“SECRETARY OF LABOR,Complainant,v.DELFORD INDUSTRIES, INC.,Respondent.OSHRC Docket No. 89-1263_ORDER_On July 22, 1991, the Secretary filed a Notice of Withdrawal of citationin the above-captioned case. The Secretary has withdrawn the onlyremaining item at issue in this case, Item 9 of Citation 1.The Commission acknowledges receipt of the Secretary’s Notice ofWithdrawal and set aside the Judge’s Decision and Order which modifiedand affirmed and affirmed Item 9 of Citation 1 and assessed a $300penalty. There being no matters remaining before the Commissionrequiring further consideration, the Commission orders theabove-captioned case dismissed. _See_ 29 U.S.C. ?? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 9, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.DELFORD INDUSTRIES, INC.,Respondent.OSHRC Docket Nos. 89-1263and 89-1753NOTICE OF WITHDRAWALThe Secretary of Labor notifies the Commission and the parties that shehereby withdraws Citation No. 1, Item 9, which was at issue in thislitigation. 29 C.F.R. ? 1910.304(f)(5)(v). The administrative lawjudge agreed and petition, Chairman Foulke granted discretionary reviewto determine, _inter alia _, whether the amendment was not proper. Neither Delford nor Judge Burroughs specified the precise subsection of29 C.F.R. ?1910.304(f)(5)(v) which applied to the admittedly ungroundedplug on Delford’s chemical tank, and the Secretary was unable todetermine that subsections applies. The only subsection that couldconceivably apply would be 29 C.F.R. ?1910.304(f)(5)(v)(c)(5); however,the evidence of the record makes it unlikely that Delford’s chemicaltank fits within the definition of \”appliances\” as set forth at 29C.F.R. ?1910.399(a)(6). To the contrary, the Secretary believes thestandard most likely to apply to the facts as brought out at at thehearing is 29 C.F.R. ?1910.304(f)(4)(iv)(B). However, theadministrative law judge’s finding of violation under 29 C.F.R.?1910.304(f)(5)(v) (1990) is not tenable on the record, and that no Rule15(b) motion to amend the citation to specify the more applicablestandard is appropriate at this time. The Secretary therefore withdrawsher citation in this case. See generally, _Cuyahoga ValleyRy. Co. v.United Transportation Union_, 474 U.S. 3 (1985) (Secretary of Laborretains prosecutorial disecutorial discretion at all stages of litigation.)Respectfully submitted.David S. FortneyDeputy Solicitor of LaborCynthia L. AttwoodAssociate Solictor forOccupational Safety and HealthDonald G. ShalhoubDeputy Associate Solictor forOccupational Safety and HealthDaniel J. MickCounsel for RegionalTrial LitigationLaura V. FargasAttorneySECRETARY OF LABOR,Complainant,v.DELFORD INDUSTRIES, INC.,Respondent.OSHRC Docket Nos. 89-1263 and 89-1753_ORDER _These consolidated cases were directed for review by Chairman Edwin G.Foulke, Jr., on December 11, 1990. Review was directed only on issuesinvolving Docket No. 89-1263. Review was not directed on any issueinvolving Docket No. 89-1753. Under Commission Rule of Procedure 92 (a),29 C.F.R. ? 2200.92 (a), however, the direction for review establishedjurisdiction in the Commission to review \”the entire case, \” that is,all issues in Docket Nos. 89-1263 and 89-1753. Having reviewed theentire record, the Commission now finds that there is no compellingpublic interest that would warrant further review of the issuespresented in Docket No. 89-1753.Accordingly, on the Commission’s own motion pursuant to Commission Ruleof Procedure 10, 29 C.F.R. ? 2200.10, Docket No. 89-1753 is severed andthe judge’s decision as to that docket number is deemed a final order ofthe Commission. Docket No. 89-1263 remains pending before theCommission on review.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: January 17, 1991SECRETARY OF LABOR,Complainant,v.DELFORD INDUSTRIES, INC.,Respondent.OSHRC Docket Nos.89-1263 and 89-1753(Consolidated)APPEARANCES:Diane C. Sherman, Esquire, Office of the Solicitor,U.S. Department of Labor, New York, New York, on behalf of complainant.Robert Reach, Jr., President, Delford Industries, Inc.,Middletown, New York, on behalf of respondent._DECISION AND ORDER_Burroughs, Judge: Delford Industries, Inc., (\”Delford\”), a manufacturerof rubber extrusion products, contests a serious and \”other\” citationsissued to it on April 3, 1989 (Docket No, 89-1263) and a seriouscitation issued to it on May 15, 1989 (Docket No. 89-1753). The caseswere consolidated at the commencement of the hearing (Tr. 3).Compliance Officer Terri Harding arrived at Delford’s place of businessin Middletown, New York, on February 14, 1989. After examining the OSHA200 logs, Ms. Harding requested permission to conduct an inspection (Tr.14-17). She was told to obtain a search warrant. Permission havingbeen refused, she left the premises (Tr. 17). At a subsequent date, Ms.Harding was advised that Delford would consent to the inspection. Shereturned on February 22, 1989, with Eileen Walsh, an industrialhygienist (Tr. 165, 168), and conducted a walk-around inspection Tr. 19-20)._DOCKET NO. 89-1263__SERIOUS CITATION_Item 1_Alleged Violation of 29 C.F.R. ? 1910.23(a)(5)_The Secretary charges that Delford was in violation of ? 1910.23(a)(5),[[1]] because an alleged trapdoor floor opening, measuring 19 inches by17 inches and 30 inches deep, in the water pit area of the mill room,was unguarded. Delford presents two defenses to the allegation. Itcontends that the opening was not a pit or trapdoor floor opening andthat, even if there was a pit or trapdoor floor opening, the standard isstill inapplicable. According to Delford, the applicability of thestandard depends on the pit or trapdoor opening being used on aninfrequent basis. It contends that the alleged area was a walkwayfrequently used by employees.Ms. Harding observed a couple of floor planks missing \”in a walkway\”leading to the water pit in the mill room. The missing planks left anopening measuring approximately 19 inches by 17 inches. The opening was30 inches [[2]] deep. The walkway was used by employees to gain accessto the electrical services and the water pit (Tr. 20-27). Exhibit C-1is a photograph of the area (Tr. 27-28). The photograph was taken afterthe planks had been replaced (Tr. 28). When Ms. Harding observed theopening, it was not covered, no one was in attendance around theopening, and it was not guarded by guardrails (Tr. 29-30). The openingwas in plain view of anyone passing in the area (Tr. 32-33).Ms. Harding testified, after looking at her notes, that the walkway wasused approximately once a week (Tr. 22). She was not aware from whomshe secured this information (Tr. 24-25). She later stated that shetalked with Mr. Reach and that he told her that it was used to gainaccess to the pit and to the electrical installations (Tr. 25). Thewalkway was the main access to the pit area (Tr. 27).Ms. Harding makes reference to the cited area as a \”walkway\” leading tothe water pit (Tr. 20, 21). The two planks were missing from thewalkway. She does not describe the area of the missing planks as a pitor trapdoor.[[3]] The standard, by express wording, applies to \”everypit and trapdoor floor opening.\” The language of the standard is plainand unambiguous. While the walkway in question provided access to thewater pit, this does not make the walkway a pit or trapdoor flooropening. The cited violation was the hazard created by missing planksin the walkway. The condition of the pit was not cited. The photographof the two planks (Ex. C-1) reveals that they were not covering a waterpit or trapdoor floor opening.The Secretary has the burden of proof in establishing the applicabilityof the standard. _Astra Pharmaceuticals, Inc._, 82 OSAHRC 55\/E9, 9 BNAOSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1979). In her brief,the Secretary represents that [t]he opening was caused by the absence oftwo of several planks which provided a cover to a pit and also served asa walkway.\” The representation goes beyond the established evidence. The evidence does not establish that the planks \”provided a cover to apit.\” The Secretary’s principal witness testified that the cited areawas \”a walkway leading to the water pit\” (emphasis added) (Tr. 21). Theevidence does not establish what the planks cover (See footnote 3). TheSecretary has failed to establish the two missing planks constituted atrapdoor floor opening or were a pit cover. The alleged violation isvacated.Item 2_Alleged Violation of 29 C.F.R. ? 1910.23(c)(1)_The Secretary withdrew item two of the serious citation which alleged aviolation of ? 1910.23(c)(1) (Tr. 35).Item 3_Alleged Violation of 29 C.F.R. ? 1910.212(a)(1)_The Secretary alleges that Delford was in violation of ? 1910.212(a)(1),because splicing and injection presses had unguarded pinch pointscreated by a gap between the upper portion of the dies and thecylinder. A pinch point is allegedly created as the die ascends torejoin the upper portion of the cylinder (Tr. 40, 41). Delford submitsthat the presses had two-hand tripping devices and that it was incompliance with the standard. The presses were equipped with two-handtripping devices, but they were not operational. The devices had beendisconnected or were in a state of disrepair. The issue must be decidedon the basis of how the presses were being operated at the time ofinspection.The purpose of the splicing press is to join two flexible rubber piecesinto one. This procedure is performed by the machine operator placingfloppy rubber material into the die area and then activating the press. When the press is activated, the die descends and joins the two pieces(Tr. 36, 37, 42). Where the pieces are joined is the point ofoperation (Tr. 41). (The unguarded point of operation is a separateallegation.) The unguarded pinch point cited in this allegation occursas the process ends and the upper die ascends to rejoin the uppercylinder (Tr. 38-40, 41). The gap exists between the upper portion ofthe die plate and the cylinder above it (Exs. C-2, C-3 C-4; Tr. 38). The size of the gap between the upper die in its descended position andthe cylinder is 3-3\/4 inches (Tr. 39, 113). It is this gap that isclosed as the upper die ascends to the upper cylinder and creates apinch point between the upper die and the cylinder. The injection andsplicing processes are similar in operation (Tr. 37-42).The operator stands directly in front of the press while feedingmaterials into the die area. Once the material has been placed in thepoint of operation, the press is activated by a lever which is locatedabove and to the left of the cylinder (Ex. C-2; Tr. 39-40). Hardingtestified that the operator’s hands could be within the die area whenthe cylinder is descending (Tr. 40). She later testified that, when theleft hand activates the lever, the right hand is free to go anywhere(Tr. 42). The material is placed in the die area or point of operationby hand. Ms. Harding later testified that the employee would have tohold onto the floppy material while the machine is activated (Tr. 49). If the machine is activated with the left hand, then the right handwould be holding the material while it is activated.Section 1910.212(a)(1) [[4]] 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(7th Cir. 1982). In order to establish a violation of ? 1910.212(a)(1),the Secretary must first prove the existence of a hazard which isrevealed \”by how the machine functions and how it is operated by theemployees.\” _Stacy Mfg. Co_., 82 OSAHRC 14\/B1, 10 BNA OSHC 1534, 1982CCH OSHD ? 25,965 (No. 76-1656, 1982). A potential hazard in this casewould exist as the upper die, which descended to mold the two rubberpieces together, ascends to rejoin the upper cylinder. The descendingof the die causes a 3-3\/4-inch gap that is closed as the upper dieascends to the cylinder. It is obvious that anyone inadvertentlyplacing a finger or hand into the gap as the die ascends would beexposed to injury.The crux of the dispute is how likely the work habit or environment ofthe operator would permit an inadvertent or accidental placing of handsor fingers in the gap. Unfortunately, too many relevant facts are leftto the imagination–an imperfect manner for determining a hazard. Theevidence does not show that the operator had any reason to place hishands or fingers in the gap area as the die ascends. The record doesnot state how fast the die ascends. Ms. Harding’s testimony as towhether the right hand is free or is holding the floppy rubber materialin the die as the press is activated by the left hand is inconsistent. If the right hand is holding materials, it is difficult to see how Ms.Harding could conclude it was free to accidentally contact the gaparea. If the operator places the material by hand into the point ofoperation and holds it until the upper die descends and molds the twopieces, it is doubtful that he would have time to get a finger or handin the gap area. This is especially true in light of Ms. Harding’slater testimony that the stock is removed by hand after the operation iscompleted (Tr. 49). She also testified that the stock is adjusted inthe die by hand. The evidence does not disclose how close the righthand is to the gap area as the operator holds it when the die ascendsand when he removes the material as the die ascends.In determining whether a hazard exists, all circumstances, including themanner in which the machine functions and how it is operated by theemployees, must be considered. _Rockwell International Corp._, 80OSAHRC 118\/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470,1980). The operation of the presses does not require that the operatorplace his hand in the gap area.The evidence of whether a hazard exists in operation of the presses isleft to speculation and conjecture. The evidence is too incomplete toconclude a hazard existed. The more fact that the gap was unguarded andthat it was not impossible for an employee to get his hands or fingersin the area does not demonstrate that the operator was exposed to ahazard. _Cf., Armour Food Co_., 1990 OSAHRC BNA OSHC 1990 CCH OSHD ?(No. 86-247, September 24, 1990). The Secretary failed to show thelocation of the hands as the die ascends. The evidence fails todisclose any reason or occasion for an employee’s hands or fingers tocome into contact with the gap.The Secretary must show a more direct relationship between the manner inwhich the press is operated and the hazard presented by the gap. Forinstance, at what speed did the die ascend and how close were theoperator’s hands to the gap area as he removed the stock from the die. Since there are no reported injuries, there is no evidence to show thatthe hazard was realistic when considered in relation to the manner inwhich the press was operated. The lack of injuries, although notconclusive, buttresses arguments that there was no exposure to injury. _Rockwell International Corp., supra_. The Secretary has failed to meether burden of proof. The alleged violation of ? 