“Docket No. 89-2316 89-2317 SECRETARY OF LABOR,Complainant.v.TRINITY INDUSTRIES, INC.Respondent.OSHRC Docket Nos. 89-2316 & 89-2317DECISION BEFORE: FOULKE, Chairman; Wiseman and Montoya, Commissioners. BY THE COMMISSION:Trinity Industries, Inc. (\”Trinity\”) manufacturesrailcars at its plant in Bessemer, Alabama. In response to an employee complaint, OSHACompliance Officers Virginia Simmons and Terry Bailey (\”CO’s\”) inspected theplant on February 2, 1989. After their inspection, four citations were issued, eachconsisting of multiple items. A Commission Administrative Law Judge vacated or affirmed asde minimis all but three citation items. The direction for review involves two of thosethree items.[[1]]I. Housekeeping ViolationA. BackgroundThe Secretary issued Trinity an other-than-serious citation alleging a violation of thehousekeeping standard at 29 C.F.R. ? 1910.22(a)(1).[[2]] No penalty was proposed. Thecitation alleged that \”elevated walkways were cluttered with materials used forwork.\” CO Bailey testified that employees in the sill weld area worked from walkwaysput up alongside the railcars, and that \”an inordinate amount of housing and bandingmaterial\” and \”hand tools, pieces of steel\” left on the walkway should havebeen properly stored to prevent a tripping hazard.[[3]] According to the CO’s, employeesmoved back and forth across this walkway to get steel to weld onto the cars, as well as toretrieve grinding tools to complete their work. The materials remained scattered on thewalkway even when no one was actively at work.Trinity’s general superintendent of materials, David Goodwin,testified that he had in the past worked from the sill weld area walkways. He describedthe materials in the photographic exhibits as side sill enforcements and cross ridge tieplates (components of the car), as well as grinder hoses, wire feeders, air grinders and ahammer–all tools used in the process of welding the parts to the car. Goodwin furthertestified, in essence, that an employee doing this job must work from an overhead walkwayand must have continuous access to parts and tools. He also testified that it would bemore hazardous for the parts and tools stored on the walkway to be brought up as needed.Trinity did not cross-examine the CO’s nor did the Secretarycross-examine the Trinity employee, on this subject.\u00a0 The evidence of recordconsists, therefore, of (1) two CO’s describing a tripping hazard on the walkway, and (2)Trinity’s superintendent asserting that the current arrangement was safer than having thematerials brough up as needed.B. Affirmative DefensesTrinity raised two affirmative defenses before the judge andraises the same before the Commission.1. Greater HazardTrinity claims that to abate the cited hazard by removing thetools and material from the walkway and have them brought up as needed would exposeworkers to a greater hazard than would storing them on the walkway.The judge examined Trinity’s \”greater hazard\” defensein terms of each of the three elements set forth in Lauhoff Grain Co., 13 BNAOSHC 1084, 1088, 1986-87 CCH OSHD ? 27,814, pp. 36,397-98 (No. 81-984, 1987). Toestablish this defense, the employer must demonstrate by a preponderance of the evidencethat:(1) the hazards of compliance are greater than the hazards ofnoncompliance;(2) alternative means of protection are unavailable; and(3) a variance was unavailable or inappropriate.The judge found that Trinity failed to establish any of thesethree elements, and we concur.Our reading of this record leads to a conclusion that the onlyevidence on point relates to the first element: superintendent Goodwin’s stated opinionthat bringing up the metal pieces and tools \”one by one\” would be more hazardousthan storing the items up on the walkway. However, Goodwin was not asked, nor did hevolunteer, how the materials would be brought up or why he believed such anarrangement would be more dangerous than the status quo. Trinity adduced no evidence onthe other two elements. Finding that Trinity failed to carry its evidentiary burden, thejudge affirmed the violation as other-than-serious, assessing no penalty, as none wasproposed.Under Lauhoff Grain and a number of appellate court cases,[[4]] we concur withthe judge and find that Trinity has failed to establish the elements of the \”greaterhazard\” defense. Trinity bears the burden of showing that hazards created bycompliance (clearing the walkway and making other arrangements to obtain the materials andtools) outweigh the hazards of noncompliance. Based on the limited evidence Trinityintroduced, we are unable to determine exactly what the other hazard is, let alone whetherit is \”greater\” than the one that existed.[[5]] Secondly, Trinity bears theburden of showing that no alternative means exist to protect employees against thetripping hazard that the housekeeping standard was intended to prevent. Again,insufficient testimony was elicited for the Commission to know whether some measure shortof totally clearing the walkway could serve to protect employees from the trippinghazard.[[6]] Finally, the record is silent on variances.Therefore, Trinity failed to prove the elements of the \”greater hazard\” defense,and the Secretary’s prima facie case stands.2. InfeasibilityTrinity also raises the affirmative defense of infeasibility ofcompliance. Because the tools and materials are used continuously in the fabricationprocess, Trinity argues, it is not feasible to remove them from the walkways.[[7]] Theabatement methods the Secretary proposes (removal or safer storage) are physicallypossible, but our inquiry requires further analysis. The appropriate test is whethercompliance would so interfere with performance of necessary work as to be infeasible underthe circumstances. Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1956-59, 1986-87 CCHOSHD ? 27,650, pp. 36,024-27 (No. 79-2553, 1986) on other grounds, 843 F.2d 1135 (8thCir.1988) (employer established that guardrails were incapable of being used anywhere fora sufficient length of time to serve any practical purpose of protection and would havedisrupted the work to such a degree that compliance was \”infeasible\”). Thus, atissue in this case is whether Trinity has established that removing the supplies andattempting to perform the sill weld job without such a collection of tools and a fullstockpile of materials continually close at hand would disrupt the work to such a degreethat abatement would be infeasible. The judge failed to address this defense separately inhis decision.Under Commission precedent, any employer seeking to be excused from implementing a citedstandard’s abatement measure on the basis of infeasibility has the burden of establishingeither that an alternative protective measure was used or that there was no feasiblealternative measure. Seibel Modem Mfg. & Welding Co., 15 BNA OSHC 1218, 1227,1991 CCH OSHD ? 29,442. p. 39,683 (No. 88-821, 1991). In this action, the record isdevoid of evidence demonstrating that there was no other technologically or economicallyfeasible way for Trinity to perform the sill weld operations without having an array oftools and supplies on the walkway, as they were the day of the inspection. The onlyrelevant evidence that Trinity introduced was the testimony of superintendent Goodwin, whoagreed that employees on the walkways required continuous access to tools and materials.This evidence, on its own, falls short of establishing the \”infeasibility\”defense.While \”employers [can] rely on genuinely practicalcircumstances revealing the unreasonableness of an abatement measure,\” the Commissionmay still expect employers like Trinity to \”alter their customary work practices tothe extent that alterations are reasonably necessary, to accommodate the abatementmeasures specified by OSHA standards.\” Id. Trinity failed to show that theonly way to guarantee its employees \”continuous access\” to their tools andsupplies was to place them on the walkway.C. ConclusionIn conclusion, Trinity has failed to prove that abatement,i.e., clearing or straightening up the walkway would constituted a \”greaterhazard\” or be \”infeasible\” under Commission precedent. We therefore affirmthe judge and find an other-than-serious violation, and, since the Secretary proposed nopenalty, none is assessed.II. First Aid — Eyewash FacilitiesAt issue is whether Trinity violated the first aid standard at29 C.F.R. ? 1910.151(c)[[8]] that requires eyewash facilities for employees subject tochemical splashes.It is undisputed that paint shop workers were exposed tocorrosive materials in the paints as they mixed, sprayed, and otherwise handled thepaints. Industrial hygienist Horace McCann (\”IH\”) testified that he understoodthe closest source of water to be 40 to 50 yards away–a pedal-operated water fountainsupplying a \”trickle\” suitable only for washing hands. The IH did not make aninventory of water sources and was under the mistaken impression that this was the onlysource of water available for the \”quick drenching or flushing\” contemplated bythe standard. The Secretary issued Trinity a citation for failure to provide appropriateeyewash facilities for workers in the paint area, and proposed a penalty of $630.At the hearing, superintendent Goodwin listed a number ofsources of running water in the vicinity, including lavatories, drinking fountains. andwater hoses, and testified that based on testing he had done, a worker in the paint areacould walk at a normal pace to one of these sources of fresh running water within 15 to 30seconds. The judge accepted the evidence on the number and location of sources in a lightmost favorable to Trinity[[9]] but still affirmed the violation because the sources werenot suitable under the standard.Trinity argues that its facilities were the same as those found\”suitable\” under commission precedent and that nothing in the record supports afinding of unsuitability. Citing a series of Commission cases [[10]] and unreviewed judgesdecisions, Trinity argues that nearly twenty years of precedent finding that hoses. waterfountains, sinks, and showers satisfy section 1910.151(c)–renders the judge’s decision ananomaly. The judge, however, maintains that:These decisions have eroded the intent of the standard to sucha degree that it is difficult to ever find a violation …. [F]ollowing the[se] decisions… means that if there is a source of running water available in the plant, there can beno violation….Trinity has merely recited sources of water it has not proven they aresuitable for purposes of this standard.The Secretary argues that the plain meaning of the standardrequires access to water sources \”specifically suited to delivering water tothe eyes.\” Like Trinity, she cites a number of Commission cases and unreviewedjudges’ decisions to support her position. [[11]] The Secretary further contends that\”lavatories, ordinary sinks, drinking fountains and garden hoses do not fit thisdescription,\” and that nothing in Goodwin’s at even remotely approximates what sheconsiders an appropriate eye drenching facility, such as an eyewash fountain. TheSecretary, however, gives no hint as to what other sort of water source, if any, may beconsidered suitable, nor does she detail why any of the alternative sources cited byGoodwin are unsuitable.Although under Martin v. OSHRC (CF&I SteelCorp.), 111 S.Ct. 1171 (1991), the Commission may be required to defer to theSecretary’s reasonable interpretation of an ambiguous standard, deference as to what agiven standard means does not obviate the need for the Secretary to develop a prima faciecase under that standard. Although the Secretary might have been able to present evidenceto show that the sources of water Trinity listed were not suitable under the standard, shedid not even try to do that in this case. Because of what seems to have been amisunderstanding on the day the plant was inspected, the IH failed to inspect the premisesthoroughly enough to determine first-hand what sources of water were available to aninjured worker in need of first aid. The Secretary’s evidence was limited to the IH’sdescription of the only water source he saw, and her cross-examination of the Trinityemployee who had knowledge of the other water sources produced nothing to cast doubt onthe effectiveness of the water at these sources.The judge reveals more readily than the Secretary what factorshe would take into account in determining \”suitability.\” Except for testimonydescribing the trickling pedal-operated fountain the IH observed, the record in this caseoffers facts only about the number and relative location of water sources, not about howpractical, safe, or effective they would be for getting paint out of a worker’s eyes.Superintendent Goodwin said only that a worker could get to a source of \”fresh,running water\” within 15 to 30 seconds. Granting that \”fresh\” is a relativeterm and that \”running\” tells little about the water pressure, when consideredtogether with the number and variety of water sources available, it seems that Trinity hassufficiently rebutted the Secretary’s prima facie case–if indeed one was made–to shiftthe burden of proving unsuitability back to her. This burden she did not meet.As a final note, we find that in affirming the violation, thejudge seems to have impermissibly shifted the burden of proof from the Secretary to theemployer. According to the judge, \”[w]here the Secretary establishes a need for quickdrenching or flushing, as in this case, the burden is on the employer to prove that he hassuitable facilities.