Pursuant to a local emphasis program (“LEP”) targeting grain handling facilities, Complainant initiated a programmed inspection of Respondent’s corn mill. During her inspection, Compliance Safety and Health Officer (“CSHO”) Joan Behrend observed an unguarded shaft bushing on a gear box and accumulations of grain dust around the exterior of the facility. Based on her observations, CSHO Behrend recommended, and Complainant issued under the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651-678, a two-item Citation and Notification of Penalty (“Citation”), which alleged a serious violation of 29 C.F.R. § 1910.212(a)(1) and an other-than-serious violation of 29 C.F.R. § 1910.272(j)(1). Complainant proposed a penalty of $4712.00 for the guarding violation alleged in Citation 1, Item 1. Complainant did not propose a penalty for Citation 2, Item 1.
Respondent submitted a timely notice of contest, bringing the matter before the Occupational Safety and Health Review Commission (“Commission”). This case was designated to proceeding under the Simplified Proceeding Rules of the Commission. In Simplified Proceedings hearsay is admissible, “[p]rovided it is relevant and material,” and under certain circumstances, “can constitute substantial evidence.”
A trial was held in Boise, Idaho. Only two witnesses testified at trial: