SECRETARY OF LABOR.

Complainant,

v.

CONAGRA FLOUR MILLING CO.

AND ITS SUCCESSORS,

Respondent.

OSHRC Docket No. 88-2572

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

Conagra, Inc., ("Conagra"), a large corporation involved in various agricultural businesses, has more than 2000 facilities, including over 250 grain elevators, 28 flour mills, 20 feed mills, meat packing plants, chicken processing plants, fertilizer and pesticide plants, and a number of retail businesses. Among these holdings is a Sherman, Texas facility operated by Conagra Flour Milling Company.  This operation includes a grain elevator and a flour mill. A compliance officer ("Jones") of the Occupational Safety and Health Administration of the Department of Labor ("OSHA"') inspected the flour mill portion of that facility.   Based on her observations during that inspection, Jones asked for assistance from another compliance officer, Burke, who had experience working as a journeyman electrician and who had inspected other grain processing facilities.  The next day, Burke accompanied Jones to the mill to assist her with her inspection.

As a result of this inspection, the Secretary of Labor ("the Secretary") issued two citations to Conagra, one alleging various serious violations of the Occupational Safety & Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), the other alleging a number of other than serious violations of the Act.  Conagra timely contested both citations, and a hearing was held before a Review Commission administrative law judge.  Conagra petitioned for review of portions of the judge's decision, and review was directed pursuant to section 12(j) of the Act, 29 U.S.C. 661(j).

Four items from the two citations are on review.  Three of these items allege serious violations, and one alleges an other-than-serious violation.   All four items on review occurred in the milling department of Conagra's facility.   The flour mill is in a seven-story building.  The first two floors contain the packaging department. The milling department, where the cited conditions existed, is located on floors three through seven of the facility.

1. Items 12(f) & 12(g) of the serious citation.

A.

Item 12 of citation 1 alleges serious violations of the standard found at 29 C.F.R. 1910.307(b) [[1]] at 15 different locations in the milling department.  The judge vacated all but items 12(f) and 12(g). Item 12(f) alleges that a grain testing machine on the fourth floor of the mill neither was approved for use a hazardous location nor had its motor connections covered to prevent the accumulation of combustible dust.   Item 12(g) alleges that a pedestal fan being used on the third floor of the mill was not approved for use in a hazardous location. Specifically, the citation alleges:

29 C.F.R. 1910.307(b): Equipment, wiring methods, and installations of equipment in hazardous (classified) locations were not intrinsically safe, or approved for the hazardous (classified) location, or safe for the hazardous (classified) location:

...........

f) Grain tester 115 volt, S/N JS, had no cover over motor connections, not approved for hazardous location, Milling Department, 4th floor.

g) Galaxy pedestal fan 115 volt, not approved for hazardous location, Milling Department, 3rd floor.

Burke testified that both machines were in areas that were classified as hazardous, Class II, Division 2 locations.  The grain tester cited in item 12(f) was on a work bench on the fourth floor of the facility.  Burke stated that he observed that the wiring of the grain tester was not covered.  He testified that there was an opening in the machine through which he could see bare electrical wires going to the motor, so that the wiring was exposed to the possible accumulation of grain dust, which could then ignite. Burke inspected the machine to determine whether there was any marking to show that it was approved for use in a hazardous location and found none.   He testified that there was no indication that the grain tester was "explosive-proof."  During the inspection, Burke said, he observed a Conagra employee using the grain tester.

Burke also testified that the fan cited in item 12(g) was a variety commonly used in the home. When he examined it, he could see the windings in the motor, and parts of the motor were exposed, so that grain dust could accumulate and, possibly, ignite.  He further stated that he examined this machine to determine whether it bore any marking to show that it had been approved for use in a hazardous atmosphere and that he found none.

Conagra's corporate safety director, Bellinger, testified as an expert witness.  He and his staff of six assist the managers of more than 2000 Conagra facilities in accident prevention and safety. Bellinger testified that, over a period of 17 years prior to the hearing, he had visited the Sherman mill "at least two dozen" times, but he did not indicate how long each visit lasted.  Based on these visits, Bellinger testified that he was familiar with all the electrical equipment cited in item 12.  He was therefore able to state his conclusion that it was "general purpose equipment," and was therefore governed by the provision in 1910.307(d) which says, "General- purpose equipment or equipment in general-purpose enclosures may be installed in Division 2 locations if the equipment does not constitute a source of ignition under normal operating conditions."

Bellinger opined that both machines in question were located in Class II, Division 2 areas. Because the fan was thrown out the day of the inspection, he had not seen it and could not assess its construction.  He said that he was familiar with that make of fan generally, however, and gave his opinion that it was acceptable for a Class 11, Division 2 area.

Based on this evidence, the judge found that both machines were in violation of the cited standard. The judge found that the motors of both machines were exposed to dust.  He also found that neither machine was marked to indicate that it was suitable for use in a hazardous location.  The judge assessed a penalty of $32 for each of these violations.

For the reasons below, we find Conagra's arguments unconvincing and agree with the judge that the evidence establishes that neither of these machines complied with the regulatory requirements for use in a hazardous Class II, Division 2 location.  Neither machine satisfied the requirement that machines used in Class II, Division 2 locations "be totally enclosed non-ventilated, totally enclosed pipe ventilated. totally enclosed fan cooled, or dust-ignition-proof for which maximum all load external temperature shall not exceed 120 C (248 F) when operating in free air (not dust blanketed) and shall have no external openings."

B.

Because the citation and complaint alleged that the grain tester and the fan were "not approved for hazardous location."  Conagra asserts that the pleadings incorrectly charged the company with violating the requirements for a Class II, Division 1 location.  In view of the fact that the evidence establishes that the machines were located in a Class II, Division 2 location.[[2]] Conagra argues that the citation alleged the wrong classification and these items should be vacated.

Conagra bases its argument on the wording of section 502-8 of the National Electrical Code ("NEC"), which is incorporated into the standard and specifies different requirements for electrical motors in Class II, Division I areas and Class II, Division 2 areas.  The section relied on by ConAgra states:

502-8. Motors and Generators.

(a) Class II, Division I. In Class II, Division I locations, motors, generators, and other rotating electrical machinery shall be:
(1) Approved for Class II, Division I locations, or
(2) Totally enclosed pipe-ventilated, meeting temperature limitations in Section 502-1.
(b) Class ll, Division 2. In Class ll, Division 2, locations, motors, generators, and other rotating electrical equipment shad be totally enclosed non-ventilated, totally enclosed pipe ventilated, totally enclosed fan cooled, or dust-ignition-proof for which maximum full load external temperature shall not exceed 120 C (248 F) when operating in free air (not dust blanketed) and shall have no external openings:

Exception: if the authority having jurisdiction. believes accumulations of non-conductive and non-abrasive dust will be moderate, and if machines can be easily reached for routine cleaning and maintenance, the following may be installed.

a. Standard open-type machines without sliding contacts, centrifugal or other types of switching mechanism (including motor over current overloading and over temperature devices), or integral resistance devices.

b. Standard open-type machines with such contacts, switching mechanisms, or resistance devices enclosed within dust-tight housing without ventilating or other openings.

C. Self-cleaning textile motors of the squirrel-cage type.

An examination of these NEC provisions shows that Conagra is correct; the word "approved" is used in the Class II, Division I section but not in the Class ll, Division 2 section.  We do not consider that fact to be determinative, however, because the term "approved" was not necessarily intended to be exclusive to the first category.  For example, if either machine had borne an inscription stating that it had been approved for use in a Class ll, Division I location, it would automatically have been acceptable for use in the less-hazardous Division 2 locations cited here. It was therefore reasonable for Burke to look for such a notation, and it was relevant for him to mention its absence during his testimony.  The fact that he mentioned this absence of markings on either machine does not establish that he erroneously believed that these were Division I locations.  Nor does the fact that the judge also mentioned them establish that he erroneously believed that these machines were located in Division 1 areas.  Indeed, reading the portion of the judge's decision containing his discussion of the 1910.307(b) items discloses that he was clearly aware that the entire milling department was a Division 2 area and was cognizant of the requirements for that category: that machines must be enclosed or dust-ignition proof.   Neither machine was enclosed in the manner specified in the standard, and neither machine bore any indication that it was either dust ignition proof or explosion proof.   Therefore the judge's findings were both correct and relevant to this issue.

Nevertheless, Conagra also argues that, because Burke used the expression "explosive-proof." he erroneously applied the criteria for a Division 1 location.  Examining the record as a whole, however, we see that Burke was the one who informed Jones that the flour mill was a Class II, Division 2 area.  Burke's testimony demonstrates that he was familiar with the correct standard and that he applied it.  We agree with Conagra that this one statement does not state the correct test, but we consider this an instance of "misspeaking."  Examining Burke's testimony in its entirety, we conclude that this one utterance does not accurately reflect what he really said. Burke's testimony shows that the two machines in question did not comply with the requirements for electric motors located in Class II, Division 2 areas.   We are therefore unwilling to focus on this one mistake to negate the rest of his testimony.

Conagra new argues that, because the citation did not specify that the electrical equipment cited was located in Division II, Class 2 areas and because it was misled during prehearing discovery, it lacked fair notice of the Secretary's allegations.  An examination of the record shows that, after the inspection, Jones made notes of her observations believing that the flour mill should be classified as a Class II, Division 1 hazardous location.  She subsequently conferred with Burke, who informed her of an OSHA directive under which flour mills are classified as Class II. Division 2 locations unless air sampling is performed and it is established that there are sufficient levels of combustible dust to cause an explosion.  Since no such testing was performed here, the facility was properly classified as a Class II, Division 2 location, and the citation did not mention any specific classification, referring instead to "hazardous (classified) location[s]."  When Jones' notes were given to Conagra during discovery proceedings before the hearing, they had not been corrected and still referred to the mill as a Class II, Division 1 location.

On the basis of these notes, Conagra argues that it was misled into believing that it was cited for having equipment that was not acceptable for a Class II, Division 1 location and that it prepared its defense on the basis that, contrary to the Secretary's allegation, the mill was a Class II, Division 2 location.  Conagra asserts that it was therefore not prepared to present a proper defense when, at the hearing, everyone agreed that the mill was properly classified as a Division 2 location.   The Judge vacated the citation as to several pieces of electrical equipment cited in item 12 of the citation on the basis of this argument.  However, he found that the violations alleged in items 12(f) and 12(g) were not governed by that argument. He therefore affirmed those items.

Having reviewed the record, we find that the parties fully litigated the issue of whether the grain tester and the fan could legally be used in a Class II, Division 2 location and find no error in the judge's conclusion.  While we agree with Conagra that the citation and the complaint were not specific as to the classification, we are not convinced that any misunderstanding was solely the fault of the Secretary . Neither the citation nor the complaint contained any language to justify Conagra's asserted belief that the Secretary was alleging that the cited areas were Division I locations:  Given the procedures available under the Federal Rules of Civil Procedure to define and narrow the issues, we conclude that, although the pleadings were not precise, they gave fair notice of the charges. See Conley v. Gibson, 355 U.S. 41, 44-45 (1957).

Further, while it is true that Jones wrote the wrong classification in her notes, there is no indication that she did this in a deliberate attempt to mislead Conagra.  The record shows that, until she was corrected, Jones believed that the mill was a Division 1 area rather than a Division 2 area, and that she made her notes immediately following the inspection.  It is true that, before the citation was issued, she had talked with Burke and had been informed of the directive.   There is nothing in the record to suggest that her failure to amend the notes was an intentional act of deceit, as Conagra implies. When the notes were written, Jones could not even be certain that a citation would be issued, much less that it would be contested, that the case would be litigated, nor that her notes would be given to Conagra as part of discovery.  It thus appears that this was an honest mistake, rather than an effort to deceive the company.  Since there is nothing in the record to indicate that Jones knew that her notes had been given to Conagra's attorney by the Secretary's attorney, we see no reason to impose a sanction on the Secretary for this error.

Carrying this argument further in Its reply brief, Conagra asserts that it was prejudiced in the preparation of its case by Its belief that it was charged with violating the requirements for a Class II, Division I location.   However, this assertion was not made in Conagra's Petition for Discretionary Review or in its opening brief.  Moreover, we are not persuaded that the company relied exclusively on Jones' notes.  If Conagra believed that it was cited for the wrong classification, the obvious action to have taken was for it to bring to the Secretary's attention that its facility was not a Class II, Division 1 location and to try to get the citation dropped without having to spend the time and money to prepare for and conduct a hearing on that issue.  We therefore cannot accept Conagra's assertion that t was prejudiced in the preparation and presentation of its case because Jones made an error in making her notes after the inspection.  It is not sufficient for a party to make a general allegation of prejudice without presenting some specific evidence of prejudice. E.g., United States v. Hougham, 364 U.S. 310, 316-17 (1960).

