OSHRC Docket No. 80-4109


Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

At issue is whether Anoplate Corporation violated various OSHA standards and other requirements at its electroplating and metal finishing plant in Syracuse, New York. A hearing was held before former Administrative Law Judge Barbara L. Hassenfeld after Judge Hassenfeld left the Commission, the case was re-assigned to Judge Foster Furcolo, who wrote the decision that we review.[[1]] We affirm one of the items, conditionally affirm another, vacate four others, and modify Judge Furcolo's decision on two other items by reducing the classification of one to non-serious and amending the other to a de minimis notice.[[2]]

Citation 1, Item 1(c)(Amended Complaint VI(c):

1910.94(d)(9)(v)-- Eye protection
The Secretary alleged a violation of 29 C.F.R. 1910.94 (d)(9)(v) in that employees in buildings 2 and 3 were not required to wear chemical goggles or face shields at open surface tanks where there was a "danger of splashing." The cited standard states:

1910.94 Ventilation. (d) Open surface tanks--

(9) Personal- protection.

(v) Whenever there is a danger of splashing, for example, when additions are made manually to the tanks, or when acids and chemicals are removed from the tanks, the employees so engaged shall be required to wear either tightfitting chemical goggles or an effective face shield. See 1910.133.
It is undisputed that Anoplate required employees to wear chemical goggles or face shields when making manual additions of liquids to tanks or removing liquids from them. The parties disagree, however, as to whether Anoplate should have required employees to wear eye protection while manually placing racks of parts in tanks. We agree with the Secretary that eye protection should have been required because there is a "danger of splashing" during that operation.

Anoplate's electroplating and metal finishing operations were conducted in buildings 2 and 3 of its facility, and they consisted of a number of lines open surface tanks where different finishes were applied to manufactured parts. The parts were made of various metals and ranged in size from a few ounces to 20 or 30 pounds. Many of the tanks contained acidic or alkaline solutions. Generally, employees used the following procedure. They placed the parts on a metal rack. The rack was lowered into the tank solutions and raised from them manually. The top of the rack remained out of the solution, hung on a support pole above the tank. The parts on the racks were first dipped into a cleaning tank, rinsed and then dipped into a series of tanks to anodize or plate them with protective coatings such as chrome of zinc. The tanks were about waist height on the employees and generally ranged from 150 to 300 gallons in capacity. The level of the solution in an average tank was 4 to 5 inches below the lip of the tank. Each line consisted of between 10 to 15 tanks and lines were separated by walkways which were 3 to 4 1/2 feet wide.

The primary dispute is whether employees should have been required to wear eye protection when manually dipping parts and racks into the tanks. To prove that eye protection was required, the Secretary must establish that a "danger of splashing" existed within the meaning of the standard. The Secretary argues that employees who worked at the tanks were exposed to a "danger of splashing" affecting the eyes when dipping parts into the tanks because the acidic or alkaline solutions in certain tanks were proven harmful to the eyes, and there was a possibility for splashing injuries to the eyes as shown by the nature of the operation and Anoplate's injury records. Anoplate argues that the Secretary failed to prove a "danger of splashing" because he (1) failed to prove that the liquids, in the tanks would harm eyes, (2) failed to prove a danger of splashing the liquids into the eyes, and (3) failed to prove the existence of a significant risk of harm to employees as a result of the conditions in any event. However, we find that the Secretary has established these facts.

We will address first the issue whether the Secretary bore the burden of establishing the existence of a significant risk of harm. Anoplate argues that we should adopt the Second Circuit's holding in Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96 (1981) ("Pratt & Whitney I"); see also 715 F.2d 57 (2d Cir. 1983) ("Pratt & Whitney II") (same case), that the Secretary must prove the existence of a significant risk of harm in each case where he proceeds under a standard that does not incorporate a finding that that risk exists. We agree with the reasoning of Pratt & Whitney and will apply it in our proceedings. Accord, Donovan v. General Motors Corp., GM Parts Div., 764 F.2d 32 (1st Cir. 1985). In Pratt & Whitney 1, the Second Circuit reasoned that to interpret an OSHA standard to apply in the absence of a significant risk of harm would be to enlarge the standard's scope beyond that permitted by the Act. 649 F.2d at 103-04. The court pointed out that the Supreme Court in a plurality decision had held that the Act "was not designed to require employers to provide absolutely risk-free workplaces" but to "require the elimination, as far as feasible, of significant risks of harm." Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 641 (1980). The Supreme Court relied principally on section 3(8) of the Act, 29 U.S.C. 652(8), stating:

By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment," the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not the equivalent of "risk-free." There are many activities that we engage in every day -- such as driving a car or even breathing city air -- that entail some risk of accident or material health impairment; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm.

448 U.S. at 642. Consistent with that decision, where a standard is not expressly or impliedly based on a finding that noncompliance will result in a significant risk of harm, but rather -- by using terms such as "hazard" or "danger" -- leaves that determination to the Commission on a case-by-case basis, there must be a showing that a significant risk of harm exists in the particular case.

The standard cited here does not incorporate a finding of a significant risk of harm. Put another way, the standard does not presume a hazard when its terms are not met. Pratt & Whitney II 715 F.2d at 63; cf. Stanbest, Inc., 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1231, 1983-84 CCH OSHD 26,455, p. 33,625 (No. 76-4355, 1983). Rather, it sets forth eye protection requirements that apply only in cases where there is a "danger of splashing." The standard is directly analogous to the one involved in Pratt & Whitney I, 1910.94(d)(7)(iii). That standard prohibits the use of a common exhaust system for open surface tanks where the combination of substances in a duct system "may constitute a fire, explosion, or chemical reaction hazard." Thus, use of a common exhaust system is prohibited only where certain hazards "may" occur. The Second Circuit held that under that standard the Secretary must show in each case the existence of a significant risk of harm from the use of a common exhaust system. Similarly, under the standard cited here, the Secretary must show a "danger of splashing" in each case, that is, a significant risk of harm due to splashing.[[3]]

We find that the evidence in this case meets that test. The solutions in numerous tanks were shown to be harmful to the eyes if splashed into them. The IH made an "educated observation" that the solutions in over half of Anoplate's tanks were corrosive enough to at least irritate the eyes. His conclusion was based in part on (1) statements by either Milton Stephenson, Anoplate's president, or his son John, who acted as safety director, regarding the concentrations of acids and alkalies in the tanks beside which employees were working during the inspection; (2) Anoplate's injury records; and (3) sources in the literature indicating that the same type of chrome plating done at Anoplate can lead to employees suffering holes in the nose.

