was 4.5 amp fan plugged into the outlet
(Tr. 108-09). b) GREEN SAND DEPARTMENT: 6A GREEN MOLDING
LINE, ON OR ABOUT 9/27/96: DUPLEX RECEPTACLE
OUTLETS MOUNTED ON THIRD COLUMN EAST SIDE:
SECOND COLUMN EAST SIDE; FIRST COLUMN EAST
SIDE; AND POST BEHIND "L" OVEN WERE WIRED IN
REVERSE POLARITY MODE, EXPOSING EMPLOYEES
TO AN ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle outlet wired in reverse polarity
in the green sand department, on the 6-A green sand molding line (Tr. 98; Ex. C-31).
Additionally, there was a .5 amp timer plugged into the outlet. (Tr. 108-09). c) CORE ROOM: N OR ABOUT 9/12/96: ONE DUPLEX
RECEPTACLE OUTLET MOUNTED ON FIRST COLUMN
EAST OF CORE ROOM WAS WIRED IN REVERSE
POLARITY MODE, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle outlet on the first column east
of the core room office wired in reverse polarity (Tr. 100, Ex. C-32). The record also contains
undisputed evidence that this outlet had a fan plugged into it and it was plugged in and out at the
beginning and end of the shift by an employee (Tr. 255). d) CORE ROOM: SHELL CORE PRODUCTION AREA, ON
OR ABOUT 9/12/96: ONE DUPLEX RECEPTACLE
OUTLET MOUNTED ON EAST WALL BEHIND 44
REDFORD MACHINE WAS WIRED IN REVERSE
POLARITY MODE, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle outlet mounted on the East wall
in the core room, behind the 44 Redford machine, that was wired in reverse polarity (Tr. 101, C-32, photo 2). e) CORE FINISHING: ROCKER BOX/PARASPRAY PREP
AREA, ON OR ABOUT 9/16/96: ONE DUPLEX
RECEPTACLE ON FLOOR WAS WIRED IN REVERSE
POLARITY MODE, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle on the floor of the core finishing
area that was wired in reverse polarity (Tr. 101-02; Ex. C-15). f) CORE ROOM: CORE BOX STAGING AREA, ON OR
ABOUT 9/16/96: ONE DUPLEX RECEPTACLE OUTLET
MOUNTED ON NORTHEAST COLUMN NEAR C&D
BATTERY CHARGER WAS WIRED IN REVERSE
POLARITY MODE, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle outlet on the north-east column
in the core room wired in reverse polarity (Tr. 102-03, Ex. C-15, photo 2). g) PATTERN SHOP: METAL SHOP, ON OR ABOUT 9/20/96:
ONE DUPLEX RECEPTACLE OUTLET MOUNTED ON
WALL BEHIND PARTS WASHER WAS WIRED IN
REVERSE POLARITY MODE, EXPOSING EMPLOYEES
TO AN ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle outlet in the pattern shop,
behind the parts washer, that was wired in reverse polarity (Tr. 103) . h) PATTERN SHOP: METAL SHOP, ON OR ABOUT 9/20/96:
ONE DUPLEX RECEPTACLE OUTLET MOUNTED ON
WALL BEHIND SURFACE GRINDER WAS WIRED IN
REVERSE POLARITY MODE, EXPOSING EMPLOYEES
TO AN ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed a duplex receptacle outlet mounted on the east wall
of the metal shop, behind the surface grinder, wired in reverse polarity (Tr. 103, C-32). I) PATTERN SHOP: MOLD & DIE STOCK ROOM, ON OR
ABOUT 9/20/96: ONE DUPLEX RECEPTACLE OUTLET
MOUNTED ON WALL WAS WIRED IN REVERSE
POLARITY MODE, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that in the mold and die stock room of the pattern shop, she observed
a duplex receptacle outlet wired in reverse polarity (Tr. 104). j) FINISHING DEPARTMENT: KNOCKOUT CELLAR, ON
OR ABOUT 10/2/96: DUPLEX RECEPTACLE OUTLETS
MOUNTED ON EAST AND WEST WALL WERE WIRED
IN REVERSE POLARITY MODE, EXPOSING
EMPLOYEES TO AN ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that in the knockout cellar of the finishing department, she observed a
duplex outlet wired in reverse polarity (Tr. 104). k) FINISHING DEPARTMENT: NORTH WALL, ON OR
ABOUT 10/4/96: ONE DUPLEX RECEPTACLE OUTLET
MOUNTED UNDERNEATH CIRCUIT-BREAKER PANEL
WAS WIRED IN REVERSE POLARITY MODE, EXPOSING
EMPLOYEES TO AN ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that on the north wall of the finishing department, she observed a
duplex receptacle outlet mounted underneath the circuit breaker panel, wired in reverse polarity.
(Tr. 104). l) FINISHING DEPARTMENT: SOUTHEAST WALL, ON OR
ABOUT 10/4/96: ONE DUPLEX RECEPTACLE OUTLET
MOUNTED ON SOUTHEAST COLUMN NEAR ACME
SAW ENCLOSURE WAS WIRED IN REVERSE POLARITY
MODE, EXPOSING EMPLOYEES TO AN ELECTRICAL
HAZARD. Employer Noncompliance IH Landes testified that on the southeast wall of the finishing department, near the Acme
saw enclosure, she observed a duplex receptacle outlet wired in reverse polarity(Tr. 104-05). Classification and Penalty The employees could have been protected if the duplex receptacle outlets were wired
correctly. If an accident were to occur, depending on whether the outlet had something plugged
into its, and on the amps, the injury could be anything from death to minor shocks. She classified
the violation as serious because of the range of injuries. She classified the potential injury in
instance "a" as ventricular fibrillation, possibly resulting in death. She indicated the potential
injury in instance "b" could be respiratory arrest and severe muscular contraction, while the
potential injury in instances "c" through "l" could be minor shocks or burns (Tr. 107-08). She
proposed a penalty of $2,500, based on possible injuries of a "high" severity, and the "lesser"
probability that an accident would occur (Tr. 108). The undersigned finds that for the reasons set
forth above, "good faith" factors should be applied to the proposed penalty. Accordingly, the
undersigned finds that a penalty in the amount of $2,125.00 would be appropriate. CITATION 1, ITEM 10 29 C.F.R. §1910.305(g)(2)(iii) Flexible cords shall be connected to devices and fittings so that
strain relief is provided which will prevent pull from being directly transmitted to joints or
terminal screws. a) CORE ROOM: CORE BOX STAGING AREA, ON OR
ABOUT 9/16/96: 3 PHASE 440 VOLT WIRING ENTERING
DISCONNECT FOR C&D BATTERY CHARGER SERIAL
NO. PIU780267 WAS MISSING STRAIN RELIEF,
EMPLOYEES USE BATTERY CHARGER TO CHARGE
FORK TRUCKS, EXPOSING EMPLOYEES TO A FIRE
HAZARD. Employer Noncompliance Respondent does not dispute the applicability of the cited standard. Both IH Landes and
CO Rezsnyak testified that they observed a three-phase 440 volt battery charger missing the
strain relief device (Tr. 110, 175). IH Landes explained that a strain relief device prevents
tension from being transmitted between a joint and the terminal screws, protecting wires from
becoming exposed (Tr. 110-12) b) GREEN SAND DEPARTMENT: 5A GREEN SAND
MOLDING LINE, ON OR ABOUT 9/27/96: 220 VOLT
POWER CABLE FEEDING INTO DISCONNECT FOR
TUNNEL HEATER WAS NOT HELD IN PLACE BY
EXISTING STRAIN RELIEF, EMPLOYEES USE BATTERY
CHARGER TO CHARGE FORK TRUCKS, EXPOSING
EMPLOYEES TO A FIRE HAZARD. Employer Noncompliance Both IH Landes and Rezsnyak testified that they observed that a 220 volt cable power
cable feeding into the disconnect for the tunnel heater that was not held in place by the existing
strain relief. (Tr. 110, 175, Ex. C-35). Employee Access to the Violative Condition IH Landes testified that employees worked in the area where both hazardous conditions
were observed. She learned by speaking to employees that the cords were used in the conditions
observed (Tr. 113). Employer Knowledge of the Violation IH Landes indicated that the violations were in plain view (Tr. 113). Classification and Penalty IH Landes testified that employees were exposed to a fire hazard, causing severe burns.
Thus, the violations were classified as serious. She determined that the gravity of the violation
reflected a high severity because of the potential resultant injury - severe burns, and that the
probability of an accident occurring could be classified as "lesser" (Tr. 113-14). She proposed a
penalty of $2,500. The undersigned finds that for the reasons set forth above, "good faith"
factors should be applied to the proposed penalty. Accordingly, the undersigned finds that a
penalty in the amount of $2,125.00 would be appropriate. CITATION 1, ITEM 11 29 C.F.R. §1910.1048(i)(3) If there is any possibility that an employee's eyes may be splashed
with solutions containing 0.1 percent or greater formaldehyde, the employer shall provide
acceptable eyewash facilities within the immediate work area for emergency use. a) CORE ROOM: SAND HEATER AREA, ON OR ABOUT
9/11/96: NO EYE WASH FACILITY FOR FLUSHING OF
THE EYES WAS MADE AVAILABLE FOR USE BY
EMPLOYEES IN THE EVENT THEY COME IN CONTACT
WITH CHEMICALS INCLUDING BUT NOT LIMITED TO:
FORMALDEHYDE IN THE RANGE OF .1-1 PERCENT,
CONTAINED IN ACME-FLOW 2021, WHILE
PERFORMING OPERATIONS SUCH AS BUT NOT
LIMITED TO CHANGING THE BUNG ON THE BULK
CONTAINER OF ACME-FLOW 2021. Employer Noncompliance IH Landes testified that there was no eye wash facility in the stand heater area of the core
room (Tr. 115-16). She indicated that employees change the bung on a bulk container of
formaldehyde, exposing them to formaldehyde ranging from .1 to 1 percent (Tr. 116; Ex. C-116
[formaldehyde MSDS]). There was an eye wash facility located 48 feet from this area (Tr. 116,
120-21). In her opinion, a distance of 48 feet would be too far to travel if an employee's eyes
came in contact with formaldehyde. Formaldehyde could destroy the eye tissue if drenching
facilities were no immediately available (Tr. 121; Ex C-4, "E" and "F"). When employees change the container, they wear safety glasses with side shields, and
gloves(Tr. 263). IH Landes conceded that being splashed in the eye with the material was the
primary risk associated with the process (Tr. 263). She indicated that safety glasses are not
sealed on the top or bottom, thus an employee could still be exposed to the hazard while wearing
glasses (Tr. 284-85). Safety Director Villeta Linton testified that when the drum is changed, the new valve is
inserted into the opening at the top of the drum. She considered it "very unlikely" that an
employee could be splashed during the operation (Tr. 1639). She acknowledged that the
walkway to the eyewash facility was not perfectly straight (Tr. 1646). Employee Lance Taylor
testified that formaldehyde is "gravity fed" from the barrel while it is laying on its side (Tr. 1337-38). When the barrel is changed, hoses are disconnected and the drum is removed from its
horizontal position in the cradle. The bung valve assemble is then removed from the barrel (Tr.
1338). When a new barrel is positioned, the bung valve is placed in the barrel while it is in the
upright position, the barrel is then returned to a horizontal position for dispersal (Tr. 1337). The undersigned finds that the aforementioned description of the work process
demonstrates a "possibility" of the splashing formaldehyde. The standard is applicable. The
undersigned finds in light of the nature of the product, and the location where it was used from
the eyewash facilities, the distance of 48 feet was not within the immediate area for emergency
use. The undersigned also finds that the access to the eyewash was not in a perfectly straight
direction. Employee Access to the Violative Condition IH Landes testified that employees would be exposed to the possibility of their eyes being
splashed with a solution containing formaldehyde when they changed the bung on the bulk
container of formaldehyde (Tr. 122). She did not observe the container being changed, but was
told by an employee that it was changed approximately once a month (Tr. 261, 263). Employer Knowledge of the Violation IH Landes testified that the employer could have readily observed that employees were
using formaldehyde, and that the nearest eye wash facility was located 48 feet away (Tr. 122). Classification and Penalty IH Landes testified that an employee could received chemical burns to their eyes should
an accident occur, classifying the violation as serious (Tr. 122-23). This potential injury was
classified as high severity. IH Landes indicated that the possibility of an accident occurring was
"lesser" (Tr. 123, 263). The employee wore safety glasses with side shields and gloves while
performing this task once a month. (17) She proposed a penalty of $2,500 (Tr. 123). The
undersigned finds that for the reasons set forth above, "good faith" factors should be applied to
the proposed penalty. Accordingly, the undersigned finds that a penalty in the amount of
$2,125.00 would be appropriate. CITATION 1, ITEM 12 a and 12b 29 C.F.R. §1910.1200(f)(5) Except as provided in paragraphs (f)(6) and (f)(7) of this section,
the employer shall ensure that each container of hazardous chemicals in the workplace is labeled,
tagged or marked with the following information: (I) -- Identity of the hazardous chemical(s) contained therein; and... (ii) -- Appropriate hazard warnings, or alternatively, words, pictures, symbols, or combination
thereof, which provide at least general information regarding the hazards of the chemicals, and
which, in conjunction with the other information immediately available to employees under the
hazard communication program, will provide employees with the specific information regarding
the physical and health hazards of the hazardous chemical. IH Landes testified that Respondent's employees worked with the following containers
which were not labeled with either the identity of the chemicals or with hazard warnings (Tr.
123, 127, 130-35): a) CORE ROOM: DRY SAND ASSEMBLY AREA, ON OR
ABOUT 9/12/96: BOTTLES, COFFEE CANS AND PLASTIC
JUGS WERE NOT LABELED WITH THE IDENTITY OF
THE HAZARDOUS CHEMICALS THEY CONTAINED.
EMPLOYEES HAVE THE POTENTIAL FOR
ABSORPTION OF HAZARDOUS CHEMICALS
INCLUDING BUT NOT LIMITED TO : NITROSEL CORE
CEMENT SL-144; IFS SOLVENT 99; #7 CEYLON AND
BASIC FORMALAC. EMPLOYEES BRUSH THESE
MATERIALS ONTO CORES. ADDITIONALLY, THESE
CONTAINERS WERE NOT LABELED WITH THE
APPROPRIATE HAZARD WARNINGS. b) CORE ROOM: CORE FINISHING DEPARTMENT, OR
ABOUT 9/16/96: "GLUE" BOTTLES WERE NOT LABELED
WITH THE IDENTITY OF THE HAZARDOUS
CHEMICALS THEY. EMPLOYEES HAVE THE
POTENTIAL FOR ABSORPTION OF HAZARDOUS
CHEMICALS INCLUDING BUT NOT LIMITED TO :
NITROSEL CORE CEMENT SL-144. EMPLOYEES BRUSH
THESE MATERIALS ONTO CORES. ADDITIONALLY,
THESE CONTAINERS WERE NOT LABELED WITH THE
APPROPRIATE HAZARD WARNINGS. c) CORE FINISHING: ROCKER BOX/PARASPRAY PREP
AREA, ON OR ABOUT 9/16/96: SPRAYER USED TO
SPRAY CORES WAS NOT LABELED WITH THE
IDENTITY OF THE HAZARDOUS CHEMICALS IT
CONTAINED. EMPLOYEES HAVE THE POTENTIAL TO
BE EXPOSED TO A FIRE HAZARD FROM HAZARDOUS
CHEMICALS INCLUDING BUT NOT LIMITED TO
PARASPRAY. ADDITIONALLY, THESE CONTAINERS
WERE NOT LABELED WITH THE APPROPRIATE
HAZARD WARNINGS. d) CORE BOX STAGING: CHILL COATING SPRAY AREA,
ON OR ABOUT 9/16/96: TWO ONE GALLON JUGS WERE
NOT LABELED SPRAYER USED TO SPRAY CORES WAS
NOT LABELED WITH IDENTITY OF THE HAZARDOUS
CHEMICALS THEY CONTAINED. EMPLOYEES HAVE
THE POTENTIAL FOR ABSORPTION OF HAZARDOUS
CHEMICALS INCLUDING BUT NOT LIMITED TO
THERMOCOAT Z-A PREMIX, EMPLOYEES USES
MATERIAL ON CHILL PIECES. ADDITIONALLY,
THESE CONTAINERS WERE NOT LABELED WITH THE
APPROPRIATE HAZARD WARNINGS. Employer Noncompliance IH Landes testified that she observed bottles, coffee cans, and plastic jugs that were not
properly labeled (Tr. 123). She observed that in the dry sand assembly area, employees from two
shifts used the materials (Tr. 268). She determined the identity of the materials, and obtained the
corresponding MSDSs from Bob Wolf (Tr. 123-24, Exs. C-36-43; See also Ex. C-14, p. 2, photo
1). In the core room finishing department, she observed unlabeled bottles identified as "glue
bottles." (Tr. 127-28). She determined that the bottles contained nitrosel core cement SL-144.
(Tr. 128). She also determined that in the core finishing department, employees from two shifts
used the materials (Tr. 268). In the rocker box Paraspray prep area, the sprayer used to spray the
cores was not labeled with the identity of the chemicals contained therein (Tr. 128). She
determined that in the core finishing department, employees from two shifts used the materials
(Tr. 268). In the chill coat spray area, she observed two one-gallon jugs that were not labeled
with the identity of the hazardous materials contained therein. She spoke with Bob Wolf, and
determined that the contents were Thermocoat Z-A Premix (Tr. 130). She determined that the
chemicals were left in this condition throughout the week. (Tr. 131) She testified that employees referred to the materials as "glue," "alcohol," and "black
lead." (Tr. 129). She also conceded that employees knew how to use the materials, and that they
appeared to be using the materials safely. (Tr. 269) Safety Director Linton testified that employees fill up their own containers, and know the
contents of the containers. She also indicated that employees have been trained with respect to
the hazards of the chemicals they are working with. She testified that and the at the time of the
inspection there was only one shift of employees working in the core room, therefore, materials
were not passed from shift to shift. (Tr. 1641-42). However, she conceded that she was not
present when IH Landes made her observations of the area (Tr. 1645). The record reveals that the standard is applicable. The undersigned finds that in spite of
the fact that employees were familiar with the contents of the containers, that the unrefuted
testimony of IH Landes establishes violations of the cited standards. 2. Employee Access to the Violative Condition IH Landes testified that the chemicals were left in each instance on the shelves throughout
the day and week. She observed employees working with the "various" chemicals. (Tr. 131-32) 3. Employer Knowledge of the Violation IH Landes testified that Respondent could have observed the existence of the violations
(Tr. 132). Additionally, Respondent's hazard communication program required labels on
portable containers "used across shifts or by more than one individual." (Ex. C-44).
Furthermore, the New York State Hazard Survey contained similar findings of these violations
(Ex. C-45; Tr. 132-34). Classification and Penalty Item 12a and 12b were grouped because both dealt with the same condition. (Tr. 137-38).
IH Landes determined that the potential injury in instances "a"and "b" would be mild irritation of
the ears, nose, throat, and upper respiratory tract; while the potential injury in instances "c" and
"d" could be first degree burns (Tr. 132, 137). She classified the violation as serious after
reviewing the MSDS's associated with the chemicals and the potential injury (Tr. 134, 270). She
recommended a penalty of $1,500.00 based on the low severity of the potential injuries, and a
probability of an accident occurring of "lesser" (Tr. 134-35, 137-38). Ms Linton's testimony
supports this finding (Tr. 1641-42). The undersigned finds that for the reasons set forth above,
"good faith" factors should be applied to the proposed penalty. Accordingly, the undersigned
finds that a penalty in the amount of $1,275.00 would be appropriate. CITATION 2, ITEM 1 29 C.F.R. §1910.132(a) Application. Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and
protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable
condition wherever it is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing
injury or impairment in the function of any part of the body through absorption, inhalation or
physical contact. a) FOUNDRY AREAS INCLUDING BUT NOT LIMITED TO:
CYLINDER HEAD DEPARTMENT, PERMANENT MOLD
DEPARTMENT, MELT DEPARTMENT AND GREEN
SAND LINE, ON OR ABOUT 9/25/96: EMPLOYEES WERE
TRANSPORTING, SKIMMING AND MANUALLY
POURING MOLTEN ALUMINUM FROM LADLES INTO
MOLDS AND WERE OBSERVED NOT WEARING
PERSONAL PROTECTIVE EQUIPMENT INCLUDING
COTTON CLOTHING, HEAT RESISTANT CLOTHING,
AND/OR FLAME RETARDANT CLOTHING, INCLUDING
BUT NOT LIMITED TO, LONG SLEEVE SHIRTS TO
PROTECT THEM FROM BURNS. CITATION CORPORATION WAS PREVIOUSLY CITED AT ITS MANSFIELD
FOUNDRY CORPORATION DIVISION FOR A VIOLATION OF THIS STANDARD OR ITS
EQUIVALENT 29 C.F.R. 1910. 132(a), which was contained in OSHA INSPECTION NO,
121977870, Citation 1, Item 1 ISSUED on 4/13/95 with a final order date of 4/26/95 with respect
to a workplace located at Mansfield, OH. Employer Noncompliance IH Landes testified in the foundry areas, including the cylinder head department, the
permanent mold department, the melt department, and the green sand line, she observed
employees transporting, scanning, and manually pouring molten aluminum from ladles into
molds. The employees were not wearing appropriate personal protective equipment. Employees
were wearing jeans, sweat shirts, safety glasses, steel- toed boots. There were pockets in the
shirts. She did not know if the blue jeans were old or new (Tr. 434). (18) She testified that Ex. C-46, photo 1, depicts an employee working in the cylinder head line pouring molten aluminum
into molds. He was wearing gloves, safety glasses, jeans, steel-toed shoes with metatarsals and a
sweat shirt with a hole under the right arm (Tr. 436; Ex. C-46, p. 2, photos 1 and 2). (19) Ex. C-46,
p. 2, depicts an employee wearing boots, a sweat shirts, jeans, gloves, and a protective shield up
to his knees (Tr. 436-37). Ex. C-46, p. 2, photo 2 also depicts the same employee with a hat (Tr.
437). Ex. C-46, p. 3, photos 1 and 2 depict employees wearing a long sleeved shirt, gloves,
safety glasses, steel-toed boots and a hat. (Tr. 437-38). Ex. C-46, p.4 employee in the green sand
line is pouring molten aluminum into molds. He has on a long sleeve shirt, gloves, safety glasses
and a hat (Tr. 438). IH Landes testified that in order to be protected, employees should have been wearing
"at least" 100 percent cotton, and that employees should not wear short-sleeved shirts (T-shirts)
or clothes with holes in them (Tr. 442-43). She indicated that she relied on the hazard
assessment created by the employer, which indicated the type of PPE necessary (Tr. 458-61, Ex.
C- 54 and 55). With respect to heat resistant clothing for the cylinder head pourer, this
assessment requires "cotton or heat resistant clothing." for the cylinder head pourer (Ex. C-55, p.