Although Conagra asserts that it was not prepared to try that issue, it has not pointed on review to any evidence that she would have presented had it had more complete notice of the nature of the charges.  To determine whether a party has suffered prejudice, it is proper to look at whether the party had a fair opportunity to defend and whether it could have offered any additional evidence if the case were retried. Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969).  At the hearing, when it became apparent that OSHA's witnesses and Conagra's safety director all agreed that the mill was a Class II, Division 2 area, Conagra did not seek either a continuance in order to obtain additional evidence or to keep the record open after the hearing in order to submit additional evidence.  CfUnited States ex rel Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 677 (11th Cir. 1987) (amendment to conform pleadings to evidence): Watson v. Cannon Shoe Co., 165 F.2d 311, 313 (5th Cir. 1948).

On review, with the issue squarely framed. Conagra did not seek to reopen the record to present evidence on that question.  Conagra points to no evidence that it would have introduced and makes no specific allegations to support its claim.  Having reviewed the record, we do not find that the company could have presented other evidence to rebut the Secretary's prima facia evidence that the cited machines did not satisfy the requirements for a Class II, Division 2 location. Cf. Seifert v. Solem, 387 F-2d 925, 929 (7th Cir. 1967) (amendment of pleadings at trial to add allegation caused no prejudice).  We therefore find that Conagra has not proved that it suffered any specific prejudice in the preparation and presentation of its case because of the purported inadequate notice.  Accordingly, the Commission does not accept either Conagra's claim that it believed that the Secretary alleged that the grain tester and the fan were located in Class II, Division I locations because neither the citation nor the complaint specified the classification, or its unsubstantiated assertion that it was prejudiced by its erroneous belief.

C.

Conagra also argues that its equipment fell within an exception set out in section 502 8 of the NEC, quoted above, which, Conagra asserts, permits an open motor to be used in a Class II, Division 2 location if the authority having jurisdiction believes that accumulations of dust will, be moderate and the machines can be easily reached for cleaning.  The party claiming to fall under such an exception has the burden of proof of its claim.  Dover Elevator Co., 15 BNA OSHC 1378, 1381,1991 CCH OSHD 29,524, p. 39,849 (No. 88-2642,1991); Peavey Grain Co., 15 BNA OSHC 1354,1359 n. 9,1991 CCH OSHD 29,533, p. 39,873 n. 9 (No. 89-3046, 1991).   Not only has Conagra failed to carry its burden here, but we find by a preponderance of the evidence in this record that neither of the two machines in question qualified as a self cleaning textile motor of the squirrel-cage type or as either of the other kinds of machines described in sections a-c of the provision on which Conagra relies.

Conagra claims that Jones testified that all the electrical equipment in the facility met the requirements for Class II, Division 2 locations.   An examination of the record reveals, however, that she really said that the electrical equipment of floors 5-7 complied.  The fan and the grain tester were not on those floors.  Jones' testimony therefore does not preclude a finding that those two machines were in violation.

D.

Conagra further argues that the Secretary has not proved a violation because Conagra did not know that this machinery was in violation.  It is well established that, in order to prove a violation, the Secretary must prove that the employer had either actual or constructive knowledge of the violative conditions.  Gary Concrete Prod., 15 BNA OSHC 1051, 1052, 1991 CCH OSHD 29,344, p. 39,449 (No. 86-1087, 1991).  This means that the employer either knew of the violative conditions or could have known of them with the exercise of reasonable diligence.  Woolston Constr., 15 BNA OSHC 1114, 1116, 1991 CCH OSHD 29,394, p. 39,567 (No. 88-1877, 1991), aff'd, No. 91-1413 (D.C. Cir. May 22, 1992); see also Getty Oil Co. v OSHRC, 530 F.2d 1143 (5th Cir. 1976).  The Secretary does not have to prove that the employer knew that the conditions constituted a violation.  Shaw Constr., 6 BNA OSHC 1341, 1342-43, 1978 CCH OSHD 22,524, p. 27,177 (No. 3324, 1978).

Because of the potentially disastrous consequences of explosion or fire, the standard permits only machinery that meets the NEC's requirements for a Class II, Division 2 location to be used in the mill.  Conagra therefore had an obligation to assure that its equipment was in compliance.  Here, the exposed wiring on both machines was readily apparent to Burke and would have been equally visible to Conagra if it had exercised due diligence to assure that the grain tester and fan were not potential sources of ignition.  Consequently, we find that Conagra had constructive knowledge of the exposed wiring because it could easily have discovered the exposed wiring if it had exercised due diligence to inspect its machinery to insure that it was in compliance.   See Automatic Sprinkler Corp., 8 BNA OSHC 1384, 1387-88, 1980 CCH OSHD 24,495, pp. 29,926-27 (No. 76-5089, 1980) (employer has duty to anticipate and make reasonable effort to inspect for hazards). Conagra's claim that it lacked knowledge is therefore rejected.

E.

Conagra asserts that the citation would never have been issued if Jones had known Conagra asserts that the citation would never have been issued if Jones had known the correct classification from the outset.  Given the fact that the record does establish the existence of a violation, this argument is irrelevant.   Furthermore, there is nothing in the record to support Conagra's claim, and we do not believe that the factual assumption on which it rests is accurate. [[3]]

F.

Conagra also asserts that only the wireways leading to the motors of the grain tester, not the motor itself, were exposed, and that there is no requirement that wireways be dust-ignition-proof. At the outset, we note that the term "wireways" is defined in 29 C.F.R. 1910.399: "Wireways are sheet-metal troughs with hinged or removable covers for housing and protecting electric wires and cable and in which conductors are laid in place after the wireway has been installed as a complete system."  It therefore appears that Conagra was referring to something else. Assuming that Conagra really meant the wiring to the motors, we reject its assertion that the wiring need not be covered and need not be dust-ignition-proof.  The wiring is an integral part of the motor and cannot be separated from it.  It would render the standard meaningless if the wiring could be exposed and did not have to meet the same requirements as the motor.  We conclude that the requirements that apply to a motor apply equally to the wiring in and to the motor.  Based on the above findings, we affirm the judge's finding of a violation for items 12(f) and 12(g).

G.

We now turn to the characterization of the violation.  The Secretary alleged that these violations were serious.  Under section 17(k) of the Act, 29 U.S.C. 666(k), a violation is serious if there is a substantial probability that death or serious physical harm could result.  This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.  Super Excavators, Inc., 15 BNA OSHC 1313, 1315, 1991 CCH OSHD, 29,498, p. 39,804 (No. 89-2253, 1091): Natkin & Co., I BNA OSHC 1204, 1205, 1971-73 CCH OSHD 15,679, pp. 20,967-68 (No. 401, 1973). Although the likelihood of a fire or explosion resulting from these violations may not be great, the consequences of a fire or explosion could well he very serious.  We therefore find that the violations cited in items 12(f) and 12(g) were serious.

ll. Item 8 of the serious citation

To prevent the accumulation of combustible dust on ledges and surfaces that cannot easily be reached to sweep them, Conagra and the grain industry generally use compressed air to blow the dust off these surfaces onto the floor, where it can be swept up. This process is called a "blowdown."  During a blowdown, the dust forms a cloud in the air.  If the dust cloud is dense enough, it can reach an explosible concentration.  For that reason, OSHA's standard for grain handling facilities is intended to prevent situations which might cause the dust to be ignited.

Item 8 alleged a serious violation of 29 C.F.R. 1910.272(i)(3 ).[[4]]  Specifically, the citation said:

29 C.F.R. 1910.272(i)(3): The use of compressed air to blow dust from ledges, walls, and other areas was permitted when all machinery that present ignition source was not shut-down, and all other known ignition sources were not removed or controlled:

a) Grain processing machinery was operated during blow-down, and spark producing metal scoops used to shovel grain off concrete floor, located throughout Milling Department.

An examination of the citation shows that it alleges two different sets of facts that would constitute a violation:  (1) the operation of machinery, and (2) the use of spark-producing metal scoops. Jones testified that she did not actually see a blowdown herself, but that the plant manager told her that the machinery was not shut off during this activity.  She was also told that metal scoops were used to pick up the dust during blowdowns.  She concluded that both situations constituted a hazard.

The plant manager testified that floors three through seven of the flour mill are blown down every day.  Conagra's corporate safety director testified that all of its flour mills conduct blowdown operations, and he estimated that the operation is performed on every shift.  Both of these witnesses testified that the Sherman mill is an exceptionally clean mill and that dust concentrations in the air are very light during blowdown there.  The safety director expressed the opinion that the dust would not reach the minimum explosible concentration.

Another Conagra employee testified that all the metal scoops used to pick up the dust are aluminum and that Conagra does not have any other kind of scoop in the mill.  Based on this testimony, the judge found that the scoops being used were aluminum, a non-ferrous metal, and would not cause sparks.  Therefore he vacated that portion of the citation.

The judge found that there was a violation, however, because the company did not deny that its grain processing equipment continued to run during blowdowns.  He held that the operation of the grain tester cited in, item 12(f) constituted a violation.

In its Petition for Discretionary Review, Conagra, asserted that the testimony of Jones clearly established that the only basis for the citation was the use of the metal scoops.  In its brief, Conagra asserts that the citation does not mention grain processing machinery and that Jones mentioned the machinery only after she realized that the metal scoops would not support a violation.  Our review of the record shows, however, that these arguments are specious. Reference to the portion of the citation quoted above clearly shows that it alleged that grain processing machinery was operated during blowdown operations.  At the hearing, Conagra's own attorney read into the record portions of Jones notes that clearly show that, before the citation was issued, she considered the failure to shut down the machinery to be a hazard.

Conagra misstates facts in the record when it asserts that Jones testified that all the machinery in the area where blowdown was conducted was in compliance with the NEC.  In fact, Jones testified that the machinery on floors 5, 6, and 7 was in compliance.  The record as a whole clearly establishes that blowdowns were conducted on every floor in the flour mill.  Because there was noncompliant equipment on the third floor (the fan) and the fourth floor (the grain tester), the record establishes that there was a violation.

Citing a 1988 letter from the Millers' National Federation to the Assistant Secretary of Labor for Occupational Safety and Health and the reply to that letter, Conagra asserts that OSHA has approved all equipment normally used in flour milling as safe for use in these locations.  Its argument is based, however, on the letter to OSHA, not on the letter from OSHA.  An examination of the reply letter clearly shows that OSHA did not give blanket approval to all flour milling machinery but stated that machinery could be operated during blowdown operations only under certain circumstances specified in the reply letter.  One of those circumstances was that electrical wiring be in compliance with the requirements set out in 29 C.F.R 1910.301-399.  Because the grain tester and the fan did violate section 1910.307(b), the conditions set out by the Assistant Secretary were not met.  Conagra therefore cannot rely or, that letter to demonstrate acceptance of its equipment.

We give no weight to Conagra's argument that is based on its assertion that Jones believed that blowdowns were not performed on the third and fourth floors.  Even if Jones' memory was not accurate at the hearing and her testimony on this issue was inconsistent, the preponderance of the evidence as a whole clearly establishes that blowdowns were performed on those two floors and that there was machinery on both floors which did not meet the requirements for a Class II. Division 2 location.   Although there is no evidence about whether the fan was shut down during blowdowns, Conagra has conceded that the grain tester operated during blowdowns. The judge found that the use of the grain tester constituted a violation, and we agree.  We therefore find that Conagra was in violation of 29 C.F.R. 1910.272(i)(3) for improperly conducting blowdown operations on the fourth floor of the flour mill without first shutting down a potential ignition source.

We note that the Secretary's brief asserts that a cove, of the grain tester was missing.  Our review of the record does not support that interpretation of the testimony. Burke testified that the wiring was not covered, that he could see bare wires through an opening in the machine.  We do not believe that he testified that there was a cover that was not in place.

This violation was alleged to be serious, and Conagra has not disputed that characterization. Having reviewed the record, we find that it was serious.

III. Item 1 of the other-than-serious citation.

The Secretary also cited Conagra for a violation of 29 C.F.R. 1910.37(i),[[5]] alleging that a window on the fourth floor and a window on the sixth floor, which provided the only means on those two floors of getting to the fire escape, did not have adequate headroom.  The windows were 40 1/2 inches wide, 21 inches high, and were located 42 inches above the floor.

On each of the other floors of the flour mill, there was a door leading to the fire escape, but the only way to get to the fire escape from the fourth and sixth floors was through the cited windows. There was a sign over the window on the sixth floor which indicated that it provided access to the fire escape, and employees had been told to use the windows as exits in the event of an emergency.

There was an elevator or "man-lift" in the middle of the building, and there was a stairwell located near the elevator. Jones testified that they were very close together and that an employee might not be able to get to the area where they were located in an emergency.  Therefore, she testified, it was necessary to have an emergency exit as well.

