SECRETARY OF LABOR, Complainant. v. TRINITY INDUSTRIES, INC. Respondent. OSHRC Docket Nos. 89-2316 & 89-2317 *DECISION * BEFORE: FOULKE, Chairman; Wiseman and Montoya, Commissioners. BY THE COMMISSION: Trinity Industries, Inc. ("Trinity") manufactures railcars at its plant in Bessemer, Alabama. In response to an employee complaint, OSHA Compliance Officers Virginia Simmons and Terry Bailey ("CO's") inspected the plant on February 2, 1989. After their inspection, four citations were issued, each consisting of multiple items. A Commission Administrative Law Judge vacated or affirmed as de minimis all but three citation items. The direction for review involves two of those three items.[[1]] I. Housekeeping Violation A. Background The Secretary issued Trinity an other-than-serious citation alleging a violation of the housekeeping standard at 29 C.F.R. § 1910.22(a)(1).[[2]] No penalty was proposed. The citation alleged that "elevated walkways were cluttered with materials used for work." CO Bailey testified that employees in the sill weld area worked from walkways put up alongside the railcars, and that "an inordinate amount of housing and banding material" and "hand tools, pieces of steel" left on the walkway should have been properly stored to prevent a tripping hazard.[[3]] According to the CO's, employees moved back and forth across this walkway to get steel to weld onto the cars, as well as to retrieve grinding tools to complete their work. The materials remained scattered on the walkway even when no one was actively at work. Trinity's general superintendent of materials, David Goodwin, testified that he had in the past worked from the sill weld area walkways. He described the materials in the photographic exhibits as side sill enforcements and cross ridge tie plates (components of the car), as well as grinder hoses, wire feeders, air grinders and a hammer--all tools used in the process of welding the parts to the car. Goodwin further testified, in essence, that an employee doing this job must work from an overhead walkway and must have continuous access to parts and tools. He also testified that it would be more hazardous for the parts and tools stored on the walkway to be brought up as needed. Trinity did not cross-examine the CO's nor did the Secretary cross-examine the Trinity employee, on this subject. The evidence of record consists, therefore, of (1) two CO's describing a tripping hazard on the walkway, and (2) Trinity's superintendent asserting that the current arrangement was safer than having the materials brough up as needed. B. Affirmative Defenses Trinity raised two affirmative defenses before the judge and raises the same before the Commission. 1. Greater Hazard Trinity claims that to abate the cited hazard by removing the tools and material from the walkway and have them brought up as needed would expose workers to a greater hazard than would storing them on the walkway. The judge examined Trinity's "greater hazard" defense in terms of each of the three elements set forth in /Lauhoff Grain Co., /13 BNA OSHC 1084, 1088, 1986-87 CCH OSHD ¶ 27,814, pp. 36,397-98 (No. 81-984, 1987). To establish this defense, the employer must demonstrate by a preponderance of the evidence that: (1) the hazards of compliance are greater than the hazards of noncompliance; (2) alternative means of protection are unavailable; and (3) a variance was unavailable or inappropriate. The judge found that Trinity failed to establish any of these three elements, and we concur. Our reading of this record leads to a conclusion that the only evidence on point relates to the first element: superintendent Goodwin's stated opinion that bringing up the metal pieces and tools "one by one" would be more hazardous than storing the items up on the walkway. However, Goodwin was not asked, nor did he volunteer, how the materials would be brought up or /why /he believed such an arrangement would be more dangerous than the status quo. Trinity adduced no evidence on the other two elements. Finding that Trinity failed to carry its evidentiary burden, the judge affirmed the violation as other-than-serious, assessing no penalty, as none was proposed. Under /Lauhoff/ Grain and a number of appellate court cases,[[4]] we concur with the judge and find that Trinity has failed to establish the elements of the "greater hazard" defense. Trinity bears the burden of showing that hazards created by compliance (clearing the walkway and making other arrangements to obtain the materials and tools) outweigh the hazards of noncompliance. Based on the limited evidence Trinity introduced, we are unable to determine exactly what the other hazard is, let alone whether it is "greater" than the one that existed.[[5]] Secondly, Trinity bears the burden of showing that no alternative means exist to protect employees against the tripping hazard that the housekeeping standard was intended to prevent. Again, insufficient testimony was elicited for the Commission to know whether some measure short of totally clearing the walkway could serve to protect employees from the tripping hazard.[[6]] Finally, the record is silent on variances. Therefore, Trinity failed to prove the elements of the "greater hazard" defense, and the Secretary's prima facie case stands. 2.*Infeasibility* Trinity also raises the affirmative defense of infeasibility of compliance. Because the tools and materials are used continuously in the fabrication process, Trinity argues, it is not feasible to remove them from the walkways.[[7]] The abatement methods the Secretary proposes (removal or safer storage) are physically possible, but our inquiry requires further analysis. The appropriate test is whether compliance would so interfere with performance of necessary work as to be infeasible under the circumstances. Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1956-59, 1986-87 CCH OSHD ¶ 27,650, pp. 36,024-27 (No. 79-2553, 1986) on other grounds, 843 F.2d 1135 (8th Cir.1988) (employer established that guardrails were incapable of being used anywhere for a sufficient length of time to serve any practical purpose of protection and would have disrupted the work to such a degree that compliance was "infeasible"). Thus, at issue in this case is whether Trinity has established that removing the supplies and attempting to perform the sill weld job without such a collection of tools and a full stockpile of materials continually close at hand would disrupt the work to such a degree that abatement would be infeasible. The judge failed to address this defense separately in his decision. Under Commission precedent, any employer seeking to be excused from implementing a cited standard's abatement measure on the basis of infeasibility has the burden of establishing either that an alternative protective measure was used or that there was no feasible alternative measure. /Seibel Modem Mfg. & Welding Co./, 15 BNA OSHC 1218, 1227, 1991 CCH OSHD ¶ 29,442. p. 39,683 (No. 88-821, 1991). In this action, the record is devoid of evidence demonstrating that there was no other technologically or economically feasible way for Trinity to perform the sill weld operations without having an array of tools and supplies on the walkway, as they were the day of the inspection. The only relevant evidence that Trinity introduced was the testimony of superintendent Goodwin, who agreed that employees on the walkways required continuous access to tools and materials. This evidence, on its own, falls short of establishing the "infeasibility" defense. While "employers [can] rely on genuinely practical circumstances revealing the unreasonableness of an abatement measure," the Commission may still expect employers like Trinity to "alter their customary work practices to the extent that alterations are reasonably necessary, to accommodate the abatement measures specified by OSHA standards." /Id./ Trinity failed to show that the only way to guarantee its employees "continuous access" to their tools and supplies was to place them on the walkway. C. Conclusion In conclusion, Trinity has failed to prove that abatement,/i.e.,/ clearing or straightening up the walkway would constituted a "greater hazard" or be "infeasible" under Commission precedent. We therefore affirm the judge and find an other-than-serious violation, and, since the Secretary proposed no penalty, none is assessed. *II. First Aid -- Eyewash Facilities* At issue is whether Trinity violated the first aid standard at 29 C.F.R. § 1910.151(c)[[8]] that requires eyewash facilities for employees subject to chemical splashes. It is undisputed that paint shop workers were exposed to corrosive materials in the paints as they mixed, sprayed, and otherwise handled the paints. Industrial hygienist Horace McCann ("IH") testified that he understood the closest source of water to be 40 to 50 yards away--a pedal-operated water fountain supplying a "trickle" suitable only for washing hands. The IH did not make an inventory of water sources and was under the mistaken impression that this was the only source of water available for the "quick drenching or flushing" contemplated by the standard. The Secretary issued Trinity a citation for failure to provide appropriate eyewash facilities for workers in the paint area, and proposed a penalty of $630. At the hearing, superintendent Goodwin listed a number of sources of running water in the vicinity, including lavatories, drinking fountains. and water hoses, and testified that based on testing he had done, a worker in the paint area could walk at a normal pace to one of these sources of fresh running water within 15 to 30 seconds. The judge accepted the evidence on the number and location of sources in a light most favorable to Trinity[[9]] but still affirmed the violation because the sources were not /suitable /under the standard. Trinity argues that its facilities were the same as those found "suitable" under commission precedent and that nothing in the record supports a finding of unsuitability. Citing a series of Commission cases [[10]] and unreviewed judges decisions, Trinity argues that nearly twenty years of precedent finding that hoses. water fountains, sinks, and showers satisfy section 1910.151(c)--renders the judge's decision an anomaly. The judge, however, maintains that: These decisions have eroded the intent of the standard to such a degree that it is difficult to ever find a violation .... [F]ollowing the[se] decisions ... means that if there is a source of running water available in the plant, there can be no violation....Trinity has merely recited sources of water it has not proven they are suitable for purposes of this standard. The Secretary argues that the plain meaning of the standard requires access to water sources "/specifically suited/ to delivering water to the