3). IH Landes asserted that "cylinder head people" were not wearing this PPE. (Tr. 461). The
hazard assessment for a general metal operator or pourer indicated that to protect the feet and
legs, such employees should wear "heat resistant clothing." (Ex. C-54, p. 3). IH Landes stated
that she did not observe this PPE in the areas she cited (Tr. 459-60). IH Landes also testified that
she reviewed the Respondent's OSHA 200 logs for 1994-96. These records showed that
employees had received burns (Tr. 458; Ex. C-51). (20)
IH Landes also testified to a telephone conversation she had with Oberdorfer employee
Tom Ballard approximately two months before the hearing. (Tr. 462, 473). She stated that Mr.
Ballard told her he "always" wore 100 percent cotton clothing, and that he "sometimes" wore
clothing that was 50 percent cotton and 50 percent polyester (Tr. 462). She stated that he told her
that he wore t-shirts during the hotter months, however, he did not go into "great detail, [h]e just
said t-shirts" (Tr. 462-63). She later testified that Mr. Ballard told her that he did not wear arm
coverings (Tr. 482). She also testified that she had observed employees pouring molten
aluminum in t-shirts during the course of her inspection (Tr. 463). (21) However, during cross-examination, IH Landes testified that the employee whom she had observed wearing a t- shirt
was Mr. Ballard. She stated that this observation occurred at the beginning of the inspection.
She could not recall the date and she did not record this observation in her notes, and she did not
discuss this observation with anyone (Tr. 470-72). She acknowledged that there were employees
wearing the foundry shoes - some with metatarsal guards, and obviously employees wore long
sleeve shirts. She acknowledged that she did not ask them if the shirts were cotton (Tr. 486,
489). She later testified that other than Mr. Ballard , she did not recall seeing any other
employee wearing short-sleeves. (Tr. 486-87). (22) She further explained that the basis for her
conclusion that employees did not were heat resistant clothing was that there was an employee
was wearing a sweat shirt with a hole under the arm, and the fact the employees were wearing
jeans and no protective aprons - in her judgment an apron would be heat resistant. She also based
the citation on her observation of Mr. Ballard wearing a short-sleeved shirt and other employees
were pouring in sweatshirts (Tr. 488-90). She indicated that she did observe some employee
wearing aprons during the course of her inspection (Tr. 510). Charles Schuldt, who testified for the Secretary with regard to the industry practice with
regards to PPE, indicated that at a minimum, 100 percent cotton clothing is required. (Tr. 531-32,
562). He explained that pouters are required to wear 100% cotton clothing - long sleeves, gloves
and spats. He also explained that when a short sleeve shirt is worn, a protective sleeve is required
(Tr. 564). He stated that based on IH Landes' testimony, it was his opinion that Oberdorfer was
not in compliance with PPE requirement. However, he indicated that employees may safely wear
denim jeans, and a 100 percent cotton long-sleeved shirt (Tr. 571). He indicated that a shirt
made of 50 percent cotton and 50 percent polyester would not provide acceptable protection,
because the polyester could melt when contacted by molten metal. (572). He also indicated that
shirts with pockets may allow molten material to be trapped and burn an employee's chest. Worn
jeans would also not be acceptable PPE (Tr. 574). Permanent Mold Operator Timothy Barnes provided testimony with regard to
Respondent's the personal protective equipment policy since his date of hire. (23) He testified that
the policy with respect to PPE or protective clothing is that when you were working around
metal, you must wear a long sleeve shirt. If you wore a t-shirt, you had to wear long sleeves that
went over the t-shirt with Velcro to protect the arms. He has seen Tom wear these in the past.
He testified that he always wore flame resistant or retardant clothing. In the past he always wore
dickies, long sleeve T-shirt, spats, and gloves. He described a Dickie shirt as one pockets in it,
wherein the flap that buttoned down - Ex. C-46, p. 3, is an example of such a shirt. He testified
that if a supervisor saw an employee wearing short sleeves, the supervisor would require the
employee to put sleeves on He testified that he had seen Mr. Ballard work in a t-shirt, however,
he would have to put sleeves on (Tr. 1427-28, 1432. 1434). He identified himself in Ex. C.-46, p.
3, top photo. He identified Mr. Ballard as the employee depicted in Ex. C-46, p.1(Tr. 1430-31). Linda Becker testified that the PPE policy is 100 percent cotton clothing, long sleeve
shirt, in heat resistant clothing. Respondent also purchased a sleeve that attaches with a band to
protects an employee's arms. She indicated that if an employee reports to work with improper
clothing, a supervisor would provide the employee with sleeves (Tr. 1538-40). The undersigned finds that the Secretary has failed to sustain her burden of proof with
respect to this violation. The undersigned finds that the Secretary's assertions of violative
conduct were at times contradictory and at other times inconclusive and uncorroborated. The
Secretary's witness initially set forth that she had observed "employees" in a number of
departments skimming and pouring molten aluminum who were not wearing appropriate PPE
(Tr. 434). However, as the record was developed, these employees were in fact wearing was
commonly accepted in the industry and conformed to Respondent's own hazard assessment
which provided for, inter alia, 100% cotton clothing consisting of long sleeve shirts and jeans.
The testimony as well as the photographic evidence establishes that employees wore jeans and
long sleeve sweat shirts, and sleeves with Velcro attachments were provided for short sleeve
shirts. The compliance officer's allegation that she had observed an employee working in a short
sleeve shirt at the beginning of her inspection, was by her own admission one which she could
not recall any dates. did not record notes or take a photo, or one which she discussed with anyone
(Tr. 470-72). The undersigned finds that the lack of corroboration in any form is surprising in
view of the abundance of documentation which existed for all other allegations of violative
conditions. IH Landes interviewed employees observed and/or working in the cited area with
regard to the previously cited violations. Additionally, this short sleeve observation involves the
employee, identified as Mr. Ballard, who is depicted in Ex. C-46 with a long sleeve sweat shirt
on the dated in which the citation states violative observations were made. The undersigned also
finds that her description of her first interview with Mr. Ballard which occurred via telephone the
two months prior to the hearing is inconclusive with respect to what she observed the day of the
inspection or the Respondent's work practices.. We have only IH Landes' interpretation of that
conversation, and her notes do not contain a verbatim recording of said interview. The
undersigned also finds that compliance officer's testimony with regard to what Mr. Ballard told
her about t-shirts is inconclusive with regard her allegations. (24) This testimony is especially
inconclusive in light of the testimony of Mr. Barnes and Ms Becker who explained that although
t-shirts were permitted, long sleeve attachments were provided to employees. The undersigned
finds that Mr. Barnes testimony was very helpful in resolving the issues in this item. His
firsthand knowledge of the PPE policy provided support for a finding that a violation was not
established. The compliance officer's investigation appeared to have been inconclusive as was
apparent in her responses to the questioned posed to her during the hearing. For example, by her
own admission she did not ask employees if their shirts were cotton (Tr. 486, 490). Thus, her
theory with regard to the origin of the alleged "hole" which is depicted in Ex. C-46, p. 2, is
speculative. The record contains no evidence as to its origin or the length of time it was present. Accordingly, I conclude that the Secretary has failed to sustain her burden of proof. The
cited violation is Vacated. CITATION 3, ITEM 1 29 C.F.R. §1904.2(a) Each employer shall, except as provided in paragraph (b) of this section,
(1) maintain in each establishment a log and summary of all recordable occupational injuries and
illnesses for that establishment; and (2) enter each recordable injury and illness on the log and
summary as early as practicable but no later than 6 working days after receiving information that
a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an
equivalent which is as readable and comprehensible to a person not familiar with it shall be used.
The log and summary shall be completed in the detail provided in the form and instructions on
form OSHA No. 200. a) OBERDORFER INDUSTRIES, ON OR ABOUT 10/9/96: THE
FOLLOWING CASES WERE TECHNICALLY
MISRECORDED ON THE 1995 AND 1996 OSHA 200 LOGS:
(25) b) OBERDORFER INDUSTRIES, CASES OF DOCUMENTED
RECORDABLE HEARING LOSS WERE NOT RECORDED
ON THE 1995 AND 1996 OSHA 200 LOGS FOR
EMPLOYEES, SUCH AS BUT NOT LIMITED TO, THE
FOLLOWING: (26) Employer Noncompliance IH Landes testified with regard to instance a that in the examples listed below, injuries
were technically misrecorded on the 1995 and 1996 Oberdorfer OSHA 200 log (Tr. 138, 142, Ex.
C-51). She testified that in the instances listed in instance b, the items were not recorded on the
OSHA 200 Log. (Tr. 275). She reviewed Ex. C-56, the results of hearing tests conducted by
Oberdorfer (Tr. 142-43). The tests revealed standard threshold shifts of 25 db or greater, which
must be recorded in the log (Tr. 144, 275). Employee Access to the Violative Condition Review Commission precedent has established that the Secretary need not prove harm to
any particular employee resulting from a recordkeeping violation. The Act's recordkeeping
requirements "play a crucial role in providing the information necessary to make workplaces
safer and healthier." General Dynamics Corp., Electric Boat Div., 15 BNA OSHC 2122, 2131,
n.17 (No. 87-1195, 1991) , citing General Motors Corp., Inland Div., 8 BNA OSHC 2036, 2040-41 (NO. 76-5033, 1980). Employer Knowledge of the Violation IH Landes testified that information concerning how to maintain the logs is readily
available to the public (Tr. 145-46). She also testified that instructions on how to maintain the
log are printed on the back of the form (Tr. 144-45). As such, the employer could have
determined how to properly fill out the form. (Tr. 146). Classification and Penalty IH Landes testified that lapses in recording in both instances amounted to significant
deficiencies in the OSHA 200 Log. As such, she recommended a penalty of $1,000 (Tr. 147,
273-75). In view of the fact that the violations would not result in serious physical or death, the
conditions were classified as other than serious violation does have a direct and immediate
relationship to health and safety. (Tr. 147). The undersigned finds the recommended penalty
appropriate in order to achieve the necessary deterrent effect. CITATION 3, ITEM 3 29 C.F.R. §1910.303(f) 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 markings shall be of
sufficient durability to withstand the environment involved. a) CORE ROOM: SAND HEATER PLATFORM, ON OR
ABOUT 9/11/96: TWO ELECTRICAL DISCONNECT
SWITCHES WERE NOT LABELED AS TO WHAT THEY
CONTROL, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. b) CORE ROOM: DRY SAND ASSEMBLY AREA, ON OR
ABOUT 9/12/96: CIRCUIT-BREAKER LIGHTING PANEL -
BREAKERS WERE NOT LABELED AS TO WHAT THEY
CONTROL, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. c) CORE ROOM: BEHIND 44 REDFORD MACHINE, ON OR
ABOUT 9/16/96: CIRCUIT-BREAKER PANEL ON EAST
WALL-FIFTEEN BREAKERS WERE NOT LABELED AS
TO WHAT THEY CONTROL, EXPOSING EMPLOYEES
TO AN ELECTRICAL HAZARD. d) PATTERN WAREHOUSE STORAGE AREA, ON OR
ABOUT 9/16/96: CIRCUIT-BREAKER PANEL - TWENTY
BREAKERS WERE NOT LABELED AS TO WHAT THEY
CONTROL, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. e) PERMANENT MOLD AREA: LARGE TILT MACHINE
AREA MEZZANINE AREA, ON OR ABOUT 9/25/96: SIX
ELECTRICAL DISCONNECT SWITCHES WERE NOT
LABELED AS TO WHAT THEY CONTROL, EXPOSING
EMPLOYEES TO AN ELECTRICAL HAZARD. f) CYLINDER HEAD LINE: PLATFORM FOR CLAM
PUMPS, ON OR ABOUT 9/26/96: SEVEN ELECTRICAL
DISCONNECT SWITCHES WERE NOT LABELED AS TO
WHAT THEY CONTROL, EXPOSING EMPLOYEES TO
AN ELECTRICAL HAZARD. g) CYLINDER HEAD LINE: PLATFORM FOR CLAM
PUMPS, ON OR ABOUT 9/26/96: CIRCUIT-BREAKER
LIGHTING PANEL-SIXTEEN BREAKERS WERE NOT
LABELED AS TO WHAT THEY CONTROL, EXPOSING
EMPLOYEES TO AN ELECTRICAL HAZARD. h) SPECIAL METALS AREA: NEAR COMBUSTION AIR
BLOWER OR CLAM PUMPS, ON OR ABOUT 9/26/96:
FIVE ELECTRICAL DISCONNECT SWITCH ON WEST
WALL WERE NOT LABELED AS TO WHAT THEY
CONTROL, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. I) FINISHING DEPARTMENT: KNOCKOUT CELLAR, ON
OR ABOUT 10/2/96: ONE ELECTRICAL DISCONNECT
SWITCH ON WEST WALL WAS NOT LABELED AS TO
WHAT THEY CONTROL, EXPOSING EMPLOYEES TO
AN ELECTRICAL HAZARD. j) FINISHING DEPARTMENT: NORTH WALL, ON OR
ABOUT 10/4/96: CIRCUIT-BREAKER PANEL -
BREAKERS WERE NOT LABELED AS TO WHAT THEY
CONTROL, EXPOSING EMPLOYEES TO AN
ELECTRICAL HAZARD. Employer Noncompliance IH Landes testified that she observed five instances involving unlabeled electrical
disconnect switches (disconnecting means) (instances a, e, f, h, I), and five instances involving
unlabeled circuit breaker panels and breakers (overcurrent devices) (instances b, c., d, g, j) (Tr.
147-49; Ex C-60 - instances a and b). Employee Access to the Violative Condition In each instance, the electrical equipment they were using could unexpectedly be turned
off or on by an employee disconnecting or connecting the wrong switch or breaker, because said
switches and breakers were not labeled (Tr. 152). Employer Knowledge of the Violation IH Landes testified that in each of the instances, Respondent could have observed that the
disconnects or breakers were not labeled properly (Tr. 153). Classification and Penalty IH Landes testified that employees may be exposed to minor burns should an accident
occur (Tr. 153). Thus, she recommend that the violation be classified as other than serious. (Tr.
153-54). She testified that the severity of any possible injury would be minimal, and the
probability of such as accident occurring as lesser. The undersigned finds that a penalty in the
amount of $0.00 is appropriate. Docket No. 97-470 (27) CITATION 1, ITEM 1 Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish
employment and a place of employment which were free from recognized hazards that were
causing or likely to cause death or serious physical harm to employees in that employees were
exposed to THE HAZARD OF BEING STRUCK BY THE LOAD SHOULD THE LOAD SLIP
OFF THE HOOK: a) PERMANENT MOLD AREA, ON OR ABOUT 9/25/96: ONE
GARDNER DENVER MODEL #75016AA5 AIR CHAIN
HOIST ½ TON CAPACITY BEING USED TO MOVE
CASTING CATCHER FOR THE WEST GOOSE MACHINE.
THE HOIST HAD THE HOOK THROAT LATCH MISSING
FROM THE LOAD HOOK. b) GREEN SAND LINE, 6A SHAKEOUT, ON OR ABOUT
10/02/96: ONE GARDNER DENVER MODEL # 75106AA4
AIR CHAIN HOIST 4 TON CAPACITY BEING USED TO
SHAKEOUT MOLDS. THE HOIST HAD THE HOOK
THROAT LATCH MISSING FROM THE LOAD HOOK. c) CORE ROOM, 3RD DRY SAND LINE ASSEMBLY AREA,
ON OR ABOUT 09/12/96: ONE GARDNER DENVER
MODEL #85016AA5, SERIAL NO. A639003, AIR CHAIN
HOIST ½ TON CAPACITY BEING USED TO MOVE
CORES AND MOLDS. THE HOOK THROAT LATCH WAS
BROKEN. ABATEMENT NOTE Among other methods, one feasible and acceptable abatement method to correct this
hazard is to install and repair hook throat latches, and follow the requirements of
American National Standard for air chain hoists (ANSI/ASME HST-5M-1985). To establish a violation of Section 5(a)(1), the Secretary must prove that : (1) a condition
or activity in the employer's workplace presented a hazard to employees; (2) the cited employer
or the employer's industry recognized the hazard; (3) the hazard was causing or likely to cause
death or serious physical harm; and (4) feasible means existed to eliminate or materially reduce
the hazard. Waldon Healthcare Center, 16 BNA OSHA 1052 (Nos. 89-2804 and 89-3097, 1993);
Tampa Shipyards Inc., 15 BNA OSHA 1533 (Nos. 86-360 and 86-469, 1992); Kastalon, Inc., 12
BNA OSHA 1928, 1931 (Nos. 79-3561 and 79-5543, 1986); Pelron Corp., 12 BNA OSHA
1833, 1835 (No. 82-388, 1986). Did the Employer Keep the Workplace Free of the Hazard? CO Rezsnyak testified that he observed a Gardner-Denver air chain host that was
"missing" a throat latch on the load hook. (Tr. 331; Ex. C-62 -instance a). He testified that the
hook had been initially manufactured with a throat latch, and that there was a hole in the shoulder
of the hook where the latch was originally connected (Tr. 1143-44). The hoist was used to move
castings in and out of an oven. The castings were placed inside of a casting catcher which was
right below the hook. (28) CO Rezsnyak testified that the bottom of the mold was suspended at
approximately chest height (Tr. 831). He testified that including the casting catcher assembly,
the total weight was approximately 400 pounds (Tr. 831-32, 834). Exhibit C-62 shows the hoist
chain is in the slacken position, with the load supported from underneath (Tr. 837, 839). CO
Rezsnyak testified that if the load was pulled back, and then slipped off the hook, it could injure
an employee. (Tr.837-38). In his estimation, if the casting and the casting catcher were in motion
and fell from the hook, 400 pounds hitting an employee in the chest could cause death (Tr. 835-36). CO Rezsnyak testified that in instance b, he observed this Gardner-Denver air chain hoist
missing a throat latch (Tr. 333). This hook had also been manufactured with a throat latch - there
was a hole near the shoulder of the hook designed to receive the pin for the latch (Tr. 1144). Ex.
C-63 shows the hook after the throat latch was installed (Tr. 335-36, Ex. C-63). He testified that
employees used the hook to suspend molds during the "shake out" process (Tr. 336-37). The
bottom of the molds were suspended one and one-half to two feet off the floor, approximately
knee height. He testified that when employees were shaking out the mold, they would be
adjacent to and part of their bodies would be underneath the mold suspended from the hook the
hazard would be being struck by the load. CO Rezsnyak testified that he did not see employees
using the hook, but that he spoke with employees who had just finished using it (Tr. 829, 831). CO Rezsnyak observed the Garner-Denver air chain hoist in instance c with a broken
hook throat latch (Tr. 337, 1144-45, Ex. C-64, first photo). The latch was bent, and did not come
down inside the hook (Tr. 338-39). CO Rezsnyak testified that he was told the air chain hoist
was used to move cores and mold - employees swung them off a line. He testified that he briefly
observed this operation (Tr. 834). CO Rezsnyak testified that he was told the weight of the cores
was 56 pounds (Tr. 835). In all instances, the hoists, which were air operated, presented a hazard of employees
being struck by the falling load and/or the chain sling, which had detached from the hook during
maneuvering of the sling and load because of the lack of the throat latch (Tr. 333, 336, 340). The
purpose of the hook throat latch was to ensure that the chain sling holding the load on the hook
remained attached even when the chain sling was not taut (Tr. 347-350). Was the Hazard Recognized? CO Rezsnyak determined that the hazards were recognized in the industry or by the
employer by reviewing the ANSI standards, and by contacting the manufacturer of the hoist (Tr.
343). Review Commission precedent has established that the Secretary may show industry
recognition of a hazard through guidelines such as those published by ANSI (29). The Secretary
relied on ANSI Performance Standard for Air Chain Hoist ANSI/ASME HST-5M-1985. Section
3.4(b) states: Hooks shall be equipped with latches unless the application makes use of the latch
impractical. When required, a latch shall be provided to bridge the opening of the
hook for the purpose of retaining slings, chains, etc., under slack conditions. (Ex. C-66). Section1.3 of this edition contains a Reference to Other Codes and Standards.
Among those listed is ANSI B30.16 Overhead Hoists (Underhung). The Secretary introduced
into evidence 1981 edition of ANSI B30-16 - Ex. C-111. At Section 16-1.2.9 it sets forth that
"[h]ooks shall be equipped with latches unless the application makes the use of the latch
impractical. When required, a latch shall be provided to bridge the throat opening of the hook for
the purpose of retaining slings, chains, etc., under slack conditions." (Tr. 1146). Upon the face of
this document there is a notation that it is a revision of ANSI B30 16-1973. ANSI B30.16-1973 -
Overhead Hoists was marked as Ex. C-118 at the hearing. This also document contains at
Section 16-1.1.2.4 a requirement that "[l]atch type hooks be used unless the use of the latch
increases the hazard" . At the hearing, Ex. C-118 was initially not admitted into evidence. The Respondent
argued at trial that this document should not be admitted into evidence because this document
contained a clause which exempted employers from compliance where it was shown that hoists
manufactured prior to the effective date of the standard could not feasibly or economically be
altered and that the hoist substantially complies with the requirements of the Standard. (See
Section IV). (30) The Respondent successfully argued that is up until the last hour of the trial, it
had not been given notice that it would have to prepare a defense which required it to show
feasibility or economic ability - a requirement was not contained within the 1985 standard. In her
Post-Hearing Memorandum, the Secretary has renewed her motion to admit this document into
evidence (Secretary's Post-Hearing Memorandum, p. 49, n. 57). The undersigned having
reviewed the entire record at this time finds the record contains unrebutted evidence that the cited
hooks were manufactured in accordance with a 1979 Parts List (Tr. 843-846; Ex. C-68). Thus,
the latches were manufactured subsequent to the effective date of the 1973 standard and the
Respondent is not required to demonstrate feasibility or economic ability. The undersigned
admits the predecessor standard - Ex. C-118 into evidence . The undersigned also finds that the record contains unrefuted evidence that throat latches
had been provided on the cited hooks, and for abatement purposes the cited hooks were repaired
with latches. Thus, the use of a latch was not impractical on these applications (Tr. 335, 345,
358). The undersigned further finds industry recognition of the alleged hazard in light of the fact
that the manufacturer's parts lists includes latches for the hooks (Ex. C-68). Thus, establishing a
recognition on the part of industry of the hazard which the aforementioned ANSI standards
address. The record also establishes that the employer recognized the hazard presented by the
missing latches. Douglas Pomphrey, Oberdorfer facility and environmental manager, testified
that the function of the throat latch was to prevent cables from slipping off of the hook (Tr.
1484,1487-88). He acknowledged that the condition depicted in Ex. C-62 (showing the hook
with no latch and the casting catcher nearly off the hook) was the slackened condition which a
throat latch would prevent (Tr. 1521-22). Robert Wolf acknowledged that he was familiar with
the safety latch which appeared in Ex. C-63 (instance a abatement), and that in his experience a
hook like this one would normally have a safety latch. He further acknowledged that it was good
practice to have this type of latch. He likewise concurred that it would have been good practice
to have a latch on the hook cited in instance b (Tr. 1203-04). Would the Hazard Cause Death or Serious Physical Harm? CO Rezsnyak testified that in all instances, the hazard presented by the condition was
that employees could be stuck by the load carried on the hoist (Tr. 343). The undersigned finds
that such an accident would result in employees receiving injuries up to and including death (Tr.