1910.212(a)(1) is vacated.Item 4_Alleged Violation of 29 C.F.R. ? 1910.212(a)(3)(ii)_The alleged violation of ? 1910.212(a)(3)(ii) involves the same splicerscovered under the previous allegation concerning pinch points (Tr. 46,47). The Secretary contends that the splicers violated ?1910.212(a)(3)(ii) since the point of operation was unguarded (Tr. 46). As previously discussed under item three, the splicers were equippedwith two-hand tripping devices, but none of them were operational (Tr.48-49). The splicer was activated by a lever located in the area of thetimer on the upper left of the splicer (Tr. 47, 48-49).The operator stands in front of the splicer and takes two pieces of thestock, a floppy rubber material, and places it into the point ofoperation by hand. The left hand is normally used to activate thesplicer. According to Harding, this leaves the right-hand free to bein any area of the die or press (Tr. 47). This statement isinconsistent with later testimony that the employees would have to holdonto the floppy material while the press is activated (Tr. 49). If thisis the case, then the statement that the right hand is free to be in anyarea of the die or press can’t be true. Her testimony that the materialis removed from the die by hand (Tr. 49) is also inconsistent with thestatement that the right hand is free. The opening between the two dieswhere the stock is placed is 2-1\/4 inches (Tr. 47-48).Section 1910.212(a)(3)(ii) [[5]] requires that the point of operation ofa machine be guarded if the operator is exposed to injury, and that theguarding device be so designed and constructed as to prevent theoperator from having any part of his body in the danger zone during theoperating cycle. The standard, by express wording, requires that thepoint of operation expose an employee to injury before the employer hasto guard it. _Rockwell International Corp_., 80 OSAHRC 118\/A2, 9 BNAOSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980). \”The mere factthat it [is] not impossible for an employee to insert his hands [in thepoint of operation] does not itself prove that the point of operationexposes him to injury. Whether a machine presents a hazard must bedetermined by how the machine functions and how it is operated byemployees.\” _Rockwell International Corp., supra_, 9 BNA OSHC at1097-98. In order to prove a violation of ? 1910.212(a)(3)(ii), theSecretary must establish that (1) the point of operation of the splicerswas unguarded, and (2) that the operation of the splicers exposedemployees to injury. The Secretary has established the first point buthas failed in meeting her burden of proof on the second point.Once again, relevant details as to how the splicers function and areoperated by employees are missing. [[6]] Ms. Harding assumes there is aviolation since the point of operation is not guarded. There is nodispute over this fact; but, before guarding is required, the Secretarymust show that the operator is exposed to injury as a result of themanner in which the splicer is utilized. While Ms. Harding testifiedthat the operator’s hands were \”in close proximity to the die,\” (Tr. 47)it is impossible to find a violation on this fact. The words \”closeproximity\” are too nebulous in meaning to assume that there was any realdanger in operating the splicers. [[7]] The descriptive words \”closeproximity\” are of little value unless they are defined in terms ofprecise measurements, e.g., in inches. The Commission’s purpose is toafford an employer an independent review of the Secretary’s allegations.This purpose would be defeated if the Commission decided the issue onsuch nebulous terminology. In this instance, does \”close proximity\” meanwithin two feet or two inches? (See footnote 7.) The party having theburden of proof must suffer the consequences for any failure to presentsufficient facts in support of the alleged violation.Accordingly, the allegation is vacated.Item 5_Alleged Violation of 29 C.F.R. ? 1910.212(a)(4)_The Secretary alleges that Delford violated ? 1910.212(a)(4) by itsfailure to have an interlocking barrier guard on a tumbler in the washarea that was ten feet, two inches, long and three feet in diameter. This fact is not disputed. Delford argues that the configuration of thetumbler, table, and location of the control button protect an employeefrom any injuries.A large tumbler was used in the wash area to wash parts. The parts tobe washed are loaded through two front doors of the tumbler. A controlbutton for the tumbler is located on the right at the end of the tumblerand away from the movement of the tumbler. The tumbler is approximatelyten feet long and three feet in diameter (Exs. C-5, C-6; Tr. 52-53,119). A metal table, two feet in width, is welded into place in frontof the tumbler and extends a foot or more beyond the length of thetumbler (Exs. C-5, C-6; Tr. 120). The employee stands at the controlwhile activating the tumbler (Tr. 54). The control is located withininches of the end of the tumbler (Ex. C-6). Employees operating thecontrols would be at the end of the table and within a few inches of theend of the tumbler (Ex. C-6; Tr. 119).While Ms. Harding states that employees would be exposed to brushing upagainst the tumbler or the tumbler edge (Tr. 54), this does not appearto be a realistic hazard. The configuration of the tumbler and metaltable protruding in front and beyond the ends would prevent anyaccidental brushing up against it. The table was two feet wide (Tr.120). The employee would have to climb onto the metal table to brush upagainst the tumbler. He could reach the end by hand, but the placementof the controls and metal table are such that any hand of an employeethat comes between the frame holding the tumbler and the tumbler wouldhave to be deliberate. (See Exs. C-5, C-6). While Ms. Harding testifiedthat the operator’s hands could be crushed if he got them in the areabetween the tumbler and the frame, a look at exhibits C-5 and C-6dispels her theory. The distance between the control and tumbler at theend is too large to crush anyone’s hand if it accidentally got in thearea between the tumbler and the control. Ms. Harding did not see thetumbler in operation (Tr. 122) and is only guessing as to potential hazards.Section 1910.212(a)(4) requires revolving drums to be guarded by anenclosure which is interlocked with the drive mechanism so that the drumcannot revolve unless the guard enclosure is in place. The standardmust be read in conjunction with ? 1910.212(a)(1) which states machineguarding \”shall be provided to protect the operator and other employeesin the machine area from hazards.\” The Secretary has failed to showthat the operation of the tumbler presents any hazard to employees. The configuration of the tumbler in relation to the metal table and thelocation of the control buttons make it impossible for someone toaccidentally brush up against the tumbler. The fact that there is nohistory of injuries from the operation of the tumbler buttresses theconclusion that there was no realistic exposure to a hazard. RockwellInternational Corp., supra. The alleged violation is vacated.Item 6_Alleged Violation of 29 C.F.R. ? 1910.219(c)(4)(i)_The Secretary alleges Delford violated ? 1910.219(c)(4)(i) for failureto guard a projecting shaft from a motor in the Banbury Room of the pitarea with a safety sleeve. The standard states:(4) Projecting shaft ends. (i) Projecting shaft ends shall present asmooth edge and end and shall not project more than one-half thediameter of the shaft unless guarded by nonrotating caps or safety sleeves.The diameter of the shaft was three inches. The projection was sixinches. Since the shaft projected more than one-half of the diameter,the standard is applicable. There is no dispute that the shaft was notguarded by a nonrotating cap or safety sleeve. The shaft had a keywaycut into it (Ex. C-7; Tr. 58-60).Ms. Harding testified that the shaft was in an exposed area wheresomeone could walk by it. On direct examination, she indicated that anemployee might enter the area to perform maintenance or to makeadjustments to the equipment in the area (Tr. 59). She was concernedthat an employee could brush up against the shaft (Tr. 60). Hertestimony in regard to employees in the pit area is inconsistent. Shefirst testified that she did not ask the operator for what reason hewould enter the pit (Tr. 137-138). She then stated that the operator didnot tell her for what purpose he went into the pit; but, when pressedunder cross-examination, she stated the operator said \”maintenance ofthe area\” (Tr. 139). She displayed little knowledge of the pit area orwhat maintenance would be performed (Tr. 134-141). There is no evidenceshe saw anyone in the pit area. She admitted it was not a heavilytraveled area (Tr. 142).Ms. Harding’s testimony is considered to be nebulous and inconsistent. There is no evidence of any exposure to the rotating shaft. There is nodescription of the pit area. Its dimensions are unknown and there is noevidence as to how close anyone would come to the rotating shaft if theyentered the pit area. While the shaft was unguarded, employees did notwork in the area and the evidence indicates that maintenance dutieswould be the only reason to enter the pit. Ms. Harding assumes exposureif anyone enters the pit. No reason is offered as to why anyone wouldhave to approach the shaft even if they entered the pit. The relation ofthe shaft to walk areas in the pit is unknown. Once again, the Secretaryhas failed to prove sufficient facts to allow a thoughtful and incisiveindependent review of the violation. The point is not whether Ms.Harding thinks there was a violation but whether the facts of recordsupport a violation. The paucity of facts prevent a finding of exposurein this instance. The alleged violation is vacated. [[9]]Item 7_Alleged Violation of 29 C.F.R. ? 1910.219(e)(5)(i)_The Secretary alleges that Delford was in violation of ?1910.219(e)(5)(i) for failure to guard the nip points of a three-inchwide leather belt with metal lacing on the Rusnak Tool Works millingmachine in the machine shop and the lower portion of a one-half inchV-belt and cone pulley on coiler and pack machines one, two and three. Section 1910.219(e)(5)(i) provides:(5) Cone-pulley belts. (i) The cone belt and pulley shall be equippedwith a belt shifter so constructed as to adequately guard the nip pointof the belt and pulley. If the same of the belt shifter does notadequately guard the nip point of the belt and pulley, the nip pointshall be further protected by means of a vertical guard placed in frontof the pulley and extending at least to the top of the largest step ofthe cone.There is no dispute over the fact that the cone and belt pulleys werenot equipped with a belt shifter (Tr. 65).Ms. Harding observed two separate areas of the plant that hadunprotected cone belts and pulleys (Tr. 61). One unprotected belt was athree-inch wide leather belt with metal lacing that was on a Rusnak ToolWorks milling machine in the machine shop. The other belt was aone-half-inch V-belt located in the microwave extrusion area on threeseparate machines. The belts at both locations were located less thanseven feet from the floor (Tr. 61-67). Nip points were created wherethe belt ran onto the pulley (Tr. 65).The operator stands in front of the milling machine to perform hiswork. The belt pulley is located \”Just above and back a little from the[operator’s] hand area\” (Tr. 63). When operating the coiler and packmachines one, two and three, the operator stands in \”close proximity\”but not directly at the cone and pulley (Tr. 63-64). Ms. Harding laterrevealed that the operator stands approximately two feet from the coneand pulley (Tr. 64). Harding also testified that there were areas onecould walk around the machine (Tr. 64). She was unable to describe thecoiler and pack machines (Tr. 64).In _Astra Pharmaceutical Products, Inc._, _supra_, the Commission statedthat the Secretary, in order to prove a violation of section 5 (a) (2)of the Act, must show by a preponderance of the evidence that (1) thecited standard applies, (2) there was a failure to comply with the citedstandard, (3) employees had access to the violative condition, and (4)the cited employer either knew or could have known of the condition withthe exercise of reasonable diligence. There is no doubt concerning theapplicability of the cited standard or that Delford failed to complywith the standard. The focus is on whether employees had access to theviolative condition in carrying out their job duties. The cone andpulleys were less than seven feet from the floor. This fact isundisputed. The cone and pulley on the Rusnak Tool Works milling machinewas described as follows in relation to the operator: \”Just above andback a little bit from his head area\” (Tr. 63). The operator’s locationwith respect to the coiler and pack machines was described as follows(Tr. 64):Q. Where does the operator stand in relationship to that machine?A. He would stand in close proximity but not directly at the cone andpulley.Q. How far would you say he would be from the cone belts and pulley?A. In that instance, a couple of feet.It is also noted that Ms. Harding was unable to describe the coil andpack machines (Tr. 143). She could recall no injuries resulting fromunguarded cone and pulleys on the coil and pack machines (Tr. 145).The language used by Ms. Harding, for the most part, was not specificenough to conclude that the operation of the machines exposed anyone tothe violative conditions. This fact, combined with her lack ofknowledge of the coil and pack machines (Tr. 143), is persuasive inconcluding that the Secretary has failed to meet her burden of proof. There is no evidence as to where the cone and pulley are located on themachines or their location in relationship to the operator. Theexposure must be one that is realistic and can be expected to bring theemployee in contact with the cone and pulley during normal operation ofthe machines. The fact that he can touch the cone and pulley by adeliberate act of reaching in is insufficient to meet the burden ofproving he had access to the violative condition. The allegations arevacated.Item 8_Alleged Violation of 29 C.F.R. ? 