“SECRETARY OF LABOR, Complainant,v.WELL SOLUTIONS, INC.,Respondent.OSHRC Docket No. 89-1559DECISIONBEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Well Solutions, Inc. is an oil well servicing company that maintained aworksite designated Rig #37, in Corpus Christi,Texas. On February 15,1989, an OSHA compliance officer sought to inspect the worksite, but wasrefused permission because he did not have a warrant. Although he wasnot allowed to conduct an inspection, the compliance officer did observeseveral allegedly violative conditions while waiting for the supervisorto be contacted. The compliance officer returned to the worksite onFebruary 18 with a warrant and conducted an inspection. As a result ofhis two visits to the worksite, respondent was issued two citations, onecharacterized as serious, the other as other-than-serious.Item 1 of the serious citation alleges a violation of 29 C.F.R. ?1910.23(c)(1) for failure to guard the perimeter of a rig platform thatwas 60 inches above ground level. A penalty of $150 was proposed.Item 2 of the serious citation alleges that respondent violated 29C.F.R. ? 1910.132(a) because employees without head protection wereexposed to the hazard of being struck during rig operations. A Penaltyof $100 was proposed.[[1]]The other-than-serious citation alleged that respondent violated 29C.F.R. ? 1910.242(a) by permitting employees to use a 4-pound sledgehammer that was not in a safe condition. No penalty was proposed forthis violation.The case was heard by former Commission Administrative Law Judge Dee C.Blythe. In his decision, Judge Blythe vacated the citations. Hesuppressed most of the evidence relevant to items 1 and 2 of the seriouscitation, finding that it was obtained as a result of an illegalsearch. Judge Blythe considered the evidence relevant to theother-than-serious citation because it was obtained after the warrantwas served. However, he vacated the citation on the merits.For the reasons that follow, we reverse the judge’s decision and affirmthe citations.[[2]]I. The Admissibility of EvidenceiThe threshold issue in this case is whether observations made by thecompliance officer during his initial visit to the worksite on February15, 1989 are admissible into evidence.The compliance officer testified that, to reach the worksite, he had to\”go down through a farm road, an unpaved road off of Farm to Market Road136, and then travel north on another unpaved road about anothermile.\”[[3]] He then parked his car on the road and walked to theworksite in the middle of a plowed field. The compliance officertestified that he did not have to open any gates to get to the site. One of respondent’s employees, Gonzales, a \”toolpusher\” and apparentsupervisor, came over to a portable shed and talked to the complianceofficer. The shed was outside the guy wires that were supporting therig. While talking to Gonzales the compliance officer was able toobserve the rig, which was approximately 70 feet away. Because thecompliance officer did not have a warrant, Gonzales refused to allow theinspection and the compliance officer left the site.Although he was not allowed to conduct an inspection, the complianceofficer observed that the edges of two of the platforms levels on therig did not have guardrails and that Gonzales and a second employee werenot wearing hard hats. When the compliance officer returned to thesite with a proper search warrant on February 18, the platforms wereguarded and all employees were wearing hard hats.In addition to the evidence gathered as a result of the February 18inspection, the Secretary sought to introduce into evidence thecompliance officer’s testimony regarding the lack of guardrails and hardhats on February 15. Judge Blythe, relying on Laclede Gas Co., 7 BNAOSHC 1874, 1979 CCH OSHD ? 24,007 (No. 76-3241, 1979), suppressed theevidence obtained by the compliance officer on February 15, holding thatthe testimony did not establish that the compliance officer was in apublic place where he had a right to be when he made his observations. In Laclede the Commission held that an employer’s Fourth Amendment rightto privacy was not violated when the worksite was open to view from a\”public thoroughfare.