359-60). Feasibility of Eliminating the Hazard The undersigned finds that as demonstrated by the abatement of this violation, the throat
latch could have been replaced. Exhibit C-63 displays the hook after this installation. (Tr. 358).
CO Rezsnayk also recommended that in order to alleviate any problem keeping the throat latches
on the hooks, that the employer "mouse" the hook with wire - wrap heavy wire around the
outside of the throat or collar of the hook to prevent the load from jumping off when the hoist is
in a slackened position (Tr. 358-59). d) FINISHING DEPT., CELL #1 FINISHING LINE, ON OR
ABOUT 10/04/96: BELOW-THE-HOOK LIFTING DEVICES
USED FOR SUSPENDING CASTINGS HAD FABRICATED
HOOKS THAT WERE DAMAGED AND REPAIRED. THE
REPAIRED WERE NOT INSPECTED AND TESTED FOR
NEW LOAD CAPACITY. ABATEMENT NOTE Among other methods, one feasible and acceptable abatement method to: Prior to initial
use after each hook is repaired the hook shall be tested by or under the direction of an
appointed person and a written report furnished by such person confirming the load rating
of the device per ASME B30.20-1993; and conduct initial, frequent and period
inspections of the lifting devices by designated personnel for wear, deterioration or
malfunction per ASME B30.20-1993. Did the Employer Keep the Workplace Free of the Hazard? CO Rezsnyak recommended this violation because Respondent failed to have custom-made hooks (lifting devices) inspected and tested after they had been repaired or altered - one
hook had been repaired and one had been altered. The lifting devices were used to suspend and
move castings which weighed approximately 56 pounds (Tr. 340-41, Ex. C-65) (31). An under the
hook lifting device is used to handle castings during pouring and finishing (Tr. 1496). CO
Rezsnyak testified that he determined that the device had not been inspected by a designated
person (Tr. 346). He testified that Robert Wolf, who was with him when he observed the
devices, informed him that they had not been submitted to him for testing (Tr. 359). He also told
him that him that he was the person designated person to do testing and to assign capacity to the
lifting devices; and that those pictured had not been given to him to be checked since their repair,
one had been damaged from use and had not been given to him to re-validated (Tr. 346-47). Robert Wolf testified that at one point, he designed and approved lifting fixtures (Tr.
1204). He further testified that approval was the responsibility of a separate group, the
manufacturing engineering group, of which he was not a member (Tr. 1205). CO Rezsnyak
testified that he did not observe employees using the equipment, but that he spoke with employee
who had just finished using the devices (Tr. 357-58). The record establishes that the hazard in not
inspecting these devices is that they could fail because of a defect that was not uncovered
because the inspection and testing was not conducted, dropping the castings onto employees who
worked below. Was the Hazard Recognized? CO Rezsnyak testified that the industry recognized the hazard and he relied on ASME
B30.20-1993, Below -the-Hook Lifting Devices. The scope of the standard is confined to
"structural and mechanical lifting devices". Section 20-1.3.1. Section 20-1.3.1(a) states, "[p]rior
to initial use, all new, altered, modified, or repaired lifting devices shall be inspected by a
designated person to verify compliance with the provisions of this volume." Section 20.1.4
states that "[p]rior to initial use, all new, altered, modified, or repaired lifting devices shall be
tested to ensure compliance with this Standard . . ." (Ex. C-67). Furthermore, Mr. Wolf's
statements with regard to his having been the designated person to perform such testing
establishes employer recognition (Tr. 346-47, 359). Would the Hazard Cause Death or Serious Physical Harm? CO Rezsnyak testified that in all instances, the hazard presented by the condition was
that employees could be stuck by the load carried on the hoist (Tr. 343). The undersigned finds
that such an accident would result in employees receiving injuries up to and including death.
(Tr. 359-60). Feasibility of Eliminating the Hazard The record reveals that the Respondent had a policy of testing repaired and altered hooks
(Tr. 346-47). Penalty - Instances a - d CO Rezsnyak testified that he recommended that the item be classified as serious. He
testified that a possible injury resulting from the condition would be death. He classified the
severity of this possible injury as high, and he determined that there was a "greater" probability
of an accident occurring (Tr. 360). His assessment of the probability was based mainly on the
condition in Instance a, where the chain was in a slack condition, and that the operation was
performed up to 30 times a day (Tr. 362). He recommended a penalty of $5,000.00 (Tr. 360).
CO Rezsnyak testified that he did not apply any reduction factors to any of the citation items. As
to size, he indicated that the company employed over 250 employees. No reduction for history
was given, because the company had received a serious citation within the past three years. He
testified that no good faith reduction was given, because the OSHA operations manual, FIRM,
dictates that no such reduction be given where there are violations with high severity and greater
probability. (Tr. 371-72, 379) The undersigned is not bound by OSHA's internal policies. The
record establishes that the Respondent's attitude toward employee safety and its cooperation
during the inspection was indicative of good faith. Respondent put forth great effort in abating
the cited conditions, such as hiring outside contractors and requiring maintenance employees to
work additional shifts to make corrections (Tr. 1538). Additionally, the Respondent had
recognized in June 1996, that there was a need to modernize the facility and was in the planning
stages at the time of the inspection (Tr. 1572-73). The Respondent also had taken advantage of a
state consulting service and participated in a Occupational Health Hazard Survey in 1995 which
included various sampling (Tr. 452-53, 1569-71; Ex. C-45). Respondent's health and safety
program included job hazard assessments (Tr. 1539). The undersigned finds that these factors
indicate a commitment to safety by Respondent. Accordingly, the undersigned finds that a
reduction in penalty in the amount of 15% for good faith would be appropriate, for a penalty of
$4,250.00. CITATION 1, ITEM 2 Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish
employment and a place of employment which were free from recognized hazards that were
causing or likely to cause death or serious physical harm to employees in that employees were
exposed to THE HAZARD OF INRUNNING NIP POINTS/OR BEING CAUGHT BY
MOVING BELT: (32) a) GREEN SAND DEPT., CONVEYOR SYSTEM CONSISTING
OF SEVEN CONVEYORS, OR ABOUT 9/27/97: THERE
WERE NOT STOP (PULL) CORDS ALONG THE
CONVEYOR SYSTEM IN ACCORDANCE WITH ANSI
B20.1-1947, SECTION 11-110lb. ABATEMENT NOTES: Among other methods, one feasible and acceptable abatement method correct this hazard
is to install stop cords. Did the Employer Keep the Workplace Free of the Hazard? CO Rezsnyak testified that in the green sand department, he observed a seven-conveyor
system without stop or pull cords (Tr. 364, 1163-64, 1170). (33) He testified that he saw no
convenient means of stopping the conveyors. The conveyors could only be stopped from a
remotely located conveyor control center (Tr. 1170). CO Rezsnyak testified that one of the
employees told him he walked the length of the conveyors during his shift to check for blockages
of sand along the conveyors (Tr. 368-69). He testified that an employee's clothing could have
been "grabbed" by the metal lacings that bind together the conveyor belt (Tr. 864-65).
Accordingly, CO Rezsnyak defined the hazard as being caught in the moving belt as they walked
along the belt conveyor checking for plugs (Tr. 366, 869, 1151). CO Rezsnyak acknowledged
that there was no work activity along the belt conveyor other than monitoring the belt in case of
spillage (Tr. 869, 871) (34). Was the Hazard Recognized? In issuing the citation, the Secretary relied on ANSI Safety Code for Conveyors,
Cableways, and Related Equipment, ASA B20.1-1947. Section 11-1101(b) states: Convenient means for stopping the motor or engine shall be provided at the
operator's station. If the operator's station is at a remote point, similar provisions
for stopping the motor or engine shall be provided at the motor or engine location.
Emergency stop switches should be provided at all points along the conveyor,
where potential hazards exist, and the conveyor shall be arranged so that it cannot
be started again until the actuating stop switch has been reset to running or "on"
position. Means shall be provided for locking the main switch or clutch to prevent
accidental starting. CO Rezsnyak testified that he learned from Bob Wolf that the conveyor system had been
installed in 1947. The instant ANSI standard became effective October 9, 1947. (Ex. C-72, p. 4
of 50). The Secretary introduced into evidence, the ANSI interpretation of the applicability of a
particular edition of a B20 standard. The interpretation set forth that "[t]he applicability of a
particular edition is related to the time when a specific conveyor is designed, manufactured, and
installed." (Tr. 373; Ex. C-73). CO Rezsnyak also testified that at the time this condition was
observed, Lance Taylor was with him, and informed him that at his last place of employment
stop cords were along the conveyor system (Tr. 370). (35) It is Respondent's position that the Secretary offered no proof to demonstrate that the
system was installed after ANSI B20.1 went into effect, and that Respondent did not conclude
that the conveyors presented a hazard that required stop cords (Respondent's Post-hearing
Memorandum, p. 42). Robert Wolf acknowledged that there were no pull cords on the system
(Tr. 1212). He testified that the original green sand system had been purchased from a company
in Utica, NY, which had used the system, and it was installed at Oberdorfer in 1947. He testified
that the 6-A feed belt was installed in that late 1970's or early 1980's (Tr. 1212-14). Respondent
introduced into evidence a document which showed that equipment had been purchased from a
company in Utica on September 15, 1947 (Tr. 1500-01; Ex. R-10). The undersigned finds that
the Mr. Wolf's testimony in conjunction with the documentation of a sale in mid-September
1947 are sufficient to support the Secretary's assertion that the conveyor system was installed
subsequent to October 9, 1947. Mr. Wolf also testified that prior to his employment with Respondent, he worked for a
company which manufacture red green sand molding equipment for foundries, including
conveyor systems. (36) He testified that he had done on-site installations of these systems at various
locations, and he had determined that it was advisable to install stop cords where employees were
working , e.g., employees leaning over conveyors to pick up cores and place them in molds. He
stated that he had looked at the Oberdorfer conveyors with a view towards stop cords and
determined that stop cords were not necessary. He saw no potential danger of individuals being
caught in the conveyors (Tr. 1219-21). The undersigned finds that the alleged the Secretary has failed to prove by a
preponderance of the evidence that the hazardous condition was recognized by either the
Respondent or its industry. The undersigned finds that Mr. Wolf's testimony established his
familiarity with the cited system and the installation of stop cords in conjunction with conveyor
belts. His testimony established that he recommended stop cords along conveyor systems upon
which work was performed by employees. He evaluated the instant system and determined that
stop cords were not necessary. The referenced standard, ANSI B20.1, provides that stop cords
are only "advised" where potential hazards exist. The undersigned finds that this proviso is
discretionary and not mandatory. Mr. Wolf's evaluation of the system concluded that there were
no potential hazards along the belt which stop cords would address. CO Rezsnyak acknowledged
that there was no work station on the conveyor and that no employee performed work which
required him to place material onto or off the conveyor (Tr. 871). In view of the above the
undersigned finds that the Secretary has failed to establish that the alleged hazard was one which
the employer or industry recognized could have been addressed by the installation of stop cords
in accordance with ANSI B20.1 and the violative condition is Vacated. CITATION 1, ITEM 3 29 C.F.R. § 1910.22(a)(1) All places of employment, passageways, storerooms, and service
rooms shall be kept clean and orderly and in a sanitary condition. a) PERMANENT MOLD DEPARTMENT, LOADING
PLATFORM FOR #5 AND #6 MELTING FURNACES, ON
OR ABOUT 9/25/96: PLATFORM WAS LITTERED WITH
DEBRIS, I.E., METAL BANDING, WOOD AND METAL
PIECES, EXPOSING EMPLOYEE TO TRIPPING HAZARD
AND CONTACT WITH FURNACE STRUCTURE. Employer Noncompliance CO Rezsnyak testified that on loading platforms for Nos. 5 and 6 melting furnaces, he
observed debris, including metal banding, wood, and metal pieces. He assumed that the metal
banding was used to bundle the ingots. He had no idea where the wood originated (Tr. 889-90).
It was his opinion that such debris exposed employees to a tripping hazard and contact with the
furnace. (Tr. 372; Ex. C-74, page 1). During the inspection, Oberdorfer abated this condition by
placing a container on the platform to put the metal bandings and debris. (Tr. 376, Ex. C-74, page
2) Employee David Liedka identified the material as related to the operation of the furnace.
He identified the long items as aluminum ingot, and the smaller items were remelt, risers, and
spills that would be remelted to pour castings again. He did not see anything on the platform that
was not related to the operation of the melt furnace. He identified the wooded object as the
palette on which remelt risers and spills may come in on. The palette stayed there until the next
load goes up (Tr. 1288-89). On cross-examination, Mr. Liedka acknowledged that the black
banding was not used in the furnace, and that there were at least 30 minutes or a couple of hours
between melts in the furnace - it depended upon the metal needs at a particular time (Tr. 1304). The undersigned finds that in view of the fact that an employee had just completed
loading the furnace and the cited materials were left in the condition observed, the standard is
applicable. The record establishes that the materials were left on the platform after the employee
had completed his tasks (Tr. 377. 892). Thus, there was debris on the loading platform. The cited
condition was violative of the instant standard . Employee Access to the Violative Condition CO Rezsnyak testified that employees stand on the platform and load ingots into the
furnace. The furnace, which could reach a temperature of 600 degree Fahrenheit, was loaded
approximately 15 times per day (Tr. 376-77). CO Rezsnyak indicated that he spoke with the area
supervisor, who told him that an employee had just finished charging the furnace (Tr. 377, 892).
This condition presented a tripping hazard to the employee while loading the furnace as well as
to the next employee who accessed the platform once the furnace was loaded. Employer Knowledge of the Violation The record established that the violation was in plain view (Tr. 378). Penalty CO Rezsnyak testified that if an accident were to occur, an employee could receive severe
second degree burns (Tr. 377-78). He assessed the severity of the possible injury as "medium,"
and the probability of such an accident occurring as "greater." His assessment of probability was
based on the tripping hazard caused by the debris, as well as the absence of any protection
between the end of the platform and the furnace structure. He recommended that the item be
classified as serious, and with an unadjusted penalty of $3,500.00 (Tr. 378). The undersigned
finds that a penalty in the amount of $2, 975.00 would be appropriate in light of her findings set
forth in Citation 1, Item 1. CITATION 1, ITEM 4 29 C.F.R. §1910.23(c) "Protection of open-sided floors, platforms, and runways." (c) (1)Every
open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded
by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all
open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall
be provided with a toeboard wherever, beneath the open sides, a) FINISHING DEPARTMENT, SIX FOOT BLASTER, ON OR
ABOUT 10/4/96: EMPLOYEE ACCESSES TOP OF GRIT
BLASTER APPROXIMATELY 7 FEET 3 INCHES ABOVE
CONCRETE FLOOR TO CLEAN OUT HOOPER, NO
RAILINGS PROVIDED ON OPEN SIDES. Employer Noncompliance CO Rezsnyak testified that he observed this six foot grit blaster in the finishing
department. He testified that an employee accessed the top of the grit blaster, approximately 7
feet 3 inches above the floor, in order to clean out a hopper. He observed that there were no
railings on the open sides (Tr. 380-81, Ex. C-75, page 1). In order to perform this task, an
employee climbed up a ladder where he had to step over a 16 inch high air inlet. CO Rezsnyak
opined that an employee could catch his foot on the inlet and fall (Tr. 895). The undersigned
finds that the cited area was a working space which was elevated above the surrounding floor,
and thus, the instant standard is applicable and noncompliance has been established. Employee Access to the Violative Condition CO Rezsnyak testified that employees accessed the top of the grit blaster approximately
three time per week (Tr. 383). He did not observe an employee cleaning the screen, but testified
that he spoke with the employee who performed this operation (Tr. 896-97). Douglas
Pomphrey, facility and environmental manager, testified that he would be "surprised" if this
operation occurred once a day, and the task took less than five minutes. (Tr. 1503-04). The
undersigned finds that the information which CO Rezsnyak obtained from the employee who
performed the task was more accurate with regard to the frequency of this operation. b) MAINTENANCE PLATFORM, HYDRAULIC PUMPS FOR
ROCKETS, ON OR ABOUT 9/26/96: WEST SIDE OF
PLATFORM, BI RAILINGS PROVIDED. EMPLOYEES
ACCESS THIS PLATFORM TO MAINTAIN HYDRAULIC
PUMPS AND ELECTRICAL MACK VALVES. HEIGHT OF
PLATFORM ABOVE CONCRETE FLOOR IS 8 FEET 2
INCHES. Employer Noncompliance CO Rezsnyak testified that he observed a maintenance platform without a railing on the
west side of the platform. Employees accessed the platform to maintain hydraulic pumps and
electrical mach valves (Tr. 383). The platform was 8 feet 32 inches above the floor (Tr. 384, Ex.
C-75, page 2). The undersigned finds that the cited area was a working space which was
elevated above the surrounding floor, and thus, the instant standard is applicable and
noncompliance has been established. Employee Access to the Violative Condition CO Rezsnyak testified that he talked to at least one employee, Richard Tucci, who
accessed the platform (Tr. 898-99). CO Rezsnyak testified that employee Tucci told him he
accessed the area as needed, and that he had been in the area "frequently within the last week" in
response to pump malfunctions (Tr. 900). c) FINISHING DEPARTMENT, 9 FOOT GRIT BLASTER, ON
OR ABOUT 10/4/96: EMPLOYEE ACCESSES TOP OF
GRIT BLASTER APPROXIMATELY 5 FEET ABOVE
CONCRETE FLOOR TO CLEAN OUT HOPPER. NO
RAILINGS PROVIDED ON OPEN SIDES. Employer Noncompliance CO Rezsnyak testified that he observed a grit blaster in the finishing department that
employees accessed to clean out the hopper. The area was approximately five feet above the
floor, and had no railings on the open sides (Tr. 385, Ex. C-75, page 3). The undersigned finds
that the cited area was a working space which was elevated above the surrounding floor, and
thus, the instant standard is applicable and noncompliance has been established. Employee Access to the Violative Condition CO Rezsnyak testified that as a result of speaking with employees who performed the
task, he learned that employees accessed this area three times weekly (Tr. 385, 901). d) GREEN SAND DEPARTMENT, TOP OF SURGE HOPPER
FOR MULLER, ON OR ABOUT 9/27/96: SOUTHSIDE OF
SURGE HOPPER PLATFORM, NO RAILINGS PROVIDED.
EMPLOYEE ACCESSES PLATFORM TO DISLODGE
SAND THAT HANGS UPON SIDE OF HOPPER. Employer Noncompliance CO Rezsnyak testified that he observed no railings on the south side of the surge hopper
platform. Employees accessed the platform to dislodge sand from the side of the hopper (Tr.
385-86, Ex. C-75, page 4). The undersigned finds that the cited area was a working space which
was elevated above the surrounding floor, and thus, the instant standard is applicable and
noncompliance has been established. Employee Access to the Violative Condition CO Rezsnyak testified that employee Ed Llera told him he accessed the platform three
times a day to clean out pugs so that the sand could keep flowing (Tr. 902). At the hearing, Mr.
Llera testified that the frequency which the sand was dislodged from the top of the muller
depended upon the particular job. At most, they would knock the sand free was once a week on
one job, and thereafter once every two or three months (Tr. 1394-95). The Secretary did not
present any rebuttal evidence. The undersigned having observed the demeanor of the employee
finds that his testimony at the time of the hearing was credible. The undersigned finds that this
testimony establishes employee exposure. e) GREEN SAND DEPARTMENT, ELECTRICAL PANELS
MOUNTED ON WEST WALL UNDERNEATH 6A FEED
BELT, ON OR ABOUT 9/27/96: PLATFORM USED BY
EMPLOYEES TO ACCESS ELECTRICAL PANELS
RAILINGS WERE MISSING FROM SOUTH SIDE. Employer Noncompliance CO Rezsnyak testified that he observed a platform used to access electrical panels that
was missing railings on the south side (Tr. 386-87, C-75, page 5). The platform was
approximately 14 feet above the floor (Tr. 387). The undersigned finds that the cited area was a
working space which was elevated above the surrounding floor, and thus, the instant standard is
applicable and noncompliance has been established. Employee Access to the Violative Condition CO Rezsnyak testified that an employee would travel in the area to turn on or off
breakers, or to replace lights or light fixtures in the foundry area (Tr. 387-88). He testified that it
had been explained to him that the electrical panels were for the lighting circuits in the foundry,
and that "the employee" told him that the electrical panels were accessed when bulbs or fixtures
needed to be replaced (Tr. 905). The undersigned finds that this testimony established employee
exposure. Employer Knowledge of the Violation The record establishes that in each instance the violative conditions were in plain view
(Tr. 389). Penalty CO Rezsnyak testified that in Instances c and d, an accidental fall could result in
fractures, and in Instances a, b, and e, a fall could result in death (Tr. 389). He classified the
severity of the possible injury as high, and the probability of such an injury occurring as
"greater." (Tr. 390). He recommended that the item be classified as serious, and that a penalty of
$5,000 be assessed (Tr. 389-90). The undersigned finds that in view of the frequency of
exposure, the probability should reflect a "lesser" finding, thus, the gravity based penalty would
be assessed at $2,500.00. The undersigned finds that a penalty in the amount of $2,125.00 would
be appropriate in light of her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 5 29 C.F.R. §1910.27(b)(1)(ii) The distance between rungs, cleats, and steps shall not exceed 12
inches and shall be uniform throughout the length of the ladder. a) CORE ROOM, ON OR ABOUT 9/11/96: THE VERTICAL
LADDER TO MAINTENANCE PLATFORM FOR SAND
DELIVERY SYSTEM HAD A DISTANCE TO THE FIRST
RUNG ABOVE THE FLOOR OF APPROXIMATELY 20
INCHES. LADDER IS USED ONCE PER MONTH BY
EMPLOYEES TO LUBRICATE BEARINGS. Employer Noncompliance CO Rezsnyak testified that the distance between the floor and the first rung of the vertical
ladder to the maintenance platform for the sand delivery system was approximately 20 inches
(Tr. 390, C-76). He testified that the problem was an employee being used to a certain spacing
from rung to rung and then unexpectedly finding a longer reach at the bottom of the ladder (Tr.
911, 392-93). Respondent concedes the existence of the violation (Respondent's Post-Hearing
Memorandum, p. 47). Employee Access to the Violative Condition CO Rezsnyak testified that employees climbed the ladder once a month to lubricate
bearings on the sand delivery system (Tr. 392) Employer Knowledge of the Violation The record establishes that the violation was in plain view (Tr. 393). Penalty CO Rezsnyak testified that an employee could be injured descending the ladder, resulting
in a strain or sprain (Tr. 392-93). He recommended that the item be classified as serious. He
also testified that the possible injury would be of a low severity, and the probability of an
accident occurring would be "lesser" (Tr. 394). The undersigned finds that based upon these
gravity findings and the minor type of injury expected, that the evidence does not establish a
substantial probability that death or serious physical harm could result from this violation.