\” Trinity argues that the burden was on the Secretary toshow that the facilities were unsuitable, not on Trinity to show that they were suitable,citing DuPont. Accord Anoplate Corp., 12 BNA OSHC 1678, 1684-85 &n.7, 1986-87 CCH OSHD ? 27,519, p. 35,682-3 & n.7 (No. 80-4109, 1986) (analyzing asimilar standard[[12]], placing burden on Secretary to show that water was not near,clean, cold, or under proper pressure).Even if some of the facts in the record (presence of atrickling fountain for hand-washing) might be construed so as to constitute a prima facieviolation for failure to provide any suitable facilities, enough other facts (presence ofother sources of fresh, running water) rebut the initial allegation to shift the burdenback to the Secretary, whose duty it is to show the unsuitability of the facilitiesTrinity did provide. The preponderance of the evidence does not support the judge’sfinding of a violation of this standard. We therefore vacate this citation item.ConclusionBased on the discussion above, item 3 of citation no. 3, No.89-2316, is affirmed without penalty, and item 5 of citation no. 1. No. 89-2317, isvacated.Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ChairmanDonald G. Wiseman\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerVelma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated: November 18, 1992SECRETARY OF LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent,UNITED STEELWORKERS UNION and its LOCAL 9226Authorized Employee Representative.OSHRC Docket Nos.89-2316 & 89-2317(Consolidated)APPEARANCES: L. K. Cooper, Jr., Esquire, Office of the Solicitor, U. S.Department of Labor, Birmingham, Alabama, on behalf of complainantRobert E. Rader, Jr., and David P. Blanke, Esquires, Dallas,Texas, or behalf of respondentDECISION AND ORDERBurroughs Judge: Trinity Industries, Inc. (\”Trinity\”)contests serious, willful and \”other\” citations for alleged safety violations(Docket No. 89-2316), and a serious citation for alleged health violations (Docket No.89-2317) which were issued to it on July 18, 1989.\u00a0 The cases were consolidated forpurposes of trial, briefs and decision.\u00a0 LOCAL 9226 of the United Steelworkers Unionwas granted party status (Tr. 14).The AllegationsDocket No. 89-2316The serious citation alleges a violation of section 5(a)failure to eliminate or control sources o(1) of the Act for failure to provide fallprotection for an employee working atop a rail car 15 feet above a concrete surface.\u00a0 The willful citation allgees violations of ? 1904.2(a), for failure to record allrecordable illnesses and injuries; and ? 1904.2(a), for failure to complete OSHA FormsNo. 200 in the manner provided for in the form and its instructions.\u00a0 The Secretaryalso charges Trinity with \”other\” than serious violations of ? 1904.5(c), forfailure to crtify the summary page of the OSHA 200 log; ? 1904.5(d) (1), for failure topost in a conspicuous place the annual summary of OSHA Form No. 200; and ? 1910.22(a)(1), for failure to keep places of employment clean and orderly.[[1]]Docket No. 89-2317The Secretary alleges that Trinity was in serious violation ofthe following standards:\u00a0 ? 1910.106(b) (6), for failure to eliminate or controlsources of\u00a0 ignition where the presence of flammable vapors was possible; ? 1910.184(e) (6) (i), for allowing employees to wear respirators when conditions prevented a goodface seal; ? 1910.141 (g) (2), for permitting employees to consume food and beverages inan area exposed to toxic materials; ? 1910.141 (g) (4), for allowing food and beveragesto be stored in an area exposed to toxic materials; ? 1910.151 (c), for failure toprovide flushing facilities in a work area where employees were exposed to injuriouscorrosive materials; ? 1910.1200 (f) (4) (i), [[2]] for failure to ensure that eachcontainer of hazardous chemicals was labeled, tagged, or marked with the identity of thehazardous chemicals contained therein; and ? 1910.1200 (g) (1), for failure to have amaterial safety data sheet (\”MSDS\”) for each hazardous chemical used in theworkplace.Trinity asserts several defenses starting with the allegationthat the Secretary’s warrant impermissibly exceeded the scope of the original complaint.It claims that any recordkeeping violations were the result of unpreventable employeemisconduct and that OSHA had implemented a confusing, inconsistent policy regarding therecording of flash burns. Trinity asserts that providing fall protection to employeesdoing touch-up work atop rail cars is infeasible and that requiring elevated walkways tobe kept clear of tools and materials constitutes a greater hazard to its employeesgeneral, Trinity contends that the Secretary failed to make out a prima facie case formost of the alleged violations.BackgroundTrinity Industries, Inc., manufactures rail cars at its plantin Bessemer, Alabama. On January 26, 1989, OSHA Compliance Officer Virginia Simmonsarrived at the plant to investigate a six-item complaint filed by two Trinity employees.Simmons was denied entry by Fred Hull, Trinity’s personnel manager, and by Festus Pierce,Trinity’s safety supervisor at that time (Tr. 26). Simmons returned with a warrant onJanuary 31, 1989, accompanied by OSHA Compliance Officer Terry Bailey (Ex. C-1; Tr. 27,33). They were again denied entry until Trinity could consult with its attorney. Simmonsand Bailey were finally permitted to enter the plant on February 2, 1989.On the first day of the inspection, the compliance officersheld an opening conference with Hull; Pierce; Ray Bodiford, Trinity’s manager of humanresources; and Terry Goodwin, Trinity’s manager of manufacturing (Tr. 34-35). Simmons andBailey were accompanied by Goodwin, Bodiford and a union representative on theirwalkaround inspection (Tr. 36).Trinity’s Motion to Suppress EvidenceSince Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S. Ct.1816 (1978), OSHA officials, in the absence of consent by the employer, have obtainedwarrants in aid of their inspection efforts.\u00a0 The standard of probable causeestablished in Barlow’s is not as strict as criminal probable cause. \u00a0\”[T]he Secretary need only establish administrative probable cause, which is testedby a standard of reasonableness, requiring the magistrate or jedge to ‘balance the need tosearch against the invasion in which the search entails.’ \”\u00a0 West PointPepperell, Inc. v. Donovan, 689 F. 2d 950, 957 (11th Cir. 1982).\u00a0 In Barlow’s,the court observed that administrative probable cause justifying the issuance of an OSHAinspection warrant may be based on (1) specific evidence of an existing violation, whichmay arise from a complaint or an observation by a compliance officer at the site before heis refused entry and (2) a showing that reasonable legislative or administrative standardsfor conducting an inspection are satisfied with respect to the establishment sought to beinspected, i.e., \”a specific business has been chosen for an OSHA search onthe basis of a general administrative probable cause must satisfy the basic purpose of theFourth Amendment, which is \”to safeguard the privacy and security of individualsagainst arbitrary invasions of government officials.\” Marshall v Barlow’s, Inc.,supra, 546 at 312, 98 S. Ct. at 1820. \”In the context of administrativesearches, this principle requires that persons not be subject to the unbridled discretionof ‘executive and administrative officers, particularly those in the field, as to when tosearch and whom to search.’ \” West Point Pepperell, Inc. v. Donovan, 689 F.2dat 958 (citing Marshall v. Barlow’s, Inc., 436 U.S. at 323, 98 S. Ct. at 1820).The catalyst for the inspection in this case was a formalcomplaint filed by two employees of Trinity with the Birmingham, Alabama, Area Office ofOSHA, alleging that violations of the Act existed at the Bessemer, Alabama, facilities.The complaint alleged the following conditions (Ex. C-2):1. Employees in paint department, shipping department, internalblast, etc., are not being trained or informed regarding chemicals with which they work.Toluene, xylene, ketone, catalysts, paints, etc., or [sic] examples of materials used.1910.1200(h)2. Interior lining department large lights inside cars 50 to 70pounds and can fall on employees working beneath because they aren’t properly secured.Three of these have fallen in the last week and one employee has been hit. Section 5(a)(1)3. The paint department has a heavy buildup of paint residueand fumes are real bad. Painters wear respirators but others in the area don’t. This iswhere cars are painted in the building. Also paints, thinners, etc., are stored inpainting area. 1910.107(d)(2) and 1910.107(e)(1) & 24. Track No. 3 Side sill rollover is broken and won’t securecars in position. Cars are being blocked up with 4 x 4’s. A car dropped at least on oneoccasion and an employee received a broken arm. Welders weld on top side of the car whileits [sic] in this position. Section 5(a)(1)5. Floor shop arc welding machines are placed so that theystand in water each time it rains. 1910.252(b)(4)(ix)(b)6. Seal weld area has catwalk that employees work from andwhere large amounts of material such as, re-enforcement stiffeners (sic), belly bands,roping irons and horseshoes are placed. This material is placed by crane and is oftenunstable and could fall on employees [sic] below. Section 5(a)(1)After Simmons was denied the right to conduct a consentinspection on January 26, 1989, safety supervisor John Hall filed an application forwarrant on January 27, 1989, with the U. S. Magistrate for the Northern District ofAlabama. The application, among other things, made the following representations:1. The warrant sought herein is authorized by Section 8 of theOccupational Safety and Health Act of 1970 (the Act), 29 U.S.C. ? 657, OSHA regulationspromulgated at 29 C.F.R. 1903.4, and Marshall v. Barlow’s. Inc., 436 U.S. 307, 321(1978), where the Supreme Court approved the selection of a business for an OSHAinspection either on the basis of specific evidence of an existing violation or on thebasis of a \”general administrative plan . . . derived from neutral sources . . .\”2. The Field Operations Manual (FOM) classifies inspections asprogrammed (those based, pursuant to Barlow’s, upon a general administrative plan)or unprogrammed (those based upon specific evidence of an existing violation (e.g., acomplaint)). Trinity was designated for inspection, without influence of any other factor,according to the complaint inspection procedures at Chapter IX, ? A. of the FOM (copyattached as Attachment A) (all paragraph references are to Chapter IX of the FOM). 3. This Application stems from the receipt on December 29,1988, by the Area Office of a formal complaint, a typed copy of which is attached heretoand incorporated herein as Attachment B, from two employees of Trinity which allegesbelief that violations of the Act which constitute job safety hazards and threatenphysical harm exist at the above workplace . . . . (Footnote omitted)6. Trinity is believed to be operating in Standard IndustrialClassification (SIC) 3743, which is \”Railroad Equipment.\” This SIC is classified\”high hazard\” and ranks 145th of 317 on the Safety High Rate list. Trinity isbelieved to employ approximately 600 employees. Trinity’s workplace has been inspected,albeit under another name and different ownership, numerous times during the period 1973through 1986, with serious violations found on several occasions. A records review isrequired by A.9.a.(1) during this inspection.7. With respect to the items in the complaint, I conclude thatthere are reasonable grounds to believe that violations of the Act threatening physicalharm exist at Trinity’s workplace and that an inspection is necessary. Accordingly, thisinspection will be limited to the violations alleged in the complaint and other apparentviolations within the \”Plain view\” of the inspecting compliance officers(including all pertinent conditions, structures, machines, apparatus, equipment,materials, processes, devices, controls and facilities and all injury and illness recordsand papers required to be maintained by the employer pursuant to 29 C.F.R. ? 1904.2 and1904.4 . . . .A copy of the formal complaint and Chapter IX of the OSHA FieldOperations Manual were attached to the application. The application was specific in whatwas being requested and why the request was being made.The warrant issued by U. S. Magistrate Elizabeth Todd Campbellon January 30, 1989, provided:* * * [T]he addresses are authorized, after showing appropriate credentials, to ENTERwithout delay upon the said workplace during regular working hours and to INSPECT in areasonable manner [including testing, taking photographs and measurements, collectingsamples (personal, area, and wipe) for the assessment of air contaminants and physicalagents (utilizing, among other things, sampling pumps and detector tubes) and privatelyquestioning the employer, or any of its employees or agents], the following:The alleged violations of the Act which are the subject ofComplaint Number 072479538, a copy of which is attached hereto and incorporated herein,including all pertinent conditions, structures, machines, apparatus, equipment, materials,processes, devices, controls and facilities, and all injury and illness records and papersrequired to be maintained by the employer pursuant to 29 C.F.R. ? 