eyes." Like Trinity, she cites a number of Commission cases and unreviewed judges' decisions to support her position. [[11]] The Secretary further contends that "lavatories, ordinary sinks, drinking fountains and garden hoses do not fit this description," and that nothing in Goodwin's at even remotely approximates what she considers an appropriate eye drenching facility, such as an eyewash fountain. The Secretary, however, gives no hint as to what other sort of water source, if any, may be considered suitable, nor does she detail why any of the alternative sources cited by Goodwin are unsuitable. Although under Martin v. /OSHRC/ (/CF&I Steel Corp/.), 111 S.Ct. 1171 (1991), the Commission may be required to defer to the Secretary's reasonable interpretation of an ambiguous standard, deference as to what a given standard means does not obviate the need for the Secretary to develop a prima facie case under that standard. Although the Secretary might have been able to present evidence to show that the sources of water Trinity listed were not suitable under the standard, she did not even try to do that in this case. Because of what seems to have been a misunderstanding on the day the plant was inspected, the IH failed to inspect the premises thoroughly enough to determine first-hand what sources of water were available to an injured worker in need of first aid. The Secretary's evidence was limited to the IH's description of the only water source he saw, and her cross-examination of the Trinity employee who had knowledge of the other water sources produced nothing to cast doubt on the effectiveness of the water at these sources. The judge reveals more readily than the Secretary what factors he would take into account in determining "suitability." Except for testimony describing the trickling pedal-operated fountain the IH observed, the record in this case offers facts only about the number and relative location of water sources, not about how practical, safe, or effective they would be for getting paint out of a worker's eyes. Superintendent Goodwin said only that a worker could get to a source of "fresh, running water" within 15 to 30 seconds. Granting that "fresh" is a relative term and that "running" tells little about the water pressure, when considered together with the number and variety of water sources available, it seems that Trinity has sufficiently rebutted the Secretary's prima facie case--if indeed one was made--to shift the burden of proving unsuitability back to her. This burden she did not meet. As a final note, we find that in affirming the violation, the judge seems to have impermissibly shifted the burden of proof from the Secretary to the employer. According to the judge, "[w]here the Secretary establishes a need for quick drenching or flushing, as in this case, the burden is on the employer to prove that he has /suitable facilities/." Trinity argues that the burden was on the Secretary to show that the facilities were unsuitable, not on Trinity to show that they were suitable, citing /DuPont/. /Accord Anoplate Corp/., 12 BNA OSHC 1678, 1684-85 & n.7, 1986-87 CCH OSHD ¶ 27,519, p. 35,682-3 & n.7 (No. 80-4109, 1986) (analyzing a similar standard[[12]], placing burden on Secretary to show that water was not near, clean, cold, or under proper pressure). Even if some of the facts in the record (presence of a trickling fountain for hand-washing) might be construed so as to constitute a prima facie violation for failure to provide any suitable facilities, enough other facts (presence of other sources of fresh, running water) rebut the initial allegation to shift the burden back to the Secretary, whose duty it is to show the unsuitability of the facilities Trinity did provide. The preponderance of the evidence does not support the judge's finding of a violation of this standard. We therefore vacate this citation item. *Conclusion* Based on the discussion above, item 3 of citation no. 3, No. 89-2316, is affirmed without penalty, and item 5 of citation no. 1. No. 89-2317, is vacated. Edwin G. Foulke, Jr. Chairman Donald G. Wiseman Commissioner Velma Montoya Commissioner Dated: November 18, 1992 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. TRINITY INDUSTRIES, INC., Respondent, UNITED STEELWORKERS UNION and its LOCAL 9226 Authorized Employee Representative. OSHRC Docket Nos. 89-2316 & 89-2317 (Consolidated) APPEARANCES: L. K. Cooper, Jr., Esquire, Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama, on behalf of complainant Robert E. Rader, Jr., and David P. Blanke, Esquires, Dallas, Texas, or behalf of respondent _DECISION AND ORDER_ Burroughs Judge: Trinity Industries, Inc. ("Trinity") contests serious, willful and "other" citations for alleged safety violations (Docket No. 89-2316), and a serious citation for alleged health violations (Docket No. 89-2317) which were issued to it on July 18, 1989. The cases were consolidated for purposes of trial, briefs and decision. LOCAL 9226 of the United Steelworkers Union was granted party status (Tr. 14). _The Allegations_ _Docket No. 89-2316_ The serious citation alleges a violation of section 5(a) failure to eliminate or control sources o(1) of the Act for failure to provide fall protection for an employee working atop a rail car 15 feet above a concrete surface. The willful citation allgees violations of § 1904.2(a), for failure to record all recordable illnesses and injuries; and § 1904.2(a), for failure to complete OSHA Forms No. 200 in the manner provided for in the form and its instructions. The Secretary also charges Trinity with "other" than serious violations of § 1904.5(c), for failure to crtify the summary page of the OSHA 200 log; § 1904.5(d) (1), for failure to post in a conspicuous place the annual summary of OSHA Form No. 200; and § 1910.22(a) (1), for failure to keep places of employment clean and orderly.[[1]] _Docket No. 89-2317_ The Secretary alleges that Trinity was in serious violation of the following standards: § 1910.106(b) (6), for failure to eliminate or control sources of ignition where the presence of flammable vapors was possible; § 1910.184 (e) (6) (i), for allowing employees to wear respirators when conditions prevented a good face seal; § 1910.141 (g) (2), for permitting employees to consume food and beverages in an area exposed to toxic materials; § 1910.141 (g) (4), for allowing food and beverages to be stored in an area exposed to toxic materials; § 1910.151 (c), for failure to provide flushing facilities in a work area where employees were exposed to injurious corrosive materials; § 1910.1200 (f) (4) (i), [[2]] for failure to ensure that each container of hazardous chemicals was labeled, tagged, or marked with the identity of the hazardous chemicals contained therein; and § 1910.1200 (g) (1), for failure to have a material safety data sheet ("MSDS") for each hazardous chemical used in the workplace. Trinity asserts several defenses starting with the allegation that the Secretary's warrant impermissibly exceeded the scope of the original complaint. It claims that any recordkeeping violations were the result of unpreventable employee misconduct and that OSHA had implemented a confusing, inconsistent policy regarding the recording of flash burns. Trinity asserts that providing fall protection to employees doing touch-up work atop rail cars is infeasible and that requiring elevated walkways to be kept clear of tools and materials constitutes a greater hazard to its employees general, Trinity contends that the Secretary failed to make out a prima facie case for most of the alleged violations. _Background_ Trinity Industries, Inc., manufactures rail cars at its plant in Bessemer, Alabama. On January 26, 1989, OSHA Compliance Officer Virginia Simmons arrived at the plant to investigate a six-item complaint filed by two Trinity employees. Simmons was denied entry by Fred Hull, Trinity's personnel manager, and by Festus Pierce, Trinity's safety supervisor at that time (Tr. 26). Simmons returned with a warrant on January 31, 1989, accompanied by OSHA Compliance Officer Terry Bailey (Ex. C-1; Tr. 27, 33). They were again denied entry until Trinity could consult with its attorney. Simmons and Bailey were finally permitted to enter the plant on February 2, 1989. On the first day of the inspection, the compliance officers held an opening conference with Hull; Pierce; Ray Bodiford, Trinity's manager of human resources; and Terry Goodwin, Trinity's manager of manufacturing (Tr. 34-35). Simmons and Bailey were accompanied by Goodwin, Bodiford and a union representative on their walkaround inspection (Tr. 36). _Trinity's Motion to Suppress Evidence_ _Since Marshall v. Barlow's Inc._, 436 U.S. 307, 98 S. Ct. 1816 (1978), OSHA officials, in the absence of consent by the employer, have obtained warrants in aid of their inspection efforts. The standard of probable cause established in _Barlow's_ is not as strict as criminal probable cause. "[T]he Secretary need only establish administrative probable cause, which is tested by a standard of reasonableness, requiring the magistrate or jedge to 'balance the need to search against the invasion in which the search entails.' " _West Point Pepperell, Inc. v. Donovan,_ 689 F. 2d 950, 957 (11th Cir. 1982). In _Barlow's_, the court observed that administrative probable cause justifying the issuance of an OSHA inspection warrant may be based on (1) specific evidence of an existing violation, which may arise from a complaint or an observation by a compliance officer at the site before he is refused entry and (2) a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to the establishment sought to be inspected, /i.e./, "a specific business has been chosen for an OSHA search on the basis of a general administrative probable cause must satisfy the basic purpose of the Fourth Amendment, which is "to safeguard the privacy and security of individuals against arbitrary invasions of government officials." _Marshall v Barlow's, Inc._, _supra_, 546 at 312, 98 S. Ct. at 1820. "In the context of administrative searches, this principle requires that persons not be subject to the unbridled discretion of 'executive and administrative officers, particularly those in the field, as to when to search and whom to search.' " _West Point Pepperell, Inc. v. Donovan,_ 689 F.2d at 958 (_citing Marshall v. Barlow's, Inc.,_ 436 U.S. at 323, 98 S. Ct. at 1820). The catalyst for the inspection in this case was a formal complaint filed by two employees of Trinity with the Birmingham, Alabama, Area Office of OSHA, alleging that violations of the Act existed at the Bessemer, Alabama, facilities. The complaint alleged the following conditions (Ex. C-2): 1. Employees in paint department, shipping department, internal blast, etc., are not being trained or informed regarding chemicals with which they work. Toluene, xylene, ketone, catalysts, paints, etc., or [sic] examples of materials used. 1910.1200(h) 2. Interior lining department large lights inside cars 50 to 70 pounds and can fall on employees working beneath because they aren't properly secured. Three of these have fallen in the last week and one employee has been hit. Section 5(a)(1) 3. The paint department has a heavy buildup of paint residue and fumes are real bad. Painters wear respirators but others in the area don't. This is where cars are painted in the building. Also paints, thinners, etc., are stored in painting area. 1910.107(d)(2) and 1910.107(e)(1) & 2 4. Track No. 3 Side sill rollover is broken and won't secure cars in position. Cars are being blocked up with 4 x 4's. A car dropped at least on one occasion and an employee received a broken arm. Welders weld on top side of the car while its [sic] in this position. Section 5(a)(1) 5. Floor shop arc welding machines are placed so that they stand in water each time it rains. 