“SECRETARY OF LABOR,Complainant,v. TRINITY INDUSTRIES, INC.,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL 7629,Authorized EmployeeRepresentative.OSHRC Docket Nos. 89-2168& 89-2169 (Consolidated)\/*DECISION*\/Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:These consolidated cases are before the Commission on review forresolution of the single issue of whether Review CommissionAdministrative Law Judge (\”ALJ\”) James D. Burroughs erred in denying aprehearing motion that was filed by Trinity Industries, Inc.(\”Trinity\”), seeking the suppression of all evidence. In so ruling, thejudge rejected Trinity’s argument that the evidence in both of theseproceedings was gathered by the Occupational Safety and HealthAdministration (\”OSHA\”) in violation of its Fourth Amendment rights. The judge held instead that the evidence was obtained pursuant to avalid administrative search warrant. For the reasons stated below, weconcur with the judge’s ruling.I. \/Factual Background\/Trinity maintains a workplace in Sharonville, Ohio, where it is engagedin manufacturing tanks and pressure vessels of various sizes. While therecord does not provide a comprehensive description of the Sharonvillefacility’s layout, the evidence that has been introduced stronglysuggests that the workplace consists of two buildings and adjacentoperations performed outdoors. It appears that the earlier phases ofthe manufacturing process are concentrated in plant 2 while the finalassembly work occurs primarily in plant 1.[[1]]On February 23, 1988, a Trinity employee filed a formal complaint ofunsafe working conditions with OSHA’s Cincinnati, Ohio area office.[[2]] The complaint alleged the presence of the following safety hazards atTrinity’s Sharonville facility:1. Portable grinder & rollers operating at 440 volts are being used inthe production area of Plant #1. The flex cords and attachment plugsinstalled on these units are rated for 208 volts.2. Compressed gas cylinders stored in the plant area are unsecured andsome without valve protection caps.3. Aisles and passageways are blocked by materials and stock limitingemployee access in case of emergency. Floors are oil slick.The complaint further identified the location of each of these allegedhazards as \”Production Area Plant #1.\”Following the procedures set forth in Chapter IX of its Field OperationsManual (\”FOM\”), OSHA determined that the complaint met the \”formalityrequirements\” of section 8(f)(1), 29 U.S.C. ? 657(f)(1), of theOccupational Safety and Health Act of 1970, 29 U.S.C ?? 651-678 (\”theAct\”). More specifically, OSHA found that the complaint: (1) wasreduced to writing (either on an OSHA-7 Form or in a letter), (2)alleged that an imminent danger or a violation threatening physical harm(i.e., a hazard covered by a standard or by the general duty clause)existed in the workplace, (3) set forth with reasonable particularitythe grounds upon which it was based, and (4) was signed by at least oneemployee or employee representative.[[3]]OSHA also made the determination, required under section 8(f)(1), thatthere were \”reasonable grounds to believe\” that the \”violation[s] ordanger[s]\” alleged in the complaint existed and that it was thereforemandated to conduct a \”special inspection . . . to determine if suchviolation or danger exists.\” OSHA attempted to inspect on February 24,the day after its receipt of the employee complaint. Trinity, however,refused to grant it permission to enter. Accordingly, on February 25,OSHA sought and obtained an administrative inspection warrant fromUnited States Magistrate Robert A. Steinberg of the United StatesDistrict Court for the Southern District of Ohio, Western Division(hereafter \”the district court\”).OSHA’s warrant application was prepared and presented by the AreaDirector William M. Murphy in an \/ex parte\/ proceeding before theaforementioned magistrate. In his sworn affidavit, Murphy informed themagistrate of OSHA’s receipt of the formal 8(f)(1) complaint, of itsdetermination that a \”special inspection\” was required under the termsof section 8(f)(1), and of its unsuccessful attempt to conduct aninspection. The magistrate was provided with OSHA’s summary of thecomplaint, see supra note 2, and with a copy of the relevant provisionsof Chapter IX of OSHA’s FOM, which governs the agency’s evaluation ofand response to \”formal complaints,\” referrals from other federalagencies, and \”nonformal complaints,\” which are complaints that do notmeet the statutory criteria of section 8(f)(1).In addition, the warrant application submitted by Area Director Murphysought conditional authorization to conduct a full-scope(\”comprehensive\” or \”wall-to-wall\”) inspection under the terms of anadministrative plan that we will refer to as \”OSHA Instruction CPL2.45A.\” This administrative plan is concisely summarized in theSecretary’s review brief, as follows:OSHA’s then-effective administrative plan for determining wheninspections pursuant to employee complaints should be expanded toinclude the entire worksite was set out at OSHA Instruction CPL2.45A-(A)(9)(a). Under this plan, the facility was subject to acomprehensive inspection if four separate conditions were met: (1)there has been an employee complaint which contains \”reasonable grounds\”for the Secretary \”to believe that such violation or danger exists;\” (2) the establishment is in a \”high rate industry;\” (3) its safetyrecords show a lost workday injury rate (LWDI) at or above the nationalaverage; and (4) a complete safety inspection has not been carried outin the current or last two fiscal years.In support of its request for conditional authorization to conduct afull-scope inspection, OSHA supplied the magistrate with a copy of most,but not all, of the relevant provisions of its administrativeplan.[[5]] It also provided the magistrate with Area Director Murphy’ssworn statement that three of the administrative plan’s \”four separateconditions\” had been met with respect to Trinity’s Sharonvillefacility. Based on this information, OSHA sought authorization toconduct a review of Trinity’s safety and health records to determinewhether the remaining \”condition\” had also been met. If the recordsreview established that this fourth \”condition \”–that the establishmenthave \”a lost workday injury rate (LWDI) at or above the nationalaverage\”–also applied to Trinity, then OSHA would conduct theconditionally-authorized, full-scope inspection.[[6]]More specifically, Murphy’s affidavit included the followingrepresentations with respect to the \”four separate conditions\” set forthin OSHA’s administrative plan:(1) \/receipt of employee complaint\/-Murphy informed the magistrate ofOSHA’s determinations that the employee complaint filed on February 23,1988, (a) met \”the requirements of Section 8(f)(1)\” and (b) providedOSHA with \”reasonable grounds to believe that such violations exist orhave existed during the last six months, so as to require an inspectionunder Section 8(f)(1) of the Act.\” \/See supra\/ note 4.(2) \”\/high rate industry\/ \”–Paragraph 3 of the warrant affidavitincluded the following representations:Trinity Industries, Inc. is engaged in the manufacture of pressurevessels at the facility … and is classified within the StandardIndustrial Classification (SIC) code 3443, machine tools, metal formingtype. According to information provided by the Bureau of LaborStatistics (BLS), this industry (SIC 3443) is ranked 49th out of 333industries on the FY-88 High Rate Industry List for the State of Ohiodue to an industry lost workdays injury rate (LWDI) of 7.8.Typical injuries related to the manufacture of pressure vessel includelacerations and\/or amputations from contact with improperly guardedequipment such as grinders, lathes and welders, eye injuries from metalchips and dust, electrical shock from contact with exposed live partsand bums from improper handling of compressed gases.(3) \/high establishment LWDI rate\/–Paragraphs 4 and 5 of the warrantaffidavit included the following representations:The compliance officer(s) will follow the procedures outlined in chapterIII … of the OSHA Field Operations Manual for determining theestablishment’s lost workday injury (LWDI) rate. The establishment’sLWDI rate will be compared to the lowest national average rate formanufacturing attained over the last five years … to determine whetheror not a complete inspection will be conducted….. In accordance with OSHA’s administrative plan … the scope of theinspection will extend to the entire establishment with respect tosafety if a review of the OSHA injury and illness records indicate[s]the company has a lost workday injury rate (LWDI) at or above the Bureauof Labor Statistics (BLS) National rate of 4.2 for manufacturing.(4) \/previous inspections\/–Paragraph 3 of the warrant affidavitincluded the following representations:According to Cincinnati Area Office records, there has been a complaintsafety inspection at this company on May 9, 1986. According to theserecords, no comprehensive safety inspection has been performed withinthe previous two years.The administrative inspection warrant issued by Magistrate Steinberggranted OSHA the authority it sought, to conduct: a limited \”specialinspection\” of the Sharonville factory, focusing on the allegations ofthe employee complaint; a records review; and a full-scope establishmentinspection if the facility’s LWDI rate exceeded 4.2. On May 11, 1989,more than a year after the warrant issued, when Trinity allowed OSHA toconduct its records review under this warrant, OSHA calculated an LWDIrate for the Sharonville facility of 13.6, more than three times thepertinent national average of 4.2. Then, after determining that all fourof the \”conditions\” of its administrative plan had been met with respectto this facility, OSHA began its \”full-scope,\” \”wall-to-wall\”inspection. As discussed more fully below, that inspection led to theproceedings that are now before the Commission on review.II. \/Procedural Background\/Trinity was served with the administrative inspection warrant onFebruary 25, 1988, the same day it was issued. After requesting,receiving, and using time to consult with its attorney before respondingto the warrant, Trinity informed OSHA that it would not permit theinspection to take place. A few days later, the employer initiated anaction in the district court, by filing a motion to quash the warrant. In that motion, Trinity argued that: (a) the warrant application wasInsufficient to establish probable cause for a \”special inspection\”under section 8(f)(1) of the Act, (b) the warrant application wasinsufficient to establish probable cause for a full-scope inspectionunder section 8(a) of the Act,[[7]] (c) the warrant was overly broad inauthorizing a records review that extended beyond \”those records thatare directly related to the alleged violations in the complaint,\” and(d) it should be allowed to conduct a \”\/Franks\/ evidentiary hearing\” inorder to rebut the \”false and misleading\” statements in the warrantapplication concerning hazards and injuries in the pressure vesselmanufacturing industry.More specifically, with respect to the warrant’s conditionalauthorization of a full-scope inspection, Trinity raised in its motionbefore the court arguments that it continues to assert on review inthese proceedings. Trinity contended that \”the Secretary could notexpand a complaint inspection under Section 8(f) of the Act … into afull, wall-to-wall inspection under Section 8(a) … unless theSecretary showed Trinity’s \/initial selection\/ was based on a reasonableadministrative inspection plan, as required by \/Marshall v. Barlow’s,Inc\/., 436 U.S. 307 (1978) [\”\/Barlow’s\/\”]\”(emphasis in the original). It claimed that it was \”targeted\” for inspection based on OSHA’s receiptof the employee complaint, not on the basis of a reasonableadministrative plan. Trinity also argued that \”a complaint limited todiscrete conditions in one plant did not establish probable cause for anexpanded inspection of Trinity’s entire . . . facility.\”After hearing oral argument on both Trinity’s motion and the Secretary’scounter motion to hold Trinity in contempt for refusing to honor thewarrant, Magistrate Steinberg issued a lengthy and well-reasoned orderor, July 29, 1988. In that order, he denied Trinity’s motion to quashas well as the Secretary’s motion for a civil contempt order. Themagistrate specifically considered and rejected each of the argumentsraised in Trinity’s motion and outlined above. In particular,Magistrate Steinberg upheld the warrant’s conditional authorization of afull-scope inspection, holding that the warrant application and theadministrative plan on which it relied, OSHA Instruction CPL 2.45A, metthe \/Barlow’s\/ test for establishing probable cause for a full-scopeinspection under an administrative plan.In his July 29 order, Magistrate Steinberg also granted in part anddenied in part Trinity’s anticipatory request for a stay. Specifically,he: (1) ordered immediate execution of the warrant provision authorizinga limited \”special inspection\” in response to the employee complaintunder section 8(f)(1), but (2) stayed the warrant provisions allowingOSHA to conduct a records review and conditionally authorizing OSHA toconduct a full-scope inspection.On August 5 and 8,1988, OSHA conducted a limited complaint inspection ofTrinity’s Sharonville facility pursuant to the February 25, 1988 warrantand Magistrate Steinberg’s July 29 order. That inspection resulted inthe issuance of citations for specific alleged violations of OSHAstandards. Trinity’s contest of those citations was docketed with theReview Commission as OSHRC Docket No. 88-2691 and assigned to formerAdministrative Law Judge Joe D. Sparks. Earlier this year, theCommission issued a decision in that case, modifying the judge’s penaltyassessment with respect to one item, but otherwise affirming the judge. \/Trinity Indus., Inc\/., 15 BNA OSHC 1481, 1992 CCH OSHD 29,582 (No.88-2691, 1992).[[8]]While Trinity was maintaining its administrative challenge to thelimited section 8(f)(1) inspection before Judge Sparks, it continued topursue its judicial challenge to the stayed provisions of the February25, 1988 warrant (the records review and the full-scope inspectionprovisions) in the federal courts. On October 20, 1988, Trinity lostthe next round in that proceeding when the district court summarilyaffirmed the July 29, 1988 order of Magistrate Steinberg, after\”consider[ing] de novo all of the filings in this matter.\” Nevertheless, even though this order gave her the authority to proceedunder the warrant, the Secretary still refrained from executing itsrecords review and conditional full-scope inspection provisions, duringTrinity’s efforts to obtain a stay of the district court’s order, firstfrom the court itself and then from the United States Court of Appealsfor the Sixth Circuit. Trinity also appealed the district court’sdecision to the Sixth Circuit.On April 25, 1989, the Sixth Circuit denied Trinity’s application for astay. Shortly thereafter, Trinity agreed to allow OSHA to review itssafety and health records and to conduct a full-scope inspection if therecords review revealed an establishment LWDI rate in excess of the\”cutoff figure\” of 4.2. As noted above, OSHA’s records review in factestablished that this final condition was also met, and based on thisfinding, OSHA began its \”wall-to-wall\” inspection of the Sharonvillefacility on May 11, 1989. The \”walk-around\” portion of this inspectionwas completed on May 19, 1989, and a final closing conference was heldby telephone on June 9, 1989.During its inspection, OSHA divided its investigators into two teams,one consisting of safety specialists and the other of industrialhygienists. These teams conducted two independent, but concurrent,inspections of the facility. Their separate recommendations to thearea director resulted in the issuance of two sets of citations. Trinity’s contest of the health citations was docketed by the Commissionas OSHRC Docket No. 89-2168. Its separate contest of the safetycitations was docketed by the Commission as OSHRC Docket No. 89-2169.Altogether, OSHA issued. and Trinity contested, five citations (onewillful, two serious, and two other than serious), alleging numerousviolations of the Act. The proposed penalties totaled almost $33,000.Both cases were assigned to Judge Burroughs, and the parties thereafterfiled their pleadings. At the same time it filed its answers, Trinityfiled identical motions to suppress the evidence in bothproceedings.[[9]] In essence, these motions raised in the Commissionproceedings the same, Fourth Amendment issues Trinity had previouslyraised in its judicial challenge to the February 25, 1988 inspectionwarrant. Trinity sought the suppression of all evidence obtained byOSHA during its May 1989 full-scope inspection of the Sharonville facility.On January 29, 1990, Judge Burroughs issued two orders, which he enteredin both Docket No. 89-2168 and Docket No. 89-2169. The first ordergranted the Secretary’s unopposed motion to consolidate the two cases. The second order denied Trinity’s motions to suppress the evidence. Inthis second order, Judge Burroughs rejected Trinity’s argument that theFebruary 25, 1988 warrant was overly broad because it authorized awall-to-wall inspection based on a limited employee complaint. Thejudge concluded, like Magistrate Steinberg had before him that OSHA’swarrant application met the Barlow’s test for establishing probablecause for a full-scope inspection under an administrative plan.Shortly after issuing these orders, Judge Burroughs scheduled theconsolidated cases for a hearing on the merits of the contested citationitems. Trinity, however, notified the judge of its intention not toappear at the scheduled hewing, outlining the financial and tacticalreasons that had led it to reach this decision. The judge responded bynotifying Trinity that the bearing would proceed as scheduled regardlessof whether Trinity appeared. Judge Burroughs expressly issued thefollowing warning to Trinity:If Trinity does not appear, the record will be closed after theSecretary’s evidence is received. Based on the evidence of record, adecision will be tendered subsequent to the hearing on all issues indispute.From February 21 through February 23, 1990, a hearing in the twoconsolidated cases was in fact held, as scheduled. The Secretary andthe authorized employee representative, which had previously electedparty status, appeared at the hearing, but Trinity did not.Nevertheless, the Secretary created a substantial evidentiary record,including forty-nine exhibits and a 3-volume transcript of testimonyfrom twelve witnesses, in support of the allegations of the fivecitations, as well as her penalty proposals. Based on this evidence,Judge Burroughs subsequently issued a 73-page decision in which he ruledon the merits of each of the contested citation items. With theexception of a single vacated subitem and a corresponding $100 penaltyreduction, the judge affirmed each of the alleged violations in the twoconsolidated cases and assessed the proposed penalties. Trinity thensought and obtained Commission review, limited to the single issue ofthe correctness of the judge’s ruling on Trinity’s pre-hearing motion tosuppress the evidence.III. \/Discussion\/At issue is whether Judge Burroughs erred in denying Trinity’s motion tosuppress the challenged evidence on the ground that the February 25,1988 warrant under which it had been obtained was invalid, because theSecretary failed to establish administrative probable cause for afull-scope inspection.