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2d 95
violation"2 of the regulation, and assessing a $720 fine. Groves contested the
citation, arguing that an earth scraper is not a "bidirectional machine" within
the cited regulation.
3
The ALJ also pointed out that although Section 1926.602(a) refers generally to
earthmoving equipment which includes scrapers, subsection (a)(9)(i) in
particularizing the type of earthmoving equipment covered, does not include
scrapers.
The OSHRC reversed the ALJ and remanded for reconsideration in light of a
recent OSHRC decision holding that "a bidirectional machine is one which can
move in either forward or reverse," and that therefore an earth scraper is a
bidirectional machine to which the standard applies. Brown & Root, Inc., 7
BNA OSHC 1215 (OSHRC 1979).
After a second hearing the ALJ reaffirmed his initial ruling. He based his
The ALJ noted that his conclusion in no way impeded the goal of a safe
workplace under the Act. He referred to subsection (a)(9)(ii), which was not
used to charge the petitioner with a violation, and which requires that an earth
scraper have an alarm or single-person when moving in reverse; when moving
forward the scraper has the right of way.
10
OSHRC again reversed the ALJ and affirmed a nonserious violation of the
standard, assessing no penalty.3
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The final order of the Occupational Safety and Health Review Commission
affirming a violation of 29 C.F.R. 1926.602(a)(9)(i) is reversed and remanded
for entry of an order vacating the citation and complaint.
The Honorable Charles M. Metzner of the United States District Court for the
Groves was not permitted to file a brief before this final OSHRC review. This
comports with OSHRC regulations, and does not rise to the level of a due
process violation. See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir.
1975). However, the Department of Labor, of its own accord, outlined its legal
position in a letter to OSHRC and elected to rely on its Petition for
Discretionary Review in lieu of submitting a brief. In light of this, OSHRC
should have granted petitioner's request to file a brief