The judge found that Conagra intended that the windows be used to get to the fire escape if there was an emergency and found that they did not meet the requirements of the standard.  He therefore found a violation.  We conclude that he was correct.

Conagra asserts that it was cited because Jones believed that the windows provided the only means of egress from the two floors in question.  Jones testified, however, that she meant an emergency exit when she used the term "means of egress," and the judge properly rejected Conagra's argument.  For Conagra's assertion that Jones believed the windows and fire escapes provided the only access to the fourth and sixth floors to be correct, Jones would have had to travel from floor to floor by the fire escape when she was conducting her inspection.  The record makes it clear that this was not the case, because Conagra's plant manager, who participated in the inspection, testified that the windows had never actually been used to get to the fire escape. It is obvious that Jones used either the stairway or the elevator, or both, during her inspection, so she had to have known that the windows were not the only way to get to and from the fourth and sixth floors.  The record is clear that she was well aware of the stairway and the elevator.

Even if Jones was confused, as Conagra suggests, it would be irrelevant as a defense here. Taken as a whole, [[6]] the record establishes that Conagra intended the windows to be used for access to the fire escapes in an emergency; and Conagra admits that to have been the case.  The record further shows that the dimensions of the windows did not meet the requirements of section 1910.37(i).   Having considered the entire record, we find that a violation has been established.   We therefore find that Conagra's assertions on this item are without merit.

Conagra also attempts to challenge Jones' credibility because she testified that the plant manager told her the windows were the only means of egress, while he testified that he never told her that. Jones testified that she used the term "means of egress" to mean an exit for use in an emergency. The plant manager testified that the windows provided the only access to the fire escape from the two floors in question, and that he told Jones exactly that.  The witnesses were therefore saying the same thing in different words, and Conagra's credibility question is really a matter of semantics. Consequently, we give no weight to this argument.

IV. Penalties.

Section 17(j) of the Act provides that the Commission shall assess an appropriate penalty for each violation, giving due consideration to the size of the employer, the gravity of the violation, the good faith of the employer, and the employer's history of previous violations, 29 U.S.C. 666(j).  The Secretary proposed a penalty of $480 for Item 8 and for item 12.  The judge considered the statutory factors and assessed a penalty of $480 for item 8.  Because he vacated the citation as to thirteen of the fifteen locations cited in item 12, the judge pro-rated the penalty and assessed $32 each for items 12(f) and 12(g).  No penalty was proposed or assessed for the other-than-serious item.  Neither party has addressed on review the appropriateness of the penalties.

Conagra is a very large company which has received several previous citations, although none of the items on review was alleged to be a repeated violation.  The fact that Conagra discarded the electric fan immediately indicates good faith.  Although the consequences of an accident would likely be serious, based on this record we consider the likelihood of an accident to be remote.[[7]] We therefore find that these violations were of low gravity.

Having considered the four factors to be considered in assessing a penalty set out in section 17(j) and the parties' lack of argument on this question, we find no reason to amend the judge's assessment.  We consider those penalties to be appropriate.

V. Conclusion.

For the reasons above, we affirm the judge's decision finding serious violations of 29 C.F.R. 1910.3017(b) and 1910.272(i)(3) and an other-than-serious violation of 29 C.F.R. 1910.37(i). A total penalty of $544 assessed for these violations.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: August 18, 1992


SECRETARY OF LABOR,

Complainant,

v.

CONAGRA FLOUR MILLING COMPANY,

Respondent.

Docket No. 88-2572

DECISION AND ORDER

BOTKIN, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act") .

Respondent is an agribusiness corporation with over 2000 facilities, including some 300 grain processing facilities. One of these is a flour mill in Sherman, Texas, with 88 employees.  (Tr. 20; 121; 325-26; 373; 375-76) .  The Occupational Safety and Health Administration ("OSHA") conducted an inspection of the facility on August 18 and 19, 1988. (Tr. 45). As a result, one serious and one "other" citation, both alleging a number of violations, were issued.

Respondent timely contested all items of both citations.  At the hearing, the parties resolved a number of items of both citations.   [[1]] The remaining contested items of citation number (items 1, 2(a), 3, 7, 8, 9, 10, 12, 13(a)(b) and 13 (b)(b)), allege, respectively, serious violations of 29 C.F.R. 1910.23(c) (1) 1910.23(e)(1), 1910.133(a)(1), 1910.272 (i) (1), 1910 272 (i)(3), 1910.272 (L)(1)(i), 1910.272(L)(3), 1910.307(b), 1910.1200(f)(5)(i) and 1910.1200(f)(5)(ii). [[2]] The remaining contested items of citation number 2 (items 1, 2, 5 and 6 (b)) allege, respectively, "other" violations of 29 C.F.R. 1910.37(i) , 1910.37(q)(1), 1910.244(a)(1)(ii) and 1910.1200(g)(1).  The contested items are discussed below, in the order in which they appear in the citations.

The hearing regarding this matter took place in Dallas, Texas.  The Commission's jurisdiction was not in issue and no additional persons intervened.  Both parties submitted post trial briefs.

29 C.F.R. 1910.23(c)(1)[[3]]

Gloria Jones testified.  She has been an OSHA compliance officer ("CO") since 1985, and has conducted approximately 300 inspections.  She conducted the subject inspection.

She was accompanied by Clarence Rome, the plant manager, Red Doty, the plant maintenance supervisor, and William Burke, another CO. During the inspection, Jones saw an unguarded concrete deck connected to the exterior of the second floor of the seven-story milling building. She observed repair work being performed on the deck.  The deck was 14'9" above the ground and 125' long. Rome told Jones that employees used it to load feed onto rail cars.  There were no cars when she was there, but Rome described the process to her.  Employees walk across the deck and a walkway that bridges the distance between the deck and the rail car.  Jones said the deck was hazardous because employees could fall off and sustain serious injury.  She stated Exhibits R-2 and R-3 were not what she saw because they showed the deck with guard rails. (Tr. 19-23; 25-26; 49-59; 105-06).

William Burke also testified.  He is a CO with eight years of OSHA experience.  He was assigned to assist Jones because of his experience. [[4]]  He and Jones asked what the unguarded deck was used for.   Rome told them it was used to load product into rail cars and described the operation.  Burke saw the walkway employees used to get to the cars; it did not have a guard rail. He described it as a metal loading dock plate about 4' wide and 5' long, which had to be lowered or swung into place on the rail car. (Tr. 118-21; 125-130; 168-69; 187-89).

Burke did not know the distance between the deck and the rail cars.  He said if it was 6-12", an employee could be injured by stepping or falling into the gap.  He also said a fall hazard would exist anytime an employee went out on the deck and there was no rail car there.  (Tr. 127-28; 188-90).

Burke said Exhibits R-2 and R-3 appeared to be photographs of the cited area.[[5]]  He marked R-2 with an "X" to show the deck.  He said it was not a roof because it was a walking and working surface, and because it had a shed roof over it.  He did not know the purpose of the shed roof, but said it could be to keep weather out of the cars. (Tr. 183-87).

Clarence Rome, the plant manager, testified. He referred to the deck shown as "X" in R-2 as both a roof and a dock.  He described the loading process.  Rail cars are parked under the roof or canopy between the elevator and mill to keep them out of the weather.  There are usually two cars, but can be up to four; they are 50' long.  A pneumatic line goes from the plant to the canopy, where it "spouts off" into three lines above the cars.  The cars are parked so that each one's hatch is centered under a line.  To access the line, an employee crosses the deck carrying a rubber hose about 10' long and 5" in diameter.  He lowers the dock plate and crosses it to get to the top of the car.   He hooks up the hose to the line and drops it into the hatch.  He then retraces his steps and goes downstairs to turn on a blower which blows feed into the car.   He checks the site every two hours.  Two or three cars are loaded each week, but only one car is loaded at a time.  After one is loaded, the employee walks from it to the next car.  The dock below the deck is also used for loading feed into cars. (Tr. 296-05; 341-44; 357).

Rome said the dock plate is hinged to the side of the deck, but further down than where the "X" on R-2 appears.  It has chains on its front so employees can drop it over to the car and pull it up.  They walk to the edge of the deck to pull it up.  Rome said employees do not go out onto the deck unless a rail car is there, and that they only use it to cross over to the cars.   He said the distance between the cars and the deck is about 12".  In the 14 years he has been at the facility, no one has ever fallen from the deck. (Tr. 331-05; 340-41).

Respondent does not dispute the cited deck was not guarded.  It contends, rather, it is a roof and that the standard does not it asserts it is "apparent" from photographs and witness descriptions that the deck is a roof, and that its purpose is to provide protection from the elements.  I disagree.

Respondent claims Rome's testimony shows the cited deck protects the rail cars from weather. (Tr. 299). However, it is not clear Rome was referring to the cited deck. (Tr. 300).  Even if he was, his later testimony, that the parked rail cars are about 12" from the deck, demonstrates it is physically impossible for the deck to cover cars. R-2 and R-3 also demonstrate the deck does not extend far enough out to cover the cars.  Moreover, the testimony of Rome and Burke establishes that the canopy or shed roof which covers the loading area, shown in R-2 and R-3, is what actually protects the cars from weather.

Rome said loading occurs on the dock below the deck, and that product and employees on that dock are protected.  (Tr. 299-301).   Again, it is not clear he meant the deck provided protection, and his other testimony suggests he meant the canopy.  However, even if the deck sometimes serves to protect product and employees on the - dock below, this does not establish this is its primary purpose, particularly since the record does not reveal the frequency of loading on that dock. Respondent claims Rome said loading takes place on the dock below "every day."  Rome actually said loading "used to" take place there every day, and Respondent did not allow him to state the current practice. (Tr. 300).   Consequently, there is no basis for Respondent's assertion that "most of the loading" occurs on the dock below, and that loading from the cited deck occurs "very limited occasions."  To the contrary, the record shows loading from the deck is a regular and recurring event.

As set out above, the standard requires guarding on open-sided floors, platforms or runways four feet or more above ground level.  The deck at issue is 14' 9" high. Further, 1910.21(a)(4) defines "platform" as follows:

A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

The Commission has held a deck to be a platform within the meaning of 1910.21(a)(4) where employees are regularly assigned to work on it to perform duties central to the employer's operations.

Clements Food Co., 84 OSAHRC 26/A2, 11 BNA OSHC 2120, 2126, 1984 CCH OSHD P 26,972 (No. 80-0607, 1984).  This judge concludes the deck is a platform within the meaning of 1910-21(a) (4) and that the standard applies.

Having found the standard applies, it must now be determined whether Respondent's employees had access to the hazard posed by the violative condition.  Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 2050, 1978 CCH OSHD 23,135 (No. 16057, 1978); Giles & Cotting, Inc., 76 OSAHRC 30/D4, 3 BNA OSHC 2002, 1976 CCH OSHD 20,448 (No. 504, 1976).

Both CO's described the hazard as falling from the deck. Clearly, a fall from a 14' 9", deck could cause serious injury or death.   Access to this hazard is established by Jones' testimony that she saw repair work being done on the deck when no cars were there.  Even when cars are present, the distance between them and the deck is about 12", and Burke said employees could be injured by stepping or falling into the gap.  Access to this hazard is established by Rome's testimony. Employees walk across the deck several times a week pursuant to their loading duties, at times carrying a bulky rubber hose.  To access the cars, they lower a metal dock plate from the deck; when raising the plate, they stand at the edge of the deck.  Even though Rome said no one had ever fallen from the deck, it is not unreasonable to conclude an employee working under these conditions could step or fall in the manner Burke described and sustain a serious injury.  Access to the hazard has been shown.  The citation is affirmed, and the Secretary's proposed penalty of $420.00 is assessed.[[6]]

29 C.F.R. 1910.23(e)(1)[[7]]

Gloria Jones testified she observed a metal landing on the exterior of the sixth floor of the milling building.  The landing led to a metal ladder or stairway going up and down.  Clarence Rome told her the landing was a fire escape for employees on the sixth floor.  Jones identified Exhibit R-4 as a photograph of the landing. [[3]]  She said the standard was violated because the only guard rail on the landing was 30" high.  She believed the landing needed to be well guarded since it was a fire escape.  She said the landing was cited as a platform, but was not a working space. (Tr. 22-25; 59-62).

Clarence Rome testified that R-4 was a platform that serves as a fire escape on the sixth floor of the milling building.  He was with Jones when she saw it . He said no one works on it, and that in the 14 years he has been at the facility, he has never seen anyone on it. (Tr. 305-309).

The citation alleges a violation as follows:

Exterior fire escape platform had top rail 30" high with no intermediate rail, located at the 6th floor of Milling Department.