As to the concentrations of acids and alkalies, the industrial hygienist testified that Milton or John Stephenson had told him the solutions in various tanks were as follows: sulfuric acid in a concentration of 15% to 20% by volume; chromic acid in a concentration of 28 ounces per gallon of liquid (22% by volume); nitric acid in a concentration of 40% to 55% by volume; hydrochloric acid in a concentration of up to 40% by volume. Certain other tanks were heated to 160- 180 F and contained Oakite alkaline cleaners.[[4]]

As to the injury records, the IH testified that at the inspection he was shown records for the previous three years and that they showed "quite a few eye injuries due to acid in the eye," although these records did not show how the acid got into the eyes. The records also revealed injuries due to acid splashing on the body. There also was an employee eye injury due to splashing of nitric acid about 2 1/2 months before the inspection. The employee involved was a plater in the anodizing department, where the injury occurred. He was not required to wear eye goggles at that time. Another splashing injury to an employee's eyes in 1978, involving chromic acid, occurred during chemical additions to a tank.[[5]] It is logical to infer from those injury records that the solutions in certain tanks at the time of the inspection would he harmful to the eyes if splashed into them, and there was no contrary evidence. In fact, the IH testified without contradiction that each type of electroplating is a quite uniform process.

The IH had the scientific background to support his opinion based on the injury records and the other data noted above, that many of the solutions would be harmful to the eyes. The IH held a master's degree in environmental health, had taken numerous organic and inorganic chemistry courses, was a registered sanitarian with the state of California and had five years of experience as an OSHA industrial hygienist.

As to the literature relied on by the IH, he did not identify it. His reliance on it to establish that chromic acid ions can cause holes in the nose is, however, consistent with a finding in another case made by the Commission on the basis of expert testimony and on an OSHA standard, section 1910.94(d)(9) (viii), which requires the nostrils and other body parts of workers exposed to chromic acid to be examined for incipient ulceration. See Schulte Corp., ___ OSAHRC ____, 12 BNA OSHC 1222, 1224, 1985 CCH OSHD 27,210, p. 35,126 (No. 80-2666, 1985)(expert testimony established that 0.1% chromic acid solution could lead to chromic ulcers from direct contact, as the crucial factor is not strength of solution but presence of chromic ion).

Contrary to Anoplate's contention, the IH's other testimony, read as a whole, is consistent as to the harmfulness of the solutions. He admitted on cross-examination that he did not take samples to verify Anoplate's statements as to what was in the various tanks, but given the statements by Anoplate officials, he did not need to. Those statements are admissions binding on Anoplate. F.R.E. 801(d)(2)(D). Because the IH had not taken samples, he admitted he was not absolutely certain whether the solutions in a nickel tank, chromic acid tank and an acid zinc line would be harmful if an employee put his hand into them, but based on his education and experience he was of the opinion that they could be harmful to the hand, a part of the body less delicate than the eye. His opinion testimony was consistent that certain of Anoplate's tanks contained harmful solutions. In light of this evidence and the lack of evidence to the contrary, we find that the evidence establishes that the solutions would be harmful to the employees' eyes.

We also find a significant risk that these solutions might splash into the employees' eyes. Splashing of these liquids into the eyes had occurred and was likely to recur. We note again the recent splashing injury to the eye of an Anoplate employee. We also note that splashing injuries to the body had occurred within the last three years at Anoplate's plant. Inasmuch as employees stood by the tanks and worked over them when lowering racks of parts into them and lifting the racks out, we find that an employee's eyes would be directly at risk if a splash occurred in a tank with a harmful solution while the employee dipped parts into it. The IH testified that he saw "employees using almost all of the tanks at one time or another" and that in his opinion employees would work at all the tanks, including the nitric acid tanks. Finally, we find a significant risk to the eyes despite the fact that eye irritation was the only hazard that the IH definitely stated would result from a splash into the eyes. Eye irritation caused by strong acid solutions and hot alkaline solutions splashed in employees' eyes must be considered significant for the eye is an especially delicate organ. Vanco Construction, Inc., 82 OSAHRC 71/A2, 11 BNA OSHC 1058, 1060, 1983-84 CCH OSHD 26,372, p. 33,453 (No. 79-4945, 1982), aff'd, 723 F.2d 410 (5th Cir. 1984). We also note that the Act contemplates violations that are not "serious". See section 17(c) of the Act, 29 U.S.C. 666(c). We therefore find that a significant risk of harm to employees' eyes was posed and therefore that a "danger of splashing" within the meaning of the standard was shown.

Anoplate makes a number of other arguments in support of its position that eye protection was not required during the operations involved here. It argues that the standard does not apply to ordinary plating operations. It urges that to prove a violation of the cited standard, the Secretary must show a violation of 1910.133, referred to in the standard. It also asserts that no violation of the cited standard can be found unless the Secretary proves the feasibility of the means of compliance set forth in it--"tight-fitting chemical goggles or an effective face shield." We reject these arguments for the following reasons.

We reaffirm the Commission's holding in Schulte that the standard applies when a "danger of splashing" arises from adding parts to a tank.[[6]] Anoplate specifically argues that the phrase "the employees so engaged" in the standard (p. 2 supra) limits its application to the manual addition of acids and chemicals to the tanks, or when acids and chemicals are removed from the tanks. As Schulte noted, however, the phrase "for example" in the standard signifies that the standard was intended to cover more than just additions and removal of acids and chemicals. A common sense interpretation of the words "the employees so engaged" is that they refer to employees engaged in work at open surface tanks where there is a danger of splashing.

