McCain Foods, Inc.

Plain-English summary

McCain Foods operated a food-processing plant in Easton, Maine, while a major renovation project removed old piping and other material containing asbestos. The judge found that management knew asbestos was present, misled an OSHA inspector about the work, failed to train or protect employees, and did not perform required exposure monitoring. The decision also found that asbestos was left unlabeled, handled without required clothing and respirators, placed in scrap and totes, and in one instance buried after OSHA and state inspectors arrived. Four willful citation items were affirmed with penalties totaling $140,000. Numerous serious asbestos, lockout, electrical, machine, forklift, emergency-shower, and load-rating items were affirmed with $25,000 in penalties, while two serious subitems were withdrawn. One nonserious electrical-access item was affirmed without a penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.59(h), 1910.1200(h), 1926.58(f)(2)(i), 1926.58(k)(2)(i), 1926.58(l)(2), 1926.58(n)(2)(iii), 1926.58(i), 1926.28(a), 1926.58(h)(1), 1910.22(d)(1), 1910.151(c), 1910.147(c)(4)(ii), 1910.333(b)(2)(i), 1910.178(p)(1), 1910.215(b)(9), 1926.404(b)(1)(i), 1926.405(b)(1), and 1910.303(g)(1)(ii).
• Outcome: Mixed. Willful, serious, and nonserious items were affirmed with total penalties of $165,000; two serious subitems were withdrawn.
• Key point: Knowing asbestos exposure, concealment, and failure to train, monitor, label, protect, and properly dispose of material supported willful classification.

Full text (OSHRC public release)

UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
FTS (617) 223-9746 FTS (617) 223-W

                  v.                                   l
                                                       .      0sHRc
                                                       l
                                                       0      Docket No. 92-3285

MCCAIN FOODS, INC., . 00
Respondent, 4 ..
.1

Appearances:
---
Margaret Raymond, Esq. Kathleen M. Dillon, Esq.
Office of the Solicitor Robert Mann, Esq.
U.S. Department of Labor !kyfarth, Shaw, Fairweather &
For Complainant Geraldson
Chicago, IL
For Respondent

Before: Administrative Law Judge Barbara L. Hassenfeld-Rutberg

                                      DECISION AND ORDER


     This is a proceeding under section 10(c) of the Occupational            Safety and Health Act

of 1970, 29 U.S.C. 651 et seq., (the Act).
Respondent, McCain Foods, Inc. (McCain) is a large corporation with a food
processing plant in Easton, ME., the site of the inspections.
Pursuant to an employee complaint about overexposure to asbestos, an Occupational
Safety and Health Administration (OSHA) Compliance Officer (CO) Cyrille Young (Young),
other COs and Assistant Area Director Paul Cyr conducted inspections of the work site
 from April 1, 1992. to July 16, 1992. On September 30, 1992, OSHA issued one citation
alleging eleven serious violations; a second citation alleging four willful violations and a third
citation alleging one other-than-serious violation of workplace safety standards promulgated

l
under the OSHA Act. The serious citation proposed penalties totaling $26,500.00; the willful
citation proposed penalties totaling $14O,OOO.O0
and the other-than-serious citation proposed
no monetary penalty.
In the Secretary’s Post-Hearing brief, Serious Citation 1, items 2a and 2b are
withdrawn.
A hearing was held in this case on November 16, 1993 through November 19, 1993
in Bangor, Maine, presided over by Judge Barbara L. Hassenfeld-Rutberg.