The record establishes the guard rail on the landing does not meet the requirements of the standard. However, the landing was cited as a platform.  The definition of "platform," set out at 1910.21 (a) (4), provides as follows:

A working space for persons, elevated above surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

As Respondent notes, the Court in General Elec. Co. v. OSAHRC, 583 F.2d 61, 65 (2d Cir. 1978), held that a reasonable interpretation of "platform," within the meaning of 1910.21(a)(4) and 1910.23 (c)(1), was an elevated working space where employees worked on a regular basis. The Commission has adopted this interpretation.  Globe Indus., Inc., 82 OSAHRC 22/D4, 10 BNA OSHC 1596, 1598, 1982 CCH OSHD 26,048 (No. 77- 4313, 1982).  The record clearly snows the landing is not a platform within the meaning of 1910.21(a)(4).  The citation is vacated.[[9]]

29 C.F.R. 1910.133(a)(1) [[10]]

Gloria Jones testified she saw one of Respondent's employees, Carl Boling, assisting another employee who was welding metal parts.   Boling was holding the item being welded and was facing the operation, which produced sparks and rays.  The welder wore face protection, but Boling did not. Jones asked Boling why he wasn't using a face shield,and he replied he didn't have one.   Jones said this was hazardous because of the likelihood that welding rays or flying metal chips could cause serious eye injury.  She stated it is not possible to look directly at a welding arc without an eye injury occurring.  She did not know if Boling had had an injury.  (Tr. 26-28; 62-67).

Jerry Lee Curtis also testified.  He is a welder at the facility.  He was welding on the day of the inspection, and Boling stood next to him and assisted.  Boling was not wearing protection, but had his head turned away.  When Boling assists, he is only there for a second or two and always turns his head away.  Curtis uses a full face hood when he welds, and cannot see a person standing next to him.  He said it is not possible to look directly at a welding arc without suffering an eye injury.  As far as he knew, Boling had not had an injury. (Tr. 227-31).

Respondent does not dispute Boling was not wearing the protective equipment the standard requires.  It contends, rather, there was no reasonable probability of injury because Boling was turned away from the welding operation.  I do not agree.

Since Curtis admitted his welding hood prevents him from seeing someone next to him, his testimony does not establish Boling looked away.   Further, his statement that Boling had not had an injury is inconclusive.   Boling did not testify and he could have had an injury of which Curtis was not aware.  Jones, on the other hand, said Boling was facing the operation.

However, even if Boling's practice was to look away, and even if he did so on this occasion, this judge nevertheless finds the practice presents a reasonable probability of injury.  It is not difficult to conceive of situations in which even the most attentive employee could be distracted.  If Boling were to inadvertently look at the operation, the record demonstrates he would most probably sustain an injury.  It also demonstrates any such injury would likely be serious.

The Commission has addressed a similar situation, in Daniel Constr. Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH OSHD 26,027 (No. 16265, 1982).  In that case, an assistant helped with a welding operation.   He was one foot from the operation and was instructed to look away.  He wore safety glasses, but they provided inadequate protection.  In affirming the violation, the Commission held that "[t]here is no question here that the light radiation from the welding operation presented a potential for eye injury within the meaning of section 1926.102 (a) (1) "[[11]]. Id. at 1553.   Employers can easily prevent this kind of injury by providing and requiring the use of protective equipment. Respondent did neither. [[12]]  The citation is affirmed, and the proposed penalty of $280.00 assessed.

29 C.F.R. 1910.272(i) (1)[[13]]

Gloria Jones testified she asked Clarence Rome if there was a housekeeping program.  He showed her Exhibit R-6, an elevator inspection and maintenance program, but no housekeeping program.  She did not recall seeing R-5 or R-7. She said not having a program was hazardous because milling facilities operate machinery and produce dust, which can be an ignition source.  If the dust is not cleaned up regularly, it can cause a fire or explosion and serious injuries or death. Jones said both the mill and silos should have a written program.  Although this was her first grain facility inspection, she considered the mill clean. (Tr. 28-32; 48-49; 68-71; 73; 75; 112-13).

William Burke testified.  He described the facility as a seven-story flour mill and a grain elevator, or storage silos.  He said it looked clean.  He said the purpose of housekeeping is to prevent the accumulation of dust in quantities that could create a fire or explosion hazard (Tr. 121-22; 130; 209).

Clarence Rome identified R-7 as the Sherman mill's sanitation program, and R-5 and R-6 as the elevator sanitation program.  He believed he gave Jones R-5 and R-6. He did not give her R-7 since he was not sure what she was asking for.  He said he had it in his office at the time, and that its purpose is to ensure product quality. (Tr. 309-12; 344-45).

Wayne Bellinger testified.  He has been ConAgra's corporate safety director for 15 years. He provides safety and accident prevention assistance and training to ConAgra facilities; his training references OSHA standards and the National Electric Code.  He is a frequent lecturer on milling and elevator safety, and he served for over ten years on the steering committee of the Grain Industry Safety and Health Center, which was funded by an OSHA grant.  He has a diploma in chemistry from the University of the State of New York.[[14]] (Tr. 372-78; 438).

Bellinger participated in forming the mill's housekeeping program and has evaluated it on his some 24 visits to the facility.  He said the elevator and mill are the two areas that needed a program.  His opinion was that R-5 and R-7 met the standard requirements.  He disagreed that R-7 is for quality control. (Tr. 375; 380-82; 440).

The subject standard is a subpart of the grain handling facilities standard, and applies to grain elevators and flour mills.  See 1910.272(b).  The Sherman facility was therefore required to have a written housekeeping program for its elevator and mill.  Respondent asserts the standard does no apply. Bellinger's testimony, that the elevator and mill needed a housekeeping program, would seem to contradict this assertion.  However, since I conclude Respondent has complied with the standard, this argument need not be addressed.

The record demonstrates Jones recommended the citation because when she asked for a housekeeping program, all she received was R-6. [[15]] It is understandable Jones believed there was a violation on the basis of what she received.  However, it is found R- 5 and R-7 were at the worksite at the time of the inspection, [[16]] and that Rome did not give them to Jones because he did not understand her request. [[17]]  It is also found R- 5 and R-7 constitute housekeeping programs for the elevator and mill, respectively within the meaning of the standard.  My reasons follow.

The standard itself does not provide methods of compliance.  However, the Appendix which follows it offers nonmandatory guidelines to help employers comply with the standard.  It mentions, inter alia, machine cleaning, vacuuming, sweeping, blowing down and washing down as methods to reduce dust accumulations.  A reading of R-5 and R-7 demonstrates Respondent has incorporated these methods, as well as others, into its housekeeping programs.  The citation is vacated. [[18]]

29 C.F.R. 1910.272(i)(3) [[19]]

Gloria Jones testified Clarence Rome told her compressed air was used to blow dust from ledges, walls and other areas of the milling department at the same time grain processing machinery was operating and metal scoops were being used to shovel flour and grain from the concrete floor.  She did not see the blowdown operation, but said it was hazardous because the machinery and scoops could produce sparks which could cause a fire or explosion during blowdown.  (Tr. 33-35; 88-92; 110; 113).

William Burke testified blowdown should not occur without proper housekeeping and maintenance, since it can create airborne dust particles and cause an explosion.  He did not see the operation. He recalled seeing an employee in the elevator using what looked like a regular shovel.  He and Jones asked Rome and the employee if nonferrous scoops were used, and neither knew.  He said metal scoops can produce sparks. (Tr. 131-33; 192).

Clarence Rome testified.  He described blowdown as a cleaning process which occurs daily on the third through seventh floors of the milling building, in which nine employees work.  They use hoses to blow down dust from above.  During blowdown, about a ten-foot circle of dust gets into the air and then settles to the ground, where it is swept up.  Rome said he can clearly see from one end to the other of a 75-foot room where a blowdown is taking place.  He said the shovels used in the facility are OSHA-approved, and are aluminum, not ferrous.  He determined this by putting one of the shovels on a grinder; when he did, it did not spark. (Tr. 313- 315; 326-27; 345-46).

C. R. Blankenship testified. He is a bolter at the mill.  He said the facility uses only aluminum scoops, and that they are used to clean up spills.  He was present when one was put on a grindstone in 1964; it did not make any sparks. (Tr. 223-26).

Wayne Bellinger testified. He has seen hundreds of blowdowns at ConAgra facilities and has seen them at the Sherman mill.  All ConAgra flour mills blow down every day.  The purpose of blowdown, is to bring down dust from overhead places not easily reached; there is never much.  Blowdown results in a light dust film in the air, with a three-foot denser region.  The denser region would be less at the Sherman facility because it is exceptionally clean.  (Tr. 382-84).

Bellinger said the dust resulting from blowdown is not sufficient to cause a fire or explosion.  USDA tests show that for this to occur, there has to be a minimum of 50 to 55 grams per cubic meter of dust in the air.   Bellinger described this as a very dense atmosphere, such that an operator cannot see his hand held out at one meter.  (Tr. 384-85; 415).

Bellinger identified Exhibit R-17 as a 1988 letter from John A. Pendergrass, former Assistant Secretary for OSHA, which gives OSHA's interpretation of various subparts of the grain handling facilities standard.  He said the Sherman facility met the 1910.272(i)(3) requirements set out in R-17. (Tr. 389-92).

The subject citation alleges a violation as follows:

Grain processing machinery was operated during blow-down, and spark producing metal scoops used to shovel grain off concrete floor, located throughout Milling Department.

The testimony of Jones demonstrates the citation was issued because of both the operation of grain processing machinery and the use of metal scoops during blowdown.  The record shows the use of scoops was not hazardous, as the facility uses only aluminum scoops and shovels that do not produce sparks.   However, the record also shows, and Respondent does not deny, that grain processing machinery was operated during blowdown.  Accordingly, this hazard will be addressed.

The subject standard is a subpart of the grain handling, facilities standard, and it applies to the Sherman facility.  Its purpose is to prevent conditions which could cause fires or explosions.  See 1910.272(a) and (b).  The standard's background makes it clear that blowdown is permissible only after the implementation of certain precautions.  See 52 F.R. 49613. R-17 states OSHA's interpretation of 1910.272(i)(3) as follows:

It is OSHA's position that all equipment and machinery, including equipment used in milling flour, can be a potential ignition source in grain handling facilities.  The Agency's intent is to assure that such potential ignition sources are controlled during "blow-down" operations.  If an effective preventive maintenance program is implemented; and, electrical wiring, motors, and machinery are in compliance with 29 CFR 1910, Subpart S and other appropriate provisions, OSHA would consider these to be adequate controls.  Under these circumstances, "blow-down" operations would be permitted when equipment and machinery are in operation.

After careful consideration of the standard and its background, I conclude R-17 is a reasonable interpretation of 1910-272(i)(3).  As noted above, the alleged violation is the operation of grain processing machinery during blowdown.  Thus, if Respondent can demonstrate the mill had an effective preventive maintenance program for its grain processing machinery, and that all. of that equipment complied with the electrical provisions of 29 C.F.R. 1910 Subpart S and other appropriate provisions, then it was not in violation of the standard.

BeIIinger's opinion was that the mill complied with R-17.  The 1910.272(L)(1)(i) discussion, infra, shows the mill did, in fact, have an effective preventive maintenance program for its equipment. However, the 1910.307(b) discussion, infra, establishes that two items of electrical equipment were not in compliance with the provisions of 29 C.F.R. 1910 Subpart S.  The item of equipment relevant to this discussion was a 115-volt grain tester on the fourth floor, which was found to not meet the requirements of 1910.307 (b).[[20]]

Respondent contends Jones testified that all of the electrical equipment in the areas where blowdown took place met the National Electric code requirements for Class I, Division 2 locations, and that her testimony is an admission the mill was in compliance with R-17.  I disagree. The record reveals Jones' actual testimony was only in regard to the grain processing equipment on the mill's fifth, sixth and seventh floors.  (Tr. 94).

Respondent further contends there was no violation because the record does not establish that dust concentrations during blowdown were dense enough to cause a fire or explosion.  It points to Bellinger's opinion and to decisions which support his opinion.  Although the cases on which Respondent relies are final orders of the Commission, they are not Commission decisions and have no precedential value.  Moreover, they predate the subject standard, which, as noted above, prohibits blowdown unless certain safeguards are implemented. R-17, which Respondent itself offered, has been found to be a reasonable interpretation of the standard.  Since Respondent was not in compliance with R-17, a violation is established.

The Secretary proposed a penalty of $420.00 for this citation item.  As noted above, only one piece of equipment has been found in violation of the standard.  However, due to the nature of the violation the proposed penalty of $420.00 is assessed.

29 C.F.P. 1910.272(L)(1)(i)[[21]]

Gloria Jones testified she asked for a preventive maintenance program at the beginning of her two-day inspection.  Clarence Rome and Red Doty gave her Exhibits C-1 and R-9, but not until about 30 minutes after the inspection was completed. Jones said C-1, a preventive maintenance schedule, and R-9, a repair list, were not sufficient. They did not identify the machinery or its location, show what was done or have any inspection history or set procedures. She said this was hazardous because employees were exposed to grain processing and dust collection equipment in the facility. If not maintained, bearings, blowers and belt drives can create sparks, which can cause a fire or explosion in a milling facility because of the dust produced.   Jones had no knowledge any equipment was not maintained, and saw nothing wrong with any of it. (Tr. 35-42; 94-102; 111-13).