Accordingly, the undersigned finds that the violation is an other than serious violation. In light
of the remaining penalty factors enumerated in Section 17(j) of the Act, a penalty in the amount
of $0.00 is appropriate. CITATION 1, ITEM 6 29 C.F.R. §1910.27(c) "Clearance": (1) "Climbing side." On fixed ladders, the perpendicular
distance from the centerline of the rungs to the nearest permanent object on the climbing side of
the ladder shall be 36 inches for a pitch of 76 degrees, and 30 inches for a pitch of 90 degrees
(fig. D-2 of this section), with minimum clearances for intermediate pitches varying between
these two limits in proportion to the slope, except as provided in subparagraphs (3) and (5) of
this paragraph. a) GREEN SAND DEPARTMENT, TOP OF MULLER, ON OR
ABOUT 9/27/96: VERTICAL LADDER TO HEX SCREEN
PLATFORM FROM "O" BELT HEAD PULLEY
PLATFORM HAD ONLY EIGHT INCHES OF
CLEARANCE FROM LADDER RUNG TO EDGE OF
STEEL HOPPER. 1. Employer Noncompliance CO Rezsnyak observed a vertical ladder providing access to the hex screen platform with
only eight inches of clearance from the bottom ladder rung to the edge of the steel hopper. The
hazard was that employees could strike against or step into the hopper as they descended the
ladder (Tr. 395, 398; Ex. C-77, page 1). He indicated that employees could have been protected
if the ladder or the hopper were moved (Tr. 406). Employee Ed Llera testified that he did not use
the bottom rung on the ladder. In response to questions from Respondent's attorney, he indicated
that this was because the first step was too low, and not because the hopper was in his way (Tr.
1417, 1419-20). In response to the Secretary's questions, he testified that employees could use
only part of the step because the hopper was in the way of the rest of it. The undersigned finds
that cited ladder did not met the clearance requirements of the instant standard. Thus, the
standard is applicable and noncompliance has been established. Employee Access to the Violative Condition CO Rezsnyak testified that an employee told him used the ladder two or three times a day
(Tr. 406). This employee, Mr. Llera testified that the frequency of the use of the ladder depended
upon the job. He experienced a job where the ladder was used once a week, and in another job it
was used once every two months (Tr. 1394-95). b) CORE ROOM, SOUTH SIDE OF SOUTH OVEN, ON OR
ABOUT 9/12/96: VERTICAL LADDER USED AS ACCESS
TO TOP OF SOUTH OVEN HAD THE CLEARANCE ON
THE CLIMBING SIDE REDUCED TO LESS THAN 30
INCHES BY ANOTHER PLATFORM PROJECTING INTO
THE CLEARANCE SPACE. Employer Noncompliance CO Rezsnyak testified that the vertical ladder used to the access the top of the south oven
had the clearance space reduced to less that 30 inches by another platform projecting into the
clearance space (Tr. 395; C-77, page 2). CO Rezsnyak testified that an employee could strike his
shoulder or something on the platform as they are climbing the ladder (Tr. 399). During the
inspection, the ladder was removed (Tr. 399-400, 915; C-77, page 2, bottom photo). CO
Rezsnyak testified he was told that employees could access the hopper from another side, or with
a portable ladder (Tr. 915-16). Employee Access to the Violative Condition CO Rezsnyak testified that he was told the ladder was used as needed for maintenance
purposes - possibly once a month (Tr. 406, 916-17). Employer Knowledge of the Violation The record establishes that the violations were in plain view (Tr. 407). Penalty - Instances a - b CO Rezsnyak testified that the potential injury in both instances was fractures, and
determined that the severity of injury was medium (Tr. 407). He determined that the probability
of an accident occurring was greater - instance a, the edge of the hopper was only eight inches
from the edge of the ladder; instance b, the clearance was reduced 6 ½ inches by 17 inches due to
the projecting platform (Tr. 407-08). In light of expected injury, he classified the violations as
serious, and recommended a penalty of $3,500.00 (Tr. 407). The undersigned finds that a
penalty in the amount of $2, 975.00 would be appropriate in light of her findings set forth in
Citation 1, Item 1. CITATION 1, ITEM 7 29 C.F.R. §1910.36(b)(4) In every building or structure exits shall be so arranged and maintained
as to provide free and unobstructed egress from all parts of the building or structure at all times
when it is occupied. No lock or fastening to prevent free escape from the inside of any building
shall be installed except in mental, penal, or corrective institutions where supervisory personnel
is continually on duty and effective provisions are made to remove occupants in case of fire or
other emergency. a) OIL STORAGE ROOM, ON OR ABOUT 9/27/96: EXIT
DOOR ON WEST WALL DID NOT OPEN FREELY
(WEDGED AGAINST FRAME). Employer Noncompliance CO Rezsnyak testified that the cited exit door was wedged against the frame, and did not
open freely (Tr. 409). He determined that the door was an exit based upon an evacuation plan
posted on the west wall of the room (Tr. 410). He further clarified that the door was not
obstructed in any manner. However, it took several pushing attempts (three) to open it (Tr. 924).
Robert Wolf and Don Alexander assisted in this effort to open the door (Tr. 410, 923). Mr. Wolf
testified that the door was snug due to age and opened with some difficulty. He testified that he
and Mr. Alexander reached over and gave the door a push with their hands (Tr. 1226-27). Linda
Becker testified that CO Rezsnyak told her that the door was jammed, and that she pushed the
door open with her shoulder (Tr. 1548-49). The cited standard sets forth the general requirements for means of egress from the areas
in which employees work. There is no dispute that the instant exit door was unobstructed. The
issue here is whether the effort required to open the door violated the term "free". The plain
meaning of the word "free" includes not being hampered or restricted in its normal operation;
and not confined to a particular position. Webster's New Collegiate Dictionary 453 (1979). The
undersigned finds that the exit was not in a condition which hampered or restricted its normal
function. The undersigned finds that the act of pushing of the door hampered or restricted the
normal act of turning the door knob to open the door, and had a negligible relationship to
employee safety. Accordingly, the undersigned finds that there was no direct or immediate
relationship to employee safety or health and that it would be inappropriate to impose a penalty
or the entry of an abatement order. These findings support a de minimis classification. Employee Access to the Violative Condition CO Rezsnyak testified that employees enter the storage room three time a week to obtain
materials (Tr. 409). Employer Knowledge of the Violation CO Rezsnyak testified that the Respondent could have known of this condition had they
checked the exit door to make sure that it opened freely (Tr. 410). CITATION 1, ITEM 8 29 C.F.R. §1910.37(q)(1) Exits shall be marked by a readily visible sign. Access to exits shall be
marked by readily visible signs in all cases where the exit or way to reach it is not immediately
visible to the occupants. a) OIL STORAGE ROOM, ON OR ABOUT 9/27/96: WEST
WALL, A DOOR DESIGNATED AS AN EXIT BY
COMPANY'S EMERGENCY EXIT PLAN WAS NOT
MARKED WITH A READILY VISIBLE SIGN. Employer Noncompliance CO Rezsnyak observed that the cited door was not marked with a readily visible exit
sign. The door was designated as an exit in Oberdorfer's emergency exit plan (Tr. 411, See also
Citation 1, item 7). Respondent argues, based on a March 26, 1985 OSHA interpretation letter
Ex. R-8, p.33, that exit signs are not required were the room is square with windows to the
outside and no partitions (Respondent's Post-Hearing Memorandum, p. 50). Linda Becker
testified that the dimensions of the room are 40 ft. by 20 ft., and there are windows on two walls.
(Tr. 1548). There is no dispute that the exterior door was not marked with an exit sign. The
undersigned finds that OSHA's standard is clear and unambiguous in its requirement that "exits
shall be marked by a readily visible sign". The standard does not provide an exception based
upon the physical layout of a room. Employee Access to the Violative Condition CO Rezsnyak testified that employee accessed the oil storage room three times a week
(Tr. 412). Employer Knowledge of the Violation The record establishes that the violation was in plain view (Tr. 413). Penalty CO Rezsnyak testified that if an accident were to occur, employees could be exposed to
smoke inhalation (Tr. 412-13). He assessed the severity of the possible injury as low, and the
probability of an injury occurring as lesser (Tr. 413). The undersigned finds that the record does
not establish a substantial probability of death or serious harm. The undersigned finds that the
violation was other than serious. This classification is appropriate in light of the low gravity
findings and the fact that the storage room was approximately 20 feet by 30 feet with no
partitions and windows to the east and north sides of the room, and a window on the door which
was on the west side of the room (Tr. 1548). In light of the low probability finding, and the
remaining penalty factors enumerated in Section 17(j) of the Act, a penalty in the amount of
$0.00 is appropriate. CITATION 1, ITEM 9 29 C.F.R. § 1910.106(e)(6)(ii) "Grounding." Class I liquids shall not be dispensed into containers
unless the nozzle and container are electrically interconnected. Where the metallic floor plate on
which the container stands while filling is electrically connected to the fill stem or where the fill
stem is bonded to the container during filling operations by means of a bond wire, the provisions
of this section shall be deemed to have been complied with. a) FLAMMABLE STORAGE ROOM, ON OR ABOUT 9/16/96:
EMPLOYEES WERE DISPENSING FLAMMABLE
LIQUIDS SUCH AS PARASPRAY, SOLVENT 99 AND
NITROSEL CORE CEMENT INTO PORTABLE
CONTAINERS WITH NO MEANS OF ELECTRICALLY
INTERCONNECTING THE NOZZLE AND THE
PORTABLE CONTAINER PROVIDED. Employer Noncompliance CO Rezsnyak testified that he observed 55 gallon containers Class I liquids - Paraspray,
solvent 99, and nitrocel core cement in the flammable storage room. Employees would enter the
room and dispense liquid from the 55-gallon containers into portable containers. The nozzle and
the portable containers were not electrically bonded (Tr. 415). Each of these drums were in the
vertical dispensing position, with a dispensing nozzle attached (Tr. 925). He determined the
identity of the materials by speaking with the affected employee and the manager of the
department. (Tr. 416) CO Rezsnyak testified that bonding jumpers could have been connected between the
large and the portable containers (Tr. 417). He observed a sign in the room mandating bonding
between containers. He stated that Robert Wolf told that him there were bonding wires in the
room at one time, but they had since disappeared (Tr. 417-18). The bonding wires had alligator
clips at both ends. One clip was attached to the drum, and the employee attached the other clip
to the container he was filling (Tr. 928). Employee Access to the Violative Condition CO Rezsnyak testified that he observed an employee filling a container and was told that
materials were dispensed daily (Tr. 416). Employer Knowledge of the Violation CO Rezsnyak testified that the violation was in plain view, and materials were poured
there daily. The Respondent had a sign in the area which mandated that bonding be used, and at
one time there had been bonding clips in the room (Tr. 417-19). Penalty CO Rezsnyak testified that in the absence of bonding, the static discharge from the
flowing flammable liquids could cause a fire. Based on the possible injury of severe burns, he
assessed the severity of the possible injury as high. He determined that there was a "lesser"
probability of such an accident occurring, because there was an ventilation fan in the room, as
well as a sprinkler (Tr. 420). He classified the violation as serious, and recommended a penalty
of $2,500.00 (Tr. 419). The undersigned finds that a penalty in the amount of $2,125.00 would
be appropriate in light of her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 10 - OTHER THAN SERIOUS 29 C.F.R. §1910.137(b)(2)(xii) The employer shall certify that equipment has been tested in
accordance with the requirements of paragraphs (b)(2)(viii), (b)(2)(ix), and (b)(2)(xi) of this
section. The certification shall identify the equipment that passed the test and the date it was
tested. a) TRANSFORMER SUBSTATION, ON OR ABOUT 10/9/96:
ONE PAIR OF RUBBER INSULATING GLOVES WORN
BY EMPLOYEE WHILE WORKING WITHIN 12 KV
SUBSTATION. Employer Noncompliance CO Rezsnyak testified that he observed a pair of rubber insulating gloves used in the
12,000 volt transformer station. He inquired when the gloves were last tested, and was not
provided with any indication that the gloves had been tested within the last six months (Tr. 421,
1175, Ex. C-68). Employee Access to the Violative Condition CO Rezsnyak testified that one of the exposed employees, Earl Wicks, told him that he
wore the gloves in the condition observed when he went inside the transformer substation with
the electrician, Robert Tucci, to assist him (Tr. 422, 929-30). (37) Richard Tucci testified that he
told CO Rezsnyak that he used his own gloves, which he had certified every year by Niagara
Mohawk (Tr. 1370-71). Employer Knowledge of the Violation CO Rezsnyak testified that Respondent should have known of the violation in that the
gloves were purchased by from a reputable supplier and they had a copy of the OSHA standard
on site, and a reasonable employer would know that the gloves must be tested. (Tr. 423) Penalty The standard was amended to an other than serious violation. The Secretary recommends
an amended penalty of $0.00 (Secretary's Post-Hearing Memorandum, p. 66-67). In view of the
fact that it is essentially a recordkeeping violation, the proposed penalty $0.00 is appropriate. CITATION 1, ITEM 11 29 C.F.R. §1910.212(a)(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. a) METAL SHOP, ON OR ABOUT 9/20/96: ONE LEBLOND
METAL TURNING LATHE, THE ROTATING CHUCK
WAS NOT GUARDED TO PREVENT ACCIDENTAL
EMPLOYEE CONTACT. EMPLOYEES APPLY CUTTING
OIL BY SPRAY OR BRUSH WHILE CHUCK IS
ROTATING. b) METAL SHOP, ON OR ABOUT 9/20/96: ONE SOUTHBEND
METAL TURNING LATHE WITH A 6 INCH DIAMETER
CHUCK, ROTATING WAS NOT GUARDED TO PREVENT
ACCIDENTAL EMPLOYEE CONTACT. EMPLOYEE
APPLY CUTTING OIL BY SPRAY OR BRUSH WHILE
CHUCK IS ROTATING. c) MOLD AND DIE DEPARTMENT, ON OR ABOUT 9/20/96:
ONE LEBLOND METAL TURNING LATHE WITH AN 8
INCH DIAMETER CHUCK, ROTATING CHUCK WAS
NOT GUARDED TO PREVENT ACCIDENTAL
EMPLOYEE CONTACT. EMPLOYEES APPLY CUTTING
OIL WITH A BRUSH. d) METAL LAB, ON OR ABOUT 10/8/96: ONE EMCO METAL
TURNING LATHE WITH A 5 INCH DIAMETER CHUCK,
ROTATING CHUCK WAS NOT GUARDED TO PREVENT
ACCIDENTAL EMPLOYEE CONTACT. Employer Noncompliance CO Rezsnyak testified that all four lathes cited in Citation 1, Item 11 operated in
essentially the same manner, but the size of the chucks varied. CO observed only the lathe cited
in instance a in operation - where he observed a turning lathe in the metal shop. The 12- inch
diameter rotating chuck was not guarded to prevent accidental employee contact (Tr. 957-58). In
instance b, he observed a metal turning lathe with a 6- inch diameter (Tr. 612). In instance c, he
observed the turning lathe with an 8-inch diameter chuck. Employees turn metal pieces in the
chuck and apply cutting oil by brush (Tr. 613; Ex. C-79, p. 3). In instance d, he observed the
metal turning lathe with a 5-inch diameter chuck. In all instances employees applied cutting oil
by spray or brush while the chuck was rotating (Tr. 609-11, 613, 614; Ex. C-79). (38) He
determined that in each instance employees were exposed to the hazard of an inadvertent
placement of hands or other parts of the body into jaws of the unguarded area (Tr. 622, 945-46).
A guard was installed during the course of the inspection. (Tr. 614-15, Ex. C-79, page 4). The
undersigned finds that the compliance officer's observations establish that there were exposed
rotating parts. Employee Access to the Violative Condition CO Rezsnyak testified that employees may be exposed to the unguarded chuck when they
apply cutting oil by spray or brush while the chuck was rotating (Tr. 609, 946). He learned that
employee exposure occurred daily on an as needed basis (Tr. 612, 613, 616). When applying the
oil by spray, an employees hands would not be closer that one foot from the rotating chuck. (Tr.
947-48). CO Rezsnyak never observed the use of a brush to apply the oil, but testified that the
handle of the brush was approximately six inches long, and the total length of the brush was
approximately nine inches long (Tr. 950-55). In instance a he estimated that there was a distance
of almost one foot between the employee's hand and the chuck as he applied oil with a sprayer
brush (Tr. 947-48, 1182). CO Rezsnyak estimated that when using the brush, an employees hand
may be from three to eight inches from the rotating chuck. He testified that when using the
spray, there would be no reason to get closer than one foot (Tr. 948). Respondent asserts that whole operating the lathe's controls, the employee has no need to
be exposed to the rotating chuck. Oberdorfer tool and design manager, Craig Chesbro testified
that the operator stands behind the tool, where the controls are located. As such, the operator is
not exposed to the rotating chuck, located approximately two feet away (Tr. 1346-47). He
testified that two employees work in the metal shop where the operation involves a turning of an
individual part for a mold or a brushing for a part. These two employees are highly skilled
journeymen pattern makers (Tr. 1342). He also testified that if an employee were to apply oil
with a brush, his or her hands would be three inches from the piece being machined, not the
rotating chuck (Tr. 1356). He indicated that the oil spray is automatically air-feed, and is not
hand held(Tr. 1356-57). The undersigned finds that while the skill of the employees and the two foot distance may
lessen the probability of the occurrence of an injury, these factors do not negate an inadvertent
exposure to unguarded moving parts. 3. Employer Knowledge of the Violation The record establishes that all the violations in this citation item were in plain view (Tr.
624). e) GREEN SAND DEPT., TOP OF 9/25/96: CONVEYOR
SYSTEM HEAD PULLEY OR O BELT, INGOING NIP
POINT WAS NOT GUARDED IN ACCORDANCE WITH
ANSI B20.1 - 1976, SECTION 6.01.1.1. EMPLOYEE PASSES
BY THE HEAD PULLEY WHILE THE BELT IS RUNNING
TO CHECK HEX SCREEN WHEN SAND IS NOT COMING
DOWN ON REST OF CONVEYOR BELT SYSTEM. Employer Noncompliance CO Rezsnyak testified that he observed an unguarded head pulley belt on the green sand
belt conveyor system. He indicated that employees pass by the head pulley belt to check the hex
screen (Tr. 616-17, Ex. C-79, page 5). An in-running nip point was created where the conveyor
belt went over the head pulley (Tr. 617, 625). CO Rezsnyak recommended that the nip point
could have been guarded using a solid guard where the "O" belt comes over the conveyor roller
(Tr. 623-24). This condition created a hazard of being caught by the nip point of the belt. Employee Access to the Violative Condition CO Rezsnyak testified that when sand plugs up the system, employees walk by the
moving belt to check the hex screen. Employees also check a hopper that the belt discharges into.
When checking the hopper or the conveyor, CO Rezsnyak testified that employees come within
12 inches of the nip point (Tr. 617). Employee Ed Llera testified that normally the hex screen is
cleaned once every two months. He indicated that during one large job, they had to remove
backs-ups once a week (Tr. 1393-94). This large job was last run in March of 1996. (Tr. 1394,
1659-61, Ex. R-13). (39) He further stated that "[r]ight up until they shut down the green
sand...[they would go up and clean the off the hex screen] maybe once every two months." (Tr.
1395). Employer Knowledge of the Violation The record establishes that all the violations in this citation item were in plain view. (Tr.
624). Penalty - Instances a - d CO Rezsnyak recommended that the item be classified as serious, based on the possible
injury of fractures caused by being pulled into the turning lathes or the belt (Tr. 624-25). He
assessed the severity of this injury as "medium," and the probability of such an accident
occurring as "greater". The undersigned finds that in light of the evidence presented with respect
to employee exposure, the probability of the occurrence of an accident was "lesser". These
findings result in a gravity based penally of $2,000.00. The undersigned finds that a penalty in
the amount of $1,700.00 would be appropriate in light of her findings set forth in Citation 1, Item
1. CITATION 1, ITEM 12 29 C.F.R.§1910.212(A)(5) Exposure of blades. When the periphery of the blades of a fan is less
than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall
have openings no larger than one-half (½) inch. a) CORE ROOM, CORE FINISHING DEPARTMENT, ON OR
ABOUT 9/19/96: ONE FAN USED BY EMPLOYEE TO
MOVE HOT AIR OUT OF WORK AREA. OPENINGS IN
FAN BLADE GUARD MEASURED 1 1/4 INCHES BY 5/8
INCH. Employer Noncompliance CO Rezsnyak observed a fan in the core finishing room used by employees in the area to
cool the room. The fan was on the floor and at working level, less than seven feet above the
floor. He testified that the openings in the in the fan guard measured 1¼ inches by of an inch
(Tr. 626-27, Ex. C-82). The fan blade was 1½ from the metal guarding. These findings establish
a violation of the standard. Employee Access to the Violative Condition CO Rezsnyak testified that there was an employee, whom he questioned, who used the
fan was exposed to this condition. At times, the employee stood in front of the fan ( with his back
to the fan) while performing his duties (Tr. 628). When he made his observations, the fan was
plugged in (Tr. 628-29). Ex. C-82 depicts the employee standing with his back to the fan. CO
Rezsnyak testified that this reduced the probability of an accident occurring (Tr. 970-71). He
conceded that only an employee's pinkie would fit through the opening (Tr. 968-69). Employer Knowledge of the Violation The record established that the violation was in plain view, and with the exercise of
reasonable diligence the Respondent would have known of the cited condition (Tr. 629). Penalty CO Rezsnyak testified that employees would be exposed to the potential injury of
amputation (Tr. 628). The undersigned finds that in view of the fact that the employee worked
with his back to the fan, and the openings limited exposure to at most the pinkie finger, the
expected injury would not be amputation. CO Rezsynak determined that the probability of the
occurrence of injury was lesser in view of the fact that the employee worked with his back to the
fan and the openings limited to a great degree how much of the body could get in to the fan (Tr.
630. 969). The undersigned finds that these findings support a finding of other than serious, and a
penalty of $0.00. CITATION 1, ITEM 13 29 C.F.R. §1910.212(b) Anchoring fixed machinery. Machines designed for a fixed location
shall be securely anchored to prevent walking or moving. a) METAL PATTERN SHOP, ON OR ABOUT 9/20/96: ONE
EDLUND MODEL EB/5 DRILL PRESS SN B2570. b) WOOD PATTERN SHOP, ON OR ABOUT 9/20/96: ONE
DELTA PRESS. c) MAINTENANCE SHOP, ON OR ABOUT 9/20/96: ONE JET
PRESS SN 1040536. Employer Noncompliance CO Rezsnyak testified that when he observed the cited drill presses they were not
anchored to the floor. There were holes cast into the bottom plate of the presses, which indicated
that they had been so designed to be anchored by the manufacturer (Tr. 631-632, C-83). He
testified that the press in instance a was the most unstable because of its height - it was
approximately seven feet high and the motor was positioned at the top (Tr. 632,636). The drill
press rocked with very little effort when he touched it, indicating to him that this press was
especially unstable (Tr. 974). The drill presses were anchored to the floor during the course of
the inspection. (Tr. 633, Ex. C-83, page 1). CO Rezsynak testified that the purpose of anchoring
is to prevent a piece of equipment from moving or walking. The hazard created was an employee
being struck by the machine if it tipped over. It is not his interpretation of the requirement that
every piece of equipment must be anchored. There are pieces at Oberdorfer which were stable -
they had such a wide base, and were not to the height where the center of gravity would be an
issue. Stability is a principal factor in determining whether something must be anchored. (Tr.
