*SECRETARY OF LABOR.*

*Complainant.*

*v.*

*HACKNEY BRIGHTON CORPORATION.*

*
Respondent.
*

*OSHRC Docket No. 88-610
*

*/DECISION /
*
Before: FOULKE, Chairman: WISEMAN and, MONTOYA, Commissioners.
BY THE COMMISSION:

Hackney/Brighton Corporation ("Hackney") fabricates steel for pressure
vessels at a facility in Lancaster, Pennsylvania. On February 12, 1988,
Compliance Officer John Wormer inspected the facility in response to an
employee safety complaint. Following the inspection, the Occupational
Safety and Health Administration ("OSHA"), of the United States
Department of Labor, issued Hackney one citation alleging serious
violations of the Occupational Safety and Health Act of 1971, 29 U.S.C.
§§ 651-678 ("the Act"). The Secretary of Labor proposed penalties
totaling $500.[[1]] Review Commission Administrative Law Judge David J.
Knight vacated all items in the citation. Issues arising from items 1(b)
and 2 of the citation were specified in the direction for review. [[2]]
For the reasons set forth below, we reverse the judge regarding these
items, find that Hackney's violations of the standards were
other-than-serious and assess a total penalty of $150.

1. Whether the Administrative Law Judge erred in vacating the alleged
serious violation of 29 C.F.R. § 1910.37(j).

*A. Background
*
The Secretary alleged that Hackney failed to comply with section
1910.37(j)[[3]] by failing to provide a substantially level means of
egress through an exit door. She proposed a total penalty of $150 for
the alleged violations of 29 C.F.R. §§ 1910.37(h)(1) and 1910.37(j).

The door was located near a corner of the east wall of the building and
was elevated approximately 4 feet above floor level. The door was made
of steel, with no glass windows or other openings, and there was no
lock, panic bar, or any other means of gaining access from the outside.
The side of the exit door inside the building was equipped with a panic
bar opening mechanism, which was located approximately three feet above
the doorsill. Because there were no stairs or ramps leading to or from
the elevated exit door, an employee who wished to exit through this door
would have to reach 6 1/2 to 7 feet above ground level to engage the
panic bar, climb up 4 feet to the door sill while holding the door open,
and jump down 4 feet on the exit side. The surface outside the exit door
consisted of "recently excavated or graded soil." The exit door was
located approximately 40 feet from another exit on the same wall and
about 60 feet from another fire door. The building had two other
exits.[[4]] All five of the exits were accessible to all of Hackney's
employees. There was at least one employee working in this area who
might require use of this exit in the event of an emergency or if one of
the other doors was blocked.

Plant Manager Rudolph Chiappetta told Compliance Officer Wormer that the
Commonwealth of Pennsylvania's Department of Labor and Industry had
instructed Hackney to install an exit door at this location in order to
receive an occupancy permit. The door not be installed at ground level
because there was a "heavy" stone wall below the door, visible on the
outside of the building. Chiappetta testified that Hackney did not put a
permanent stairway outside the fire door because of a high incidence of
vandalism, robberies, drug activity and street people in that area, and
"if we had stairs there they would try to force their way into [the]
building" Chiappetta did not testify why there is no stairway or ramp
inside the building. The compliance officer testified that Chiapetta
told him that Hackney "had not gotten around to putting steps or a ramp
up on either side of this exit door as of the date of the inspection."

Chiapetta testified that there were two wooden ladders approximately 20
feet from the exit. The ladders were to be used so that "in case of an
emergency...we would take the ladder, open the door and put the ladder
down" to facilitate exiting the building. The compliance officer
testified that he did not remember seeing a ladder during his inspection.

When asked about the type of injuries that could occur as a result of
the door being elevated 4 feet above the ground, the compliance officer
testified that "normally, if it were a healthy person in a normal
situation, they could probably go four feet without a problem. But, if
it were a panic situation or if a person had some type of handicap, it
may create some physical problems for that person to drop four feet.
[[5]] He believed that it was possible for "broken bones, severe bruises
with hematomas, or anything of that nature" to occur from employees
jumping down 4 feet from the exit door's sill to the outside. The CO
based this on his past experience reviewing accident reports that
described "falls with less than four foot, to even soft ground, that
have resulted in broken bones, overturned ankles with complications, and
bruises, and things of that nature that required medical attention."
However, the compliance officer testified that there was a "low
probability" of a serious injury occurring. [[6]]

The judge vacated the section 1910.37(j) violation on the grounds that
four other available means of access existed at the facility, only
eleven employees worked in the building and there were ladders nearby
which would provide safe access to the exit door.

The judge concluded that the door "being four feet off the floor and
easily operable does not constitute a hazard or impeded agrees which
this standard is written to prevent.

On review the Secretary argues that the judge ignored the standard's
"clear intent to require only stairs or ramps where a egress is not
substantially level." The Secretary asserts that the lack of egress
could be potentially fatal where a tire has blocked the plant's other
exits or where confusion compels an employee to precipitantly attempt to
negotiate the elevated exit".

In response, Hackney argues that under Spot-Bilt, Inc.,II BNA OSHC 1998,
1984, CCH OSHD ¶ 26,944 (No. 79-5328, 1984), not every exit of a
facility must comply with the cited egress standard when there are
adequate exits. In Spot-Bilt, the employer was cited under the emergency
egress standards at 29 C.F.R. §§ 1910.36(b)(4). 1910.37(k)(2). and
1910.37(q)(1) for failing to maintain a tree and unobstructed means of
egress and to mark it with an exit sign. The cited door. which was
locked, had its handle and exit sign removed and was also blocked by a
number of objects, including sheets of plywood. Spot-Bilt locked the
door because it was being used for unauthorized egress during work hours
and because of "break-ins" The Commission vacated the citation, finding
that the five other exits in the room met the cited standard's purpose
of ensuring that employees had free and unobstructed egress from the room.

Hackney also argues that if a violation is found, it should be
classified as de minimis because the Secretary failed to prove direct
and immediate relationship to the safety or health of its workers, based
on the unlikelihood of a fire, the compliance officer's testimony of a
"low probability" of an injury and that other exits were available to
the employees. For support, Hackney cited National Rolling Mills, 4 BNA
OSHC 1719, 1720- 21, 1976-77 CCH OSHD ¶ 21,114, p.25,415 No. 7987,
1976)(fall distance of 3 feet into a pit is de minimis when exposures
are brief and brief and precautions are present). [[7]]

The Secretary responds to Hackney's citation of Spot-Bilt by arguing
that Spot-Bilt does not apply to the case since in the instant case,
Hackney made no effort to discourage or otherwise prevent employee use
of the elevated door." The Secretary argues in the alternative that
"Spot-Bilt is simply bad law


*B. Discussion
*

Section 1910.37(j) requires that a "means of egress" be equipped with
stairs or ramps when it is not "substantially level." Hackney argues
that under Spot-Bilt, the door here would not be considered a means of
egress. In Spot-Bilt, however, in addition to the presence of numerous
other exits, the cited door was not intended for use as a door, it had
no handle or exit sign, and access to it was limited by a number of
objects placed in front of it. Here, despite the lack of of a
substantially level access to, the door. the door could be opened from
the inside, and it was intended to be a means of egress. Because the
door was intended to provide a means to exit the building in an
emergency, we find that the door is a "means of egress." Since it is
clear that an exit 4 feet above the ground cannot be considered
substantially level,".we therefore find that Hackney violated the standard.

For a violation to he deemed serious under section 17(k) of the Act. 29
U.S.C. § 666(k), there must be "a substantial probability that death or
serious physical harm could result if an accident occurred. In
determining whether a violation is serious, the issue is not whether an
accident Is likely to occur, but whether the result of an accident would
likely be death or serious injury. Spancrete Northeast, Inc., 15 BNA
OSHC 1020, 1024, 1991 CCH OSHD ¶ 29,313, p.39,358 (No. 86-521, 1991).