                              DISCUSSION

Willful citation 2, items la and lb

       The standard alleged in item la at 29 CFR 1926.59(h) and the standard alleged in
item lb at 29 CFR 1910.1200(h) both provide: Employers shall provide employees with
information   and training on hazardous chemicals in their work area at the time of their
initial assignment and whenever a new hazard is introduced into their work area.          Item la
alleges a violation in the (food) processing area (where a renovation         project was being
conducted) while item lb alleges the same violation in the boiler room.
       At CO Young’s first visit to the site on April 1, 1992, she was purposely deceived by
McCain management       as to the existence of the asbestos pipe removal work being done at
the facility during the major construction/renovation        project   known as Project     Cope,
involving the food processing areas. When the CO asked about asbestos in the construction
area, she was misled and shown only a part of the site that McCain knew did not contain
asbestos on the pipes, and indeed the samples she took from there did not contain asbestos
(Tr.11, 205-207).
       As a result of information    subsequently learned by OSHA, in Ms. Young’s absence,
Assistant Area Director Paul Cyr went to the site on April 19, 1992 and discovered the truth
about the asbestos involved in renovation project (Tr. 364, 365, & 368).
       During the period of the inspections,      Project Cope     involved the removal of old
pipes containing asbestos to be replaced by updated ones to improve the facility’s production

                                             2

and enable McCain to close down its Presque Isle plant (Tr. 667, 704). The construction
area did not specifically entail the boiler room but was adjacent to it. A polywall had been
installed to divide the area where the renovations were taking place and the food processing
area that was still being actively used.
Item la alleges that during the removal of the steam pipes and the 4x4s in the hash
tunnel, asbestos was removed and cleaned up by McCain employees without any information
or training having been provided to those employees about the dangers of asbestos prior to
their removal and cleanup of this hazardous material. In the summer or fall of 1991 (prior
to the commencement of Project Cope), McCain employees brought it to the attention of
Mr. Robert Nadeau, safety manager at the facility, that there was asbestos on the pipes in
the boiler room (adjacent to the processing room)(Tr. 396, 756,758.59). It was common
knowledge that the orange covering that was quite visible on the pipe insulation meant
asbestos (Tr. 465, 580-81). As a result of employee complaints about asbestos in the boiler
room, Mr. Nadeau obtained bids in December, 1991 from two asbestos abatement
contractors to determine the existence of any asbestos in the boiler room (Tr. 764, Exs. C-
---
2A, C-2B) and if so, the cost to remove it. Mr. Nadeau also sent samples of the boiler room
pipe insulation to McCain’s insurance company’s consultant whose report confirmed the
presence of asbestos in the boiler room (Ex.C-11, Tr. 411-12, 756,758.59). All the reports
unanimously confirmed the existence of asbestos in the boiler room but the abatements bids
proved that the asbestos also extended into the processing area (Exs. C-4A, C-4B and C-11).
Also there were three witnesses who testified that prior to the commencement of Project
Cope, they and McCain management knew there were steam pipes in the processing area .
that were orange coated, indicating the existence of asbestos on them (Tr. 580-81, 608).
Although McCain clearly knew before Project Cope began of the existence of the
asbestos in the construction site, it never acted on those asbestos abatement bids to remove
the asbestos because it was too busy with the major renovation project (Tr. 681-82, 805).
McCain defended its lack of training for and information about hazardous materials by
saying that they eventually planned to remove the asbestos once Project Cope was
completed (Tr. 684). Mr. Nadeau still “professed his ignorance” concerning the asbestos
extending beyond the boiler room, despite clear evidence to the contrary cited hereinabove.

                                              3

McCain knew what the standards required because asbestos had been removed at

other plants, and indeed Mr. Nadeau had even supervised the removal of asbestos containing
insulation at other McCain sites and well knew the significance of the orange coating (Tr.

781). He had also received OSHA training, including the subject of asbestos removal (Tr.
732.733). However, when McCain employees at Easton requested protective equipment and
training, none was provided with the sole exception of an improper mask (compare Ex. C-15
showing McCain’s knowledge of the proper procedure) given to an employee who
specifically requested one because there was considerable amount of dust caused by
sweeping up the asbestos debris left by the subcontracting plumber’s removal of pipe
containing asbestos (Tr. 506, 583-84, 594-95, 700). This dust was sometimes very thick (Tr.
467.68,476.77). However, McCain employees were told to just wet down the dust (Tr. 475,
76), clearly not the proper method to use to prevent exposure to airborne asbestos. The
4x4‘s being removed in the hash tunnel demolition were clearly labeled as “asbestos”, but
no proper instructions or training was provided to the employees for its removal.
Item lb involves the situation covered in the boiler room where the maintenance
crews routinely repaired, replaced and maintained asbestos containing gaskets and steam
pipes with asbestos insulation connected to the boilers (Tr. 41,42,82-83,215,17,393.94,464.
65). The only “information” that Mr. Nadeau provided those employees was in the nature
of some signs given to an employee in the boiler room to post, one or two of which were
posted but others were later found in a desk drawer. These signs did not provide the
specific information as required by law. There was no attempt at training the employees
about the hazardous materials to which they were exposed.
McCain clearly knew of the danger present from asbestos that could cause serious
physical harm or death (“serious violation” as defined by section 17(k) of the Act, 29 U.S.C.