We reject Anoplate's argument that the proof requirements of 1910.133 must be met to prove a violation of 1910.94(d)(9)(v). Section 1910.133, an eye protection standard, states, "Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment." Section 1910.133 also contains detailed requirements for eye goggles and face shields. We conclude that the reference in section 1910. 94(d)(9)(v) to section 1910.133 is merely a cross-reference intended to point the reader to the detailed specifications for eye goggles and face shields under that standard, and not an indication that section 1910.94(d)(9)(v) applies only when section 1910.133 would apply anyway. In any event, in evaluating significant risk under section 1910.94(d)(9)(v), we do consider the reasonable probability of injury.

We also reject Anoplate's assertion that the Secretary had to prove the feasibility of the specific means of compliance required by the standard, "tight- fitting chemical goggles or an effective face shield." Where a regulation specifies the means of compliance, as here, the Secretary bears no burden of proving that those means are feasible. E.g., Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1115 (7th Cir. 1982); see Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1035 (2d Cir. 1975).

Anoplote had the requisite knowledge of the conditions constituting the violations as shown by its own injury records and by the fact that its president, or his son, who acted as safety director, had occasion daily to observe the employees as they worked.

As to the seriousness of the violation, we find the evidence about eye irritation did not demonstrate a substantial probability that serious harm could result from the violation, as discussed above. Thus, we find only a nonserious violation. See Duquesne Light Co., 84 OSAHRC 23/D2, 11 BNA OSHC 2033, 2038-39, 1983-84 CCH OSHD 26,259, pp. 34,602-03 (No. 79-1682, 1984).

Citation 1, Item 2 (Amended Complaint VI(d):
1910.94(d)(9)(vii)--Facilities for washing off harmful chemicals
The Secretary alleged a violation of 1910.94(d)(9)(vii) in that there was no supply of clean, cold water near each open surface tank containing liquids that could harm employees' skin if splashed on the body. The standard states:

Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body, there shall be a supply 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 smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body.

The basic dispute is whether the Secretary proved that Anoplate's facilities were inadequate in light of the numerous, continuously-running water hoses Anoplate had in the two buildings where electroplating was carried on. We agree with Anoplate that its facilities were not shown to violate the standard.

The Secretary relies on the IH's testimony that the only facilities he considered suitable for washing harmful liquids off the body were two eyewash bottles in building 3, and that he considered them insufficient to comply with the cited standard. The IH also testified that the tanks containing harmful liquids were dispersed around buildings 2 and 3.

The judge found a serious violation on this evidence, and also determined there was a need for deluge showers, based on the IH's statement to that effect. However, unrebutted testimony by Anoplate's president establishes that it had numerous water pipes and hoses meeting the specifications of the standard. He testified that there were at least three water hoses with continuously-running water feeding rinse tanks in each building. Those hoses were at least 48 inches in length and 3/4-inch or larger in diameter, as required by the standard. Though the water pipes did have quick-opening valves, the fact that they ran continuously made that measure unnecessary.[[7]] The Secretary argues that the rinse tank water was insufficient because it had residues of the chemicals used in Anoplate's processes. However, all of the continuously-running hoses apparently could be readily removed from the tanks for purposes of washing the eyes and body and there was no testimony that the running water was not "clean cold water." Thus, there was no showing that the hose water was insufficient under the standard.

We also find a lack of proof that these water hose facilities were no sufficiently "near each tank containing a liquid which harmful to the skin if splashed upon the worker's body." As we stated in Gibson Discount Center, Store No. 15, 78 OSAHRC 30/C1, 6 BNA OSHC 1526, 1527, 1978 CCH OSHD 22,669, p. 27,357 (No. 14657, 1978), in vacating a citation under a similar eyeflush standard:

We agree with [the employer] that this standard does not require water facilities to be within any specific linear distance. Rather, the distance permitted depends on the particular circumstances; for example, the strength of the corrosive material and the configuration of the work area. (Footnote omitted.) The only specific evidence offered by the Secretary as to where eyewash facilities should be located was in regard to building 2. The IH testified that in his opinion there should be a suitable eyewash facility for each line in that building. He noted that the building was 140 feet long and 50 feet wide and that about eight employees worked there. He also noted that it contained an aluminum anodizing line, a cadmium plating line, a zinc plating line and lines using alkaline cleaners and phosphoric acid, and that these lines were distributed throughout the building.

The IH did not indicate how close to the harmful solutions in each line the water supplies needed to be. There was no evidence as to how quickly Anoplate's acid and alkaline solutions should be flushed from the body to avoid injury, or how the configuration of the work area affected the allowable distance. Thus, as in Gibson Discount Center, we lack a sufficient factual basis to conclude that Anoplate's washing facilities were too far away from the tanks containing harmful liquids.

We also note that the IH testified that at the time of the inspection he had concluded that only three sources of supply were needed in building 2, one at each end of the room and one in the middle. Thus, his opinions were not consistent as to how many facilities were needed, and where, and he did not explain why his opinion changed. Anoplate had at least three suitable facilities each in building 2 and in building 3. The evidence does not show that those facilities were not "near" enough to the various plating lines.

The judge erred in finding that deluge showers were required because the water hose system did not meet the standard's requirements. Since the Secretary did not show the inadequacy of the water hose system, he did not establish that deluge showers or eye flushes were required.[[8]]

Citation 1, Item 3 (Amended Complaint VI (e)):

Section 5(a)(1) of the Act--Storage of acids and cyanides
The Secretary alleged a violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), or in the alternative, 1910.176(c),[[9]] in that "chemically incompatible materials such as acids and cyanides were stored together or were adjacent to each other, exposing employees to possible dangerous vapors, gases or fire if chemicals should accidentally come in contact with each other." Section 5(a)(1) of the Act states that each employer shall furnish to each of his employees employment and
a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

We conclude that the Secretary met his burden of proof under the general duty clause and therefore affirm this item.

It is undisputed that a row of containers labeled or identified as cyanides were stored within two to seven feet of a row of containers labeled or identified as acids, in a storage area of building 1. The two rows were separated only by a walkway. It also is undisputed that potentially deadly hydrogen cyanide ("HCN") gas would be generated if acid and cyanide were to mix.