635-36; 973-74). Tool and Design Manager Chesbro testified that he had never seen the Edlin drill press or
the Delta wood drill press move or vibrate during their operation. He testified that they had large
bases which held them vertical (Tr. 1348-49). However, the undersigned finds that this testimony
does not negate the cited findings. The undersigned having reviewed the photographic evidence
and considered the fact that these drills were manufactured with holes in their bases to accept
bolts for anchorage, finds that the cited conditions indicated that the presses presented a tipping
or falling over hazard.(See Exh. R-8, p. 38). Employee Access to the Violative Condition Employees informed CO Rezsnyak that they used the machines in the condition which he
observed them. The record establishes that employees would be exposed to the hazardous
condition of the machine tipping over onto them while there were operating the presses (Tr. 635-36). Employer Knowledge of the Violation CO Rezsnyak testified that these conditions were in plain view (Tr. 636-37). Penalty Based largely on the press cited in Instance a, CO Rezsnyak recommended that the item
be classified as serious. He testified that the weight of the drill press could kill an employee. (Tr.
637). He classified the injury as "high severity," and determined that the probability of such an
injury occurring was "lesser." The undersigned finds that Mr. Chesbro's testimony corroborated
the "lesser" finding. A penalty of $2,500.00 was proposed (Tr. 638). The undersigned finds that a
penalty in the amount of $2,125.00 would be appropriate in light of her findings set forth in
Citation 1, Item 1. CITATION 1, ITEM 14a 29 C.F.R. §1910.213(c)(1), in pertinent part sets forth :Each circular hand-fed ripsaw shall be
guarded by a hood which shall completely enclose that portion of the saw above the table and
that portion of the saw above the material being cut. The hood and mounting shall be arranged so
that the hood will automatically adjust itself to the thickness of and remain in contact with the
material being cut but it shall not offer any considerable resistance to insertion of material to saw
or to passage of the material being sawed. a) WOOD PATTERN SHOP, ON OR ABOUT 9/20/96: ONE
DELTA TABLESAW SN 112-1312 WITH A 12 INCH
DIAMETER SAWBLADE USED BY EMPLOYEES TO RIP
VARIOUS LENGTHS AND WIDTHS OF WOOD WAS
EQUIPPED WITH A NON-AUTOMATICALLY
ADJUSTING GUARD. CITATION 1, ITEM 14(b) 29 C.F.R. §1910.213(c)(2), in pertinent part sets forth : Each hand-fed circular ripsaw shall be
furnished with a spreader to prevent material from squeezing the saw or being thrown back on
the operator . . . . The spreader shall be attached so that it will remain in true alignment with the
saw even when either the saw or table is tilted. The provision of a spreader in connection with
grooving, dadoing, (40) or rabbeting is not required. On the completion of such operations, the
spreader shall be immediately replaced. a) WOOD PATTERN SHOP, ON OR ABOUT 9/20/96: ONE
DELTA TABLESAW SN 112-1312 WITH A 12 INCH
DIAMETER SAWBLADE USED BY EMPLOYEES TO RIP
VARIOUS LENGTHS AND WIDTHS OF WOOD. CITATION 1, ITEM 14(c) 29 C.F.R.§1910.213(c)(3) Each hand-fed circular ripsaw shall be provided with non-kickback
fingers or dogs so located as to oppose the thrust or tendency of the saw to pick up the material or
to throw it back toward the operator. They shall be designed to provide adequate holding power
for all the thicknesses of materials being cut. a) WOOD PATTERN SHOP, ON OR ABOUT 9/20/96: ONE
DELTA TABLESAW SN 112-1312 WITH A 12 INCH
DIAMETER SAWBLADE USED BY EMPLOYEES TO RIP
VARIOUS LENGTHS AND WIDTHS OF WOOD HAD
ANTI-KICKBACK DOGS SO LOCATED THAT THEY
WOULD NOT FUNCTION AS INTENDED. Employer Noncompliance Instance a: CO Rezsnyak testified that he observed the cited table saw in the wood pattern
shop. The saw had a twelve inch diameter saw blade, used by employee to rip wood. The saw
was equipped with a fixed guard (Tr. 639; Ex. C-84, page 1). An automatically adjusting hood
guard was installed during the course of the inspection (Tr. 641; Ex. C-84, page 2). Such a guard
is designed to ride up on top of the wood during the cutting operation (Tr. 642-43). The hazard
associated with the cited condition was that the employee could be struck by the material being
cut as it came out from underneath or a broken tooth (Tr. 644, 646). Instance b: CO Rezsnyak testified that the cited saw was not equipped with a spreader
(Tr. 647). He testified that a spreader prevents the wood from pinching together after passing
through the saw blade. When the wood pinches together, it may bind together on the blade and
kick back towards the operator - material such as broken wood could fly back at the operator (Tr.
643-44, 647-48). CO Rezsnyak testified that employees told him they ripped and cross cut wood
on the saw. Wood is ripped by cutting with the grain, while cross-cutting involves cutting across
the grain (Tr. 975, 1185). Employee David Liedka testified that there was no spreader on the
saw, and when the wood is cross cut or dadoed, a spreader is not necessary (Tr. 1292) (41). He
further stated that they typically used dry wood, thus reducing the likelihood that the wood would
pinch together. Employee Lance Taylor testified that the machine is occasionally used for
ripping (Tr. 1354). (42) Instance c: CO Rezsnyak testified that the anti-kick back device on the cited saw were not
adjusted properly. He obtained a piece of wood that had just been cut on the saw, pushed the
wood through the stationary saw, and pulled back on the wood. The kick back device did not
touch the wood, indicating that it was not adjusted properly (Tr. 643). The anti- kick back
device-fingers or dogs should have been located so as to oppose the thrust or tendency of the saw
to pick up the material or to throw it back towards the operator (Tr. 648). Employee David
Liedka testified that the anti-kickback device was "moved in a little tight," but that such a device
was present on the machine (Tr. 1290-91). Respondent relies upon the testimony of Employee Llera that the saw need only be
configured for the type of work performed at the time (Tr. 1290-93; Respondent's Post-Hearing
Memorandum, p.59). However, the evidence shows that the cited conditions were present at the
time of the inspection, and there was no evidence that the employee had just finished performing
a task where the spreader was not necessary (Tr. 656). The undersigned finds that the Secretary
has proven noncompliance with the cited standards (Tr. 639-40, 643; Ex. C-84). Employee Access to the Violative Condition CO Rezsnyak testified that he determined by speaking with the employee who had used
the saw, that the saw was used in this condition. The employee told him that he had just finished
using the saw and he observed saw dust on the equipment. (Tr. 644-4). He also testified that
during operation, employees' hands would be within four or five inches from the saw blade as
they would push the wood through (Tr. 644). Employer Knowledge of the Violation CO Rezsnyak testified that these conditions were in plain view (Tr. 648). Penalty - Items 14(a) - 14(c) CO Rezsnyak testified that he recommended that these items be classified as serious,
based on the possible resulting injury of severe lacerations. He assessed the severity of the injury
as medium, and the probability of such as injury occurring as "lesser." (Tr. 647). The
undersigned finds that the testimony of Employees Llera and Taylor support a finding of "lesser"
probability of the occurrence of an accident. The proposed penally was $2,000.00. The
undersigned finds that these items were appropriately grouped because they involve similar
hazards and finds that a grouped penalty in the amount of $1,700.00 would be appropriate in
light of her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 15 29 C.F.R. §1910.219(c)(2)(I) All exposed parts of horizontal shafting seven (7) feet or less from
floor or working platform, excepting runways used exclusively for oiling, or running
adjustments, shall be protected by a stationary casing enclosing shafting completely or by a
trough enclosing sides and top or sides and bottom of shafting as location requires. a) METAL SHOP, ON OR ABOUT 9/23/96: EMPLOYEE
WHEN OPERATING THE UNIVERSAL HORIZONTAL
BORING MACHINE IS EXPOSED TO AN UNGUARDED
REVOLVING DOUBLE KEYED SHAFT
APPROXIMATELY 3 ½ INCHES IN DIAMETER.
LENGTH OF UNGUARDED REVOLVING SHAFT WAS
APPROXIMATELY 36 INCHES 11 INCHES BEHIND
SPINDLE ADJUSTMENT CONTROL HANDLE. Employer Noncompliance CO Rezsnyak testified that in the metal shop he observed an employee operating the
universal horizontal boring machine. The employee was exposed to an unguarded revolving
double keyed shaft approximately 3 ½ inches in diameter. The length of the unguarded revolving
shaft was approximately 36 inches. The shaft was approximately 11 inches behind the spindle
adjustment control. C-85 is the unguarded horizontal shaft on the universal horizontal boring
machine (Tr. 650, 979, Ex. C- 85). The instant standard provides that all exposed parts of horizontal shafting seven feet or
less from floor or working platform ... shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as
location requires. Review Commission precedent has held that this standard does not require the
Secretary to specifically prove that the unguarded shafts on the cited presses pose a hazard to
ConAgra Flour Milling Co.,16 BNA OSHC 1137, 1148-49 (No.88-1250, 1993). The hazard is
presumed where the standard strictly requires that all exposed horizontal shafting of a given
height must be protected. Here, it is undisputed that rotating shaft was less than seven feet from
the floor. (43) Employee Access to the Violative Condition While the machine is operating, the employee uses a spindle adjustment control handle to
control the depth of the boring device (Tr. 653-54, 987). CO Rezsnyak testified that while
operating the adjustment control handle, the employees hands would be approximately 11 inches
from the double keyed revolving shaft. This distance could be shortened- to 6 to 7 inches - as the
shaft continues to rotate. (Tr. 653-54, 979). CO Rezsnyak testified that the machine was used in
this condition, and that he spoke with the operator who used the machine (Tr. 655). He testified
that he saw "them boring holes into pieces of metal". He further testified that he did not see the
machine in operation. He saw the machine with a boring bit in it - the operator had just finished
up one and "was getting ready to move it to another hole" (Tr. 980, 982). While operating the
machine the employee is facing the spindle control knob and looking to the left of the control(Tr.
983, 987). (44) He stated that the exposure occurred if the employee's hands slipped off the spindle
control knob (Tr. 985). He learned that when the employee was using the machine, he would
have to have his hand on the control handle as he was adjusting the depth (Tr. 1186-87). Respondent argues that the operator would never be exposed to the rotating keyed shaft
during operation of the boring machine. Tool and Design Manager Chesbro testified that the
boring machine is used for facing a work piece off. He also stated that in Ex. C-85 the operator
is standing in the wrong direction. During the operation of the machine, the operator would have
his back to the exposed shaft - facing the opposition direction (Tr. 1353-54). He indicated that
the boring machine is only used for facing and is not used for boring holes. It was his opinion
that in operating the machine as he described the operator would never be exposed to the rotation
of the keyed shaft and that the shaft would still be turning during that operation (Tr. 981-986). The undersigned finds that CO Rezsynak observations as demonstrated by the employee
working at the machine established employee exposure. His observations were firsthand. The
employee demonstrated the operation and as he adjusted the spindle control handle, to adjust how
deep he was boring the material, the rotating coupling on the shafting moved closer to the
employee (Tr. 654-55, 981-82, 987). The Secretary has proven by a preponderance of evidence
that an employee is in the zone of danger created by the rotating shaft during the course of his
work duties. The undersigned finds that such exposure would more likely occur as a result of an
operator's inattention or an accident. However, "[s]tandards are intended to protect against
injury resulting from an instance of inattention or bad judgment as well as from [the] risks
arising from the [normal] operation of a machine." Trinity Industries Inc., 15 BNA OSHC
1579,1593-94 & n.27 Employer Knowledge of the Violation The record establishes that the cited condition was in plain view (Tr. 657). Penalty CO Rezsnyak recommended that the item be classified as serious, based on the possible
resultant injury of fractures. He testified that this injury would be of a medium severity - fractures
or severe lacerations, and that the probability of such an injury occurring would be "greater."
The undersigned finds that the record establishes that when facing is done the shaft does not
move as much and Mr. Chesbro's description of the facing work indicate that the probability of
the occurrence of injury is "lesser". These findings result in a gravity based penalty in the amount
of $2,000.00. The undersigned finds that a penalty in the amount of $1,700.00 would be
appropriate in light of her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 16 29 C.F.R. §1910.219(f)(3) Sprockets and chains. All sprocket wheels and chains shall be
enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive
extends over other machine or working areas, protection against falling shall be provided. This
subparagraph does not apply to manually operated sprockets. a) GREEN SAND DEPARTMENT, TOP OF MULLER, ON OR
ABOUT 9/27/96: EAST SIDE OF DRIVE CHAIN AND
SPROCKET FOR HEAD PULLEY OF "O" BELT WAS NOT
ENCLOSED/GUARDED TO PREVENT ACCIDENTAL
EMPLOYEE CONTACT. Employer Noncompliance CO Rezsnyak testified that on the top of the Muller, on the east side of the drive chain
and sprocket, the head pulley of the "O" belt was unguarded (Tr. 659). He acknowledged that
there was a fixed metal guard on the walkway side of the conveyor (Tr. 989; Ex. C-86). It was
his opinion that the guard should have been extended over to the other side (Tr. 662). Employee Access to the Violative Condition CO Rezsnyak testified that when sand plugs up in the conveyor system, employees are in
the area two or three times a day to check the check the hopper (Tr. 661). He testified that an
employee told him that while on the walkway behind the guard, he leaned over and checked the
sand hopper for plugs and sand level (Tr. 989-90, 1187). He believed that an employee would
come withing a foot or two of the revolving chain and sprocket (Tr. 661). The nip point was in
the area of the employee's feet (Tr. 1001). He testified that the walkway around the hopper was
in a "U" shape.. At the end of the hopper, where the walkway turned right, there was a toeboard
which was three or four inches. In viewing Ex. C-86, there was a conveyor belt between the
walkway and chain and sprocket. (45) He also testified that as one viewed Ex. C-86, it was 24 feet
from the walkway on the right side to the nip point. He acknowledged that employees on the
other side of the guard - where the guard was between the employee and the chain and sprocket -
would be in closest proximity to the chain and sprocket (Tr. 991-94). CO Rezsnyak testified that
the employee told him he looked into the hopper from the walkway. He acknowledged that an
employee would have to get their hand behind the sprocket and under the chain, or fall while
looking into the hopper, in order to contact the nip point (Tr. 999-1000). The undersigned finds that the Secretary's evidence with regard to employee is
speculative. The photographic evidence shows that there were several impediments to easy
access to the cited area. There was a guard on the side of the walkway where the employees were
in closest proximity to the nip point. There was a toe board at the end of the walkway, and on the
other side, the presence of the belt (30 inches in width) between the walkway and the chain and
sprocket provided sufficient distance from the nip point. The Secretary has not shown that the
employees are in the zone of danger of the nip point and the likelihood of inadvertent contact is
far too remote to support a finding of employee exposure. Thus, in light of the fact that the record
does not support employee exposure, this violation is Vacated. CITATION 1, ITEM 17 29 C.F.R. §1910.219(I)(2) Couplings. Shaft couplings shall be so constructed as to present no
hazard from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will,
however, be permitted where they are covered with safety sleeves or where they are used parallel
with the shafting and are countersunk or else do not extend beyond the flange of the coupling. a) MAINTENANCE PLATFORM, HYDRAULIC PUMPS FOR
ROCKETS, ON OR ABOUT 9/26/96: ONE 3 ½ INCH
DIAMETER COUPLING (HIGH SPEED) NOT GUARDED
TO PREVENT ACCIDENTAL EMPLOYEE CONTACT.
EMPLOYEE PASSES BY REVOLVING COUPLING TO
ACCESS DISCONNECTS FOR SHUTTING DOWN PUMPS. b) GREEN SAND DEPARTMENT, TOP OF MULLER, ON OR
ABOUT 9/27/96: ONE UNGUARDED SHAFT COUPLING
(HIGH SPEED) FOR DRIVE MOTOR OF "O" BELT.
EMPLOYEE PASSES BY REVOLVING SHAFT COUPLING
WHEN SAND PLUGS UP IN HOPPER. Employer Noncompliance Instance a - CO Rezsnyak testified that he observed a 3 ½ inch high-speed coupling that
was not guarded to prevent accidental employee contact. He indicated that employees pass by the
coupling to access pump electrical disconnects (Tr. 663). The coupling was on a one foot high
platform located approximately six inches from the area traversed by the employee. (Tr. 665-66,
Ex. C-87, page one). The coupling was used to couple together the motor and the pump shafts.
(Tr. 1505-06). The Secretary argues that the bolts shaft had two bolts protruding from it which
were not covered by a safety sleeve (Secretary's Post - Hearing Memorandum, p. 74). Instance b - CO Rezsnyak testified that he observed an unguarded high-speed shaft
coupling for the drive motor of the "O" belt. (Tr. 668, Ex. C-87, page 3). This was right above
the "O" belt conveyor, approximately two to three feet off the walkway which was in front of this
motor. As an employee traversed the walkway (Tr. 670-73). The issue presented by these conditions is whether the coupling in question presented a
hazard due to its revolving surfaces. The undersigned finds that the cited couplings were
inaccessible to employees traveling pass them by virtue of there location as evidenced by the
photographic evidence. The undersigned finds that the configuration of the couplings in both
instances put the couplings locations beyond the expected reach of an employee, making it
difficult if not impossible to be caught by the revolving shafts. The Compliance Officer testified
that he determined that a hazard was present in instance b, upon the presence of a revolving
surface (Tr. 1008). The undersigned finds that the fact that a coupling is unprotected does not
automatically result in a violation of the standard. Accordingly, the instant violation is Vacated. CITATION 1, ITEMS 19, AND 23- INSTANCES A THROUGH H 29 C.F.R. §1910.304(f)(3)(iv) AC systems of 50 volts to 1000 volts shall be grounded under any
of the following conditions, unless exempted by paragraph (f)(1)(v) of this section: (46) (A) If the system can be so grounded that the maximum voltage to ground on the
ungrounded conductors does not exceed 150 volts; (B)If the system is nominally rated 480Y/277 volt, 3-phase, 4-wire in which the neutral is
used as a circuit conductor; (C) If the system is nominally rated 240/120 volt, 3-phase, 4-wire in which the midpoint
of one phase is used as a circuit conductor; or (D) If a service conductor is uninsulated. ITEM 19 a) MAINTENANCE SHOP, ON OR ABOUT 9/24/96: ONE
LINCOLN THREE PHASE 440 VOLT ELECTRIC ARC
WELDING MACHINE PATH TO GROUND WAS NOT
PERMANENT AND CONTINUOUS IN THAT THE
GROUND WIRE WAS NOT CONNECTED AT MACHINE
END. ITEM 23 a) WOOD PATTERN SHOP: ON OR ABOUT 9/20/96: ONE
WADKIN DISK SANDER SN JV594, THREE PHASE, 440
BOLTS, GROUND WIRE WAS NOT CONNECTED AT
MACHINE END. b) METAL LAB, ON OR ABOUT 10/18/96: ONE TINUS
OLSEN TENSILE TEST MACHINE, THREE PHASE, 440
VOLTS, GROUND WIRE WAS NOT CONNECTED AT
MACHINE END. c) HEAT TREAT DEPARTMENT, CELL #1 FINISHING LINE,
ON OR ABOUT 10/4/ 96: ONE ROCKWELL MODEL 20
DRILL PRESS SN 1778238 USING THREE PHASE 440
VOLTAGE WAS WIRED WITH A THREE WIRE CORD
FROM PLUG END TO MACHINE. d) MOLD REPAIR DEPARTMENT, ON OR ABOUT 9/23/96:
ONE RACINE POWERED HACKSAW, THREE PHASE, 440
BOLTS, WAS WIRED WITH A THREE CORE CORD
FROM PLUG END TO MACHINE. e) PERMANENT MOLD AREA, ON OR ABOUT 9/25/96: ONE
STOP/START CONTROL BOX FOR THREE INCH
HAMMOND BELT SANDER (THREE PHASE 440 VOLTS)
WAS WIRED WITH A THREE WIRE CORD. f) RAILCAR DISCHARGE POINT, ON OR ABOUT 9/11/96:
ONE FARGUHAR ELECTRICALLY OPERATED
CONVEYOR (THREE PHASE 440 VOLTS), GROUNDED
WIRE WAS NOT CONNECTED IN PLUG END. g) MAINTENANCE SHOP, ON OR ABOUT 9/24/96: TWO
LIFEGUARD BATTERY CHARGERS (THREE PHASE 440
VOLTS), FLEXIBLE CORDS POWERING BATTERY
CHARGERS FROM DISCONNECTS WERE ONLY THREE
WIRE. h) NEAR LADLE REPAIR AREA, ON OR ABOUT 9/24/96:
HYDRAULIC PUMP MOTOR FOR EAST TILT CAST
MACHINE (440 VOLTS), GROUND WIRE WAS NOT
CONNECTED AT MOTOR JUNCTION BOX. Employer Noncompliance Citation 1, Items 19 and 23, instances a through h, were amended and grouped as
violations of the instant standard, by motion dated December 9, 1997, and at the hearing (Tr.
675-80). The citations had originally cited various failures to ground: Item 19 for respondent's
failure to ground a 440-volt electric arc welding machine (Tr. 690-92; Ex. C-88), Item 23,
instances a through h, for failure to have a path to ground on equipment or circuits operating at
440 volts (Tr. 733, 736-40; Exs. C-94 & 95). Because Respondent's entire system was
unguarded, these items were amended and grouped on the basis that the larger violation was for
failing to ground the system (Secretary's Post-Hearing Memorandum, p. 76). The cited standard
requires that, unless otherwise exempted by the standard, an AC electrical system operating at 50
volts to 1000 volts be grounded, if inter alia, such system could be so grounded so that the
maximum voltage to ground on the ungrounded conductors did not exceed 150 volts. 29 C. F.R.
§1910.304(F)(1)(iv)(A). Mr. Douglass Pomphrey, Facility and Environmental Manager for Respondent, whose
duties include the modernization of the electrical system, testified that at the time of the
inspection there was an ungrounded Delta electrical system in place ( 3-phase). This system had
been installed in the 1920's. It was his testimony that the four conditions for grounding AC
systems of 50 to 1000 volts set forth in §1910.304(f)(1)(iv) were not applicable to Respondent's
system. Specifically, with regard to paragraph (A), he testified that the Delta system was not
intended and designed to be so grounded (Tr. 1512, 1514). (47) He stated that a Delta system could
be "corner ground[ed]", however, that could not be done on this system (Tr. 1514). He testified
that as long as an employee was aware that he was working on an ungrounded Delta system,
there was no hazard involved (Tr. 1516). Robert Wolf, the retired Plant Engineer for Respondent
testified that, subparagraph (iv) did not apply to the Delta system, and that "a 460 volts system,
even grounded cannot achieve less than 150 volts with going through a transformer or
something, it just [would not] work."(Tr. 1201). He further testified that to his knowledge, he
was not aware of whether the system could be grounded so that the maximum voltage to the
ground did not exceed 150 volts. He was also unaware of any attempt to bring the system within
150 volt (Tr. 1217). The Secretary's electrical expert, Phillip Peist, a former safety engineer with OSHA,
testified that the subparagraph (iv) does not describe a Delta system, it addresses a 120 volt
system. He stated that subparagraph(f)(1)(iv)(A)'s requirement for AC systems of 50 to 1000
volts takes care of just about all systems except for the Delta system(Tr. 1245, 1252). However,
he stated that there was no exception to the standard, an employer would have to determine how
to ground the Delta system by dropping a ground through one of the legs in order to attempt to
get the 150 volts; otherwise, an employer would have to change the system or switch the
equipment through isolated transformers or do a lot of work on the equipment in other ways (Tr.