1910.219(i)(2)_The Secretary alleges Delford violated the requirements of ?1910.219(i)(2) in three separate instances: (1) the Banbury motorlocated in the Banbury Room of the pit area had revolving couplings thatwere not guarded; (2) the couplings for the brake on the number fourmilling machine were unguarded, and (3) the number one milling machinehad a midrail lacking near the hand brake and there was no guardrailnear the operator station.Ms. Harding testified that she observed three separate instances whereemployees were exposed to unguarded revolving couplings (Tr. 67-68). Acoupling on one of the milling machines was only partially guarded (Ex.C-8). Ms Harding testified that a coupling on the motor located in theBanbury Room of the pit area was unprotected (Ex. C-7; Tr. 68) and thatthe number one and number four milling machines had unguarded couplings(Tr. 68). She stated that anyone passing by the areas of the unguardedcouplings or performing maintenance in the area would be exposed to thehazard (Tr. 68). Exhibit C-8 is a photograph of a partially guardedcoupling on a milling machine. It also shows partial guardrails in thearea Tr. 69). While it is true that the coupling is only partiallyguarded, the statement by Ms. Harding that an employee working orwalking in the area would come into contact with the revolving couplingbears little relationship to reality. A quick glance at the photographof the partially guarded coupling easily reveals that employees areprevented from accidentally contacting the coupling by its locationwithin the configuration of the machine (Ex. C-8). An employee wouldhave to make a deliberate attempt to contact the coupling. There was norealistic exposure to the violative condition.Exhibit C-7 is a photograph of the unprotected coupling on the motorlocated in the Banbury Room of the pit area. The coupling isinaccessible by virtue of its location. It is located so far inside themachine that it would be difficult to reach even if an employee made adeliberate attempt to touch it. Again, there was no realistic exposureto the violative condition. The fact that a coupling is unprotected oronly partially protected does not automatically result in a violation ofthe standard.The unguarded coupling on the other milling machine is not described. It is, therefore, impossible to judge whether or not there was exposureto the violative condition, a fact which must be proved by theSecretary. Ms. Harding’s testimony that any employee passing by thecouplings would lie exposed is not supported by the photographs (Exs.C-7, C-B). Ms. Harding is unrealistic on this item, as she has been onother items, as to what constitutes exposure. The allegations are vacated.Item 9_Alleged Violation of 29 C.F.R. ?1910.304(f)(1)(iv) _The Secretary alleges that Delford violated ? 1910.304(f)(1)(iv) [[10]]since it had in use an electrical motor with an ungrounded lead cord. The motor operated on 110 volts (Tr. 73-74). The standard requiresground of AC systems of 50 volts to 1000 volts. Delford argues that theapplicable standard is ? 1910.304(f)(5)(v) which covers \”Equipmentconnected by cord or plug.\”Ms. Harding testified that the chemical tank in the boiler room had anelectrical motor with an ungrounded lead cord. The electrical systemwas AC and carried 110 volts. The ground prong was missing from thelead cord (Tr. 73-74). The motor was used to operate the number twochemical tank (Tr. 74). The boiler room was a wet area of the plant (Tr.75). Ms. Harding testified that the work of employees would cause themto come into contact with the chemical tank (Tr. 74).Paragraph (f) of ? 1910.304 is entitled \”Grounding\” and states thatparagraphs (f)(1) through (f)(7) contain grounding requirements forsystems, conduits and equipment. The specific provision cited by theSecretary [(f)(1)(iv)] refers to AC systems. The provision whichDelford contends is applicable [(f)(5)(v)] refers to \”Equipmentconnected by cord and plug.\” The evidence is clear that Delford wascited because the ground prong was missing from the lead cord. There isno allegation that the AC system was not grounded as required by ?1910.304(f)(1)(iv). The allegation has reference to the removal of theground prong from the lead cord. Section 1910.304(f)(5)(v) specificallyapplies to grounding of cord and plug connections. Accordingly, thealleged violation of ? 1910.304(f)(1)(iv) is vacated.Although the alleged violation is vacated, the evidence reflects aviolation of another standard. The facts are not disputed and support aviolation of ? 1910.304(f)(5)(v). The violation consisted of theremoval of the ground prong on the plug of the cord. Where theundisputed facts of record support a different standard from thatalleged, an amendment to conform to the proof, pursuant to Rule 15 (b)of the Federal Rules of Civil Procedure, is in order and is usuallygranted unless the employer is prejudiced by its being granted. \”[I]tis important to emphasize that pleadings before the Commission are to beliberally construed and easily amended.\” _Bill C. Carroll Co._, 79OSAHRC 87\/C13, 7 BNA OSHC 1806, 1809, 1979 CCH OSHD ? 23,940 (No.76-2748, 1979). Whether a party is prejudiced by granting an amendmentinvolves the issue of \”whether the party opposing that amendment wasdenied a fair opportunity to prepare and present its cases on themerits, and whether it could offer additional evidence if the case weretried again on a different theory.\” _Moran and Culpepper, Inc_., 81OSAHRC 26\/A2, 9 BNA OSHC 1533 1537, 1981 CCH OSHD ? 25,293 (No. 9850, 1981).The allegation points is a simple matter that in undisputed–the groundprong had been removed. The removal of the prong resulted in theviolation. Amending the pleadings to find a violation of ?1910.304(f)(5)(v) will not prejudice Delford. There is no dispute overthe relevant fact. Accordingly, an amendment is granted and a violationof ? 1910.304(f)(5)(v) is determined from the facts of record.\”OTHER\” CITATIONItem 1_Alleged Violation of 29 C.F.R. ? 1910.22(a)(1)_The Secretary alleges that Delford was in violation of ? 1910.22(a)(1)because the back exit from the Banbury Room leading to the main floorhad debris in the stairway landing. Delford does not argue that somedebris might have been on the stairway landing but states it was theretemporarily. According to Delford, \”[t]he alleged condition wastransitory and self abated.\” It further states that the conditionpresented no direct or immediate hazard to employees.Ms. Harding observed an exit leading from the Banbury Room was clutteredwith various debris–rags, paper and containers. Approximately half ofthe landing was taken up with the debris (Tr. 76-78). The debris did notcompletely block the stairs. Anyone traversing the stairs could pass tothe left side of the debris (Tr. 78).The cited standard, ? 1910.22(a)(1), is clear in its requirements. Itprovide:All places of employment, passageways, storerooms, and service roomsshall be kept clean and orderly and in a sanitary condition.The standard requires all passageways to be kept in a clean and orderlycondition. The landing to the stairs from the room was covered withdebris. The debris would present a hazard to employees as they traversedthe area. The violation has been established.Item 2_Alleged Violation of 29 C.F.R. ? 1910.37(k)(2)_The Secretary alleges that Delford was in violation of 1910.37(k)(2) dueto the fact the exit door in the Banbury Mill Area was blocked bybarrels of chemicals. Delford argues that this was a temporarycondition resulting from the barrels having been just delivered. Italso argues that there were at least two other exits and an overhead door.Ms. Harding observed that the rear exit door in the Banbury Mill Areawas blocked by barrels of chemicals (Tr. 78-79). Employees were workingin the room (Tr. 79). The photograph placed into evidence by theSecretary supports the testimony of Ms. Harding (Ex. C-9). Thephotograph clearly shows the exit door blocked by several barrels. Anoverhead door was located besides the exit door. It was in the downposition (Ex. C-9; Tr. 156). There were at least two other exits fromthe area that did not include the overhead door (Tr. 156).Section 1920.37(k)(2) provides that \”[m]eans of egress shall becontinuously maintained free of all obstructions or impediments to fullinstant use in the case of fire or other emergency.\” The standard, bythe use of the words \”continuously maintained free\” and \”full instantuse,\” places an employer on notice that temporary unloading which blocksan exit is prohibited by the standard. Emergencies usually arise withoutadvance notice. It is important that all exits be kept free at alltimes because of this fact. Delford’s argument that it was a temporarycondition has no merit. The standard further refers to \”means ofegress\” which would include all exits. The fact there were at leasttwo other exits does not excuse the fact that the exit was blocked. Inthe confusion of a fire or other emergency, there is no assurance thatall persons in the building will know or remember which exit or exitsare blocked. The alleged violation is affirmed.Item 3_Alleged Violation of 29 C.F.R. ? 1910.101(b)_The Secretary alleges that Delford was in violation of ? 1910.101(b),because a cylinder of nitrogen in the Banbury pit area was unsecured. The citation was amended by paragraph XVI of the complaint to reflectthat Delford did not comply with section 3.2.3 and\/or 3.3.8 of theCompressed Gas Association Pamphlet P-1-1965 rather than section 3.4.4referenced in the citation. Delford argues that the failure of theSecretary to divulge the contents of the Compressed Gas AssociationPamphlet P-1-1965 referenced in the standard refutes the allegation madeby the Secretary.Ms. Harding observed a cylinder of nitrogen in the Banbury Pit area. Itwas located at the base of the stairway which led into the pit along theleft wall. It was not secured (Tr. 80). Employees using the stairs togo down to the pit area were exposed to the condition (Tr. 81).Section 1910.101(b) [[11]] makes reference to Compressed Gas AssociationPamphlet P-1-1965. The sections referenced in the complaint provide:3.2.3 Never drop cylinders nor permit them to strike against each otheror against other surfaces violently.3.3.8 Protect cylinders from any object that will produce a cut or otherabrasion in the surface of the metal. Do not store cylinders nearelevators or gangways, or in locations where heavy moving objects maystrike or fall on them. Where caps are provided for valve protection,such caps shall be kept on cylinders in storage.The Secretary’s brief relies on section 3.3.8 of the pamphlet as thebasis for the violation.Section 3.3.8 prohibits storing cylinders near elevators or gangways orin locations where heavy moving objects may strike or fall on them. This provision pertains to storing cylinders near elevators or gangways. The alleged violation cited was for having a cylinder of nitrogenunsecured. Section 3.3.8 does not require the cylinders to be secured. Its primary purpose is to protect the cylinder from any object thatmight produce a cut or other abrasion in the metal.Section 3.2.3 also does not require the cylinders to be secured.The original allegation set forth in the citation, before amendment,makes reference to section 3.4.4 with the statement that one cylinder ofnitrogen was unsecured. Section 3.4 of pamphlet P-1 of 1965 is entitled: \”Withdrawing Cylinder Contents.\” Subsection 3.4.4 states:Before using cylinder, be sure it is properly supported to prevent itfrom being knocked over.There is no evidence the nitrogen cylinder was in use. Ms. Hardingnoticed the cylinder at the base of the stairway. Delford was citedbecause the cylinder was unsecured.The Secretary has failed to show that Delford was required to secure thecylinder. The sections of the Compressed Gas Association PamphletP-1-1965 referenced by the Secretary do not require the cylinder to besecured. [[12]] The alleged violation is vacated.Item 4_Alleged Violation of 29 C.F.R. ? 1910.157(e)(3)_The Secretary alleges Delford violated ? 1910.157(e)(3) by failure torecord the date of the assured maintenance check on two portable fireextinguishers. This section provides, in pertinent part, as follows:The employer shall assure that portable fire extinguishers are subjectedto an annual maintenance check . . . The employer shall record theannual maintenance date and retain this record for one year after thatlast entry or the life of the shell, whichever is less. The record shallbe available to the Assistant Secretary upon request.Delford states that the fire extinguishers are inspected constantly bycompany engineers and that they were approved by an outside company.Ms. Earding observed two fire extinguishers which did not have evidenceof annual maintenance (Tr. 83). One was located in the Banbury Pit areaand the second was located in the machine shop. These facts areundisputed and support the allegation. The alleged violation is affirmed.Delford argues that the fire extinguishers were inspected. TheSecretary has not alleged that an annual maintenance check was notmade. It is the following language in the standard which the Secretaryalleges was violated:The employer shall record the annual maintenance date and retain therecord for one year after the last entry or the life of the shell,whichever is less.The standard requires an annual maintenance check and the recording ofthe date. The standard states that \”[t]he employer shall record theannual maintenance date.\” The use of the word \”shall\” makes therequirement mandatory.Item 5_Alleged Violation of 29 C.F.R. ? 1910.215(b)(9)_The Secretary alleges Delford violated ? 1910.215(b)(9) for failure tohave tongue guards on two Baldor grinders located in the machine shop. The grinders have an abrasive wheel which is used to sharpen tool bits(Tr. 84-85). Delford argues that the grinders have a peripheraladjustable member which shields the entire area of the rotating wheel.Ms. Harding observed two Baldor grinders (abrasive wheels) in themachine shop that did not have the necessary tongue guards (Tr. 84-85,98). The left side of one of the grinders was missing a tongue guardand the second grinder did not have any tongue guards (Tr. 87). The twogrinders had a periphery guard and work rest (Tr. 85).Section 1910.215(b)(9) provides:Exposure adjustment. Safety guards of the types described insubparagraphs (3) and (4) of this paragraph, where the operator standsin front of the opening, shall be constructed so that the peripheralprotecting member can be adjusted to the constantly decreasing diameterof the wheel. The maximum angular exposure above the horizontal planeof the wheel spindle as specified in paragraphs (b) (3) and (4) of thissection shall never be exceeded, and the distance between the wheelperiphery and the adjustable tongue or the end of the peripheral memberat the top shall never exceed one-fourth inch. (See Figures 0-18, 0-19,0-20, 0-21, 0-22, and 0-23).Figures 0-18 and 0-19, as pictured in the standard, show adjustabletongue guards providing for angular protection for all sizes of wheels. The tongue guard prevents any flying objects from being thrown out atthe employee using the grinder. The standard specifies that \”thedistance between the wheel periphery and the adjustable tongue or theend of the peripheral member at the top shall never exceed one-fourthinch.