The compliance officer testified that "broken bones" or "severe bruises"
were possible if a person exited the door in a panic situation, but he
also testified that the probability of a serious injury occurring was
low. Based on this testimony, we find that the evidence does not
establish a substantial probability that death or serious physical harm,
could result from Hackney's failure to provide a substantially level
means of egress. We therefore find that the Secretary failed to meet her
burden of proving a serious violation of this standard.

However, we find no basis for finding the violation de minimis, as
argued by Hackney. A violation properly characterized as de minimis when
it has no direct or immediate relationship to employee safety, and is
normally limited to situations in which the hazard is so trifling that
an abatement order would not significantly promote the objectives of the
Act Dover Elevator Co., 15 BNA OSHC 1378, 1382, 1991 CCH OSHD ¶ 29,524.
p. 39,850 (No. 88-2642, 1991. See also Super Excavations, Inc.,15 BNA
OSHC 1313, 1991 CCH OSHD ¶ 29,498 No. 89-2253, 1991 Pratt & Whitney
Aircraft, 9 BNA OSHC 1653, 1981 CCH OSHD ¶ 25,359 (No. 13401, 1981).
Here, Hackney has provided no basis for a finding that the violation
lacks a direct or immediate relationship to employee safety. It is clear
that if an accident had occurred, it would be neither "trifling" nor
likely to result in death or serious injury. We therefore conclude that
the violation was other-than-serious.

Based on the penalty factors enumerated in 17(j) of the Act, 29 U.S.C. §
666(j), we assess a penalty of $75 for the other-than-serious violation
of 29 C.F.R. § 1910.37(j).

II. Whether the Administrative Law Judge erred in vacating the alleged
serious violation of 29 C.F.R. § 1910.252(a) (2) (iv) (c).

*A. Background
*

The Secretary alleged that Hackney failed to comply with section
1910.252 (g) (2) (iv) (c)[[8]] by storing an acetylene cylinder in a
compressed gas storage area with ten oxygen cylinders. She proposed a
penalty of $150.
The compliance officer testified that he observed a storage area located
in the middle of Hackney's facility which contained one acetylene
fuel-gas cylinder among several oxygen tanks without the requisite
distance or noncombustible barrier between them. The area containing the
gas cylinders was demarcated by yellow painted partitions and erected
steel bars. It was the compliance officer's understanding that this was
the primary storage area for these tanks, and he did not recall any
other areas being shown to him. The cited gas cylinders were capped and
not in use. Approximately 15 feet from the storage area, an employee
operated a radiograph burner machine that emitted two sources of
ignition: open flames and electrical sparking.

Chiappetta testified that he told the compliance officer that the
cylinders in question were delivered up to a half-hour before closing
time the Thursday before the inspection on Friday[[9]] Chiappetta
testified that the cylinders referred to in the citation were
"temporarily place(d) there pending their movement." He testified that
the acetylene cylinders are normally stored 40 feet away from the oxygen
cylinders. When the cylinders are delivered, they are brought in through
the main entrance at the building and left at the "storage area." Those
cylinders containing a "gas," such as acetylene, are then moved to a
separate gas storage area. If the acetylene had been delivered "early
enough," it would have been moved immediately, but the acetylene
cylinder in question was not moved because it was "the end of the
shift." Chiappetta testified that if the compliance officer "hadn't come
in that morning, it would have been moved at that time, early in the
morning." At around 9:30 a.m. Friday, the cylinders were placed in their
storage areas. There was only one employee exposed to the alleged
hazard, and the compliance officer opined that the condition was of a
low gravity.

The judge vacated the section 1910.25(a)(2)(iv)(c) violation on the
grounds that the 2 1/2 hour delay between the plant opening at 7:00 a.m.
and the 9:30 a.m. inspection was not tantamount to storage.