section 666(k))?

‘A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that
deathor serious physical harm could result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or are in use, in such place of employment
unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of
the violation.

                                                   4

McCain’s actions clearly constituted willful violations as alleged in items la and lb
as it clearly and unmistakedly demonstrated acts done voluntarily that were serious violations
as defined herein and those actions were done with either an intentional disregard of, or a
plain indifference to Act’s requirements. Ensign-Bicybrd Co. v. Occupational Safety and
Health, 717 F.2d 1419 (D.C. Cir. 1983) (and cases cited therein), cert. denied 466 U.S. 937,
104 S. Ct. 1909, 80 L.E. 2d 458 (1984). A violation is not “willful” if the employer believed
in good faith that the violative condition conformed to the requirement of the cited standard.
c.N1 Flagg& Co., 2 BNA OSHRC 1539,1974-75 CCH OSHD , par. 19,251 (No. 1409,1975).
The test of good faith is an objective one: whether the employer’s belief was reasonable
under the circumstances. Western WaterproofingCo. v. Marshall, 576 F. 2d 139 (8th Cir.
1978).
There is no doubt that the employer McCain acted not only with intentional disregard
but also with plain indifference to the safety of the employees--McCain’s actions were so
flagrant that they met both standards of conduct for willful, either of which alone is sufficient
to be classified as willful. McCain’s only concerns were the renovation project and the costs
--.
involved in that project--everything else was unimportant, especially employee safety. No
attempt was ever made to meet the requirements for information and training regarding the
hazards of asbestos. This judge finds it absurd for McCain to assert that training was not
necessary because it was eventually planning to remove the asbestos in the boiler room after
Project Cope was completed. Did McCain believe it was complying with the law by its safety
director handing to an employee in the boiler room some signs to post or telling the
employees to just wet down the airborne asbestos? Mr. Nadeau clearly knew he was not in
compliance with the law, yet he intentionally disregarded the law and had a plain
indifference to the law and his employees’ safety.

Willful citation 2, item 2

       The standard alleged in item 2 at 29 CFR 1926.58@)(2)(i) provides: Each employer

who has a workplace or work operation covered by this standard, except as provided for in
paragraphs (f)(2)(ii) and (f)(2)(iii) of this section, shall perform initial monitoring at the
initiation of each asbestos job to accurately determine the airborne concentration of asbestos
to which employees may be exposed.
At or about March 25, 1992 was the approximate commencement date of Project
Cope. McCain never even attempted to comply with the above standard by performing any
initial monitoring of the asbestos prior to working being performed on it to determine the
airborne concentration of the asbestos to which it would be exposing its employees (Tr. 97.
98). McCain intentionally disregarded their safety well knowing of the existence of asbestos
and McCain also was clearly indifferent to the Act’s requirements. The Secretary alleges and
has proven three different instances where McCain failed to follow the standard:
a) Asbestos-containing pipe insulation around the steam line.
This clearly was not monitored as required.

          b) 4x4’s on the hash tunnel which were labelled as “asbestos”--
          not only was monitoring not done but McCain tried to
          distinguish this type of asbestos from the friable type found on
          the steam pipe and used the baseless defense that monitoring
          was not necessary because the type of asbestos found in the
          hash tunnel does not become airborne upon removal. The
          overwhelming expert evidence in the case did not support that
          theory of defense.

