EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of World Asphalt Company - Decision After Reconsideration

Employer did not have a section 5157(c)(4) confined space program because it didn't think the safety order applied. The Division cited Employer for a general violation. The ALJ found that Employer was required to have a program for reasons other than those given by the Division but reduced the citation to a notice in lieu of a citation because the violation did not have an immediate relationship to the safety or health of an employee and because the citation was based upon erroneous facts and theories. Thus, the Division could not have exercised its discretion to issue or not issue a notice in lieu of a citation properly. The Board holds that the Division had the prerogative to issue a citation under the facts of the case and that lack of a confined space program has a substantial potential for employee injury.

WORLD ASPHALT COMPANY 99-2418
July 1, 2002