\” Laclede, 7 BNA OSHC at 1877, 1979 CCH OSHD atp. 29,153. Judge Blythe distinguished this case by the lack of evidenceestablishing that the roads the compliance officer traveled to get tothe worksite were public, as opposed to private, roads.iiGenerally, an observation by a compliance officer of that which is opento public view does not constitute a search that might infringe on anemployer’s Fourth Amendment rights. See v. City of Seattle, 387 U.S.541 (1967). The government’s obligation to obtain a search warrantprior to a nonconsensual search extends only to those areas where theparty being searched has a reasonable expectation of privacy. LacledeGas Co., 7 BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153. Where there isno reasonable expectation of privacy, there can be no Fourth Amendmentviolation. Id. The Commission has held that an employer cannot claim areasonable expectation of privacy where the worksite is observed from apublic thoroughfare, open to public view. Ackermann Enterps., Inc., 10BNA OSHC 1709, 1712, 1982 CCH OSHD ? 26,090, p. 32,839 (No. 80-4971,1982); Laclede, 7 BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153; MinnotteContrac. & Erection Corp., 6 BNA OSHC 1369, 1371-2, 1978 CCH OSHD ?22,551, p. 27,215 (No. 15919,1978); Environmental Utilities Corp., 5 BNAOSHC 1195, 1197, 1977-78 CCH OSHD ? 21,709, p. 26,074 (No. 5324,1977). This exception from the requirements of the Fourth Amendment has beenreferred to as the \”open fields\” doctrine. The \”open fields\” doctrinemay apply even when the government agent technically trespasses onprivate property to make his observations. Ackermann, 10 BNA OSHC at1712, 1982 CCH OSHD at p. 32,839. The critical factor in finding theexception is whether the government agent is on land from which thegeneral public is excluded. If the observations are made from an areaeasily accessible and visible to the general public, Fourth Amendmentprotections do not apply. Ehlers v. Bogue, 626 F.2d 1314, 1315 (5thCir. 1980).iiiThe question before the Commission in this case is whether the judgeerred in rejecting the application of the \”open-fields\” doctrine to theaforementioned circumstances. Having reviewed the circumstances, wemust conclude that the judge did err. Regardless of whether the roadswere public or private, the record establishes that the roads leading torespondent’s worksite were open to the public and that the rig waslocated in a plowed field not set off by a gate or other obstacle. Thus, as in Ackermann, the employer could have no reasonable expectationof privacy with respect to the view of its drilling operation.II. VALIDITY OF THE CITATIONSA. Failure to Guard PlatformsItem 1 of the serious citation alleges a violation of 29 C.F.R. ?1910.23(c)(1)[[4]] for failure to guard a rig platform 60 inches abovethe ground. A penalty of $150 was proposed.The compliance officer testified that, during his visit to the site onFebruary 15, he observed that the edges of two of the levels of the rigplatform were not equipped with railings. He also testified that,although they were not installed, the railings were at the site. Thecompliance officer was not able to measure the height of the platformsuntil February 18 when he found them to be 45 and 60 inches [[5]] abovethe ground. Although the height of the platforms was adjustable and hewas approximately 70 feet from the rig on February 15, the complianceofficer testified that the platform levels were at the same height onboth February 15 and 18.Since the judge suppressed the evidence obtained by the complianceofficer on February 15, he vacated this citation item because there wasno other evidence that the platform was unguarded. However, the judgealso found that, even if the February 15 observations were admitted inevidence, a question remained as to whether the compliance officer’sobservations made from a distance of over 70 feet were sufficient toestablish that the platform height was the same on February 15 and 18. We disagree.The judge’s concern regarding the accuracy of observations made from adistance of over 70 feet is understandable. However, the evidence atissue is not directed at a height estimate made from great distance. Rather, the testimony focuses on an observation that the height of theplatform appeared to have been identical on both days. Estimations ofdistance based on observations are admissible and may be dispositive inthe absence of proof to the contrary. See Fed. R. Evid. 701:Stephenson Enterps., 4 BNA OSHC 1702, 1703,1976-7 CCH OSHD ? 