To prove that an employer violated section 5(a)(1), the Secretary must show that a condition or activity in the employer's workplace presents a hazard to employees, that the cited employer or the employer's industry recognizes the hazard, that the hazard is likely to cause death or serious physical harm and that feasible means exist to eliminate or materially reduce the hazard. Sharon Steel Corp., ___ OSAHRC ____, 12 BNA OSHC 1539, 1541, 1985 CCH OSHD 23,423, p. 35,526 (No. 80-2751, 1985).

It is clear that the common storage of cyanide and acid containers posed a hazard,[[10]] and that Anoplate recognized this to be a hazard. As the judge noted, Anoplate's John Stephenson confirmed during the inspection that the containers held cyanides and acids, some in liquid form and some in a dry state, and agreed that their common storage was hazardous. Manufacturers' warnings on some of the acid containers stated "Caution: keep away from cyanides" and those on some cyanide containers urged that the cyanide be kept away from acids. The record also established a feasible and useful means of abatement. The IH testified without contradiction that Anoplate could store the cyanides and acids in separate rooms.

The remaining question is whether the Secretary proved that Anoplate's storage practices were "hazards that are causing or are likely to cause death or serious physical harm" to Anoplate's employees. It is undisputed that HCN gas is "likely to cause death or serious physical harm" to exposed employees if generated. Anoplate argues, however, that a violation cannot be found because it was not shown that HCN gas formation was likely to occur. If Anoplate means by its argument that the evidence must show that the occurrence of serious harm is more likely than not, or that the likelihood must be established with mathematical precision, we would disagree. There are serious injuries and illnesses that are less than 51% probable to result from recognized hazards in the workplace but are nevertheless sufficiently "likely" to warrant abatement. We do not think it necessary that the Secretary pin down a probability precisely. Although we think that no test of likelihood can be stated with complete clarity, we do think it proper to look to both the likelihood and degree of harm and to be mindful that by using the limiting phrase "recognized hazards that are causing or are likely to cause death or serious physical harm," Congress had a definite purpose to accomplish--to limit section 5(a)(1) to conditions that few could doubt are dangerous enough to warrant abatement. We also think it important that a number of federal courts have indicated that a mathematically precise test is unnecessary, and that the Commission's good judgment in the matter must govern in the end:

If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission's expert determination of likelihood should be accorded considerable deference by the courts.
National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973). Accord, Illinois Power Co. v. OSHRC, 632 F.2d 25, 29 (6th Cir. 1980); Titanium Metals Corp. of America v. Usery, 579 F.2d 536 (9th Cir. 1978).

Here, the evidence establishes a sufficient likelihood of generation of HCN through intermixture of cyanide and acid. Intermixture could occur in several ways. The metal containers that held some of the cyanides and acids could have rusted and leaked their contents. Anoplate's president acknowledged that metal containers rust and can leak. Indeed, one metal container in the immediate vicinity of the cyanides--which Anoplate's president testified may have contained chromic acid--had leaked. Intermixture also could occur during a fire in the storage area. Some of the containers of cyanides and acids were made of cardboard, which could burn and liberate the contents. The storage area had an overhead sprinkler system designed to activate in the event of fire; the water released from that system would have increased the likelihood of intermixture and generation of HCN gas if during the fire acids and cyanides were released from their containers. We therefore conclude that the Secretary established the existence of a hazard that was "likely to cause death or serious physical harm" under section 5(a)(1).[[11]]

Anoplate argues that citation to section 5(a)(1) is inappropriate here because the cited condition is covered by 1910.176(c)(n.9 supra). See 29 C.F.R. 1910.5(f) (section 5(a)(1) inapplicable when standard applies); Brisk Waterproofing, Inc., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD 16,345 (No. 1046, 1973) (same). The condition cited by the Secretary under section 5(a)(1) is common storage of chemicals that when mixed accidentally could generate HCN gas and poison employees. The standard mentions only fire and explosion hazards. Inasmuch as 1910.176(c) does not expressly cover the HCN poisoning hazard, and we are unconvinced that the drafters of 1910.176(c), which is entitled "Housekeeping," implicitly intended to cover HCN poisoning but require little or no protection against it, we conclude that section 1910.176(c) does not cover the cited condition and hence does not preempt section 5(a)(1).

Anoplate also argues that Judge Hassenfeld's ruling permitting the prehearing amendment to allege a violation of section 5(a)(1) of the Act in the alternative was erroneous. Anoplate argues that the amendment was tardy and caused it to devote more time and effort to the defense of the new allegation. A judge's ruling on a motion to amend will be upheld unless the ruling was an abuse of discretion. E.g., TRG Drilling Corp., 81 OSAHRC 108/D10, 10 BNA OSHC 1268, 1981 CCH OSHD 25,837 (No. 80-6008, 1981). The Commission has also held that prehearing amendments should be granted as long as the objecting party would not be prejudiced in the preparation and presentation of its case. United Cotton Goods, Inc., 82 OSAHRC 8/A2, 10 BNA OSHC 1389, 1982 CCH OSHD 25,928 (No. 77-1894, 1982). Here, the original and amended charges arose from the same physical circumstance cited originally--the common storage of acids and cyanides. The hazard of poisoning by gas, which the standard does not cover, was nevertheless encompassed by the term "possible dangerous gases [or] vapors" in the citation and the amended complaint. The Secretary's answers to interrogatories specifically identified HCN gas as an alleged hazard resulting from common storage. The motion to amend was made 3 1/2 months before the hearing on the merits. Anoplate did not show that the timing of the amendment adversely affected its ability to prepare and present its defense nor did it show how the judge who presided over the prehearing stage abused her discretion in granting the motion to amend. We therefore uphold the judge's order granting the amendment.