\” Since there were no tongue guards, Delford was not in compliancewith the standard. The alleged violation is affirmed.Item 6_Alleged Violation of 29 C.F.R. ? 1910.303_The Secretary alleges Delford violated ? 1910.303(f) by virtue of thefact that the disconnects in the mill room were not labeled and therewas a circuit breaker panel without adequate labeling in the extrusionarea (Tr. 88). Delford argues that no hazard was presented by thecondition, that the standard only applies if a hazard exists, and thatthe Secretary had to prove the presence of a hazard.Ms. Harding observed that disconnects in the mill room were not labeledand that there was a circuit breaker in the extrusion area withoutadequate labeling (Tr. 88). There is no dispute over these facts.Section 1910.303(f) provides as follows:Identification of disconnecting means and circuits. Each disconnectingmeans required by this subpart for motors and appliances shall belegibly marked to indicate its purpose, unless located and arranged sothe purpose is evident. Each service, feeder, and branch circuit, atits disconnecting means or overcurrent device, shall be legibly markedto indicate its purpose, unless located and arranged so the purpose isevident. These markings shall be of sufficient durability to withstandthe environment involved.Delford argues that the Secretary has to prove a hazard exists beforethe standard is applicable. This is not a correct position with respectto all standards. Some standards, by their express wording, requirethat a hazard be shown before they are applicable; other standardsautomatically recognize a hazard which the standard was promulgated toprevent. In such circumstances, it is not necessary for the Secretaryto prove that hazard again. A hazard is presumed if the facts coincidewith the conditions the standard seeks to prevent. In order to prove aviolation of a particular standard, the first thing the Secretary mustdo is show by a preponderance, of the evidence that the cited standardapplies. _Astra Pharmaceutical Products, Inc., supra_, 9 BNA OSHC at2129. If the standard requires the Secretary to establish a hazard, thenshe must prove the hazard to show the standard is applicable.Section 1910.303(f) does not require that the Secretary prove a hazardbefore it is applicable. The standard is presumed to have beenpromulgated to prevent a hazard that could arise if the disconnects werenot labeled. In this instance, the Secretary must show that thestandard is applicable and that the disconnects were not marked or werenot legibly marked. Ms. Harding’s testimony is undisputed on thesepoints. The cited condition is controlled by ? 1910.303(f). Delfordhad disconnects and they were not marked to indicate their purpose.In addition to proving that (1) the cited standard applies, and (2) thatthere was a failure to comply with the standard; the Secretary must showthat (3) employees had access to the violative condition, and (4) thecited employer either knew or could have known of the condition with theexercise of reasonable diligence. _Astra Pharmaceutical Products,Inc_., 9 BNA OSHC at 2129. The evidence supports a violation of thestandard. The allegation is affirmed.Item 7_Alleged Violation of 29 C. F. R. ? 1910.305(g)(1)(iii)_The Secretary withdrew the alleged \”other\” violation of ? 1910.305(g)(1)(iii) (Tr. 90).Item 8_Alleged Violation of ? 1910.305(g)(2)(iii)_The Secretary alleges Delford violated ? 1910.305(g)(2)(iii) because aflexible cord in the microwave extrusion area had a \”pendant with frayedcord due to tension of receptacle without restraint.\”In the microwave extrusion area, a flexible cord in use was not fittedwith tension restraints (Ex. C-10; Tr. 90). The photograph of thecondition shows a pendant cord in disrepair and with no tensionrestraints (Tr. 91). Two machines were plugged into the receptacleheld by the flexible cord (Ex. C-10; Tr. 92). The receptacle was inserious disrepair (Tr. 93). Employees were working in the area (Tr. 92).Section 1910.305(g)(2)(iii) provides:Flexible cords shall be connected to devices and fittings so that strainrelief is provided which will prevent pull from being directlytransmitted to joints or terminal screws.It is undisputed that no strain relief was provided. This fact issupported by the photograph entered into evidence as C-10. The allegedviolation is affirmed.DOCKET No. 89-1753_Alleged Violation of 29 C.F.R. ? 1910.132(a)_The Secretary alleges that Delford was in serious violation of ?1910.132(a) since employees were handling chemicals capable of causingskin irritation or contact dermatitis without wearing rubber orchemical-resilient gloves. Delford argues that the compliance officerwas unable to differentiate between an allergic reaction and dermatitis.It also contends that she did not run any tests proving that thechemicals used actually caused dermatitis and offered no proof of theexistence of contact dermatitis. It is claimed that the listing of arash condition on the Log 200 form does not necessarily mean that theclaim is bona fide.On February 22, 1990, Industrial Hygienist Eileen M. Walsh conducted aninspection of Delford’s facilities in Middletown, New York. Theinspection was based on a complaint received by the local OSHA office.Employees were complaining that there were various instances of contactdermatitis that occurred in the plant over a number of years and thatnothing could be done about it. The complaint also dealt with the factthat there was a hole in the floor in the Banbury area (Tr. 168).In connection with the inspection, Ms. Walsh made a review of the OSHA200 logs maintained by Delford for the years 1986, 1987 and 1988. TheOSHA 200 logs show that during the year 1987, three employees had lostwork days due to contact dermatitis. The OSHA 200 log for 1988 shownthat there were three different instances of contact dermatitisinvolving the same individual (Tr. 176).Contact dermatitis is a rash or irritation which can develop on thehands due to contact with a chemical (Tr. 177). Ms. Walsh spoke to twoemployees who had had contact dermatitis and one employee who wascurrently experiencing difficulty with it. She viewed the hands of theindividual who had contact dermatitis and described the hands as beingvery raw, red and chapped. She indicated that moisture had gone out ofthe hands and that there was extreme irritation (Tr. 177-178).Ms. Walsh determined that the employees handled chemicals. She askedthe management representative what chemicals they used and alsorequested to see the material safety data sheets in those areas wherethe problems had been occurring (Tr. 178). She reviewed the MSDS’s andMr. Reach confirmed the fact that the chemicals used by employees wereas listed in the MSDS’s (Tr. 179). She determined that the employeeshandled paraplex, morfax, polyethylene, and sulfads (Tr. 178). Shedetermined that anyone having contact with these chemicals could contactdermatitis or possibly more serious illnesses (Tr. 179). Most of thechemicals being used required neoprene, rubber or chemical resistantgloves (Tr. 179).The Secretary placed into evidence (Ex. C-14) several copies of materialsafety data sheets which show that the handling of the chemicals or skincontact with the chemicals could lead to dermatitis and possible skinsensitization. All of the chemicals listed in the material safety datasheets are not used or a daily basis. However, all of them are kept onthe premises and are used by the employees at different times (Tr.180). Ms. Walsh observed that Delford’s employees were using cottongloves to handle the chemicals. She considered the cotton gloves to beinadequate protection since they are not chemical resistant (Tr. 184). The employees come into contact with the chemicals as they take them outof the bins and the plastic bags and pour them into a machine (Tr. 184).Respondent’s president, in his cross-examination, sought to prove thatMs. Walsh had incorrectly referred to the condition as contactdermatitis. Ms. Walsh admitted that she had no documentation from anydoctors to confirm the fact that the employees had contact dermatitis(Tr. 191-192). She also admitted that she could not tell the differencebetween an allergy and contact dermatitis (Tr. 192). She furtherconceded that there were no cases of skin irritation for the year 1989(Tr. 194). The OSHA 200 logs for 1987 and 1988 recorded cases ofcontact dermatitis and confirm the fact that it existed among theworkers. Delford made the determination of the cases as they wererecorded and its attempt to repudiate the cases by insinuating that itwas a rash is without merit.The standard in issue is broadly worded and imposes a generalized dutyto protect employees by the use of whatever personal protectiveequipment is necessary by reason of certain hazards. As a prerequisiteto establishing a violation of ? 1910.132(a), the Secretary must eithershow that the employer had actual knowledge that such a hazard existedor that a reasonable person familiar with the circumstances wouldperceive that a hazard exists which warrants the use of protectiveequipment. _Armour Food Co._, _supra_; _Owens-Corning Fiberglas Corp_.,79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ? 23,509 (No. 76-4990,1979), aff’d, 659 F.2d 1285 (5th Cir. 1981). The evidence supports afinding that Delford knew or should have known that a hazardouscondition existed which required the use of appropriate gloves. Thematerial safety data sheets listed various harmful effects to the skinincluding irritation, contact dermatitis, skin sensitization, and insome instances, skin tumors. The OSHA 200’s listed cases of contactdermatitis which had resulted in lost work time. The employees werewearing cotton gloves for some protection against the chemicals althoughthese gloves were inadequate. The material safety data sheets alsosuggested the use of rubber gloves. The OSHA 200’s and the materialsafety data sheets are strong evidence that a reasonable person,familiar with the facts and circumstances particular to the industry inwhich Delford is engaged, would be aware of the hazard. The allegedviolation is affirmed._CLASSIFICATION OF VIOLATIONS_The Secretary has alleged that the violations of ? 1910.304(f)(1)(iv)and ? 1910.132(a) are serious within the meaning of section 17(k) of theAct. \”To establish that a violation is ‘serious’ it must be shown thatthere is a reasonable probability that death or serious physical harmcould result from the violative condition and that the employer knew orwith the exercise of reasonable diligence could have known of thepresence of the violation.\” _Wisconsin Electric Power Co._, 76 OSAHRC134\/B2, 4 BNA OSHC 1787, 1976-77 CCH OSHD ? 21,234 at p. 25,532 (No.5209, 1976), aff’d 567 F.2d 735 (7th Cir. 1977). The Secretary does nothave to establish the likelihood of an accident before the violation canbe classified as serious. She \”need only show that an accident ispossible and that such an accident will most likely result in a seriousinjury.\” _Communications, Inc._, 79 OSAHRC 61\/A2, 7 BNA OSHC 1598,16020 1979 CCH OSHD ? 23,759, at p. 28,813 (No. 76-1924, 1979), aff’d inan unpublished opinion, No. 79-2148 (D.C. Cir. 1981).The violation of ? 1910.304(f)(1)(iv) results from the fact that aground prong was missing from the plug which led to an electrical motorin the boiler room. The system carried 110 volts. As result of the lackof the ground plug, employees were exposed to possible electrocution orburns of a serious nature.The violation of ? 1910.132(a) resulted from the fact that employeeswere exposed to contact dermatitis. Contact dermatitis can result ininfections and other complications which can lead to serious illnesses(Tr. 186).The violations of ? 1910.304(f)(1)(iv) and ? 1910.132(a) are properlyclassified as serious._PENALTY DETERMINATION_while the Secretary proposed a penalty of $400 for the violation of ?1910.304 (f)(1)(iv), and $360 for the violation of ? 1910.132(a); theCommission is the final arbiter in all contested cases. _Secretary v.OSHRC and Interstate Glass Co_., 487 F.2d 438 (8th Cir. 1973). Undersection 17(j) of the Act, the Commission is required to find and givedue consideration to the size of the employer’s business, the gravity ofthe violation, the good faith of the employer, and the history ofprevious violations in determining the assessment of an appropriatepenalty. The gravity of the offense is the principal factor to beconsidered. _Nacirema_ operating CO., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001,1971-73 CCH OSHD ? 15,032 (No. 1972).The gravity of the violation of ? 1910.304(f)(1)(iv) is difficult todetermine. The number of employees exposed and the length of theirexposure is unknown. The employer has had other inspections butdisplayed good faith in this matter by correcting the alleged violationspointed out to it on the spot or quickly thereafter. After consideringall the factors in section 17(j) of the Act, it is determined that apenalty of $300 is appropriate for the violation.Several employees were exposed to chemicals that caused or could causecontact dermatitis. The employees were wearing cotton gloves whichtended to absorb the chemicals. Employees could develop infections andsevere complications from the progression of contact dermatitis thatcould cause more serious health problems. A penalty of $360 is assessedfor the violation of ? 1910.132(a)._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 _Based upon the foregoing findings of fact and conclusions of law, it isORDERED:1. That the serious citation and proposed penalties issued to Delford onApril 3, 1989, (Docket No. 89-1263), are vacated, modified and affirmedas follows:Item No. \tDisposition \tAssessed Penalty1 \tVacated \tVacated2 \tVacated \tVacated3 \tVacated \tVacated4 \tVacated \tVacated5 \tVacated \tVacated6 \tVacated \tVacated7 \tVacated \tVacated8 \tVacated \tVacated9 \tModified andAffirmed \t$3002. That items three and seven of the \”other\” citation issued to Delfordon April 3, 1989, (Docket No. 89-1261), are vacated and items one, two,four, five, six, and eight are affirmed; and3. That the serious citation issued to Delford on May 15, 1989, (DocketNo. 