1246). Furthermore, he was aware of a couple of "odd direct systems" which he had seen. In
one situation, involving and old industrial building, with the Delta system, he had been informed
that they had grounded one of the legs to get to 150 volts (Tr. 1252). Grounding is a means of protecting employees from electric shock. Section 304 of
Subpart "s" covers, inter alia, requirements for the protection of electric conductors from both
overcurrent and physical harms. The grounding requirements for electric systems, circuits, and
equipment are contained in paragraph (f), which addresses two kinds of grounds. The cited
standard concerns one of the mandatory kinds of grounds, systems grounds. (48) The cited standard
provides that the following enumerated systems "shall be grounded". This directive is
mandatory, and on its face, provides no exception for the Delta system. The undersigned finds
that the Secretary's expert provided unrebutted support of this finding. (49) Accordingly, the
undersigned Respondent's ungrounded electrical system was violative of the cited standard. Employee Access to the Violative Condition The record indicates that the cited system was used in the condition observed. This
condition exposed employees who worked with this system to hazards of fatal electrical injuries
from the buildup of voltages and fires caused by equipment damaged by overcurrent. Employer Knowledge of the Violation Respondent's former plant manager and current environmental manager testified that they
were aware that the Delta system was not grounded. Additionally, this condition should have
been observed during normal maintenance procedures. Penalty The citation was classified as serious, based on the possibility that death could result
from the hazardous condition. The gravity of this violation reflects that a high severity of
possible injury - electrocution, and the probability of such an accident occurring as "greater." (Tr.
762). The undersigned finds that a penalty in the amount of $4,250.00 would be appropriate in
light of her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 21 29 C.F.R. §1910.303(b)(1) Examination. Electrical equipment shall be free from recognized
hazards that are likely to cause death or serious physical harm to employees. Safety of equipment
shall be determined using the following considerations: (50) a) METAL PATTERN SHOP, ON OR ABOUT 9/20/96:
BRIDGEPORT MILLING MACHINES #1 AND #4 HAD
DOUBLE DUPLEX RECEPTACLE OUTLETS MOUNTED
ON THEM FOR POWERING TABLES, DIGITAL READ
OUTS, AND WORKING LIGHTS, ETC. THE QUALITY OF
THE GROUND PATH WHEN TESTED WITH ECOS
MODEL EC002 ELECTRICAL TESTER EXCEEDED 50
OHMS. ACCEPTABLE QUALITY OF A GROUND PATH
IS 1.9 OHMS OR LESS. b) INSPECTION DEPARTMENT, TARGETING STATION, ON
OR ABOUT 10/8/96: DOUBLE DUPLEX RECEPTACLE
OUTLETS MOUNTED ON EAST WALL. WHEN TESTED
USING AN ECOS MODEL EC002 ELECTRICAL TESTER,
THE QUALITY OF THE PATH TO GROUND EXCEEDED
50 OHMS. ACCEPTABLE QUALITY OF A GROUND
PATH IS 1.9 OHMS OR LESS. c) GREEN SAND DEPARTMENT, CONVEYOR CONTROL
PANEL AREA, ON OR ABOUT 9/29/96: ONE DOUBLE
DUPLEX RECEPTACLE OUTLET ADJACENT TO
CONVEYOR CONTROL PANEL, QUALITY OF THE PATH
TO GROUND EXCEEDED 50 OHMS. ACCEPTABLE
QUALITY OF A GROUND PATH IS 1.9 OHMS OR LESS. Employer Noncompliance In Instances a through c, CO Rezsnyak measured the path to ground, and determined that
the ground path impedance was insufficient (Tr. 695, 704-06). Philip Peist testified that the
higher the resistance through the grounding path, the longer it will take for the overcurrent device
trip. As such, someone in contact with that circuit would be exposed to the electric current for a
longer period of time (Tr. 1247-48). He also testified that current flow is measured in amps,
while resistance is measured in ohms (Tr. 1232-33). He explained that you want to carry as
much current through the grounding conductor as fast as possible to get the overcurrent device to
trip out. Typical units would be 1 or 2 ohms, maybe .1 ohms - you would never want to see 50,
60 or 100 ohms (Tr. 1242). CO Rezsnyak testified that at the facility, he dealt with either 15 or 20 amp circuits. He
determined this by asking the maintenance technicians (Tr. 1031-32). In order to determine the
proper level of path to ground resistance, CO Rezsnyak consulted the ECOS operating
instructions (Tr. 698-99, Ex. C-92). Those instructions note that with 15 amp circuits, an
acceptable quality of path to ground is 1.97 ohms. If the circuit is 20 amps, 1.57 is acceptable
(Ex. C-92, p. 5). The manual stated that, with equipment of the voltage at issue her, ohms must
not exceed 1.97 in order to ensure an adequate path to ground if there are current leaks, and to
ensure that the leaks will trip a breaker or fuse within a sufficient time to protect the employee
from exposure, based upon the maximum exposure the human body can withstand without going
into cardiac fibrillations (Ex. C-92 at ¶1.4 to ¶1.41). CO Rezsnyak testified that in instance a, he tested the double duplex outlets mounted on
the Bridgeport Milling machines No. 1 and No. 4 for the quality of path to ground. (51) He first
tested the equipment using the ETCON circuit tester to determine if the circuit was properly
wired. All three lights on the tester were illuminated. CO Rezsnyak testified that there is no code
to interpret this reading, but that in his experience, such a reading indicated that the quality of
path to ground was of poor or insufficient impedance, and should be checked further (Tr. 695-96,
1032). He then used the ECOS tester, which measures ground loop impedance. The test
indicated that the impedance of the circuit was 50 ohms or greater. (Tr. 697-98). (52) In instance b,
CO Rezsnyak testified that he tested the double duplex outlets mounted on the east wall of the
targeting station. Using the ECOS tester, he determined that quality of path to ground exceeded
50 ohms (Tr. 704-05). In instance c, CO Rezsnyak testified that a double duplex receptacle
outlet adjacent to a conveyor belt in the green sand department had a quality of path to ground
that exceeded 50 ohms. He determined this using the ECOS tester. (Tr. 705) Respondent challenges CO Rezsnyak's the test results on the basis that he was not
equipped with appropriate written instructions regarding the use of the ETCON tester and failed
to follow the required steps in using the ECOS testing instrument (Respondent's Post-Hearing
Memorandum, p. 68). CO Rezsynak testified that his use of the ETCON tester was based upon
his experience. He further testified that he has inspected electrical items in 98 to 99% of his
inspections which the record indicates spanned over 17 years and 1,015 inspections (Tr. 157,
1011). The undersigned finds that his past electrical experience qualified him to make
conclusions with respect to the lighting configuration to the ETCON tester, i.e., that there was a
problem and he should perform additional tests. Furthermore, the ohm measurements which his
ECOS tester revealed have not been rebutted by Respondent, and those readings were reduced
sufficiently during the inspection for abatement purposes in instances a and b. Accordingly, the
undersigned finds his testing valid, and the Secretary has proven the violation by a preponderance
of the evidence. Employee Access to the Violative Condition CO Rezsnyak testified that employees were using the machines with respect to instance a
(Tr. 717). In instances b and , he testified that the outlets were not in use, but that there were
employees in the room using other receptacle outlets (Tr. 717-17). The cited outlets were
available for use (Tr. 711). These employees were exposed to the hazard of electrocution. Employer Knowledge of the Violation CO Rezsnyak testified that company maintenance employees who electricians could have
"easily" discovered these conditions using their volt/ohm meters. Although the pugs operated as
designed, such a condition could have been discovered during any routine maintenance or
"prudent review" of the plant (Tr. 712, 1034). Penalty CO Rezsnyak testified that based on the hazard of electrocution in Instances a through c,
and on the hazard of being sprayed by hydraulic fluid in Instance d, he recommended that the
item be classified as serious (Tr. 718-19). He determined that the potential injury was severe,
and that the probability of an accident occurring was "lesser" (Tr. 719-20). He recommended a
penalty of $2,500 (Tr. 719). The undersigned finds that a penalty in the amount of $2,125.00
would be appropriate in light of her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 22 29 C.F.R. §1910.303(c) Splices. Conductors shall be spliced or joined with splicing devices
suitable for the use or by brazing, welding, or soldering with a fusible metal or alloy. Soldered
splices shall first be so spliced or joined as to be mechanically and electrically secure without
solder and then soldered. All splices and joints and the free ends of conductors shall be covered
with an insulation equivalent to that of the conductors or with an insulating device suitable for
the purpose. a) WOOD PATTERN SHOP, ON OR ABOUT 9/20/96:
WADKIN DISK (SANDER) AND ONE CONDUCTOR OF
THE THREE PHASE, 440 VOLT WIRING HAD A SECTION
OF THE ENERGIZED CONDUCTOR EXPOSED
(UNINSULATED) EXTENDING BELOW THE BOTTOM
OF A SUITABLE INSULATING DEVICE (WIRE NUT). Employer Noncompliance CO Rezsnyak testified that he observed in the wood pattern shop that a Wadkin disk
sander had one conductor of the three-phase 440 volt wiring that had a section of the energized
conductor exposed (Tr. 720-21, Ex. C-94). He indicated that the exposed section of wire
extended below the wire nut, which he termed a suitable splice connector (Tr. 722). He stated
that the free end of the conductor had not been covered with a suitable insulation equivalent to
that conductor. He suggested that this condition could have been abated by putting electrical tape
equivalent to the insulating qualities of the conductor or taking off the wire nut and cutting the
conductor shorter so that the wire not would cover the whole uninsulated section of the
conductor. Employee Access to the Violative Condition CO Rezsnyak testified that employees were using the machine the cited condition (Tr.
723, 729-30). The exposed conductor was inside the cabinet of the machine. (Tr. 1445, Ex. C-94). Employer Knowledge of the Violation Respondent argues that because there was no problem with the machine there would have
been no reason to have discovered this violation. CO Rezsnyak testified that Oberdorfer could
have discovered the condition if they had checked the equipment. The exposed wire was visible
as soon as the cover was removed. (Tr. 731). He discovered the violation because as part of his
inspection, he was testing cord and plug connected equipment to make sure that the ground from
cord to machine was permanent and continuous. They unplugged the cord and did a continuity
check from the plug end to the frame of the disk sander. There was no continuity, so the cover
was removed to determine the problem. They observed that the ground wire was not connected.
The Respondent is responsible for ensuring that all components of electrical equipment be well
maintained. Thus, had the Respondent exercised reasonable diligence in its maintenance program
this condition would have been observed. b) ZYGLO DIG OUT DEPARTMENT, ZYGLO DIG OUT
STATION, ON OR ABOUT 10/8/96: WIRING TO POWER
VENTILATION FAN WAS SPLICED BY MEANS OF
WRAPPING THE CONDUCTORS OF THE FAN MOTOR
TOGETHER WITH THE FLEXIBLE CORD BY HAND NO
SUITABLE SPLICING DEVICES OR SOLDERING WITH A
FUSIBLE METAL WAS USED. Employer Noncompliance CO Rezsnyak testified that he observed that the wiring to a ventilation fan was not
suitably spliced or soldered. The wires were spliced together by taking the conductor wires and
rolling them together. There was no wire nut or soldering of that connection to insure that it
would not come apart or loosen up - they were wrapped together by hand and covered with
electrical tape instead of a suitable splicing device (Tr. 721, 729, 1043-44). The cited standard requires that conductors be spliced or joined with suitable splicing
devices.(emphasis added). The cited wiring had been spliced by wrapping the wires together and
covering them with electrical tape. This did not ensure that they could not be pulled apart or
loosen up. Thus, the wiring had not been spliced or joined with a suitable splicing device, nor
were they brazed, welded, or soldered. Therefore, a violation of the standard has been
established. Employee Access to the Violative Condition CO Rezsnyak testified that the unit was located directly outside the Zyglo dig out station,
near a door that leads from the plant. (Tr. 729) The fan was mounted on the outside wall of the
station, which was part of the walkway that led to a door. Employees would go past a wall where
the fan was located to access of the door, or other parts of the plant. This condition created a
hazard where employees were exposed to electrocution upon contact. Employer Knowledge of the Violation The record establishes that the cited condition was in plain view (Tr. 731). Furthermore,
had the Respondent exercised reasonable diligence this condition would have been observed. Penalty- Instances a - b CO Rezsnyak testified that he recommended that the violation be classified as serious,
based on the possibility of death should an accident occur. The undersigned finds the violation
should be classified as non-serious because the record does not establish that it was likely that
employees would suffer serious injury or death as a result of these conditions. In instance a, the
condition was inside of the machine behind an access plate - this plate protected employees from
contact with the exposed wire. Additionally, the compliance officer acknowledged that it was a
lesser probability that the exposed section would contact the frame of the sander and energize the
sander. In instance b, the electrical tape offered some resistance to the wires being pulled apart,
and there was no evidence of how long the condition had been present. There was also no
evidence that the electrical tape covering the wires was not of an insulation rating equivalent to
that of the conductors. In view of these findings, the undersigned find the instant violation an other than serious
violation and assesses a penalty of $0.00. CITATION 1, ITEM 23 29 C.F.R. §1910.304(f)(4) Grounding path. The path to ground from circuits, equipment, and
enclosures shall be permanent and continuous. The Respondent argues that the cited standard is inapplicable because none of the
equipment identified were required to be grounded. The Respondent argues that the instances all
involve equipment connected by cord and plug and the applicable standard is §1910.304(f)(5)(v).
Furthermore none of the equipment were the types of cords identified in subparagraphs (A), (B)
and (C) of §1910.305(f)(5)(v), and thus, none of the cited equipment were ever required to be
grounded - none was located in a hazardous, none were greater than 150 volts (they were 120
volts), and none were the type of equipment identified in the standard (Respondent's Post -
Hearing Memorandum, pp. 81-82). The undersigned finds that Respondent's argument is
without merit. The Secretary has accurately stated that the record reveals that the equipment was
required to be grounded under §1910.305(f)(5)(c)(3), (5), (7) and (8), respectively. (53) The cited
standard presupposes that the equipment is grounded (as was the case here) and requires that the
path to ground be permanent and continuous. Instances I through u allege that the path to
ground in all of the cited equipment was not permanent and continuous. Accordingly, the
undersigned finds the cited standard applicable. The undersigned finds that a prima facie case has been established in each of the
following instances, per the findings set forth. I) INSPECTION DEPARTMENT, 166 WATER TEST, ON OR
ABOUT 10/8/96: ONE 120 VOLT LIGHT FIXTURE ABOVE
OPERATORS PLATFORM GROUND. WIRE WAS NOT
CONNECTED INSIDE JUNCTION BOX. Employer Noncompliance CO Rezsnyak testified that he observed a 120 volt fixture above the operators platform
where the ground wire was not connected inside the junction box (Tr. 742). The light fixture was
movable, and was connected to its power source via a plug and cord (Tr. 1048-49). He
determined this by checking the continuity. A company electrician took apart the junction box
between the plug and the light and found that the wire was not connected inside the junction box
(Tr. 742, Ex. C-96). Employee Access to the Violative Condition CO Rezsnyak testified that he determined the employee pictured in Ex. C-96 (first photo)
was exposed to the condition. The light fixture was used at his work station. He testified that the
employee worked within inches of the light fixture, and that the employee was at that location for
his entire shift (Tr. 745). Employer Knowledge of the Violation CO Rezsnyak testified that Oberdorfer electricians could have determined the lack of
grounding by using a continuity tester. He also testified that in instances I through u, all the
missing ground pins, two-wire circuits, and broken ground wires were in plain view. In other
instances, Oberdorfer electricians could have detected the condition using a volt/ohm meter (Tr.
762). j) SOLUTION HEAT TREAT DEPARTMENT, ON OR ABOUT
10/2/96: ONE REEL TYPE TROUBLE LIGHT (120 VOLTS)
PATH TO GROUND FROM METAL GUARD TO PLUG
END WAS NOT PERMANENT AND CONTINUOUS. Employer Noncompliance CO Rezsnyak testified that he observed a 120 volt "real type trouble light" without a
permanent and continuous path to ground. He determined this using the continuity tester (Tr.
742-44, Tr. C-96, page 2). Employee Access to the Violative Condition CO Rezsnyak testified that the manager of the department told him that the light was used
by employees to check the water level in a sump pump area. He testified that the light was used
on a daily basis, "as needed." (Tr. 745). Employer Knowledge of the Violation See discussion on employer knowledge in instance I, supra. k) SOLUTION HEAT TREATMENT DEPARTMENT, ON OR
ABOUT 10/2/96: ONE REMOTE SWITCH MOUNTED IN
METAL ENCLOSURE. GROUND WIRE WAS NOT
CONNECTED AT THE SWITCH ENCLOSURE END. Employer Noncompliance CO Rezsnyak testified that he observed a remote switch mounted in a metal enclosure in
the solution heat treatment department. Using the continuity tester, he determined that the switch
was not grounded. The maintenance technicians discovered that the ground wire was not
connected at the switch closure end (Tr. 745-46, 1050, C-96, page 3). Employee Access to the Violative Condition CO Rezsnyak testified that employees hold the switch when they are operating the hoist
for a metal basket. He testified that the employee used the switch "as needed daily." (Tr. 746,
747). Employer Knowledge of the Violation CO Rezsnyak testified that Oberdorfer electricians could have determined the condition
by test testing the equipment (Tr. 1050-51). See also discussion on employer knowledge in
instance I, supra. l) PERMANENT MOLD AREA, ON OR ABOUT 9/25/96: ONE
SINGLE CONTROL TIMER (120 VOLTS) GROUND PIN
WAS BROKEN IN PLUG END. Employer Noncompliance CO Rezsnyak testified that he observed a 120 volt surge control timer with a visibly
disfigured ground pin. (Tr. 747, Ex. C-96, page 4). He ran a continuity test, and determined that
there was not a permanent and continuous path to ground. (Tr. 747, 749) Employee Access to the Violative Condition CO Rezsnyak testified that employees used the timers in the area. Although he did not
see the timer in use, an employee told him that he used the timer 50 times a week (Tr. 748,
1052). Employer Knowledge of the Violation CO Rezsnyak testified that Oberdorfer could have determined this condition using a
volt/ohm meter or a continuity tester (Tr. 1052). See also discussion on employer knowledge in
instance I, supra. m) BUCKET ELEVATOR (HOPPER PLATFORM) FOR
ROCKET AREA ON OR ABOUT 9/25/96: ONE 120 VOLT
ELECTRIC LIGHT USED BY EMPLOYEES TO CHECK
LEVELS OF MATERIAL IN HOPPER WAS WIRED WITH
A TWO WIRE CORD. Employer Noncompliance CO Rezsnyak testified that he observed a 120 volt light used to check levels in the
hopper. Through a visual inspection, he determined that the cord was wired with two wires -
there was no ground wire in the cord (Tr. 749, Ex. C-96, page 5). Employee Access to the Violative Condition When CO Rezsnyak observed the light, it was in use by an employee. Employees used
the light to check the material in the hopper once per shift (Tr. 750-51). Employer Knowledge of the Violation CO Rezsnyak testified that the condition was "highly visible."(Tr. 749. 1053). See also
discussion on employer knowledge in instance I, supra. n) FINISHING DEPARTMENT, CYLINDER HEAD LINE #3
FINISHING, ON OR ABOUT 10/4/96: CYLINDER HEAD
PRESS GROUND PIN WAS MISSING FROM PLUG END. Employer Noncompliance CO Rezsnyak testified that the plug on a cylinder head press was missing a ground pin on
the plug end. Thus indicating that there was not a permanent and continuous path to ground (Tr.
751, Ex. C-96, page 6). Employee Access to the Violative Condition CO Rezsnyak testified that the employee who used the cylinder head press told him that it
was used eight hours a day, five days a week (Tr. 751-52) Employer Knowledge of the Violation CO Rezsnyak testified that the condition was "highly visible" when the cord was
unplugged (Tr. 751, 1054). See also discussion on employer knowledge in instance I, supra. o) PERMANENT MOLD DEPARTMENT, CARLYLE MOLD
MACHINE, ON OR ABOUT 9/26/96: ONE PACER/TIMER
GROUND PIN MISSING FROM PLUG END. Employer Noncompliance CO Rezsnyak testified that he determined through visual inspection that a pacer/timer in
the permanent mold department was missing a ground pin (Tr. 752-53, Ex. C-96, page 7). Employee Access to the Violative Condition CO Rezsnyak testified that the exposed employee told him that he uses the timer
approximately ten minutes a day during an eight hour shift (Tr. 752). Employer Knowledge of the Violation CO Rezsnyak testified that when the plug was removed, the condition was "highly
visible" when unplugged (Tr. 1054-55). See also discussion on employer knowledge in instance
I, supra. p) CORE ROOM FINISHING, GATE CORE CUT OFF AREA,
ON OR ABOUT 9/16/96: ONE TARGET MASONRY SAW
WITH CARBIDE CUT-OFF BLADE, GROUND PIN WAS
MISSING FROM PLUG END. Employer Noncompliance CO Rezsnyak testified that he determined through visual inspection that the ground pin
was missing from the plug of a target masonry saw (Tr. 753-54, Ex. C-96, page 8). Employee Access to the Violative Condition CO Rezsnyak testified that an employee used the saw two hours per week (Tr. 754). Employer Knowledge of the Violation CO Rezsnyak indicated that the condition was in plain view when unplugged (Tr. 1055).