[[10]] Our analysis of this issue begins with thedecision of the United States Supreme Court in \/Barlow’s, \/which provides:For purposes of an administrative search such as this, probably causejustifying the issuance of a warrant may be based not only on \/specificevidence\/ of an \/existing violation\/ but also on a showing that\”reasonable legislative or administrative standards for conductingan…inspection are satisfied with respect to a particular[establishment].\” Camara v. Municipal Court, 387 U.S., at 538, 87 S.Ct.at 1736. A warrant showing that a \/specific business has been chosenfor an OSHA search on the basis of a general administrative plan for theenforcement of the Act derived from neutral sources\/ such as, forexample, dispersion of employees in various type of industries across agiven area, and the desired frequency of searches in any of the lesserdivision of the area, would protect an employer’s Fourth Amendment rights.436 U.S. at 320-21 (emphasis added, ellipsis and brackets in the original).In \/Barlow’s\/, the Court held that the Fourth Amendment generallyprohibits warrantless, nonconsensual inspections of businessestablishments conducted under the Act. The Court, however, made clearthat OSHA’s burden in obtaining an administrative inspection warrant isa lesser burden than that which must be met by law enforcement agentswhen they apply for a criminal search warrant. The Secretary’s burdenis to establish \”administrative probable cause.\” and that burden may besustained by meeting either of the, two alternative tests that are setforth in the passage quoted above. These tests, which are used indetermining the sufficiency of a warrant application, are commonlyreferred to as the \”specific evidence [of existing violations] test\” andthe \”administrative plan test.\” In the cases now before us, JudgeBurroughs held that OSHA’s February 23, 1988 warrant application met theSecretary’s burden of showing \”administrative probable cause\” under theBarlow’s \”administrative plan test.\”Trinity contends that the \/Barlow’s\/ administrative plan test was notmet because the employer was not, in the words of the \/Barlow’s \/Court,\”chosen for an OSHA search on the basis of a general administrative planfor the enforcement of the Act.\” Trinity alternatively claims that,even if it had been selected for inspection on the basis of the plan setforth in OSHA Instruction CPL 2.45A, the administrative plan test wasstill not net because CPL 2.45A is not, again in the words of theBarlow’s Court, \”a general administrative plan for. the enforcement ofthe Act derived from neutral sources.\”‘ Finally, Trinity argues thatJudge Burrough’s denial of its motion to suppress must be reversedbecause his ruling conflicts with Commission precedent and appellatecourt case law. We will examine each of these contentions in the orderjust stated.A. \/Whether Trinity Was Chosen for a Search on the\/\/Basis of a General Administrative Plan\/Trinity’s threshold challenge to Judge Burroughs’ ruling is its claimthat the judge erred in evaluating the warrant application under the\”administrative plan test\” rather than the \”specific evidence test.\” Inpractical terms. the significance of this distinction is in its effecton the permissible scope of the inspection authorized by the warrant. Ashowing of administrative probable cause under the administrative plantest \”usually\” entities the Secretary to conduct a comprehensivewall-to-wall inspection. \/Sarasota Concrete Co\/., 9 BNA OSHC 1608,1617, 1981 CCH OSHD ? 25,360, p. 31,536 (No. 78-5264,1981), aff’d. 693F.2d 1061 (11th Cir. 1982)(\”\/Sarasota Concrete\/\”). However, a showingunder the specific evidence test does not generally entitle theSecretary to conduct a full-scope inspection, unless: (1) the evidencepresented by the Secretary indicates that violations and hazards arepervasive throughout the workplace, (2) it is necessary to conduct afull-scope inspection in order to discover or locate alleged hazards andviolations, or (3) there are other circumstances justifying theauthorization of a broad-scope inspection. \/Id\/. \/See also Martin v.International Matex Tank Terminals–Bayonne\/, 928 F.2d 614, 625-26 (3dCir. 1991) (\”\/International Matex\/\”); \/In re Inspection of Workplace(Carondelet Coke Corp.)\/, 741 F.2d 172, 175-77 (8th Cir. 1984). In thecases now before the Commission, it is undisputed that OSHA’s receipt ofthe section 8(f)(1) complaint on February 23, 1988, did not, in and ofitself, justify a full-scope inspection under the specific evidence test.In challenging the judge’s application of the administrative plan test,Trinity asserts that it was not \”initially selected\” for inspectionpursuant to an administrative plan. Instead, Trinity argues, it was\”targeted\” for inspection as a result of OSHA’s receipt of the section8(f)(1) complaint:The \”plan\” that the Secretary describes in her brief does not selectanyone for inspection; it does not even come into play until after abusiness has been initially selected for inspection based on a complaint.(Emphasis in the original.) Second, Trinity contends that, because itwas \”targeted\” for inspection based on the complaint, the warrant shouldhave restricted the scope of the inspection. As Trinity argues,\”[W]here an employer is selected for inspection based on a limited scopecomplaint under section 8(f) of the Act, the warrant should be limitedto a physical inspection of the complained-of conditions and to recordsrelating to the complaint. . . . \” Finally, Trinity concludes that,because the warrant was not limited in this manner, the warrant wasillegal and all evidence gathered from the expanded inspection should besuppressed.Trinity’s entire argument is built on its claim that it was initiallyselected for inspection based on OSHA’s receipt of the employeecomplaint, rather than under the provisions of OSHA Instruction CPL2.45A. However, this is largely a debate over semantics. Trinity wasselected for a limited section 8(f)(1) inspection based on OSHA’sreceipt of the employee complaint. However, it was selected for afull-scope inspection of the entire Sharonville facility based on OSHA’sdetermination that each of the \”four separate conditions\” of OSHAInstruction CPL 2.45A had been met with respect to the Sharonville facility.This distinction is clearly illustrated by the procedural history ofthese cases. As a result of Magistrate Steinberg’s ruling on Trinity’sstay request (i.e., granted in part, but denied in part), there were infact two separate inspections of the Sharonville facility, both underthe authority granted by the February 25, 1988 warrant. First, therewas a limited section 8(f)(1) complaint inspection, which took place inAugust 1988, that led to the administrative proceedings in OSHRC DocketNo. 88-2691; and second, an expanded full-scope. inspection pursuant toOSHA’s administrative plan took place in May 1989 and led to theconsolidated administrative proceedings that are now on review.We recognize, of course, that under different circumstances, OSHA couldhave conducted only a single expanded inspection, combining itsinvestigation of the complaint items with the \”wall-to-wall\” walk-aroundtour of the facility. That the two inspections could have beencombined, however, does not affect our fundamental conclusion that thewarrant in fact authorized two concurrent inspections. Indeed, inissuing the February 25, 1988 warrant, the magistrate determined thatOSHA had established administrative probable cause both for a limitedscope inspection under section 8(f)(1) and, conditionally, for anexpanded inspection under the provisions of OSHA’s administrative plan. Magistrate Steinberg’s order of July 29, 1988, with its separateconsideration of these two related but distinct probable cause issuesmakes this abundantly clear.As Magistrate Steinberg aptly observed in his July 29 order, the factthat both inspections were authorized in a single warrant wasessentially nothing more than a concession to administrativeconvenience–a concession that had no effect whatsoever on the FourthAmendment rights of the targeted employer. In Magistrate Steinberg’s words:It is in the public interest for OSHA to maximize its limitedresources. Where an employer otherwise qualifies for a generalprogrammed inspection, but has not had a general programmed inspectionwithin the last two years, examining the LWDI rate at [the beginning ofa ? 8(f)(i) complaint inspection] to see if an expanded inspection iswarranted is more efficient than waiting to conduct a second inspectionunder the administrative plan The burdens [on] the employer areminimized as well…. We believe CPL 2.45A strikes a reasonable balancebetween OSHA’s need to carry out inspections on a limited budget toensure employees are provided with safe workplaces and the employer’sinterest in privacy and avoiding disruption in its workplace.For the reasons stated, we find that Trinity was targeted for anexpanded, full-scope establishment inspection pursuant to the provisionsof an administrative plan, specifically, OSHA Instruction CPL 2.45A. Judge Burroughs therefore did not err in evaluating the February 1988warrant application under the Barlow’s administrative plan test ratherthan its specific evidence test.B. \/Whether OSHA’s Administrative Plan Was \”Derived From Neutral Sources\” \/(i)Under \/Barlow’s\/, it is not enough to find that Trinity was initiallyselected for an inspection under an administrative plan. There must bea determination as to whether Trinity was \”chosen for an OSHA search onthe basis of a general administrative plan for the enforcement of theAct \/derived from neutral sources.\/\” 436 U.S. at 321 (emphasis added).Trinity alternatively contends that OSHA’s warrant application failed tomeet this test because the administrative plan relied upon by theSecretary, OSHA Instruction CPL 2.45A, was not \”derived from neutralsources.\”In essence, Trinity reasons that the neutrality of CPL 2.45A isdestroyed by its reliance on the filing of a section 8(f)(1) complaintas the triggering device that targets a particular employer forinspection. In Trinity’s view, reliance on this factor as one of thefour criteria OSHA uses in determining which employers will be subjectedto full-scope inspections permits the intrusion of impermissiblesubjective elements e.g., a desire to harass the employer or otherimproper motivation on the part of the complaining employee into theselection process.In resolving this issue, we look first to the basic purpose of theFourth Amendment, which is \”to safeguard the privacy and security ofindividuals against \/arbitrary invasions by government officials.\/\” \/Barlow’s, \/436 U.S. at 312. (quoting \/Camara v. Municipal Court\/, 387U.S. 523, 528 (1967)) (emphasis added). \”In the context ofadministrative searches, this principle requires that persons not besubject to the unbridled discretion of executive and administrativeofficers, particularly those in the field, as to when to search and whomto search.\” \/West Point-Pepperell, Inc. v. Donovan\/, 689 F.2d 950, 958(11th Cir. 1982) (quoting Barlow’s, 436 U.S. at 312).Viewing the \”derived from neutral sources\” language of the \/Barlow’s\/decision in the light of these overall objectives, we agree withMagistrate Steinberg’s analysis of the Court’s neutrality requirement:In order for the plan to establish probable cause, it must provide forinspection on the basis of neutral criteria, thus ensuring that OSHAofficials do not have unbridled discretion to target an employer forimproper reasons …. Neutrality and discretion are integrally linked;if the evidence submitted in the application shows the plan is based onthe type of criteria that does not permit an arbitrary decision toconduct the inspection, then we may find the plan is derived fromneutral criteria.We further conclude that the magistrate was correct in determining thatOSHA Instruction CPL 2.45, both as written and as applied, was \”derivedfrom neutral sources.\” Thus, with regard to the administrative plan aswritten, Magistrate Steinberg held \”that CPL 2.45A is derived fromneutral criteria because it does not permit OSHA officials to exercisediscretion or to arbitrarily decide to conduct the expandedinspection.\” With regard to the plan as applied, he added that \”[t]heemployee complaint is a neutral [criterion] because there is no evidenceOSHA used the complaint as a guise to improperly target Trinity for aninspection under CPL 2.45A.\”In his order denying the Respondent’s motion to suppress the evidence,Judge Burroughs reached essentially this same conclusion. Contrastingthe warrant application at issue before him with the warrant applicationthat was at issue before the Commission in \/Sarasota Concrete,\/ he judgeemphasized that \”the complaint [here] did not automatically result in afull-scope inspection.\” Instead, three other clearly neutral criteriaalso had to be met. In particular, \”[t]he mechanism for triggering afull-scope inspection,\” i.e., OSHA’s determination of whether the LWDIrate for the Sharonville facility was above the national average formanufacturing, \”was not subject to the unbridled discretion of theSecretary.\”We agree with the analysis of Judge Burroughs and Magistrate Steinberg,and would add the following observations. First, as the Secretarycorrectly points out in her review brief, the motivation of thecomplaining employee in filing a section 8(f)(1) complaint of unsafeworking conditions is basically \”irrelevant\” to the magistrate in makinga probable cause determination:[E]ven an employee complaint motivated by the desire to harass anemployer may furnish probable cause. As the courts have held, wherethere is a reasonable basis to believe that violations exist, it cannotbe found that OSHA is motivated by bad faith in seeking a warrant,regardless of the complainant’s motive.(Emphasis in the original, case citation omitted.) \/Cf. Quality StampingProds\/., 7 BNA OSHC 1285, 1288, 1979 CCH OSHD ? 23,520, pp. 28,504-05(No. 78-235, 1979) (\”An individual prompted by improper or wrongfulmotives nonetheless may supply valid information regarding allegedviolations of the Act and the informer’s wrongful motive does not negatethe validity of the informer’s privilege\”); \/Aluminum Coil AnodizingCorp.\/, 5 BNA OSHC 1381, 1382, 1977-78 CCH OSHD ? 21,789, p. 26,197 (No.829, 1977) (improper motivation on the part of the complainant does notaffect the Secretary’s statutory authority to conduct a responsivecomplaint inspection).We further observe that the administrative plan at issue here includesseveral provisions that are designed to substantially reduce, if noteliminate, the potential for misuse of the Act’s complaint inspectionprocedures.\” Finally, we emphasize Magistrate Steinberg’s finding thatthe complaint at issue in these cases was a legitimate section 8(f)(1)complaint: \”On the record before us, we are entitled to find that anauthentic complaint alleging actual violations of OSHA regulationsprovides administrative probable cause for an inspection and toauthorize OSHA to enter Trinity’s premises on that basis.\” In fact,when OSHA conducted its limited section 8(f)(1) inspection in August1988 in response to the February 23 employee complaint, it confirmed theexistence of at least two of the violations that were identified by theemployee in the complaint. \/See Trinity Industries Inc\/., 15 BNA OSHCat 1486-88, 1992 CCH OSHD at pp. 40,036-39 (gas cylinder lacking valvecap, and portable grinder operated at 480 volts even though its plug wasrated for only 208 volts).(ii)In addition to challenging the neutrality of OSHA’s administrative plan,Trinity also challenges the adequacy of OSHA’s warrant application,citing several federal court decisions that expand upon and clarify theSecretary’s burden of proof in establishing administrative probablecause under the Barlow’s administrative plan test. We find this argumentis without merit.Contrary to Trinity’s claims, the warrant application submitted by OSHAto Magistrate Steinberg on February 25, 1988, described in sufficientdetail the administrative plan on which it was based. Indeed, themagistrate was provided with a copy of most, if not all, of the keyprovisions of the plan. \/See supra\/ note 5. Thus, the magistrate wasprovided with enough information to make an independent determination asto whether the Secretary’s inspection plan is based on neutral criteriaand whether it is \”reasonable.\” Magistrate Steinberg in fact made theseindependent determinations of neutrality and reasonableness, and weagree with his holdings.The magistrate was also provided with an adequate statement of themethodology followed by OSHA in selecting the Sharonville facility for afull-scope inspection pursuant to the terms of the administrative plan. As we have set forth fully in our statement of facts, \/supra\/, thewarrant application provided the magistrate with the information OSHArelied upon in making its determination that the Sharonville facilitymet three of the \”four separate conditions\” described in theadministrative plan. In addition, OSHA informed the magistrate indetail of the steps it would take to determine whether the facility alsomet the fourth of these separate conditions. Finally, OSHA representedto the magistrate that it would only conduct a full-scope inspection ofthe facility if and when it determined that all four of the plan’sseparate conditions were met.(iii)Under the case law that Trinity itself cites, the showing we have justdescribed was sufficient to meet the Secretary’s burden of provingadministrative probable cause under the Barlow’s administrative plantest. We therefore find and conclude that OSHA met its burden ofdemonstrating to the magistrate that Trinity’s Sharonville facility was\”chosen\” for a full-scope establishment inspection \”on the basis of ageneral administrative plan for the enforcement of the Act derived fromneutral sources.\”C. \/Whether the Judge’s Denial of Trinity’s Motion Was Contrary\/\/to Commission Precedent and Appellate Court Case Law\/Throughout these proceedings, Trinity has relied heavily upon Commissionprecedent and appellate court case law that assertedly supports itsposition on the proper scope of the February 25, 1988 administrativeinspection warrant. In particular, it has emphasized the Commission’sdecision in \/Sarasota Concrete\/ and the decision of the United StatesCourt of Appeals for the Third Circuit in \/Marshall v. North AmericanCar Co., \/626 F.2d 320 (3d Cir. 1980) (\”\/North American Car\/\”). Citingthese two decisions, and several other federal court decisions, Trinityclaims that \”[T]he Review Commission … and the majority of the courtsthat have considered the issue have held that the scope of a complaintinspection must bear an appropriate relation to the complaint itself, inorder to keep the invasion of privacy to a minimum.\” This follows, inTrinity’s view, from the \”‘basic principle of constitutional law that awarrant … must be limited in scope to the probable cause that triggersthe inspection.\” Accordingly, Trinity concludes. because JudgeBurroughs’ denial of its motion to suppress conflicts with theseprinciples and the cases that have applied them, the judge’s ruling mustbe reversed.More specifically Trinity argued as follows before Judge Burroughs:There is no dispute in this case that Trinity was initially selected forinspection based on a limited complaint. The Secretary contends thatbecause he, internal inspection regulation, CPL 2.45A, authorizes her toexpand employee complaints into wall-to-wall searches, the broad formwarrant obtained here is constitutionally permissible. The ReviewCommission rejected this same contention in Sarasota Concrete. See, 9BNA OSHC at 1610. Indeed, Sarasota Concrete is not distinguishable fromthe present case. There, the Commission held it could and wouldsuppress evidence where, as here, the warrant authorized an inspectionbroader than necessary to investigate the complaint. 