89-1753), is affirmed and a penalty of $360 assessed for the violation.Dated this 6th day of November, 1990.JAMES D. BURROUGHSJudgeOSHRC Docket Nos. 89-1263 and 89-1753 (Consolidated)APPEARANCES:Diane C. Sherman, Esquire, Office of the Solicitor, U. S. Department ofLabor, New York, New York, on behalf of complainant.Robert Reach, Jr., President, Delford Industries, Inc., Middletown, NewYork, on behalf of respondent._DECISION AND ORDER_Burroughs, Judge: Delford Industries, Inc., (\”Delford\”), a manufacturerof rubber extrusion products, contests a serious and \”other\” citationsissued to it on April 3, 1989 (Docket No. 89-1263) and a seriouscitation issued to it on May 15, 1989 (Docket No. 89-1753). The caseswere consolidated at the commencement of the hearing (Tr. 3).Compliance Officer Terri Harding arrived at Delford’s place of businessin Middletown, New York, on February 14, 1989. After examining the OSHA200 logs, Ms. Harding requested permission to conduct an inspection (Tr.14-17). She was told to obtain a search warrant. Permission having beenrefused, she left the premises (Tr. 17). At a subsequent date, Ms.Harding was advised that Delford would consent to the inspection. Shereturned on February 22, 1989, with Eileen Walsh, an industrialhygienist (Tr. 165, 168), and conducted a walk-around inspection (Tr.19-20).DOCKET NO. 89-1263SERIOUS CITATIONItem 1_Alleged Violation of 29 C.F.R. ? 1910.23(a)(5)_The Secretary charges that Delford was in violation of ? 1910.23(a)(5),[[1]] because an alleged trapdoor floor opening, measuring 19 inches by17 inches and 30 inches deep, in the water pit area of the mill room,was unguarded. Delford presents two defenses to the allegation. Itcontends that the opening was not a pit or trapdoor floor opening andthat, even if there was a pit or trapdoor floor opening, the standard isstill inapplicable. According to Delford, the applicability of thestandard depends on the pit or trapdoor opening being used on aninfrequent basis. It contends that the alleged area was a walkwayfrequently used by employees.Ms. Harding observed a couple of floor planks missing \”in a walkway\”leading to the water pit in the mill room. The missing, planks left anopening measuring approximately 19 inches by 17 inches. The opening was30 inches [[2]] deep. The walkway was used by employees to gain accessto the electrical services and the water pit (Tr. 20-27). Exhibit C-1is a photograph of the area (Tr. 27-28). The photograph was taken afterthe planks had been replaced (Tr. 28).When Ms. Harding observed the opening, it was not covered, no one was inattendance around the opening, and it was not guarded by guardrails (Tr.29-30). The opening was in plain view of anyone passing in the area(Tr. 32-33).Ms. Harding testified, after looking at her notes, that the walkway wasused approximately once a week (Tr. 22). She was not aware from whomshe secured this information (Tr. 24-25). She later stated that shetalked with Mr. Reach and that he told her that it was used to gainaccess to the pit and the electrical installations (Tr. 25). Thewalkway was the main access to the pit area (Tr. 27).Ms. Harding makes reference to the cited area as a \”walkway\” leading tothe water pit (Tr. 20, 21). The two planks were missing from thewalkway. She does not describe the area of the missing planks as a pitor trapdoor.[[3]] The standard, by express working, applies to \”everypit and trapdoor floor opening.\” The language of the standard is plainand unambiguous. While the walkway in question provided access to thewater pit, this does not make the walkway a pit or trapdoor flooropening. The cited violation was the hazard created by missing planksin the walkway. The condition of the pit was not cited. Thephotograph of the two planks (Ex. C-1) reveals that they ware notcovering a water pit or trapdoor floor opening.The Secretary has the burden of proof in establishing the applicabilityof the standard. _Astra Pharmaceuticals, Inc._, 82 OSAHRC 55\/E9, 9 BNAOSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1979). In her brief,the Secretary represents that \”[t]he opening was caused by the absenceof two of several planks which provided a cover to a pit and also servedas a walkway.\” The representation goes beyond the establishedevidence. The evidence does not establish that the planks \”provided acover to a pit.\” The Secretary’s principal witness testified that thecited area was \”a walkway leading to the water pit\” (emphasis added)(Tr. 21). The evidence does not establish what the planks cover (Seefootnote 3). The Secretary has failed to establish the two missingplanks 17, 42. Where the pieces are joined is the the point ofoperation (Tr. 41). (The unguarded point of operation is a separateallegation.) The unguarded pinch point cited in this a allegation occursas the process ends and the upper die ascends to rejoin the uppercylinder (Tr. 38-40, 41). The gap exists between the upper portion ofthe die plate and the cylinder above it (Exs. C-2, C-35, C-4, Tr. 38). The size of the gap between the upper die in its descended position andthe cylinder is 3-3\/4 inches (Tr. 39, 113). It is this gap that isclosed as the upper die ascends to the upper cylinder and creates apinch point between the upper die and the cylinder. The injection andsplicing processes are similar in operation (Tr. 37-42).The operator stands directly in front of the press while feedingmaterials into the die area. Once the material has been placed in thepoint of operation, the press is activated by a lever which is locatedabove and to the left of the cylinder (Ex. C-2; Tr. 39-40). Hardingtestified that the operator’s hands could be within the die area whenthe cylinder is descending (Tr. 40). She later testified that, when theleft hand activates the lever, the right hand is free to go anywhere(Tr. 42). The material is placed in the die area or point of operationby hand. Ms. Harding later testified that the employee would have tohold onto the floppy material while the machine is activated (Tr. 49). If the machine is activated with the left hand, then the right handwould be holding the material while it is activated.Section 1910.212(a)(1) [[4]] 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(7th Cir. 1982). In order to establish a violation of ? 1910.212(a)(1),the Secretary must first prove the existence of a hazard which isrevealed \”by how the machine functions and how it is operated by theemployees.\” _Stacy Mfg. Co_. 82 OSAHRC 14\/B1, 10 BNA OSHC 1534, 1982 CCHOSHD ? 25,965 (No. 76-1656, 1982). A potential hazard in this casewould exist as the upper die, which descended to mold the two rubberpieces together, ascends to rejoin the upper cylinder. The descendingof the die causes a 3-3\/4-inch gap that is closed as the upper dieascends to the cylinder. It is obvious that anyone inadvertentlyplacing a finger or hand into the gap as the die ascends would beexposed to injury.The crux of the dispute is how likely the work habit or environment ofthe operator would permit an inadvertent or accidental placing of handsor fingers in the gap. Unfortunately, too many relevant facts are leftto the imagination–an imperfect manner for determining a hazard. Theevidence does not show that the operator had any reason to place hishands or fingers in the gap area as the die ascends. The record doesnot state how fast the die ascends. Ms. Harding’s testimony as towhether the right hand is free or is holding the floppy rubber materialin the die as the press is activated by the left hand is inconsistent. If the right hand is holding materials, it is difficult to see how Ms.Harding could conclude it was free to accidentally contact the gaparea. If the operator places the material by hand into the point ofoperation and holds it until the upper die descends and molds the twopieces, it is doubtful that he would have time to get a finger or handin the gap area. This is especially true in light of Ms. Harding’slater testimony that the stock is removed by hand after the operation iscompleted (Tr. 49). She also testified that the stock is adjusted inthe die by hand. The evidence does not disclose how close the righthand is to the gap area as the operator holds it when the die ascendsand when he removes the material as the die ascends.In determining whether a hazard exists, all circumstances, including themanner in which the machine functions and how it is operated by theemployees, must be considered. _Rockwell International Corp_., 80OSAHRC 118\/A2, BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980). The operation of the presses does not require that the operator placehis hand in the gap area.The evidence of whether a hazard exists in operation of the presses isleft to speculation and conjecture. The evidence is too incomplete toconclude a hazard existed. The mere fact that the gap was unguarded andthat it was not impossible for an employee to get his hands or fingersin the area does not demonstrate that the operator was exposed to ahazard. _Cf., Armour Food Co_., 1990 OSAHRC, BNA OSHC 1990 CCH OSHD ?(No. 86-247, September 24, 1990). The Secretary failed to show thelocation of the hands as the die ascends. The evidence fails todisclose any reason or occasion for an employee’s hands or fingers tocome into contact with the gap.The Secretary must show a more direct relationship between the manner inwhich the press is operated and the hazard presented by the gap. Forinstance, at what speed did the die ascend and how close were theoperator’s hands to the gap area as he removed the stock from the die. Since there are no reported injuries, there is no evidence to show thatthe hazard was realistic when considered in relation to the manner inwhich the press was operated. The lack of injuries, although notconclusive, buttresses arguments that there was no exposure to injury. _Rockwell International Corp., supra_. The Secretary has failed to meether burden of proof. The alleged violation of ? 1910.212(a)(1) is vacated.Item 4_Alleged Violation of 29 C.F.R. ? 1910.212(a)(3)(ii_)The alleged violation of ? 1910.212(a)(3)(ii) involves the same splicerscovered under the previous allegation concerning pinch points (Tr. 46,47). The Secretary contends that the splicers violated ?1910.212(a)(3)(ii) since the point of operation was unguarded (Tr. 46). As previously discussed under item three, the splicers were equippedwith two-hand tripping devices, but none of them were operational (Tr.48-49). The splicer was activated by a lever located in the area ofthe timer on the upper left of the splicer (Tr. 47, 48-49).The operator stands in front of the splicer and takes two pieces of thestock, a floppy rubber material, and places it into the point ofoperation by hand. The left hand is normally used to activate thesplicer. According to Harding, this leaves the right hand free to be inany area of the die or press (Tr. 47). This statement is inconsistentwith later testimony that the employees would have to hold onto thefloppy material while the press is activated (Tr. 49). If this is thecase, then the statement that the right hand is free to be in any areaof the die or press can’t be true. Her testimony that the material isremoved from the die by hand (Tr. 49) is also inconsistent with thestatement that the right hand is free. The opening between the two dieswhere the stock is placed is 2-1\/4 inches (Tr. 47-48).Section 1910.212(a)(3)(ii) [[5]] requires that the point of operation ofa machine be guarded if the operator is exposed to injury, and that theguarding device be so designed and constructed as to prevent theoperator from having any part of his body in the danger zone during theoperating cycle. The standard, by express wording, requires that thepoint of operation expose an employee to injury before the employer hasto guard it. Rockwell International Corp., 80 OSAHRC 118\/A2, 9 BNA OSHC1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980). \”The mere fact that it[is] not impossible for an employee to insert his hands [in the point ofoperation] does not itself prove that the point of operation exposes himto injury. whether a machine presents a hazard must be determined by howthe machine functions and how it is operated by employees.\” RockwellInternational Corp., supra, 9 BNA OSHC at 1097-98. In order to prove aviolation of ? 1910.212(a)(3)(ii), the Secretary must establish that (1)the point of operation of the splicers was unguarded, and (2) that theoperation of the operation of the splicers employees to injury. TheSecretary has established.the first point but has failed in meeting herburden of proof on the second point.Once again, relevant details as to how the splicers function and areoperated by employees are missing. [[6]] Ms. Harding assumes there is aviolation since the point of operation is not guarded. There is nodispute over this fact; but, before guarding is required, the Secretarymust show that the operator is exposed to injury as a result of themanner in which the splicer is utilized. While Ms. Harding testifiedthat the operator’s hands were \”in close proximity to the die,\” (Tr. 47)it is impossible to find a violation on this fact. The words \”closeproximity\” are too nebulous in meaning to assume that there was any realdanger in operating the splicers. [[7]] The descriptive words \”closeproximity\” are of little value unless they are defined in terms ofprecise measurements, e.g., in inches. The Commission’s purpose is toafford an employer an independent review of the Secretary’s allegations.This purpose would be defeated if the Commission decided the issue onsuch nebulous terminology. In this instance, does \”close proximity\” meanwithin two feet or two inches? See footnote 7.) The party having theburden of proof must suffer the consequences for any failure to presentsufficient facts in support of the alleged violation. Accordingly, theallegation is vacated.Item 5Alleged Violation of 29 C.F.R. ? 1910.212(a)(4)The Secretary alleges that Delford violated ? 