1910.252(b)(4)(ix)(b) 6. Seal weld area has catwalk that employees work from and where large amounts of material such as, re-enforcement stiffeners (sic), belly bands, roping irons and horseshoes are placed. This material is placed by crane and is often unstable and could fall on employees [sic] below. Section 5(a)(1) After Simmons was denied the right to conduct a consent inspection on January 26, 1989, safety supervisor John Hall filed an application for warrant on January 27, 1989, with the U. S. Magistrate for the Northern District of Alabama. The application, among other things, made the following representations: 1. The warrant sought herein is authorized by Section 8 of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 657, OSHA regulations promulgated at 29 C.F.R. 1903.4, and _Marshall v. Barlow's. Inc.,_ 436 U.S. 307, 321 (1978), where the Supreme Court approved the selection of a business for an OSHA inspection either on the basis of specific evidence of an existing violation or on the basis of a "general administrative plan . . . derived from neutral sources . . . " 2. The Field Operations Manual (FOM) classifies inspections as programmed (those based, pursuant to _Barlow's_, upon a general administrative plan) or unprogrammed (those based upon specific evidence of an existing violation (e.g., a complaint)). Trinity was designated for inspection, without influence of any other factor, according to the complaint inspection procedures at Chapter IX, ¶ A. of the FOM (copy attached as Attachment A) (all paragraph references are to Chapter IX of the FOM). 3. This Application stems from the receipt on December 29, 1988, by the Area Office of a formal complaint, a typed copy of which is attached hereto and incorporated herein as Attachment B, from two employees of Trinity which alleges belief that violations of the Act which constitute job safety hazards and threaten physical harm exist at the above workplace . . . . (Footnote omitted) 6. Trinity is believed to be operating in Standard Industrial Classification (SIC) 3743, which is "Railroad Equipment." This SIC is classified "high hazard" and ranks 145th of 317 on the Safety High Rate list. Trinity is believed to employ approximately 600 employees. Trinity's workplace has been inspected, albeit under another name and different ownership, numerous times during the period 1973 through 1986, with serious violations found on several occasions. A records review is required by A.9.a.(1) during this inspection. 7. With respect to the items in the complaint, I conclude that there are reasonable grounds to believe that violations of the Act threatening physical harm exist at Trinity's workplace and that an inspection is necessary. Accordingly, this inspection will be limited to the violations alleged in the complaint and other apparent violations within the "Plain view" of the inspecting compliance officers (including all pertinent conditions, structures, machines, apparatus, equipment, materials, processes, devices, controls and facilities and all injury and illness records and papers required to be maintained by the employer pursuant to 29 C.F.R. § 1904.2 and 1904.4 . . . . A copy of the formal complaint and Chapter IX of the OSHA Field Operations Manual were attached to the application. The application was specific in what was being requested and why the request was being made. The warrant issued by U. S. Magistrate Elizabeth Todd Campbell on January 30, 1989, provided: * * * [T]he addresses are authorized, after showing appropriate credentials, to ENTER without delay upon the said workplace during regular working hours and to INSPECT in a reasonable manner [including testing, taking photographs and measurements, collecting samples (personal, area, and wipe) for the assessment of air contaminants and physical agents (utilizing, among other things, sampling pumps and detector tubes) and privately questioning the employer, or any of its employees or agents], the following: The alleged violations of the Act which are the subject of Complaint Number 072479538, a copy of which is attached hereto and incorporated herein, including all pertinent conditions, structures, machines, apparatus, equipment, materials, processes, devices, controls and facilities, and all injury and illness records and papers required to be maintained by the employer pursuant to 29 C.F.R. § 1904.2 and 1904.4 but not including "personally identifiable employee medical information" within the meaning of 29 C.F.R. § 1913.10, and all records and papers required to be maintained by the employer pursuant to 29 C.F.R. § 1200, to determine whether the employer at its workplace is complying with the Act and with the pertinent occupational safety and health standards and regulations promulgated under the Act. The warrant authorized an inspection of the complaint items, as well as "all injury and illness records and papers required o be maintained by the employer pursuant to 29 C.F.R. § 1904.2 and 1904.4." Trinity argues that the warrant impermissibly expanded the search beyond the complaint items and moves to suppress all evidence relating to recordkeeping violations which are allegations unrelated to the original complaint. _Was a Warrant Needed to Gain Access _ _to Injury And Illness Records?_ Trinity's position in this matter is based on two principal points: (1) it has a primary interest in the accident and illness records that is protected by the Fourth Amendment, and (2) the warrant authorizing the inspection was impermissibly overbroad in that the application did not contain sufficient probable cause for allowing a search of the accident and illness records. Trinity takes the view that the application was based solely on probable cause as established by the complaint and that the ensuing inspection should have been limited in scope to the items set forth in the complaint. Trinity is correct in its first point but in error on the second point. It is ignoring the facts specifically recited in the application as to why the request was made to view the illness and injury records. In support of its position that it has a privacy interest in its OSHA 200's, Trinity cites_Taft Broadcasting Co., Kings Island Division ("Kings Island")_ 87 OSAHRC 21/D14, 13 BNA OSHC 1137. 1986-87 CCH OSHD ¶ 27,861 (No. 82-1016, 1487), _Aff'd_, 849 F.2d 990 (6th Cir. 1988). The issue in _Taft,_ _supra,_ was whether a warrant was needed by an OSHA compliance officer who requested an inspection of OSHA 200's, pursuant to § 1904.7(a). [[3]] The Review Commission concluded that a warrant was required, holding that "the information recorded on injury records is not of interest only to OSHA, but to both OSHA and employers. The records serve multiple purposes, and employers have some reasonable expectation of privacy in the information recorded on them." Id., 13 BNA OSHC at 1141. The Review Commission reaffirmed this ruling in _Emerson Electric Co_., 87 OSAHRC 22/A5, 13 BNA OSHC 1171, 1986-87 CCH OSHD ¶ 27,864 (No. 84-985, 1987), aff'd, 834 F.2d 994 (11th Cir. 1987), and _A. B. Chance Co_., OSAHRC _, 13 BNA OSHC 1172, 1986-87 CCH OSHD ¶ 27,863 (No. 85- 519, 1987), /_rev'd,_ /842 F.2d 724 (4th Cir. 1988). In both of those cases, the Commission quoted from its _Kings Island,_ _supra_, decision, stating that "section 1904.7(a) violates the Fourth Amendment to the extent that it purports to authorize an inspection of required records without a warrant or its 'equivalent'...." _Kings Island_, 13 BNA OSHC at 1_146._ The Fourth Circuit reversed the Commission's decision in_A. B. Chance_, finding that an OSHA compliance officer who is lawfully upon the employer's premise as a result of an employee's health or safety complaint may examine and copy OSHA Forms 200 and 101 without first obtaining an inspection warrant. The court observed that the employer is required to post the OSHA 200 annual summary at its workplace and reasoned that there can be little expectation of privacy in a document that must be posted upon the employees bulletin board. _McLaughlin v. A. B. Chance Co._, 842 F.2d 724 (4th Cir. 1988). The latest pronouncement on this issue comes from the Review Commission in _Monfort of Colorado, Inc. _OSAHRC 14 BNA OSHC 20550 CCH OSHD ¶ 28,296 (No. 87-1220, 1991). In that decision, the Commission refined its view of the privacy expectation in the OSHA forms. In _Monfort_, _supra_, a former employee of the company requested copies of Monfort's OSHA 200's for the years 1982 through 1986. She later testified that she requested the OSHA 200's to learn more about a back and neck injury she had sustained while working for Monfort. At the time of her request, the former employee was employed with the United Food and Commercial Workers International Union. Monfort, believing that the request came from the union, refused to provide the former employee with the requested records. The former employee complained to OSHA, who asked Monfort several times to turn over the records. Monfort refused each time and OSHA then issued a citation alleging that Monfort was in willful violation of 1904.7(b)(1). The administrative law judge affirmed the citation but concluded (erroneously) that he did not have the authority to decide whether the regulation violated the Fourth Amendment. In its analysis of the case, the Review Commission concluded that the search authorized by the regulation is governmental and that the reasonable reporting requirement exception does not apply. Id., 14 BNA OSHC at 2058-2059. The Commission then turned to the question of the employer's reasonable expectation of privacy in the OSHA 200's. The Commission distinguished Monfort from Kings Island, Emerson Electric and A. B. Chance , supra, in two respects: "The degree of the intrusion; and the party seeking the records." Id. at 2059. The other cases dealt with 1904.7 (a) , which requires employers to provide access to OSHA 101's as well as OSHA 200's. The access must be provided to any authorized representative of the Secretary. The Commission found that "the additional requirement of disclosure of OSHA 101's is significant when that form is compared with OSHA 200's." Id. The Commission noted that the OSHA 101 is much more detailed and probing in the information it seeks than the relatively cursory information required by the OSHA 200's. The commission also noted that under 1904.7(a), the requesting parties are private individuals and not OSHA representatives. The Commission concluded: [T]he OSHA 101, rather than the OSHA 200, constituted the basis for the Commission's statement in King's Island that "[i]njury records maintained in accordance with OSHA regulations contain important details about the employer's operations and manufacturing processes that even conscientious executives might not freely reveal to outsiders." 