1904.2 and 1904.4 butnot including \”personally identifiable employee medical information\” within themeaning of 29 C.F.R. ? 1913.10, and all records and papers required to be maintained bythe employer pursuant to 29 C.F.R. ? 1200,to determine whether the employer at its workplace is complyingwith the Act and with the pertinent occupational safety and health standards andregulations promulgated under the Act.The warrant authorized an inspection of the complaint items, aswell as \”all injury and illness records and papers required o be maintained by theemployer pursuant to 29 C.F.R. ? 1904.2 and 1904.4.\” Trinity argues that the warrantimpermissibly expanded the search beyond the complaint items and moves to suppress allevidence relating to recordkeeping violations which are allegations unrelated to theoriginal complaint.Was a Warrant Needed to Gain Access to Injury And Illness Records?Trinity’s position in this matter is based on two principalpoints: (1) it has a primary interest in the accident and illness records that isprotected by the Fourth Amendment, and (2) the warrant authorizing the inspection wasimpermissibly overbroad in that the application did not contain sufficient probable causefor allowing a search of the accident and illness records. Trinity takes the view that theapplication was based solely on probable cause as established by the complaint and thatthe ensuing inspection should have been limited in scope to the items set forth in thecomplaint. Trinity is correct in its first point but in error on the second point. It isignoring the facts specifically recited in the application as to why the request was madeto view the illness and injury records.In support of its position that it has a privacy interest inits OSHA 200’s, Trinity cites Taft Broadcasting Co., Kings Island Division (\”KingsIsland\”) 87 OSAHRC 21\/D14, 13 BNA OSHC 1137. 1986-87 CCH OSHD ? 27,861 (No.82-1016, 1487), Aff’d, 849 F.2d 990 (6th Cir. 1988). The issue in Taft, supra,was whether a warrant was needed by an OSHA compliance officer who requested an inspectionof OSHA 200’s, pursuant to ? 1904.7(a). [[3]] The Review Commission concluded that awarrant was required, holding that \”the information recorded on injury records is notof interest only to OSHA, but to both OSHA and employers. The records serve multiplepurposes, and employers have some reasonable expectation of privacy in the informationrecorded on them.\” Id., 13 BNA OSHC at 1141.The Review Commission reaffirmed this ruling in EmersonElectric Co., 87 OSAHRC 22\/A5, 13 BNA OSHC 1171, 1986-87 CCH OSHD ? 27,864 (No.84-985, 1987), aff’d, 834 F.2d 994 (11th Cir. 1987), and A. B. Chance Co., OSAHRC_, 13 BNA OSHC 1172, 1986-87 CCH OSHD ? 27,863 (No. 85- 519, 1987), rev’d, 842F.2d 724 (4th Cir. 1988). In both of those cases, the Commission quoted from its KingsIsland, supra, decision, stating that \”section 1904.7(a) violates theFourth Amendment to the extent that it purports to authorize an inspection of requiredrecords without a warrant or its ‘equivalent’….\” Kings Island, 13 BNA OSHCat 1146.The Fourth Circuit reversed the Commission’s decision in A.B. Chance, finding that an OSHA compliance officer who is lawfully upon the employer’spremise as a result of an employee’s health or safety complaint may examine and copy OSHAForms 200 and 101 without first obtaining an inspection warrant. The court observed thatthe employer is required to post the OSHA 200 annual summary at its workplace and reasonedthat there can be little expectation of privacy in a document that must be posted upon theemployees bulletin board. McLaughlin v. A. B. Chance Co., 842 F.2d 724 (4th Cir.1988).The latest pronouncement on this issue comes from the ReviewCommission in Monfort of Colorado, Inc. OSAHRC 14 BNA OSHC 20550 CCH OSHD ? 28,296(No. 87-1220, 1991). In that decision, the Commission refined its view of the privacyexpectation in the OSHA forms.In Monfort, supra, a former employee of thecompany requested copies of Monfort’s OSHA 200’s for the years 1982 through 1986. Shelater testified that she requested the OSHA 200’s to learn more about a back and neckinjury she had sustained while working for Monfort. At the time of her request, the formeremployee was employed with the United Food and Commercial Workers International Union.Monfort, believing that the request came from the union, refused to provide the formeremployee with the requested records. The former employee complained to OSHA, who askedMonfort several times to turn over the records. Monfort refused each time and OSHA thenissued a citation alleging that Monfort was in willful violation of 1904.7(b)(1). Theadministrative law judge affirmed the citation but concluded (erroneously) that he did nothave the authority to decide whether the regulation violated the Fourth Amendment.In its analysis of the case, the Review Commission concludedthat the search authorized by the regulation is governmental and that the reasonablereporting requirement exception does not apply. Id., 14 BNA OSHC at 2058-2059. TheCommission then turned to the question of the employer’s reasonable expectation of privacyin the OSHA 200’s.The Commission distinguished Monfort from Kings Island, EmersonElectric and A. B. Chance , supra, in two respects: \”The degree of the intrusion; andthe party seeking the records.\” Id. at 2059. The other cases dealt with 1904.7 (a) ,which requires employers to provide access to OSHA 101’s as well as OSHA 200’s. The accessmust be provided to any authorized representative of the Secretary.The Commission found that \”the additional requirement ofdisclosure of OSHA 101’s is significant when that form is compared with OSHA 200’s.\”Id. The Commission noted that the OSHA 101 is much more detailed and probing in theinformation it seeks than the relatively cursory information required by the OSHA 200’s.The commission also noted that under 1904.7(a), the requesting parties are privateindividuals and not OSHA representatives. The Commission concluded:[T]he OSHA 101, rather than the OSHA 200, constituted the basisfor the Commission’s statement in King’s Island that \”[i]njury records maintained inaccordance with OSHA regulations contain important details about the employer’s operationsand manufacturing processes that even conscientious executives might not freely reveal tooutsiders.\” 13 BNA OSHC at 1141, 1988 CCH OSHD at p. 36,485. Because the Secretaryrequired the disclosure of OSHA 101’s, as well as OSHA 200’s in King’s Island, theintrusion into the employer’s privacy interests in that case was far greater than theminimal intrusion here.Id. at 2060.The significance this quotation has for the present case is thefact that Trinity is only objecting to the inspection of the OSHA 200’s; OSHA 101’s arenot mentioned in this case. The Commission clearly considers the privacy expectation inthe OSHA 200’s to be of a limited nature.There is also little doubt that when an employer posts eachannual summary of occupational injuries and illnesses from the OSHA 200’s, whateverexpectation of privacy the employer had in its OSHA 200’s is considerably diminished.\”There can be little expectation of privacy in information that is available toanyone observing the employer’s bulletin board.\” McLaughlin v. A. B. Chance Co.,842 F.2d at 728.Monfort, Id. at 2060.Monfort, supra, however, differs from the presentcase in that it was a former employee and not an OSHA representative who requested accessto the records. Monfort is expressly limited to situations where an employee,former employee or their representatives request the records.We therefore conclude that Monfort has no reasonableexpectation of privacy in its OSHA 200’s when access is sought under section 1904.7(b)(1).Because a reasonable expectation of privacy must be present in order to invoke theprotections of the Fourth Amendment, it is clear that the Fourth Amendment does not applyto the search authorized by section 1904.7(b)(1) . . . Accordingly, we find that section1904.151 (b) (i) does not violate the Fourth Amendment by authorizing former employees tohave address to OSHA 200’s without a warrant or subpoena.Id. at 2061.How significant is the fact that the OSHA 200’s in the presentsense were requested by OSHA compliance officers and not employees. The Commission statesthat it was the request of the OSHA 101’s that triggered the Fourth Amendment protectionsin Kings Island and its progeny; yet, it specifically limited its holding to request madeunder ? 1904.7 (b) (1), a section to which OSHA representatives cannot avail themselves.Some guidance is provided in the Commission’s discussion of the posting requirement. It isnoted that, besides having access to the posted annual summary, employees would have theopportunity to observe conditions in the workplace which gave rise to illnesses andinjuries. The Commission observes that \”[t] here is also no reason to conclude thatan employer’s privacy expectation in its OSHA 200’s is greater when an employee, formeremployee, or their representative requests them than it is when the annual summary isposted.\” Id. at 2060.This discussion establishes that the Review Commission’s focusis on knowledge that the employees already have from observations made in theirdaily work or have access to from the posted annual summary. Following the precedentestablished in King’s Island, Emerson Electric, A. B. Chance and Monfort,it must be concluded that requests made by compliance officers to inspect OSHA 200’spursuant to ? 1904.2 infringe upon the the documents and that the Fourth Amendment isapplicable under these circumstances.\u00a0 Accordingly, OSHA properly sought a warrant toView the records.There Was Probable Causefor Viewing the RecordsThe Supreme Court in Barlow’s, supra, states thata showing of administrative probable cause must satisfy the basic purpose of the fourthAmendment by safeguarding the privacy and security of individuals against the arbitraryinvasion of government officials. The Court was particularly concerned about individualsbeing subject to the \”unbridled discretion\” of executive and administrativeofficers concerning decisions as to when and whom to search. It seems clear that anygeneral administrative plan for enforcement of the Act that achieves this goal will passconstitutional muster.The Secretary proceeded in this case according to guidelinespublished in its Field Operational Manual Chapter IX, A.9.a.1. of the FOM states:9. Scope of Inspection. The scope of complaint inspections shall be determined inaccordance with the guidelines given in this section. Any departure from these guidelinesshall be supported by adequate documentation.a. Safety Complaint inspections. The inspection of a safety complaint shallnormally be a comprehensive inspection of the entire workplace except for low-hazardareas, such as office areas). The following guidelines shall be followed in determiningexceptions:(l) Records Review. In an establishment listed on the Area Office High Rate SICList (or the Low Rate SIC List when used for scheduling programmed inspections under theprocedures given in chapter II, E.2.b.(1) (e) 4a) or the Low Rate or the NonmanufacturingEstablishment Lists, an injury records review, as outlined in Chapter III, D.4, shall beperformed. If such a records review would not result in a comprehensive safety inspectionunder the guidelines for programmed inspections, or if one of the deletion criteriaapplies, the procedures given in d. of this section shall be followed.Chapter III, D.4, referenced in the preceding chapter, providesas follows:4. Records Review A records review for the purpose ofcalculating the establishment’s lost workday injury (LWDI) rate shall be conducted for allinspections (safety or health), including those for which an administrative subpoenaand\/or warrant is being served, whether the inspection is programmed or unprogrammed. Thisprocedure applies if the establishment is within an industry whose SIC code is on thesafety SIC List currently used for scheduling General Industry inspections or if theestablishment is listed on the Low Rate Establishment List or the NonmanufacturingEstablishment List for the current fiscal year.\u00a0 An LWDI rate need not becalculated for an establishment if one has already been calculated during the currentcalendar year or if the establishment meets one of the deletion criteria for a safetyinspection listed in Chapter II, K.2.b.