EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of C. A. Rasmussen - DAR

Employer appealed several citations alleging violations concerning the operation of a rock crushing plant. The compliance officer inspected on 11/14/96 when the plant was not operating. All but one of the citations alleged that the violations occurred that day. The compliance officer's testimony failed to prove employee exposure to the hazards on the day of the inspection. The Division argued that there would have been employee exposure on other days. The Board holds that violations cited as "specifically occurring" on 11/14/96 can only be proven by evidence of employee exposure on that day. (See Nicholson-Brown 77-024 DAR 12/20/79) Those citations were dismissed for that reason. The other citation alleged a violation of section 1511(b) for failure to survey a hopper for predictable hazards before allowing an employee to enter it and be struck by a shelf of dirt that detached from the side. The compliance officer did not ask if a survey was made. The compliance officer concluded from the accident that a survey had not been made. The Board holds that the compliance officer's conclusion was "based on speculation, assumption, or conjecture" (Ford Motor Co. 76-706 DAR 7/20/79) and, thus, cannot support the finding of a violation.

C.A. RASMUSSEN, INC. 96-3953
September 26, 2001