          c) On asbestos-containing pipe insulation in the boiler room--no
          initial monitoring was ever done there either. Exhibits C-U& C-
          lB, UC, and C-SC are proof that asbestos was present on the
          pipe over the catwalk in the boiler room. In the late 1970’s or
          early 1980’s, asbestos had been removed from the boiler room
          without the proper monitoring.       Routine maintenance and
          repair were performed on a regular basis involving the asbestos
          containing gaskets and boilers in the boiler room, also without
          the required monitoring.
   This item is affirmed,    but it should be noted that if the proposed         penalty of

$35,000.00 had been higher, this judge would have affirmed that amount.

Willful citation 2, item 3

   The standard alleged in item 3 is at 29 CFR 1926.58(k)(2)(i) and provides: Labels

shall be affiied to all products containing asbestos and to all containers containing such
products, including waste containers. Where feasible, installed asbestos products shall
contain a visible label.
The_ violation alleged and proved was that McCain did not label the asbestos-
containing pipe insulation in the processing area (where the renovations were occurring) and
in the boiler room. The feeble attempt to belatedly “label” the pipes in the boiler room by
Mr. Nadeau’s handing to an employee to put up some signs was in no way compliance with
the standard. Some of those signs were later found in a desk drawer; Mr. Nadeau never
cared enough to check on their posting which is only further proof of McCain’s plain
indifference. Samples taken from the areas cited in exhibits C-6, C=7A, C-7B and C-7C
prove the presence of asbestos.

Willful citation 2, item 4

    The standard alleged in item 4 is at 29 CFR 1926.58(l)(2) which provides: Asbestos

waste, scrap, debris, bags, containers, equipment, and contaminated clothing consigned for
disposal shall be collected, and disposed of in sealed, labeled, impermeable bags or other
closed, labeled, impermeable containers.
The debris from the asbestos-containing pipe insulation that was removed from the
steam pipe and asbestos from the 4x4‘s from the hash tunnel was not disposed of in
accordance with the standard. One of the procedures used by McCain to dispose of asbestos
covered pipes was to have it brought out in back of the building where the renovations were
occurring and put it in a scrap metal pile. Photos of such debris are seen in exhibits C=3A,
C-3B and C-3C. Test results from samples of materials from that debris are found in
exhibits C-5A and C-5B. Smaller pieces of debris were often put into totes; indeed, when
McCain learned that OSHA and the state Department of Environmental Protection (DEP)
were on site, a tote containing asbestos debris was immediately removed from the work area
and buried out back ( Tr. 104-05, 519-521, 523-24, 542-43, 809). This tote was unburied as
a result of instructions from DEP and asbestos debris was taken from the tote and sent out
by an OSHA compliance officer for testing (Tr. 323-29, 831). The results were positive for
asbestos (Exs. C-7A, C-7B, C-7C and Tr. 337-39). McCain employees were instructed not
to tell OSHA about the presence of asbestos (Tr. 591). McCain’s behavior in this matter

                                                7

clearly demonstrated an intentional disregard for the law. Knowingly burying the asbestos
is about as flagrant as one can get.
This item is affirmed, and it should be noted that if the proposed penalty had been
more than $35,000.00, this judge would have affirmed that amount.
Other items in the complaint and citation that involved McCain’s improper handling
of asbestos as a hazardous material are cited in the Serious citation 1, items 7,8a, 8b, 8c and
9, discussed hereinbelow.

Serious citation 1, item 7

   The standard alleged in item 7 is at 29 CFR 192658(n)(2)(iii):      The employer shall

maintain this record for at least thirty years, in accordance with 29 CFR 1910.20. This
standard refers to the keeping of records to monitor employee exposure to asbestos.
The citation alleges that although asbestos was removed in the late 1970’s (Tr. 753,
854), exposure monitoring records were not kept in accordance with the law (Tr. 112-113).
Although the above standard did not come into effect until 1986, its predecessor required
keeping the records for 20 years, which standard was not met either. The item is affirmed.