1910.212(a)(4) by itsfailure to have an interlocking barrier guard on a tumbler in the washarea that was ten feet, two inches, long and three feet in diameter.This fact is not disputed. Delford argues that the configuration of thetumbler, table, and location of the control button protect an employeefrom any injuries.A large tumbler was used in the wash area to wash parts. The parts to bewashed are loaded through two front doors of the tumbler. A controlbutton for the tumbler is located on the right at the end of the tumblerand away from the movement of the tumbler. The tumbler is approximatelyten feet long and three feet in diameter (Exs. C-5, C-6; Tr. 52-53,119). A metal table, two feet in width, is welded into place in front ofthe tumbler and extends a foot or more beyond the length of the tumbler(Exs. C-5, C-6; Tr. 120). The employee stands at the control whileactivating the tumbler (Tr. 54). The control is located within inches ofthe end of the tumbler (Ex. C-6). Employees operating the controls wouldbe at the end of the table and within a few inches of the end of thetumbler (Ex. C-6; Tr. 119).While Ms. Harding states that employees would be exposed to brushing upagainst the tumbler or the tumbler edge (Tr. 54), this does not appearto be a realistic hazard. The configuration of the tumbler and metaltable protruding in front and beyond the ends would prevent anyaccidental brushing up against it. The table was two feet wide (Tr.120). The employee would have to climb onto the metal table to brush upagainst the tumbler. He could reach the end by hand, but the placementof the controls and metal table are such that any hand of an employeethat comes between the frame holding the tumbler and the tumbler wouldhave to be deliberate. (See Exs. C-5, C-6). While Ms. Harding testifiedthat the operator’s hands could be crushed if he got them in the areabetween the tumbler and the frame, a look at exhibits C-5 and C-6dispels her theory. The distance between the control and tumbler at theend is too large to crush anyone’s hand if it accidentally got in thearea between the tumbler and the control. Ms. Harding did not see thetumbler in operation (Tr. 122) and is only guessing as to potential hazards.Section 1910.212(a)(4) [[8]] requires revolving drums to be guarded byan enclosure which is interlocked with the drive mechanism so that thedrum cannot revolve unless the guard enclosure is in place. The standardmust be read in conjunction whit ? 1910.212 (a)(1) which states machineguarding \”shall be provided to protect the operator and other employeesin the machine area from hazards.\” The Secretary has failed to show thatthe operation of the tumbler presents any hazard to employees. Theconfiguration of the tumbler in relation to the metal table and thelocation of the control buttons make it impossible for someone toaccidentally brush up against the tumbler. The fact that there is nohistory of injuries from the operation of the tumbler buttresses theconclusion that there was no realistic exposure to a hazard. RockwellInternational Corp., supra. The alleged violation is vacated.Item 6Alleged Violation of 29 C.F.R. ? 1910.219(c)(4)(i)The Secretary alleges Delford violated ? 1910.219(c)(4)(i) for failureto guard a projecting shaft from a motor in the Banbury Room of the pitarea with a safety sleeve. The standard states:(4) Projecting shaft ends. (i) Projecting shaft ends shall present asmooth edge and end and shall not project more than one-half thediameter of the shaft unless guarded by nonrotating caps or safety sleeves.The diameter of the shaft was three inches. The projection was sixinches. Since the shaft projected more than one-half of the diameter,the standard is applicable. There is no dispute that the shaft was notguarded by a nonrotating cap or safety sleeve. The shaft had a keywaycut into it (Ex. C-7; Tr. 58-60).Ms. Harding testified that the shaft was in an exposed area wheresomeone could walk by it. On direct examination, she indicated that anemployee might enter the area to perform maintenance or to makeadjustments to the equipment in the area (Tr. 59). She was concernedthat an employee could brush up against the shaft (Tr.60). Her testimonyin regard to employees in the pit area is inconsistent. She firsttestified that she did not ask the operator for what reason he wouldenter the pit (Tr. 137-138). She then stated that the operator did nottell her for what purpose he went into the pit; but, when pressed undercross-examination, she stated the operator said \”maintenance of thearea\” (Tr. 139). She displayed little knowledge of the pit area or whatmaintenance would be performed (Tr. 134-141). There is no evidence shesaw anyone in the pit area. She admitted it was not a heavily traveledarea (Tr. 142).Ms. Harding’s testimony is considered to be nebulous and inconsistent.There is no evidence of any exposure to the rotating shaft. There is nodescription of the pit area. Its dimensions are unknown and there is noevidence as to how close anyone would come to the rotating shaft if theyentered the pit area. While the shaft was unguarded, employees did notwork in the area and the evidence indicates that maintenance dutieswould be the only reason to enter the pit. Ms. Harding assumes exposureif anyone enters the pit. No reason is offered as to why anyone wouldhave to approach the shaft even if they entered the pit. The relation ofthe shaft to walk areas in the pit is unknown. Once again, the Secretaryhas failed to prove sufficient facts to allow a thoughtful and incisiveindependent review of the violation. The point is not whether Ms.Harding thinks there was a violation but whether the facts of recordsupport a violation. The paucity of facts prevent a finding of exposurein this instance. The alleged violation is vacated. [[9]]Item 7Alleged Violation of 29 C.F.R. ? 1910.219(e)(5)(i)The Secretary alleges that Delford was in violation of ?1910.219(e)(5)(i.) for failure to guard the nip points of a three-inchwide leather belt with metal lacing on the Rusnak Tool works millingmachine in the machine shop and the lower portion of a one-half-inchV-belt and cone pulley on coiler and pack machines one two and three.Section 1910.219(e)(5)(i) provides:(5) Cone-pulley belts. (i) The cone belt and pulley shall be equippedwith a belt shifter so constructed as to adequately guard the nip pointof the belt and pulley. If the frame of the belt shifter does notadequately guard the nip point of the belt and pulley, the nip pointshall be further protected by means of a vertical guard placed in frontof the pulley and extending at least to the top of the largest step ofthe cone.There is no dispute over the fact that the cone and belt pulleys werenot equipped with a belt shifter (Tr. 65).Ms. Harding observed two separate areas of the plant that hadunprotected cone belts and pulleys (Tr. 61). One unprotected belt was athree-inch wide leather belt with metal lacing that was on a Rusnak ToolWorks milling machine in the machine shop. The other belt was aone-half-inch V-belt located in the microwave extrusion area on threeseparate machines. The belts at both locations were located less thanseven feet from the floor (Tr. 61-67). Nip points were created where thebelt ran onto the pulley (Tr. 65).area\” (Tr. 63). The operator’s location with respect to the coiler andpack machines was described as follows (Tr. 64):Q. Where does the operator stand in relationship to that machine?A. He would stand in close proximity but not directly at the cone andpulley.Q. How far would you say he would be from the cone belts and pulley?A. In that instance, a couple of feet.It is also noted that Ms. Harding was unable to describe the coil andpick machines (Tr. 143). She could recall no injuries resulting fromunguarded cone and pulleys on the coil and pack machines (Tr. 145).The language used by Ms. Harding, for the most part, was not specificenough to conclude that the operation of the machines exposed anyone tothe violative conditions. This fact, combined with her lack of knowledgeof the coil and pack machines (Tr. 143), is persuasive in concludingthat the Secretary has failed to meet her burden of proof. There is noevidence as to where the cone and pulley are located on the machines ortheir location in relationship to the operator. The exposure must be onethat is realistic and can be expected to bring the employee in contactwith the cone and pulley during normal operation of the machines. Thefact that he can touch the cone and pulley by a deliberate act ofreaching in is insufficient to meet the burden of proving he had accessto the violative condition. The allegations are vacated.Item 8Alleged Violation of 29 C.F.R. ? 1910.219(i)(2)The Secretary alleges Delford violated the requirements of ?1910.219(i)(2) in three separate instances: (1) the Banbury motorlocated in the Banbury Room of the pit area had revolving couplings thatwere not guarded; (2) the couplings for the brake on the number fourmilling machine were unguarded, and (3) the number one milling machinehad a midrail lacking near the hand brake and there was no guardrailnear the operator station.Ms. Harding testified that she observed three separate instances whereemployees were exposed to unguarded revolving couplings (Tr. 67-68). Acoupling on one of the milling machines was only partially guarded (Ex.C-8). Ms. Harding testified that a coupling on the motor located in theBanbury Room of the pit area was unprotected (Ex. C-7; Tr. 68) and thatthe number one and number four milling machines had unguarded couplings(Tr. 68). She stated that anyone passing by the areas of the unguardedcouplings or performing maintenance in the area would be exposed to thehazard (Tr. 68). Exhibit C-8 is a photograph of a partially guardedcoupling on a milling machine. It also shows partial guardrails in thearea (Tr. 69). While it is true that the coupling is only partiallyguarded, the statement by Ms. Harding that an employee working orwalking in the area would come into contact with the revolving couplingbears little relationship to reality. A quick glance at the photographof the partially guarded coupling easily reveals that employees areprevented from accidentally contacting the coupling by its locationwithin the configuration of the machine (Ex. C-8). An employee wouldhave to make a deliberate attempt to contact the coupling. There was norealistic exposure to the violative condition.Exhibit C-7 is a photograph of the unprotected coupling on the motorlocated in the Banbury Room of the pit area. The coupling isinaccessible by virtue of its location. It is located so far inside themachine that it would be difficult to reach even if an employee made adeliberate attempt to touch it. Again, there was no realistic exposureto the violative condition. The fact that a coupling is unprotected oronly partially protected does not automatically result in a violation ofthe standard.The unguarded coupling on the other milling machine is not described. Itis, therefore, impossible to judge whether or not there was exposure tothe violative condition, a fact which must be proved by the Secretary.Ms. Harding’s testimony that any employee passing by the couplings wouldbe exposed is not supported by the photographs (Exs. C-7, C-8). Ms.Harding is unrealistic on this item, as she has been on other items, asto what constitutes exposure. The allegations are vacated.Item 9Alleged Violation of 29 C.F.R. ? 1910.304(f)(1)(iv)The Secretary alleges that Delford violated ? 1910.304(f)(1)(iv) [[10]]since it had in use an electrical motor with an ungrounded lead cord.The motor operated on 110 volts (Tr. 73-74). The standard requiresground of AC systems of 50 volts to 1000 volts. Delford argues that theapplicable standard is ? 1910.304(f)(5)(v) which covers \”Equipmentconnected by cord or plug.\”Ms. Harding testified that the chemical tank in the boiler room had anelectrical motor with an ungrounded lead cord. The electrical system wasAC and carried 110 volts. The ground prong was missing from the leadcord (Tr. 73-74). The motor was used to operate the number two chemicaltank (Tr. 74). The boiler room was a wet area of the plant (Tr. 75) Ms.Harding testified that the work of employees would cause them to comeinto contact with the chemical tank (Tr. 74).Paragraph (f) of ? 1910.304 is entitled \”Grounding\” and states thatparagraphs (f)(1) through (f)(7) contain grounding requirements forsystems, conduits and equipment. The specific provision cited by theSecretary [(f)(1)(iv)] refers to AC systems. The provision which Delfordcontends is applicable [(f)(5)(v)] refers to \”Equipment connected bycord and plug.\” The evidence is clear that Delford was cited because theground prong was missing from the lead cord. There is no allegation thatthe AC system was not grounded as required by ? 1910.304(f)(1)(iv). Theallegation has reference to the removal of the ground prong from thelead cord. Section 1910.304(f)(5)(v) specifically applies to groundingof cord and plug connections. Accordingly, the alleged violation of ?1910.304(f)(1)(iv) is vacated.Although the alleged violation is vacated, the evidence reflects aviolation of another standard. The facts are not disputed and support aviolation of ? 1910.304(f)(5)(v). The violation consisted of the removalof the ground prong on the plug of the cord. Where the undisputed factsof record support a different standard from that alleged, an amendmentto conform to the proof, pursuant to Rule 15(b) of the Federal Rules ofCivil Procedure, is in order and is usually granted unless the employeris prejudiced by its being granted. \”[I]t is important to emphasize thatpleadings before the Commission are to be liberally construed and easilyamended.\” Bill C. Caroll Co., 79 OSAHRC 87\/C13, 7 BNA OSHC 1806, 1809,1979 CCH OSHD ? 23,940 (No. 76-2748, 1979). Whether a party isprejudiced by granting an amendment involves the issue of \”whether theparty opposing the amendment was denied a fair opportunity to prepareand present its cases on the merits, and whether it could offeradditional evidence if the case were tried again on a different theory.\”Morgan and Culpepper, Inc., 81 OSAHRC 26\/A2, 9 BNA OSHC 1533, 1537, 1981CCH OSHD ? 25,293 (No. 9850, 1981).The allegation points to a simple matter that is undisputed–the groundprong had been removed. The removal of the prong resulted in theviolation. Amending the pleadings to find a violation of ?1910.304(f)(5)(v) will not prejudice Delford. There is no dispute overthe relevant fact. Accordingly, an amendment is granted and a violationof ? 1910.304(f)(5)(v) is determined from the facts of record.\”OTHER\” CITATIONItem 1Alleged Violation of 29 C.F.R. ? 1910.22(a)(1)The Secretary alleges that Delford was in violation of ? 1910.22(a)(1)because the back exit from the Banbury Room leading to the main floorhad debris in the stairway landing. Delford does not argue that somedebris might have been on the stairway landing but states it was theretemporarily. According to Delford, \”[t]he alleged condition wastransitory and self abated.\” It further states that the conditionpresented no direct or immediate hazard to employees.Ms. Harding observed an exit leading from the Banbury Room was clutteredwith various debris–rags, paper and containers. Approximately half ofthe landing was taken up with the debris (Tr. 76-78). The debris did notcompletely block the stairs. Anyone traversing the stairs could pass tothe left side of the debris (Tr. 78).The cited standard, ? 