Citation 2, Item 1 (Amended Complaint VI(f):

29 C.F.R. 1904.2(a)--Sufficiency of injury log
The Secretary alleged a violation of 1904.2(a) in that entries in Anoplate's injury and illness log were insufficient. It is undisputed that Anoplate maintained an injury and illness log and that it recorded for each injury the date, the employee's name and the medical attention given. Anoplate did not, however, always record the employee's job title and regular department as required by OSHA Form 200. There is also a dispute over whether the injury record identified the injury or illness with sufficient specificity. The regulation provides:

1904.2 Log and summary of occupational injuries and illnesses.

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working 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 and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

OSHA Form 200 requires for each injury the following information, among other things: the employee's "regular job title" or "a brief description of the employee's duties," the "department in which the employee is regularly employed or a description of normal workplace to which employee is regularly employed or a description of normal workplace to which employee is assigned," and "a brief description of the injury or illness and...the part or parts of body affected." We conclude that the Secretary established a technical violation of the requirement that the employee's job title and regular department be entered, but that the violation was de minimis. We also find that the evidence is insufficient that Anoplate failed to specify the type of injury.

Judge Furcolo found that Anoplate's injury records did not always specify the injured employee's job title or location. This finding is supported by the record. Although the Secretary did not submit the injury records into evidence, the IH testified on the basis of his examination of the records that the injured employee's job title and regular department were not always listed.

However, the IH also testified that an Anoplate manager had told him that the missing details in its records were not necessary because all the employees in Anoplate's small workforce (about 38 employees) knew what everyone else did. Also, the IH testified that he was able to make a fair assumption as to the location in the plant of each type of eye injury based on the information in the records. In light of this, and the lack of evidence that the failure to list the injured employees' job titles and regular departments hindered the IH's investigation, it appears that the purposes of the form were achieved. In these circumstances, Anoplate's noncompliance bears such a negligible relationship to employee safety and health as to render imposition of a penalty or abatement order inappropriate, and therefore we affirm the violation of the "job title" and "regular department" requirements as de minimis. Cf. Clement Food Co., 84 OSAHRC 128/B10, 11 BNA OSHC 2120, 2126, 1983-84 CCH OSHD 26,972, p. 34,636 (No. 80-607, 1984).

We also vacate the citation to the extent it alleges a failure to specify the type of injury. OSHA Form 200 requires only a "brief description" of the type of injury and the parts of the body affected. Again, because the Secretary did not submit the records in evidence, the only evidence on the issue is the testimony of the IH. The IH's testimony is, however, inconsistent as to whether the type of injury was listed; at one point, the IH testified that to his recollection Anoplate's records failed to disclose the nature of employees' injuries, but at another point he testified that the records included the types of injuries. He also did not explain what specific deficiencies there were in the descriptions of injuries. This evidence is insufficient to support a finding of a violation.

Because the only violation we find is de minimis, we amend this item to a de minimis notice with no abatement order or penalty.

Citation 2, item 2 (Amended Complaint VI(g):

1904.6--Retention of injury log

1904.6--Retention of injury log

The Secretary alleged a violation of section 1904.6 in that Anoplate's OSHA Form 200 (and its predecessor forms OSHA No. 100 and 102) "were not retained in the establishment for 5 years following the end of the year to which they relate." The regulation provides:

1904.6 Retention of records.

Records provided for in 1904.2, 1904.4, and 1904.5 (including form OSHA No. 200 and its predecessor forms OSHA No. 100 and OSHA No.102) shall be retained in each establishment for 5 years following the end of the year to which they relate.

We find the proof insufficient that the records were not retained in the establishment as required, and thus we vacate the item.

Judge Furcolo found a violation because the IH had asked during the inspection for Anoplate's injury records for the preceding five years. Because the company was able to produce records during the inspection for only the past three years, the judge found that Anoplate "apparently had them for only 3 years." However, the key question under the standard is whether the Secretary submitted sufficient evidence that the records were not "retained" in the establishment for five years. The standard does not require that they shall be provided to the Secretary upon request. That is required by section 1904.7(a).

The evidence is insufficient to establish that Anoplate's records were not "retained" in the establishment for five years. During the inspection, Anoplate's president told the IH that there were records around going back farther than three years, but that he simply could not locate them at that time. At the hearing, the IH testified, "I don't have any evidence that they did not maintain records, all that I know is that I didn't get five years [of records]." Indeed, the Secretary presented no evidence that Anoplate did not retain records for the full five years. He did not apply for a subpoena under Commission Rule 55, 29 C.F.R. 2200.55, to require the production of the records by their custodian at Anoplate, or request admissions under Commission Rule 52, 29 C.F.R. 2200.52. Without evidence of nonretention, we cannot find a violation. Accordingly, we will vacate this item.

Citation 2, item 3 (Amended Complaint VI(h):

1910.23(a)(5)--Unguarded pit
The Secretary alleged a violation of section 1910.23(a)(5) because an infrequently used sump pit adjacent to a wall in building 2 had an uncovered area about 11-13 inches wide, 2 1/2 feet long and 3-4 feet deep, on the first day of the inspection.[[12]] The standard provides:

1910.23 Guarding floor and wall openings and holes. (a) Protection for floor openings.

* * *

(5) Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

We vacate this item because the Secretary failed to prove that employees had been in the zone of danger posed by the violative condition, or that it was reasonably predictable that they would be in that zone of danger.

The judge found a violation on the ground that the uncovered area was near an employee passageway, and he suggested that an employee might, through inadvertence, step into the opening. However, in order to prove a violation the Secretary must prove that it is reasonably predictable that employees have been, are, or will be in the zone of danger during the course of their assigned duties, personal comfort activities on the job or normal means of entrance to and exit from their assigned workplace. E.g., Carpenter Contracting Corp., 84 OSAHRC 22/B10, 11 BNA OSHC 2027, 2029-30 and n. 3, 1983-84 CCH OSHD 26,950, pp. 34,563-64 and n. 3 (No. 81-838, 1984). Although the uncovered pit contained a sump pump, which employees would occasionally repair, the concern of the Secretary evidently is that employees not so engaged might fall into the pit. The IH testified that the uncovered area was about 15 feet from a metal plating line where employees worked; he also testified that it was "near" an employee passageway but he did not specify the distance between the two. We cannot determine from these statements why an employee might approach the pit, which was adjacent to a wall. Admittedly, repairs to the pump were infrequent. The IH speculated that an employee might have stepped next to the unguarded area to move a large, heavy tank that was there on the first day of his inspection; however, he admitted that possibly no employee had been near the area for that operation. This evidence is too speculative to serve as the basis for finding a violation. No evidence established that it was reasonably predictable that employees would be in the zone of danger created by the unguarded portion of the pit. Thus, we vacate this item.