13 BNA OSHC at 1141, 1988 CCH OSHD at p. 36,485. Because the Secretary required the disclosure of OSHA 101's, as well as OSHA 200's in King's Island, the intrusion into the employer's privacy interests in that case was far greater than the minimal intrusion here. _Id_. at 2060. The significance this quotation has for the present case is the fact that Trinity is only objecting to the inspection of the OSHA 200's; OSHA 101's are not mentioned in this case. The Commission clearly considers the privacy expectation in the OSHA 200's to be of a limited nature. There is also little doubt that when an employer posts each annual summary of occupational injuries and illnesses from the OSHA 200's, whatever expectation of privacy the employer had in its OSHA 200's is considerably diminished. "There can be little expectation of privacy in information that is available to anyone observing the employer's bulletin board." _McLaughlin v. A. B. Chance Co.,_ 842 F.2d at 728. _Monfort,_ _Id._ at 2060. _Monfort_, _supra_, however, differs from the present case in that it was a former employee and not an OSHA representative who requested access to the records. _Monfort_ is expressly limited to situations where an employee, former employee or their representatives request the records. We therefore conclude that Monfort has no reasonable expectation of privacy in its OSHA 200's when access is sought under section 1904.7(b)(1). Because a reasonable expectation of privacy must be present in order to invoke the protections of the Fourth Amendment, it is clear that the Fourth Amendment does not apply to the search authorized by section 1904.7(b)(1) . . . Accordingly, we find that section 1904.151 (b) (i) does not violate the Fourth Amendment by authorizing former employees to have address to OSHA 200's without a warrant or subpoena. _Id_. at 2061. How significant is the fact that the OSHA 200's in the present sense were requested by OSHA compliance officers and not employees. The Commission states that it was the request of the OSHA 101's that triggered the Fourth Amendment protections in Kings Island and its progeny; yet, it specifically limited its holding to request made under § 1904.7 (b) (1), a section to which OSHA representatives cannot avail themselves. Some guidance is provided in the Commission's discussion of the posting requirement. It is noted that, besides having access to the posted annual summary, employees would have the opportunity to observe conditions in the workplace which gave rise to illnesses and injuries. The Commission observes that "[t] here is also no reason to conclude that an employer's privacy expectation in its OSHA 200's is greater when an employee, former employee, or their representative requests them than it is when the annual summary is posted." Id. at 2060. This discussion establishes that the Review Commission's focus is on knowledge that the _employees_ already have from observations made in their daily work or have access to from the posted annual summary. Following the precedent established in _King's Island_, _Emerson Electric,_ _A. B. Chance _and _Monfort_, it must be concluded that requests made by compliance officers to inspect OSHA 200's pursuant to § 1904.2 infringe upon the the documents and that the Fourth Amendment is applicable under these circumstances. Accordingly, OSHA properly sought a warrant to View the records. _There Was Probable Cause for Viewing the Records_ The Supreme Court in _Barlow's_, _supra_, states that a showing of administrative probable cause must satisfy the basic purpose of the fourth Amendment by safeguarding the privacy and security of individuals against the arbitrary invasion of government officials. The Court was particularly concerned about individuals being subject to the "unbridled discretion" of executive and administrative officers concerning decisions as to when and whom to search. It seems clear that any general administrative plan for enforcement of the Act that achieves this goal will pass constitutional muster. The Secretary proceeded in this case according to guidelines published in its _Field Operational Manual _Chapter IX, A.9.a.1. of the FOM states: 9. _Scope of Inspection_. The scope of complaint inspections shall be determined in accordance with the guidelines given in this section. Any departure from these guidelines shall be supported by adequate documentation. a. _Safety Complaint inspections_. The inspection of a safety complaint shall normally be a comprehensive inspection of the entire workplace except for low-hazard areas, such as office areas). The following guidelines shall be followed in determining exceptions: (l) _Records Review_. In an establishment listed on the Area Office High Rate SIC List (or the Low Rate SIC List when used for scheduling programmed inspections under the procedures given in chapter II, E.2.b.(1) (e) 4a) or the Low Rate or the Nonmanufacturing Establishment Lists, an injury records review, as outlined in Chapter III, D.4, shall be performed. If such a records review would not result in a comprehensive safety inspection under the guidelines for programmed inspections, or if one of the deletion criteria applies, the procedures given in d. of this section shall be followed. Chapter III, D.4, referenced in the preceding chapter, provides as follows: 4. _Records Review_ A records review for the purpose of calculating the establishment's lost workday injury (LWDI) rate shall be conducted for all inspections (safety or health), including those for which an administrative subpoena and/or warrant is being served, whether the inspection is programmed or unprogrammed. T_his procedure applies if the establishment is within an industry whose SIC code is on the safety SIC List currently used for scheduling General Industry inspections or if the establishment is listed on the Low Rate Establishment List or the Nonmanufacturing Establishment List for the current fiscal year._ An LWDI rate need not be calculated for an establishment if one has already been calculated during the current calendar year or if the establishment meets one of the deletion criteria for a safety inspection listed in Chapter II, K.2.b.(1)(b) 5b. (_Emphasis added_) It is clear that the secretary has established and published an administrative plan for inspecting the illness and injury records of an employer. The above language underlined in the quote from Chapter III removes the "unbridled discretion" from the OSHA official seeking the warrant The application was specific in stating that records review was required by chapter TX, 4.9.a.1 of the FOM, and authority was sought to conduct such an inspection. Paragraph of the application set forth the following information in support of the request for a records review. It stated in part: Trinity is believed to be operating in Standard Industrial Classification (SIC) 3743, which is "Railroad Equipment." This SIC is classified "high hazard" and ranks 145th of 317 on the Safety High date list. Trinity is believed to employ approximately 600 employees. Trinity's workplace has been inspected, albeit under another name and different ownership, numerous times during the period 1973 through 1986, with serious violations found on several occasions. The representation is made that Trinity is on the High Rate SIC List. It is true, as Trinity contends, that the complaint filed by the two employees does not refer to any records violations. If the the warrant was based solely on the complaint, it would be impermissibly overbroad. However, the application makes it clear that where a complaint inspection is conducted, the Secretary has established neutral criteria that is automatically triggered to determine if a records review is appropriate. The application describes the procedure followed in conducting a records review and sets forth sufficient facts that criteria. The warrant was valid in all respects. _The "Good Faith" Exception is Applicable_ In _Sarasota Concrete Co._, 81 OSAHRC 48/A6, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), _aff'd, _693 F.2d 1061 (11th Cir. 1981), the Commission held that it would suppress evidence gathered pursuant to a warrant if the warrant was not supported by probably cause and that suppression was an appropriate remedy even if the Secretary acted in good faith in executing the warrant. Subsequent development of the law has superseded _Sarasota_ by restricting the grounds on which evidence obtained through a warrant may be suppressed. See _Pennsylvania Steel Foundry & Machine Co.,_ 86 OSAHRC 45/A3, 12 BNA OSHC 1027, 1986 CCH OSHD ¶ 27,671 (No. 78-638, 1986); _Smith Steel Casting Co_., 85 OSAHRC 20/B9, 12 BNA OSHC 1277, 1985 CCH OSHD ¶ 27,263 (Nos. 80-2069 & 80-2322, 1985), aff'd, 800 F.2d 1329 (5th Cir. 1986); _Davis Metal Stamping, Inc_., 85 OSAHRC 14/A3, 12 BNA OSHC 1259, 1985 CCH OSHD ¶ 27,236 (No. 78-5775, 1985), _aff'd,_ 800 F.2d 1351 (5th Cir. 1986). The decision of the Supreme Court in _United States v. Leon_, 468 U.S. 897, 104 S. Ct. 3405 (1984), holding that evidence fathered in objective reasonable reliance on a search warrant should not be suppressed, shaped the development of the law subsequent to Sarasota. Suppression of evidence is not an automatic remedy for a violation of a constitutional, statutory or regulatory requirement. Even if there were not probable cause for a review of the records in this matter, the "good faith" exception of _U. S. v, Leon,_ _supra_, is deemed to be applicable. The evidence as a whole supports a finding that the Secretary proceeded in good faith and reviewed the records in reasonable reliance on the warrant. _Trinity Consented to the Review_ An inspection that infringes upon a reasonable expectation of privacy violates the Fourth Amendment