Serious citation 1, items 8a, 8b & 8c

   The standard    alleged in item 8a stated at 29 CFR 1926.58 (i)(l) provides: The

employer shall provide and require the use of protective clothing, such as coveralls or similar
whole body clothing, head coverings, gloves, and foot coverings for any employee exposed
to airborne concentrations of asbestos that exceed the TWA and/or excursion limit
prescribed in paragraph (c) of this section. (TWA is the time weighted average limit as .
described in the CFR.)
McCain did not provide the required protective clothing when employees worked on
or near the removal of asbestos; indeed, the employees wore just ordinary work clothes that
they then wore home (Tr. 120, 408, 475-76). This judge will infer from the- credrible
testimony of the employees that the thick dust caused from sweeping up the asbestos debris,
exceeded the airborne concentrations allowed by the standards. There is no doubt that
McCain made no attempt whatsoever to provide and require the use of protective clothing
that the law requires. This failure to do so was despite its knowledge of the existence of
asbestos in the renovation area and of employee inquiry and concern about the asbestos.
Item 8b alleges violation of the standard in 29 CFR 192658(i)(3) which provides:
Contaminated clothing shall be transported in sealed impermeable bags, or other closed,
impermeable containers, and be labeled in accordance with paragraph (k) of this section.
The employees who worked on or near the asbestos removal wore ordinary work
clothes to and from work. McCain not only did not provide the proper protective clothing
but it also allowed the employees to leave the premises wearing contaminated clothes.
There were no bags or containers provided to meet the standard for transportation of such
contaminated clothes.
Item 8c alleges a violation of the standard in 29 CFR 1926.28(a) which provides: The
employer is responsible for requiring the wearing of appropriate personal protective
equipment in all operations where there is an exposure to hazardous conditions or where
this part indicates the need for using such equipment to reduce the hazards to the
employees.
When McCain employees removed asbestos debris from the steam pipes and the hash
tunnel, they were not provided with or required to wear face shields or vented goggles as
required by the standards. Employees eyes and faces were exposed to hazards from the
airborne asbestos.
Items 8a, 8b and 8c are affirmed.

Serious citation 1, item 9

   Item 9 alleges a violation of 29 CFR 1926.58(h)(l) that provides: The employer shall

provide respirators, and ensure that they are used, where required by this section.
The only evidence of providing a face mask was an improper one given to an
employee who requested a mask suitable for asbestos removal and cleanup. Despite his
request for protection, he was provided with the wrong type of mask (Tr. 129-33, 280-81).
There is no doubt from the overwhelming testimony that the airborne concentrations existing
at the time of the removal of asbestos during Project Cope required the use of respirators .
in accordance with the cited standard. The item is affirmed.

                                               9

Serious citation 1, item 1

   The standard alleged in item 1 at 29 CFR 1910.22(d)(l) provides: In every building

or other structure, or part thereof, used for mercantile, business, industrial or storage
purposes, the loads approved by the building official shall be marked on plates of approved
design which shall be supplied and securely affixed by the owner of the building, or his duly
authorized agent in a conspicuous place in each space to which they relate. Such plates shall
not be removed or defaced but, if lost, removed, or defaced, shall be replaced by the owner
or his agent.
When CO Young viewed the storage area above the personnel office, she did not
see any load capacity rating label as required by the cited standard (Exs. C-18 A-C).
Because the area contained heavy -items, the employees in the office below such platform
were subject to serious harm or death (Tr. 144-48). McCain clearly violated the applicable
law, and the item is affirmed.

Serious citation 2, item 3

   The standard cited in that item at 29 CFR 1910.151(c) provides: 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.
The emergency shower in the battery charging area was found by the CO Young to
not be working properly (Tr. 155-57). Without such a functioning shower, McCain exposed
its employees to hazards of an explosion of batteries and thus exposed its employees to
serious injury. McCain did not meet the requirements of the cited standard. The item is
affirmed.