21,120, p.25,428 (No. 5873, 1976), aff’d, 578 F.2d 1021(5th Cir.1978). Thistestimony was unrebutted. We therefore find that the complianceofficer’s testimony, that the height of the platforms did not changebetween February 15 and February 18 and that on February 18 the heightof one of the platform levels was 60 inches, is sufficient to establishthat the platform was more than four feet in height on February 15.Although respondent did introduce evidence that the height of theplatforms was adjustable, it never attempted to establish that anyheight adjustments were made between February 15 and 18. The onlytestimony regarding any possible change in height came from respondent’ssafety director who testified that, while it was possible to change theheight of the platform, he did not know whether any such adjustment hadbeen made. Because Well Solutions failed to rebut the Secretary’sshowing that the edge of a platform 60 inches high was unguarded, wefind that the Secretary established a violation of section 1910.23(c)(1).Section 17(k) of the Act, 29 U.S.C. ? 666(k), provides that a violationis serious if there is a substantial probability that death or seriousphysical harm could result from the violation. Here, the complianceofficer’s testimony, that there was a possibility of broken bones orparalysis if an employee fell, was not rebutted. This is sufficient toestablish that a fall from the platform could have resulted in death orserious physical harm. We therefore find that this violation was serious.The Commission must give due consideration to the size of respondent’sbusiness, the gravity of the violation, respondent’s good faith and itshistory of previous violations in assessing a penalty under section17(j) of the Act, 29 U.S.C. ? 666(j). Having considered the evidencerelating to those factors as it is set out in the record, we find theproposed penalty of $150 to be appropriate.B. Failure to Wear Hard Hats.Item 2 of the serious citation alleges that respondent violated 29C.F.R. ? 1910.132(a)[[6]] because employees without head protection wereexposed to the hazard of being struck during rig operations. A penaltyof $100 was proposed.The compliance officer testified that, during his February 15 visit tothe site, two employees were wearing soft baseball caps instead ofappropriate head protection. When he got to the site, the complianceofficer noticed these two employees standing adjacent to the rig, withinthe area where the guy wires came down. One of the employees,Gonzales, met the compliance officer shortly after his arrival at thejob site. The other employee was not identified. The complianceofficer testified that, at the time, respondent was picking up 30- to32-foot sections of pipe and that the two employees were exposed to thehazard of having something fall on them from the rig.The compliance officer testified that, before Gonzales approached him,Gonzales was standing adjacent to the rig.[[7]] However, respondent’ssafety director testified that Gonzales told him that he was not wearinghis hard hat because he was always in a safe area. When the complianceofficer returned to the site on February 18, all employees were wearingappropriate head protection.The judge vacated the item because he suppressed the complianceofficer’s testimony that employees were not wearing hard hats during thecompliance officer’s visit of February 15.In light of our having found admissible the compliance officer’stestimony regarding his observations of February 15, we conclude thatthe evidence is sufficient to establish the violation. The complianceofficer testified that two employees, one of whom was a supervisoryemployee, were not wearing hard hats while exposed to the hazard offalling objects. The testimony of respondent’s safety director thatdisputes this testimony as to Gonzales is hearsay in its purest sense. Gonzales’ \”statement\” that he was in a safe area was introduced toestablish the truth of that proposition, yet Gonzales was not called totestify. Fed. R. Evid. 801(c)[[8]]. The Secretary was, therefore,deprived of the opportunity to cross-examine Gonzales. Moreover, thedeclaration does not fit into any of the accepted exceptions to thehearsay rule. Furthermore, the statement attributed to Gonzales wascompletely self-serving and, without subjecting Gonzales tocross-examination, there is no basis for evaluating the inherenttrustworthiness of the statement. We therefore conclude that there isnothing in the record to justify the admissibility of the statement. Fed. R. Evid. 803(24)[[9]].The compliance officer’s testimony that death or paralysis have occurredis something had fallen on an employee’s head, establishes theseriousness of the violation within the meaning of section 17(k) of theAct. Therefore, we find the proposed penalty of $100 to be appropriatein light of the penalty factors set out in section 17(j) of the Act.C. Broken Sledge Hammer HandleThe other-than-serious citation alleged that respondent violated 29C.F.R. ? 