The Secretary argues that the judge erred in vacating this alleged
violation because the cylinders were, in fact, in storage overnight. The
Secretary claims that the issue is not whether the cylinders were stored
but whether short-term storage falls within the standard's coverage. The
Secretary claims that the term storage "encompasses even a short-term
placement of oxygen cylinders with acetylene tanks," and claims that her
interpretation is entitled to deference.

Hackney argues that the cylinder was not in storage within the meaning
of the standard. Hackney notes that the standard refers to cylinders in
storage, and stresses that the word "in" before "storage" "denotes the
placement of cylinders in a particular area with some degree of
permanency." Hackney claims that the acetylene cylinder was temporarily
kept with the oxygen cylinders until it could later be moved to its own
designated storage facility. Hackney also argues that "but for
interruption in [Hackney's] normal procedure, which was caused by [the
compliance officer's] early morning inspection, the subject cylinder
would have been put in its respective storage area shortly after the
facility opened, rather than at approximately 9:30 a.m., as happened on
the morning of the inspection."

In response, the Secretary argues that Hackney's argument would permit
an employer to avoid complying with the standard "simply by formally
designating an area as a storage area [so that] a cylinder not in this
special are will not be 'in storage' even if it has been negligently
left unused in a production area for days at a time."

*B. Discussion
*

It is undisputed that the acetylene cylinder was left with the oxygen
cylinders in the oxygen cylinder storage area between 3:00 p.m. and 3:30
p.m. on the day before the inspection, and was not moved to its own
storage area until 9:30 a.m. the next day. The acetylene cylinder was
not to be used. but rather was to be relocated to its proper storage
area "early in the morning." We have held that under section
1910.252(a)(2)(iv)(c) cylinders are in storage if they are either not in
use or soon to be in use. See MCC of Florida, Inc. 9 BNA OSHC 1895,
1897, 1981 CCH OSHD ¶ 25,420, p. 31,681 (No. 15757, 1981) (cylinders are
not "in storage" where they are "available for immediate use in the area
where they were located"): Pratt & Whitney Aircraft, 9 BNA OSHC at 1672,
1981 CCH OSHD at p. 31,519 (cylinders tied together in a corner covered
with dust and not used for "quite awhile" were not available for
immediate use and were in storage); Grossman Steel & Aluminum Corp. 6
BNA OSHC 2020, 2023-24, 1978,CCH OSHD ¶ 23.097.(No. 76-
2834.1978)(oxygen tank and acetylene tank were not in storage but were
available for use in an area where welding was to be performed on a
intermittent basis). See also Armour Food Co. 14 BNA OSHC
1817,1827,1987-1990 CCH OSHD ¶ 29,088. p. 38,889 (No. 86-247, 1990)
(cited under section 1910.252(a)(2)(ii)(b), cylinders on a cart at the
location where they will be used within fifteen minutes are in used and
not in storage). Given the fact that the acetylene cylinder was stored
overnight with the oxygen cylinders, we find that the cylinders were in
storage within the meaning of the standard and that Hackney violated
that standard.

Testimony as to the seriousness of the violation was given by the
compliance officer. He testified that the presence of the acetylene near
the oxygen would tend to enhance any ongoing fire that occurred near the
cylinders. Nevertheless, he also opined that violation was one of "low
gravity," and that "the severity factor is also considered in that low
gravity."

If we were to substitute our judgement for that of the compliance
officer, we might find the violation to be serious. However, we are
constrained by the evidence presented in this case to find that the
Secretary failed to establish that a substantial probability that death
or serious physical harm could result if an accident occurred. We
therefore find the violation to be other-than-serious.

Although we find that the Secretary failed to establish that the
violation was serious, Hackney has provided no support for it claim that
the violation should be characterized as de minimus. It is clear that if
an accident did occur, the result would not be trifling. Nor is there
any suggestion that oxygen and acetylene cylinders should not be
separated as the standard requires. Hackney represented that the
cylinder would have been moved had it not arrived so late in the day.