Serious citation 1, items 4a and 4b

   The standard cited in item 4a is part of OSHA’s lockout/tagout        standard and is set

out in 29 CFR 1910.147(c)(4)(ii) that provides: The procedures shall clearly and specifically
outline the scope, purpose, authorization, rules, and techniques to be utilized for the control

                                           10

of hazardous energy, and the means to enforce compliance including, but not limited to
items enumerated as (A)-(D) of the section.
When CO Young asked McCain for its lockout/tagout procedures, she was originally
provided with exhibit C-21, which refers to 29 CFR 1910.261(b)(4). This standard applies
to paper/pulp mills and not to the site inspected here. About 4 weeks after the receipt of
that exhibit, she received from McCain the documents labeled exhibits C-22 and C-23.
Exhibits C-21 and C-23 were essentially identical to each other than the cited section of the
regulations; however, both programs were deficient in not being directed to the specific
machines covered at the site. The programs also failed to account for the steam line as a
source of energy (Tr. 159063,370.90). Although exhibit C-22 covered the start-up and shut-
down procedures for the machines, it was still inadequate and did not meet the requirement
of the regulations as it failed to indicate how to isolate all sources of power to insure that
a machine did not become energized from the main disconnect or other source of power
(Ex. C-31 and Tr. 370-90). Thus, McCain was not in compliance with this standard, and the
item is affirmed.
Item 4b-cites a violation of 29 CFR 1910.333(b)(2)(i) that provides: The employer
shall maintain a written copy of the procedures outlined in paragraph (b)(2) and shall make
it available for inspection by employees and by the Assistant Secretary of Labor and his or
her authorized representatives.
McCain’s failure to have an updated version of the OSHA regulations on site means
that it violated the cited standard in item 4b, and the item is affirmed.

Serious citation 1, item 5

    Item 5 alleges a violation of 29 CFR 1910.178(p)(l)     that provides: If at any time a

powered industrial truck is found to be in need of repair, defective, or in any way unsafe,
the truck shall be taken out of service until it had been restored to safe operating condition.
The forklift in question is clearly seen in exhibits C-24A and C-24B. The broken
windshield was on a forklift used outside in the area of employee traffic and other forklifts
(Tr. 164-69). There is no excuse for allowing the operation of a forklift that is so blatantly
in need of repair and McCain clearly violated the cited standard, and the item is affirmed.

                                                11

Serious citation 1, item 6

     The standard cited in item 6 alleges a violation of 29 CFR 1910.215(b)(9) which

provides: Safety guards of the types described in subparagraphs (3) and (4) of this
paragraph, where the operator stands in the front of the opening, shall be constructed so
that the peripheral protected 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.
In exhibit C-17, bottom photo, the machine at issue is shown and the testimony from
CO Young was that this machine was located in plain view in the maintenance shop. The
tongue guard was l/2” from the wheel which violated the standard requiring no more than
l/4”. The item is affirmed.

Serious citation 1, item 10

     The standard     alleged violated is 29 CFR 1926.404(b)(l)(i)     which provides: The

employer shall use either ground fault interrupters as specified in paragraph (b)(l)(ii) of this
section or an assured equipment grounding conductor program as specified in paragraph
(b)(l)(iii) of this section to protect employees on construction sites. These requirements are
in addition to other requirements for equipment grounding conductors.
McCain did not have the required equipment as evidenced by a test by a CO of an
electrical outlet used to power construction during Project Cope. The ground fault circuit
interrupter (GFCI) was not tripped as it should have been by the electrical current supplied
to the tested outlet (Ex. C-16, Tr. 136-141); thus, McCain did not meet the standard, and
the item is affirmed.

Serious citation 1, item 11

     The standard     that was alleged to have been violated       in item 11 at 29 CFR

1926.405(b)( 1) p rovides: Conductors entering boxes, cabinets, or fittings shall be protected
from abrasion, and openings through which conductors enter shall be effectively closed.
Unused openings in cabinets, boxes, and fittings shall also be effectively closed.
Mr. Nadeau admitted that the new panel was supposed to be inspected weekly, but
McCain employees were too busy with Project Cope to inspect as the company program
required (Tr. 974-76). The panel in question is the top photo in exhibit C-17, which had a
circuit breaker cap missing from the panel circuit #30, thus exposing the bus bar. An OSHA
CO found a live current when she tested the opening (Tr. 141-44). McCain clearly violated
the standard involved, and the item is affirmed.