1910.242(a)[[10]] because employees were exposed to hazardsstemming from the use of a 4-pound sledge hammer with a cracked handle. No penalty was proposed for the violation.The compliance officer testified that, during his February 18inspection, he observed a 4-pound sledge hammer with a crack thatextended halfway down the handle. The hammer was adjacent to a walkwayand had mud on it, indicating that it had been used.The judge vacated the item on the ground that the compliance officernever explicitly stated that the cracked handle rendered the toolunsafe. The judge opined that, without direct evidence that the hammerwas unsafe, the question is whether a reasonable inference could be maderegarding the unsafe nature of the hammer. Noting the slight and easilymet nature of the Secretary’s burden on this item, he concluded that itwas not proper to leave the matter to inference.The Secretary urges the Commission to use simple common sense andconclude that a handle that is cracked through a substantial part of itslength poses a safety hazard. She contends that the judge erred byignoring the patently obvious hazards that are connected to the use of ahammer in this condition. We agree.The judge vacated the item because the compliance officer failed toutter the \”magic words\” to the effect that the use of the hammer posed ahazard. However, the fact that the compliance officer believed that theuse of the hammer posed a hazard because of the potential of breaking isobvious from the citation. Moreover, the record does not indicate thatrespondent lacked any understanding of the nature of the charge. As theSecretary suggests, the hazardous nature of a 4-pound sledge hammer insuch a condition is patently obvious. The photograph introduced at thehearing clearly depicts a badly broken handle. In our opinion, it wouldnot have taken much force for the handle to break and cause the head ofthe hammer to fly off, creating a hazardous condition.We therefore find that the judge’s reliance on the lack of \”magic words\”was unnecessarily technical. The charge contained in the citation,combined with the condition of the hammer depicted in the photograph andthe testimony of the compliance officer that the hammer was availablefor use by employees, is sufficient to establish that the hammer was notin safe condition, in violation of section 1910.242(a). Respondentintroduced no contrary evidence. Therefore, we affirm the item asother-than-serious. No penalty is assessed.Ill. ORDERAccordingly, the judge’s decision is reversed. Items 1 and 2 of theserious citation are affirmed. A penalty of $150 is assessed for item 1and a penalty of $100 is assessed for item 2. Item 1 of theother-than-serious citation is affirmed, and no penalty is assessed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: June 18, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.WELL SOLUTIONS, INC.,Respondent.OSHRC DOCKET NO. 89-1559_DECISION AND ORDER_Appearances:Jerome T. Kearney, Esq., of Dallas, Texas, for the Complainant.George R. Carlton, Esq., of Dallas, Texas for the Respondent.BLYTHE, Judge:PROCEDURAL HISTORYPursuant to an inspection warrant, Robert Konvicka, a compliance officer(\”CO\”) of the Occupational Safety and Health Administration (\”OSHA\”), onFebruary 18, 1989, inspected a workplace 7 miles north of Gregory,Texas, where the respondent, Well Solutions, Inc., was completing an oilwell. As the result of this inspection, two citations were issued April26, 1989, charging respondent with serious and \”other\” violations of ?5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”) and the safety standards promulgated thereunder. Respondent timely filed a notice of contest May 3, 1989, thus invokingthe jurisdiction of the Occupational Safety and Health Review Commission(\”the Commission\”). Thereafter the Secretary of Labor (\”theSecretary\”) filed a formal complaint, to which respondent filed ananswer. The case came on for hearing March 30, 1990 in Corpus Christi,Texas. Neither party has filed a posthearing brief.DISCUSSION AND OPINIONIThe CO, accompanied by his supervisor, attempted to inspect respondent’sworkover rig on February 15, 1989, but the tool pusher demanded aninspection warrant (Tr. 5-6). Before departing, the CO noted that atwo-level platform on the rig had no guardrails (Tr. 9). When the COreturned two days later with an inspection warrant, the platform wasguarded by guardrails. He measured the height of the two levels andfound one to be 48 inches and the other 60 inches above ground level(Tr. 12). He testified that when he observed the platform on February15, from a distance of approximately 70 to 90 feet, the height of thetwo levels of the platform appeared to him to be the same as it was onFebruary 18 (Tr. 33-35, 36-37).Respondent introduced no evidence to contradict the CO, so the questionis whether the CO’s testimony was sufficient to establish a violation of29 C.F.R. 1910.23(c)(1).