(1)(b) 5b. (Emphasis added)It is clear\u00a0 that the secretary has established and published an administrative planfor inspecting the illness and injury records of an employer. The above languageunderlined in the quote from Chapter III removes the \”unbridled discretion\” fromthe OSHA official seeking the warrantThe application was specific in stating that records review wasrequired by chapter TX, 4.9.a.1 of the FOM, and authority was sought to conduct such aninspection. Paragraph of the application set forth the following information in support ofthe request for a records review. It stated in part:Trinity is believed to be operating in Standard IndustrialClassification (SIC) 3743, which is \”Railroad Equipment.\” This SIC is classified\”high hazard\” and ranks 145th of 317 on the Safety High date list. Trinity isbelieved to employ approximately 600 employees. Trinity’s workplace has been inspected,albeit under another name and different ownership, numerous times during the period 1973through 1986, with serious violations found on several occasions.The representation is made that Trinity is on the High Rate SICList.It is true, as Trinity contends, that the complaint filed bythe two employees does not refer to any records violations. If the the warrant was basedsolely on the complaint, it would be impermissibly overbroad. However, the applicationmakes it clear that where a complaint inspection is conducted, the Secretary hasestablished neutral criteria that is automatically triggered to determine if a recordsreview is appropriate. The application describes the procedure followed in conducting arecords review and sets forth sufficient facts that criteria. The warrant was valid in all\u00a0 respects.The \”Good Faith\” Exception is\u00a0 ApplicableIn Sarasota Concrete Co., 81 OSAHRC 48\/A6, 9 BNA OSHC1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981), aff’d, 693 F.2d 1061 (11th Cir.1981), the Commission held that it would suppress evidence gathered pursuant to a warrantif the warrant was not supported by probably cause and that suppression was an appropriateremedy even if the Secretary acted in good faith in executing the warrant. Subsequentdevelopment of the law has superseded Sarasota by restricting the grounds on whichevidence obtained through a warrant may be suppressed. See Pennsylvania Steel Foundry& Machine Co., 86 OSAHRC 45\/A3, 12 BNA OSHC 1027, 1986 CCH OSHD ? 27,671 (No.78-638, 1986); Smith Steel Casting Co., 85 OSAHRC 20\/B9, 12 BNA OSHC 1277, 1985 CCHOSHD ? 27,263 (Nos. 80-2069 & 80-2322, 1985), aff’d, 800 F.2d 1329 (5th Cir. 1986); DavisMetal Stamping, Inc., 85 OSAHRC 14\/A3, 12 BNA OSHC 1259, 1985 CCH OSHD ? 27,236 (No.78-5775, 1985), aff’d, 800 F.2d 1351 (5th Cir. 1986). The decision of the SupremeCourt in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), holding thatevidence fathered in objective reasonable reliance on a search warrant should not besuppressed, shaped the development of the law subsequent to Sarasota. Suppression ofevidence is not an automatic remedy for a violation of a constitutional, statutory orregulatory requirement.Even if there were not probable cause for a review of therecords in this matter, the \”good faith\” exception of U. S. v, Leon, supra,is deemed to be applicable. The evidence as a whole supports a finding that the Secretaryproceeded in good faith and reviewed the records in reasonable reliance on the warrant.Trinity Consented tothe ReviewAn inspection that infringes upon a reasonable expectation ofprivacy violates the Fourth Amendment if it is conducted without a warrant or its\”equivalent\”. King’s Island, supra. It is well-established thatconsent to an inspection vitiates the need for a warrant. Where consent can beestablished, it is the \”equivalent\” of a warrant.King’s Island, Emerson Electric, A. B. Chanceand Monfort all involved situations where requests to inspect the employers’ injuryand illness records were refused by the employers. No warrant was obtained in any of thesecases, and the requested records were never provided. Instead, the Secretary issuedcitations alleging violations of the standards under which the records had been requested.The factual situation in the present case differs in twosignificant aspects from the fact pattern as it existed in thee above-mentioned cases.First, upon Trinity’s refusal to the request to provide the records for inspection, theSecretary obtained a warrant. Second, Trinity provided the records to the OSHA complianceofficers during their inspection of the facility. The compliance officers were permittedto review the records and to make photocopies of them (Tr. 42, 53).Trinity argues that its representatives repeatedly stated toCompliance Officers Simmons and Bailey that it was providing the records to them underprotest and that it was not waiving its rights to contest the validity of the warrant.James Hall, Trinity’s personnel manager, was instructed to \”as best we could, make itclear that we were going to honor the warrant, did not intend to expand it, follow thewarrant and to–and to be sure that we stated that we were not giving up any of our rightsor protests that we may have\” (Tr. 516-517).Jerry Riddles, Trinity’s corporate safety environmentaldirector, talked with all of the Trinity representatives who took part in the inspectionbefore the inspection began, instructing them that \”we were honoring the searchwarrant, but we were not giving up our rights to challenge the validity of the searchwarrant or challenge any citations deriving out of the inspection with the OSHA ReviewCommission\” (Tr. 699-700).Ray Bodiford, Trinity’s human resources coordinator, told thecompliance officers that Trinity would comply with the letter of the warrant but thatanything beyond that would have to be cleared by Trinity’s attorney (Tr. 869).The statements of Trinity’s representatives do not establish that Trinity actuallyreserved its right to protest the inspection or otherwise indicate to the complianceofficers anything but full consent to the inspection. The Trinity representatives’statements establish what was discussed before the inspection began, but they do notprovide any basis for concluding that consent to the inspection was withheld. Rather,Bodiford informed Simmons that Trinity \”would comply with the letter of thewarrant,\” a statement that implies that the company was acknowledging, notprotesting, the validity of the warrant. Simmons’ testimony was unequivocal with regard tothe consensual nature of the inspection.The detail of Simmons’ testimony, the certitude of her manner,and the sincerity of her demeanor qualify her as an eminently credible witness. It isfound that whatever protests Trinity may have had, it never communicated them to Simmonsin any objectively determinable manner. Simmons asked to inspect the injury and illnessrecords and on February 3, 1989, she and Bailey were taken to a room in Trinity’s facilitywhere the records were laid out on a table (Tr. 42). It is concluded that Trinity gave itsconsent to the inspection of the records and that no Fourth Amendment protections wereviolated.Docket No. 89-2316Citation No. 1Item 1: ? 5(a)(1)Trinity is charged with the serious violation of ? 5 (a) (1)of the Act for permitting employees to work atop rail cars without fall protection,exposing them to a fall of 15 feet onto a concrete surface. Section 5(a)(1) provides:(1) Each employer shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to his employees.Simmons and Bailey observed an employee, Shirley Kinard,working atop a rail car in the shipping area. Kinard was not tied off, nor was sheprovided with any other form of fall protection. She was exposed to a fall of 15 feet ontoa concrete surface (Ex. C-9; Tr. 71).The Secretary has the burden to prove the violation. in orderto prove a violation of section 5(a)(1), the Secretary must show:(1) [T]hat a condition or activity in the employer’s workplacepresented a hazard to employees, (2) that the cited employer or the employer’s industryrecognized the hazard, (3) that the hazard was likely to cause death or serious physicalharm, and (4) that feasible means existed to eliminate or materially reduce the hazard. UnitedStates Steel Corp.,12 BNA OSHC 1692, 1997-98, 1986-87 CCH OSHD ? 27,517, p. 35,669(No. 79-1998, 1986).Coleco Industries, Inc., _ OSAHRC ___, 14 BNA OSHC 1961,1963, 1991 CCH OSHD ? 27,748 (No. 84-546, 1991).At the time of the inspection, Kinard was assigned to touch upthe paint on the tops of the rail cars. This job required Kinard and one other employee towork atop the rail cars for eight hours a day, five days a week. Kinard worked in thisposition for seven or eight months (Tr. 101-103). Welders working further away in theshipping area were tied off and were also protected by platforms built up beside the cars(Tr. 109-110).a. Hazardous ConditionWorking without fall protection while exposed to a 15-foot fallonto a concrete surface presented a hazard to Kinard and the other employee assigned towork with her.b. Recognized HazardActual knowledge of the hazard by the employer satisfies therecognition requirement of the general duty clause. Brennan v. Vy Lactos Laboratories.Inc., 494 F.2d 460 (8th Cir 1979). It is difficult for an employer to prevail on thedefense that he had no knowledge of the violation since he has an obligation to inspectthe work area, to anticipate hazards to which employees may be exposed, and to takemeasures to prevent their occurrence. Frank Swidzinski Co., 81 OSAHRC 4\/E14, 9 BNAOSHC 1230, 1981 CCH OSHD ? 25,129 (No. 76-4627, 1981); Automatic Sprinkler Corp.of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1385, 1980 CCH OSHD ? 24,495 (No. 76-5089, 1980).Kinard was working in plain view atop a rail car without fallprotection. She had done so every day for several months. Trinity knew of the workingconditions and recognized the hazard. It admits that other employees working on top of thecars are protected.c. Death or Serious Physical HarmA fall from a height of 15 feet onto a concrete surface isrecognized as a hazard with potential of resulting in death or serious physical harm.d. Feasible Means of AbatementThe Secretary suggested two means of abatement: the use of sidescaffolds next to the rail cars and the use of lifelines to which the employees could tieoff. Both of these methods were observed in use by the welders working in the samedepartment.Trinity does not dispute that the hazardous condition existsbut argues that there is no feasible means of abatement. \”An employer may defendagainst a cited violation of a standard by demonstrating that compliance with the standardwas not feasible.\” Dun-Par Engineered Form Co., 86 OSAHRC 40\/A8, 12 BNA OSHC1962, 1966, 1986 CCH OSHD ? 27,651 (No. 82-928, 1986). In support of this argument,Trinity states, \”The reason there are no side scaffolds is because the cars do notalways stop at the same point on the track\” (Respondent’s Brief, pg. 27).Terry Goodwin testified that sometimes cars would stop for atouch-up in an area where there are side scaffolds and sometimes they did not (Tr.715-716).Trinity presented no credible evidence that it was impracticalor unreasonable to provide fall protection to its employees. On the contrary, it isunreasonable not to provide some form of fall protection to employees exposed on a fulltime basis to a 15 foot fall. As for practicality, Trinity does not explain why the railcars to be touched up cannot be stopped next to a side scaffold or why it is impracticalto move a side scaffold next to any rail car that an employee must ascend.Trinity claims that the employees cannot tie off because theheight and configurations of the coiling do not permit for the suspension of a lifeline(Tr. 716-718). Bailey, however, gave undisputed testimony that the welders he observedatop the cars in the same department were tied off. (They were also protected by sidescaffolds) (Tr. 109).Trinity’s brief (pg. 28) states that \”the evidence showsthat Trinity provides scaffolding or safety lines for all workers on top of cars exceptfor the two touch-up painters.\” The conclusion \”that there is no feasible way toprovide scaffolds or safety lines for these two\” is based on bare assertions that arenot supported by objective facts. There is no distinction made by Trinity to indicate whythe configuration of the ceiling allows welders on the same cars to be tied off but isunsuitable for purposes of the suspension of a lifeline for the touch-up painters.Trinity’s argument contains more smoke than substance. Theabatement recommended by Simmons is already being provided for other workers on top of thecars in the same department. There has been no reasonable explanation as to why the sameprotection could not be offered to touch-up painters. The Secretary established a primafacie case that was not rebutted by any credible and objective evidence.Trinity has failed to establish that alternative means ofabatement were infeasible. Practical and reasonable means of abatement existed. TheSecretary has established a serious violation of ? 5(a)(1) of the Act.Citation No. 2Item 1a; 29 C.F.R. ? 1904.2(a)The Secretary alleges that Trinity violated ? 