Westburne Drilling, Inc. (Commission decision, May 10, 1977)

Plain-English summary

Three items from a nonserious citation against Westburne Drilling were before the Administrative Law Judge. The judge vacated items 1 and 2 and classified item 8 as de minimis with no penalty. The employer sought vacation of all three items, while the Secretary did not object to the judge's disposition. The Commission left the decision unchanged because a de minimis item requires neither a penalty nor abatement and could not prejudice the employer as prior-violation history. The release does not identify the standards or underlying conditions.

Decision snapshot

• Cited standard(s): Not stated in this release.
• Outcome: Items 1 and 2 were vacated, and item 8 remained de minimis with no penalty or abatement requirement.
• Key point: The Commission declined to revisit an unchallenged de minimis item that imposed no penalty, abatement duty, or adverse violation history.

Full text (OSHRC public release)

Docket No. 15631

WESTBURNE DRILLING, INC.
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OSHRC Docket No. 15631

Occupational Safety and Health Review Commission

May 10, 1977

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Before: BARNAKO, Chairman; and CLEARY, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Assoc. Reg. Sol., USDOL

Donald R. Winship, for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission pursuant to a sua sponte order for review.
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Only items 1, 2, and 8 of a nonserious citation were in issue before the Judge, who vacated items 1 and 2, affirmed item 8 as a de minimis violation, and assessed no penalty.

In its review brief, respondent contends that vacation of all of the aforementioned items is warranted for several different reasons.
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Complainant has not taken exception to the Judge's decision.

When a violation is classified as de minimis, there is no penalty assessment nor any requirement to abate the alleged violative condition.
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National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, CCH OSHD para. 21, 114 (No. 7987, 1976).
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Furthermore, de minimis violations cannot be used in future proceedings as evidence of a history of previous violations, which is one of the criteria specified in 29 U.S.C. �
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661(i) for consideration in assessing an appropriate penalty.

Since Complainant does not take issue with the [*2]
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Judge's disposition and respondent is not specifically prejudiced thereby, the Commission declines to pass upon, modify, or change the Judge's decision.
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See Weyerhaeuser Co., 5 BNA OSHC    , CCH OSHD para.     (No. 11869, 1977); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, CCH OSHD para. 20,508 (No. 3336, 1976).
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See also Keystone Roofing Co. v. OSAHRC, 539 F.2d 960, 964 (3d Cir. 1976).

Accordingly, the Judge's decision is affirmed.
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