[[1]]Respondent’s rig was in a muddy, plowed field which was reached via aroundabout route (Tr. 18). This route was described by the CO as follows:\”You would have to go down, through a farm road, an unpaved road off ofFarm to Market Road 136, and then travel north on another unpaved roadabout another mile\” (Tr. 18). This testimony did not establish that theCO was in a public place where he had a right to be when he made hisobservations on February 15. Laclede Gas Co., 79 OSAHRC 94\/E13, 7 BNAOSHC 1875, 1979 CCH OSHD ? 24,007 (No. 76-3211, 1979).Even if this testimony would otherwise be competent, I am not convincedthat the CO’s observation from a distance of 70 to 90 feet is sufficientto establish that the platform height was the same on February 15 as itwas on February 18. The Secretary has not met her burden of proof forItem 1, citation 1.IIWhen the CO visited respondent’s workplace on February 15, 1989, heobserved two men near the rig who were wearing baseball caps instead ofhard hats (Tr. 17), so a citation was issued (item 2, citation 1)alleging a violation of 29 C.F.R. ?1910.132)(a)[[2]]. One of the menwas respondent’s toolpusher, but the other was never identified (Tr. 19,39). When the CO returned February 18, 1989, with an inspectionwarrant, the whole crew was wearing hard hats.The CO’s testimony on this time suffers the same infirmity as it did onthe scaffolding items. The \”plain view\” doctrine does not apply becausethe CO’s observations on February 15 were not made from a place where hehad a right to be.IIIItem 3 of citation 1 alleges that Respondent was in serious violation of29 C.F.R. ?1910.151(b)[[3]] in that its employees did not have readyaccess to first aid by a physician or other person trained to rendersuch aid. The CO testified that the workplace was 45 minutes to an hourfrom medical treatment by a physician (Tr. 21), whereas the Commissionhas held that effective first aid must be administered within threeminutes. Love Box Co., 76 OSAHRC 45\/D5, 4 BNA OSHC 1138, 1975-76 CCHOSHD ? 20,588 (No. 6286, 1976). The tool pusher had been trained infirst aid by the Red Cross but his certificate was out of date (Tr.44). The date of the certificate was not proved.There is no requirement that a person be trained or certified by the RedCross to comply with this standard. Snyder Well Servicing, Inc., 82OSAHRC 10\/C5, 10 BNA OSHC 1371, 1982 CCH OSHD ? 25,943 (No. 77-1334,1982). In fact, it is only required that a person be \”adequatelytrained.\” I decline the invitation to infer that a lack of up-to-datecertification means a lack of adequate training on the part of the toolpusher.Absent more positive evidence, the Secretary has failed to carry herburden of proof.IVItem 1 of citation 2 alleges a non-serious violation of 29 C.F.R.?1910.242(a)[[4]] in that a 4-pound sledge hammer had a cracked handle,which is visible in a photograph, exhibit C-3. The cited standardrequires employers to maintain tools in a \”safe condition\”. The COnever stated that the cracked handle made the sledge hammer unsafe orhazardous. The question then is whether there is a reasonable inferencethat this tool’s condition was unsafe. The evidentiary requirement isvery slight and easily met. However, this is all the more reason why itshould not be left to inference. This item is vacated. Cf. Burk WellService Co., 85 OSAHRC 49\/A3, 1984-85 CCH OSHD ? 27,453 (No. 79-6060,1985). (Some, though slight, evidence is needed to establish that theemployer was engaged in commerce).FINDINGS OF FACT1. Respondent has admitted the jurisdiction and coverage allegations ofthe complaint.2. The CO made observations on February 15, 1989, which he attempted touse to support items 1 and 2 of citation 2, involving conditions onFebruary 18, 1989, although respondent had demanded an inspectionwarrant. On February 15, 1989, the CO was not in a public place fromwhich he could legally make such observation under the \”plain view\”doctrine.3. The tool pusher had received first aid training, and the fact thathis card showing this fact was out of date was not controlling.4. A 4-pound sledge hammer had a cracked handle but there was noevidence that this condition was unsafe. *CONCLUSIONS OF LAW*1. The Commission has jurisdiction of the parties and subject matter ofthe proceeding.2. On February 18, 1989, respondent was not in violation of any of thestandards alleged in the citation here involved.