1904.2(a) byfailing to record all recordable illnesses and injuries on the OSHA 200 log in 1986, 1987,and 1988. Section 1904.2(a) provides:(a) Each employer shall, except as provided in paragraph (b) ofthis section, (1) maintain in each establishment a log and summary of all recordableoccupational injuries and illnesses for that establishment; and (2) enter each recordableinjury and illness on the log and summary as early as practicable but no later than 6working days after receiving information that a recordable injury or illness has occurred.For this purpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The log and summary shallbe completed in the detail provided in the form and instructions on form OSHA No. 200.Trinity concedes that it had a problem at its Bessemer plant.It does not dispute the fact that recordable illnesses and injuries were omitted from theOSHA 200’s. The Secretary introduced into evidence Trinity’s OSHA 200’s for 1986 (Ex.C-6), 1987 (Ex. C-5). 1988 (Ex. C-4), and 1989 (Ex. C-3). Exhibit C-7 is Trinity’s FirstReport of Injury forms. These exhibits establish that Trinity failed to record 27instances of recordable illnesses or injuries.[[4]]Trinity contends that its failure to record the missingillnesses and injuries was the result of unpreventable employee misconduct. \”To provethat defense, an employer must establish that it had work rules that were intended toprevent the violation, that those rules were adequately communicated to its employees, andthat the rules were effectively enforced.\” Ormet Corporation, _ OSAHRC _, 14DNA OSHC 2134, 2138, 1991 CCH OSHD ? 29,254 (No. 85-531, 1991). The employees in questionare Jim Daniel and his successor, Festus Pierce. Daniel and Pierce each held the positionof safety supervisor. \”[W]here a supervisory employee is involved in the violation,the proof of unpreventable employee misconduct is more rigorous and the defense is moredifficult to establish since it is the supervisor’s duty to protect the safety ofemployees under his supervision.\” Daniel Construction Co., 82 OSAHRC 23\/A2, 10BNA OSHC 1549, 1982 CCH OSHD ? 26,027, p. 32,672 (No. 16265, 1982). In the present case,not only were the employees in question supervisory personnel, but they were also safetysupervisors.Trinity requires its plants to record all lost time injuries onthe OSHA 200 log. Trinity’s corporate safety department monitors the plants and checkstheir records to confirm that all lost time injuries are being recorded (Tr. 367,602-605).When Trinity discovered safety director Jim Daniel was notproperly maintaining accident and injury records in accordance with its policy, itterminated him (Tr. 537, 594-595, 599, 605). The personnel manager for the Bessemer plant,Fred Hull, then interviewed and hired Festus Pierce as plant safety director (Tr. 537).The background check on Pierce reflected that he had worked in the safety department for adivision of DuPont and was an experienced safety man (Tr. 537-538). Hull specificallyasked Pierce about his knowledge of OSHA recordkeeping requirements and told Pierce one ofhis first responsibilities would be to go back and correct the records, including the OSHA200 log (Tr. 538-539).Jerry Riddles, Trinity’s corporate safety environmentaldirector, held extensive discussions with Pierce regarding Trinity’s safety program.Riddles informed Pierce of what was expected of him (Tr. 596-597):[W]e discussed the reason why the person that was there beforewas terminated. That I expected him to get the past records up to date. He implied that hehad looked at them already because Fred Hull had mentioned then to him and he found someproblems.We discussed the corporate procedure on logging of injuriesWe discussed, you know, what’s recordable, what’s notrecordable. In the conversation, I thought it was clear that he was to got on with gettingthe records cleaned up and keeping the records straight.Pierce was provided with copies of Trinity’s corporate safetymanual on recordkeeping and the OSHA guidelines for recording occupational injuries andillnesses (Exs. R-7, R-8, R-9; Tr. 596-597, 601). Pierce later told Hull that the old Iogswere \”up to snuff.\” Prior to the February inspection, Hull questioned Pierceclosely regarding the status of the recordkeeping. Pierce assured Hull that everything wascorrect. Hull had no reason to doubt Pierce (Tr. 539-540). After the inspection, whenTrinity learned that the records had not been updated, Pierce was fired for his failure tomaintain accurate records (Tr. 540-541, 609).Trinity had written rules intended to prevent the violation offailing to record all recordable illnesses and injuries. These rules were communicated tothe person in charge of maintaining the records. When Pierce was hired, he was givencopies of Trinity’s safety manual and the OSHA guidelines. Hull and Riddles discussed indetail with Pierce what Pierce’s duties were as safety supervisor.Trinity also effectively enforced its rules regardingrecordkeeping. When Daniel failed to maintain the OSHA records according to Trinity’spolicy (and OSHA law), he was summarily dismissed. Pierce was on notice when he was hiredthat noncompliance with the recordkeeping regulations would not be tolerated. The factthat Pierce failed to heed this unmistakable warning does not detract from the efficacy ofTrinity’s program. When it was discovered that Pierce had lied and had failed to updateTrinity’s records he, too, was dismissed.Trinity’s enforcement of the rules by dismissal of Daniel andPierce reflects that it is serious about its compliance with the recordkeeping standards.Trinity has established its defense of unpreventable employee misconduct. It was not inviolation of 29 C.F.R. ? 1904.2(a) for failing to record all recordable illnesses andinjuries.Item 1b: 29 C.F.R. ? 1904.2(a)Item 1b sets forth four separate and distinct instances whichallegedly constitute willful violations of 29 C.F.R. ? 1904.2(a).Item 1b(a)Item 1b(a) alleges that Trinity recorded welding flash burns onthe OSHA 200 log as injuries rather than illnesses. Trinity’s classification was contraryto the instructions on the back of the OSHA 200’s. Trinity concedes that the flash burnswere recorded as injuries. It does not dispute the fact that the instructions on the backof the OSHA 200 log define \”welding flash\” as an occupational illness.Trinity contends that it failed to comply with the standardbecause of the confusing and contradictory history of OSHA’s policy on how to record flashburns. Riddles was the safety director of another steel company in Texas when he firstencountered the flash burn issue. During that company’s first OSHA inspection on June 16,1976, Compliance Officer William Rogers from the Dallas Area OSHA Office told Riddles thathe was incorrectly citing flash burns as illnesses rather than injuries. Rogers explainedto Riddles the procedure for recording flash burns (Tr. 611):Well, they’re exposure type injuries . . . Well, it all dependson whether it’s acute or chronic. Acute being a [sic] instantaneous flash that caused theflashburn . . . If it’s chronic exposure, long term, then you log them as–possibly you’dlog then as an illness.Riddles was instructed to record flash burns as injuries byOSHA Compliance Officer Ronald Sarnachi, also from Dallas, on January 26, 1977 (Tr. 612).Riddles was working for Trinity at its West Memphis facility on September 27, 1977, whenOSHA Compliance Officer Howard Watkins conducted an inspection of the plant. Watkinsquestioned the correctness of listing some flash burns as illnesses. On October 27, 1978,OSHA Compliance Officer Niles Stromat told Riddles that flash burns should be recorded asinjuries (Tr. 614). Trinity was advised by various state labor statistics departments torecord all flash burns as injuries (Tr. 615).After Trinity had implemented the policy of recording flashburns as injuries, it was inspected by OSHA on numerous occasions and the issue ofimproper recordkeeping was never raised, even when the compliance officers reviewed theOSHA 200’s (Tr. 369-370, 391-392, 408-409, 414, 616-619). The first indication thatTrinity had that its new policy was incorrect was when Simmons inspected Trinity’sBessemer, Alabama, facility in 1988 and told Trinity’s Neil Foreman that she thought thatflash burns should be recorded as illnesses rather than injuries. No citations were issuedfor improper recordkeeping as a result of that inspection. Riddles assumed that Simmonshad consulted with her supervisor and determined that the flash burns were logged properly(Tr. 460-461, 620).After Trinity received the citations which gave rise to thepresent case, Riddles sent a memo on April 25, 1989, to all Trinity plants directing themto change their logs to show flash burns as illnesses rather than injuries (Ex. R-10; Tr.621). The following month, Compliance Officer William Burke reviewed the OSHA 200’s at oneof Trinity’s Dallas plants and advised Trinity that flash burns were being recordedincorrectly as illnesses. Trinity informed Burke that it had just been cited forincorrectly recording flash burns as injuries. Burke replied, \”I’ve never seen itthat way\” (Tr. 654).Trinity concedes that it was reporting flash burns inconsistentwith the instructions on the back of the OSHA 200 log. It asserts that its failure toproperly report emanates from inconsistent policy by OSHA in its various offices. Itsubmits that its conduct was not willful since it was simply following OSHA’s previousinstructions.Willfulness is a state of mind. The Commission has defined andelucidated on the word \”willful\” in the following manner:A violation of the Act is willful if \”it was committedvoluntarily with either an intentional disregard for the requirements of the Act or plainindifference to employee safety.\”Simplex Time Recorder Co., 12 BNA OSHC 1591,1595, 1984-85 CCH OSHD ? 27,456, p. 35,571 (No. 82-12, 1985). Trial of the issue ofwillfulness focuses on the employer’s state of mind and general attitude toward employeesafety to a greater extent than would trial of a non-willful violation. Seward MotorFreight, 13 BNA OSHC 2230, 2234, 1989 CCH OSHD ? 28,509, p. 37,787 (No. 86-1691,1989). In Williams Enterprises, Inc., 13 BNA OSHC 1249, 1986-87 CCH OSHD ? 27,893(No. 85-355, 1987), the Commission held:It is not enough to show that an employer was aware of conductor conditions constituting a violation; such evidence is necessary to establish anyviolation, serious or nonserious . . . A willful violation is differentiated by aheightened awareness–of the illegality of the conduct or condition and by a state ofmind–conscious disregard or plain indifferenceIt is therefore not enough for the Secretary simply to show carelessness or lack ofdiligence in discovering or eliminating a violation. Williams, 13 DNA OSHC at1256-1257, 1986-87 CCH OSHD at p. 36,589E. L. Jones and Son. Inc., _ OSAHRC _ 14 BNA OSHC 2129,2133, 1991 CCH OSHD ? 29,264 (No. 87-8, 1991).Trinity’s violation of ? 1904.2(a) was committed with neitheran intentional disregard of the Act, nor with plain indifference to employee safety. Onthe contrary, Trinity was attempting with considerable diligence to comply with what itthought was OSHA’s policy. The record establishes that Trinity’s attitude was cooperativeand attentive to OSHA’s instructions. Trinity was faced with diametrically opposedinstructions, each coming from different OSHA representatives. It was doing the best itcould under difficult circumstances.It did not have the \”heightened awareness\” ofillegality of its conduct that is required for a finding of willfulness.Trinity was not in willful violation of ? 1904.2(a). TheCompany’s admitted failure to record the flash burns as illnesses rather than injuries isa technical violation of the standard with little or no impact on the employees’ healthand safety. \”A violation is properly characterized as de minimis here it hasonly a negligible relationship to safety and health and where it is thus inappropriate torequire that the violation be abated or to assess a penalty.\” National RollingMills Company, 76 OSAHRC 121\/D7, 4 BNA OSHC 1719, 1720, 1976 CCH OSHD ? 19,280 (No.7987, 1976). Trinity’s violation of ? 1904.2(a) for recording flash burns as injuries isclassified as de minimis.Item 1b(b)Item 1b(b) alleges a willful violation of ? 1904.2(a) forfailure to assign case or file numbers to entries on the OSHA 200’s and the First Reportof Injury forms, as required by the instructions for column \”(A)\” of the OSHA200. Only the first 46 of the 156 entries on the 1987 log had a case or file number andnone of the 1986 entries had numbers assigned. None of the 1987 or 1988 First Report ofInjury forms were assigned a case or file number.Trinity asserts the unpreventable employee misconduct defense,charging that Festus Pierce failed in his duties as safety supervisor. There is merit tothis defense.Trinity’s corporate safety manual, which was provided toPierce, directs that each entry be given a case number (Ex. R7). Pierce had knowledge ofthe requirement since Riddles specifically referred him to this section of the manual (Tr.597). The OSHA guidelines, which were also provided to Pierce, explained the requirementfor a case number for each entry (Ex. R-9). Pierce was experienced in safety matters andknew how to maintain OSHA records (Tr. 600, 603). In view of his experience and training,Trinity was justified in its belief that he would follow applicable guidelines. Piercelater informed Hull that he had gotten the records \”up to snuff\” (Tr. 539-540).Trinity has established that its written safety rules wereeffectively communicated to Pierce, who was dismissed for his failure to maintain properrecords. The employee misconduct defense has been established.