See also discussion on employer knowledge in instance I, supra. q) CORE ROOM, SHELCO CORE AREA, STATION # 9, ON
OR ABOUT 9/12/96: ONE DAYTON FLOOR MOUNTED
FAN GROUND PIN WAS MISSING PLUG. Employer Noncompliance CO Rezsnyak testified that he determined through visual inspection that the ground pin
was missing from a Dayton floor mounted fan (Tr. 754). Employee Access to the Violative Condition CO Rezsnyak testified that an employee told him the fan was used "as needed" during the
day (Tr. 754-55). Employer Knowledge of the Violation CO Rezsnyak indicated that the condition was in plain view (Tr. 1055). See also
discussion on employer knowledge in instance , supra. r) GREEN SAND DEPARTMENT, "G" BELT, ON OR ABOUT
9/27/96: BY PASS BUTTON USED BY EMPLOYEES TO
RUN DRY SAND OUT OF SYSTEM HAD THE GROUND
WIRE CUT OFF AT ONE END OF FLEXIBLE POWER
CORD. Employer Noncompliance CO Rezsnyak testified that he observed a bypass button with the ground wire cut off at
the end of the flexible power cord (Tr. 755, Ex. C-96, page 10). He determined the condition
visually, then performed a continuity test to determine that the exposed wire was in fact the
ground wire (Tr. 755-56). Employee Access to the Violative Condition CO Rezsnyak testified that an employee used the button at the beginning of the day to
remove dry sand from the system (Tr. 755-56). Employer Knowledge of the Violation CO Rezsnyak first determined the condition through visual inspection, which he
confirmed with a continuity check (Tr. 755-56). See also discussion on employer knowledge in
instance I, supra. s) HEAT TREAT DEPARTMENT, PRECIPITATOR OVEN,
ON OR ABOUT 10/2/96: ONE SINGLE DUPLEX
RECEPTACLE OUTLET BOX AT THE END OF A
FLEXIBLE CORD AND USED TO POWER A FLOOR
MOUNTED FAN HAD THE GROUND PIN MISSING FROM
THE PLUG END. Employer Noncompliance CO Rezsnyak testified that through visual inspection, he determined that the ground pin
was missing from the end of a flexible cord used to power a floor mounted fan (Tr. 756, Ex. C-96, page 11). Employee Access to the Violative Condition CO Rezsnyak testified that employees told him that the fan was used in the area as needed
to remove hot air or move the air around in the area (Tr.756-57). Employer Knowledge of the Violation CO Rezsnyak indicated that the condition was in plain view (Tr. 1056). See also
discussion on employer knowledge in instance I, supra. t) ZYGLO DIG OUT DEPARTMENT, ZYGLO DIG OUT
STATION, ON OR ABOUT 10/8/96: ONE 120 VOLT
VENTILATION FAN WAS WIRED WITH A TWO WIRE
CORD. Employer Noncompliance CO Rezsnyak testified that he observed a 120 volt ventilation fan wire with a two-wire
cord, without a ground wire (Tr. 757, Ex. C-96, page 12). The fan was activated via a switch
inside the dig out station. He stated that the path to ground was not continuous (Tr. 1057). Employee Access to the Violative Condition CO Rezsnyak testified that an employee told him the fan was used daily, as needed to
freshen the air (Tr. 758-59). Employer Knowledge of the Violation See discussion on employer knowledge in instance I, supra. u) GREEN SAND DEPARTMENT, TOP OF SURGE HOPPER,
ON OR ABOUT 9/27/96: ONE TROUBLE LIGHT USED BY
EMPLOYEE TO ILLUMINATE HOPPER. PATH TO
GROUND WAS NOT PERMANENT AND CONTINUOUS. Employer Noncompliance CO Rezsnyak determined that a trouble light in the green sand department did not have a
permanent and continuous path to ground (Tr. 759). A trouble light is a light with a metal guard
over the bulb (Tr. 1057). Employee Access to the Violative Condition CO Rezsnyak testified that the employees used the light to illuminate the hopper to
determine if sand was flowing properly (Tr. 759-60). Employer Knowledge of the Violation See discussion on employer knowledge in instance I, supra. Penalty - Instances I - u CO Rezsnyak testified that if an accident were to occur, an employee could be
electrocuted (Tr. 761-62). He classified the severity of this injury as high, and the probability of
such an accident occurring as "lesser." He recommended that a penalty of $5,000.00 be assessed.
The undersigned finds that a penalty in the amount of $4,250.00 would be appropriate in light of
her findings set forth in Citation 1, Item 1. CITATION 1, ITEM 24 29 C.F.R. §1910.30(f)(7)(iii) "Grounding of equipment". All non-current-carrying metal parts of
portable equipment and fixed equipment including their associated fences, housings, enclosures,
and supporting structures shall be grounded. However, equipment which is guarded by location
and isolated from ground need not be grounded. Additionally, pole-mounted distribution
apparatus at a height exceeding 8 feet above ground or grade level need not be grounded. a) TRANSFORMER SUBSTATION, ON OR ABOUT 10/9/96:
HINGED GATE WAS NOT BONDED TO GROUNDED
FENCE ENCLOSURE OF 12 KV TRANSFORMER
SUBSTATION. Employer Noncompliance CO Rezsnyak testified he observed a transformer substation, the hinge gate was not
bonded to the grounded fence enclosure or the 12 kilovolt transformer substation. He used his
continuity tester. He put one alligator clip on the vertical up right of the gate, and the other on
the vertical post of the fence where the gate was connected (Tr. 765, 1060-61). He determined
that an employee could be energized if there were a short from the transformers that arced over
and energized the fence or gate. If the fence was grounded, and the arcing hit the gate, if
someone were to touch the gate he would create a path to the fence (Tr. 767-68). A bonding
strap was installed as a compliance measure during the inspection (Tr. Tr. 766, Ex. C-97). CO
Rezsnyak testified that there was galvanizing material on the surface of the fence. He stated that
he scraped off some of this material before he performed his test (Tr. 1065). (54) Richard Tucci testified that he built the fence in 1989. He grounded the fence at six
points, as per the "code book." (Tr. 1371-72). He further testified that he tested the fence both
with and without the bonding strap sometime after CO Rezsnyak made his determination, and
determined that the fence was, in fact, grounded. He conceded that if the gate had been moved
following CO Rezsnyak's test, the outcome of the continuity test could be changed. He did not,
however, believe that this may have effected his test (Tr. 1378). The undersigned finds that Mr. Tucci's test, performed after the OSHA inspection, does
not undermine the findings CO Rezsynak's testing. CO Rezsynak acknowledged that metal to
metal connections indicate grounded connections - path for current. However, his testing
indicated otherwise (Tr. 1063-65). The undersigned finds that the Secretary has established
noncompliance by a preponderance of evidence. Employee Access to the Violative Condition CO Rezsnyak determined that employees worked inside the substation as needed(Tr.
767). The hazard was electrocution. Employer Knowledge of the Violation CO Rezsnyak testified that the Respondent could have determined that the violation
existed. Its electricians have volt/ohm meters and could have done continuity checks (Tr. 768). Penalty CO Rezsnyak testified that the fence could become energized if a short from the
transformers arced over and energized the fence or the gate (Tr. 757-68). Based on the hazard of
electrocution, he recommended that the item be classified as serious. He classified the severity of
the injury as high, and the probability of an accident occurring as lesser based on the location of
the transformers from the fence.. He proposed a penalty of $2,500.00 (Tr. 768). The undersigned
finds that a penalty in the amount of $2,125.00 would be appropriate in light of her findings set
forth in Citation 1, Item 1. CITATION 1, ITEM 25 1910.303(g)(1)(I) Working clearances. Except as required or permitted elsewhere in this subpart,
the dimension of the working space in the direction of access to live parts operating at 600 volts
or less and likely to require examination, adjustment, servicing, or maintenance while alive may
not be less than indicated in Table S-1. (55) In addition to the dimensions shown in Table S-1, work
space may not be less than 30 inches wide in front of the electric equipment. Distances shall be
measured from the live parts if they are exposed, or from the enclosure front or opening if the
live parts are enclosed. Concrete, brick, or tile walls are considered to be grounded. Working
space is not required in back of assemblies such as dead-front switchboards or motor control
centers where there are no renewable or adjustable parts such as fuses or switches on the back
and where all connections are accessible from locations other than the back. a) FINISHING DEPARTMENT, CELL #1, FINISHING LINE,
ON OR ABOUT 10/4/96: ONE FLEXIBLE CORD
POWERING A FLUORESCENT LIGHT FIXTURE HAD
BEEN PHYSICALLY DAMAGED SO THAT THE HOT
CONDUCTOR WAS NOW EXPOSED TO ACCIDENTAL
EMPLOYEE CONTACT. CO Rezsynak testified that the damaged section of cord was five feet, nine inches above
the concrete floor and eighteen inches from the plug. The work station was two feet from the
cord which was plugged in (Tr. 771-72). In her Post-Hearing Memorandum, the Secretary
acknowledges that the evidence did not establish a violation of the cited standard, and moves to
amend the cited standard from the standard that was originally cited and tried before the
undersigned (Secretary's Post-Hearing Memorandum, p. 86). (56) The Secretary sets forth that there
are no new facts being asserted and that the facts adduced at hearing demonstrate a violation of
§1910.303(g)(1)(I) which requires at least three feet clearance from live parts of 600 bolts or less
to work stations. Respondent argues that it would be severely prejudiced by such an amendment,
and if said amendment were allowed, Respondent was not provided an opportunity to present
available affirmative defenses under the standard. Furthermore, Respondent argues that it cannot
be said that Respondent expressly or implicitly consent to this amendment. (Respondent's Reply
Memorandum, p. 9). FRCP 15(b) permits amendments to pleadings when the issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated as if they had been
raised in the pleadings. . In assessing whether the pleadings should conform to the proof, the
pivotal question is whether prejudice would result. A party cannot normally show that it suffered
prejudice simply because of a change in its opponent's legal theory. Instead a party's failure to
plead an issue it later presented must have disadvantaged its opponent in presenting its case. New
York State Electric & Gas v. Secretary of Labor, 88 F 3d.) 98 (2d Cir., 1995) [17 BNA OSHC
1650]. Review Commission precedent has established that it is appropriate under Rule 15(b) to
amend a citation when the parties squarely recognize they are trying an unpleaded issue, and
where they merely add an alternative legal theory but do not alter the essential factual allegations
contained in the citation. A. L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1997 (No.
92-1022, 1994); Peavey Co., 16 BNA OSHC 2022 (No. 89-2836, 1994)(and cases cited therein). The undersigned finds that such an amendment causes no prejudice to the Respondent.
The record reveals that the plug was plugged into what the compliance officer believed to be a
standard 120 volt receptacle outlet (Tr. 1067, 1073). There is no evidence in the record that any
outlet was rated above 600 volts. Respondent's witnesses have testified that the electrical system
at the worksite was a 440 Delta system or 120 volt system. Additionally, the Respondent cross-examined the compliance officer about the voltage of this plug (Tr. 1068). No evidence was
presented to rebut his findings. The location of the cited cord is not disputed. Thus,
Respondent's argument that it has been deprived of the opportunity of demonstrating that the
outlet was above 600 volts is not prejudicial. Respondent also argues that it was not afforded the
opportunity to present evidence that this condition met the "[e]xcept as required or permitted in
this subpart" proviso of the standard.. However, the Respondent offers no facts which support
such an argument, and the undersigned's review of the record reveals that this condition met no
exception to the working clearance requirements. Accordingly, the undersigned grants the
Secretary's motion, and finds that the standard is applicable and noncompliance has been
established. Employee Exposure CO Rezsynak testified that the cord was plugged in and used in the cited condition (TR.
771-72). Employer Knowledge The condition of the cord was in plain view (Tr. 772). Penalty CO Rezsynak recommended that the item be classified as serious based on the resultant
injury of electric shock, causing electric burns in the second degree. The severity of injury was
medium and the probability was lesser in light of the location of the cord and the area which was
damaged. He recommended a penalty of $ 2,000.00. (Tr. 772-73). he undersigned finds that a
penalty in the amount of $1,700.00 would be appropriate in light of her findings set forth in
Citation 1, Item 1. CITATION 1, ITEM 26a 29 C.F.R. §1910.305(j)(1)(I) Fixtures, lampholders, lamps, rosettes, and receptacles may have
no live parts normally exposed to employee contact. However, rosettes and cleat-type
lampholders and receptacles located at least 8 feet above the floor may have exposed parts. a) GREEN SAND DEPARTMENT, TOP OF SURGE HOPPER
FOR MULLER, ON OR ABOUT 9/27/96: ONE 120 VOLT
LIGHT FIXTURE LOCATED APPROXIMATELY THREE
FEET ABOVE WALKWAY/PLATFORM, NO BULB IN
LIGHT SOCKET. Employer Noncompliance CO Rezsnyak testified that he observed a 120 volt light fixture located three feet above
the walkway. There was no bulb in the socket (Tr. 774-75, Ex. C-100, page 1). The fixture was
removed by Oberdorfer during the course of the inspection. Employee Access to the Violative Condition CO Rezsnyak testified that the exposed employee goes into the area two or three times a
day to check the hopper. The employee walked past the hazardous condition. CO Rezsnyak
testified that if an employee had a screwdriver in his pocket, he could contact the light (Tr. 778-79). Earl Wicks testified that in order to be exposed to an electrical shock, the employee would
have to make contact inside the bulb socket (Tr. 1478). b) CORE ROOM, SMALL TOWER OVEN AREA, ON OR
ABOUT 9/12/96: ONE ENERGIZED LIGHT FIXTURE
LOCATED APPROXIMATELY 77 INCHES ABOVE
WALKWAY, NO BULB IN LIGHT SOCKET. Employer Noncompliance CO Rezsnyak testified that he observed an energized light fixture approximately 77
inches above the walkway (Tr. 775-76, Ex. C-100, page 2). Oberdorfer installed a bulb in the
socket as a compliance measure (Tr. 776). Employee Access to the Violative Condition The socket was located six feet five inches above the walkway. CO Rezsynak testified
that an employee would come within inches of the fixture when using a nearby disconnect. He
could contact the socket by accidently placing a finger or a piece of material in the socket. He
conceded that an employee would not normally be exposed (Tr. 779-80, 1077). c) CORE ROOM, STAGING AREA, ON OR ABOUT 9/16/96:
LIGHT FIXTURE ON CHILL GRINDER BULB MISSING
FROM LIGHT SOCKET. Employer Noncompliance CO Rezsnyak testified that he observed an empty light socket three and one-half feet
above the floor (Tr. 776, Ex. C-100, page 3). Employee Access to the Violative Condition CO Rezsnyak testified that employee used the grinder approximately one hour every five
days (Tr. 780). He conceded that in order to be exposed, and employee would have the to place a
finger or other conductive material into the socket (Tr. 1078-79). d) PERMANENT MOLD DEPARTMENT, CONTROL ROOM
FOR CYLINDER HEAD LINE, ON OR ABOUT 9/25/96:
ONE LIGHT FIXTURE ON CHILL GRINDER BULB
MISSING FROM LIGHT SOCKET. Employer Noncompliance CO Rezsnyak testified that he observed a light fixture with no bulb approximately five
feet six inches from the floor (Tr. 776-77, Ex. C-100, page 4). Employee Access to the Violative Condition CO Rezsnyak testified that an employee is in the control room daily, and could contact
the fixture as he shut the door (Tr. 1079). Employee Earl Wicks testified that in order to contact
the socket, an employee would have to pull back the door and stick his finger in the socket (Tr.
1468). e) PERMANENT MOLD DEPARTMENT, WEST WALL
BEHIND #5 AND #6 MELTING FURNACES, ON OR
ABOUT 9/25/96: ONE FLORESCENT LIGHT FIXTURE
HAD A BROKEN BULB CONNECTION EXPOSING AN
ENERGIZED PART (COOPER STRIP) TO EMPLOYEE
CONTACT. LIGHT FIXTURE WAS APPROXIMATELY
SIX FEET ABOVE FLOOR. Employer Noncompliance CO Rezsnyak testified that he observed a florescent light fixture with a broken bulb
exposing an energized copper strip to employee contact (Tr. 777, 1079-80, Ex. C-109, page 5). Employee Access to the Violative Condition CO Rezsnyak testified that the fixture was approximately six feet off the ground.
Employee Earl Wicks testified that the fixture was approximately eight feet off the ground (Tr.
1468-69). He testified that an employee would needed a ladder to contact the fixture (Tr. 1469-70). CO Rezsnyak testified that he was told that employees carry metal objects through the area
that could contact the metal strip (Tr. 781). Employer Knowledge CO Rezsynak testified that all of the conditions in Item 26a were in plain view (Tr. 781). CITATION 1, ITEM 26b 29 C.F.R. §1910.305(J)(1)(I) Handlamps of the portable type supplied through flexible cords
shall be equipped with a handle of molded composition or other material approved for the
purpose, and a substantial guard shall be attached to the lampholder or the handle. a) GREEN SAND DEPARTMENT, TOP OF MULLER, HEAD
PULLEY PLATFORM OF "O" BELT, ON OR ABOUT
9/27/96: PORTABLE HANDLAMPS USED BY EMPLOYEE
TO VIEW LEVEL OF SAND IN HOPPER. Employer Noncompliance CO Rezsnyak testified that the portable hand lamp used by employee to check the level of
sand was not equipped with a substantial guard attached to the lamp holder or handle (Tr. 782-83). A guard was installed during the inspection. (Tr. 783-85, Ex. C-101). Employee Access to the Violative Condition CO Rezsnyak testified that employees hold the lamp in their hands to view the hopper.
He stated that the "affected" employee told him he uses the lamp two or three times a day (Tr.
785). (The record indicates that this was not a daily occurrence.) He acknowledged that he did
not see the employee use the lamp, but the employee shown him the cited lamp in response to his
inquiry concerning what he used to view in the hopper (Tr. 1081-82). Employer Knowledge of the Violation CO Rezsnyak testified that the violation was in plain view. (Tr. 786) The undersigned finds that the Secretary has failed to establish that employees were
exposed to or could reasonably be predicted to have access to the cited hazards. The compliance
officer's testimony with regard to employee exposure was speculative and pure conjecture.
Additionally, in light of the location of the exposed parts - recessed into the sockets - the
possibility of employee contact was so remote as to be inconsequential. (57) The employee who
testified had first-hand knowledge of the conditions and his testimony demonstrated that contact
could only be established by an employee intentionally inserting his finger into the light bulb
sockets or the carrying of tools in some odd manner so that they could be uniquely manipulated
to make contact with the exposed part. These circumstances would not constitute any normal
operating procedures (e.g., Tr. 1076-77, 1467-72). In item 26b, the record establishes that the
light was used not used as frequently as the compliance officer originally believed, and there is
no evidence that if the bulb broke, employees would be in an area where they would travel pass it
so as to be exposed. Furthermore, as indicated in the record, were the light bulb to break, an
employee would be holding the portable light by the flexible rubber cord which afforded
protection from immediate and direct exposure to the energized filaments of the bulb (Tr. 1082).
In view of these findings these items are Vacated. CITATION 2, ITEM 1 29 C.F.R. §1910.219(c)(3) Guarding vertical and inclined shafting. Vertical and inclined shafting
seven (7) feet or less from floor or working platform, excepting maintenance runways, shall be
enclosed with a stationary casing in accordance with requirements of paragraphs (m) and (o) of
this section. a) METAL PATTERN SHOP, ON OR ABOUT 9/20/96: ONE
EDLUND DRILL PRESS MODEL EB15 SN 2570 HAD AN
EXPOSED REVOLVING SHAFT LOCATED AT TEAR OF
DRILL PRESS, SHAFT CONNECTED DRIVE MOTOR TO
BELT PULLEY. Employer Noncompliance CO Rezsnyak testified that he observed an Edlin drill press with an exposed revolving
shaft near the rear of the drill press. The shaft connected the drive motor to the belt pulley (Tr.
787, Ex. C-102). The shaft was located approximately six feet off the floor and the drill press
was six inches from the painted walkway area (Tr. 788). The drill itself was surrounded by a
table, which spanned at least one foot on either side of the center of the machine (Tr. 1117-18).
The Respondent installed a guard on the shaft during the course of the inspection (Tr. 789, Ex. C-102, bottom photo). Employee Access to the Violative Condition CO Rezsnyak testified that employees passed by the condition during the day. Employees
informed him that the drill press was used in the condition he observed (Tr. 789). Employer Knowledge of the Violation CO Rezsnyak testified that the violation was in plain view (Tr. 793). Penalty CO Rezsnyak testified that any possible injury from the shaft would be lacerations, an
other than serious hazard (Tr. 793, 1120-21). He did not consider the probability of an accident
occurring to be great. As such, no monetary penalty was assessed (Tr. 793). CITATION 2, ITEM 2 29 C.F.R. §1910.219(c)(4) "Projecting shaft ends" -- Projecting shaft ends shall present a smooth
edge and end and shall not project more than one-half the diameter of the shaft unless guarded by
nonrotating caps or safety sleeves. a) HEAT TREAT DEPARTMENT, CELL #2 FINISHING LINE,
ON OR ABOUT 10/4/96: ACME VERTICAL SHAFT
CUTOFF SAW HAD A PROJECTING SHAFT END WHICH
WAS NOT COVERED TO PREVENT ACCIDENTAL
EMPLOYEE CONTACT. Employer Noncompliance CO Rezsnyak testified that he observed an unguarded projecting squared shaft on the
Acme vertical shaft cut saw (Tr. 794, Ex. C-103). The shaft was one-half inch thick, and
projected two and one-half inches from edge of the machine (Tr. 795). The condition was abated
during the inspection (Tr. 796, Ex. C-103, bottom photo). Employee Access to the Violative Condition CO Rezsnyak testified that the employee stands approximately twelve inches from the
revolving shaft when operating the saw, and the shaft is located approximately 52 inches above
the operator's platform. The employee operates the saw eight hours a day (Tr. 795). Employer Knowledge of the Violation CO Rezsnyak testified that the condition was in plain view. (Tr. 796) Penalty CO Rezsnyak testified that an employee could receive lacerations from the rotating shaft.