9 BNA OSHC at 1614,1617.Trinity also focuses on the reasoning of the Third Circuit in the \/NorthAmerican Car\/ case. It challenges the Secretary’s position in the casesnow before us as an impermissible attempt \”to blur the distinctionbetween ? 8(f), which limits the scope of complaint inspections, and thegeneral inspection provisions of ? 8(a).\” It presents \/North AmericanCar \/as a case where this same approach \”was thoroughly analyzed andrejected by the Third Circuit.\” More specifically, Trinity contends:In \/North American\/ Car, as here, the Secretary argued that OSHA’sinternal regulation authorizing expansion of a complaint inspection to awall-to-wall inspection is a \”general administrative plan within thepurview of ? 8(a).\” 626 F.2d at 323. The Third Circuit held that theSecretary’s internal regulation \”surpasses the boundaries set byCongress\” and that a complaint inspection must be limited to thecomplaint itself.We reject these arguments. Our holding that Judge Burroughs did not errin denying Trinity’s motion to suppress the evidence is not in conflictwith the Commission’s precedent as established in \/Sarasota Concrete.\/ Nor is it inconsistent with the appellate court case law cited byTrinity. On the contrary, each of the cases cited by the Respondent isclearly distinguishable from the cases that are now on review.The most critical fact in \/Sarasota Concrete\/ was the fact that thewarrant application at issue there was based \/solely\/ on OSHA’s receiptof a complaint of unsafe working conditions.[[12]] The conditions theformer employee complained about were located within a discrete andlimited section of the employer’s workplace. Yet, OSHA’s warrantapplication presented no evidence–other than its receipt of thecomplaint–that a wall-to-wall inspection would be appropriate. Notsurprisingly, therefore, the Commission concluded, in that case, thatthe warrant issued by the magistrate, which authorized a full-scopeinspection of Sarasota Concrete’s entire workplace, was overly broad.The limited showing made by the Secretary in applying for the warrant atissue in \/Sarasota Concrete\/ was emphasized by the Commission in itsholding, as follows: \”We adopt the position that, \/when probable causefor an inspection is based solely on specific evidence of an existingviolation, \/to accommodate the fourth amendment the inspection generallyshould be limited to the alleged violative condition. 9 BNA OSHC at1617, 1981 CCH OSHD at pp. 31,535-36 (emphasis added). Here, in sharpcontrast, the Secretary did not base her showing of probable causesolely on the specific evidence of existing violations that wasContained in the section 8(f)(1) complaint. Instead, as we havediscussed fully above, she established that a full-scope inspection ofthe Sharonville facility was authorized under the terms of theadministrative plan set forth in OSHA Instruction CPL 2.45A.Trinity’s argument that the cases now before us cannot be distinguishedfrom \/Sarasota Concrete\/ on this basis is unpersuasive. Trinitycorrectly points out that the Secretary made an administrative planargument in \/Sarasota Concrete\/ and that the Commission rejected thatargument. However, the reason the Commission rejected the Secretary’sargument was because \”[t]he Secretary did not introduce the … internalinstruction [\/i e.\/, the administrative plan] in his warrant applicationbefore the magistrate.\” 9 BNA OSHC at 1615, 1981 CCH OSHD at p. 31,534.Thus, the Commission was merely implementing the policy it had announcedearlier in that same decision: \”In determining whether probable causesupported the Secretary’s action, the Commission will consider insupport of probable cause only the evidence the Secretary presented tothe judge or magistrate who issued the warrant.\” 9 BNA OSHC at 1611-12,1981 CCH OSHD at p. 21,530.In any event, to the extent the Commission did, in dicta, consider andreject the substance of the Secretary’s administrative plan, thatdiscussion is largely irrelevant here. The \”plan\” that was at issue in\/Sarasota Concrete\/ was essentially nothing more than a statement thatOSHA would conduct a wall-to-wall inspection whenever it received asection 8(f)(1) complaint. Even if we characterized this statedenforcement policy as an 6,\”administrative plan\” within the meaning of\/Barlow’s\/, we would have little difficulty in distinguishing that planfrom the administrative plan that is at issue before us in these cases. We find no inconsistency between the Commission’s rejection of the\”plan\” that was at issue in \/Sarasota Concrete\/ and our acceptance ofthe plan that is at issue in these proceedings.For essentially the same reasons, we further conclude that each of theappellate court decisions cited by Trinity is clearly distinguishablefrom the cases now on review. For example, in the\/North American Car\/case, the Third Circuit noted that the warrant application at issuebefore it \”merely recited the employee complaint.\” 626 F.2d at 322. Tothe extent the court evaluated the warrant application in terms of the\/Barlow’s\/ administrative plan test, it did so in the context ofrejecting the Secretary’s contention \”that his rule of having awall-to-wall inspection in every employee-complaint case is a generaladministrative plan within the purview of ? 8(a). \” In sum, we find nocase cited by Trinity, and indeed no other case at either the Commissionor appellate court level, that directly or indirectly, holds that OSHAInstruction CPL 2.45A (or any comparable OSHA inspection plan) does notmeet the \/Barlow’s\/ criteria for establishing administrative probablecause under the administrative plan test.This leaves us with Trinity’s claim that OSHA Instruction CPL 2.45Aimpermissibly blurs the distinction between section 8 (a) and 8 (f)(1)of the Act, contrary to the language of those two statutory provisions,\/see supra \/notes 3 & 7, and the reasoning of \/North American Car\/. Wealso find this argument unpersuasive. For the reasons that follow, weagree with the statement in the Secretary’s review brief that \”[n]othingin \/Barlow’s\/ or any other authority prohibits the Secretary from usingemployee complaints as one of the factors in a programmed inspectionplan.\” In particular, we conclude that the hard and fast line thatTrinity would have us draw between section 8(a) and section 8(f)(1)inspections is not warranted by the statutory language or the Act’slegislative history.Section 8(a) of the Act is the only provision in the Act that grants theSecretary the authority to conduct workplace inspections for the purposeof determining whether an employer is in compliance with the Act. Thus,section 8(a) is always the source of the Secretary’s authority toinspect, regardless of the event that may have triggered theinspection. Such triggering events include: OSHA’s receipt of a section8(f)(1) complaint; its receipt of a \”nonformal\” complaint or an agencyreferral; its receipt of information that a workplace accident hasoccurred (\/e.g.,\/ through the filing of a formal report by the employer,as required by regulation, or through informal means such as newsreports on television or the radio), the chance observation of acompliance officer driving past a construction site:, or the employer’sappearance on a list of establishments to be inspected (\/i.e.\/ a socalled \”programmatic\” inspection pursuant to a formal administrative plan).Contrary to Trinity’s reasoning. section 8(f)(1) is not a separate andindependent source of authority for OSHA inspections. Nor is It alimitation on the authority granted to the Secretary in section 8(a). Instead, it is a Congressional mandate or directive, requiring OSHA toconduct inspections under the narrowly-proscribed circumstances setforth in section 8(f)(1). \/See International Matex\/, 928 F.2d at621-22, and authorities cited therein. \/See also Adams Steel Erection,Inc\/., 13 BNA OSHC 1073, 1077-78, 1986-87 CCH OSHD ? 27,815, pp.36,402-03 (No. 77- 3804, 1987), and cases cited therein. We concludethat the Act, as properly interpreted by the Secretary in theseproceedings, did not preclude her from expanding the scope of thecomplaint inspection in this case beyond the matters that were specifiedin the complaint.Nor do we agree with Trinity that the \/Barlow’s\/ decision requires us toinvalidate OSHA Instruction CPL 2.45A. In \/Barlow’s\/, the Court setforth two alternative routes by which the Secretary could establishadministrative probable cause–under the specific evidence test or underthe administrative plan test. Contrary to Trinity’s reasoning, however,we do not believe that the Court thereby intended to create an absoluteequation between the specific evidence test and section 8(f)(1)inspections, on the one hand, and the administrative plan test andsection 8(a) inspections, on the other.Indeed, based on our reading of the \/Barlow’s\/ decision, we concludethat the source of these two alternative tests was not the Act at all,but rather the Court’s own precedent, most of which predatedCongressional passage of that particular statute. Thus, the Court’s\”specific evidence test\” is based on the traditional test forestablishing probable cause in support of a criminal search warrant. The \”administrative plan test\” is primarily based on the Court’searlier, pre-Act decision in \/Camara v. Municipal Court\/, as thequotation to that decision in\/Barlow’s\/ makes clear. See 436 U.S. at 320-21.In his order denying Trinity’s motion to suppress the evidence, JudgeBurroughs held that \”[t]he filing of a complaint by an employee does notpreclude the Secretary from seeking a full-scope inspection undersection 8(a) of the Act.\” For the reasons we have stated above, weaffirm that holding.D. \/Whether the Warrant ‘s Records Review Provision Was Overly Broad\/In addition to challenging the conditional full-scope inspectionprovision of the February 25, 1988 warrant, Trinity also contends thatthe warrant’s provision authorizing a review of its safety and healthrecords was overly broad. That provision has been consistentlyconstrued as permitting OSHA to inspect only those safety and healthrecords that Trinity was required to keep and make available forinspection under the Act and OSHA regulations implementing the Act. \/Seesupra\/ note 6.Trinity nevertheless takes issue with this provision because itauthorized OSHA to inspect all of its \”required records,\” regardless ofwhether the records bore any relation to the conditions alleged in thesection 8(f)(1) complaint. Trinity contends that, because the inspectionwas triggered by OSHA’s receipt of the employee complaint. the warrantshould have authorized OSHA to review only those records that were\”directly related to the complained-of conditions.\” To the extent thewarrant authorized review of \”documents beyond those that relateddirectly to the complaint,\” Trinity claims that the warrant was\”overbroad\” and that this defect in itself is sufficient grounds for theCommission to hold that the warrant was invalid.We disagree. Once again, we find that the cases cited by Trinity aredistinguishable because they did not involve inspections pursuant to anadministrative plan. Here, the Secretary sought and obtained aconditional full-scope inspection warrant pursuant to the terms of anadministrative plan. The records review authorized under that warrantwas for the purpose of implementing the Secretary’s plan. These factsclearly distinguish the cases now on review from the cases cited byTrinity in support of its position.Magistrate Steinberg found that Trinity’s LWDI rate could not becalculated without the data contained in its injury and illnessrecords. Thus, \”[i]f the Secretary were denied access to Trinity’sinjury and illness records, she could not implement CPI 2.45A.\” Ineffect, he continued, OSHA would thereby be precluded from seeking aninspection warrant under the \/Barlow’s\/ administrative plan test,contrary to the Court’s statement that this was one of the means bywhich the Secretary could seek and obtain a warrant. Accordingly, themagistrate concluded, \”[b]ecause the data in the injury and illnessrecords is necessary to determine whether to conduct an expandedinspection under CPL 2.45A . . . the Secretary is authorized to reviewthose records . . . .\”We adopt this same reasoning and therefore reject Trinity’s contentionthat the warrant’s records review provision was overly broad. Weconclude that the warrant issued on February 25,1988, was valid and thatTrinity’s Fourth Amendment rights were not violated by the May 1989inspection because the inspection was conducted pursuant to that validwarrant. [[13]]\/IV. Order\/For the reasons stated in this decision, we affirm Judge Burroughs OrderDenying Motion to Suppress Evidence. Because no other issues are beforeus, the judge’s decision and order in these consolidated cases, docketedwith the Commission on December 12, 1990, are also affirmed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 18, 1992————————————————————————SECRETARY 0F LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent.OSHRC Docket Nos.89-2168 and 89-2169(Consolidated)APPEARANCES:Janice Thompson, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainant.Robert E. Rader, Jr., Esquire, Locke, Purnell, Rain and Harrell, Dallas,Texas, on behalf of respondent.Mr. Harry W. Sorgs, President, Local 7629, United Steelworkers ofAmerica, Cincinnati, Ohio, on behalf of authorized employee representative._DECISION AND ORDER_Burroughs, Judge: Trinity Industries, Inc. (\”Trinity\”), contests seriousand \”other\” citations issued to it on June 28, 1989, for alleged healthviolations (Docket No. 89-2168) and serious, willful, and \”other\”citations issued to it on June 29, 1989, for alleged safety violations(Docket No. 89-2169). The citations resulted from an inspection ofTrinity’s facilities located at 11861 Mosteller Road, Sharonville, Ohio.The Mosteller Road facility includes plant one and plant two. Planttwo manufactures tank heads and plant one makes shells and does thefinal assembly of the pressure vessels (Tr. 205, 259). There areapproximately 300 employees at the Mosteller Road facility (Tr. 66)._BACKGROUND_On February 23, 1988, an employee at Trinity’s plant filed a complaintwith the Occupational Safety and Health Administration (\”OSHA\”). Thenext day an OSHA compliance officer attempted to inspect the plant, butTrinity refused permission to enter the facility. On February 25, 1988,OSHA applied for a warrant to the Magistrate for the Southern Districtof Ohio. The warrant was issued on the same date. Trinity filed amotion to quash. The motion was denied; and, after some further legalmaneuvering, a limited inspection was conducted.While the parties were litigating that warrant, the union filed a secondcomplaint alleging 43 different items. The Secretary obtained a secondwarrant on April 7, 1989, to investigate the second complaint. On April10, 1989, OSHA Compliance Officer James Sweeney, accompanied by SafetySpecialists John Collier and Mike Boatman, went to Trinity’s plant withthe warrant. They were met by Robert Essex, Trinity’s manager forindustrial relations. Essex denied them access to the plant, statingthat his supervisors wished to review the warrant (Tr. 17-18). Sweeneyreturned on May 11, 1989, accompanied by OSHA personnel Dennis Collinsand Mike Boatman. The OSHA representatives met with Essex and withTrinity’s production manager, Mark Lang, and plant manager, GeoffLangford. They were permitted to enter the premises in order to conductan inspection (Tr. 19, 123).The purpose of the inspection was twofold. The compliance officers wereto conduct a complaint inspection pursuant to the April 7, 1989,warrant; as well as a comprehensive inspection, pursuant to the February25, 1988 warrant if the lost work day injury rate exceeded the nationalaverage (Tr. 21, 123-124). Compliance Officer Collins calculated theLWDI and it was 13.6, which exceeded the national average of 4.2 (Tr.124). Therefore, a comprehensive inspection was conducted by thecompliance officers (Tr. 24). The inspection was completed on May 19,1989 (Tr. 28).Prior to the hearing, Trinity filed a statement on February 16, 1990,explaining that it would not be appearing at the hearing scheduled forFebruary 21, 1990. Trinity’s statement provides in pertinent part:1. The inspection in this case was conducted pursuant to an inspectionwarrant dated February 25, 1988. The inspection was triggered by acomplaint of three alleged hazards in the \”production area\” of Plant No.1. The warrant, however, was not limited to the complaint items, butauthorized a review of all accident and illness records and an expandedinspection of Trinity’s entire three-plant facility.2. All the citations in this consolidated case stem from the expandedinspection. Trinity therefore filed a motion to suppress the evidencefrom the expanded inspection and to dismiss the citations . . .3. By order dated January 29, 1990, the Administrative Law Judge deniedTrinity’s motion to suppress. . .4. Trinity’s motion to suppress involves a controlling question of lawthat is obviously dispositive of the entire case. Trinity is precludedfrom seeking an interlocutory appeal of the Administrative Law Judge’sorder denying the motion to suppress, however, because the ReviewCommission has no Commissioners and is unable to act on a petition forinterlocutory appeal.* * *7. To that end, Trinity hereby states that it will not appear or presentevidence at the trial presently scheduled for February 21, 1990, inCincinnati, Ohio. By not appearing for the trial Trinity does not admitthat the citations in this case are correct. To the contrary, Trinitydenies that such citations are valid . . . Trinity’s motive in notappearing for trial is solely to avoid the unfair expense of protractedtrial in the process of obtaining judicial review of the validity of thewarrant. (Emphasis in original.)The Secretary desired to present the merits of her case on the issues. On February 16, 1990, the undersigned issued an order stating:That the hearing will be held as presently scheduled on February 21,1990. Evidence will be received into the record from the Secretary onall issues in dispute. If Trinity does not appear, the record will beclosed after the Secretary’s evidence is received. Based on theevidence of record, a decision will be rendered subsequent to thehearing on all issues in dispute.Counsel for Trinity is to advise any employees of Trinity subpoenaed bythe Secretary that the hearing will commence as scheduled and that theyare expected to appear at the hearing.No one appeared on behalf of Trinity at the hearing. The secretarypresented her evidence in support of the allegations.While it did not appear at the hearing, Trinity filed a brief statingthat it was its position \”that all the citations should be vacatedbecause the inspection…was unconstitutional.