Citation 2, item 4 (Amended Complaint VI (i):

1910.107(e)(27)---Storage of flammable and combustible liquids for spray painting

The Secretary alleged a violation of 1910.107(e)(2) in that the quantity of flammable and combustible liquids kept in the vicinity of Anoplate's spray painting operation "exceeded the minimum required for the operation," and that the manner of bulk storage of portable containers of such liquids was impermissible. The standard provides:

The quantity of flammable or combustible liquids kept in the vicinity of spraying operations shall be the minimum required for operations and should ordinarily not exceed a supply for 1 day or one shift. Bulk storage of portable containers of flammable or combustible liquids shall be in a separate, constructed building detached from other important buildings or cut off in a standard manner.

We find that Anoplate violated the mandatory provisions of both sentences of the standard.

The Secretary established that the quantity of paint, thinners and solvents stored adjacent to the spray booth exceeded "the minimum required for operations." The IH testified that numerous cans with labels indicating that they contained paint, thinners and solvents were stockpiled on the opposite side of one of the spray booth's walls, and that five-gallon drums of the same liquids were stockpiled on an adjacent wall. Labels on containers are sufficient evidence of their contents in the absence of contrary evidence. See Alpha Poster Service, Inc., supra n. 10. A photograph in evidence taken by the IH shows approximately 10 or more cans he identified as containing these liquids on the wall opposite the spray booth. He picked up numerous containers and found that some were full and others were half-full. He testified that an Anoplate employee who did spray painting told him that they never would use all the stockpiled paint, thinners and solvents in a day, and that the employee also said that less than an hour of spray painting was done on an average day. Anoplate did not object to, or contradict, the IH's testimony of what the employee told him. We therefore find that the quantity of paint, thinners and solvents exceeded "the minimum required for operations."

We also find that the liquids were "flammable or combustible" within the ordinary meaning of those words. The IH testified that all the containers of liquids had labels identifying their contents as paint, thinners and solvents. The IH also testified based on his experience and knowledge of chemistry and from reading the labels that these liquids were flammable or combustible. He was well-qualified to give that opinion based on his scientific background, discussed above at p. 8. See Stanbest, 11 BNA OSHC at 1227, 1983-84 CCH OSHD at pp. 33,620-21. More importantly, Anoplate did no offer any contraverting evidence that these liquids were not flammable or combustible.

Moreover, the labels on certain containers specifically stated that they held a "flammable liquid." There were containers stating that they held xylene and MEK (methylethyl ketone). We take official notice under 5 U.S.C. 556(e) that these substances have flashpoints of 81-90 F and 22 F, respectively.

N.Sax, Dangerous Properties of Industrial Materials, 438, 1094-95 (5th ed. 1979)("Sax"). See Stanbest, 11 BNA OSHC at 1227, 1983-84 CCH OSHD at p. 33,620-21. These flashpoints are low enough that they would be considered flammable in the usual sense of the word, i.e., as "capable of being easily ignited and of burning with extreme rapidity." Webster's Third New International Dictionary (1971); Sax at 438, 1094 (fire hazard of MEK (2-butanone) and xylene rated as "dangerous when exposed to heat or flame"); National Fire Protection Association ("NFPA"), Fire Protection Guide on Hazardous Materials, pp. 325M-13, 325M-103, 325M-139, 49-16 and 49-230 (xylene and MEK have fire hazard ratings of 3 on scale of 0 to 4, i.e., "can be ignited under almost all normal temperature conditions"); see also id. at 704M-19 ("if [a liquid] has a flashpoint, it must be considered flammable or combustible").[[13]]

The evidence also establishes that Anoplate's bulk storage of portable containers of flammable and combustible liquids was not confined to "a separate, constructed building detached from other important buildings or cut off in a standard manner." Anoplate stored paint, thinners and other flammables and combustibles in three paint lockers in the same room with the spray booth and only about 20 to 25 feet from it. It also stockpiled those materials on walls adjacent to the spray booth. We therefore find that Anoplate violated the bulk storage provision of the standard.

Anoplate argues that the standard is merely advisory and cannot be enforced against it. Anoplate relies on the language that flammable or combustible liquids "should ordinarily not exceed a supply for 1 day or one shift." (Emphasis added.) We agree that the language just quoted is not mandatory because it uses the word "should". However, Anoplate was shown to have violated portions of the standard that use the word "shall" and we find violations of only those portions.

Anoplate argues that the Secretary failed to show that it knew or reasonably could have known of the violative conditions. We disagree, for the conditions were in plain view.

Finally, Anoplate argues that the Secretary failed to show a significant risk of harm. As discussed above, we agree with the reasoning in Pratt & Whitney that where a standard does not incorporate a finding of a significant risk of harm, but leaves that for case-by-case determination, the Secretary must show the existence of a significant risk of harm in each case. However, the Pratt & Whitney court noted that most OSHA standards are specific and presume the existence of a safety hazard when their terms are not met. 715 F.2d at 63. That is, they specifically require or prohibit certain practices or conditions without proof of a hazard or potential hazard. Those standards incorporate a finding that the prohibited practices or conditions present a significant risk of harm (or that the absence of required practices or conditions presents a significant risk of harm). The Pratt & Whitney court made clear that the Secretary need not prove a significant risk of harm under those standards, citing with approval Super Excavators, Inc. v. OSHRC, 674 F.2d 592, 595 ("the Secretary need only prove a [violation of a] regulatory standard where the standard is specific.") 715 F.2d at 63-64 and n.4.