[[5]] Trinity was not inviolation of ? 1904.2(a) for failure to assign case or file numbers to all entries on itsOSHA 200’s and First Report of Injury forms.Items 1b(c) and 1b(d)Item 1b(c) alleges the willful violation of ? 1904.2(a) forfailure to enter on the OSHA 200’s the number of days missed from work by severalemployees. The Secretary provided the following list which indicates the dates employeesmissed and the pages of Exhibits C-3 through C-6 where the lost work days should appear: 7\/27\/86 Howell, Thomas 448 10\/30\/86 Meadows, David 455 12\/5\/86 Christiansen, Ricky 456 1\/8\/87 Black, Bruce 457 2\/20\/87 Ivie, Bill 459 4\/2\/87 Marchant, Michael 460 5\/27\/87 Payne, Ronald 462 12\/14\/87 Marshall, R. 469 Item 1b(d) alleges a willful violation of ? 1904.2(a) forrecording 12 instances of injuries involving days away from work as injuries without lostwork days. The Secretary provided the following lists identifying the page of Exhibit C-7that shows the lost work day injury and the pages of Exhibits C-3 through C-6 where theinjury was recorded on the OSHA 200 as an injury without lost work days: Date Names C-7 Log 5\/4\/87 Grimes, Curtis 124 461 6\/11\/87 Weathers, Douglas 125 463 7\/22\/87 Terry, David 127 465 7\/27\/07 Tiller, Don 129 465 7\/29\/87 Carter, Joseph 131 465 7\/30\/87 Crawford, James 133 465 8\/3\/87 Franklin, William 135 466 3\/28\/88 Johnson, Howard D. 137 471 Date HAM C-7 Log 6\/30\/88 Postell, William T. 139 473 8\/4\/88 Nickless, Gary 116 474 11\/23\/88 Rogers, Johnny 141 475 10\/31\/88 Carnes, Johnny 143 474 The unpreventable employee misconduct defense asserted by Trinity is supported by theevidence of record and entities Trinity to prevail (see previous comments on defense).Trinity relied on Pierce to update and correct its records, and Pierce assured Trinitythat this had been done. When the noncompliance was discovered, Pierce was fired. Trinitywas net in violation of ? 1904.2(a) for items (c) and (d) of item 1b.Citation No. 3Item 29 C.F.R. ? 1904.5(c)The Secretary alleges that the summary page of the 1986 OSHA200, Log of Illness and Injuries, was not certified or signed in violation of ? 1904.5(c)(Ex. C-6; Tr. 84-85).Section 1904.5(c) provides:(c) Each employer, or the officer or employee of the employerwho supervises the preparation of the log and summary of occupational injuries andillnesses, shall certify that the annual summary of occupational injuries and illnesses istrue and complete. The certification shall be accomplished by affixing the signature ofthe employer, or the officer or employer who supervises the preparation of the annualsummary or by appending a separate statement to the log and summary certifying that thesummary is true and complete.Simmons looked through the records and noted that the last pagefor 1986 (page 456 of Exhibit C-6) was not signed.Trinity introduced into evidence Riddles’ file copy of the 1986summary (Ex. R-12). Every year Riddles requires each safety supervisor in each Trinityfacility to forward to him a copy of that facility’s OSHA 200’s. Riddles’ copy is signedby Jim Daniel (Tr. 693-695).Trinity argues that only the copy of the summary that is postedin accordance with ? 1904.5(d)(1)[[6]] must be certified. The plain meaning of ?1904.5(c) does not support this interpretation. That standard requires that the summary becertified, and ? 1904.5(d)(1) requires that a copy of the summary be posted. Copies ofthe OSHA 200’s are to be maintained for five years. Therefore, Trinity’s 1986 OSHA 200’sshould have contained a certified summary page.Riddles’ signed copy of the summary page is of little probativevalue. Exhibit C-6, the copy of the 1986 OSHA 200’s provided to the Secretary, contains 19pages, the last page of which is unsigned. Riddles’ copy (Ex. R-12) is not a copy of thelast page of Exhibit C-6, even though the totals are the same. Exhibit R-12 is identifiedas \”page 1 of 18\” at the top. Riddles could not explain the significance of thatnotation.The records kept at the Bessemer plant contained an uncertifiedsummary page for 1986. Riddles’ signed copy of the purported annual summary does not bringTrinity into compliance with the cited standard. The Secretary has established thatTrinity was not in compliance with 1904.5(c). Although the 1986 summary had not beensigned, the lack of signatures had only a negligible relationship to safety and health.The violation is classified as de minimis.Item 2; 29 C.F.R. ? 1904.5(d)(1)The Secretary alleges Trinity was in violation of ? 1904.5(d)(1) based upon the claim that \”the OSHA Form 200 summary for calendar year 1988 wasnot posted an bulletin boards in the plant where notices are normally posted,\” butinstead \” was posted in the safety office.\” Section 1904.5(d)(1), in pertinentpart, provides:Each employer shall post a copy of the establishment’s summaryin each establishment in the same manner that notices are required to be posted under ?1903.2(a)(1) of this chapter. The summary covering the previous calendar year shall beposted no later than February 1 and shall remain in place until March 1.Section 1903.2(a)(1), in turn, provides:Each employer shall post and keep posted a notice or notices,to be furnished by Occupational Safety and Health Administration, U.S. Department ofLabor, informing employees of the protections and obligations and obligations provided forin the Act, and that for assistance and information, including copies of the Act and ofspecific safety and health standards, employees should contact the employer or the nearestoffice of the Department of Labor. Such notice or notices shall be posted by the employerin each establishment in a conspicuous place or places where notices to employees arecustomarily posted. Each employer shall take steps to insure that such notices are notaltered, defaced or covered by other material.The Secretary alleges that the posting in the safety\/personneloffice was in violation of the standard because not all employees routinely went into theoffice. Safety glasses and ear plugs were provided at the office, but ear plugs were alsoprovided in the plant. According to Simmons, \”They wouldn’t necessarily have to go inthere. And there were bulletin boards out in the plant that had posters and time clocksthat would have been a more appropriate place\” (Tr. 85). Exhibit C-12 shows the timeclock and bulletin board located in the painting area (Tr. 87).Testimony regarding the location of the OSHA Form 200 summaryfor calendar year 1988 was presented by Simmons, Hull and Goodwin. Simmons testified thatit would have been \”more appropriate\” to have posted the OSHA 200 summary an the\”bulletin boards out in the plant that had posters and time clocks\” (Tr. 85).She contended that the personnel\/safety office was a less appropriate location for postingthe OSHA 200 summary because, while \”employees could come into the safety office . .. it was conceivable that maybe not all would come in\” (Tr. 85). Further, shemaintains that the paint area is \”the location where notices to employees arecustomarily posted. . . because there’s a lot of notices posted here\” (Tr. 97).Finally, she stated that Hull and Bodiford acknowledged that employee notices arecustomarily posted in this area (Tr. 87-88).There are approximately ten time clocks located throughout theplant and not all of the clocks are in areas suitable for posting notices. Trinity postsnotices of a temporary nature at the time clocks. Notices of a more permanent nature areposted in the safety office (Tr. 518, 720-721).Trinity contends that the personnel\/safety office is aconspicuous central point in the plant (Tr. 518-521, 720-721). Whether for safetyequipment or a personnel matter, \”everyone would . . . very likely come in there in aweek’s time (Tr. 521). Trinity also contends that the posting of the OSHA 200 summary inthe personnel\/safety office ensured against its removal and defacement (Tr. 519-210). Hulland Goodwin testified that the personnel\/safety office, as compared to the time clocks,was the superior location for the OSHA 200 summary to \”make sure it would stay up thewhole month,\” to \”make sure that at some point during the month it would be seenby all employees,\” and to \”make sure it would not be altered, defaced or coveredby other materials,\” as required by ? 1903.2(a)(1) (Tr. 521-522, 720-721).The cited standard does not require that the summary be postedin the most conspicuous place, or at each place where notices are posted, or at a placewhere employees will view it on a daily basis. The standard required that the summary beposted \”in a conspicuous place where notices are customarily posted.\” Theundisputed evidence was that \”permanent notices\” such as immigration actnotices, wage and hour materials, and nondiscriminatory policy announcements were postedin the safety\/personnel office (Tr. 518). Any employee wishing to review the summary wouldknow where to find it and would have ready access to it. Trinity was not in violation of? 1904.5 (d) (1) .Item 3; 29 C.F.R. ? 1910.22(a)(1)The Secretary alleges that \”elevated walkways werecluttered with materials used for work\” and, therefore, Trinity violated 29 C.F.R. ?1910.22(a)(1), which provides:(a) Housekeeping. (1) All places of employment,passageways, storerooms, and service rooms shall be kept clean and orderly and in asanitary condition.Compliance Officer Bailey observed the sill welding area whereplatforms were built up beside the rail cars. He noted that several items, including handtools, pieces of steel, hosing, and banding material were strewn on the walkways(catwalks) of the platforms. Employees were working in the area (Ex. C-13; Tr. 110-112).Employees work from the platforms to install side sill enforcements and cross ridge tieplates on the rail cars (Tr. 724).Trinity asserts the greater hazard defense, claiming that itwould be more hazardous to its employees if they were required to keep the walkways clearof tools and materials. \”To prove a greater hazard defense, an employer must showthat (1) the hazards of compliance with a standard are greater than the hazards ofnoncompliance, (2) alternative means of protection are unavailable, and (3) a variance wasunavailable or inappropriate.\” Lauhoff Grain Co., 89 OSAHRC 15\/A3, 13 BNA OSHC1084, 1088, 1987 CCH OSHD ? 27,814 (No. 81-984, 1987). Trinity failed to establish any ofthese three elements of the defense.Trinity offered no proof regarding the unavailability orinappropriateness of a variance. Its only evidence touching upon alternative means ofprotection was provided by its general superintendent of materials, Terry Goodwin, whostated that he know of no alternative means of installing the side sillenforcements and cross ridge tie plates other than from the catwalks (Tr. 725).The only evidence adduced regarding the greater hazard ofcompliance was Goodwin’s testimony (Tr. 725-726).Q. Now, in your opinion and having done the work up there,would it be more or lose hazardous for these materials that are going to be installed tobe brought up one by one or to be stored up here on the catwalk?A. The one by one.Q. Same question with regard to the tools. Having done this jobwhich would be more hazardous, to lay the tool on the catwalk or otherwise have itaccessible to you or have the tool brought up only when you’re going to use it and thenreturn it to the floor?A. I’d say on the one by one–bring it up on an individualbasis.No explanation is offered as to why bringing the tools andmaterials up on an as needed basis is more hazardous than having those items strewn abouton an elevated walkway where employees had to work. It is not intuitively perceived as agreater hazard. Trinity has failed to rebut the Secretary’s prima facie caseof an \”other\” than serious violation of ? 1910.22 (a) (1) .Docket No. 89-2317 Citation No. 1Item 1; 29 C.F.R. ? 1910,106(b)(6)The Secretary alleges Trinity was in violation of ?1910.106(b)(6) because \”[s]ources of ignition were not eliminated or controlled wherethe presence of flammable vapors was possible.\” The standard states:(6) Sources of ignition. In locations where flammablevapors may be present, precautions shall be taken to prevent ignition by eliminating orcontrolling sources of ignition. Sources of ignition may include open flames, lightning,smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical,and mechanical), spontaneous ignition, chemical and physical chemical reactions, andradiant heat.On February 8 and 9, 1989, Compliance Officer Horace McCannobserved employees spray painting in the primer area with trailer train low vac, a yellowpaint (Ex. C-8) . An open flame heater was located 35 to 40 feet from where the yellowpaint was being sprayed (Ex. C-15; Tr. 170-172). The heater was operating during theentire shift (Tr. 146). Employees also sprayed within 20 to 30 feet of the heater usingred or rust colored primer (Tr. 146, 162-163, 795).Section 1910.106(a)(19) defines \”flammable liquid\” asa liquid having a flash point below 100 degrees Fahrenheit. The material safety data sheetfor the yellow paint gives the flash point as 60 degrees Fahrenheit and states that\”vapors from flammable\/explosive mixtures in air\” (Ex. C-8).Trinity contends that the standard is inapplicable to theconditions as they existed at the time of the inspection. It submits that ?1910.106(b)(6) is a standard that applies to \”Tank Storage.