if it is conducted without a warrant or its "equivalent". _King's Island_, _supra_. It is well-established that consent to an inspection vitiates the need for a warrant. Where consent can be established, it is the "equivalent" of a warrant. _King's Island_, _Emerson Electric,_ _A. B. Chance_ and _Monfort_ all involved situations where requests to inspect the employers' injury and illness records were refused by the employers. No warrant was obtained in any of these cases, and the requested records were never provided. Instead, the Secretary issued citations alleging violations of the standards under which the records had been requested. The factual situation in the present case differs in two significant aspects from the fact pattern as it existed in thee above-mentioned cases. First, upon Trinity's refusal to the request to provide the records for inspection, the Secretary obtained a warrant. Second, Trinity provided the records to the OSHA compliance officers during their inspection of the facility. The compliance officers were permitted to review the records and to make photocopies of them (Tr. 42, 53). Trinity argues that its representatives repeatedly stated to Compliance Officers Simmons and Bailey that it was providing the records to them under protest and that it was not waiving its rights to contest the validity of the warrant. James Hall, Trinity's personnel manager, was instructed to "as best we could, make it clear that we were going to honor the warrant, did not intend to expand it, follow the warrant and to--and to be sure that we stated that we were not giving up any of our rights or protests that we may have" (Tr. 516-517). Jerry Riddles, Trinity's corporate safety environmental director, talked with all of the Trinity representatives who took part in the inspection before the inspection began, instructing them that "we were honoring the search warrant, but we were not giving up our rights to challenge the validity of the search warrant or challenge any citations deriving out of the inspection with the OSHA Review Commission" (Tr. 699-700). Ray Bodiford, Trinity's human resources coordinator, told the compliance officers that Trinity would comply with the letter of the warrant but that anything beyond that would have to be cleared by Trinity's attorney (Tr. 869). The statements of Trinity's representatives do not establish that Trinity actually reserved its right to protest the inspection or otherwise indicate to the compliance officers anything but full consent to the inspection. The Trinity representatives' statements establish what was discussed before the inspection began, but they do not provide any basis for concluding that consent to the inspection was withheld. Rather, Bodiford informed Simmons that Trinity "would comply with the letter of the warrant," a statement that implies that the company was acknowledging, not protesting, the validity of the warrant. Simmons' testimony was unequivocal with regard to the consensual nature of the inspection. The detail of Simmons' testimony, the certitude of her manner, and the sincerity of her demeanor qualify her as an eminently credible witness. It is found that whatever protests Trinity may have had, it never communicated them to Simmons in any objectively determinable manner. Simmons asked to inspect the injury and illness records and on February 3, 1989, she and Bailey were taken to a room in Trinity's facility where the records were laid out on a table (Tr. 42). It is concluded that Trinity gave its consent to the inspection of the records and that no Fourth Amendment protections were violated. _Docket No. 89-2316_ _Citation No. 1_ _Item 1: § 5(a)(1)_ Trinity is charged with the serious violation of § 5 (a) (1) of the Act for permitting employees to work atop rail cars without fall protection, exposing them to a fall of 15 feet onto a concrete surface. Section 5(a)(1) provides: (1) Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. Simmons and Bailey observed an employee, Shirley Kinard, working atop a rail car in the shipping area. Kinard was not tied off, nor was she provided with any other form of fall protection. She was exposed to a fall of 15 feet onto a concrete surface (Ex. C-9; Tr. 71). The Secretary has the burden to prove the violation. in order to prove a violation of section 5(a)(1), the Secretary must show: (1) [T]hat a condition or activity in the employer's workplace presented a hazard to employees, (2) that the cited employer or the employer's industry recognized the hazard, (3) that the hazard was likely to cause death or serious physical harm, and (4) that feasible means existed to eliminate or materially reduce the hazard. _United States Steel Corp._,12 BNA OSHC 1692, 1997-98, 1986-87 CCH OSHD ¶ 27,517, p. 35,669 (No. 79-1998, 1986). _Coleco Industries, Inc._, _ OSAHRC ___, 14 BNA OSHC 1961, 1963, 1991 CCH OSHD § 27,748 (No. 84-546, 1991). At the time of the inspection, Kinard was assigned to touch up the paint on the tops of the rail cars. This job required Kinard and one other employee to work atop the rail cars for eight hours a day, five days a week. Kinard worked in this position for seven or eight months (Tr. 101-103). Welders working further away in the shipping area were tied off and were also protected by platforms built up beside the cars (Tr. 109-110). a. _Hazardous Condition_ Working without fall protection while exposed to a 15-foot fall onto a concrete surface presented a hazard to Kinard and the other employee assigned to work with her. b. _Recognized Hazard_ Actual knowledge of the hazard by the employer satisfies the recognition requirement of the general duty clause. _Brennan v. Vy Lactos Laboratories. Inc._, 494 F.2d 460 (8th Cir 1979). It is difficult for an employer to prevail on the defense that he had no knowledge of the violation since he has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent their occurrence. _Frank Swidzinski Co_., 81 OSAHRC 4/E14, 9 BNA OS_HC 1230, 1981 CCH OSHD ¶ 25,129 (No. 76-4627, 1981); _Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1385, 1980 CCH OSHD ¶ 24,495 (No. 76-5089, 1980). Kinard was working in plain view atop a rail car without fall protection. She had done so every day for several months. Trinity knew of the working conditions and recognized the hazard. It admits that other employees working on top of th_e cars are protected._ c. _Death or Serious Physical Harm_ A fall from a height of 15 feet onto a concrete surface is recognized as a hazard with potential of resulting in death or serious physical harm. d. _Feasible Means of Abatement_ The Secretary suggested two means of abatement: the use of side scaffolds next to the rail cars and the use of lifelines to which the employees could tie off. Both of these methods were observed in use by the welders working in the same department. Trinity does not dispute that the hazardous condition exists but argues that there is no feasible means of abatement. "An employer may defend against a cited violation of a standard by demonstrating that compliance with the standard was not feasible."_Dun-Par Engineered Form Co_., 86 OSAHRC 40/A8, 12 BNA OSHC 1962, 1966, 1986 CCH OSHD ¶ 27,651 (No. 82-928, 1986). In support of this argument, Trinity states, "The reason there are no side scaffolds is because the cars do not always stop at the same point on the track" (Respondent's Brief, pg. 27). Terry Goodwin testified that sometimes cars would stop for a touch-up in an area where there are side scaffolds and sometimes they did not (Tr. 715-716). Trinity presented no credible evidence that it was impractical or unreasonable to provide fall protection to its employees. On the contrary, it is unreasonable not to provide some form of fall protection to employees exposed on a full time basis to a 15 foot fall. As for practicality, Trinity does not explain why the rail cars to be touched up cannot be stopped next to a side scaffold or why it is impractical to move a side scaffold next to any rail car that an employee must ascend. Trinity claims that the employees cannot tie off because the height and configurations of the coiling do not permit for the suspension of a lifeline (Tr. 716-718). Bailey, however, gave undisputed testimony that the welders he observed atop the cars in the same department were tied off. (They were also protected by side scaffolds) (Tr. 109). Trinity's brief (pg. 28) states that "the evidence shows that Trinity provides scaffolding or safety lines for all workers on top of cars except for the two touch-up painters." The conclusion "that there is no feasible way to provide scaffolds or safety lines for these two" is based on bare assertions that are not supported by objective facts. There is no distinction made by Trinity to indicate why the configuration of the ceiling allows welders on the same cars to be tied off but is unsuitable for purposes of the suspension of a lifeline for the touch-up painters. Trinity's argument contains more smoke than substance. The abatement recommended by Simmons is already being provided for other workers on top of the cars in the same department. There has been no reasonable explanation as to why the same protection could not be offered to touch-up painters. The Secretary established a prima facie case that was not rebutted by any credible and objective evidence. Trinity has failed to establish that alternative means of abatement were infeasible. Practical and reasonable means of abatement existed. The Secretary has established a serious violation of § 5(a)(1) of the Act. _Citation No. 2_ _Item 1a; 29 C.F.R. § 1904.2(a)_ The Secretary alleges that Trinity violated § 1904.2(a) by failing to record all recordable illnesses and injuries on the OSHA 200 log in 1986, 1987, and 1988. Section 1904.2(a) provides: (a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200. Trinity concedes that it had a problem at its Bessemer plant. It does not dispute the fact that recordable illnesses and injuries were omitted from the OSHA 200's. The Secretary introduced into evidence Trinity's OSHA 200's for 1986 (Ex. C-6), 1987 (Ex. C-5). 1988 (Ex. C-4), and 1989 (Ex. C-3). Exhibit C-7 is Trinity's First Report of Injury forms. These exhibits establish that Trinity failed to record 27 instances of recordable illnesses or injuries.[[4]] Trinity contends that its failure to record the missing illnesses and injuries was the result of unpreventable employee misconduct. "To prove that defense, an employer must establish that it had work rules that were intended to prevent the violation, that those rules were adequately communicated to its employees, and that the rules were effectively enforced."