*ORDER*All citations issued to Well Solutions, Inc., on April 26, 1989, shouldbe and are hereby VACATED.So ORDERED.DEE C. BLYTHEAdministrative Law JudgeDate: August 20, 1990FOOTNOTES:[[1]] Item 3 of the serious citation alleged a violation of 29 C.F.R. ?1910.151(b) on the grounds that there was neither an infirmary, clinic,or hospital in near proximity of the workplace. The item was vacated onthe merits. The Secretary has not sought review of the judge’sdisposition, and we shall not disturb it.[[2]] The Secretary has filed a Motion for Default Judgment based onrespondent’s failure to either file a brief or otherwise respond to theCommission’s briefing notice. We hereby deny the motion. We note,however, that when, as here, the non-petitioning party fails to respondto a briefing notice, that party runs the risk of having the Commissiondecide the case without having had the opportunity to hear its views andarguments to the Commission. 29 C.F.R. ? 2200.93(d), Commission Rule 93(d).[[3]] Although the compliance officer testified that the public hadaccess to the roads, it was not established whether any of these roadswere public or private.[[4]] The standard states in pertinent part:? 1910.23 Guarding floor and wall openings and holes.(c) Protection of open-sided floors, platforms, and runways. (1) Everyopen-sided floor or platform 4 feet or more above adjacent floor orground level shall be guarded by a standard railing (or the equivalentas specified in paragraph (e) of this section) on all open sides exceptwhere there is entrance to a ramp, stairway, or fixed ladder.[[5]] The platform that was allegedly 60 inches above the ground is thesubject of this item.[[6]] The standard provides:? 1910.132 General requirements.(a) Application. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwhenever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[7]] When the compliance officer spoke to Gonzales, they were outsidethe guy line pattern, in an area safe from falling objects.[[8]] The rule states:Hearsay is a statement, other than one made by the declarant whiletestifying at the trial or hearing, offered in evidence to prove thetruth of the matter asserted.[[9]] The rule states defines \”Other exceptions\” as:A statement not specifically covered by any of the foregoing exceptionsbut having equivalent circumstantial guarantees of trustworthiness, ifthe court determines that (A) the statement is offered as evidence of amaterial fact; (B) the statement is more probative on the point forwhich it is offered than any other evidence which the proponent canprocure through reasonable efforts, and (C) the general purposes ofthese rules and the interests of justice will best be served byadmission of the statement into evidence. However, a statement may notbe admitted under this exception unless the proponent of it makes knownto the adverse party sufficiently in advance of the trial of hearing toprovide the adverse party with a fair opportunity to prepare to meet it,his intention to offer the statement and the particulars of it,including the name and address of the declarant.[[10]] The standard states:? 1910.242 Hand and portable powered tools and equipment, general.(a) General requirements. Each employer shall be responsible for thesafe condition of tools and equipment used by employees, including toolsand equipment which may be furnished by employees.[[1]] The cited standard provides:(c) Protection of open-sided floors, platforms, and runways. (1) Everyopen-sided floor or platform 4 feet or more above adjacent floor orground level shall be guarded by a standard railing (or the equivalentas specified in paragraph (e) (3) of this section) on all open sidesexcept where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the opensides,(i) Persons can pass,(ii) There is moving machinery, or(iii) There is equipment with which falling materials could create a hazard.[[2]] This standard states:? 1910.132 General Requirements.(a) Application. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards or processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[3]] The cited standard provides:(b) In the absence of an infirmary, clinic, or hospital in nearproximity to the workplace which is used for the treatment of allinjured employees, a person or persons shall be adequately trained torender first aid. First aid supplies approved by the consultingphysician shall be readily available.[[4]] The cited standard provides:? 1910.242 Hand and portable powered tools and equipment, general.(a) General requirements. Each employer shall be responsible for thesafe condition of tools and equipment use by employees, including toolsand equipment which may be furnished by employees.”