\” It states that thedrums of paint observed in the area were for immediate use and were not being stored inthe area. McCann stated that he observed 10 to 12 drums stored in the finishing area (Tr.242). Goodwin testified that Trinity has no storage tanks for combustible liquids in theprimer area. Paint is used as it is brought in, and it is not stored in the area (Tr.713).Trinity also argues that even if it had been cited under theapplicable standard, ? 1910.107(c)(2). it would still prevail. Section 1910.107(c)(2)provides:(2) Minimum separation. There shall be no open flame orspark producing equipment in any spraying area nor within 20 feet thereof, unlessseparated by a partition.McCann estimated the distance from the heater to the area wherepaint was being sprayed to be at least 35 feet from the heater (Tr. 243). Furthermore, theSecretary offered no evidence that the primer area was a \”spraying area\” withinthe meaning of ? 1910.107 (a) (2), which provides that a spraying area is:Any area in which dangerous quantities of flammable vapors ormists, or combustible residues, dusts, or deposits are present due to the operation ofspraying processes.The Secretary offered no proof that \”dangerousquantities\” of flammable vapors were present. The Secretary has failed to establish aviolation of the cited standard at ? 1910.106(b)(6), or the more appropriate standard,1910.107(c)(2).Item 2: 29 C.F.R. ? 1910.134(e)(5)(i)The Secretary alleges that Trinity violated ?1910.134(e)(5)(i) based upon two alleged instances in which \”(r)espirators were wornwhen conditions . . . prevented a good face seal.\” The citation described theconditions as follows:(a) Primer and Interior painting areas – where employeespainting were observed wearing respirators with full beards. One employee was required toenter a confined space and paint wearing a respirator over a full beard.(b) One employee was observed wearing a disposable respiratorunder an airline respirator wearing a beard.In pertinent part, ? 1910.134(e)(5)(i) provides:(i) Respirators shall not be worn when conditions prevent agood face seal. Such conditions may be a growth of beard, sideburns, a skull cap thatprojects under the facepiece, or temple pieces of glasses.McCann observed some employees with full beards in areas wherespray painting was being conducted (Tr. 172). The growth of beard on some of the employeeswas greater than a quarter inch long (Tr. 173). McCann observed an employee, ErnestWatford, in the finishing area who was wearing a disposable respirator under an air linerespirator (Tr. 174, 176). Watford wore the disposable respirator in the winter time tokeep the cold air off his face (Tr. 177). McCann believed that the beards and thedisposable respirators prevented a good face seal (Tr. 173-174).Sanders Melton, one of the employees who wore a disposablerespirator, received 3M respirator training prior to the OSHA inspection (Ex. R-4; Tr.482). Melton believed that as a result of his training, he was able to determined whetherhe had a good face seal (Tr. 485). Employees who wore respirators were not allowed to havemore than one or two days’ growth of beard (Tr. 464, 486).McCann’s opinion that the employees were not getting a goodface seal is not supported by any tests or questioning of the employees. The standardstates that conditions that prevent, a good face seal \”may\” include \”agrowth of beard.\” Wearing a beard with a respirator is not a per se violationof the standard. Some evidence must be adduced to establish that the beards of theemployees and the disposable respirators prevented a good face seal. The Secretary failedto present any such evidence. Trinity was not in violation of ? 1910.134(e)(5)(i).Item 3: 29 C.F.R. ? 1910.141(g) (2)The Secretary alleges that \”[e]mployees were permitted toconsume food or beverages in area(s) exposed to toxic materials\” in violation of ?1910.141(g) (2). This standard provides that:No employee shall be allowed to consume food or beverages in atoilet room nor in any area exposed to toxic material.\”Toxic material\” is defined as ? 1910.141(a) (2):* * * [M]aterial in concentration or amount which exceeds theapplicable limit established by a standard, such as ? 1910.1000 and ? 1910.1001 or, inthe absence of an applicable standard, which is of such toxicity so as to constitute arecognized hazard that is causing or is likely to cause death or serious physical harm.McCann observed employees eating and drinking around an openflame heater. The employees did not wash their hands before beginning lunch. During lunch,the employees wore their work overalls (Ex. C-15, Photo R1-F13; Tr. 145-147, 179-180).McCann stated that he observed overspray on the employees work overalls and on their lunchsacks (Tr. 180). On cross-examination McCann conceded that no overspray was visible in thephotographic exhibits (Tr. 312). The toxic materials to which the eating area was exposedwere the paints and their contents, such as MEK, toluene, butyl alcohol, xylene, titaniumdioxide, lead and arsenic (Tr. 309-314). The area in which paint was sprayed, the primerarea and the finishing area, were each approximately 50 feet away from the eating area(Tr. 181).Although McCann acknowledged that \”there [are] standardsthat govern or establish permissible exposure limits\” (Tr. 308) for the substances atissue, he essentially assumed a violation of the standard because the employees had painton their coveralls and did not change clothes while they were eating (Tr. 180).The Secretary failed to demonstrate that the materials in thearea where the employees were eating lunch were at a level which would pose a risk totheir health. This was part of her burden of proof. Lone Star Steel Company, 81OSAHRC 105\/E7, 10 BNA OSHC 1228, 1235, 1981 CCH OSHD ? 25,825 (Nos. 77-3893 &77-3894, 1981). This burden is discharged by the Secretary’s demonstration that thematerial in question is in such a \”concentration or amount which exceeds theapplicable limit, such as ? 1910.1000 and ? 1910.1001, or, in the absence of anapplicable standard, which is … a recognized hazard that is causing or likely to causedeath or serious physical harm.\” ? 1910.141 (a) (2) The Secretary has failed toprove a violation of the cited standard. The allegation is vacated.Item 4: 29 C.F.R. ? 1910.141(g)(4)The Secretary alleges that Trinity violated ? 1910.141(g)4) byallowing employees to store their sack lunches along the walls in the area which was thesubject of the prior allegation (item 3). The cited standard provides that:No food or beverages shall be stored in toilet rooms or in anarea exposed to a toxic material. (Emphasis added)The Secretary had the burden to demonstrate the presence of a\”toxic material,\” as that term is defined in ? 1910-141(a)(2). Lone StarSteel Company, supra, 10 BNA OSHC at 1235. The lack of evidence in support ofthe Secretary’s position such a finding. The citation must be vacated.Item 5: 29 C.F.R. ? 1910 151(c)The Secretary alleges that Trinity failed to provide suitablefacilities for quick drenching or flushing of the eyes and body for employees exposed tochemicals in the painting department. The standard Trinity allegedly violated, ?1910.151(c) provides:(c) Where the eyes or body of any person may be exposed toinjurious corrosive materials, suitable facilities for quick drenching or flushing of theeyes and body shall be provided within the work area for immediate emergency use.McCann observed employees in the paint area mixing, spraying,and generally handling paints (Tr. 164, 182, 188). These paints contained injuriouscorrosive materials (Exs. C-8, C-17, C-18). McCann testified that the closest source ofwater was 40 to 50 yards away and consisted of pedal-operated water fountain suitable onlyfor washing hands (Tr. 199). McCann stated that Bodiford cold him that this was the onlysource of water available (Tr. 810-311). McCann himself did not take an inventory of watersources (Tr. 822).Bodiford denied that he ever told McCann that the waterfountain was the only source of water in the area (Tr. 870-871). Terry Goodwin conductedan inventory of the sources of running water in the painting and primer areas and came upwith the following inventory: \”two restrooms with one lavatory each in it. Onerestroom with three lavatories. A restroom with two. The paint office had one lavatory init. There was one restroom with eight lavatories. Two inspector’s offices with onelavatory each. Three water coolers or–or drinking fountain and three water hoses\”(Tr. 721). Goodwin conducted a test to gauge the amount of time needed to reach runningwater if flushing or drenching was required. \”I determined that from any place in thepaint shop that you could be within [sic] the fresh running water within 30 seconds, andtypically, it was 15 to 20 seconds to any of them\” (Tr. 722).In Gibson Discount Center, Store No. 15, 78 OSAHRC30\/C1, 6 BNA OSHC 1526, 1527, 1977-78 CCH OSHD ? 22,669 (No. 14657, 1978), the Commissionstated:We agree with respondent that this standard does not requirewater facilities to be within any specific linear distance. Rather, the distance permitteddepends on the particular circumstances; for example, the strength of the corrosivematerial and the configuration of the work area. See Plessy, Inc., 74 OSAHRC 77\/C1, 2 BNAOSHC 1302, 1974-75 CCH OSHD para. 18,907 (No. 946, 1974). (Footnote omitted)Under Commission rationale, the sources of water referred to byTrinity would be close enough to satisfy the requirement that facilities be provided inthe work area.[[7]] The question for determination is whether the sources of water were\”suitable\” facilities.Trinity cites several cases which reflect that the Commissionand its Administrative Law Judges have held that garden hoses, water fountains, sinks,showers and dip tanks are sufficient to comply with the standard. These decisions haveeroded the intent of the standard to such a degree that it is difficult to ever find aviolation of its provisions. Every plant has sources of water. The standard, however,requires that the water source be within the employee’s work area and be suitablefor quick drenching or flushing of the eyes. In essence, following thedecisions cited by Trinity means that if there is a source of running water available inthe plant, there can be no violation.The word \”suitable\” is not without some meaning.Compliance Officer McCann testified that a source of fresh running water, under constantpressure, that you can get in the eyes is sufficient to comply with the standard (Tr.316-317). Restroom lavatories are often dirty and would present a source of contaminatedwater when filled so that an employee can place his head in the sink to quick flush.Drinking fountains this Judge is familiar with have very low water pressure and have noway the eyes could be submerged for a quick flush. The same detriment arises in the use ofa water hose.The standard’s purpose is to render aid to the employee at theearliest time. Where the Secretary establishes a need for quick drenching or flushing, asin this case, the burden is on the employer to prove that he has suitablefacilities.[[8]] A need has been established by the Secretary. Sources of fresh runningwater referred to by Trinity are not deemed suitable for quick drenching or flushing ofthe eyes. Trinity has merely recited sources of water–it has not proven they are suitablefor purposes of this standard. Since the sources of water are not within the immediatework area, Trinity must also establish that the location of the facilities have beencommunicated to the employees. They must know where to go in the event of an emergency. Afew seconds’ delay in determining where to go could be crucial. Trinity has not indicatedwhere employees were directed to go to in case of an emergency. It has simply shownsources of water.Trinity was in \”other\” violation of ? 1910.151(c). Item 6: 29 C.F.R. ? 1200(fl(4)(i)The citation and complaint allege a violation of 29 C.F.R. ?1910.1200(f)(4)(i). There is no such standard. Curiously, the Secretary did not amend thiserror and even cites that nonexistent standard again in her posthearing brief (Secretary’sBrief, pg. 11). Since the standard does not exist, there can be no violation.The Secretary alleges that Trinity stored hazardous chemicals,in the form of paints, in containers which were not properly labeled to identify theassociated hazards. Apparently, the Secretary meant to cite ? 1910.1200(f)(1) whichprovides:(f) Labels and other forms of warning.(1) The chemical manufacturer, importer, or distributor shallensure that each container of hazardous chemicals leaving the workplace is labeled, taggedor marked with the following information….The basis of the allegation is McCann’s observation that someof the paints the employees were using were coming out of containers that were not labeled(Tr. 120). Trinity established that the unlabeled containers were used for mixing paintthat was to be used that day (Tr. 527-528). Trinity correctly asserts that containers usedfor temporary, someday use of chemicals are exempt from the labeling requirement. Section1910.1200(f)(7) provides:(7) The employer is not required to label portable containersinto which hazardous chemicals are transferred from labeled containers, and which areintended only for the immediate use of the employee who performs the transfer.Trinity was not in violation of ? 