\” It argues that ReviewCommission precedent requires the evidence be suppressed and thecitations dismissed, _citing,_ _Sarasota Concrete Co._ 81 OSAHRC 48\/A2,9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981), aff’d, 693F.2d 1061 (11th Cir. 1982). An order was issued on January 29, 1990,denying Trinity’s Notion to Suppress Evidence. The order explains thereasons the motion to suppress was denied. No further comment onTrinity’s brief is necessary._DOCKET NO. 89-2168_James Sweeney is an industrial hygienist with OSHA’s Cincinnati AreaOffice. He has been with OSHA since 1977 and has served as thecoordinator for enforcement of the hazard communication standard since1985 (Tr. 10-13). Sweeney testified regarding the alleged healthviolations cited in Docket Number 89-2168._CITATION ONE (SERIOUS)_Item One_Confined Spaces_Item one deals with confined spaces and contains three subparts: 1a, 1b,and 1c. Sweeney testified that a confined space has threecharacteristics. First, a confined space is not designed or intendedfor prolonged or continuous human occupancy. Second, an oxygendeficiency or excess level of air contaminant can develop in a confinedspace, because there is no effective natural ventilation. Third, aconfined space usually has a limited or restricted means of entry andegress (Tr. 30-31). In general, a confined space includes any areawhere a worker’s entry and exit are limited and where normal air is inshort supply. Sweeney testified that, if a tank is more than four feethigh, it can be a confined space even if it has an open top (Tr . 32).The work inside the tanks at Trinity is considered to be work in aconfined space. The tanks exhibit the following characteristics commonto confined spaces: (1) a space never designed or intended for prolongedor continuous human occupancy; (2) a space in which an oxygen deficiencyor excessive level of air contaminant can develop, because there is noeffective natural ventilation of the space; (3) a space in which thereis limited or restricted means of entry and egress (Tr. 30-31). Standard areas that are normally considered to be confined spaces wouldinclude tanks, process vessels, tank cars, bins, silos, pits, vaults,sewer lines, some underground storage space (Ex. C-5; Tr. 31). TheAmerican National Standard Institute (ANSI) standard 2117.1-1977recognizes work in confined spaces can become unsafe as a result ofoxygen deficiency and because the occupants may be isolated from help incase of need (Ex. C-5). The committee that wrote the ANSI standard forconfined space was spearheaded by a member of the American PetroleumInstitute and a member Mobile Oil Corporation, which are the kinds ofindustries in which Trinity’s tanks are used (Tr. 39). In December1979, NIOSH published a criteria document reviewing in detail potentialhazards associated with employees working in confined spaces (Tr.39-40). Trinity created its own written tank entry program in April1989 (Tr. 42). Clearly, the hazards associated with work in confinedspaces are recognized by the pressure vessel and tank industry and byTrinity in its own written tank entry program.Item 1a_Alleged Violation of 5(&)(1)_The Secretary charges that Trinity violated 5(a)(1) in that employeeswere exposed to potentially toxic and\/or oxygen-deficient atmosphereduring welding operations inside tanks and that Trinity’s confined spaceentry program was deficient in several areas. Section 5(a)(1) states:Each employer–(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;In _Pelron Corp_., 87 OSAHRC 28\/A3, 12 BNA OSHC 1833, 1986-87 (7CH OSHDP 27,605 (No. 82-388, 1986), the Commission set forth the followingcriteria for determining a 5(a)(1) violation:To prove that an employer violated section 5(a)(1), the Act’s generalduty clause, the Secretary must prove that the cited employer failed tofree the workplace of a hazard that was recognized by the cited employeror its industry, that was causing or likely to cause death or seriousphysical harm, and that could have been materially reduced or eliminatedby a feasible and useful means of abatement.Randy Glacken has worked as a mechanic at the Mosteller Road facilityfor the past ten years (Tr. 286-287). During a two-week period in lateMarch and early April 1989, he and Dave Shause performed heliarc andpulse arc welding in an open-ended vertical tank that was approximately15 feet high and 12 feet in diameter (Tr. 289-291). Ventilation wasprovided by a 20-inch box fan at the bottom of the tank (Tr. 293). Thebottom of the tank was smokey and the argon used in welding had nowhereto go (Tr. 294). There was no ladder in the tank and the employees werenot attached to a safety harness or any other safety line (Tr. 290,292). Glacken and Shause were not wearing respirators (Tr. 291). Theydid not receive written authorization to enter the tank, and noatmospheric testing was done prior to their entering it. No lookoutprovided for them (Tr. 293-294).Glacken felt dizzy one time while working in the vertical tank (Tr.293). In the past, he has become nauseated while working in ahorizontal tank and has had to leave the tank to get, some fresh air(Tr. 298-299). He has been injured once while working in a horizontaltank, bruising his knee and cutting his forehead (which required sixstitches). He had to be removed from the tank on a stretcher (Tr. 293).Between April 10 and April 30, 1989, Trinity developed a written tankentry program. The program was written by production manager Mark Lang(Tr. 42). The program did not provide for a confined space entrypermit, monitoring of air inside tanks, effective ventilation, oreffective rescue procedures, all of which rendered the program deficient(Tr. 45-51).On May 17, 1989, Sweeney observed Glacken welding inside a tank whichwas lying on its side (Exs. C-1, C-2; Tr. 33). A household fan was usedto draw air out of the tank. Air entered the tank through a largecentral hole below the fan, traveled a very short distance up to theslightly smaller hole that had the fan in front of it, and was exhaustedby the fan. Sweeney described this configuration as a \”short circuitingsituation.\” Effective ventilation was not created for any portion ofthe tank except for the extreme front end, because air is entering andexiting the two holes in proximity to each other at the front of thetank (Tr. 34). Without effective ventilation, an oxygen deficiencyproblem can be exacerbated during welding; because the argon and carbondioxide, used as a shielding gas, are heavier than air (Tr. 48).Abatement can be easily achieved by Trinity. Samples of confined spaceentry permits or written authorizations are published in the NIOSHstandard and in the proposed OSHA confined space standard (Tr. 52). Asupervisor who is knowledgeable about the potential hazards can inspectthe tank or vessel prior to entry (Tr. 52). There are numerous oxygenmeters available on the market (Tr. 52). There are forced-air blowersthat could be used to force clean air into the opposite end of a tankand also atmosphere complying respirators (Tr. 53). There were numeroushoists at plant one in which to attach a safety harness for properemergency rescue (Tr. 53-54). Constant visual contact through a standbyemployee or audible contact through a walkie-talkie system could bemaintained to immediately implement rescue procedures if necessary (Tr.56). The ANSI standard Z117-1-1977 (Ex. C-5) and the NIOSH criteriadocument of 1977 set forth the elements of a good confined space entryprogram (Tr. 57). The Cincinnati OSHA office also distributes aone-page summary of the minimum requirements for work in a confinedspace (Ex. C-4).The Secretary has established that working in a confined space is ahazard recognized in Trinity’s industry, and that Trinity failed to takeadequate steps to free its workplace of that hazard. There werefeasible methods of abatement which would have eliminated the hazard. The likely result of employees working in oxygen-deficient atmospheresis serious physical harm or death. Trinity was in violation of ? 5(a)(1).Item 1b_Alleged Violation of 29 C.F.R. ? 1910.252(e)(4)(iv)_The Secretary alleges that Trinity had no standby person with apreplanned rescue procedure stationed outside a confined space whenevera welder enters so that he could immediately commence a rescue if suchaction became necessary. Section 1910.252(e)(4)(iv) of 29 C.F.R. provides:_Lifelines_. Where a welder must enter a confined space through amanhole or other small opening, means shall be provided for quicklyremoving him in case of emergency. When safety belts and lifelines areused for this purpose they shall be so attached to the welder’s bodythat his body cannot be jammed in a small exit opening. An attendantwith a preplanned rescue procedure shall be stationed outside to observethe welder at all times and be capable of putting rescue operations intoeffect.Whenever a welder enters a confined space, the standard requires astandby person with a preplanned rescue procedure to be stationedoutside a confined space so that he can immediately start a rescue ifthere is a need to initiate one. The facts support the allegation.During late March to early April 1989, Glacken and Dave Shause performedheliarc and pulse arc welding in a 15-feet high tank that was sitting ina vertical position (Tr. 289, 291). Glacken’s supervisor was awarethat work was being performed inside the tank. No standby person wasassigned to observe them while they were welding (Tr. 60, 288, 294). Ona previous occasion, Glacken had been injured while working inside atank and had to be carried out on a stretcher (Tr. 292). Trinity’swritten tank entry program did not require that anyone observe thewelder. It called for periodic tapping on the tank (Tr. 61). Theviolation has been established.Argon and carbon dioxide are gases that are heavier than air and tend tofall to the bottom of the tank (Tr. 48). If the ventilation is noteffective, an oxygen-deficiency problem can develop (Tr. 48, 59). Thisoxygen deficiency could lead to death if the ventilation wereineffective enough (Tr. 59). In such situations, the lack of a standbyperson becomes a matter of life or death. Trinity was in violation of? 1910.252(e)(4)(iv).Item 1c_Alleged Violation of 29 C.F.R. ? 1910.252(f)(4)(i)_The Secretary alleges Trinity violated ? 1910.252(f)(4)(i) by havinginadequate ventilation inside a tank. Section 1910.252(f)(4)(i) provides:All welding and cutting operations carried on i n confined spaces shallbe adequately ventilated to prevent the accumulation of toxic materialsor possible oxygen deficiency. This applies not only to the welder butalso to helpers and other personnel in the immediate vicinity. All airreplacing that withdrawn shall be clean and respirable.The standard requires adequate ventilation be provided to make certainthat there is no accumulation of toxic materials and that an oxygendeficiency does not develop.Sweeney observed Glacken welding inside a tank that was 27 feet long andapproximately 9 feet in interior diameter. The ventilation system wasas previously described: two holes in proximity and located at the frontof the tank with a single box fan drawing the air out. Glacken statedthat this \”short-circuiting system\” was the standard ventilation schemefor horizontal tanks (Exs. C-1, C-2; Tr. 62). The position of the fanremains stationary even though Glacken welded in the front, middle, andback of the tank (Tr. 300). Such an arrangement does not provideadequate ventilation, because air is entering and exiting at two holesthat are in very close proximity to each other on the front end of thetank (Tr. 34, 298). Glacken has on occasions experienced dizziness andnausea while welding inside tanks (Tr. 298).The tank entry program of April 1989 was written in general languagesuch as, \”ventilation shall be provided\” (Tr. 64). It did not specifyhow to provide effective ventilation (Tr. 64). Sweeney stated thatthere are forced-air blowers that could be used to force clean air intothe opposite end of a tank in which they were drawing out and exhaustingcontaminated air (Tr. 53). In instances where mechanical ventilationmight not be adequate, another alternative would be to provide anatmosphere complying respirator to an employee working inside the tank(Tr. 53). Trinity was in violation of ? 1910.252(e)(4)(iv)._THE VIOLATIONS WERE SERIOUS_Items 1a, 1b, and 1c were grouped, because they involved similar orrelated hazards. The violations were alleged to be serious within themeaning of section 17(k) of the Act. The evidence supports the allegation.\”To establish that a violation is ‘serious’ it must be shown that thereis a substantial probability that death or serious physical harm couldresult from the violative condition and that the employer knew or withthe exercise of reasonable diligence could have known of the presence ofthe violation.\” _Wisconsin Electric Power Co_., 76 OSAHRC 134\/B2, 4 BNAOSHC 1783, 1976-77 CCH OSHD ? 21,234, at p. 25,132 (No. 5209, 1976),_aff’d, _567 F.2d 735 (7th Cir. 1977). The Secretary does not have toestablish the likelihood of an accident before a violation can beclassified as serious. She \”need only show that an accident is possibleand that such an accident will most likely result in serious injury.\” _Communications, Inc_., 79 OSAHRC 61\/A2, 7 BNA OSHC 1599, 1979 CCH OSHD? 23,759, at p. 28,813 (No. 76-1924, 1979), _aff’d in an unpublishedopinion_, No. 79-2148 (D.C. Cir. 1981). The facts meet the criteriaestablished for a serious violation. The conditions resulting in thethree violations exposed employees to dizziness, nausea, and thepotential for an oxygen-deficient atmosphere, which could result indeath. All three violations have been established to be serious violations.Item 2_Alleged Violation of 29 C.F.R. ? 1910.20(g)(1)_The Secretary alleges that Trinity was in violation of ? 1910.20(g)(1),which provides:Upon an employee’s first entering into employment, and at least annuallythereafter, each employer shall inform employees covered by this sectionof the following:(i) The existence, location, and availability of any records covered bythis section;(ii) The person responsible for maintaining and providing access torecords; and(iii) Each employee’s rights of access to these records.This standard requires initial and annual training of employees, who areexposed to toxic substances or harmful physical agents. Employees areto be informed of the existence, location, and availability of anyrecords, the identity of the person responsible for maintaining andproviding access to these records, and each employee’s right to gainaccess to these records.Trinity’s employees had been previously monitored for high noise levelsand nickel exposures above the NIOSH recommended exposure limit of 15micrograms per cubic meter (Tr. 73). Sweeney interviewed 20 employees,as well as management officials, during his inspection regarding thisstandard. None of them had been informed of the information as requiredby ? 1910.20(g)(1) (Tr. 68).Glacken testified that he had been given hearing tests and air sampling;but he was never told the results, the name of the person responsiblefor keeping the records, where the information is kept, or that he had aright to access to that information (Tr. 299, 301). Leotis Whitaker, aflange operator, had worked in the Mosteller Road facility for 20years.[[1]] For 15 of those years, Whitaker had been given audiograms. He had never been furnished the results of the tests, the name of theperson in charge of the records, the location of the records, or thefact that he had a right to access to the records (Tr. 241-242). AndyIrick, a mechanic in plant one, and Harry Sorgs, an inspector in planttwo, were given audiograms but had been furnished no informationregarding their test results (Tr. 278-279, 504).Nine days after OSHA attempted to conduct an inspection of the 43Complaint items, a Copy of ? 1910.20 and a memo addressing the standardwas posted on the premises near the section of the plant near the officeof Robert Essex (Tr. 69). Sweeney was not permitted to make aphotocopy of this memo, but he did read and make notes from the memo. The memo discussed the employees right to access but did not specify whowas responsible for providing access to these records, where they weremaintained or how they should go about getting access (Tr 68). Essex’soffice is located near the front of the plant with the otheradministrative offices. Employees generally do not go into the areawhere the posting was made by Trinity (Tr. 69).Noise – induced hearing loss is a likely consequence from exposure tohigh noise levels. Nickel is listed as a carcinogen capable of causingdamage to the lungs with symptoms appearing 5 to 20 years after exposure(Tr. 73). Employees who are unaware of the requirements of thestandard are prevented from knowing the concentration levels andexposure levels they may have experienced in the past and are continuingto experience (Tr. 72). They are less able to recognize the onset ofwork-related illness when it does begin to occur (Tr. 72).Exposure to high levels of noise can lead to hearing loss. Nickel is acarcinogenic substance that has been linked to sinus cancer and lungcancer (Tr. 72-73). The Secretary has established that Trinity was inserious violation of ? 1910.20(g)(1).Item 3_Alleged Violation of 29 C.F.R. ? 1910.106(e)(2)(ii)_The Secretary asserts that Trinity was in violation of ?1910.106(e)(2)(ii), because Stoddard Solvent was not stored in tanks orclosed containers. Section 1910.106(e)(2)(ii) provides:Flammable or combustible liquids shall be stored in tanks or closedcontainers.The language of the standard is clear in its wording and intent.Sorgs testified that, prior to OSHA’s April 10, 1989, attempt to inspectTrinity’s facility, Trinity stored Stoddard Solvent in unlabeledfive-gallon plastic containers with no lids (Tr. 505). Buckets of thesolvent were stored throughout the plant for a week at a time. Thesolvent was thrown out when it became too dirty to use (Tr. 506). AfterOSHA’s initial attempt to inspect the plant on April 10, Trinity broughtin Neil Foreman, a corporate safety man, to go through the plant with acopy of the complaint and make corrections. One of the complaint itemswas the storage of the Stoddard Solvent. After Foreman’s visit, thesolvent was In 2 1\/2-gallon buckets with flip-top lids operated bypedals (Tr. 482, 506).Stoddard Solvent vapors can escape from an open-top Container (Tr. 75). The vapors are heavier than air and will Concentrate down near the floorlevel (Tr. 75). Sparks from welding and grinding operations couldignite the vapors and cause a fire (Tr. 75). There is also a furnace inone portion of plant two that heats metal up to approximately 2000 F. Anopen-top container of solvent was stored approximately ten yards away(Tr. 76). Unless a closed container is used, there exists thepossibility that a container could be accidentally knocked over andallow the liquid to encounter an ignition source and start a seriousfire (Tr. 76). This could result in serious burns. A seriousviolation of the standard has been established.Item 4_Alleged violation of 29 C.F.R. ? 1910.134(d)(2)(ii)_The Secretary alleges that breathing air was supplied to employeeswearing hot suits from an oil-lubricated compressor without thesafeguards required by ? 1910.134(d)(2)(ii).