_Ormet Corporation,_ _ OSAHRC _, 14 DNA OSHC 2134, 2138, 1991 CCH OSHD ¶ 29,254 (No. 85-531, 1991). The employees in question are Jim Daniel and his successor, Festus Pierce. Daniel and Pierce each held the position of safety supervisor. "[W]here a supervisory employee is involved in the violation, the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision." _Daniel Construction Co._, 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH OSHD ¶ 26,027, p. 32,672 (No. 16265, 1982). In the present case, not only were the employees in question supervisory personnel, but they were also safety supervisors. Trinity requires its plants to record all lost time injuries on the OSHA 200 log. Trinity's corporate safety department monitors the plants and checks their records to confirm that all lost time injuries are being recorded (Tr. 367, 602-605). When Trinity discovered safety director Jim Daniel was not properly maintaining accident and injury records in accordance with its policy, it terminated him (Tr. 537, 594-595, 599, 605). The personnel manager for the Bessemer plant, Fred Hull, then interviewed and hired Festus Pierce as plant safety director (Tr. 537). The background check on Pierce reflected that he had worked in the safety department for a division of DuPont and was an experienced safety man (Tr. 537-538). Hull specifically asked Pierce about his knowledge of OSHA recordkeeping requirements and told Pierce one of his first responsibilities would be to go back and correct the records, including the OSHA 200 log (Tr. 538-539). Jerry Riddles, Trinity's corporate safety environmental director, held extensive discussions with Pierce regarding Trinity's safety program. Riddles informed Pierce of what was expected of him (Tr. 596-597): [W]e discussed the reason why the person that was there before was terminated. That I expected him to get the past records up to date. He implied that he had looked at them already because Fred Hull had mentioned then to him and he found some problems. We discussed the corporate procedure on logging of injuries We discussed, you know, what's recordable, what's not recordable. In the conversation, I thought it was clear that he was to got on with getting the records cleaned up and keeping the records straight. Pierce was provided with copies of Trinity's corporate safety manual on recordkeeping and the OSHA guidelines for recording occupational injuries and illnesses (Exs. R-7, R-8, R-9; Tr. 596-597, 601). Pierce later told Hull that the old Iogs were "up to snuff." Prior to the February inspection, Hull questioned Pierce closely regarding the status of the recordkeeping. Pierce assured Hull that everything was correct. Hull had no reason to doubt Pierce (Tr. 539-540). After the inspection, when Trinity learned that the records had not been updated, Pierce was fired for his failure to maintain accurate records (Tr. 540-541, 609). Trinity had written rules intended to prevent the violation of failing to record all recordable illnesses and injuries. These rules were communicated to the person in charge of maintaining the records. When Pierce was hired, he was given copies of Trinity's safety manual and the OSHA guidelines. Hull and Riddles discussed in detail with Pierce what Pierce's duties were as safety supervisor. Trinity also effectively enforced its rules regarding recordkeeping. When Daniel failed to maintain the OSHA records according to Trinity's policy (and OSHA law), he was summarily dismissed. Pierce was on notice when he was hired that noncompliance with the recordkeeping regulations would not be tolerated. The fact that Pierce failed to heed this unmistakable warning does not detract from the efficacy of Trinity's program. When it was discovered that Pierce had lied and had failed to update Trinity's records he, too, was dismissed. Trinity's enforcement of the rules by dismissal of Daniel and Pierce reflects that it is serious about its compliance with the recordkeeping standards. Trinity has established its defense of unpreventable employee misconduct. It was not in violation of 29 C.F.R. § 1904.2(a) for failing to record all recordable illnesses and injuries. _Item 1b: 29 C.F.R. § 1904.2(a)_ Item 1b sets forth four separate and distinct instances which allegedly constitute willful violations of 29 C.F.R. § 1904.2(a). _Item 1b(a)_ Item 1b(a) alleges that Trinity recorded welding flash burns on the OSHA 200 log as injuries rather than illnesses. Trinity's classification was contrary to the instructions on the back of the OSHA 200's. Trinity concedes that the flash burns were recorded as injuries. It does not dispute the fact that the instructions on the back of the OSHA 200 log define "welding flash" as an occupational illness. Trinity contends that it failed to comply with the standard because of the confusing and contradictory history of OSHA's policy on how to record flash burns. Riddles was the safety director of another steel company in Texas when he first encountered the flash burn issue. During that company's first OSHA inspection on June 16, 1976, Compliance Officer William Rogers from the Dallas Area OSHA Office told Riddles that he was incorrectly citing flash burns as illnesses rather than injuries. Rogers explained to Riddles the procedure for recording flash burns (Tr. 611): Well, they're exposure type injuries . . . Well, it all depends on whether it's acute or chronic. Acute being a [sic] instantaneous flash that caused the flashburn . . . If it's chronic exposure, long term, then you log them as--possibly you'd log then as an illness. Riddles was instructed to record flash burns as injuries by OSHA Compliance Officer Ronald Sarnachi, also from Dallas, on January 26, 1977 (Tr. 612). Riddles was working for Trinity at its West Memphis facility on September 27, 1977, when OSHA Compliance Officer Howard Watkins conducted an inspection of the plant. Watkins questioned the correctness of listing some flash burns as illnesses. On October 27, 1978, OSHA Compliance Officer Niles Stromat told Riddles that flash burns should be recorded as injuries (Tr. 614). Trinity was advised by various state labor statistics departments to record all flash burns as injuries (Tr. 615). After Trinity had implemented the policy of recording flash burns as injuries, it was inspected by OSHA on numerous occasions and the issue of improper recordkeeping was never raised, even when the compliance officers reviewed the OSHA 200's (Tr. 369-370, 391-392, 408-409, 414, 616-619). The first indication that Trinity had that its new policy was incorrect was when Simmons inspected Trinity's Bessemer, Alabama, facility in 1988 and told Trinity's Neil Foreman that she thought that flash burns should be recorded as illnesses rather than injuries. No citations were issued for improper recordkeeping as a result of that inspection. Riddles assumed that Simmons had consulted with her supervisor and determined that the flash burns were logged properly (Tr. 460-461, 620). After Trinity received the citations which gave rise to the present case, Riddles sent a memo on April 25, 1989, to all Trinity plants directing them to change their logs to show flash burns as illnesses rather than injuries (Ex. R-10; Tr. 621). The following month, Compliance Officer William Burke reviewed the OSHA 200's at one of Trinity's Dallas plants and advised Trinity that flash burns were being recorded incorrectly as illnesses. Trinity informed Burke that it had just been cited for incorrectly recording flash burns as injuries. Burke replied, "I've never seen it that way" (Tr. 654). Trinity concedes that it was reporting flash burns inconsistent with the instructions on the back of the OSHA 200 log. It asserts that its failure to properly report emanates from inconsistent policy by OSHA in its various offices. It submits that its conduct was not willful since it was simply following OSHA's previous instructions. Willfulness is a state of mind. The Commission has defined and elucidated on the word "willful" in the following manner: A violation of the Act is willful if "it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety._"Simplex Time Recorder Co_., 12 BNA OSHC 1591, 1595, 1984-85 CCH OSHD ¶ 27,456, p. 35,571 (No. 82-12, 1985). Trial of the issue of willfulness focuses on the employer's state of mind and general attitude toward employee safety to a greater extent than would trial of a non-willful violation. _Seward Motor Freight_, 13 BNA OSHC 2230, 2234, 1989 CCH OSHD ¶ 28,509, p. 37,787 (No. 86-1691, 1989). In _Williams Enterprises, Inc., _13 BNA OSHC 1249, 1986-87 CCH OSHD ¶ 27,893 (No. 85-355, 1987), the Commission held: It is not enough to show that an employer was aware of conduct or conditions constituting a violation; such evidence is necessary to establish any violation, serious or nonserious . . . A willful violation is differentiated by a heightened awareness--of the illegality of the conduct or condition and by a state of mind--conscious disregard or plain indifference It is therefore not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation. _Williams,_ 13 DNA OSHC at 1256-1257, 1986-87 CCH OSHD at p. 36,589 _E. L. Jones and Son. Inc.,_ _ OSAHRC _ 14 BNA OSHC 2129, 2133, 1991 CCH OSHD ¶ 29,264 (No. 87-8, 1991). Trinity's violation of § 1904.2(a) was committed with neither an intentional disregard of the Act, nor with plain indifference to employee safety. On the contrary, Trinity was attempting with considerable diligence to comply with what it thought was OSHA's policy. The record establishes that Trinity's attitude was cooperative and attentive to OSHA's instructions. Trinity was faced with diametrically opposed instructions, each coming from different OSHA representatives. It was doing the best it could under difficult circumstances. It did not have the "heightened awareness" of illegality of its conduct that is required for a finding of willfulness. Trinity was not in willful violation of § 1904.2(a). The Company's admitted failure to record the flash burns as illnesses rather than injuries is a technical violation of the standard with little or no impact on the employees' health and safety. "A violation is properly characterized as _de minimis_ here it has only a negligible relationship to safety and health and where it is thus inappropriate to require that the violation be abated or to assess a penalty."