Other citation 3, item 1

   The standard    allegedly violated in this item is 29 CFR 1910.303(g)(l)(ii)       which

provides: Working space required’ by this subpart may not be used for storage. When
normally enclosed live parts are exposed for inspection or servicing, the working space, if in
a passageway or general open space, shall be suitably guarded.
The panel that violated the standard can be seen in exhl’bit C-3C, top photo. That
picture clearly demonstrates that the standard was not met for the electrical panel that was
located in the storage area above the personnel office as the workspace in front of the panel
was blocked with stored boxes and did not meet the requirements set out by the standard
(Tr. 174-76). The item is affirmed as non-serious.

            FINDINGS OF FACT AND CONCLUSIONS                 OF LAW

   All findings of fact relevant and necessary to a determination    of the contested issues

have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings of fact or conclusions of law inconsistent with this decision
are denied.

                           ORDER

   Serious citation 1, item 1, alleging a violation of 29 CFR 1910.22(d)(l) is AFFIRMED

and a penalty of $2500.00 is assessed.
Serious citation 1, item 2 is WITHDRAWN as requested by the Secretary of Labor.

                                          13

Serious citation 1, item 3, alleging a violation of 29 CFR 1910.151(c) is AFFIRMED
and a penalty of $2500.00 is assessed.
Serious citation 1, item 4a alleging a violation of 29 CFR 1910.147(c)(4)(ii) and item
4b alleging a violation of 29 CFR 1910.333(b)(2)( i) are AFFIRMED and a penalty of
$2500.00 is assessed.
Serious citation 1, item 5 alleging a violation of 29 CFR 1910.178(p)(l) is
AFFIRMED and a penalty of $2000.00 is assessed.
Serious citation 1, item 6 alleging a violation of 29 CFR 1910,215(b)(9) is
AFFIRMED and a penalty of $1500.00 is assessed.
Serious citation 1, item 7 alleging a violation of 29 CFR 1926.58(n)(2)(iii) is
AFFIRMED and a penalty of $IsOO.OOis assessed.
Serious citation 1, item 8a alleging a violation of 29 CFR 1926(i)(l); item 8b alleging
a violation of 29 CFR 1926.58(i)(3) and item 8c alleging a violation of 29 CFR 1926.28(a)
are all AFFIRMED and a penalty of $3500.00 is assessed.
Serious citation 1, item 9 alleging a violation of 29 CFR 1926.58(h)(l) is
AFFIRMED and a penalty of $5000.00 is assessed.
Serious citation 1, item 10 alleging a violation of 29 CFR 1926.404(b)(l)(i) is
AFFIRMED and a penalty of $2500.00 is assessed.
Serious citation 1, item 11 alleging a violation of 29 CFR 1926.405(b)( 1) is
AFFIRMED and a penalty of $1500.00 is assessed.
Willful citation 2, item la alleging a violation of 29 CFR 192659(h) and item lb
alleging a violation of 29 CFR 1910.1200(h) are affirmed and a penalty of $35,000.00 is
assessed.
Willful citation 2, item 2 alleging a violation of 29 CFR 1926.58@)(2)(i) is
AFFIRMED and a penalty of $35,000.00 is assessed.
Willful citation 2, item 3 alleging a violation of 29 CFR 1926.58(k)(2)(i) is
AFFIRMED and a penalty of $35,000.00 is assessed.
Willful citation 2, item 4 alleging a violation of 29 CFR 1926.58(l)(2) is AFFIRMED
and a penalty of $35,000.00 is assessed.

                                                14

Other citation 3, item 1 alleging a violation of 29 CFR 1910.303(g)(l)(ii) is
AFFIRMED as a nonserious violation and no penalty is assessed.

                                     Judge, OSHRC



     April     29,      1994

Date:
Boston, Massachusetts