[[2]] In suchcircumstances, the standard requires the employer to provide ahigh-temperature or carbon monoxide alarm, or both and frequent testingfor carbon monoxide if only a high-temperature alarm is used.Ronald Noel is a class \”A\” flange operator who operates flange numberten (Tr. 250, 252). When the metal head is running hot, it could reachtemperatures between 1,600 and 2,000 F. Noel would wear a \”hot suit,\”which consisted of a hood, jacket, pair of gloves, pants, and shoecovers. The purpose of the hot suit was to protect the employee fromthe intense heat coming off the head. During the first four months of1989, air to the hot suit was supplied from a compressor. No alarmsystem for either carbon monoxide or high temperature was used. Nomonitoring of carbon monoxide was done while the flange was operating. A supervisor would generally be present to watch the operator (Ex. C-7;Tr. 253-257).The compressor that supplied the breathing air was a Worthington Model25D compressor. The compressor was lubricated with regular 20 weightoil (Tr. 81-82). There was no carbon monoxide monitor or alarm on thehot suit (Tr. 84). Management personnel conceded that there had neverbeen any testing or sampling of air delivered to the hot suit to checkfor carbon monoxide concentrations. Trinity was aware of thestandard’s requirements. Page ten of its respirator program states,\”when using shop air compressor to supply air to air line face masks orhoods, the air must be checked or monitored for carbon monoxide\” (Ex.C-3; Tr. 84).A hot spot can develop inside an oil-lubricated compressor. If thatoccurs, thermal decomposition of the oil will produce carbon monoxide. High levels of carbon monoxide can be produced and then deliveredthrough the hose to the employee wearing the hot suit. There is thepotential for serious overexposure to carbon monoxide or even death if ahigh dose of carbon monoxide were delivered to the employee (Tr. 82). Aserious violation under 17(k) of the Act has been established.Item 5a_Alleged Violation of 29 C.F.R. ? 1910.1200(f)(5)(i)_The Secretary alleges that Trinity was in violation of ?1910.1200(f)(5)(i),[[3]] because Stoddard Solvent was stored in plasticbuckets with no identity label affixed.Prior to April 10, 1989, Trinity stored Stoddard Solvent in open-toppedfive-gallon buckets throughout plant two (Tr. 482, 506). Sorgs andLeaman Calhoun, a flange machine operator in plant two, both testifiedthat the buckets of solvent were unlabeled. They also stated that nitricacid was stored in identical unlabeled open-topped five-gallon buckets.Employees used the solvent to clean the surface of the heads and toclean the grease off their hands (Tr. 235-236, 505, 507-508). Thesolvent and nitric acid in the buckets looked the same (Tr. 507).The primary concern of ? 1910.1200(f)(5)(i) is to make sure that noconfusion develops among employees concerning which chemicals arepresent in which container (Tr. 90). In this situation of nitric acidand Stoddard Solvent being stored in identical unlabeled buckets,injuries that could result are serious burns from either an acid or acombustible liquid (Tr. 91).Sweeney observed a red \”Justrite Self Closing Rinse Tank\” that containedapproximately 2 1\/2 gallons of Stoddard Solvent. It was unlabeled (Ex.C-8; Tr. 93-94). The material safety data sheet (\”MSDS\”) for StoddardSolvent states that the flash point is 100 F., one degree from theflammable category (Ex. C-3; Tr. 94). An employee could reasonablyassume that the solvent was water-based or a noncombustible cleaningsolution and fail to take precautions against its flammability. Therinse tank was located near an area where welding and grinding tookplace. The hazard is third-degree burns (Tr. 93-95).Trinity was in serious violation of ? 1910.1200(f)(5)(i).Item 5b_Alleged Violation of 29 C.F.R. ? 1910.1200(f)(5)(ii)_The Secretary alleges that the conditions set forth in item 5a were alsoin violation of ? 1910.1200(f)(5)(ii), which states:[T]he employer shall ensure that each container of hazardous chemicalsin the workplace is labeled, tagged or marked with the followinginformation:(ii) Appropriate hazard warnings.Sorgs and Calhoun testified that there were no warning labels on theopen-topped buckets containing solvent or nitric acid (Tr. 236, 508).Sweeney observed no hazard information label of any kind attached to thetank containing Stoddard Solvent–a combustible liquid (Ex. C-8; Tr. 96,98). It is an irritant to the eyes and inhalation of high concentrationsof the vapor can cause central nervous system depression effects anddamage to the kidneys (Tr. 97).Trinity was in serious violation of ? 1910.1200(f)(5)(ii).Items 6a and 6b:Alleged Violations of_29 C.F.R. ?? 1910.1200(h) and 1910.1200(h)(2)(ii)_Two, alleged violations of the hazardous communication standard havebeen grouped as subparts (a) and (b), because they involve similar orrelated hazards._Subpart (a) _The Secretary alleges that Trinity violated ? 1910.1200(h) due to thefact hazard communication training was not provided to employees at thetime of their initial assignment. It is alleged that some, employeeswere not trained until 18 months after exposure. Section 1910.1200 (h)requires the employer to provide information and training as specifiedin 29 C.F.R. ? 1910.1200(h)(1) and (2) on hazardous chemicals in theirwork area at the time of their initial assignment and whenever a newhazard is introduced into their work area.Sweeney determined that four employees had received no hazardcommunication information and training until more than one year afterthey were first hired and assigned to work as welders. Twenty-two otheremployees received no hazard communication training until more than sixmonths after they were hired (Tr. 100). At the time of the inspection,Trinity was not providing hazard communication training to now employees(Tr. 101). Trinity initiated the showing of videotapes on the hazardouscommunication standard after the inspection.Many of the employees perform welding or grinding or both, which exposesthen to metal fumes and metal dust (Tr. 101, 280). Sweeney made a listof 35 employee’s names job titles, dates hired and dates trained,showing that they did not receive training at the time of their initialassignment (Ex. C-3: Tr. 101). Chemicals that the employees were exposedto included Stoddard Solvent, copper fume, manganese fume, nickel,chromium, nitric acid, and silica sand (Tr. 104). The violation has beenestablished._Subpart (b)_The Secretary alleges that Trinity violated ? 1910.1200(h)(2)(ii) [[5]]by failing to include in its hazardous communication training thephysical and health hazards of the I chemicals in the work area Thecited standard requires that such training includes the physical andhealth hazards of the Sweeney interviewed more than 20 employees andattached air sampling equipment to many of them. He learned that theyhad received no training about the specific potential health hazards,potential physical hazards, or the signs and symptoms of exposure thatwere related to chemicals such as Stoddard Solvent, nitric acid, andwelding fumes from metals including copper, manganese, nickel. chromium(Tr. 104). Trinity’s written hazard communication program recognizedrequirements for training employees about physical and health hazards ofchemicals to which they are exposed in the course of their employment(Ex. C-3, pp. 39, 41; Tr. 105). Despite this awareness, employees werenot trained as required by the standard (Tr. 302, 509). The violationhas been established.Employees untrained as required by the cited standards will not be awareof the potential health and physical hazards, signs and symptoms ofexposure, precautions to be taken, and able to recognize the onset ofsymptoms which are, in fact, job related (Tr. 106-107). Employees atTrinity were exposed to silica dust which can cause a debilitating lungdisease called \”silicosis.\” Nitric acid exposure can cause permanenttissue damage. Employees were exposed to nickel, chromium, and methylenechloride which are carcinogens. Sweeney recorded high employee exposuresto copper fumes and manganese, which present a number of differenthealth hazards (Tr. 107- 110).Items 6a and 6b were grouped for purposes of classification and penalty.The violations were serious.\”_OTHER\” CITATION_Item 1_Alleged violation of 29 C.F.R. ? 1910.151(c) _The Secretary alleges Trinity was in violation of ? 1910.1511(c) forfailure to have suitable facilities for quick drenching or flushing ofthe eyes and body. This standard provides:Where the eyes or body of any person may be exposed to injuriouscorrosive materials, suitable facilities for quick drenching or flushingof the eyes and body shall be provided within the work area forimmediate emergency use.Sweeney, through interviews with management, the union and employees,determined that the eye wash fountains in both the packing room of planttwo and the electroplating area of plant one were shut off in January1988, because there was a concern that an organic solvent might becontaminating the water (Tr. 112). Beginning in February 1988, and upuntil May 1, 1989, there were temporary eye wash stations installed, butthey were only capable of providing an eye flush for only two minutes(Tr. 111-112, 510-512).Trinity was aware the temporary eye wash stations were inadequate. Thematerial safety data sheet for nitric acid maintained by Trinity statesthat, if nitric acid does got into the eyes, an absolute minimum of 30minutes of flush should be provided to the eyes (Ex. C-2; Tr. 112).Nitric acid was used in both the electropolishing area and in thepickling area (Tr. 113). The violation has been established.The violation was classified as other than serious since Trinity didhave an eye wash fountain which could provide some flushing for a coupleof minutes. Having at least two minutes of flushing might preventpermanent, irreversible damage to the eyes; but there might be areversible and temporary but painful irritation to the eyes (Tr. 113).Item 2_Alleged Violation of 29 C.F.R. ? 1910.1200(g)(1) _The Secretary asserts that Trinity was in violation of ? 1910.1200(g)(1)for failure to have a material safety data sheet for insulation fromOwens-Corning Fiberglass Corporation. Section 1910.1200(g)(1) provides:Chemical manufacturers and importers shall obtain or develop a materialsafety data sheet for each hazardous chemical they produce or import.Employers shall have a material safety data sheet for each hazardouschemical which they use.An employee was exposed to irritating fumes when he performed welding onmetal which was in contact with #703 insulation manufactured by Owens-Corning Fiberglass Corporation. When Sweeney asked Robert Essex, thepersonnel manager, for the MSDS for this product, Essex stated thatTrinity did not have one. Owens-Corning faxed the MSDS to Trinity on May17, 1989 (Ex. C-3; Tr. 115). The violation has been established.The violation was classified as other than serious, because the heatfrom welding causes some materials such as hydrogen chloride and carbonmonoxide to be released, resulting in irritation to the employee but noserious adverse effect (Tr. 116)._DOCKET NO. 89-2169_Dennis Collins has been a safety compliance officer with OSHA since 1972(Tr. 119). He conducted inspections of Trinity in 1988 and 1989 (Tr.122). When he arrived at Trinity on May 11, 1989, he calculatedTrinity’s LWDI to be 13.6. The national average is 4.2 (Tr. 124)._SERIOUS CITATION_Item 1_Alleged Violation of 29 C.F.R. ? 1910.22(c)_The Secretary contends Trinity was in violation of ? 1910.22(c), becausethe guardrail around a machine pit was missing a midrail on one section.The standard provides:Covers and\/or guardrails shall be provided to protect personnel from thehazards of open pits, tanks, vats, ditches, etc.There is a pit beneath the rear of flanger nine in plant two. At thetime of the inspection, there was a guardrail around it, but there wasno midrail on one section (Ex. C-11; Tr. 132). The pit was in excess ofsix feet in depth and the area around the pit was slick (Ex. C-10; Tr.133-135).Leaman Calhoun operated flanger nine. He verified that there was nomidrail at the time of the inspection (Tr. 214-215). He further statedthat the area around the pit was slippery because of the grease that waspumped onto the slide at the back of flanger nine (Tr. 216). A noticeposted on the machine directed the operator to pump grease onto theslide at least once a day. The notice was posted by maintenance man BobOtle, at the direction of Geoff Langford, the plant superintendent (Ex.C-9; Tr. 214-215). Due to the grease pump’s location, Calhoun could onlylubricate the machine by crawling inside the guardrail (Tr. 214). Wheninside the railing, he was not tied off or provided with any other formof fall. protection (Tr. 217).Employees were exposed to a fall hazard because of the lack of a midrailaround the slippery area of the pit of flanger nine (Tr. 135). Thestandard guardrail should have a 42-inch top rail and a midrail inbetween the rail and the floor (Tr. 132). Employees could suffer bonefractures if they fell Into the pit (Tr. 135). Trinity was in seriousviolation of ? 1910.22(c).Item 2_AlIeged Violation of 29 C.F.R. ? 1910.157(g)(1)_The Secretary alleges Trinity was in violation of ? 1910.157(g)(1) forfailure to instruct employees in the general principles of fireextinguisher use.Section 1910.157(g)(1) provides:Where the employer has provided portable fire extinguishers for employeeuse in the workplace, the employer shall also provide an educationalprogram to familiarize employees with the general principles of fireextinguisher use and the hazards involved with incipient stage firefighting.Fire extinguishers were available for use throughout the facility (Tr.137-138). Production Manager Mark Lang and Manager Geoff Langfordinformed Collins that Trinity expected employees to be able to fightminor fires using fire extinguishers. Lang and Langford both admittedthat Trinity employees were given no training in the use of fireextinguishers (Tr. 138).Sorgs, Calhoun, and Andy Irick all testified that there had been minorfires in plants one and two and that employees were expected to use fireextinguishers (Tr. 217, 267, 489). All three employees stated that theyhad not received any training in the use of fire extinguishers (Tr. 216,267, 489).There were three types of fire extinguishers in plant two: dry chemical,halon, and carbon dioxide. The lack of training in general principles ofuse could result in misuse of equipment, misjudgment of a hazardoussituation, misapplication of equipment, and lack of awareness of thepotential of the materials being exposed to heat. Potential injuriesfrom this lack of training are serious burns (Tr.140-142).Trinity was in serious violation of ? 1910.157(g)(1).Item 3_Alleged Violation of 29 C.F.R. ? 1910.178(a)(4) _Section 1910.178(a)(4) of 29 C.F.P. provides:Modifications additions which affect capacity and safe operation shallnot be performed by the customer or user without manufacturers priorwritten approval. Capacity, operation, and maintenance instructionplates, tags, or decals shall be changed accordingly.Trinity was using a diesel Clark lift truck with an auxiliarycounterweight on the back end (Ex. C-13; Tr. 143). The weight was addedon the back end to keep it from raising up. Collins explained that theadded counterweight created a teeter-totter effect on the truck’scapacity. According to Collins, an added counterweight can affect thesafe operation in a number of ways, including truck design, truckcapacity, and the vehicle’s mast (Tr. 145-146).Felan Roaden, a forklift operator in plant two used the lift truck topick up the largest heads from flanger ten (Tr. 334-305. 308). Even withthe added counterweight the back wheels of the truck occasionally wentoff the ground (Tr. 318).The truck had a posted capacity of 10,000 pounds at a 24-inch loadcenter (Tr. 146). Collins contacted Portman Equipment, the local Clarkdealer, concerning this particular vehicle and the counterweight (Tr.147). He received verbal confirmation and a May 25, 1989, letter, whichPortman had sent to Geoff Langford, the plant manager, that it was notan approved counterweight and that the vehicle in question could not beupgraded without changing the steer axle (Ex. C-14, Tr. 147). Trinitywas aware that the counterweight had been added in order to increase theload capacity. Trinity’s failure to obtain prior written approval isevidenced by the May 25, 1989, letter (Ex. C-14).Injuries which could result from the violation are fractures, seriouscrushing injuries and death (Tr. 149). Trinity was in serious violationof ? 1910.178(a)(4).Item 4_Alleged Violation of 29 C.F.R. ? 1910.178(1) _The Secretary alleges that Trinity violated ? 1910.178(1) by failing toproperly train operators of powered industrial trucks. Section1910.178(1) provides:Only trained and authorized operators shall be permitted to operate apowered industrial truck. Methods shall be devised to train operators inthe safe operation of powered industrial trucks.According to Collins, while truck operators did receive some training,it was inconsistent and \”badly ineffective\” (Tr. 151, 157). Trainingconsisted of giving employees a book issued by Clark Equipment, whichcontains rules for operating the truck. Employees were then given a testthat had a combination of multiple choice and true\/false questions andhad to get a grade of 70% or higher on the test (Tr. 152).None of the employees Collins interviewed knew how to calculate whetheror not the load to be lifted would be within the load capacity of thevehicle (Tr. 153). Lift truck drivers Felan Roaden, Robby Smiddy,Richard Davidson, and Randall Gulley, all testified that they determineda truck’s capacity by whether the rear wheels came off the ground whenmaking a lift (Tr. 309, 328, 336, 343). By the time the rear wheels arelifted, the truck’s capacity is far exceeded (Tr. 154). Collins observedseveral violations of safe truck procedures, including approachingpersons with a load, loads elevated into the air, and modified vehicles(Tr. 154-155). Operators were unaware of the requirement of safetyplatforms when lifting personnel (Tr. 156). Trinity’s trainingprocedures in practice did not conform to Trinity’s corporate safetytraining manual (Tr. 157-158). An adequate training in lift trucks wouldinclude safety operating rules, basic lift truck principles, andspecific hands-on training (Tr. 159-160).Accidents which could result from the failure to train employees in thesafe operation of lift trucks include loss of control of the vehicle andtipping over the lift truck. Serious injuries and death could resultfrom such accidents (Tr. 160-161). The Secretary has established thatTrinity was in serious violation of ? 1910.178(1).Item 5_Alleged Violation of 29 C.F.R. ? 1910.178(m)(1)_Section 1910.178(m)(1) provides:Trucks shall not be driven up to anyone standing in front of a bench orother fixed object.While Collins was inspecting the weld bay of plant two, he observedClark lift truck Y1191 carrying a large flat plate up to the Pandjirisseamer. The operator of the seamer was positioned at the machine whilethe lift truck operator approached (Exs. C-15, C-16; Tr. 162). Theoperator of the was driving the truck at an angle to the unit. As heapproached the unit, the operator cut the truck to the right which madethe large steel plate swing around. The truck and large steel plate weredriven toward the operator of the seamer (Tr. 163). The operator toldCollins that he had never been instructed to do otherwise (Tr. 164).Employees standing in front of a fixed object while a lift truckapproaches are exposed to significant impact hazard, which could resultin severe crushing injuries or death (Tr. 165). Trinity was in seriousviolation of ? 1910.178(m)(1).Item 6_Alleged Violation of 29 C.F.R. ? 1910.178(o)(2)_The citation describes the alleged violation of ? 