Based on the penalty factors enumerated in 17(j) of the Act, 29 U.S.C. §
666(j), we assess a penalty of $75 for the other-than-serious violation
of 29 C.F.R. § 1910.252 (a) (2) (iv) (c).

*III.Order
*

Accordingly, we find that the violation of 29 C.F.R. § 1910.37(j) was
other-than-serious and assess a penalty of $75. We also find that the
violation of § 1910.252(a)(2)(iv)(c) was other-than-serious, and assess
a penalty of $75, for a total penalty of $150.


Edwin G. Foulke, Jr.
                                                                                                                                                    
Chairman

Donald G. Wiseman
                                                                                                                                            
Commissioner

Velma Montoya
                                                                                                                                                        
Commissioner

Dated August 28, 1992

------------------------------------------------------------------------


*SECRETARY OF LABOR.
Complainant.
v.
HACKNEY BRIGHTON CORPORATION.
Respondent.
*

*OSHRC Docket No. 88-610
*

*Decision and Order
*

Appearances: For the complainant::
Marshall H. Harris, Regional Solicitor
U.S. Department of Labor
Philadelphia, Pa.
By: _Joseph T., Crawford_, Esq.

For the respondent::
_Frederick W Addison. III_, Esq.
Rader, Addison & Stony, P.C.
Dallas, Texas

By a citation[[1]] issued February 23, 1988, the Occupational Safety and
Health Administration of the U.S. Department of Labor (complainant)
alleges that Hackney/Brighton Corporation, a fabricator of steel for
pressure vessels in Lancaster, Pennsylvania, (respondent), seriously
violated (that is, a substantial probability of serious physical harm or
death existed, 29 U.S.C. § 666(j); three safety standards.

The first concerning the adequacy of an emergency exit, in two parts, is
as follows as this is governed by the safety standard at 29 § 1910.27:

(h) Discharge from exits. (1) All exits shall discharge directly to the
street, or to a yard, court, or other open space that gives safe access
to a public way. The streets to adequate to accommodate all persons
leaving the building. Yards courts or other open spaces to which exits
discharge shall also be of adequate width and size to provide all
persons leaving the building with ready access to the street.

(j) Changes in elevation. Where a means of egress is not substantially
level, such differences in elevation shall be negotiated by stairs or ramps.

A total of 11 non-handicapped employees are engaged at this facility
(Tr. 58, 86). The plant floor (a trapezoid) measures approximately 140
by 540 by 80 by 140 feet (Ex. R-3) with five doors. The door in
question, shown as the "fire door" on a sketch, exhibit R-3, is located
near a corner of the building about 40 feet from another exit (Tr. 53),
on one side , and about 60 feet from another door (Tr. 89).

But its bottom sill is four feet up from the floor (Tr. 17-18 and photo
C-2); and the panic bar three more feet or seven feet from the floor
(Tr. 21). Respondent's plant manager testified, however, that two
ladders were located 20 feet from this door; all employees can reach the
panic bar from floor level and handily open it; and all doors are easily
accessible to all employees (Tr. 92-103, 135-196). He pointed out the
ladder to the inspecting officer (Tr. 107) but the officer did not
remember either that statement being made or seeing a ladder (Tr. 114, 121).

The area of the plant's location has a high vandalism rate and is
populated by "kids" and drug users. Street people find accommodations
along the wall, settling there with mattresses and even a refrigerator.
Respondent fears that they might force their way into the building if
they could reach this door. Therefore, it was installed in 1986 above
floor level without a ramp or any ready access (Tr. 90-92, 113).

This door accesses to an open and graded area (not paved) with no
obstructions whatsoever impeding a safe exit to the street by any number
of people as required by 29 C.F.R. § 1910.87 (h), cited above.
Complainant's brief does not mention this alleged violation at all and I
find that no fact supports it. This item is vacated in the order below.