1910.1200(f) (1) (which itwas not cited for).Item 7: 29 C.F.R. ? 1910.1200(g)(1)Item 7 alleges that Trinity did not have a material safety datasheet (\”MSDS\”) for yellow paint, as required by ? 1910.1200 (g(1). Section1910.1200(g)(1) provides:(1) Chemical manufacturers and importers shall obtain ordevelop a material safety data sheet for each hazardous chemical they produce or import.Employers shall have a material safety data sheet for each hazardous chemical which theyuse.When McCann asked for the MSDS for that paint, Hull gave McCanna technical data sheet for the paint but not the MSDS (Ex. C-16; Tr. 136-138).During his walkaround inspection on February 9, 1989, McCannrequested a copy of the MSDS for the yellow paint Trinity was using on rail cars (Tr. 136,345). Hull and Bodiford told McCann they would look up the MSDS when they returned to theoffice (Tr. 137). When they returned to the office at the end of the day on February 9,Hull and Pierce went to look for the MSDS on the yellow paint. They spent ten to fifteenminutes looking for the MSDS under the name \”Koppers\” because they thought thatwas the brand name of the paint (Tr. 531-532). When they could not quickly find the MSDS,they provided the compliance officers with a copy of the technical data sheet on the paintand promised to locate the MSDS and send it to OSHA (Tr. 138-139, 532).After McCann left the plant, Hull discovered that he had beenlooking for the MSDS under the brand name \”Koppers\” when actually the brand namethe MSDS was listed under was \”Kop-Coat.\” The same day of the inspection Hulllocated the MSDS and forwarded it to the OSHA office (Ex. C-8; Tr. 533-535). It isundisputed that the MSDS was on the premises the day of the inspection. The standard onlyrequires that \”Employees shall have a material safety data sheet for each hazardouschemical which they use.\” Trinity has shown that it had the MSDS and that it was notin violation of ? 1910.1200(g)(1).PenaltiesThe Commission is the final arbiter of penalties in allcontested cases. Secretary v. OSAHRC And Interstate Glass Co., 487 F.2d 438 (8thCir. 1973). Under section 17(j) of the Act, the Commission is required to find and give\”due consideration\” to the size of the employer’s business, the gravity of theviolation, the good faith of the employer, and the history of previous violations indetermining the appropriate penalty. The gravity of the offense is the principal factor tobe considered. Nacirema Operating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73CCH OSHD ? 15,032 (No. 4, 1972).Trinity employs more than 740 employees at its Bessemer plant(Tr. 206-207). The Bessemer plant had no previous history of citations (Tr. 207-208).There was no evidence that, once the compliance officers obtained a warrant, Trinity wasanything less than cooperative.The likely result of a fall of 15 feet onto a concrete surfacewould be death or serious physical injury, including a concussion and broken bones. Uponconsideration of this and other relevant factors, a penalty of $600 is deemed appropriatefor the violation of section 5(a)(1) (Item 1 of Citation No. 1, Docket No. 89-2316).No penalty is assessed for the de minimis violation of? 1904.2(a) (Item 1b(a) of Citation No. 2, Docket No. 89-2316). No penalty is assessedfor the \”other\” than serious violation of ? 1904.5(c) (Item 1 of Citation No.3, Docket No. 69-2316).No penalty is assessed for the \”other\” than seriousviolation of ? 1910.22(a)(1) (Item 3 of Citation No. 3, Docket No. 89-2316).A penalty of $630 is considered appropriate for item 5 of theserious citation (29 C.F.R. ? 1910-151(c)) issued in Docket No. 89-2317.FINDINGS OF FACTS AND CONCLUSIONS OF LAWThe foregoing decision constitutes the findings of facts andconclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.ORDER Based upon the foregoing decision, it is herebyORDERED: (1) That Citation No. 1 of Docket No. 89-2316, alleging a serious violation of5(a)(1) of the Act, is affirmed and a penalty of $600 is assessed;(2) That item 1a of Citation No. 2 of Docket No. 89-2316,alleging a willful violation of 29 C.F.R. ? 1904.2(a), is vacated;(3) That item 1b(a) of Citation No. 2 of Docket No. 89-2316,alleging a willful violation of 29 C.F.R. ? 1904.2(a), is affirmed as de minimisand no penalty is assessed;(4) That items 1b(b), 1b(c) and 1b(d) of Citation No. 2 ofDocket No. 89-2316, alleging violations of 29 C.F.R. ? 1904.2(a), are vacated:(5) That item 1 of Citation No. 3 of Docket No. 89-2316,alleging a violation of 29 C.F.R. ? 1904.5(c), is affirmed as de minimis and nopenalty is assessed;(6) That item 2 of Citation No. 3 of Docket No. 89-2316,alleging a violation of 29 C.F.R. ? 1904.5(d)(1), is vacated;(7) That item 3 of Citation No. 3 of Docket No. 89-2316,alleging a violation of 29 C.F.R. ? 1910.22(a)(1), is affirmed and no penalty isassessed;(8) That item 4 of Citation No. 3 of Docket No. 89-2316 isvacated;(9) That items 1, 2, 3, 4, 6 and 7 and proposed penalties ofCitation No. 1 of Docket No. 89-2317 are vacated; and(10) That item 5 of Citation No. 1 of Docket No. 89-2317 isaffirmed and a penalty of $630 is assessed.JAMES D. BURROUGHS\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0JudgeFOOTNOTES: [[1]] Citation no. 3, item 3. No. 89-2316 (the housekeeping violation) and Citation no. 1,item 5, No. 89-2317 (the first aid eyewash facility violation).[[2]] The cited standard, found in Subpart D– Walking-WorkingSurfaces, provides:? 1910.22 General requirements.(a)Housekeeping All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.[[3]] The employee complaint that prompted the inspectionstated. \”6. [Sill] weld area has catwalk that employees work from and where largeamounts of material such as []re-enforcement stiff[e]ners, belly bands, roping irons andhorseshoes are placed. This material is placed by crane and is often unstable and couldfall on employ[]ees below.\” While employees seemed more concerned with the hazardoverhead than that underfoot, the parities addressed only the tripping hazard.[[4]] RSR Corp. v Donovan, 747 F.2d 294, 303 (5th Cir.1984); Quality Stamping Prods., v. OSHRC, 709 F.2d 1093, 1099 (6th Cir. 1983);BPR, Inc. v. Secretary of Labor, 643 F.2d 890, 895 (1st Cir. 1981); ClevelandConsol., v OSHRC, 648 F.2d 1160, 1165 (5th Cir 1981);[[5]] Some of Trinity’s lawyer’s questioning in the transcriptand some of his argument in the brief leave the impression that an employee would beforced to make multiple trips between the walkway and the floor, but no one testified tothat effect. The employee complaint suggests that materials were lifted by crane, and atone point, Trinity’s brief seems to envision the same thing, but the record contains nodirect testimony on this either.[[6]] Goodwin testified that he knew of no way to go aboutinstalling the railcar parts other than working from the raised walkway, but thisstatement does not relate to the real issue: the existence of any alternative means toprotect employees from tripping on the walkway while still allowing them to do their job.[[7]] Trinity further contends that it was infeasible for theemployees to perform their work from anywhere other than the walkway. But that is not atissue.The Secretary does not claim that Trinity violated the Act by requiring itsemployees to work from the walkway, or that the only way to abate the hazard is to haveemployees work from some other location. The Secretary does contend that Trinity has aduty to make the walkway a safe place to work.[[8]] Found in Subpart K-Medical and Firm Aid, the citedstandard provides: ? 1910.151 Medical services and first aid.(c) Where the eyes or body of any person may he exposed toinjurious corrosive materials, suitable facilities for quick drenching or flushing of theeyes and body shall be provided within the work area for immediate emergency use.[[9]] Based on Goodwin’s testimony, judge found that thesesources of water if \”suitable\” under the standard, would be considered\”within the work area for immediate\” emergency use\” under Commissionprecedent.[[10]] E.I du Pont de Nemours & Co., 10 BNA OSHC1320,1982 CCH OSHD ? 25,888 (No. 76-2400, 1982) (standard safety shower found to besuitable); Gibson Discount Center, Store No. 15, 6 BNA OSHC 1526, 1978 CCH OSHD? 22,669 (No. 14657, 1978) (citation vacated for failure to prove that water source 35feet away violated standard); and Idaho Travertine Corp, 5 BNA OSHC 1504, 1976-77CCH OSHD ? 21,090 (No. 1134, 1976) (specifically accorded the precedential value of anunreviewed judge’s decision).[[11]] E.g., Bridgeport Brass Co., 11 BNA OSHC 2255,1984-85 CCH OSHD ? 27,054 (No. 82-4399, 1984) (citation vacated because employer had anactual eyewash fountain).[[12]] That standard, found in Subpart G-Occupational Healthand Environmental Control, provides:? 1910.94 Ventilation……(d) Open surface tanks- -… (9) Personalprotection…. (vii) Near each tank containing a liquid which may burn, irritate, orotherwise be harmful to the skin if splashed upon the worker’s body. there shall be asupply of clean cold water. The water pipe (carrying a pressure not exceeding 25 pounds)shall be provided with a quick opening valve and at least 48 inches of hose not smallerthan three-fourths inch, so that no time may be lost in washing off liquids from the skinor clothing. Alternatively, deluge showers and eye flushes shall be provided in caseswhere harmful chemicals may be splashed on parts of the body.[[1]] The Secretary withdrew item 4 of the \”other\” citation in Docket No.89-2316 (Tr. 9).[[2]] Even though the Secretary repeatedly alleged a violationof ? 1910.1200 (f) (4) (i), it is a nonexistent standard.[[3]]Section 1904.7(a) provides:(a) Each employer shall provide upon request, records providedfor in ? 1904.2, 1904.4, and 1904.5 [OSHA Forms 200 (and annual summary) and 101], forinspection and copying by any representative of the Secretary of Labor for the purpose ofcarrying out the provisions of the [A]ct . . . .[[4]] The Secretary provided the following helpful chart as adigest of the unrecorded illnesses and injuries. The number under \”C-7\”indicates the page number of the First Report of Injury on which the recordable injuryappears. The number under \”Log\” indicates the page number of the log on whichthe illness or injury should have been recorded but was not. Date Name C-7 Log 8\/31\/87 Pilot, Willie 160 467 7\/27\/87 Hurst, Betty 161 465 6\/l\/87 Hayes, Robert 163 462 5\/27\/87 Lockhart, Lonzo 165 462 5\/21\/87 Fraser, James 168 461-462 5\/20\/87 Harrison, Terry 170 461 5\/20\/87 Pierson, Jeffrey 171 461 5\/19\/87 Smith, Danny 100 461 5\/11\/87 Pitts, Willis K. 172 461 4\/20\/87 Bohannon, Mitchell 176 460 4\/14\/87 Brown, Jesse L. 178 460 4\/6\/87 Donaldson, Leottamus 174 460 3\/12\/87 Florence, Sandra G. 111 459 2\/6\/07 Mahand, Leonard 179 458 2\/12\/87 Cotton, Darryl 113 458 11\/28\/88 Fletcher, Thomas 148 475 10\/3\/86 Matthews, Elmer 150 474 7\/29\/88 Darden, Alvin 119 473 7\/28\/88 Lacey, Dwayne 109 473 6\/18\/8C Castle, Nina 105 473 6\/20\/88 Cole, Johnny R. 152 473 6\/7\/88 Watley, Donald 154 473 31\/31\/88 Brasher, Bonnie 156 471 3\/5\/88 Barker, Eugene 157 471 3\/27\/87 White, Donald 158 471 3\/22\/86 Reese, Joseph 102 471 [[5]] The previous comments on Pierce and unpreventableemployee misconduct made under item 1, Citation No. 2, are equally applicable to thisissue.[[6]] Section 1904.5(d)(1), in pertinent part, provides: (d) (1) Each employer shall post a copy of the establishment’ssummary in each establishment in the same manner that notices are required to be postedunder ? 1903.2(a)(1) of this chapter . . . .[[7]] What constitutes an employee’s work area? Thecommission’s rationale takes a liberal view in interpreting the work area. If employeesare working in a specific area of a plant, is his work area the whole plant? UnderCommission case law, the work area is insignificant. The importance is placed on the timeto reach the water facilities; however, section 1910.151(c) makes no reference to anyspecific time frame. The facilities are to be within the work area for immediateuse. The intent of the standard is clear that the facilities should be in the vicinityof the worker. He should not have to stop and think where sources of water are located inthe plant.[[8]] The Secretary has the burden to prove the applicabilityof the standard. In this case, the burden is met by establishing that \”the eyes orbody\” of an employee \”may be exposed to injurious corrosive materials.\” Theburden is on the employer to show he has suitable facilities. Even if the Secretary hasthis additional burden, Trinity has failed to show that the sources of water are fresh,under constant pressure (Tr. 316-317), and sufficient to provide ample quantities of waterto comply with the quick drenching or flushing requirement.\u00a0″