1910.128(o)(2) as follows:(a) In plant #2, the diesel Clark lift truck 667 (SN. Y2030-52-3077) hada rated capacity of 20000# at 24\” load center and a maximumcounterweighted capacity of 30000# at 24\” center. The maximum liftsperformed were 18000 # at 120\” which exceeded the trucks presentcapacity and maximum capacity.The cited standard provides:Only loads within the rated capacity of the truck shall be handled.The largest lift truck in plant two was the diesel Clark truck modifiedwith an added counterweight, which was discussed in item three of thiscitation (Tr. 165-166). The largest lift that the truck would have tomake was a head weighing approximately 18,000 pounds with a load centerof 120 inches (Tr. 167). Prior to May 1989, there were no markings onthe heads to indicate what their weight was, but the heads varied insize from one foot up to twenty feet Tr. 310-311). Roaden used theforklift with the unapproved counterweight to lift the heavier headsfrom flanger ten (Tr. 308).In support of the allegation, the Secretary points out that on May 25,1989, Portman Equipment informed Geoff Langford that the counterweightpresently on the Clark C500-Y200, S\/N:Y2030-52-3077, was unacceptable,and that an approved additional counterweight would give the truck acapacity of 8,000 pounds at 120-inch load center (Ex. C-14). She thenstates that the capacity was 10,000 pounds less than the heaviest headthat Roaden was expected to lift using the truck with the unacceptablecounterweight. The letter’s reference to a capacity of 8,000 pounds hasreference to increasing the rated capacity by that amount by changingthe steer angle and adding 2,200 pounds of counterweight. In any thatmodifications is of no relevance since it had not been accomplished.The posted capacity for the diesel Clark truck was 20,000 pounds at a24-inch lead center (Tr. 146). The added counterweight, which was notacceptable to the manufacturer (Ex. C-14), would have affected thetruck’s actual lifting capacity. Collins testified (Tr. 145-146):Then, the second problem you create by putting that counterweight on isif you don’t know how much that weight is, and you don’t do anycalculations as to where you’re placing that counterweight on thatvehicle, then you really don’t have any idea what your capacity is onthe truck any longer.You are required to have a chart on the vehicle which gives you thecapacity of the vehicle. Once you’ve done that, the capacity chart is nolonger valid.The actual lifting capacity of the Clark truck is unknown as a result ofthe unacceptable modification. Roaden testified that, even when thecounterweight was added, the back wheels of the truck would on occasionsrise off the floor when lifting the larger heads (Tr. 318). This is aclear indication that the rated capacity of the truck was beingexceeded. The violation has been established.Overloading a vehicle results in a loss of good contact with the wheelson the back end of the truck, which steer the vehicle. This could causethe truck to strike a person or to lose a load which could strike aperson. The stability of the vehicle is damaged because, if the operatorhas to stop or manuever or hits chuck holes or any other uneven surface,he may lose control of the vehicle or the load. This could result indeath or serious injury if accident occurred (Tr. 172-173). Trinity wasin serious violation of ? 1910.178(o)(2).Item 7_Alleged Violation of 29 C.F.R. ? 1910.179(e)(4)_The Secretary alleges that the 7 1\/2-ton Northern crane at the west endof plant two was not equipped with rail sweeps on its bridge. Section1910.179(e)(4) provides:Bridge trucks shall be equipped with sweeps which extend below the topof the rail and project in front of the truck wheels.The 7 1\/2-ton Northern crane located in the shear bay of plant two didnot have a rail sweep extending below the top of the railing and infront of the truck wheels (Ex. C-18; Tr. 177). The sweep is intended toprevent the crane from riding over any material and jolting the craneand losing the load (Tr. 177). A violation has been established since ?1910.179(e)(4) requires that bridge trucks shall be equipped with sweepswhich extend below the top of the rail and project in front of the truckwheels.The lack of a sweep could cause cranes to jolt and dislodge the load. Inthe event the load dislodged, any person struck by the load wouldsustain serious fractures, crushing injuries, and possibly death (Tr.180-181). Trinity was in serious violation of 29 C.F.R. ? 1910.179(e)(4).Item 8_Alleged Violation of 29 C.F.R. ? 1910.179(j)(3)_Trinity is charged with a violation of ? 1910.179(j)(3)[[7]] for failureto have a complete periodic inspection performed on the overhead cranesin plant two. Section 1919.179(j)(ii)(b) provides for \”periodicinspection–1 to 12-month intervals.\”Collins reviewed the inspection records for plants one and two anddiscovered that in plant two, only monthly inspections of the runningrope and hook were being performed. Langford admitted to Collins thatTrinity was performing monthly inspections of high use items and was notconducting complete annual inspections (Tr. 182). The cranes were usedby employees to change the chucks on the spin lathe, change the rolls onflangers, line up heads, and flip heads over (Tr. 216-219, 492).A complete periodic inspection includes checking for loose or damagedparts, that bolts are tight, that contacts and controls are not pitted,and that brakes are in good condition. It requires a thoroughexamination and recheck and a functional test of the unit. (Tr. 183-184).Failure to make complete periodic checks could result in problems withthe crane not being discovered until there is a failure, exposingemployees to being struck by a part of the crane if it fell or beingstruck by the load if the load fell. Results would be serious fractures,crushing injuries, and possibly death (Tr. 184).Trinity was in serious violation of ? 1910.179(j)(3).Item 9_Alleged Violation of 29 C.F.R. ? 1910.179(n)(4)(i)_Section 1910.179(n)(4)(i)[[8]] requires that, at the beginning of eachoperator’s shift, the upper limit switch of each hoist shall be triedout under no load. The Secretary alleges that Trinity was in violationof the standard, because Trinity had no procedures established to checkthe upper limit switch.An upper limit switch is a shut-down device that prevents the hook fromrunning up into the drum of the crane. If the hook is run into the drum,the load could be displaced out of the hook. Lang and Langford admittedthat they had no procedure requiring employees to check the switch (Tr.187). Calhoun testified he had never been instructed to check theswitch at the beginning of his shift (Tr. 219). The violation has beenestablished.If the load fell on anyone, the results would be severe fractures,crushing injuries, or death (Tr. 188). Trinity was in serious violationof ? 1910.179(n)(4)(i).Item 10_Alleged violation of 29 C.F.R. ? 1910.184(c)(9)_Section 1910.184(c)(9)[[9]] requires that, whenever any sling is used,all employees shall be kept clear of loads about to be lifted and ofsuspended loads. The Secretary alleges that Trinity was in violation ofthe standard during the process of moving and repositioning a welder inplant one, north bay.During his inspection, Collins observed and photographed a craneoperator walk beneath the Lincoln subarc welder a number of times whileremoving the extender from it in plant one (Exs. C-19, C-21; Tr.190-192). The equipment was attached to the hook of an overhead craneusing a single chain (Ex. C-20; Tr. 191).Because of the height of theequipment for virtually the entire time the employee was moving it,hewas in a position where he could be struck by it if it fell (Tr. 191).Andy Irick, a mechanic at plant one, testified that the employee shownPositioning the subarc welder in complainant’s exhibits 19 and 21 wasGeorge Kitchen, who operates the welder, and it was common for employeesto be under it while lining it into position (Ex. C-19, C-21; Tr.269-270). Irick identified the man with the clipboard shown in thephotograph as Bob Sexton, the foreman (Ex. C-19; Tr. 269). Collinstestified that Mark Lang, production manager, agreed the condition was ahazard; but Lang did not think Trinity could position the welder withouthaving a man under it (Tr. 194). Collins indicated that tag lines couldbe used to keep it from swaying while moving it into position (Tr. 194).Trinity was aware of the hazard, because the corporate safety manual hada rule that employees are to be kept clear of suspended loads (Tr. 195).The violation has been established.The employee was exposed to the potential of having the equipment fallon him. This could have resulted in very serious crushing injuries witha very high likelihood of death. The violation was serious.Item 11_Alleged volition of 29 C.F.R. ? 1910.212(a)(1) _Section 1910.212(a)(1) [[10]] requires that one or more methods ofmachine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, fl ying chipsand sparks. Collins discovered 12conditions which it is alleged were inviolation of ? 1910.212(a)(1). The 12 conditions were designated as (a)through (1)._Instance (a)_Collins observed an employee operating Southwork press 1421, amechanical power press in plant one (Ex. C-38; Tr. 349-350). An ingoingnip point was created when the ram was moving back. The ram moves in avertical direction into contact with a piece of material to form it andthen retracts back up toward the frame of the machine. A nip point wascreated between the moving ram and the stationary frame of the machineduring the upstroke of the machine (Tr. 350). The operator’s hands wouldgenerally be within 10 to 12 inches of the nip point; but, on occasions,they would be closer (Tr. 400). The operator would be constantly turningthe piece of metal on the press and sticking his hands within the partto feel how it was being pressed (Tr. 400). The hazard to which theoperator was exposed was getting his fingers caught in the nip point. Insuch an event, the operator could severely crush or fracture hisfingers. The operator could be protected by the use of barrier guards,pull-backs or some type of restraint device to hold the operator’s handsaway (Tr. 351-353, 404)._Instance (b)_Collins observed a San Angelo Foundry and Machine company roll former inthe Hamilton Bay of plant one. The roll former did not have guarding toprevent the operator from being pulled into the inrunning nip pointscreated by the rolls (Ex. C-30; Tr. 353-354). Andy Irick and anotheroperator both told Collins that the machine had been operating without apanic bar and with no other guarding until a week before the inspection(Tr. 354-355). The panic bar was not adequate to prevent an employeefrom being exposed to the inrunning nip points created by the rolls (Tr.355-356). The panic bar would not prevent an injury from happening. Itwould allow the machine to shut down should the employee get caught inthe nip points (Tr. 356).In the event of in accident, employees would likely experience fingerfractures and severe crushing injuries. Collins stated that barrierguards and restraints were methods of guarding (Tr. 356-357)._Instance (c)_A belt sander was located on the blue seamer in the weld bay of planttwo (Ex. C-22; Tr. 358). Leaman Calhoun told Collins during theinspection that an operator was grinding the edge of a piece of metal bysticking it down into the belt. The employee confirmed this to Collinsand said that he had done it on other occasions as well (Tr. 359).The belt and pulley were inadequately guarded. A nip point was createdwhere the belt was riding over the pulley. Injuries that can occur fromnip point accidents are lacerations, severe abrasions and fractures (Tr.360)._Instance (d)_Collins observed a Webb roll former in the north bay of plant one. Theroll former was equipped with a panic bar but did not have anyprotection to prevent access to the nip point created between theinrunning rolls (Ex. C-31; Tr. 363). Irick stated that he and otheremployees had used the roll Former in the five months prior to theinspection (Tr. 272)._Instance (e)_Trinity had Century Shear #1473 in plant one (Ex. C-32; Tr. 366).Collins observed an employee with his left hand under the awarenessbarrier on the shear (Tr. 367). The operator was exposed to two hazards:the actual blade of the shear and the \”holddowns\” [[11]] or clamps thatcome down and hold the metal in place (Tr. 366). Collins was told thatan employee had been injured using the Century Shear (Tr. 369). On July26, 1985, an employee had his left middle finger tip crushed by the\”holddown\” clamp on the metal shear in plant one (Ex. C-39). Collinsstated that a full barrier guard would prevent contact with the bladeand the \”holddowns\” (Tr. 371)._Instance (f)_Leotis Whitaker was operating flanger ten in plant two during theinspection. The flanger generated long jagged pieces of metal (Exs.C-28, C-29; Tr. 371).Whitaker stated that he had been cut an burned by curls and chips fromthe cutting tool on flanger ten (Tr. 373). He had received lacerationsin the hands and right temple area of the head (Tr. 246). Hispositioning was restricted because of a nearby wall (Tr. 247). Langfordtold Collins that he was aware of the problem and wanted to redesign thetooling (Tr. 373)_Instance (g)_Flanger ten, which was in use at the time of the inspection, had noguarding for the inrunning nip point between the side between the sideroll and the head (Tr. 382-383). Calhoun and Whitaker testified that,when using a grease stick or brush to grease the side rolls while theflanger was running, they had had the brushes or sticks caught andpulled through the roller (Tr. 224-225, 248). Employees could receivecrushing injuries from being drawn into the nip points (Tr. 376-377)._Instance (h)_Flanger two also did not have guarding for the inrunning nip pointsbetween the side roll and the head, and the back roll and the head fromthe flanging side. The operator was exposed to severe crushing injuries(Tr. 382-383)._Instance (i)_Collins observed a Bullard edge trimmer #42 in plant two in operation byan employee using a hand grinder. The employee was exposed to metalshavings that were spinning out of the middle of the machine (Ex. C-26;Tr. 384-385). The operator could have been struck by the metal shavings,resulting in severe lacerations (Tr. 384). Langford told Collins thatTrinity and a unit to contain the shavings. the operator Collinsobserved was not the regular operator and he had not been informed thathe was to use the unit (Tr. 387)._Instance (j)_The #65 polisher had no guarding for the unused portion of the sandingbelt, including the incoming nip points created at each pulley (Ex.C-25; Tr. 387). Calhoun stated that the operator does not stay in oneplace when operating the polisher but would go to the front to getequipment or go to the right to run the other machine (Tr. 227). Theoperator would be exposed to the contact with the inrunning nip pointshould he trip and fall within two or three feet of the belt. In such anevent, the employees would likely suffer broken fingers and severelacerations (Tr. 388-389)._Instance (k)_Flanger three in plant two had no guarding for the inrunning nip pointscreated between the side roll and the head between the back roll and thehead from the flangingside of the machine. The operator was exposed tocontact with the inrunning nip points. The operator has to lubricate theside rolls on a routine basis while the unit is operating. Inadvertentcontact could result in fractured fingers and lacerations (Ex. C-23; Tr.375-379)._Instance (1)_Flanger one in plant two had no guarding on the inrunning nip points.Flanger one in plant two was different from flanger three but operatedthe same as flanger three (Tr. 376). The same nip points were createdand were unguarded. The operator was exposed to contact with theinrunning nip points. As in the case of flanger three, inadvertentcontact could have resulted in fractured fingers and lacerations (Ex.C-24; Tr. 375-379)Section 1910.212(a)(1)[[12]] is a general, introductory standard settingforth guarding requirements to \”all machines.\” _Faultless Div., Bliss &Laughlin Industries, Inc. v. Secretary of Labor,_ 674 F.2d 1177 (7thCir. 1981). In order to establish a violation of ? 1910.212(a)(1), theSecretary must first prove the existence of a hazard which is revealed\”by how the machine functions and how it is operated by the employees.\”_Stacy Mfg. Co.,_ 82 OSAHRC 14\/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ?25,965 (No. 76-1656, 1982). The Secretary has proven in each instancethat machine guarding was either not provided or was inadequate and thatthe absence of the guarding created a hazard for employees. A seriousviolation of ? 1910.212(a)(1) has been established.Item 12_Alleged violation of 29 C.F.R. ? 1910.217(b)(3)(i)_The Secretary alleges that the Southwork press #1421 had no singlestroke mechanism and was in violation of ? 1910.217(b)(3)(i), whichprovides:Machines using full revolution clutches shall incorporate a singlestroke mechanism.Collins observed the Southwork press and interviewed its operator, whoshowed Collins how the press would cycle over and over again. The presswas a continuous mechanism but did not have a single stroke (Ex. C-38;Tr. 391-393). The Southwork press is a hand-fed operation, which exposesemployees to having their fingers and hands crushed (Tr. 395). Trinitywas in serious violation of ? 1910.217(b)(3)(i).Item 13_Alleged Violation of 29 C.F.R. ? 1910.217(c)(1)(ii)_The Secretary asserts that the Southwork press #1421 had no point ofoperation guarding as required by ? 1910.217(c)(1)(i). This standardprovides:It shall be the responsibility of the employer to provide and insure theusage of \”point of operation guards\” or properly applied and adjustedpoint of operation devices on every operation performed on a mechanicalpower press. See Table O-10.The standard requires the employer to provide and ensure the usage of\”point of operation guards\” or properly applied point of operationdevices on every operation performed on mechanical power presses.This item involves the same Southwork press discussed previously. Theoperator places the piece of metal between forming dies. The upper dieis on a ram. As it comes down, it strikes the metal and presses itagainst the lower die forming the metal into a shape (Ex. C-38; Tr.398). The part size Collins observed was 23 by 23 by 23 inches in atriangular shape. The operator’s hands were held within 10 to 12 inchesfrom the pinch point and within 20 inches of the die. On occasion, hishands would be closer. At times the operator would stick his hand withinthe part that he was forming to feel how it was being pressed. (Tr.400). Collins stated that a pullback or restraint device could be usedto prevent exposure to the point of operation. The operator was exposedto severe crushing injuries (Tr. 401). Trinity was in serious violationof ? 1910.217(c)(1)(i).Item 14_Alleged Violation of 29 C.F.R. ? 1910.219(e)(3)(i)_The Secretary alleges that the inspection revealed three instances wherebelts were not enclosed by guards. The standard in issue, ?1910.219(e)(3)(i), provides:Vertical and inclined belts shall be enclosed by a guard conforming tostandards in paragraphs (m) and (o) of this section.The Secretary cited three instances of conditions that she asserts areviolative of this standard. Instance (a) involves the Bullard edgetrimmer #42 previously cited in item 11 as instance (i) The main driveof the trimmer is located to its left of the trimmer as shown in ExhibitC-26. The drive belts have a three-sided guard, covering the outside ofthe belt at the top and bottom along the edge. The belt was open betweenthe existing guard and the machine frame. Collins stated that theconfiguration of the guard and belt created a false sense of security,because the belt is not readily visible to anyone looking at the guard(Tr. 403-404).