The first part of 1910.107(e)(2) specifically prohibits storage of flammable and combustible liquids in the vicinity of spraying operations in a quantity exceeding "the minimum required for operations." It does not leave for case-by-case determination whether sufficient hazards exist to warrant those precautions. Thus, it presumes the existence of a hazard when its terms are not met. See Stanbest, 11 BNA OSHC at 1231, 1983-84 CCH OSHD at p. 33,625. The second part of the standard specifically requires "bulk storage of portable containers of flammable or combustible liquids" to be confined to a "separate constructed building" meeting certain requirements. Again, no case-by-case determination of whether hazards exist is called for. Thus, that part of the standard also presumes the existence of a hazard when its terms are not met.

Because both mandatory requirements in the standard presume the existence of a hazard when their terms are not met, the Secretary bears no burden of proving a significant risk of harm due to noncompliance with them. As discussed above, the Secretary made out a violation of both those mandatory requirements. We will therefore affirm this item unless Anoplate requests an opportunity within 10 days of this decision's date of issuance to present evidence contrary to the facts of which we have taken official notice. See n.13 supra.

Citation 2, item 5 (Amended Complaint VI(j):

1910.242(b)--Compressed air pressure

The Secretary alleged a violation of section 1910.242(b) in that "compressed air used for cleaning purposes was not reduced to less than 30 p.s.i." The standard provides:
Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

We vacate this item because the evidence is insufficient that the compressed air was used for "cleaning" as opposed to merely drying parts that already had been cleaned and rinsed in Anoplate's tanks.

The IH used an air pressure gauge to determine that at least one compressed air nozzle used on metal-plated parts had a pressure of 70 to 80 pounds of pressure per square inch. The IH testified that the air nozzle was used to blow excess water and solution off metal-plated parts after they had been rinsed, and to speed the drying process.

The judge affirmed this item, finding that the air pressure exceeded 30 p.s.i. However, the standard applies only to compressed air used for "cleaning," not drying off of parts. The evidence here did not demonstrate that the compressed air operations were "cleaning" within the meaning of the standard. Thus, we vacate this item.


In assessing penalties, the Commission is to give "due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." Section 17(j) of the Act, 29 U.S.C. 666(i). Anoplate is a small employer with about 38 employees and there was no evidence of a history of violations. The IH testified that Anoplate did not demonstrate complete good faith based on its inadequate efforts to abate the alleged eyewash facilities and pit opening violations, and based on its recordkeeping deficiencies. We disagree because we have found no violation as to the eyewash facilities and pit opening and have found the recordkeeping deficiencies to be de minimis. Thus, the amount of the penalty depends principally on the gravity of the violations we have found.

The judge assessed a $50 penalty for the failure to require eye goggles or face shields. We will reduce the penalty to $25 because, unlike the judge, we find insufficient evidence that the violation would result in serious injury, even though a significant risk of harm existed.

As to the section 5(a)(1) violation for failure to use separate storage areas for cyanide and acid containers, we agree with the judge that a $50 penalty is appropriate. Anoplate took the precaution of keeping the various containers shut, lessening the chances of intermixture of the incompatible chemicals. On the other hand, the consequences of intermixture justify the imposition of a penalty.
As to the other item we are affirming, the non-serious spray painting storage item, the Secretary proposed no penalty but the judge assessed $25, without explanation. The Secretary did not provide an evidentiary basis to assess the gravity and probability of harm due to Anoplate's storage practices. Thus, we assess no penalty for this violation.

To summarize, we affirm citation 1, item 1 (section 1910.94(d)(9)(v) as nonserious with a $25 penalty. We affirm citation 1, item 3 (section 5(a)(1) of the Act) and assess a $50 penalty. We affirm citation 2, item 4 (section 1910. 107(e)(2)) with no penalty, unless Anoplate requests an opportunity to introduce evidence contrary to officially noticed facts within 10 days of this decision's date of issuance. We amend citation 2, item 1 (section 1904.2(a)) to a de minimis notice with no penalty or abatement requirement. We vacate citation 1, item 2, alleging a violation of section 1910.94(d)(9)(vii). We also vacate citation 2, items 2, 3 and 5, alleging violations of section 1904.6, 1910.23(a) (5) and 1910.242(b), respectively.

Ray H. Darling, Jr.
Executive Secretary
DATED: March 4, 1986






On July 1, 1982, I issued a Decision which will be filed with the Commission on July 21, 1982, and will become its final order on August 20, 1982. I find an error in it that should be corrected.

On page 6, under "Findings of Fact", strike the first 18 words, the 3 commas, and the colon.


Dated: July 12, 1982
Boston, Massachusetts

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office By e-mail ( ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


[[1]] Both parties petitioned for discretionary review of aspects of the judge's decision and those petitions were granted. The Secretary subsequently notified the Commission of his intent to withdraw his petition. The Commission treated the notice as a motion to withdraw the petition and granted it on January 9, 1985.

[[2]] Anoplate in its brief on review challenges the adequacy of the judge's findings of fact on certain items. However, the Commission has the ultimate responsibility for findings of fact, and may enter its own findings. Kenneth P. Thompson Co., 80 OSAHRC 67/A2, 8 BNA OSHC 1696, 1699, 1980 CCH OSHD 24,593 , p. 30,174 (No. 76-2633, 1980); see Accu- Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976). We will enter our own findings here.

[[3]] Commissioner Rader agrees that under the standard the Secretary must show a significant risk both that splashing to the eyes could occur, and that the result would be harmful to the employee. Pratt & Whitney II, 715 F.2d at 64, However, Commissioner Rader does not agree that the record in this case establishes a significant risk that splashing to the eyes could occur. Milton Stephenson's unrebutted testimony was that Anoplate had only one eye injury from splashing in nineteen years. It is true that Anoplate's injury records showed other eye injuries, but there is no evidence that these resulted from splashing. To say that one splashing injury in nineteen years establishes a "significant risk" is to nullify the significant risk best for all practical purposes. In General Motors Corporation, GM Parts Division, 84 OSAHRC 23/A2, 11 BNA OSHC 2062, 2065, 1984 CCH OSHD 26,961, p. 34,611 (No. 78- 1443, 1984), aff'd, 764 F.2d 32 (1st Cir. 1985), the Commission held that four foot injuries over a two-and one-half year period did not establish a realistic hazard under the facts in that case. Commissioner Rader believes that the precedent in General Motors and in Pratt & Whitney require vacation of citation 1, item 1(c) in the present case.