However, a jump of four feet to ground could cause bodily harm as
testified to by the officer, but with a low probability of injury (Tr.
57-59, 74) if a panic situation existed. But given 1) four other readily
available means of access; 2) only 11 employees in the building; and 3)
ladders nearby (and I accept the plant manager's testimony over the
officer's here since the latter did not remember) which would provide
safe access to and from the door, I find that this door being four feet
from the prior and easily openable (Tr. 93-94),does not constitute a
harzard of impeded egress which this standard is written to prevent and
I conclude that no violation of 29 C.F.R §1910.37(j) exists under these
circumstances. This item is violation in the order below.

The second alleged violation concerns the placement of compressed gas
cylinders specifically encompassed by 29 C.F.R. § 1910.212(a)(2)(iv)(c):

oxygen cylinders in storage shall be separated from fuel-gas cylinders
or combustible materials (especially oil or grease) ,a minimum distance
of 20 feet or by a noncombustible barrier at lease 5 feet high having a
fire-resistance rating of at least one-half hour.

The officer testified that an open area enclosed by yellow steel bars
(photo exhibit C-2) was a storage area for compressed gases and within
it was one acetylene cylinder among several oxygen tanks. A source of
ignition was within 15 feet of this area (Tr. 26-30, 75). Any leak could
result in a fire or explosion (Tr. 31).

The officer did not recall being shown any other storage area for
cylinders, or being told when these particular bottles were delivered to
the plant (Tr.65-69).

Respondent disputes this allegation on the basis that these mixed
cylinders were not in "storage" as the standard requires before a
violation may be affirmed. Its plant manager testified that the
cylinders on the right of photo exhibit C-3 were delivered between 3:00
and 3:30 p.m. the night before when the plantwas closing.  At around
9:30 the next morning, they are separated and placed in their storage
areas, the oxygen and acetylene being 40 feet apart from each other (Tr.
94-98 and exhibit sketch R-3).  This is normal procedure when gases are
delivered late in the day (Tr. 114).

While the plant opens at 7:00 a.m, I do not find that this two-and-half
hour delay tantamount to storage. [[2]]  In fact, the acetylene bottle
was moved to its storage place while the officer was at the plant
according to the plant manager (Tr.114).  The normal safety operation of
the plant requires storage of these tanks apart, and the standard does
not forbid placing these tanks together but rather their storage. _Cf._,
_Secretary v. MCC of Flordia, Inc._, 9 OSCH 1895.  I conclude this
standard has not been violated as alleged in that the time between
delivery and the final storage is not unreasonable; and this item is
vacated in the order below.    

Finally, respondent is alleged to have violated 29 C.F.R.
§1910.304(f)(5)(v) requiring

Equipment connected by cord and plug.  Under any of the conditions
described in paragraphs (f)(5)(v)(a) through (f)(5)(v)(c) of this
section, exposed non-current-carrying metal parts of cord and
plug-connected equipment which may become energized shall be grouped.

in that a radiograph machine (which cuts circular patterns in steel
plates, see photo exhibit C-3) in operation was missing the ground prong
form its plug (Tr. 33)  Thus, according to the officer, if the machine's
operator (the only employee exposed) came into any metal contact when
the machine experienced any type of short circuit , he could suffer an
electrical shock (Tr. 34-38).  The plant manager could not explain how
the ground prong came to be missing (Tr. 37).  The officer testified
that these three-prong plugs may be at any hardware store and installed
in minutes (Tr. 68).

This alleged violation may not be sustained.  The machine's cord was
plugged into an extension cord which in turn ran to the source of power
(Tr. 76).  The plant manager testified that the extension cord had a
ground plug and was properly grounded in accordance with the company's
safety manual and practices (Tr. 112).  The officer's testify, during
the case-in-chief or when called for rebuttal, concerning the fact that
the machine was grounded as required by cited standard and concluded
through the extension cord.  As a matter of fact, I find that the
machine was grounded as required by cited standard and conclude that no
violation of that has been shown.  Additionally, this three-pronged plug
is not of a common variety but is difficult to obtain and was on order
before the inspection, being finally installed by an electrical
contractor on March 31, 1988 (Tr. 99, 100-101 and exhibit R-4).  This
item is vacated in the order below.