1910.22(a)(1), is clear in its requirements. Itprovides:All places of employment, passageways, storerooms, and service roomsshall be kept clean and orderly and in a sanitary condition.The standard requires all passageways to be kept in a clean and orderlycondition. The landing to the stairs from the room was covered withdebris. The debris would present a hazard to employees as they traversedthe area. The violation has been established.Item 2Alleged Violation of 29 C.F.R. ? 1910.37(k)(2)The Secretary alleges that Delford was in violation of ? 1910.37(k)(2)due to the fact the exit door in the Banbury Mill Area was blocked bybarrels of chemicals. Delford argues that this was a temporary conditionresulting from the barrels having been just delivered. It also arguesthat there were at least two other exits and an overhead door.Ms. Harding observed that the rear exit door in the Banbury Mill Areawas blocked by barrels of chemicals (Tr. 78-79). Employees were workingin the room (Tr. 79). The photograph placed into evidence by theSecretary supports the testimony of Ms. Harding (Ex. C-9). Thephotograph clearly shows the exit door blocked by several barrels. Anoverhead door was located besides the exit door. It was in the downposition (Ex. C-9; Tr. 156). There were at least two other exits fromthe area that did not include the overhead door (Tr. 156).Section 1920.37 (k) (2) provides that \”[m]eans of egress shall becontinuously maintained free of all obstructions or impediments to fullinstant use in the case of fire or other emergency.\” The standard, bythe use of the words \”continuously maintained free\” and \”full instantuse,\” places an employer on notice that temporary unloading which blocksan exit is prohibited by the standard. Emergencies usually arise withoutadvance notice. It is important that all exits be kept free at all timesbecause of this fact. Delford’s argument that it was a temporarycondition has no merit. The standard further refers to \”means of egress\”which would include all exits. The fact there were at least two otherexits does not excuse the fact that the exit was blocked. In theconfusion of a fire or other emergency, there is no assurance that allpersons in the building will know or remember which exit or exit areblocked. The alleged violation is affirmed.Item 3Alleged Violation of 29 C.F.R. ? 1910.101(b)The secretary alleges that Delford was in violation of ? 1910.101(b),because a cylinder of nitrogen in the Banbury pit area was unsecured.The citation was amended by paragraph XVI of the complaint to reflectthat Delford did not comply with section 3.2.3 and\/or 3.3.8 of theCompressed Gas Association Pamphlet P-1-1965 rather than section 3.4.4referenced in the citation. Delford argues that the failure of theSecretary to divulge the contents of the Compressed Gas AssociationPamphlet P-1-1965 referenced in the standard refutes the allegation madeby the Secretary.Ms. Harding observed a cylinder of nitrogen in the Banbury Pit area. Itwas located at the base of the stairway which led into the pit along theleft wall. It was not secured (Tr. 80). Employees using the stairs to godown to the pit area were exposed to the condition (Tr. 81).Section 1910.101(b) [[11]] makes reference to Compressed Gas AssociationPamphlet P-1-1965. The sections referenced in the in complaint provide:3.2.3 Never drop cylinders nor permit them to strike against each otheror against other surfaces violently.3.3.8 Protect cylinders from any object that will produce a cut or otherabrasion in the surface of the metal. Do not store cylinders nearelevators or gangways, or in locations where heavy moving objects maystrike or fall on them. Where caps are provided for valve protection,such caps shall be kept on cylinders in storage.The Secretary’s brief relies on section 3.3.8 of the pamphlet as thebasis for the violation.Section 3.3.8 prohibits storing cylinders near elevators or gangways orin locations where heavy moving objects may strike or fall on them. Thisprovision pertains to storing cylinders near elevators or gangways. Thealleged violation cited was for having a cylinder of nitrogen unsecured.Section 3.3.8 does not require the cylinders to be secured. Its primarypurpose is to protect the cylinder from any object that might produce acut or other abrasion in the metal.Section 3.2.3 also does not require the cylinders to be secured.The original allegation. set forth in the citation, before amendment,makes reference to section 3.4.4 with the statement that one cylinder ofnitrogen was unsecured. Section 3.4 of pamphlet P-1 of 1965 is entitled:\”Withdrawing Cylinder Contents.\” Subsection 3.4.4 states:Before using cylinder, be sure it is properly supported to prevent itfrom being knocked over.There is no evidence the nitrogen cylinder was in use. Ms. Hardingnoticed the cylinder at the base of the stairway. Delford was citedbecause the cylinder was unsecured.The Secretary has failed to show that Delford was required to secure thecylinder. The sections of the Compressed Gas Association PamphletP-1-1965 referenced by the Secretary do not require the cylinder to besecured. [[12]] The alleged violation is vacated.Item 4Alleged Violation of 29 C.F.R. ? 1910.157(e)(3)The Secretary alleges Delford violated ? 1910.157(e)(3) by failure torecord the date of the assured maintenance check on two portable fireextinguishers. This section provides, in pertinent part, as follows:The employer shall assure that portable fire extinguishers are subjectedto an annual maintenance check… The employer shall record the annualmaintenance date and retain this record for one year after that lastentry or the life of the shell, whichever is less. The record shall beavailable to the Assistant Secretary upon request.Delford states that the fire extinguishers are inspected constantly bycompany engineers and that they were approved by an outside company.Ms. Harding observed two fire extinguishers which did not have evidenceof annual maintenance (Tr. 83). One was located in the Banbury Pit areaand the second was located in the machine shop. These facts areundisputed and support the allegation. The alleged violation is affirmed.Delford argues that the fire extinguishers were inspected. The Secretaryhas not alleged that an annual maintenance check was not made. It is thefollowing language in the standard which the Secretary alleges was violated:The employer shall record the annual maintenance date and retain therecord for one year after the last entry or the life of the shell,whichever is less.The standard requires an annual maintenance check and the recording ofthe date. The standard states that \”[t]he employer shall record theannual maintenance date.\” The use of the word \”shall\” makes therequirement mandatory.Item 5Alleged Violation of 29 C.F.R. ? 1910.215(b)(9)The Secretary alleges Delford violated ? 1910.215(b)(9) for failure tohave tongue guards on two Baldor grinders located in the machine shop.The grinders have an abrasive wheel which is used to sharpen tool bits(Tr. 84-85). Delford argues that the grinders have a peripheraladjustable member which shields the entire area of the rotating wheel.Ms. Harding observed two Baldor grinders (abrasive wheels) in themachine shop that did not have the necessary tongue guards (Tr. 84-85,98). The left side of one of the grinders was missing a tongue guard andthe second grinder did not have any tongue guards (Tr. 87). The twogrinders had a periphery guard and work rest (Tr. 65).Section 1910.215(b)(9) provides:Exposure adjustment. Safety guards of the types described insubparagraphs (3) and (4) of this paragraph, where the operator standsin front of the opening, shall be constructed so that the peripheralprotecting member can be adjusted to the constantly decreasing diameterof the wheel. The maximum angular exposure above the horizontal plane ofthe wheel spindle as specified in paragraphs (b)(3) and (4) of thissection shall never be exceeded, and the distance between the wheelperiphery and the Section 1910.303(f) provides as follows:Identification disconnecting means and circuits. Each disconnectingmeans required by this subpart for motors and appliances shall belegibly marked to indicate its purpose, unless located and arranged sothe purpose is evident. Each service, feeder, and branch circuit, at itsdisconnecting means or over current device, shall be legibly marked toindicate its purpose, unless located and arranged so the purpose isevident. These markings shall be of sufficient durability to withstandthe environment involved.Delford argues that the Secretary has to prove a hazard exists beforethe standard is applicable. This is not a correct position with respectto all standards. Some standards, by their express wording, require thata hazard be shown before they are applicable; other standardsautomatically recognize a hazard which the standard was promulgated toprevent. In such circumstances, it is not necessary for the Secretary toprove that hazard again. A hazard is presumed if the facts coincide withthe conditions the standard seeks to prevent. In order to prove aviolation of a particular standard, the first thing the Secretary mustdo is show by a preponderance of the evidence that the cited standardapplies. Astra Pharmaceutical Products, Inc., supra, 9 BNA OSHC at 2129.If the standard requires the Secretary to establish a hazard, then shemust prove the hazard to show the standard is applicable.Section 1910.303(f) does not require that the Secretary prove a hazardbefore it is applicable. The standard is presumed to have beenpromulgated to prevent a hazard that could arise if the disconnects werenot labeled. In this instance, the Secretary must show that the standardis applicable and that the disconnects were not marked or were notlegibly marked. Ms. Harding’s testimony is undisputed on these points.The cited condition is controlled by ? 1910.303(f). Delford haddisconnects and they were not marked to indicate their purpose.In addition to proving that (1) the cited standard applies, and (2) thatthere was a failure to comply with the standard; the Secretary must showthat (3) employees had access to the violative condition, and (4) thecited employer either knew or could have known of the condition with theexercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 9BNA OSHC at 2129. The evidence supports a violation of the standard. Theallegation is affirmed.Item 7Alleged Violation of 29 C.F.R. ? 1910.305(g)(1)(iii)The Secretary withdrew the alleged \”other\” violation of ?1910.305(g)(1)(iii) (Tr. 90).Item 8Alleged Violation of ? 1910.305(g)(2)(iii)The Secretary alleges DeIford violated ? 1910.305(g)(2)(iii) because aflexible cord in the microwave extrusion area had a \”pendant with frayedcord due to tension of receptacle without restraint.\”In the microwave extrusion area, a flexible cord in use was not fittedwith tension restraints (Ex. C-10; Tr. 90). The photograph of thecondition shows a pendant cord in disrepair and with no tensionrestraints (Tr. 91). Two machines were plugged into the receptacle heldby the flexible cord (Ex. C-10; Tr. 92). The receptacle was in seriousdisrepair (Tr. 93). Employees were working in the area (Tr. 92).Section 1910.305 (g)(2)(iii) provides:Flexible cords shall be connected to devices and fittings so that strainrelief is provided which will prevent pull from being directlytransmitted to Joints or terminal screws.It is undisputed that no strain relief was provided. This fact issupported by the photograph entered into evidence as C-10. The allegedviolation is affirmed.DOCKET NO. 89-1753Alleged Violation of 29 C.F.R. ? 1910.132(a)The Secretary alleges that Delford was in serious violation of ?1910.132(a) since employees were handling chemicals capable of causingskin irritation or contact dermatitis without wearing rubber orchemical-resilient gloves. Delford argues that the compliance officerwas unable to differentiate between an allergic reaction and dermatitis.It also contends that she did not run any tests proving that thechemicals used actually caused dermatitis and offered no proof of theexistence of contact dermatitis. It is claimed that the listing of arash condition on the Log 200 form does not necessarily mean that theclaim is bona fide.On February 22, 1990, Industrial Hygienist Eileen M. Walsh conducted aninspection of Delford’s facilities in Middletown, New York. Theinspection was based on a complaint received by the local OSHA office.Employees were complaining that there were various instances of contactdermatitis that occurred in the plant over a number of years and thatnothing could be done about it. The complaint also dealt with the factthat there was a hole in the floor in the Banbury area (Tr. 168).in connection with the inspection, Ms. Walsh made a review of the OSHA200 logs maintained by Delford for the years 1986, 1987 and 1988. TheOSHA 200 logs show that during the year 1987, three employees had lostwork days due to contact dermatitis. The OSHA 200 log for 1988 showsthat there were three different instances of contact dermatitisinvolving the same individual (Tr. 176).Contact dermatitis is a rash or irritation which can develop on thehands due to contact. with a chemical (Tr. 177). Ms. Walsh spoke to twoemployees who had had contact dermatitis and one employee who wascurrently experiencing difficulty with it. She viewed the hands of theindividual who had contact dermatitis and described the hands as beingvery raw, red and chapped. She indicated that moisture had out of thehands and that there was extreme irritation (Tr. 177-178).Ms. Walsh determined that the employees handled chemicals. She asked therepresentative what chemicals they used and also requested to see thematerial safety data sheets in those areas where the problems had beenoccurring (Tr. 178). She reviewed the MSD’s and Mr. Reach confirmed thefact that the chemicals used by employees were as listed in the MSD’s(Tr. 179). She determined that the employees handled paraplex, morfax,polyethylene, and sulfads (Tr. 178). She determined that anyone havingcontact with these chemicals could contact dermatitis or possibly moreserious illnesses (Tr. 179). Most of the chemicals being used requiredneoprene, rubber or chemical-resistant gloves (Tr.179).The Secretary placed into evidence (Ex. C-14) several copies of materialsafety data sheets which show that the handling of the chemicals or skincontact with the chemicals could lead to dermatitis and possible skinsensitization. All of the chemicals listed in the material safety datasheets are not used on a daily basis. However, all of them are kept onthe premises and are used by the employees at different times (Tr. 180).Ms. Walsh observed that Delford’s employees were using cotton gloves tohandle the chemicals. She considered the cotton gloves to be inadequateprotection since they are not chemical resistant (Tr. 184). Theemployees come into contact with the chemicals as they take them out ofthe bins and the plastic bags and pour them into a machine (Tr. 184).Respondent’s president, in his cross-examination, sought to prove thatMs. Walsh had incorrectly referred to the condition as contactdermatitis. Ms. Walsh admitted that she had no documentation from anydoctors to confirm the fact that the employees had contact dermatitis(Tr. 191-192). She also admitted that she could not tell the differencebetween an allergy and contact dermatitis (Tr. 192). She furtherconceded that there were no cases of skin irritation for the year 1989(Tr. 194). The OSHA 200 logs for 1987 and 1988 recorded cases of contactdermatitis and confirm the fact that it existed among the workers.Delford made the determination of the cases as they were recorded andits attempt to repudiate the cases by insinuating that it was a rash iswithout merit.The standard in issue is broadly worded and imposes a generalized dutyto protect employees by the use of whatever personal protectiveequipment is necessary by reason of certain hazards. As a prerequisiteto establishing a violation of ? 