[[4]] Contrary to Anoplate's assertion, the IH did not testify that an employee dipped his bare hand into any of these tanks as evidence of lack of corrosiveness of its contents.

[[5]] Anoplate's president testified that that injury occurred because the employee was not wearing eye protection, contrary to Anoplate's instructions to wear it during chemical additions to the tanks. Thus, that injury did not occur during the operations in question here. The injury is evidence, however, that the chromic acid solutions in certain tanks could injure the eyes.

[[6]] As in Schulte, we reject Anoplate's attempt to introduce for the first time on review an affidavit that Anoplate asserts supports its interpretation of the standard. Anoplate simply attached the affidavit to its brief without making any motion to re- open the record and admit the affidavit into evidence. When Anoplate filed its brief, we had already made clear that regularity in legal practice in cases on review was expected. See McWilliams Forge Co., ___ OSAHRC ___, 11 BNA OSHC 2128, 2131, 1984 CCH OSHD 29,979, p. 34,671 (No. 80-5868, 1984) (parties may no longer make motions in review briefs and petitions for discretionary review). Even if we were to treat Anoplate's conduct as a motion to re-open the record and admit the affidavit into evidence, we would deny it. First, the affidavit is not admissible. Under Commission Rule 69, 29 C.F.R. 2200.69, affidavits are not admissible in lieu of testimony without the consent of the opposing party; the Secretary has not consented to the admission of the affidavit. Second, Anoplate's attempt is too late. The time to introduce evidence is at the hearing, not on review. Although the affidavit was signed four days before the hearing, Anoplate supplies no convincing reason why the affidavit was not presented at the hearing, why the affiant was not called to testify, or why the affidavit was not presented to the judge after the hearing. Anoplate argues that it did not present the affidavit to the judge because it could not have reasonably anticipated that the judge in his decision would interpret the standard to apply to parts dipping. The Commission, however, construed the standard in that way almost three months before the hearing here. Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1663, 1981 CCH OSHD 25,359, p. 31,510 (No. 13401, 1981). Anoplate was also on notice at least from the time of the Secretary's response to interrogatories that the violation was alleged to have occurred during parts-dipping. Moreover, the Secretary's evidence at the hearing covered the hazards of parts-dipping. Finally, we consider the probative value of the affidavit to be a relevant consideration here. See Chesapeake Operating Co., 82 OSAHRC 36/C9, 10 BNA OSHC 1790, 1792-93, 1982 CCH OSHD 26,142, p. 32,915 (No. 78-1353, 1982). We are not convinced, however, that the affidavit is probative of the intent of the drafters of the standard. According to 29 C.F.R. 1910.99 (sources of standards), section 1910.94(d) was derived from a standard drafted under the auspices of the American National Standards Institute (ANSI), ANSI Z9.1-1969, Safety Code for Ventilation and Operation of Open-Surface Tanks. The affiant states that he served from 1969 to 1980 on the "subcommittee which drafted and periodically reviewed the . . . standard 'ANSI Z9.1--1969. . . . "' We have found, however, that there was no ANSI Z9.1--1969 and that the statement in section 1910.99 to that effect must be a misprint. There was an ANSI Z9.1--1951 and an ANSI Z9.1--1977. See ANSI Z9.1--1971, 1.4 (1971 code supplants Z9.1-1951). We therefore reject the affidavit.

[[7]] There was no specific evidence as to what pressure the water pipes carried (the standard calls for a pressure not exceeding 25 pounds). However, the Secretary did not submit evidence that the water pipes were out of compliance in this regard. He bears the burden of proof on the issue. Thus, no violation was proven based on excessive pressure in the water pipes.

[[8]] The evidence against Anoplate stands in sharp contrast to that in Schulte, where the Commission found a nonserious violation of the same standard. There, the evidence showed certain plating lines using acidic solutions were 60 feet and 125 feet, respectively, from the closest eyewash facilities, that the path-ways to both eyewashes were partially obstructed, and that the nitric acid solutions in certain tanks should be removed very quickly (within 15-30 seconds) to avoid a chemical burn.

[[9]] Section 1910.176 provides:
1910.176 Handling materials--general.
(C) Housekeeping Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be exercised when necessary.

[[10]] Anoplate argues that the contents of the containers were not proven because the IH did not actually open the containers and take samples. There was evidence that one of the liquid containers, labeled "hydroflourosilic acid," was tested by Anoplate and found not to contain acid. However, the IH's unrebutted testimony that Milton or John Stephenson told him the containers held cyanides and acids, and the labels on the containers to that effect, are sufficient evidence on this point. F.R.E. 801(d)(2)(D); Alpha Poster Service, Inc., 76 OSAHRC 141/B8, 4 BNA OSHC 1883, 1976-77 CCH OSHD 21,354 (No. 7869, 1976). That one container did not contain acid does not establish that other containers did not contain acids. There is no evidence that any other containers labeled as acids or cyanides did not contain those materials. The IH also determined that at least some of the containers were full by handling them.

[[11]] Anoplate contends that the Secretary was required to prove a "significant risk" of harm to establish a section 5(a)(1) violation. We intimate no opinion about the merits of this contention. We merely note that if the Secretary bears this burden of proof under section 5(a)(1), our findings indicate that he certainly met it.

[[12]] At the hearing, Judge Hassenfeld further amended the amended complaint to eliminate reference to a board subsequently placed over the uncovered area. The Secretary had alleged that the board was of substandard strength.

[[13]] Because our decision rests in part on official notice of material facts "not appearing in the evidence of record," we note that under 5 U.S.C. 556(e) Anoplate is entitled, upon timely request, to an opportunity to show that the facts noticed are erroneous. Thus, this item will be affirmed unless Anoplate requests an opportunity within 10 days to present evidence showing that any of the facts we have noticed is in error.