William Burke testified that when he and Jones asked for a preventive maintenance, it could not be produced.  After the inspection, Doty left and returned a half hour later with C-1,which was handwritten and not on ConAgra letterhead.  Burke said C-1 and R-9 were insufficient, but that C-1 would have met the standard if it had identified equipment more specifically and shown what was done. (Tr. 133-36; 197-208).

Clarence Rome testified that most maintenance is done in the milling department, since that is where most equipment is located.  He has daily and weekly meetings with his six supervisors to discuss and schedule equipment repair and replacement.  The supervisor, Doty, inspects mill equipment every day; problems are readily visible.  Doty and the head miller make a cumulative list of items to take care of when the mill is shut down, which occurs every three weeks or when there is a problem.  The purpose of shutdown is for the six facility mechanics to check and replace equipment, like bearings and motors.  During shutdown, all nine milling employees, and the maintenance department, perform maintenance work. ( 315-24).

Rome identified R-9 as a shutdown work schedule for the milling crew, which the head miller formulates and posts in his office so the crew will know what to do during shutdown.  He identified C-1 as a routine preventive maintenance schedule.  He said all items on the list are done on a regular weekly basis, and that if it were not done, "we could run into a lot of problems."   He had seen C-1 before, in Doty's office, but did not know how long it had been there.  (Tr. 322-23; 358-59).

The subject citation states as follows:

The employer did not implement preventive maintenance procedures consisting of regularly scheduled inspections of mechanical and safety control equipment, lubrications, and other appropriate maintenance in accordance with manufacturers' recommendations.

As Respondent points out, the language appearing in the last two lines of the citation is actually part of 1910.272(L)(1)(ii), rather than 1910.272(L)91)(i), the subject standard.  The citation apparently combines the language of subparts (i) and (ii), but only alleges a violation of (i). However, this does not require vacation of the citation, as Respondent urges.

While vacation may be proper where an employer receives insufficient notice of the alleged violation, Respondent was clearly on notice it was cited because OSHA believed its preventive maintenance program was inadequate.   Moreover, the fact the citation contains language from subpart (ii) does not prejudice Respondent.  The record does not show a violation of subpart (ii), the issue was not litigated, and it does not form a basis for this decision.

The subject standard applies and required the Sherman facility to have a preventive maintenance program for its elevator and mill. See 1910.272(b) .  The record shows the mill has a program which provides preventive maintenance for all of its equipment.  Rome did not say when the procedures he described went into effect, but indicated there would be problems if maintenance were not done regularly.  This suggests preventive maintenance is a necessary part of mill operations and that the procedures were in effect at the time of the inspection.   Moreover, C-1 and R-9 were produced at the time of the inspection. [[22]]

The Secretary contends C-1 and R-9 do not demonstrate a preventive maintenance program within the meaning of the standard.  In effect, she asserts the standard requires programs to be in writing. It this were OSHA's intent, it would presumably have expressly provided for written programs. [[23]]   Since the cited standard has no such provision, I can only conclude it does not require that programs be in writing.  If Respondent had not demonstrated an effective program, a violation would be found.  However, it is found that Respondent has shown the mill's program complied with the standard.[[24]]

The Secretary does not assert Respondent did not have a program for its elevator, and presented no testimony on the issue.   Regardless, I will address this matter briefly.  Exhibit R-6 is ConAgra's elevator inspection form. [[25]]  It indicates weekly inspections are made to ensure safety, maintenance, lubrication and housekeeping requirements are met, and ows an inspection was made the week of August 8, 1988.  I find R-6 complies with the standard.  The citation is vacated.

29 C.F.R. 1910.272(L)(3) [[26]]

Gloria Jones testified Respondent had no equipment inspection certification records. C-1 and R-9 were insufficient because they did not show inspection dates, who performed the inspections and serial numbers of other identifiers of processing and dust collecting equipment and bucket elevators.  Jones said failure to inspect and certify was hazardous because equipment could malfunction, produce sparks and create a fire or explosion, resulting in serious injuries or death to employees working around it.  She said serious injury was probable because of the dust produced by the facility. (Tr. 39-43; 112-13).

William Burke testified that certification enables both OSHA and the employer to determine if maintenance has taken place, which averts equipment malfunction.  He said the requirements are preventive in nature. (Tr. 136-37).

Wayne Bellinger testified.  He said certification is required only for equipment specifically listed in 1910.272(L) (1) (i), and that equipment not listed is exempt.  His opinion was that the Sherman facility met the certification requirements, which he discussed. (Tr. 394-95; 445).

Bellinger said the dryer requirement does not apply, since the facility has no dryers.  He discussed Exhibit R-17, which gives OSHA's interpretation of various subparts of the grain handling facilities standard.[[27]]   Based on R-17, Bellinger said the only grain stream processing equipment at the facility are the hammer mills, which have no mechanical or safety control equipment. They start up and shut down with the mill, and he can tell if they are operating correctly by standing next to them. They are inspected during routine mill inspections, but have no separate inspection requirement. Bellinger stated the dust collection equipment requirement does not apply, since, according to R-17, that equipment does not refer to pneumatic systems used for transporting product in mills. He said the bucket elevator requirement does apply, since the facility's elevator has them; R-6 shows what is inspected.  (Tr. 389; 395-97).

The subject standard applies to grain elevators and flour mills and therefore applies to Respondent's facility.  See 1910.272(b).   After a careful reading of the standard, I conclude it requires a certification record only for the equipment set out at 1910.272(L)(1)(i), as follows:

[T]he mechanical and safety control equipment associated with dryers, grain stream processing equipment, dust collection equipment including filter collectors, and bucket elevators.

There is no evidence the certification requirement in regard to dryers applies in this case. However, I find the evidence shows that certification records for the other equipment listed in (L) (1) (i) were required, and that Respondent did not comply with the standard. My reasons follow.

The record shows the hammer mills at the Sherman facility are grain stream processing equipment within the meaning of the standard.   Bellinger said they operate, but have no mechanical or safety control equipment.   I am unable to conceive of how the hammer mills could operate without mechanical equipment.  That they have such equipment is demonstrated by the fact they are inspected along with other milling equipment.  I conclude the hammer mills required a certification record. Since there is no evidence of such a record, a violation is established.

Bellinger indicated the dust collection equipment certification requirement did not apply.  I disagree, R-17 shows the standard refers to filter collectors of pneumatic dust collection systems. (Exh. R-17, pg. 2).   Bellinger did not state the facility did not have such equipment, and R-7, the mill sanitation program, demonstrates it did.  [[29]] R-7 addresses the checking and internal cleaning of dust collecting systems, filter collectors and pneumatic collectors. (Exh. R-7, V-A pg. 4-5). I conclude this equipment required a certification record.   There is no evidence of such a record, and a violation is found.

Bellinger stated the facility's elevators as bucket elevators, and indicated R-6, an elevator inspection form, met the certification requirement. [[29] ] I do not agree.  R-6 does not show the serial number or other identifier of the equipment inspected,as the standard requires.  A reading of R-6 does not even establish the presence of bucket elevators.  As CO Burke indicated, the purpose of certification is to enable OSHA and the employer to determine if specific equipment has had preventive maintenance.  This R-6 does not do.

Although the foregoing demonstrates the subject standard was violated, the 1910.272 (L)(1)(i) discussion, supra, shows Respondent did perform inspections and preventive maintenance as required.  The problem lies in Respondent's failure to keep adequate records, rather than in a failure to inspect and maintain equipment.  The importance of record keeping has already been noted.   Nonetheless, since a record keeping violation, in and of itself, cannot cause serious injury or death, the citation will be affirmed as nonserious. [[30]]  The penalty originally proposed was $420.00. Since the violation is nonserious, a $210.00 penalty is appropriate.

20 C.F.R. 1910.307(b) [[31]]

Gloria Jones testified that when she wrote out her OSHA inspection report, Exhibit R-1, she classified the Sherman facility as Class II, Division 1 ("Division 1").  After consulting with William Burke, she and he decided it should be Class II, Division 2 ("Division 2").  ConAgra was not advised. (Tr. 44-46; 77-78)

William Burke testified that although he was assigned to because of his experience, it was her inspection and he did not take any notes or make any citation recommendations.  Jones prepared R-1 and drafted the citation language.  When he learned she was classifying the facility as Division 1, he told her it should be Division 2.  He reviewed R-1 before the hearing and noticed it showed Division 1. (Tr. 168-80).

Burke determined the entire facility was Division 2 based on an OSHA directive which provides that grain handling facilities will be so classified unless test sampling is done to show otherwise.  No samples were taken of the facility.  OSHA uses the National Electric Code("NEC") definitions to classify operations.

A Division 1 area is one where combustible dust is normally present.  A Division 2 area does not normally have combustible dust unless something goes wrong, when it could go to Division 1. Burke a Division 2 classification was consistent with the Sherman facility. (Tr. 137-39; 155; 176-77).

Burke testified about what he and Jones observed in the milling building which led to the citation items. Item (a) was an uncovered junction box with conductors.  Item (b) was a three-phase 480-volt switch box with a 220-volt switching system that was not dust-tight.  These items were on the second floor.  Items (c), (i), (k), (m) and (n) were uncovered duplex receptacle outlets. Item (c) was on the second floor, (i) was on the fifth, (k) was on the sixth, and (m) and (n) were on the seventh floor.  Items (d), (e), (h), (j), (l) and (o) were uncovered 220-volt welding receptacles on the second through seventh floors.  (Tr. 137-53; 156-61).

Item (f) was a 115-volt grain tester on the fourth floor.  Its wires were uncovered, which exposed the motor to dust, and the motor did not indicate it was explosion-proof or suitable for a particular location.  Burke said it was plugged in and energized, and that an employee was using it. Item (g) was a pedestal fan with no markings to indicate it was suitable for a specific environment.   Burke saw its motor windings, which indicated the motor was exposed to dust.   He said dust accumulations in the motors could cause a fire and serious burn injuries.  He saw a fan plugged into a receptacle, and said he and Jones observed employees on the third through seventh floors. (Tr. 154-56; 164-67; 213).

Wayne Bellinger testified.  He identified Exhibits R-19 and R-18 as Articles 500 and 502 of the NEC.  He said they applied to the Sherman facility because they prescribe rules for electric equipment installation in classified locations.  (Tr.407).

Bellinger said the mill has no Division 1 areas.   He was familiar with the cited areas and gave his opinion about their location classifications.  He said item (a) was in an unclassified area,and that (f) and (g) were in division 2 areas; (g) was on the third floor.  He said he would almost characterize the location of (b) as unclassified, and that if it was Division 2, it was weak.  He stated the welding and duplex receptacles were all in the same location by the stairway in the center of the mill.  He considered these locations unclassified, and said if they were Division 2, it was weak.  (Tr. 413-419).

It is the Secretary's burden to demonstrate that the cited equipment was in a location that required compliance with the NEC. [[32]].  Since she presented no such evidence in regard to item (a),and Bellinger unequivocally testified it was in an unclassified area, item (a), did not violate the subject standard.

A different result is reached in regard to items (f) and (g).  Bellinger admitted both of those items were in Division 2 areas.  The NEC requires motors in Division 2 areas to be enclosed or dust ignition-proof. See Exh. R-18, 502-8(b).  The record shows items (f) and (g) did not meet this requirement.

Respondent contends there were no violations because it complied with 1910.307(d), which provides, in pertinent part:

Equipment in Division 2 locations.   General-purpose equipment in general-purpose enclosures may be installed in Division 2 locations if the equipment does not constitute a source of ignition under normal operating conditions.

As Respondent asserts, both Burke and Bellinger testified the cited equipment was general purpose equipment.  (Tr. 215; 411). However, as I read 910.307(d), Respondent has the burden of demonstrating the equipment did not constitute a source of ignition under normal operating conditions.  It is found Respondent has not met its burden, for the following reasons.

Burke testified the accumulation of dust in the exposed motors could cause a fire. It is clear the blowdown procedure described in the 1910.272(i) (3) discussion, supra, creates airborne dust. Blowdown occurs daily on the third through seventh floors of the hill.  It is not unreasonable to conclude that over a period of time, this could create dust accumulations in the motors in sufficient quantities to cause a fire.  Respondent has not shown the condition would not cause the motors to be an ignition source; therefore, it has not met its burden under 1910.307(d). The record demonstrates the hazards of the equipment and employee exposure. [[33]]  A violation is established for items (f) and (g). [[34]]

In regard to the remaining items, the citation charges as follows:

29 CFR 1910.237 (b): Equipment, wiring methods, and installations of equipment in hazardous (classified) locations were not intrinsically safe, or approved for the hazardous (classified) location, or safe for the hazardous (classified) location.