[[13]] Collins testified that an employee near the beltdrive is exposed to possible fractures, crushing injuries of thefingers, and possible amputation. The belt drive could be guarded byadding guarding to the inside section.Instance (b) involves a flux vacuum in the weld bay of plant two. Oneside of the vacuum was guarded and the edges were guarded, but the otherside was open (Ex. C-40; Tr. 406). The start switch is on the motor,which is directly in front of the belts. An employee could inadvertentlystick his fingers or hands into the belt while reaching in for theswitch (Tr. 408-409).Although not in use when observed by Collins, Langford admitted that theflux vacuum was used (Tr. 409). The injuries to employees if their handswere caught in the belt drive would be fractures and crushing injuries(Tr. 410). The belt drive could be guarded by bringing the guard aroundto cover the inside section (Tr. 410).Instance (c) involves the air compressor in plant two. Its belt drivewas guarded with an expanded metal guard. The guard had one-inchopenings in the mesh which were large enough that an employee’s fingerscould accidentally stick through. The guard was not supported along thebottom. The guard was close to the belt and pulley. It could be pushedinto the belt and pulley if one fell against it (Ex. C-41; Tr. 410).Collins stated that the hazard in each of these instances was thatemployees could get their hands and fingers caught in the unguardedbelts, resulting in fractures and crushing injuries (Tr. 409, 410, 412).The Secretary has failed to show sufficient employee exposure to the aircompression to reflect a hazard. Nothing in the testimony indicates thatthe method of operation of the air compressor exposes employees to theunguarded belts. Collins observed maintenance men within a few feet ofthe compressor. The Review Commission has stated, in addressing point ofoperation guarding, the following [_Rockwell International Corp._, 80OSAHRC 118\/A2, 9 BNA OSHC 1092, 1097-1098, 1980 CCH OSHD ? 24,979 (No.12470, 1980)]:The mere fact that it was not impossible for an employee to insert hishands under the ram of a machine does not itself prove that the point ofoperation exposes him to injury. Whether the point of operation exposesan employee to injury must be determined based on the manner in whichthe machine functions and how it is operated by employees.In the present case, employee exposure would most likely result from anemployee deliberately sticking his hands or fingers into the belts. TheSecretary has failed to establish that Trinity violated ?1910.219(e)(3)(i) with respect to the air compressor. The two violationsof ? 1910.219(e)(3)(i) were serious.Item 15_Alleged Violation of 29 C.F.R. ? 1910.219(f)(1)_Section 1910.219(f)(1)[[14]] requires gears to be guarded by a completeenclosure or by one of the methods specified in 29 C.F.R. ?1910.210(f)(1)(ii) and (f)(1)(iii). The Secretary alleges that the guardfor the cross feed drive gears on the spin lathe was not secured inplace. The evidence supports the Secretary’s determination.There was a set of drive gears for the cross feed on the spin lathelocated in plant two which had a plate lying on top of the drive gears.It was not secured in position. The guard had holes to permanentlyattach it, but it was not attached (Ex. C-27; Tr. 413). Calhoun, whooperated the spin lathe, testified that, when the equipment was inoperation, the guard was subject to slip off or slide. He was never toldby his supervisor to be sure the guard was secure (Tr. 233).The unsecured guard created a false sense of security by simply lying inposition rather than being held in an appropriate manner (Tr. 414-416).The violation exposed employees to the hazard of severe crushing injuries.Item 16_Alleged Violation of 29 C.F.R. ? 1910.303(b)(1)_Section 1910.303(b)(1) requires that electrical equipment shall be freefrom recognized hazards that are likely to cause death or seriousphysical harm to employees. The Secretary alleges a violation of thestandard, because there was evidence of arcing at the connection betweenthe grinder’s cord and the extension cord in the polish room.In the polish room behind polisher #65, there was a wall receptacle, anextension cord, and a hand grinder covered with conductive metal dustgenerated by the polishing operations. At the connection between thegrinder cord and the extension cord, there was observable electricalarcing going from the hot lead to the ground. It was shorting out due tohaving conductive metal dust in that area. When disconnected, there wereobservable burn marks in the connection between the two cords (Exs.C-41, C-43; Tr. 417-419). Exhibit C-42 (photograph) shows theaccumulation of metal filings on top of the receptacle box and cord.Exhibit C-43 (photograph) shows the burn marks oft the three-prong plugon the ground connection.An accident had occurred in plant one in February 1988. The accidentinvolved metal dust from polishing operations getting into 480-voltplugs, which were not appropriate for use (Tr. 421). Employees reportedthat the plugs were smoking and shorting out (Tr. 421). Despite this,some 15 months later in May 1989, Collins observed visible arcing due toconductive metal dust. The violation has been established.Employees were exposed to the hazard of having the electrical equipmentshorting out and receiving serious burns and shock. The violation wasserious.Item 17_Alleged Violation of 29 C.F.R. ? 1910.303(b)(2)_Section 1910.303(b)(2)[[15]] requires that listed or labeled equipmentshall be used or installed in accordance with any instructions includedin the listing or labeling. The Secretary alleges that a trouble lightrated for no more than a 75-watt bulb was used with a 200-watt bulb. Theevidence supports the violation.In plant one, north bay at column D6, a trouble light or drop light,which was marked as rated for no more than a 75-watt bulb, was beingused with a 200-watt bulb. Collins did not observe the light in use, butthe unit was still warm and the time he came into the area was the endof the shift (Tr. 422-423). Irick, who accompanied Collins as the unionrepresentative, testified that the drop lights were used regularly inthe cylinders so that one can see how to weld. At the time of theinspection, 75-watt bulbs were not provided. It had previously beenbrought to Trinity’s attention in safety walk-throughs that the bulbswere higher than the wattage for which the lights were rated. Theviolation has been established.The base of the light looked as if it had gotten hot and melted. (Tr.277, 424). The trouble light in use was not designed to have a 200-wattbulb. The metal shield, as a result of using a 200-watt bulb, is hotterthan one would expect and could result in employees receiving burns. Inaddition, the use of the large bulb was deteriorating the equipment and,over an extended period of time, could cause the unit to malfunction orshort out (Tr. 425).The violation was serious.Item 18_Alleged Violation of 29 C.F.R. ? 1910.304(a)(2)_Section 1910.304(a)(2)[[16]] requires that no grounded conductor may beattached to any terminal or lead so as to reverse designated polarity.The Secretary alleges two instances where extension cords had reversedpolarity. The evidence supports the violation.Collins found two conditions in which extension cords had reversedpolarity. The first condition was an extension cord in plant on,Hamilton bay at column B12, and second condition was an extension cordin plant two used to charge the scissor lift (Tr. 428, 431). Collinstested the cording Plant one, Hamilton bay, because its appearanceshowed it to be somewhat older (Tr. 429-430). He determined reversedpolarity by the use of a circuit tester (Tr. 428).The extension cord in plant two was also tested with a circuit tester.The extension cord had been used in the maintenance area of plant two tocharge the scissor lift and was plugged in (Tr. 431).In reversed polarity situations, the hot potential is placed on the caseof the equipment rather than on the switch loop. If there is noeffective ground, an employee could receive a serious shock orelectrocution (Tr. 432). The violation was serious.Item 19_Alleged violation of 29 C.F.R. ? 1910.304(f)(4)_Section 1910.304(f)(41) [[17]] requires that the path to ground fromcircuits, equipment, and enclosures shall be permanent and continuous.The Secretary alleges two instances where the extension cord had itsground prong removed or broken off. The evidence supports the violation.Collins found two conditions in plant one in violation of ?1910.304(f)(4). In the Hamilton bay at column B11, there was anextension cord in use which had the ground plug broken off, In the northbay, west end, there was an extension cord which ran out to the railcars that had its ground plug broken off. Although the cord in the northbay was not in use, it was plugged in and available for use. Theviolation has been established.Due to this condition, any current leakage to the external case of theunit could result in serious shock and electrocution.The violation was serious._WILLFUL CITATION_Item 1_Alleged Violation of 29 C.F.R. ? 1910.176(a)_The Secretary charged Trinity with a willful violation of 29 C.F.R. ?1910.176(a), which provides:Where mechanical handling equipment is used, sufficient safe clearancesshall be allowed for aisles, at loading docks, through doorways andwherever turns or passage must be made. Aisles and passageways must bekept clear and in good repair, with no obstruction across or in aislesthat could create a hazard. Permanent aisles and passages shall beappropriately marked.It was alleged that lift trucks in the back pad area were operated on arough surface containing many potholes. The evidence supports the violation.Collins inspected the back pad area, which is located to the rear ofplant two (Tr. 436). The condition of the back pad was extremely poor,with ruts and chuck holes (Tr. 437). Collins measured one chuck hole asbeing 32 by 64 inches and 10 inches deep (Tr. 439). Several lift truckswere in the area. The back pad was used as a storage area and thematerials were located in such a manner so as to define the operationalaisles for the area (Exs. C-34, C-35, C-36; Tr. 439). Section1910.176(a) applies even though the area is outdoors, because the\”aisles\” or \”passageways\” were permanent over a period of years andmaterial was handled by mechanical equipment. _Titanium Metals Corp. ofAmerica_, 77 OSAHRC 21\/A12, 5 BNA OSHC 1164, 1976-77 CCH OSHD ? 20,762(No. 15051, 1976).The back pad conditions had existed for approximately two years (Tr.337). Forklift Operator Felan Roaden had complained often about theconditions. After complaining, Trinity would fill a couple of the holeswith gravel. Roaden would usually have to complain again in about a week(Tr. 313). Robby Smiddy was a shipper and receiver in plant two. Hecomplained to Dale Bishop, supervisor Ira Brockman’s boss, about theconditions (Tr. 326-327). Richard Davidson, another shipper andreceiver, complained to Brockman about the potholes and ruts that hadbeen present in the back pad area for two years. Davidson stated thatthe \”answer I got was that Trinity didn’t like to spend money\” (Tr.337-338). Harry Sorgs stated that he had heard employees complainingabout the back bad area for the past several years, and that managementhad no response to employee complaints (Tr. 494-495).Roaden drove lift trucks in the back pad area with the Load elevated toavoid potholes. He never had a truck tip over but has lost a load afterhitting a pothole. On several occasions, whenever he hit a hole, theback end of the truck would come up, tipping the truck forward (Tr.315). Davidson experienced the same condition of having his truck tipforward and losing a load after hitting a hole (Tr. 338).Collins questioned Langford about the back pad area. Langford respondedby stating that he was not going to make any repairs until sometime inthe summer. Langford conceded that no interim measures had been taken toprotect the area by grading it out or by restricting it to only therough terrain lift trucks. The lift trucks operating in the area weretypical narrow-type trucks that operate in a plant on a concrete floor(Tr. 442-443). Langford’s only positive response to the complaint was toinstruct employees to be careful (Tr. 442-443).Lift trucks operating in the back pad were overloaded. Overloaded lifttrucks present serious hazards to the operators and people nearby. Theoverloading affects stability and gives less of a safety factor if thedriver has to stop. The hazards are increased when the lift truckoperates with numerous holes located on the surface on which the truckruns. The truck is more likely to overturn. When load is elevated toavoid the holes, some stability is lost and the likelihood of having aproblem or losing the truck or losing the load increases (Tr. 447). Theviolation has been established.The remaining question involves how the violation is to be classified.The Secretary argues that the violations should be classified aswillful. The term \”willful\” is not defined by the Act. The Commissionhas held that \”[a] violation is willful if it is committed voluntarilywith either an intentional disregard for the requirements of the Act orwith plain indifference to employee safety.\” _A. C. Dellovade, Inc.,_ 87OSAHRC 2\/A3, 13 BNA OSHC 1017, 1987 CCH OSHD ? 27,786, p. 36,341 (No.83-1189, 1987). Willfulness is conduct that results from a conscious,intentional or voluntary decision. _Stone & Webster Engineering Corp.,_80 OSAHRC 72\/D11, 8 BNA OSHC 1753, 1980 CCH OSHD ? 24,646 (No. 15314,1980). It is a state of mind that must be established by the Secretary.The evidence shows a clear pattern of voluntary or intentional disregardfor the requirements of the Act and plain indifference to employeesafety. This determination is based on the overall condition of the backpad area over an extended period of time, the number of hazards createdby the condition, the manner in which employees drove the trucks toavoid holes, the fact that employees had complained to management ofpersonnel on a number of occasions, and the fact that the plant managerhimself admitted his awareness of the condition yet chose to allow it tocontinue (Tr. 448-449). Trinity’s actions must be considered asintentional neglect of the conditions.The Secretary has established that Trinity chose consciously andintentionally to disregard the requirement of the standard, and actedwith plain indifference to the safety of its employees. It is especiallydeplorable because of the numerous employee complaints made to thesupervisory personnel. Trinity was in willful violation of ? 1910.176(a).Item 2_Alleged violation of 29 C.P.R. ? 1910.178(m)(12_)The Secretary charged a willful violation of 29 C.F.R. ?1910.178(m)(12), which provides:Whenever a truck is equipped with vertical only, or vertical andhorizontal controls elevatable with the lifting carriage or forks forlifting personnel, the following additional precautions shall be takenfor the protection of personnel being elevated:(i) Use of a safety platform firmly secured to the lifting carriageand\/or forks.(ii) Means shall be provided whereby personnel on the platform can shutoff power to the truck.(iii) Such protection from falling objects as indicated necessary by theoperating conditions shall be provided.Section 1910.178(m)(12) requires that industrial trucks used to liftpersonnel be provided with a firmly secured safety platform and a meanswhereby personnel on the platform could shut off power to the truck.Prior to OSHA commencing the inspection, the lifting of personnel oneither the forks or the Kelly jib, which is a lifting attachment and nota safety platform, was a routine general practice in the shipping andreceiving department for many years. Employees were instructed bysupervisors to engage in such procedure. It was the only method theyknew to elevate employees to secure the chains on the heads to beshipped. The standard requires a safety platform with standard guardrailso as to protect an individual being lifted to prevent falling off theforks or falling back into the mast and becoming caught in it (Tr. 450-451).On April 28, 1989, the company posted a notice to the effect thatemployees were not to be lifted on the forks of lift trucks (Tr. 451).This procedure was not changed until the warrant for inspection wasissued which was based on the union’s 43 complaints. The change cannotbe construed as voluntary. It was done as a result of Trinity’srealization that an inspection was going to be made of its facilities.When Collins observed the employees during his inspection, he noted thatthey were loading \”in kind of a confused manner and there were severalcomments to the effect that the reason they were having problems doingit was that they had never done it without riding up on the forks of atruck, and so they weren’t really sure what they were doing\” (Tr. 455).There was no safety platform at Trinity (Tr. 325, 334).Windows of the lunch room and of Langford’s office looked out upon theloading area (Ex. C-37; Tr. 500). Smiddy stated that it was not uncommonto have management personnel, including Brockman, Bishop, and Langfordto watch the loading from the lunch room (Tr. 325-326).Employees in maintenance were also lifted up on the forks of trucks (Tr.454). Sorgs stated that, \”Many times the maintenance man would have aforklift operator lift him up to the crane in the shop to do a minoradjustment or something\” (Tr. 501). Sorgs observed an employee straddlethe two forks and lean against a hook attachment on the front while hewas lifted by the forklift operator (Tr. 501).Employees elevated by lift trucks without a firmly secured safetyplatform are exposed to falling off. They are also exposed to gettingcaught in the mast of the truck and being pulled into the chains whichraise the mast. Possible injuries include fractures, concussion, andcrushing injuries (Tr. 45).Trinity was in willful violation of ? 1910.178(m)(12). Trinity showedintentional disregard for the requirement of the Act and plainindifference to employee safety in allowing, even instructing, employeesto be elevated on forklifts without safety platforms. This practice hadcontinued for a number of years under the observation of managementpersonnel._\”OTHER\” CITATION_Item 1_Alleged Violation of 29 C.F.R. ? 1910.304(e)(1)(iv)_The Secretary charged Trinity with a violation of ? 1910.304(e)(1)(iv)which provides:Overcurrent devices shall be readily accessible to each employee orauthorized building management personnel. These overcurrent devices maynot be located where they will be exposed to physical damage nor in thevicinity of easily ignitable material.This section requires overcurrent devices for circuits rated 600 volts,nominal, or less be readily accessible to each employee or authorizedbuilding management personnel.The disconnect box for the flanging bay crane in the plant twomaintenance department was in an area cluttered with pipe, machineryparts, boxes, and cartons (Tr. 461-462). The overcurrent devices werenot readily accessible to employees. Trinity was in other-than-seriousviolation of ? 1910.304(e)(1)(iv).Item 2_Alleged Violation of 29 C.F.R. ? 1910.305(b)(2) _Section 1910.305(b)(2) of 29 C.F.R. provides:All pull boxes, junction boxes, and fittings shall be provided withcovers approved for the purpose. If metal covers are used they shall begrounded. In completed installations each outlet box shall have a cover,faceplate, or fixture canopy. Covers of outlet boxes having holesthrough which flexible cord pendants pass shall be provided withbushings designed for the purpose or shall have smooth, well-roundedsurfaces on which the cords may bear.The standard requires that each outlet box in completed installationshave a cover, faceplate or fixture canopy.In the North Bay at the west end of plant one, an electrical box on theback side of the polishing roll transformer did not have a cover on it.The interior wiring was exposed (Tr. 464-465). The wiring was hot. Anemployee worked in the area. The missing cover had previously beenreported by Irick (Tr. 467). Trinity was in other-than-serious violationof ? 