However, the shaft moved slowly, and thus, the probability of the occurrence of an injury was
lesser (Tr. 796). He classified the violation as other than serious, and hence no penalty was
assessed (Tr. 796-97). CITATION 2, ITEM 3 29 C.F.R. §1910.305(g)(2)(ii) Flexible cords shall be used only in continuous lengths without
splice or tap. Hard service flexible cords No. 12 or larger may be repaired if spliced so that the
splice retains the insulation, outer sheath properties, and usage characteristics of the cord being
spliced. a) CORE ROOM, STATION #37, ON OR ABOUT 9/11/96: ONE
FLEXIBLE CORD POWERING AN OVERHEAD LIGHT
HAD A SPLICE IN THE CORD APPROXIMATELY 64
INCHES ABOVE THE OPERATOR'S PLATFORM. Employer Noncompliance CO Rezsnyak testified that he observed a spliced flexible cord powering an overhead
light (Tr. 797). Respondent argues that the Secretary has failed to show what type of flexible
cord was cited. The Secretary has represented that "as apparent from the photograph in Ex. C-104, the wire was smaller, 14 or 16 gauge", and thus, the exception for cords No 12 or larger
used to power more that 120-volt fixtures was inapplicable (Secretary's Post-Hearing
Memorandum, p. 92). The undersigned finds that the record contains no evidence presented by
the Respondent that the that the cited cord came within the exception of the standard. (58) The
undersigned that the photographic evidence and the testimony of the compliance officer
establish by a preponderance of evidence that the cited standard is applicable and was violated. Employee Access to the Violative Condition CO Rezsnyak testified that employee were exposed to the condition, in that workstation
number 37 was located near the cord - the splice was approximately 64 inches above the
operator's platform (Tr. 798). Employer Knowledge of the Violation CO Rezsnyak testified that the violation was in plain view. (Tr. 799) Penalty CO Rezsnyak testified that the possible resultant injury was minimal. As such, the
violation was classified as other than serious and no penalty was proposed (Tr. 799). FINDINGS OF FACT AND CONCLUSIONS OF LAW All findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been found specially and appear in the decision above. See Rule 52(a)
of the Federal Rules of Civil Procedure. Order Docket No. 97-469 1. Citation 1, Item 1 is Affirmed as a serious violation with a penalty of $2,125.00. 2. Citation 1, Item 2 is Affirmed as a serious violation with a penalty of $2,125.00. 3. Citation 1, Item 3 is Vacated. 4. Citation 1, Item 4 is Affirmed as a serious violation with a penalty of $2,125.00. 5. Citation 1, Item 5 is Affirmed as a serious violation with a penalty of $2,125.00. 6. Citation 1, Item 6 is Affirmed as a serious violation with a penalty of $1,275.00 ( instance b,
the Baldor grinder No. F579 is vacated). 7. Citation 1, Item 7 is Vacated. 8. Citation 1, Item 8 is Affirmed as a serious violation with a penalty of $4,250.00. 9. Citation 1, Item 9 is Affirmed as a serious violation with a penalty of $2,125.00. 10. Citation 1, Item 10 is Affirmed as a serious violation with a penalty of $2,125.00. 11. Citation 1, Item 11 is Affirmed as a serious violation with a penalty of $2,125.00. 12. Citation 1, Items 12a and 12b are Affirmed as serious violations with a penalty of $1,275.00. 13. Citation 2, Item 1 is Vacated. 14. Citation 3, Item 1 is Affirmed as an other than serious violation with a penalty of $1,000.00. 15. Citation 3, Item 3 is Affirmed as an other than serious violation with a penalty of $0.00. Docket No. 97-470 1. Citation 1, Item 1 is Affirmed as a serious violation with a penalty of $4,250.00. 2. Citation 1, Item 2 is Vacated. 3. Citation 1, Item 3 is Affirmed as a serious violation with a penalty of $2,975.00. 4. Citation 1, Item 4 is Affirmed as a serious violation with a penalty of $2,125.00. 5. Citation 1, Item 5 is Affirmed as an other than serious violation with a penalty of $0.00. 6. Citation 1, Item 6 is Affirmed as a serious violation with a penalty of $2,975.00. 7. Citation 1, Item 7 is Affirmed as a de minimis violation with no penalty. 8. Citation 1, Item 8 is Affirmed as an other than serious violation with a penalty of $0.00. 9. Citation 1, Item 9 is Affirmed as a serious violation with a penalty of $2,125.00. 10. Citation 1, Item 10 is Affirmed as an other than serious violation with a penalty of $0.00. 11. Citation 1, Item 11 is Affirmed as a serious violation with a penalty of $1,700.00. 12. Citation 1, Item 12 is Affirmed as an other than serious violation with a penalty of $0.00. 13. Citation 1, Item 13 is Affirmed as a serious violation with a penalty of $2,125.00. 14. Citation 14. Citation 1, Items 14a, 14b and 14c are Affirmed as serious violations with a
penalty of $1,700.00. 15. Citation 1, Item 15 is Affirmed as a serious violation with a penalty of $1,700.00. 16. Citation 1, Item 16 is Vacated. 17. Citation 1, Item 17 is Vacated. 18. Citation 1, Item s 19 and 23, instances a through h are Affirmed as serious violations with a
penalty of $4,250.00. 19. Citation 1, Item 21 is Affirmed as a serious violation with a penalty of $2,125.00 20. Citation 1, Item 22 is Affirmed as an other than serious violation with a penalty of $0.00. 21. Citation 1, Item 23, instances I through u are Affirmed as a serious violation with a penalty
of $4,250.00. 22. Citation 1, Item 24 is Affirmed as a serious violation with a penalty of $2,125.00. 23. Citation 1, Item 25 is Affirmed as a serious violation with a penalty of $1,700.00. 23. Citation 1, Items 26a and 26b are Vacated. 24. Citation 2, Item 1 is Affirmed as an other than serious violation with a penalty of $0.00. 25. Citation 2, Item 2 is Affirmed as an other than serious violation with a penalty of $0.00. 26. Citation 2, Item 3 is Affirmed as an other than serious violation with a penalty of $0.00. /s/ Covette Rooney Judge, OSHRC Dated: August 6, 1998 Washington., D.C.
1. Citation 1, Item 8, instances b, c and d, and Citation 3, Item 2 has been withdrawn by
the Secretary.
2. Michael Casler has also been a certified New York State fire investigator for the past 16
years. He is a volunteer fireman, and trains other firefighters in the suppression of flammable
liquid fires. (Tr. 288-89)
3. The term "Ex." refers to exhibits introduced into evidence at the hearing. The term
"Tr." refers to the official transcript as transcribed by the court reporting service present at the
hearing.
NAPA Section 5-6.2.1 provides: "[p]recautions shall be taken to prevent the ignition of
flammable vapors. Sources of ignition included, but are not limited to: . . . .(e) Smoking. Section 5-6.2.2 provides: "Smoking shall be permitted only in designated and properly
identified areas." 1993 Edition.
5. §1910.106 (a)(14)"Flashpoint" means the minimum temperature at which a liquid gives
off vapor within a test vessel in sufficient concentration to form an ignitable mixture with air
near the surface of the liquid . . . §1910.106 (a)(19)"Flammable liquid" means any liquid having a flashpoint below 100 deg. F.
(37.8 deg. C.), except any mixture having components with flashpoints of 100 deg. F. (37.8 deg.
C.) or higher, the total of which make up 99 percent or more of the total volume of the mixture.
Flammable liquids shall be known as Class I liquids. Class I liquids are divided into three classes
as follows:. . .(ii) Class IB shall include liquids having flashpoints below 73 deg. F. (22.8 deg.
C.) and having a boiling point at or above 100 deg. F. (37.8 deg. C.). 6. The record reflects that IH Landes did not award any penalty reductions to Oberdorfer
in recommending any of the penalties. In each item, she testified that this decision was based on
the same reasons articulated in Citation 1, Item 1.
7. In early 1997, there was a decision by the parent corporation to commit $11.5 million
dollars to this project. This included an overhaul of the electrical system (Tr. 1574).
8. Section 4-7.1 provides: "Equipment outside of, but within 20 ft. (6 m) horizontally and
10 ft (3 m) vertically of, any spray area, and not separated from it by partitions extending at least
to the boundary of the Division 2 location shall not produce sparks under normal operating
conditions, and shall otherwise conform to the provisions of NFPA 70, National Electrical Code,
for Class I of Class II, Division 2 locations (as applicable)." 1989 Edition (Ex. C-13, p. 33-7)
9. CO Rezsnyak tested the sprayer, while IH Landes actually wrote the citation (Tr. 221-22, 225-26).
10. 6-4 Distribution Systems - Piping 6-4.1 Piping systems conveying flammable or combustible liquids between
storage tanks, mixing room (paint kitchen), and spray area shall be of steel or
other material having comparable properties of resistance to heat and physical
damage; they shall be so installed that a rupture of the system for any reason is
unlikely. Piping systems shall be properly bonded and grounded.(Ex. C-13. 33-10) 1989 Ed.
11. 29 CFR §1910.106 (c) Piping, valves, and fittings-- (1) General-- (I) Design. The design (including selection of materials) fabrication, assembly,
test, and inspection of piping systems containing flammable or combustible liquids shall be
suitable for the expected working pressures and structural stresses. Conformity with the
applicable provisions of Pressure Piping, ANSI B31 series and the provisions of this paragraph,
shall be considered prima facie evidence of compliance with the foregoing provisions. (ii) . . . (iii) Definitions. As used in this paragraph, piping systems consist of pipe, tubing, flanges,
bolting, gaskets, valves, fittings, the pressure containing parts of other components such as
expansion joints and strainers, and devices which serve such purposes as mixing, separating,
snubbing, distributing, metering, or controlling flow. (2) Materials for piping, valves, and fittings-- (I) Required materials. Materials for piping, valves, or fittings shall be steel, nodular iron,
or malleable iron, except as provided in paragraph (c) (2) (ii), (iii) and (iv) of this section. (ii) Exceptions. Materials other than steel, nodular iron, or malleable iron may be used
underground, or if required by the properties of the flammable or combustible liquid handled.
Material other than steel , nodular iron, or malleable iron shall be designed to specifications
embodying principles recognized as good engineering practices for the material used. (iii)
Linings. Piping, valves, and fittings may have combustible or noncombustible linings. (iv)
Low-melting materials. When low-melting point materials such as aluminum and brass or
materials that soften on fire exposure such as plastic, or non-ductile materials such as cast iron,
are necessary, special consideration shall be given to their behavior on fire exposure. If such
materials are used in above-ground piping systems or inside buildings, they shall be suitably
protected against fire exposure or so located that any spill resulting from the failure of these
materials could not unduly expose persons, important buildings or structures or can be readily
controlled by remote valves. (3) Pipe joints. Joints shall be made liquid tight. Welded or screwed joints or approved
connectors shall be used. Threaded joints and connections shall be made up tight with a suitable
lubricant or piping compound. Pipe joints dependent upon the friction characteristics of
combustible materials for mechanical continuity of piping shall not be used inside buildings.
They may be used outside of buildings above or below ground. If used above ground, the piping,
shall either be secured to prevent disengagement at the fitting or the piping system shall be so
designed that any spill resulting from such disengagement could not unduly expose persons,
important buildings or structures, and could be readily controlled by remote valves. (4) Supports. Piping systems shall be substantially supported and protected against physical
damage and excessive stresses arising from settlement, vibration, expansion, or contraction. 12. The transcript incorrectly states "12 inch." (Tr. 54)
13. She considered Section 8-3, p. 33-21, and Appendix A, specifically: A-8-1 "Control of
Spray Residue"; A-8-3, "Cleaning"; A-8-5 "Spontaneous Ignition." p. 33-20
14. The Review Commission had acknowledged that statements to compliance officers by
employees and foremen during the course of inspections are not hearsay but admissible
admissions under Rule 801(d)(2)(D) of the Federal Rules of Evidence. Regina Construction Co.,
15 BNA OSHC 1044, 1048 (No.87-1309, 1991).
15. Both Safety Director Linton and IH Landes make reference to the distances set forth in
the American National Standard for Emergency Eyewash and Shower Equipment. Section 5.4.4
states that "[e]yewash units shall be in accessible locations that require no more than 10 seconds
to reach and should be within a travel distance no greater than 30.5 meters (100 feet) from the
hazard." (Ex. R-9, p. 14). The explanatory note for that section - Section E.5.4.4 - recommends
that the eyewash be "immediately adjacent to or within 3 meters (10 feet) of the hazard" where
the chemical is a "strong acid of strong caustic." (Ex. R-9, p. 14).
16. Instances b, c, and d were withdrawn at the hearing (Tr. 84). The undersigned finds
that none of the remaining instances were located in any of the permissible alternative locations
which were "required or permitted elsewhere in this subpart" - there were no permanent screens
involved, no balcony locations such as to exclude unqualified persons, and none were located 8
feet or more above the ground or platform but indeed were near ground level.
17. IH Landes noted that the glasses were not sealed around the top or bottom of the
glasses. These were safety glasses which fit over the eyes like eyeglasses with side shields (Tr.
284-85).
18. Q What did you observe employees wearing? A I observed employees wearing several things from jeans to shirts to sweatshirts to
t-shirts, safety glasses, steel toe boots. Q Any pockets in the shirts? A There were pockets in shirts yes. Q With respect to the jeans, do you know if they were new blue jeans? A They were blue jeans. That's the color they were. They were blue jeans. Q Do know if they were new or old or worn? A I don't know if they were new. They could have possibly been old and worn but I
don't know if they were new.
19. The Secretary's witness, Charles Schuldt testified that assuming the alleged hole was
not a defect in the photographic process, such a hole would indicate that the sweatshirt was not
100% cotton. When molten metal hits cotton it flakes off. (Tr. 571-72).
20. IH Landes later acknowledged that in her review she assumed that any burn entry was
relevant to the PPE citation (TR. 485). Linda Becker, safety manager for Respondent, reviewed
each of the recorded burns for the years 1994-1996 - Ex. C-51(Tr. 1541-1546). She testified that
in each instance employees wore PPE, and none of the injuries were the result of an employee
wearing improper PPE (Tr. 1547). 21. Q During the course of your inspection, did you observe employees wearing t-shirts?
A Yes, I did.
Q Were these employees pouring -- what activities were these employees performing?
A They were pouring molten aluminum.
22. Q You observed once an employee ---
A I didn't say once. I said in the beginning of the inspection.
Q You said there was one observation of an employee without a long sleeve shirt and you identified Mr. Ballard.
A Okay.
Q Did you see any others?
A No, not that I recall.
23. Counsel for the Secretary objected to this witness's testimony - he was not listed as a
originally as a witness and his name had not been mentioned by IH Landes. Respondent's
counsel represented that this witness would provide testimony regarding PPE which would rebut
the compliance officer's testimony (Tr. 1422-23). The undersigned has balanced the two
arguments and finds that the PPE testimony which this witness provided is fully accepted. This
witness provided relevant evidence essential to Respondent's case. Furthermore, this witness
was always available to the Secretary who had photographed him at Ex. C-46(Tr. 1430).
24. Q Did he tell you when he wore t-shirts?
A Yes, he did. He said that he normally would wear a t-shirt during the hotter months.
Q Did he indicate what months those were?
A Usually July, August and sometimes throughout September. Obviously Syracuse gets cold so that's basically the time frame. He said when it was hot.
Q And with respect to t-shirts, just what are we talking about?
A He said short t-shirts. He just said regular t-shirts. He didn't go into great detail.
He just said t-shirts.
25. See Ex. C-5, pp. 19-20 for the twelve violative instances of cited standard.
26. See Ex. C-5, pp.20-21 for 32 cited violative instances of standard.
27. Citation 1, Items 18, 20 and 21-Instance d have been withdrawn by the Secretary.
29. Hazard recognition may be shown by either the actual knowledge of the employer or
the standard of knowledge in the employer's industry--an objective test. Continental Oil Co. v.
OSHRC, 630 F.2d 446, 448 (6th Cir.1980). See also Inland Steel, 12 BNA OSHC 1968, 1970,
1971 & n. 4 (No. 79-3286, 1986) (necessity for proof of "a hazard that is recognized as such by
the employer" or by "general understanding in the [employer's] industry"). [FN15] Industry
standards and guidelines such as those published by ANSI are evidence of industry recognition.
See generally, Cargill, Inc., 10 BNA OSHC 1398, 1402 (No. 78-5707, 1982).
Koksing Construction Co. Inc., 17 BNA OSHC 1869, 1873 (No. 92-2596, 1996). See also
Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 1982)(NFPA)
30. Section IV states that "One year after the date on which this standard becomes
effective, all new hoists shall conform to these rules. Hoists manufactured prior to that date
should be modified to conform to these rules unless it can be shown that the hoists cannot
feasibly or economically be altered and that the hoist substantially complies with the
requirements of the Standard."
31. The hook displayed in Ex. C-65 had been repaired with added material (Tr. 342-43).
32. This item was amended in the Complaint to delete the portion indicated.
33. Exhibit C-71, top photo, is an example of Conveyor G. Exhibit C-71, bottom photo, is
an example of conveyor 6-A.
34. There are also devices under the conveyors that keep the belts elevated and taut as the
conveyor returns. CO Rezsnyak testified that these devices, called "return idlers" create an in-running nip point (Tr. 866-67, Ex. C-113(a), bottom photo). CO Rezsnyak testified that
Oberdorfer was not cited for these nip points because, in his opinion, stop cords would serve to
protect employees from this hazard (Tr. 876).
35. Lance Taylor testified that he had concurred with CO Rezsnyak's suggestion that stop
cords be installed. However, he testified that at that time his experience with the operations of
the green sand department was limited to his employment with Respondent; and he had not been
previously exposed to the pull cords and had no knowledge of their application (Tr. 1335-36).
The undersigned finds that Mr. Lance's explanation of his conversation with CO Rezsnyak
reveals that he had no previous work experience in any green sand department and he had no
knowledge of the application of stop cords.
36. Mr. Wolf was retired at the time of the hearing. His was employed at Oberdorfer from
1991 to October 1997. He had a previous 15 year employment history with Oberdorfer
Foundries from 1971-1986 (Tr. 1193-94, 1214).
37. Mr. Wickes testified that he is a maintenance technician who is authorized to do some
electrical work after the power is turned off (Tr. 1472).
38. The compliance officer explained that the chuck was smooth, but projecting devices
that lock pieces into the jaws of the chuck presented a hazard (Tr. 945-46). Cutting oil is
applied where the cutting tool meets the part to dissipate the heat generated when a piece is
machined (Tr. 947, 1178) 39. Respondent argues that in light of the fact that the citation states that the violation
occurred on September 25, 1996 and March 15, 1996, was the last time the job Mr. Llera
described ran, the citation was not timely and was barred (Respondent's Post-Hearing
Memorandum, p. 56). This argument is without merit. Commission precedent has held that the
Act does not preclude the Secretary from alleging any violation so long as the citation is issued
within six months of when the Secretary discovers the violative condition; and the Secretary has
authority to issue a citation for an unsafe condition that OSHA discovers during an inspection
made more than six months after its creation or occurrence. Safeway Store No. 914, 16 BNA
OSHC 1504, 1508 (No. 91-373, 1993) ; Johnson Controls, Inc., 15 BNA OSHC 2132, 2135 (No.
89-2614, 1993).
40. CO Rezsnyak testified that during the process of dadoing, the surface of the blade never
comes through the piece of wood.
41. The standard requires that the spreader be immediately replaced upon completion of
such operations such as dadoing. §1910.213(c)(2). The spreader had not been replaced at the time
of the inspection.
42. The conditions in items 14(a) through 14(c) were abated during the inspection. (Tr.
645-46, C-84, page 2)
43. "It is well settled that the Secretary need not prove the existence of a hazard each time a
standard is enforced, unless the standard by its terms is operative only when a hazard has been
established. Generally, the promulgation of a standard presupposes the existence of a hazard
when its terms are not met." American Steel Works, 9 BNA OSHC 1549, 1551, n. 4 (No. 77-553,
1981)
44. CO Rezsnyak testified that the position of the employee as he works is not depicted in
his photo (Ex. C-85). He clarified that while working the employee would be almost at a 180
degree turn from what was depicted in his photo. The employee faces the spindle control with
his right hand on the control and would be looking to the left of the control. He further testified
the machine could also be used for facing. A different bit is used when facing because no hole is
being created. However, the shaft would still be turning during that operation (Tr. 980-86).
45. CO Rezsynak testified that the conveyor belt was 30 inches wide (Tr. 991).
46. Respondent's system was not "used exclusively to supply industrial electric furnaces",
was not separately", and did not supply circuits in health care facilities, the exemptions do not
apply. Respondent does not dispute the fact that its system did not met the conditions which
would have qualified it for an exemption under §1910.304(f)(1)(v) (Tr. 1198).
47. He also testified that paragraph's (B) and (C) were inapplicable because they did not
have a 4- wire system, and paragraph (D) was inapplicable because they did not an uninsulated
service conductor. He stated that they were currently installing a Delta to Y system which would
utilize a 4 - wire electrical system - 480Y/277 electrical system(Tr. 1512-13).
48. An additional ground, called "equipment ground" must be furnished by providing
another path from the tool or machine through which the current can flow to the ground. This
additional ground safeguards the electric equipment operator in the event that a malfunction
causes the metal frame of the tool to became accidentally energized.
49. The undersigned also finds that his electrical background was more superior than any
other witness who testified at trial.
50. The conditions provided for in the standard include:
(I) Suitability for installation and use in conformity with the provisions of this subpart. Suitability of equipment for an identified purpose may be evidenced by listing or labeling for that identified purpose.
(ii) Mechanical strength and durability, including, for parts designed to enclose and protect other equipment, the adequacy of the protection thus provided.
(iii) Electrical insulation.
(iv) Heating effects under conditions of use.
(v) Arcing effects.
(vi) Classification by type, size, voltage, current capacity, specific use.
(vii) Other factors which contribute to the practical safeguarding of employees using or
likely to come in contact with the equipment.
51. A double duplex receptacle outlet contains two duplex receptacle outlets. Each duplex
receptacle outlet contains two receptacles (Tr. 705-07).
52. CO Rezsnyak testified that the conditions in instances a and b were corrected during the
inspection, and the ECOS tester indicated an impedance of .2 ohms. (Tr. 718)
53. Instances I and K were near a water test area and were covered by subsection (7)(Ex.
C-70 at 64); instance m was used in an area where there was water and employees stood on steel
grating, thus, covered by subsections (5) and (70)(Ex. C-96 at 5); instances j (Tr. 745, Ex. C-96
at 2, and instance u (Tr. 759; Ex. C-70 at 63) were hand-held and thus covered by subsection (3);
instances l (Tr. 747; Ex. C-96 at 3, n (Tr. 751-52), p (Ex. C-96 at 8), q (Ex. C-8 at 9), and t )Ex.
|C-8 at 10) were cord and plug connected and the operator stood on the ground or concrete floor
of respondent's facility when using each and thus were covered by subsection (5); similarly,
instances k (Ex. C-96 at 3)(hand-held switch), l (Ex. C-96 at 4) (portable timer); m (Tr. 749-51);
o (Ex. C-96 at 7)(portable timer); m (Tr. 749-51)(portable switch on cord on bypass button); and
s (Ex. 96 at 11)(extension cord with duplex receptacle outlet at end), each involved hand-held
equipment covered by subsection (3). (Secretary's Post-Hearing Reply Memorandum, p. 6 n. 3.)
54. Philip Peist testified that there may be several reasons that the continuity test indicated
that the gate was not grounded. He suggested that corrosion on the fence could have created a
different potential between the gate and the hinges. (Tr. 1253-54) Thus, isolating the gate from
the metal contact of the hinges. (Tr. 1254, 1271) Corrosion or paint on the hinges could create a
different potential. If the gate had risen on its hinges so that the closed portion was not on the
ground, a different potential may also be created (Tr. 1271-72). However, Robert Tucci testified
that there had never been any rust or corrosion on the hinges between the gate and the fence (Tr.
1379). He also verified that there were only two hinges between the gate and fence.
55. TABLE S-1 - WORKING CLEARANCES
____________________________________________
|
Nominal voltage | Minimum clear distance to ground
| for condition (2)(ft)
_______________|________________________
| (a) | (b) | (c)
________________________________________
0-150 ............ | 1 3 | 1 3 | 3
151-600 .......... | 1 3 | 3 1/2| 4
____________________
Footnote(1) Minimum clear distances may be 2 feet 6 inches for
installations built prior to April 16, 1981.
Footnote(2) Conditions (a), (b), and (c), are as follows:
(a) Exposed live parts on one side and no live or grounded parts on the other side of the working space, or exposed live parts on both sides effectively guarded by suitable wood or other insulating material. Insulated wire or insulated busbars operating at not over 300 volts are not considered live parts. (b) Exposed live parts on one side and grounded parts on the other side.(c)
Exposed live parts on both sides of the work space [not guarded as provided in Condition (a)]
with the operator between.
56. 29 C.F.R. §1910.305 (a)(4)(v) Protection from physical damage. Conductors within 7
feet from the floor are considered exposed to physical damage. Where open conductors cross
ceiling joints and wall studs and are exposed to physical damage, they shall be protected.
57. The record also indicates that compliance officer testified that the probability of an
accident occurring as "lesser" in light of the location of the sockets (Tr. 782).
58. See Armstrong Steel Erect., Inc., 17 BNA OSHC 1385, 1389 (No. 92-262, 1995)( a
party seeking the benefit of an exception to a legal requirement has the burden of proof to show
that it qualifies for that exception)