_*ORDER: *_

Based on the finding of fact and conclusion of the law reached after
considering the evidence and the parties' arguments and proposals, which
to extent shown are adopted or rejected as having insufficient support
in the preponderance of the evidence or precedent, it is ORDERED that
the citation issued February 23, 1988, alleging serious violations of items

1) 29 C.F.R. § 1910.37 (h (I) and .37(j);

2) 29 C.F.R. § 1910.252(a) (2) (iv) (c); and

3) 29 C.F.R. § 1910.304 (f) (5) (v) be, and they are hereby, vacated
together with the civil penalties (totaling $500) assessed therefor.

DAVID J. KNIGHT
Judge, OSHRC


FOOTNOTES:

[[1]] The alleged violations are as follows: 1(a):29 C.F.R. §
1910.37(h)(1) - one of the exits at its facility allegedly timed to
discharge directly into a street or other open space. 1(b) 29 C.F.R. §
1910.37(j) - one of the exit doors at the facility was four feet above
the level of the interior floor: 2: 29 C.F.R. § 1910.252(a)(2)(iv)(c) -
an acetylene cylinder was allegedly stored in a compressed gas storage
area with 10 oxygen cylinders; and 3: 29 C.F.R. § 1910.304(f)(5)(v) -
the ground prong was missing on a radiograph machine power cord.

[[2]] The Secretary did not petition for review of the judge's vacation
of serious citation no. 1 Item 1(a), which alleged a serious violation
of 29 C.F.R. § 1910.37(h)(1). On December 21, 1990, the Secretary filed
a notice of withdrawal of serious citation no. 1, Item 3, which alleged
a serious violation of 29 C.F.R. § 1910.304 (f)(5)(v). On January 25,
1991, the Commission struck this item from the direction for review.

[[3]] Section 1910.37(j) provides as follows:
Changes in elevation. Where a means of egress is not substantially
level, such differences in elevation shall be negotiated by stairs or ramps.

[[4]] The compliance officer testified that Hackney's facility had a
total of three exits. However, it appears that the compliance officer
was referring to the total number of fire exits. Plant Manager Rudolph
Chiappetta testified that there were a total of five doors in this facility.

[[5]]Chiapetta testified that none of Hackney's employees are incapable
of climbing up the 4-foot ledge in order to reach the door.

[[6]] There was no testimony regarding injuries which could occur while
reaching the elevated fire door.

[[7]] To support this and other arguments in his briefs. Hackney cities
several unreviewed judges' decisions However, an unreviewed judge's
decisions does not have procedural value Leone Constru. 3 BNA OSHC 1979,
1975-76 CCH OSHD ¶20,387 (No. 4090, 1976).

[[8]] Section 1910.252 provides as follows:
Oxygen cylinders in storage shall be separated from fuel-gas cylinders
or combustible materials except oil or grease, a minimum distance of 20
feet or by a noncombustible at least 6 feet high having a fire
resistance of at least one-half hour.
In 1990, 29 CFR § 1910.252(a)(2)(iv)(c) was recodified without any
substantive changes as 29 C.F.R. §1910.253(b)(4)(iii)


[[9]] The facility closes at 3:30 pm and the bottles were dropped off
between 3:00 pm and 3:30 pm.

 

[[1]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C. §
651, et seq., citations were issued after inspection (here on February
12, 1988) and may be contested within a 15- working day period (here
March 1, 1988) Both parties were represented by counsel at the hearing
(August 10, 1988). Briefs were filed by both parties by October 19,
1988. Jurisdiction is admitted (Tr. 6) and respondent does not assert
(apparently withdraws) it's motion concerning the number of employees
necessary to justify the issuance of a citation (Tr. 7 and respondent's
letter dated October 12, 1988).

[[2]] In _Secretary v. Ormet Corp_., 9 OSHC 1055, cited by complainant
the Commission found the cylinders in question were in "storage" See
foot note 12 at page 1060.