The citation also alleges that each item of equipment was "not approved for hazardous location." The language in the complaint is identical to that in the citation, and neither gives a location classification.  However, it is clear the Secretary's intent at the hearing was to prove a Division 2 location.

Respondent's contention, which it first asserted at the hearing, is that the citation alleges a Division 1 location based on the language in R-1, the inspection report. Respondent points out it received R-1 during discovery and that it relied on it in concluding the citation alleged a Division 1 area. It maintains it was not aware of the Division 2 charge until the hearing, and that the citation should be vacated since the Secretary failed to prove Division 1.  (Tr. 174; 361-72; Respondent's Brief 66- 70).

The record establishes that Jones, inexperienced in grain facility inspections, erroneously classified the facility as Division 1 and neglected to change the classification after learning it was incorrect. (Tr. 48-49; Exh. R- 1, pgs. 14-28).

Clearly, a reading of R-(?) would lead Respondent to believe it was being cited as a Division I facility.

The Secretary at the hearing acknowledged the citation did not specify a classification, but implied Respondent had notice of the interrogatory responses referenced that division. (Tr. 365-68).  I have reviewed the responses that relate to the subject citation which appear in paragraphs (n) through (s) of Respondent's Answer to Interrogatory No. 1. With the exception on (n), which relates to item (a) of the citation, the responses state there were no violations because Division 2 areas do not need approval.  I interpret this as an assertion that the cited areas, with the exception of item (a) , were Division 2 locations, and conclude the responses were a defense against a Division I charge.

Although Respondent does not use the word "prejudice," it is apparent the crux of its argument is that it was prejudiced because the citation provided inadequate notice.  It is axiomatic that fair notice requires the Secretary to reasonably apprise an employer of the share in sufficient advance of the hearing to allow a meaningful opportunity to prepare a defense.   Secretary of Labor v. Dow Chemical USA, 801 F.2d 926 (7th Cir. 1986).

For the areas discussed hereinabove, it is clear that Respondent could not successfully claim prejudice.  However, in regard to the remaining subitems thereof, it appears likely that Respondent was, in fact, prejudiced by a lack of notice.  The only evidence presented in defense of the division 2 charge was Bellinger's testimony.  I found his opinion about item (b) and the receptacle areas ambivalent, in that he was unable to state unequivocally and without qualification, that they were unclassified areas.  Obviously, with proper notice, Respondent's capability to present a more persuasive defense in regard to those items might have been significantly strengthened. Therefore, I conclude the evidence requires a vacation of 1910.307(b) charges in items (b)-(e) and (h)-(o).

Turning to the assessment of an appropriate penalty, the total penalty proposed for all fifteen items were $490.00.  The foregoing demonstrates two violations of the standard.  Accordingly, a penalty of $32.00 is assessed for each violation, resulting in a total penalty of $64.00.

29 C.F.R 1910.1200(f) (5) (i) [[35]]

Gloria Jones testified she saw a 55-gallon drum that did not identify its contents.  Red Doty, the maintenance supervisor, told her it contained naphtha and that maintenance employees used it to clean metal parts.   Jones interviewed an employee and learned it was used daily.  Employees lay the drum on its side and turn on a faucet so that the naphtha runs into a container; they then take it where it is needed.  (Tr. 242-43; 256-58).

Jones identified Exhibit C-2 as the material safety data sheet ("MSDS") for naphtha ConAgra management gave her.  She used the and other source materials to conclude naphtha was hazardous.  It is combustible and can cause respiratory, eye and skin irritation.  Jones said the probability of injury was great since the drum did not warn employees.  (Tr. 244-48).

James Doty, the facility's maintenance supervisor, testified naphtha is used at the facility.  It is stored in a 55-gallon drum.   The only label on the drum is the manufacturer's label, which he though was "MCXV113."  (Tr. 222-23).

Clarence Rome testified.  He uses naphtha, or mineral spirits,at home; he buys it at a local paint store.  He uses it to clean paint brushes, parts and his hands.  It is used for the same purposes at the plant,where they clean a lot of parts.  He doesn't use as much at home as at work.   (Tr. 338-39; 356).

Wayne Bellinger testified.  He identified Exhibit R-20 as ConAgra's MSDS for mineral spirits.  He described mineral spirits as a broad group of refined hydrocarbons which includes the cited product.  He noted that Gosselin, Smith and Hodge's Clinical Toxicology of Commercial Products defines mineral spirits in two categories.  He said the categories are quite similar.[[36]] (Tr. 422-23; 430- 31; Exh. R-21).

Bellinger uses mineral spirits as a solvent at home to clean paint brushes, metal parts and his hands.  He identified Exhibit R-23 as a bottle of mineral spirits he had recently purchased in a Wal-Mart.  He said it is basically the same as the cited product and is used for the sane purposes. (Tr. 433-35).

Bellinger said naphtha is combustible.  He read the warning labels from R-23, and said none of those were on the cited drum.   Sherman Solvent Company delivered the drum, and also sent C-2. The only label on the drum was "CV-1335."  He tried to get labels from Sherman Solvent after the inspection, but never received them. (Tr. 425; 435-36; 448-50).

As a preliminary matter, the undersigned notes Respondent states the citation,as amended, alleges a violation of 1901.1200(f)(l).   However, the record plainly shows the citation was amended to allege a violation of 1910.1200(f)(5)(i), and that Respondent did not contest the amendment. (Tr. 8-12).

Turning to the evidence, it is clear the drum contents were not identified as the standard requires. It is also clear the product is hazardous, and that the standard applies. C-2 is the MSDS for the cited naphtha.  It shows the product is combustible, with a flashpoint of 106 degrees Fahrenheit. The standard, at defines "combustible liquid" as one having a flashpoint over 100 degrees Fahrenheit.

Respondent apparently does not deny C-2 is the MSDS which relates to the cited naphtha, or that the product is hazardous.  It contends, rather, that since naphtha is the same as mineral spirits, a consumer product, it is exempt from the hazard communication standard.  While I decline to find the cited naphtha is the "same exact product" as R-23, as Respondent urges, I do note the record demonstrates marked similarities in naphtha and mineral spirits products, particularly in regard to their hazards.  They are combustible and can cause eye, skin and lung irritation. (Tr. 424; 450; Exh. C-2; R-20; R-21; R-23).

Addressing Respondent's argument, the standard does provide an exception at 1910.1200 (b) (6) (vii) for consumer products.  However, it specifically states as follows:

This section does not apply to: [a]ny consumer product or hazardous substance ... where the employer can demonstrate it is used in the workplace in the same manner as normal consumer use, and which use results in a duration and frequency of exposure which is not greater than experienced by consumers.

In accordance with established Commission precedent on exceptions, the employer bears the burden of demonstrating the exception applies.  I conclude Respondent has not met its burden.

Assuming arguendo that naphtha is a consumer product and that its use at the Sherman facility is the same as normal consumer use, Respondent has not shown the duration and frequency of employee exposure is not greater than that of consumers.  The evidence shows employees dispense naphtha from a 55-gallon drum every day to clean parts, and Rome himself said he uses less naphtha at home than at work.  Since Respondent has not demonstrated it falls within the exception, a serious volition is established.  A penalty of $70.00 is assessed.[[37]]"

29 C.F.R. 1910.1200 (f) (5) (ii)[[38]]

The evidence shows the facts giving rise to the preceding citation also resulted in this citation. (Tr. 248-49).  The subject standard requires containers of hazardous substances to have appropriate hazard warnings. The preceding discussion demonstrates naphtha is hazardous and that the drum had no warning label.  It also demonstrates employee exposure and that the standard's exception did not apply.  A serious violation is established, and a penalty of $70.00 is assessed.[[39]]

29 C.F.R. 1910.37(i) [[40]]

Gloria Jones testified she observed two windows, one on the fourth and one on the sixth floor of the milling building, which were 21" long, 40.5" wide and 42" above the floor.  The room in which each window was located had a door leading out to that floor's milling area, where a stairway and a manlift were located.  There were no other exits on either floor.  Clarence Rome told her the windows were only means of egress on those floors for emergency evacuation in case of a fire or explosion.  Jones believed the condition was hazardous because the six employees who worked in the area could sustain cuts, bruises, or smoke inhalation injuries in trying to exit through an inadequate space in an emergency. (Tr. 250-52; 263-67; 283).

Clarence Rome testified the cited windows are fire escapes and have been designated as such, but have never been used.  He did not tell Jones they were the only means of egress.  There is also a stairwell and a manlift which are located together in the center of each floor.  If that area was blocked off, the fire escape would be the only other exit. (Tr. 328-29; 352-53).

Respondent contends the citation was issued because Jones believed the windows were the only means of egress from the fourth and sixth floors.  The record does not support this contention.  The citation describes the windows as "used as means of egress to reach exterior fire escape platform."   And, while Jones' worksheet states the windows are "the only exit" (Exh. R-1, pg. 34), her testimony shows she recommended the citation because Rome told her they were the only exits for emergency evacuation.  Rome himself testified the windows were fire escapes and would be the only means of egress if the stairwell area was inaccessible.  It is clear Respondent intended the windows to serve as means of egress in case of emergencies.  It is also clear they did not meet the requirements of the cited standard.  A nonserious violation is found.  No penalty is assessed.[[41]]

29 C.F.R. 1910.37(q)(l) [[42]]

Gloria Jones testified she saw a hatch door with faded red markings on the seventh floor of the milling building.  Red Doty, the maintenance supervisor, told her the hatch was an emergency fire exit.  He said it had been marked, but the paint had worn off.  Jones said Exhibit R-10 looked like the kind of door she saw.[[43]]  She said the yellow paint markings in R-10 made the hatch visible, but that if it was used as an exit, it needed a visible red exit sign.   She said the condition represented a smoke inhalation hazard to employees who worked In the area. (Tr.252-53; 268-72; 284).

Clarence Rome testified R-10 showed the hatch as it looked on the day of the inspection. He said it is an exit and part of the fire escape, and that one of nine employees would use it.  He said it is visible on that side of the room.  (Tr. 330-31; 353).

Respondent asserts the hatch is not an exit. Rome's testimony refutes this assertion.   Alternatively, Respondent asserts that since the hatch is visible, its access need not be marked. Respondent, misinterprets the standard, which imposes two separate requirements. First, an exit must have a "readily visible sign."  Second, access to an exit must be marked by "readily visible signs" where the exit is not immediately visible.  Since the evidence establishes the hatch is readily visible, the second requirement is met.   Regardless, Respondent has not met the first requirement, since the hatch was not marked with a "readily visible sign."  A nonserious violation is established. No penalty is assessed. [[44]]

29 C.F.R. 1910.244(a)(l)(ii) [[45]]

Gloria Jones testified she saw a portable hydraulic hand jack in the maintenance department which was not marked to show its rated load capacity. It had no brand name or serial number on it.  Red Doty, the maintenance supervisor, called it a jack and told her employees used it to move metal parts.  He said it had never had a data plate.  Jones said the jack was hazardous because it could be overloaded and break down, resulting in bruises or cuts from falling parts. (Tr. 253-55: 286; 288).

Wayne Bellinger testified he took Exhibit R-11 on November 9, 1988.  He said it showed the cited equipment, which he called a hand pallet truck.  He knew this was the cited equipment because Doty told him it was.   Doty stenciled the load capacity on it, probably the day of the inspection, because the CO said it had to be done.  Doty did not know the actual capacity, and guessed it was 2500 pounds. (Tr. 400-03).

Bellinger said R-11 shows the same pallet truck depicted in Exhibit R-12, and that its actual capacity is 4500 pounds.  It is used to lift pallets. It is operated by pushing the arms, which are about 3" thick, under a pallet and pumping then up hydraulically.  The arms raise about 4" off the floor, which lifts the pallet about 1" off the floor.  (Tr. 403-05).

Clarence Rome testified that R-11 shows a pallet truck, and that it is the same as the one shown in R-12. He said it is used to lift and move parts in maintenance, and that it raises about 6" off the floor.  It is operated by pumping the handle up and down with a jacking motion.  It is operated manually and is not powered.  (Tr. 331-32: 335; 353-55).

Respondent does not dispute the equipment was not marked to show its rated load capacity at the time of the inspection.  It contends, however, the standard does not apply because the equipment is not a jack.  The Secretary's initial burden, therefore, is to demonstrate the cited standard applies to the cited equipment.  Dun-Par Engineered Form Co., 86 OSAHRC 40/A8, 12 BNA OSHC 1962, 1986 CCH OSHD 27,651 (No. 82-928, 1986).