_National Rolling Mills Company_, 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1720, 1976 CCH OSHD ¶ 19,280 (No. 7987, 1976). Trinity's violation of § 1904.2(a) for recording flash burns as injuries is classified as _de minimis_. _Item 1b(b)_ Item 1b(b) alleges a willful violation of § 1904.2(a) for failure to assign case or file numbers to entries on the OSHA 200's and the First Report of Injury forms, as required by the instructions for column "(A)" of the OSHA 200. Only the first 46 of the 156 entries on the 1987 log had a case or file number and none of the 1986 entries had numbers assigned. None of the 1987 or 1988 First Report of Injury forms were assigned a case or file number. Trinity asserts the unpreventable employee misconduct defense, charging that Festus Pierce failed in his duties as safety supervisor. There is merit to this defense. Trinity's corporate safety manual, which was provided to Pierce, directs that each entry be given a case number (Ex. R7). Pierce had knowledge of the requirement since Riddles specifically referred him to this section of the manual (Tr. 597). The OSHA guidelines, which were also provided to Pierce, explained the requirement for a case number for each entry (Ex. R-9). Pierce was experienced in safety matters and knew how to maintain OSHA records (Tr. 600, 603). In view of his experience and training, Trinity was justified in its belief that he would follow applicable guidelines. Pierce later informed Hull that he had gotten the records "up to snuff" (Tr. 539-540). Trinity has established that its written safety rules were effectively communicated to Pierce, who was dismissed for his failure to maintain proper records. The employee misconduct defense has been established.[[5]] Trinity was not in violation of § 1904.2(a) for failure to assign case or file numbers to all entries on its OSHA 200's and First Report of Injury forms. _Items 1b(c) and 1b(d)_ Item 1b(c) alleges the willful violation of § 1904.2(a) for failure to enter on the OSHA 200's the number of days missed from work by several employees. The Secretary provided the following list which indicates the dates employees missed and the pages of Exhibits C-3 through C-6 where the lost work days should appear: 7/27/86 Howell, Thomas 448 10/30/86 Meadows, David 455 12/5/86 Christiansen, Ricky 456 1/8/87 Black, Bruce 457 2/20/87 Ivie, Bill 459 4/2/87 Marchant, Michael 460 5/27/87 Payne, Ronald 462 12/14/87 Marshall, R. 469 Item 1b(d) alleges a willful violation of § 1904.2(a) for recording 12 instances of injuries involving days away from work as injuries without lost work days. The Secretary provided the following lists identifying the page of Exhibit C-7 that shows the lost work day injury and the pages of Exhibits C-3 through C-6 where the injury was recorded on the OSHA 200 as an injury without lost work days: Date Names C-7 Log 5/4/87 Grimes, Curtis 124 461 6/11/87 Weathers, Douglas 125 463 7/22/87 Terry, David 127 465 7/27/07 Tiller, Don 129 465 7/29/87 Carter, Joseph 131 465 7/30/87 Crawford, James 133 465 8/3/87 Franklin, William 135 466 3/28/88 Johnson, Howard D. 137 471 Date HAM C-7 Log 6/30/88 Postell, William T. 139 473 8/4/88 Nickless, Gary 116 474 11/23/88 Rogers, Johnny 141 475 10/31/88 Carnes, Johnny 143 474 The unpreventable employee misconduct defense asserted by Trinity is supported by the evidence of record and entities Trinity to prevail (see previous comments on defense). Trinity relied on Pierce to update and correct its records, and Pierce assured Trinity that this had been done. When the noncompliance was discovered, Pierce was fired. Trinity was net in violation of § 1904.2(a) for items (c) and (d) of item 1b. _Citation No. 3_ _Item 29 C.F.R. § 1904.5(c)_ The Secretary alleges that the summary page of the 1986 OSHA 200, Log of Illness and Injuries, was not certified or signed in violation of § 1904.5(c) (Ex. C-6; Tr. 84-85). Section 1904.5(c) provides: (c) Each employer, or the officer or employee of the employer who supervises the preparation of the log and summary of occupational injuries and illnesses, shall certify that the annual summary of occupational injuries and illnesses is true and complete. The certification shall be accomplished by affixing the signature of the employer, or the officer or employer who supervises the preparation of the annual summary or by appending a separate statement to the log and summary certifying that the summary is true and complete. Simmons looked through the records and noted that the last page for 1986 (page 456 of Exhibit C-6) was not signed. Trinity introduced into evidence Riddles' file copy of the 1986 summary (Ex. R-12). Every year Riddles requires each safety supervisor in each Trinity facility to forward to him a copy of that facility's OSHA 200's. Riddles' copy is signed by Jim Daniel (Tr. 693-695). Trinity argues that only the copy of the summary that is posted in accordance with § 1904.5(d)(1)[[6]] must be certified. The plain meaning of § 1904.5(c) does not support this interpretation. That standard requires that the summary be certified, and § 1904.5(d)(1) requires that a copy of the summary be posted. Copies of the OSHA 200's are to be maintained for five years. Therefore, Trinity's 1986 OSHA 200's should have contained a certified summary page. Riddles' signed copy of the summary page is of little probative value. Exhibit C-6, the copy of the 1986 OSHA 200's provided to the Secretary, contains 19 pages, the last page of which is unsigned. Riddles' copy (Ex. R-12) is not a copy of the last page of Exhibit C-6, even though the totals are the same. Exhibit R-12 is identified as "page 1 of 18" at the top. Riddles could not explain the significance of that notation. The records kept at the Bessemer plant contained an uncertified summary page for 1986. Riddles' signed copy of the purported annual summary does not bring Trinity into compliance with the cited standard. The Secretary has established that Trinity was not in compliance with 1904.5(c). Although the 1986 summary had not been signed, the lack of signatures had only a negligible relationship to safety and health. The violation is classified as _de minimis_. _Item 2; 29 C.F.R. § 1904.5(d)(1)_ The Secretary alleges Trinity was in violation of § 1904.5(d) (1) based upon the claim that "the OSHA Form 200 summary for calendar year 1988 was not posted an bulletin boards in the plant where notices are normally posted," but instead " was posted in the safety office." Section 1904.5(d)(1), in pertinent part, provides: Each employer shall post a copy of the establishment's summary in each establishment in the same manner that notices are required to be posted under § 1903.2(a)(1) of this chapter. The summary covering the previous calendar year shall be posted no later than February 1 and shall remain in place until March 1. Section 1903.2(a)(1), in turn, provides: Each employer shall post and keep posted a notice or notices, to be furnished by Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced or covered by other material. The Secretary alleges that the posting in the safety/personnel office was in violation of the standard because not all employees routinely went into the office. Safety glasses and ear plugs were provided at the office, but ear plugs were also provided in the plant. According to Simmons, "They wouldn't necessarily have to go in there. And there were bulletin boards out in the plant that had posters and time clocks that would have been a more appropriate place" (Tr. 85). Exhibit C-12 shows the time clock and bulletin board located in the painting area (Tr. 87). Testimony regarding the location of the OSHA Form 200 summary for calendar year 1988 was presented by Simmons, Hull and Goodwin. Simmons testified that it would have been "more appropriate" to have posted the OSHA 200 summary an the "bulletin boards out in the plant that had posters and time clocks" (Tr. 85). She contended that the personnel/safety office was a less appropriate location for posting the OSHA 200 summary because, while "employees could come into the safety office . . . it was conceivable that maybe not all would come in" (Tr. 85). Further, she maintains that the paint area is "the location where notices to employees are customarily posted. . . because there's a lot of notices posted here" (Tr. 97). Finally, she stated that Hull and Bodiford acknowledged that employee notices are customarily posted in this area (Tr. 87-88). There are approximately ten time clocks located throughout the plant and not all of the clocks are in areas suitable for posting notices. Trinity posts notices of a temporary nature at the time clocks. Notices of a more permanent nature are posted in the safety office (Tr. 518, 720-721). Trinity contends that the personnel/safety office is a conspicuous central point in the plant (Tr. 518-521, 720-721). Whether for safety equipment or a personnel matter, "everyone would . . . very likely come in there in a week's time (Tr. 521). Trinity also contends that the posting of the OSHA 200 summary in the personnel/safety office ensured against its removal and defacement (Tr. 519-210). Hull and Goodwin testified that the personnel/safety office, as compared to the time clocks, was the superior location for the OSHA 200 summary to "make sure it would stay up the whole month," to "make sure that at some point during the month it would be seen by all employees," and to "make sure it would not be altered, defaced or covered by other materials," as required by § 1903.2(a)(1) (Tr. 521-522, 720-721). The cited standard does not require that the summary be posted in the most conspicuous place, or at each place where notices are posted, or at a place where employees will view it on a daily basis. The standard required that the summary be posted "in a conspicuous place where notices are customarily posted." The undisputed evidence was that "permanent notices" such as immigration act notices, wage and hour materials, and nondiscriminatory policy announcements were posted in the safety/personnel office (Tr. 518). Any employee wishing to review the summary would know where to find it and would have ready access to it. Trinity was not in violation of § 1904.5 (d) (1) . _Item 3; 29 C.F.R. § 1910.22(a)(1)_ The Secretary alleges that "elevated walkways were cluttered with materials used for work" and, therefore, Trinity violated 29 C.F.R. § 1910.22(a)(1), which provides: (a) _Housekeeping._ (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition. Compliance Officer Bailey observed the sill welding area where platforms were built up beside the rail cars. He noted that several items, including hand tools, pieces of steel, hosing, and banding material were strewn on the walkways (catwalks) of the platforms. Employees were working in the area (Ex. C-13; Tr. 110-112). Employees work from the platforms to install side sill enforcements and cross ridge tie plates on the rail cars (Tr. 724). Trinity asserts the greater hazard defense, claiming that it would be more hazardous to its employees if they were required to keep the walkways clear of tools and materials. "To prove a greater hazard defense, an employer must show that (1) the hazards of compliance with a standard are greater than the hazards of noncompliance, (2) alternative means of protection are unavailable, and (3) a variance was