1910.132(a), the Secretary must eithershow that the employer had actual knowledge that such a hazard existedor that a reasonable person familiar with the circumstances wouldperceive that a hazard exists which warrants the use of protectiveequipment. Armour Food Co., Supra; Owens-Corning Fiberglas Corp., 79OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ? 23,509 (No.76-4990, 1979)aff’d, 659 F.2d 1285 (5th Cir. 1981). The evidence supports a findingthat Delford knew or should have known that a hazardous conditionexisted which required the use of appropriate gloves. The materialsafety data sheets listed various harmful effects to the skin includingirritation, contact dermatitis, skin sensitization, and in someinstances, skin tumors. The OSHA 200’s listed cases of contactdermatitis which had resulted in lost work time. The employees werewearing cotton gloves for some protection against the chemicals althoughthese gloves were inadequate. The material safety data sheets alsosuggested the use of rubber gloves. The OSHA 200’s and the materialsafety data sheets are strong evidence that a reasonable person,familiar with the facts and circumstances particular to the industry inwhich Delford is engaged, would be aware of the hazard. The allegedviolation is affirmed.CLASSIFICATION OF VIOLATIONSThe Secretary has alleged that the violations of ? 1910.304(f)(1)(iv)and ? 1910.132(a) are serious within the meaning of section 17(k) of theAct. \”To establish that a violation is ‘serious’ it must be shown thatthere is a reasonable probability that death or serious physical harmcould result from the violative condition and that the employer knew orwith the exercise of reasonable diligence could have known of thepresence of the violation.\” Wisconsin Electric Power Co., 76 OSAHRC134\/B2, 4 BNA OSHC 1787, 1976-77 CCH OSHD ? 21,234 at p. 25,532 (No.5209, 1976) aff’d, 567 F.2d 735 (7th Cir. 1977). The Secretary does nothave to establish the likelihood of an accident before the violation canbe classified as serious. She \”need only show that an accident ispossible and that such an accident will most likely result in a seriousinjury.\” Communications, Inc., 79 OSAHRC 6l\/A2, 7 BNA OSHC 1598, 1602,1979 CCH OSHD ? 23,759, at p. 28,813 (No. 76-1924, 1979), aff’d in anunpublished opinion, No. 79-2148 (D.C. Cir. 1981).The violation of ? 1910.304(f)(1)(iv) results from the fact that aground prong was missing from the plug which led to an electrical motorin the boiler room. The system carried 110 volts. As result of the lackof the ground plug, employees were exposed to possible electrocution orburns of a serious nature.The violation of ? 1910.132(a) resulted from the fact that employeeswere exposed to contact dermatitis. Contact dermatitis can result ininfections and other complications which can lead to serious illnesses(Tr. 186).The violations of ? 1910.304(f)(1)(iv) and ? 1910.132(a) are properlyclassified as serious.PENALTY DETERMINATIONWhile the Secretary proposed a penalty of $400 for the violation of ?1910.304(f)(1)(iv), and $360 for the violation of ? 1910.132(a); theCommission is the final arbiter in all contested cases. Secretary v.OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Undersection 17(j) of the Act, the Commission is required to find and givedue consideration to the size of the employer’s business, the gravity ofthe violation, the good faith of the employer, and the history ofprevious violations in determining the assessment of an appropriatepenalty. The gravity of the offense is the principal factor to beconsidered. Nacirema Operating Co., 72 OSAHRC 1\/B1O, 1 BNA OSHC 1001,1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The gravity of the violation of ?1910.304(f)(1)(iv) is difficult todetermine. The number of employees exposed and the length of theirexposure is unknown. The employer has had other inspections butdisplayed good faith in this matter by correcting the alleged violationspointed out to it on the spot or quickly thereafter. After consideringall the factors in section 17(j) of the Act, it is determined that apenalty of $300 is appropriate for the violation.Several employees were exposed to chemicals that caused or could causecontact dermatitis. The employees were wearing cotton gloves whichtended to absorb the chemicals. Employees could develop infections andsevere complications from the progression of contact dermatitis thatcould cause more serious health problems. A penalty of $360 is assessedfor the violation of 1910.132(a).FINDINGS OF FACT AND CONCLUSIONS OF LAWThe 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.ORDERBased upon the foregoing findings of fact and conclusions of law, it isORDERED: 1. That the serious citation and proposed penalties issued toDelford on April 3, 1989, (Docket No. 89-1263), are vacated, modifiedand affirmed as follows:Item No. \tDisposition \tAssessed Penalty1 \tVacated \tVacated2 \tVacated \tVacated3 \tVacated \tVacated4 \tVacated \tVacated5 \tVacated \tVacated6 \tVacated \tvacated7 \tVacated \tVacated8 \tVacated \tVacated9 \tModified and \t$300\tAffirmed \t2. That items three and seven of the \”other\” citation issued to Delfordon April 3, 1989, (Docket No. 89-1263), are vacated and items one, two,four, five, six, and eight are affirmed; and3. That the serious citation issued to Delford on May 15, 1989, (DocketNo. 89-1753), is affirmed and a penalty of $360 assessed for the violation.Dated this other day of November 1990.JAMES D. BURROUGHSJudgeFOOTNOTES:[[1]] Section 1910.23(a)(5) provides:Every pit and trapdoor floor opening, infrequently used, shall beguarded by a floor opening cover of standard strength and construction.While the cover is not in place, the pit or trap opening shall beconstantly attended by someone or shall be protected on all exposedsides by removable standard railings.[[2]] The transcript erroneously states this opening was 300 inches deep(Tr. 21).[[3]] Respondent states in its brief that the walkway covered a drainleading to a pit combining well and city water. This fact was notestablished in the evidence of record.[[4]] 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 an 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.[[5]] Section 1910.212(a)(3)(ii) provides:The point of operation of machines whose operation exposes an employeeto injury, shall be guarded. The guarding device shall be in conformitywith any appropriate standards therefor, or in the absence of applicablespecific standards, shall be so designed and constructed as to preventthe operator from having any part of his body in the danger zone duringthe operating cycle.[[6]] There is no information as to how far the operator’s hands arefrom the point of operation as he holds the material in the die. Thereis no evidence as to how fast the upper die descends, and there is noevidence as to whether there is any reason for the operator to place hishands in the die area. These are important factors in determining if aviolation has occurred.[[7]] In using the term \”close proximity\” in testifying on item seven,Ms. Harding had in mind a distance of two feet (Tr. 64).[[8]] Section 1910.212 (a) (4) of 29 C. F. R. provides:Barrels, containers, and drums. Revolving drums, barrels, and containersshall be guarded by an enclosure which is interlocked with the drivemechanism, so that the barrel, drum, or container cannot revolve unlessthe guard enclosure is in place.[[9]] Respondent states in its brief that the Banbury operator is theonly employee to enter the pit for the purpose of performing maintenanceand that the equipment is turned off before he enters. This last fact isnot part of the evidence of record and cannot be considered an evidencein resolving this issue. Prior to the hearing, Mr. Reach was advised anto the hearing procedure and specifically advised that the Judge couldconsider only the facts placed into evidence in reaching a decision. Hewas advised to place all facts into the record he deemed would behelpful to his case.[[10]] Section 1910.304 (f) (1) (iv) provides:AC systems of 50 volts to 1000 volts shall be grounded under any of thefollowing conditions unless exempted by paragraph (f) (1) (v) of thissection:(A) If the system can be so grounded that the maximum voltage to groundon the ungrounded conductors does not exceed 150 volts;(B) If the system is nominally rated 480Y\/277 volt, 3-phase, 4-wire inwhich the neutral is used as a circuit conductor;(C) If the system is nominally rated 240\/120 volt, 3-phase, 4-wire whichthe midpoint of one phase is used as a circuit conductor; or(D) If a service conductor is uninsulated.[[11]] Section 1910.101 (b) provides:Compressed gases. The in-plant handling, storage, and utilization of allcompressed gases in cylinders, portable tanks, rail tankcars, or motorvehicle cargo tanks shall be in accordance with Compressed GasAssociation Pamphlet P-1-1965.[[12]] It is noted that section 3.5.8 of the Compressed Gas AssociationPamphlet P-1-1984 does not automatically require every cylinder besecured. It provides:3.5.8 Storage and Use of Containers. All compressed gas containers inservice or in storage shall be stored standing upright where they arenot likely to be knocked over, or the containers shall be secured. Atcontainer filling plant operations and sellers’ warehouses, the nestingof tightly stacked containers is considered an equivalent safe manner ofstorage. Gas containers with a water volume up to 305 cu. in (5.0 L) maybe stored in a horizontal position.[[1]] Section 1910.23(a)(5) provides:Every pit and trapdoor floor opening, infrequently used, shall beguarded by a floor opening cover of standard strength and construction.While the cover is not in place, the pit or trap opening shall beconstantly attended by someone or shall be protected on all exposedsides by removable standard railings.[[2]] The transcript erroneously states this opening was 300 inches deep(Tr. 21).[[3]] Respondent states in its brief that the walkway covered a drainleading to a pit combining well and city water. This fact was notestablished in the evidence of record.[[4]] 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.[[5]] Section 1910.212(a)(3)(ii) provides:The point of operation of machines whose operation exposes an employeeto injury, shall be guarded. The guarding device shall be in conformitywith any appropriate standards therefor, or in the absence of applicablespecific standards, shall be so designed and constructed as to preventthe operator from having any part of his body in the danger zone duringthe operating cycle.[[6]] There is no information as to how far the operator’s hands arefrom the point of operation as he holds the material in the die. Thereis no evidence as to how fast the upper die descends, and there is noevidence as to whether there is any reason for the operator to place hishands in the die area. These are important factors in determining if aviolation has occurred.[[7]] In using the term \”close proximity\” in testifying on item seven,Ms. Harding had in mind a distance of two feet (Tr. 64).[[8]] Section 1910.212(a)(4) of 29 C.F.R. provides:Barrels, containers, and drums. Revolving drums, barrels, and containersshall be guarded by an enclosure which is interlocked with the drivemechanism, so that the barrel, drum, or container cannot revolve unlessthe guard enclosure is in place.[[9]] Respondent states in its brief that the Banbury operator is theonly employee to enter the pit for the purpose of performing maintenanceand that the equipment is turned off before he enters. This last fact isnot part of the evidence of record and cannot be considered as evidencein resolving this issue. Prior to the hearing, Mr. Reach was advised asto the hearing procedure and specifically advised that the Judge couldconsider only the facts placed into evidence in reaching a decision. Hewas advised to place all facts into the record he deemed would behelpful to his case.[[10]] Section 1910.304(f)(1)(iv) provides:AC systems of 50 volts to 1000 volts shall be grounded under any of thefollowing conditions, unless exempted by paragraph (f)(1)(v) of thissection:(A) If the system can be so grounded that the maximum voltage to groundon the ungrounded conductors does not exceed 150 volts;(B) If the system is nominally rated 480Y\/277 volt, 3-phase, 4-wire inwhich the neutral is used as a circuit conductor;(C) If the system is nominally rated 240\/120 volt, 3-phase, 4-wire whichthe midpoint of one phase is used as a circuit conductor; or(D) If a service conductor is uninsulated.[[11]] Section 1910.101(b) provides:Compressed gases. The in-plant handling, storage, and utilization of allcompressed gases in cylinders, portable tanks, rail tankcars, or motorvehicle cargo tanks shall be in accordance with Compressed GasAssociation Pamphlet P-1-1965.[[12]] It is noted that section 3.5.8 of the Compressed Gas AssociationPamphlet P-1-1984 does not automatically require every cylinder besecured. It provides:3.5.8 Storage and Use of Containers. All compressed gas containers inservice or in storage shall be stored standing upright where they arenot likely to be knocked over, or the containers shall be secured. Atcontainer filling plant operations and sellers’ warehouses, the nestingof tightly stacked containers is considered an equivalent safe manner ofstorage. Gas containers with a water volume up to 305 cu. in (5.0 L) maybe stored in a horizontal position.”