The Commission recently discussed this issue in Paschen Contractors, Inc., OSAHRC _ , 14 BNA OSHC 1754, 1990 CCH OSHD 29,066 (No. 84-1285, 1990).  In that case, the Commission had to decide whether 1926.550(d) (4), which pertains to cranes, applied to the employer's lifting device.  In finding it did not, the Commission based its decision on the fact that the characteristics of the lifting device did not fit within the applicable definitions of "crane."   In this case, therefore, it must be determined whether the cited equipment's characteristics fit within the applicable definition of "jack."

The applicable definition appears at 1910.241(d) (l) and states as follows:

A jack is an appliance for lifting and lowering or moving, horizontally a load by application of a pushing force.

NOTE: Jacks may be of the following types: Lever and ratchet, screw and hydraulic.

This judge interprets the foregoing to mean that a jack is either a device that lifts and lowers a load by the application of a pushing force, or one that moves a load horizontally by the application of a pushing force.

Respondent asserts the cited equipment is not a jack because it does not lift and lower.  The record refutes this assertion. Witness testimony shows the equipment is used to lift and move parts and palIets, and R-12 shows it can lift and lower loads of up to 4500 pounds. The record also establishes the equipment operates by the application of a pushing force.  R- 12 shows a lever with a lifting, neutral and lowering position, and states the equipment "[a]llows pumping at angle most convenient to the operator."  Rome's testimony shows operators use the equipment by pumping the lever up and down with a jacking motion.

I conclude the cited equipment is a "jack" within the meaning of 1910.241(d)(l) and that the standard applies.   Paschen, supra. [[46]]

The fact the equipment is hydraulic supports this conclusion,in that the "note" following 1910.241 (d) (1) lists hydraulic jacks as an example.

The record shows the jack was not marked to show its load capacity at the time of the inspection and that employees used it.  The record also shows the hazards of the condition.  A non serious violation is established.  No penalty is assessed.[[47]]

29 C.F.R. 1910.1200(g)(1)[[48]]

Gloria Jones testified that on the day of her inspection, when she asked for the material safety data sheet ("MSDS") for the naphtha in the 55-gallon drum in the maintenance shop, it was not available.  She and Clarence Rome went through ConAgra's MSDS book, but could not find it. ConAgra gave it to her later, at the closing conference.  Jones said this was a hazard because in an emergency, there would be no information available about the substance.  (Tr. 242-44; 255-56; 277-78: Exh. C-2).

Clarence Rome testified that when he and Jones went through his book, they could not find the MSDS for mineral spirits.  Jones through another book on her own, that of Ben Jones, the facility sanitarian, but could not find it.  Rome believed it was in Ben Jones' manual at the time, and that it was later found there and a copy sent to the CO.(Tr. 337-38).

Wayne Bellinger testified.  He identified Exhibit R-20 as ConAgra's MSDS for mineral spirits.  He said it was at the facility at the time of the inspection, in each of the three copies of the hazard communication program book the facility has.  He indicated Ben Jones sent R-20 to OSHA. (Tr. 423-430).

The 1910.1200 (f) (5) (i) discussion, supra,demonstrates the cited naphtha was subject to the hazard communication standard requirements.  Respondent was therefore required to have an MSDS for it.  The 1910.1200 (f) (5) (i) discussion also demonstrates that C-2 is the MSDS for the cited product.  The record shows it was given to CO Jones until the closing conference.

Respondent asserts R-20 is its MSDS for mineral spirits, and that it was available at the time of the inspection.  The similarities in naphtha and mineral spirits products were noted in the 1910.1200 (f) (5) (i) discussion.  However, even assuming arguendo that R-20 was a viable substitute for C-2, the evidence shows it was not available when Jones asked for it Although Bellinger said there was a copy of R-20 in each of the facility's three MSDS books, neither Rome nor Jones could find it in Rome's book.  Jones could not find it in the second book she looked through, and the third book apparently could not be located.  Moreover, even though Rome and Bellinger believed R-20 was found later and sent to OSHA, the record shows the Government never received it [[49]] (Tr. 423-30).

While R-20 may have been somewhere in the facility at the time of the inspection, the evidence shows it was not readily available.  C-2 was likewise not available.  As the Secretary points out, if an MSDS is not available, health hazard determinations cannot be made in emergency situations. A nonserious violation is established.  No penalty is assessed.[[90]]

Penalty Determination

Penalties have been assessed for various violations, both serious and nonserious, supra.  In assessing the penalties, due consideration has been given to the size of the employer's business, the gravity of the violations, the good faith of the employer and the history of previous violations.

Findings of Fact

All findings of fact relevant and necessary to a determination of the contested issues have been found specially and appear above.   See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed findings of fact or conclusions of law that are inconsistent with this decision are DENIED.

Conclusions of Law

1. Respondent, ConAgra Flour Milling Company, is engaged in a business affecting commerce and has employees within the meaning of 3(5) of the Act.

2. The Commission has jurisdiction of the parties and of the subject matter of the proceeding.

3. Respondent was in serious violation of 29 C.F.R. 1910. 23 (c)(1), 1910.133(a)(l), 1910.212(a)(5), 1910.272(i)(3) and 1910.204(f)(5)(v).

4. Respondent was in serious violation of 29 C.F.R. 1910.23(e)(l), insofar as it relates to item 2(b) of citation 1.

5. Respondent was in serious violation of 29 C.F.R. 1910.178(p)(l), insofar as it relates to items 4(a)-(d) of citation 1.

6. Respondent was in serious violation of 29 C.F.R. 1910.307(b), insofar as it relates to items 12(f) and 12(g) of citation 1.

7. Respondent was in serious violation of 29 C.F.R. 1910.1200(f)(5)(i), insofar as it relates to item 13(a)(b) of citation 1.

8. Respondent was in serious violation of 29 C.F.P. 1910.1200(f)(5)(ii), insofar as it relates to item 13(b)(b) of citation 1.

9. Respondent was not in violation of 29 C.F.R. 1910.272(e)(l), 1910.272(i)(i), 1910.272(L)(l)(i) and 1910.1200(h) of citation 1.

10. Respondent was not in violation of 29 C.F.R. 1910.23(e)(l), insofar as it relates to item 2(a) of citation, 1.

11. Respondent was not in violation of 29 C.F.R. 1910.178(p)(l), insofar as it relates to items 4(e) and 4(f).

12. Respondent was not in violation of 29 C.F.R. 1910.307(b), insofar as it relates to items 12(a)-(e) and (h)-(o) of citation 1.

13. Respondent was not in violation of 29 C.F.R. 1910.1200 (f) (5) (i), insofar as it relates to item 13 (a) (a) of citation 1.

14. Respondent was not in violation of 29 C.F.R 1910.1200 (f) (5) (ii), insofar as it relates to item 13(b) (a) of citation 1.

15. Respondent was in nonserious violation of 29 C.F.R. 1910.37 (i), 1910.37(q)(1), 1910.106(d) (4) (v), 1910.244 (a) (1) (ii) and 1910.272 (L) (3).

16. Respondent was in nonserious violation of 29 C.F.R. 1910.1200 (g) (1) , insofar as it relates to item 6(b) of citation 2.

17. Respondent was not in violation of 29 C.F.R. 1910.157(c)(1) and 1910.1200(g)(2)(i) of citation 2.

18. Respondent was not in violation of 29 C.F.R. 1910.1200(g) (1) , insofar as it relates to item 6(a) citation 2.

Order

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that:

1. To the extent that the parties' proposed findings of fact and conclusions of law are inconsistent with this decision, they are DENIED.

2. Item 1 of serious citation 1 is AFFIRMED and a penalty of $420.00 is assessed.

3. Item 2(b) of serious citation 1 is AFFIRMED and a penalty of $210.00 is assessed.

4. Item 3 of serious citation 1 is AFFIRMED and a penalty of $280.00 is assessed.

5. Item 4(a)-(d) of serious citation1 is AFFIRMED and a penalty of $184.00 is assessed.

6. Item 5 of serious citation 1 is AFFIRMED and a penalty of $280.00 is assessed.

7. Item 8 of serious citation 1 is AFFIRMED and a penalty of $420.00 is assessed.

8. Item 10 of serious citation 1 is amended to allege a nonserious violation, and as so amended, it is AFFIRMED and a penalty of $210.00 is assessed.

9. Item 11 of serious citation 1 is AFFIRMED and a penalty of $280.00 is assessed.

10. Item 12(f) and (g) of serious citation 1 is AFFIRMED and a penalty of $70.00 is assessed.

11. Item 13(a)(b) of serious citation 1 is AFFIRMED and a penalty of $70.00 is assessed.

12. Item 13(b) (b) of serious citation 1 is AFFIRMED and a penalty of $70.00 is assessed.

13. Items 2(a), 4(e)-(f), 6, 7, 9, 12(a)-(e) and (h)-(o), 13(a) (a), 13(b) (a) and 14 and of serious citation 1 are VACATED.

14. Items 1, 2, 3, 5 and 6(b) of nonserious citation 2 are AFFIRMED, and no penalties are assessed.

15. Items 4, 6(a) and 7 of nonserious citation 2 are VACATED.

E. CARTER BOTKIN

Administrative Law Judge

February 19, 1991


FOOTNOTES:

[[1]] That standard provides:

1910.307 Hazardous (classified) locations.

(b) Electrical installations. Equipment, wiring methods, and installations of equipment in hazardous (classified) locations shall be intrinsically safe, approved for the hazardous, (classified) location, or safe or for the hazardous (classified) location. Requirements for each of these options are as follows:

(1) Intrinsically safe. Equipment and associated wiring approved as intrinsically safe shall be permitted in any hazardous (classified) location for which it is approved.

(2) Approved for the hazardous (classified) location (i) Equipment shall be approved not only for the class of location but also for the ignitable or combustible properties of the specific gas, vapor, dust, or fiber that will be present.

Note: NFPA 70, the National Electrical Code, lists or defines hazardous gases, vapors, and dusts by "Groups" characterized by their ignitable or combustible properties.

(ii) Equipment shall be marked to show the class. group. and operating temperature or temperature range. based on operation in a 40 degrees C ambient, for which it is approved. The temperature marking may not exceed the ignition temperature of the specific gas or vapor to be encountered. However, the following provisions modify this marking requirement for specific equipment:

(A) Equipment of the non-heat-producing type, such as junction boxes conduit, and fittings, and equipment of the heat-producing type having a maximum temperature not more than 100 degrees C (212 degrees F) need not have a marked operating temperature or temperature range.

(B) Fixed lighting fixtures marked for use in Class 1, Division 2 locations only, need not be marked to indicate the group.

(C) Fixed general-purpose equipment in Class 1 locations, other than lighting fixtures, which is acceptable for use in Class 1. Division 2 locations need not be marked with the class, group, division, or operating temperature.

(D) Fixed dust-tight equipment, other than lighting fixtures, which is not acceptable for use in Class II, Division 2, and Class III locations need not be marked with the class, group, division, or operating temperature.

(3) Safe for the hazardous (classified) location. Equipment which is safe for the location shall be of a type and design which the employer demonstrates will provide protection from the hazards arising from the combustibility and flammability of vapors, liquids, gases, dusts, or fibers.

[[2]] 29 C.F.R. 1910.399 defines Class II locations and describes the divisions within that class:

  Class II locations.  Class II locations are those that are hazardous because of the presence of combustible dust.  Class II locations include the following:

   (i) Class II, Division 1.  A Class II, Division 1 location is a location: (a) In which combustible dust is or may be in suspension in the air under normal operating conditions, in quantities sufficient to produce explosive or ignitable mixtures; or (b) where mechanical failure or abnormal operation of machinery or equipment might cause such explosive or ignitable mixtures to be produced, and might also provide a source oil ignition through simultaneous failure of electric equipment, operation of protection devices, or from other causes, or (c) in which combustible dusts of an electrically conductive nature may be present.

         NOTE: This classification may include areas of grain handling and processing plants, starch plants, sugar-pulverizing plants, malting plants, hay-grinding plants, coal pulverizing plants, areas where metal dust and powders are produced or processed, and other similar locations which contain dust producing machinery and equipment (except where the equipment is dust-tight or vented to the outside). These areas would have combustible dust in the air, under normal operating conditions, in quantities sufficient to produce explosive or ignitable mixtures. Combustible dusts which are electrically nonconductive include dusts produced in the handling and processing of grain and grain products, pulverized sugar and cocoa, dried egg and milk powders, pulverized spices, starch and pastes, potato and woodflour, oil meat from beans and seed, dried hay, and other organic materials which may produce combustible dusts, when processed or handled. Dusts containing magnesium or aluminum are particularly hazardous and the use of extreme caution is necessary to avoid ignition and explosion.

       (ii) Class II, Division 2. A Class II, Division 2 location is a location in which: (a) combustible dust will not normally be in suspension in the air in quantities sufficient to produce explosive or ignitable mixtures, and dust accumulations are normally insufficient to interfere with the normal operation of electrical equipment or other apparatus; or (b), dust may be in suspension in the air as a result of infrequent malfunctioning of handling or processing equipment. and dust accumulations resulting therefrom may be ignitable by abnormal operation or failure of electrical equipment or other apparatus.