1910.305(b)(2)._PENALTY DETERMINATION_The Commission is the final arbiter of penalties in all contested cases._Secretary v. OSAHRC and Interstate Glass Co._, 487 F.23 438 (8th Cir.1973). Under 17(j) of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and thehistory of the previous violations in determining the assessment of anappropriate penalty. The gravity of the offense is the principal factorto be considered. _Nacirema Operating Co._, 72 OSAHRC 1\/B10, 1 BNA OSHC1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Trinity employed approximately 300 employees at its facility (Tr. 66).There is a history of previous inspections. Seven citations have beenissued to this facility (Tr. 66). Trinity’s actions showed a lack ofgood faith. The gravity of the serious and willful violations is high.Upon due consideration of the foregoing factors, the following penaltiesare determined to be appropriate:_DOCKET NO. 89-2168__Citation One (Serious)_Item 1 \t$ 800Item 2 \t$ 800Item 3 \t$ 700Item 4 \t$ 800Item 5 \t$ 700Item 6 \t$ 800No penalties are assessed for items one and two of citation two._DOCKET NO. 89-2169__Citation One (Serious)_Item 1 \t$500Item 2 \t$ 400Item 3 \t$ 800Item 4 \t$1,000Item 5 \tS 600Item 6 \t$ 800Item 7 \t$ 600Item 8 \t$ 800Item 9 \t$ 800Item 10 \t$ 700Item 11 \t$ 800Item 12 \t$ 600Item 13 \t$ 600Item 14 \tS 300Item 15 \t$ 500Item 16 \t$ 500Item 17 \t$ 500Item 18 \t$ 700Item 19 \t$ 700_Citation Two (willful)_Item 1 \t$8,000Item 2 \t$8,000No penalties are assessed for items one and two of citation three._FINDINGS OF FACT AND CONCLUSIONS OF LAW_The findings of fact and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52(a) of the FederalRules of Civil Procedure._ORDER_In view of the foregoing and good cause appearing in support of thedeterminations, it isORDERED: That the issues and penalties in dispute in docket numbers89-2168 and 89-2169 are affirmed, modified and vacated in the followingmanner:_DOCKET NO. 89-2168__Citation One (Serious)_Item No. \tDisposition \tAssessed \tPenaltyI \tAffirmed \t$ \t8002 \tAffirmed \t$ \t8003 \tAffirmed \t$ \t7004 \tAffirmed \t$ \t8005 \tAffirmed \t$ \t7006 \tAffirmed \t$ \t800_Citation Two (\”Other\”)_Item No. \tDisposition \tAssessed Penalty1 \tAffirmed \tNone2 \tAffirmed \tNone_DOCKET NO. 89-2169__Citation One (Serious)_Item No. \tDisposition \tAssessed Penalty1 \tAffirmed \t$ 5002 \tAffirmed \tS 4003 \tAffirmed \tS 8004 \tAffirmed \t$1,0005 \tAffirmed \tS 6006 \tAffirmed \t$ 8007 \tAffirmed \t$ 6008 \tAffirmed \t$ 8009 \tAffirmed \t$ 80010 \tAffirmed \t$ 70011 \tAffirmed \t$ 80012 \tAffirmed \tS 60013 \tAffirmed \t$ 60014 \tVacated – 1 \t\tAffirmed – 2 \t$ 30015 \tAffirmed \t$ 50016 \tAffirmed \t$ 50017 \tAffirmed \t$ 50018 \tAffirmed \t$ 70019 \tAffirmed \t$ 700_Citation Two (Willful)_Item No. \tDisposition \tAssessed Penalty1 \tAffirmed \t$8,0002 \tAffirmed \t$80000_Citation Three (\”Other\”)_Item No. \tDisposition \tAssessed Penalty1 \tAffirmed \tNone2 \tAffirmed \tNoneDated this 6th day of December, 1990.JAMES D. BURROUGHSJudgeFOOTNOTES:[[1]] Throughout these proceedings, Trinity has repeatedly asserted thatthere are \”three separate plants\” at the workplace in question. All ofthe record evidence, however, is consistent in indicating that thefacility was divided administratively into only two plants. Moreover,there is no indication in the evidentiary record that there was a thirdbuilding at the site.[[2]] The complaint itself is not in the record although the record doesinclude a summary of the complaint that was prepared by OSHA andattached to its warrant application, which we discuss infra. Thecomplaint summary and the record as a whole are silent as to theidentity of the person who filed the complaint. Nevertheless, weconclude that the record does establish that the person was an employeeof Trinity at the time the complaint was filed. In support, we note thatOSHA’s warrant application contains a sworn statement by the OSHA AreaDirector that the complaint was filed by an employee of Trinity. We alsonote that OSHA’s published procedural guidelines required it todetermine whether the person filing the complaint was either a past orpresent Trinity employee. There is no allegation by Trinity and noreason to believe on this record. that OSHA failed to comply with itspublished procedures in its handling of this complaint.[[3]] These \”formality requirements,\” which are set forth in Chapter IXof the FOM are derived from the Act itself. Thus, section 8(f)(1)provides, in pertinent part, as follows:(1) Any employees or representative of employees who \/believe that aviolation of a safety or health standard exists that threatens physicalharm or that an imminent danger exists\/, may request an inspection bygiving notice to the Secretary or his authorized representative of suchviolation or danger. Any such notice shall be \/reduced to writing,\/shall \/set forth with reasonable particularity the grounds\/ for thenotice. and shall be \/signed by the employees or representative ofemployees,\/ and a copy shall be provided the employer or his agent nolater than at the time of inspection, except that, upon the request ofthe person giving such notice, his name and the names of individualemployees referred to therein shall not appear in such copy …. If uponreceipt of such notification the Secretary determines there arereasonable grounds to believe that such violation or danger exists, heshall make a special inspection in accordance with the provisions ofthis section as soon as practicable to determine if such violation ordanger exists.(Emphasis added).[[4]] Specifically, the OSHA area director stated in his warrantaffidavit: \”In my opinion as an experienced safety and healthinvestigator, the complaint alleges serious conditions that are coveredby OSHA Standards 29 CFR ?? 1910.37, 1910.101, 1910.304, and otherparts.\” He also averred that OSHA had \”determined that there arereasonable grounds to believe that such violations exist or have existedduring the last six months, so as to require an inspection under Section8(f)(1) of the Act.[[5]] OSHA attached to its warrant application pertinent provisions ofChapter III and IX of its FOM. As indicated previously, Chapter IXgoverns OSHA’s evaluation and response to section 8(f)(1) complaints.Chapter III contains the principal guidelines governing OSHA’sdetermination as to whether a resulting inspection will be a limitedinspection or a full-scope inspection. However, other relevantprovisions are found in Chapter II of the FOM, which was not attached tothe warrant application. In particular, Chapter II contains theexemption for workplaces that, prior to OSHA’s receipt of the 8(f)(1)complaint, have already been subjected to a comprehensive safetyinspection, during the same fiscal year or the two preceding fiscalyears. We note that, while Chapter II was not attached to the warrantapplication, the Chapter II exemptions are incorporated by referenceinto Chapter III, which are provided to the magistrate.[[6]] In his July 29,1988 order, which we discuss fully herein,Magistrate Steinberg stated the following concerning OSHA’s request foraccess to Trinity’s records:Trinity’s LWDI Rate cannot be calculated without the data contained inits injury and illness records. OSHA is not seeking access to all ofTrinity’s files in order to obtain the data. The records OSHA seeks toinspect are those that Trinity, like every other employer, is requiredto keep and make available for inspection under the Act. See 29 U.S.C. ?657(c)(2); 29 CFR ?? 1904.1-4; id., ? 1904.7(a).Both the Secretary and Trinity, as well as Judge Burroughs, haveproceeded to analyze the issues in these cases on the basis of the samepremise that was expressly stated by the magistrate. We therefore willlikewise proceed under the premise that the authorization sought andobtained by the Secretary for access to Trinity’s records was anauthorization limited to so-called \”required records.\”[[7]] Section 8(a) of the Act, 29 U.S.C. 657(a), provides, as follows:(a) *Authority of Secretary to enter, inspect, and investigate places ofemployment; time and manner*In order to carry out the purposes of this Act, the Secretary, uponpresenting appropriate credentials to the owner, operator, or agent incharge is authorized-(1) to enter without delay and at reasonable times any factory, plant,establishment, construction site. or other area, workplace orenvironment where work is performed by an employee of an ernployer; and(2) to inspect and investigate during regular working hours and at otherreasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions,structures, machines, apparatus, devices, equipment, and materialstherein, and to question privately any such employer, owner, operatoragent or employee.[[8]] As a result of the separation of the OSHA inspection into twodistinct parts, one limited to the 8(f)(1) complaint and the other afull-scope inspection of the entire facility, the issue that was raisedbefore Magistrate Steinberg and renewed before Judge Sparks in DocketNo. 88-2691, of whether the warrant application provided sufficientprobable cause a to conduct a \”special inspection\” under ? 8(f)(1), isnot before us in these proceedings.[[9]] filed these motions with Judge Burroughs the day after the UnitedStates Court of Appeals for the Sixth Circuit issued a decisionterminating Trinity’s judicial challenge to the validity of the February25, 1988 inspection warrant. In its order, the Sixth Circuit dismissedTrinity’s appeal from the district court’s decision upholding thevalidity of the warrant. The appellate court, however, did not determinethe correctness of the district court’s ruling. Instead, it dismissedthe case on procedural grounds. Noting that inspection had beenconducted under the warrant, that citations had been issue 1, and thatadministrative proceedings had been initiated before the Commission, itheld in effect that Trinity was required to exhaust its administrativeremedies in the Commission proceedings before it could continue topursue its judicial challenge. The court expressly stated that itsruling \”should not be construed to foreclose Trinity from pursuing anyof its contentions pertaining to the validity of the warrant\” in eitherproceedings.[[10]] The Secretary attempts to frame the issue before us differently.She argues that Trinity’s Fourth Amendment rights were not violatedbecause the evidence she introduced in this consolidated proceeding wasgathered by OSHA pursuant to two valid inspection warrants. The first ofthese warrants, the Secretary asserts, was the one issued by MagistrateSteinberg in February 1988, and the second administrative inspectionwarrant was obtained by OSHA, on the basis of two additional section8(f)(1) employee complaints, on April 7, 1989, approximately five weeksbefore Trinity allowed OSHA into its workplace to conduct the full-scopeinspection that led to these proceedings. However, while the Secretaryhas repeatedly made the \/factual assertion\/ that the inspection wasconducted pursuant to both warrants, she has made no effort whatsoeverto incorporate the second warrant into her legal arguments. On thecontrary, the \/legal arguments\/ presented by the Secretary on review donot in any way rely on the existence of the second warrant. Instead, theSecretary’s review brief is directed to precisely the same issue thatwas addressed by Magistrate Steinberg, by Judge Burroughs, and byTrinity in its review briefs.\/i.e.,\/ the question of whether theSecretary’s February 25, 1988 warrant application establishedadministrative probable cause to support a full-scope inspection of theSharonville facility. Accordingly, since both parties have focused onthe same legal issue in their review briefs, it is that issue and thatissue alone that we will address in our decision.[[11]] In this regard, it is significant that the full-scope inspectionis not triggered under the administrative plan by OSHA’s receipt of anyand all complaints of unsafe working conditions. Instead, the full-scopeinspection can only be triggered by OSHA’s receipt of a complaint thatmeets the \”formality requirements\” of section 8(f)(1), as set forthsupra in our statement of facts. The application of these \”formalityrequirements\” has the effect of weeding out, for example, anonymouscomplaints. unsigned complaints, nonspecific complaints. and complaintsof conditions that are not in violation of the Act. This results insignificant protection for employers against employees who seek to abusethe statutory complaint inspection procedures.In addition, section 8(f)(1) expressly requires OSHA to make adetermination that there are \”reasonable grounds to believe\” that theviolations and hazards alleged in the complaint in fact \”exist\” beforeundertaking an inspection of the employer’s workplace. Chapter IX of theFOM, which is part of the administrative plan at issue in these cases,contains several provisions implementing this statutory requirement. Forexample, the person evaluating the complaint is instructed to complywith the following guidelines:[The complainant will normally have to be contacted, when possible,either for additional facts or to verify facts supplied. The evaluatormust exercise professional judgment on the basis of the informationavailable to decide whether or not there are reasonable grounds tobelieve that a violation exists and, if so, how it should be classified.This instruction is followed by a lengthy list of suggested questionsfor the evaluator to ask the complaining employee, which provides theevaluator with more detailed and specific information about thecomplaining employee’s allegations so that the evaluator is better ableto exercise his or her \”professional judgment\” in determining whether\”there are reasonable grounds to believe that a violation exists.\”[[12]] Another, less important, distinction is the fact that thecomplaining party in \/Sarasota Concrete\/ was a recently-dischargedformer employee who \”very well may have been motivated by revenge.\” 693F.2d at 1070.[[13]] In view of our conclusion. that Trinity Fourth Amendment rightswere not violated. we need not address the Secretary’s alternativearguments concerning the application of the exclusionary rule and thegood faith exception to the exclusionary rule in the context of thisconsolidated Commission proceeding. [[1]] Trinity took over the Mosteller Road facility on January 1, 1987.Prior to that time, the facility was owned and operated by BrightonCorporation. Brighton Corporation apparently also manufactured tanks andpressure vessels, and many employees of Brighton Corporation stayed onto work for Trinity (Tr. 206, 477).[[2]] Section 1910.134(d)(2)(ii) provides:The compressor for supplying air shall be equipped with necessary safetyand standby devices. A breathing air-type compressor shall be used.Compressors shall be constructed and situated so as to avoid entry ofcontaminated air into the system and suitable in-line air purifyingsorbent beds and filters installed to further assure breathing airquality. A receiver of sufficient capacity to enable the respiratorwearer to escape from a contaminated atmosphere in event of compressorfailure, and alarms to indicate compressor failure and overheating shallbe installed in the system. If an oil-lubricated compressor is used, itshall have a high-temperature or carbon monoxide alarm, or both. If onlya high-temperature alarm is used, the air from the compressor shall befrequently tested for carbon monoxide to insure that it meets thespecifications in paragraph (d)(1) of this section.[[3]] Section 1910.1200(f)(5)(i) provides:[T]he employer shall ensure that each container of hazardous chemicalsin the workplace is labeled, tagged or marked with the followinginformation:(i) Identity of the hazardous chemical(s) contained therein; and[[4]] Section 1910.1200(h) states:(h) Employers shall provide employees with information and training onhazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard is introduced into their work area.[[5]] Section 1910.1200(h)(2)(ii) provides:(2) Employee training shall include at least:(ii) The physical and health hazards of the chemicals in the work area.[[6]] Sorgs testified that in December 1987, while he was washing up atwork, he noticed that the water felt very filmy; and that by the time hegot home, his face was swollen (Tr. 510). Trinity had the water testedand discovered that it was contaminated with chemicals. January 1988,Trinity shut the water off and instructed employees not to use it.[[7]] Section 1910.179(j)(3) provides:_Periodic Inspection._ Complete inspections of the crane shall beperformed at intervals as generally defined in paragraph (j)(1)(ii)(b)of this section, depending upon its activity, severity of service, andenvironment, or as specifically indicated below. These inspections shallinclude the requirements of paragraph (j)(2) of this section and inaddition, the following items. Any deficiencies such as listed shall becarefully examined and determination made as to whether they constitutea safety hazard:[[8]] Section 1910.179(n)(4)(i) provides:_Hoist limit switch._ (i) At the beginning of each operator’s shift, theupper limit switch of each hoist shall be tried out under no load.Extreme care shall be exercised; the block shall be \”inched\” into thelimit or run in at slow speed. If the switch does not operate properly,the appointed person shall be immediately notified.[[9]] Section 1910.4184(c)(9) provides:All employees shall be kept clear of loads about to be lifted and ofsuspended loads.[[10]] Section 1910.212(a)(1) states:One or more methods of machine guarding shall be provided to protect theoperator and other employees in the machine area from hazards such asthose created by point of operation, ingoing nip points, rotating parts,flying chips and sparks. Examples of guarding methods are barrierguards, two-hand tripping devices, electronic safety devices, etc.[[11]] The holddown is a clamping mechanism that comes down first andholds the metal in position so that it does not move before the shearblade comes down and cuts the metal (Tr. 366-367).[[12]] Section 1910.212(a)(1) of 29 C.F.R. provides:(a)_Machine guarding_–(1) _Types of guarding_. One or more methods ofmachine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are–barrier guards, two-handtripping devices, electronic safety devices, etc.[[13]] Collins noted that OSHA had had cases where employees restedtheir hands or leaned into that type of location and had their fingerscaught on the drive belt (Tr. 403-404).[[14]] Section 1910.219(f)(1) provides:Gears shall be guarded in accordance with one of the following methods:(i) By a complete enclosure;[[15]] Section 1910.303(b)(2) of 29 C.F.R. provides:Listed or labeled equipment shall be used or installed in accordancewith any instructions included in the listing or labeling.[[16]] Section 1910.304(a)(2) of 29 C.F.R. provides:No grounded conductor may be attached to any terminal or lead so as toreverse designated polarity.[[17]] Section 1910.304(f)(4) of 29 C.F.R. provides:The path to ground from circuits, equipment, and enclosures shall bepermanent and continuous. “