       NOTE: This classification includes locations where dangerous concentrations of suspended dust would not be likely but where dust accumulations might form on or in the vicinity of electric equipment. These areas may contain equipment from which appreciable quantities of dust would escape under abnormal operating conditions or be adjacent to a Class II Division 1 location, as described above, into which an explosive or ignitable concentration of dust may be put into suspension under abnormal operating conditions.

[[3]] The decision to issue the citation was not made by either compliance officer but by the area director or authorized by him. Presumably, he was as aware of the directive as Burke was. Consequently, it appears to us more likely than not that the individual who made the decision to issue the citation was aware of the directive to classify flour mills as Class II, Division 2 locations unless air sampling established that the mill in question was a Class II, Division 1 area. We are therefore unwilling to assume, as Conagra does, that the citation was issued because of a mistaken belief as to the classification of the flour mill.

[[4]] That standard provides:

1910.272 Grain handling facilities.

        i) Housekeeping.   The employer shall develop and implement a written housekeeping program that establishes the frequency and method(s) determined best to reduce accumulations fugitive grain dust on ledges, floors. equipment, and other exposed surfaces. 

       (3) The use of compressed air to blow dust from ledges. walls, and other areas shall only be permitted when all machinery that presents an ignition source in the area is shut-down. and all other known potential ignition sources in the area are removed or controlled.

[[5]] The cited standard provides:

191.0.37 Means of egress, general.

       (i) Headroom.   Means of egress shall be so designed and maintained as to provide adequate headroom, but in no case shall the ceiling height be less than 7 feet 6 inches nor any projection from the ceiling be less than 6 feet 8 inches from the floor.

[[6]] The Commission must base its decision on the record as a whole rather than on one isolated bit of evidence. See Harrington Constr. 4 BNA OSHC 1471, 1473-74, 1976-77 CCH OSHD 20,913. p. 25,110 (No. 9809, 1976).

[[7]] The likelihood that an accident would occur and the likelihood that an injury would result from that accident are factors to be considered in evaluating the gravity of a violation for assessing a penalty. Super Excavators Inc., Bulz Bros. Packing Co., 1 BNA OSHC 1118,1119,1971-73 CCH OSHD 15,464, 20,728 (No. 91, 1973).

 

[[1]] Respondent withdrew its notice of contest as to items 2(b), 4(a)-(d), 5, and 11 of serious citation 1, and items 3(a) and (b) of "other" citation 2. The Secretary withdrew items 4(e) and (f), 13(a)(a), 13(b)(a) and 14 of the serious citation, as well as items 4, 6(a) and 7 of citation 2. (Tr. 5-8). The effect of said withdrawals is reflected in those sections dealing with penalty determination, conclusions of law and order, infra.

[[2]] These last two items originally alleged violations of 1910.1200(f)(4)(i) and 1910.1200(f)(4)(ii). However, the Secretary's motion to amend the citation to allege violations of 1910.1200(f)(5)(i) and 1910.1200(f)(5)(ii), respectively, was granted at the hearing. (Tr.8-12)

[[3]] 1910.23(c)(1) provides, in pertinent part:

Protection of open-sided floors, platforms. and runways.   Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e) (3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.

[[4]] Burke is approved by OSHA to conduct grain facility inspections, based on his four previous inspections of such facilities and on his electrical background, which includes 8500 hours of training in an electrician apprenticeship program and journeyman electrician experience. (Tr. 119-21).

[[5]] The record demonstrates that Wayne Bellinger, Respondent's Corporate safety director, took R-2 and R-3 on November 9 or 10, 1988. (Tr. 9-50; 397-98).

[[6]] In finding a violation, Respondent's argument regarding Jones' credibility has been noted. Jones testified Rome told her the distance between the cars and the deck was 4-5', and Rome testified this was not what he said. (Tr. 23; 302-03). Based on the record, it appears Rome told Jones the dock plate was 4-5' long, and she understood him to mean the distance between the cars and the deck. I observed Jones' demeanor as she testified, and found her to be a sincere and credible witness. That she misunderstood Rome does not, in my view, impinge upon her integrity, nor does it change my decision, as the record clearly supports the finding of a violation.

[[7]] 1910.23(e)(1) provides, in pertinent part:

Railing, toe boards, and cover specifications. A standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway, or ramp level.

[[8]] Wayne Bellinger testified he took R-4 on November 9 or 10, 1983. (Tr. 398-99)

[[9]] The undersigned has considered whether a 15(b) amendment pursuant to the Federal Rules of Civil Procedure would be appropriate, in that the cited standard also pertains to floors, runways and ramps. However, since the record is devoid of any evidence the landing is a floor, runway or ramp, there is no basis for such an amendment. Moreover, an amendment to allege a violation of 1910.37(g)(2), which requires an unenclosed exterior way of an exit access to be guarded, is likewise inappropriate. The record clearly shows the landing had a guard rail, which is all that 1910.37(g)(2) requires.

[[10]] 1910.133(a)(1) provides as follows:

Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

[[11]] 1926.102(a)(1), which requires eye and face protection when machines or operations present a potential for eye or face injury, is sufficiently similar to the standard at issue to be persuasive on this point. This is so even though Daniel affirmed a nonserious violation. There, the employee wore safety glasses which were found to be inadequate. Here, the employee used no protection. Respondent cites to several cases dealing with the subject standard; however, as they do not address the potential of welding to cause eye injuries, they are unpersuasive.

[[12]] Respondent asserts there was eye protection "conveniently available" to Boling. However, there is no evidence of this. The record shows that when asked why he wasn't using a face shield, Boling said he didn't have one.

[[13]] 1910.272(i) (1) provides as follows:

Housekeeping. The employer shall develop and implement a written housekeeping program that establishes the frequency and method(s) determined best to reduce accumulations of fugitive grain dust on ledges, floors, equipment, and other exposed surfaces.

[[14]] The Government stipulated that Bellinger is an expert in grain processing. (Tr. 378).

[[15]] The testimony of Jones is credited over that of Rome on this point, as his testimony indicates he only thought he gave her R-5.

[[16]] The Secretary does not assert R-5 was not at the worksite, and Rome's testimony indicates it was. Moreover, although the secretary asserts R-7 was not "available," Rome said it was in his office. I observed Rome's demeanor and have no reason to doubt his testimony on this point.

[[17]] Rome so testified, and it is plausible this occurred. Of the three exhibits, only, R-6 makes any specific reference to "housekeeping," and it is understandable Rome would have produced only R-6 pursuant to Jones' request. Moreover, R-5 and R-7 are entitled "sanitation" programs, and Rome's testimony shows he believes R-7's purpose is to ensure product quality. It is likely he believes the sane of R-5, and that this is the reason he did not produce the documents at the time of the inspection.

[[18]] In vacating the citation, I am not unmindful of Rome's statement that the purpose of R-7 is to ensure product quality. Bellinger disagreed with this statement. However, even if R-7's purpose is, in part, quality control, it is also a housekeeping program within the meaning of the standard. A finding that Respondent complied with the standard is also consistent with the testimony of both CO's, who considered the facility clean.

[[19]] 1910.272(1)(3) provides as follows:

The use of compressed air to blow dust from ledges, walls, and other areas shall only be permitted when all machinery that presents an ignition source in the area is shut-down, and all other known potential ignition sources in the area are removed or controlled.

[[20]] 1910.307(b) is part of 29 C.F.R. 1910 Subpart S.

[[21]]1910.272(L) (I) (i) provides as follows:

Preventive maintenance. The employer shall implement preventive maintenance procedures consisting of: Regularly scheduled inspections of at least the mechanical and safety control equipment associated with dryers, grain stream processing equipment, dust collection equipment including filter collectors, and bucket elevators.

[[22]]The secretary implies the exhibits are suspect because they are handwritten, not on ConAgra letterhead and were not immediately available. However, Rome identified both exhibits as part of the maintenance program. I have already considered Rome's credibility, supra, and conclude C-1 and R-9 are evidence of Respondent's program.

[[23]]Compare, for example, 1910. 272 (i) (1), supra, which specifically provides for a written housekeeping program.

[[24]]This conclusion is consistent with the testimony of Jones. She had no knowledge the equipment was not maintained, and saw no problems with any of it.

[[25]]Rome's identification of R-6 as part of Respondent's elevator sanitation program was noted in the 1910.272(i) (1) discussion, supra.

[[26]] 1910.272(L)(3) provides as follows:

A certification record shall be maintained of each inspection, performed in accordance with this paragraph (L), containing the date of the inspection, the name of person who performed the inspection and the serial number, or other identifier, of the equipment specified in paragraph (L) (1) (i) that was inspected.

[[27]] Bellinger's identification of Exhibit R-17 as a 1988 letter from John A. Pendergrass, former Assistant Secretary for OSHA, was noted supra, in the 1910.272 (i) (3) discussion.

[[28]] Rome's identification of R-7 as the Sherman facility's mill sanitation program is set out supra, in the 1910.272(i)(1) discussion.

[[29]] Rome's identification of R-6 as part of the facility's elevator sanitation program was set out supra, in the 1910.272(i)(1) discussion.

[[30]] The record establishes employee exposure. Jones saw at least one employee working in the elevator when she was there, and Rome said nine employees worked in the mill. (Tr. 84; 323).

[[31]] The subject standard is part of 1910.307, the hazardous (classified) location standard. 1910.307 sets out requirements for electric equipment and wiring in locations which are classified according to the flammable or combustible properties of substances in the location, including dust. It also assigns six hazardous location designations, which are defined at 1910.399(a). 1910.307(b) provides, in pertinent part:

Electrical installations.  Equipment, wiring methods, and installations of equipment In hazardous (classified) locations shall be intrinsically safe, approved for the hazardous (classified) location, or safe or for the hazardous (classified) location.

[[32]] A "Note" following 1910.307(b) states that the NEC contains guidelines for determining the type and design of equipment and installations which will meet the standard requirements.

[[33]] There is no direct evidence employees used the cited fan. However, Burke's testimony shows fans were used, which leads the undersigned to conclude the cited fan was also used.

[[34]] In finding a violation, Burke's testimony has obviously been credited. Respondent implies his testimony is somehow suspect because he was not in charge of the inspection and was "mostly a spectator." I disagree. Burke was assigned to assist Jones due to his electrical background and grain facility inspection experience, which was noted at footnote 4. He participated in the actual inspection of the facility, observed the conditions about which he testified and noted the relevant NEC requirements. I found him credible and convincing.

[[35]] 1910.1200 (f) (5) (i) provides, in pertinent part:

The employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information: Identity of the hazardous chemical(s) contained therein.

[[36]]Bellinger's chemistry education was noted in the 1910.272 (i) (1) discussion, supra. (Tr. 374; 422; 438).

[[37]] This item of the citation, 13 (a), originally alleged two violations: however, is noted supra, the Secretary withdrew 13 (a)(a).    Item 13(b), infra, also originally alleged two violations, but the Secretary withdrew 13(b) (a). The proposed penalty for all four items was $280.00. The penalty assessed for the subject violation is one fourth of the original penalty.

[[38]] 1910.1200 (f) (5) (ii) provides, in pertinent part:

[T]he employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information: Appropriate hazard warnings.

[[39]] See footnote 37, supra

[[40]] 1910.37 (i) provides as follows:

Headroom. Means of egress shall be so designed and maintained as to provide adequate headroom, but in no ease shall the ceiling height be less than 7 feet 6 inches nor any projection from the ceiling be less than 8 feet 8 inches from the floor.

[[41]] There was no penalty proposed for this citation item.

[[42]] 1910.37(q)(1) provides as follows:
Exit marking: Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.

[[43]] Wayne Bellinger testified he took R-10 on November 9,1988 (Tr. 399- 400).

[[44]] There was penalty proposed for this citation item.

[[45]] 1910.244(a)(l)(ii) divides is follows:

Jacks--Loading and Unloading. The rated load shall be legibly and permanently, marked in a prominent location on the jack by casting, stamping or other suitable means.

[[46]] Contrary to Respondent's assertion, Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985), supports this conclusion. There, in holding a device was a "jack" within the meaning of 1910.241(d)(l), the court noted a "jack" was "[a] machine, usually portable, for lifting weights by force acting from below." Id. at 260 (citation omitted).

[[47]] There was no penalty proposed for this citation item.

[[48]]1010.1200(g)(1)pertinent part:

Employers shall have a material safety data sheet for each hazardous chemical which they use.

[[49]] Bellinger testified he saw a copy of R-20 in OSHA's investigation file. (Tr. 426-27). However, an in camera viewing of the Government's file did not reveal R-20. (Tr. 429).

[[50]] There was no penalty proposed for this citation item.