unavailable or inappropriate." _Lauhoff Grain Co_., 89 OSAHRC 15/A3, 13 BNA OSHC 1084, 1088, 1987 CCH OSHD ¶ 27,814 (No. 81-984, 1987). Trinity failed to establish any of these three elements of the defense. Trinity offered no proof regarding the unavailability or inappropriateness of a variance. Its only evidence touching upon alternative means of protection was provided by its general superintendent of materials, Terry Goodwin, who stated that he know of no alternative means of _installing_ the side sill enforcements and cross ridge tie plates other than from the catwalks (Tr. 725). The only evidence adduced regarding the greater hazard of compliance was Goodwin's testimony (Tr. 725-726). Q. Now, in your opinion and having done the work up there, would it be more or lose hazardous for these materials that are going to be installed to be brought up one by one or to be stored up here on the catwalk? A. The one by one. Q. Same question with regard to the tools. Having done this job which would be more hazardous, to lay the tool on the catwalk or otherwise have it accessible to you or have the tool brought up only when you're going to use it and then return it to the floor? A. I'd say on the one by one--bring it up on an individual basis. No explanation is offered as to why bringing the tools and materials up on an as needed basis is more hazardous than having those items strewn about on an elevated walkway where employees had to work. It is not intuitively perceived as a greater hazard. Trinity has failed to rebut the Secretary's _prima_ _facie_ case of an "other" than serious violation of § 1910.22 (a) (1) . _Docket No. 89-2317 _ _Citation No. 1_ _Item 1; 29 C.F.R. § 1910,106(b)(6)_ The Secretary alleges Trinity was in violation of § 1910.106(b)(6) because "[s]ources of ignition were not eliminated or controlled where the presence of flammable vapors was possible." The standard states: (6) _Sources of ignition_. In locations where flammable vapors may be present, precautions shall be taken to prevent ignition by eliminating or controlling sources of ignition. Sources of ignition may include open flames, lightning, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, and mechanical), spontaneous ignition, chemical and physical chemical reactions, and radiant heat. On February 8 and 9, 1989, Compliance Officer Horace McCann observed employees spray painting in the primer area with trailer train low vac, a yellow paint (Ex. C-8) . An open flame heater was located 35 to 40 feet from where the yellow paint was being sprayed (Ex. C-15; Tr. 170-172). The heater was operating during the entire shift (Tr. 146). Employees also sprayed within 20 to 30 feet of the heater using red or rust colored primer (Tr. 146, 162-163, 795). Section 1910.106(a)(19) defines "flammable liquid" as a liquid having a flash point below 100 degrees Fahrenheit. The material safety data sheet for the yellow paint gives the flash point as 60 degrees Fahrenheit and states that "vapors from flammable/explosive mixtures in air" (Ex. C-8). Trinity contends that the standard is inapplicable to the conditions as they existed at the time of the inspection. It submits that § 1910.106(b)(6) is a standard that applies to "Tank Storage." It states that the drums of paint observed in the area were for immediate use and were not being stored in the area. McCann stated that he observed 10 to 12 drums stored in the finishing area (Tr. 242). Goodwin testified that Trinity has no storage tanks for combustible liquids in the primer area. Paint is used as it is brought in, and it is not stored in the area (Tr. 713). Trinity also argues that even if it had been cited under the applicable standard, § 1910.107(c)(2). it would still prevail. Section 1910.107(c)(2) provides: (2) _Minimum separation._ There shall be no open flame or spark producing equipment in any spraying area nor within 20 feet thereof, unless separated by a partition. McCann estimated the distance from the heater to the area where paint was being sprayed to be at least 35 feet from the heater (Tr. 243). Furthermore, the Secretary offered no evidence that the primer area was a "spraying area" within the meaning of § 1910.107 (a) (2), which provides that a spraying area is: Any area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits are present due to the operation of spraying processes. The Secretary offered no proof that "dangerous quantities" of flammable vapors were present. The Secretary has failed to establish a violation of the cited standard at § 1910.106(b)(6), or the more appropriate standard, 1910.107(c)(2). _Item 2: 29 C.F.R. § 1910.134(e)(5)(i)_ The Secretary alleges that Trinity violated § 1910.134(e)(5)(i) based upon two alleged instances in which "(r)espirators were worn when conditions . . . prevented a good face seal." The citation described the conditions as follows: (a) Primer and Interior painting areas - where employees painting were observed wearing respirators with full beards. One employee was required to enter a confined space and paint wearing a respirator over a full beard. (b) One employee was observed wearing a disposable respirator under an airline respirator wearing a beard. In pertinent part, § 1910.134(e)(5)(i) provides: (i) Respirators shall not be worn when conditions prevent a good face seal. Such conditions may be a growth of beard, sideburns, a skull cap that projects under the facepiece, or temple pieces of glasses. McCann observed some employees with full beards in areas where spray painting was being conducted (Tr. 172). The growth of beard on some of the employees was greater than a quarter inch long (Tr. 173). McCann observed an employee, Ernest Watford, in the finishing area who was wearing a disposable respirator under an air line respirator (Tr. 174, 176). Watford wore the disposable respirator in the winter time to keep the cold air off his face (Tr. 177). McCann believed that the beards and the disposable respirators prevented a good face seal (Tr. 173-174). Sanders Melton, one of the employees who wore a disposable respirator, received 3M respirator training prior to the OSHA inspection (Ex. R-4; Tr. 482). Melton believed that as a result of his training, he was able to determined whether he had a good face seal (Tr. 485). Employees who wore respirators were not allowed to have more than one or two days' growth of beard (Tr. 464, 486). McCann's opinion that the employees were not getting a good face seal is not supported by any tests or questioning of the employees. The standard states that conditions that prevent, a good face seal "may" include "a growth of beard." Wearing a beard with a respirator is not a_per se_ violation of the standard. Some evidence must be adduced to establish that the beards of the employees and the disposable respirators prevented a good face seal. The Secretary failed to present any such evidence. Trinity was not in violation of § 1910.134(e)(5)(i). _Item 3: 29 C.F.R. § 1910.141(g) (2)_ The Secretary alleges that "[e]mployees were permitted to consume food or beverages in area(s) exposed to toxic materials" in violation of § 1910.141(g) (2). This standard provides that: No employee shall be allowed to consume food or beverages in a toilet room nor in any area exposed to toxic material. "Toxic material" is defined as § 1910.141(a) (2): * * * [M]aterial in concentration or amount which exceeds the applicable limit established by a standard, such as § 1910.1000 and § 1910.1001 or, in the absence of an applicable standard, which is of such toxicity so as to constitute a recognized hazard that is causing or is likely to cause death or serious physical harm. McCann observed employees eating and drinking around an open flame heater. The employees did not wash their hands before beginning lunch. During lunch, the employees wore their work overalls (Ex. C-15, Photo R1-F13; Tr. 145-147, 179-180). McCann stated that he observed overspray on the employees work overalls and on their lunch sacks (Tr. 180). On cross-examination McCann conceded that no overspray was visible in the photographic exhibits (Tr. 312). The toxic materials to which the eating area was exposed were the paints and their contents, such as MEK, toluene, butyl alcohol, xylene, titanium dioxide, lead and arsenic (Tr. 309-314). The area in which paint was sprayed, the primer area and the finishing area, were each approximately 50 feet away from the eating area (Tr. 181). Although McCann acknowledged that "there [are] standards that govern or establish permissible exposure limits" (Tr. 308) for the substances at issue, he essentially assumed a violation of the standard because the employees had paint on their coveralls and did not change clothes while they were eating (Tr. 180). The Secretary failed to demonstrate that the materials in the area where the employees were eating lunch were at a level which would pose a risk to their health. This was part of her burden of proof. _Lone Star Steel Company_, 81 OSAHRC 105/E7, 10 BNA OSHC 1228, 1235, 1981 CCH OSHD ¶ 25,825 (Nos. 77-3893 & 77-3894, 1981). This burden is discharged by the Secretary's demonstration that the material in question is in such a "concentration or amount which exceeds the applicable limit, such as § 1910.1000 and § 1910.1001, or, in the absence of an applicable standard, which is ... a recognized hazard that is causing or likely to cause death or serious physical harm." § 1910.141 (a) (2) The Secretary has failed to prove a violation of the cited standard. The allegation is vacated. _Item 4: 29 C.F.R. § 1910.141(g)(4)_ The Secretary alleges that Trinity violated § 1910.141(g)4) by allowing employees to store their sack lunches along the walls in the area which was the subject of the prior allegation (item 3). The cited standard provides that: No food or beverages shall be stored in toilet rooms or in an area exposed to a _toxic material._ (Emphasis added) The Secretary had the burden to demonstrate the presence of a "toxic material," as that term is defined in § 1910-141(a)(2). _Lone Star Steel Company,_ _supra_, 10 BNA OSHC at 1235. The lack of evidence in support of the Secretary's position such a finding. The citation must be vacated. _Item 5: 29 C.F.R. § 1910 151(c)_ The Secretary alleges that Trinity failed to provide suitable facilities for quick drenching or flushing of the eyes and body for employees exposed to chemicals in the painting department. The standard Trinity allegedly violated, § 1910.151(c) provides: (c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use. McCann observed employees in the paint area mixing, spraying, and generally handling paints (Tr. 164, 182, 188). These paints contained injurious corrosive materials (Exs. C-8, C-17, C-18). McCann testified that the closest source of water was 40 to 50 yards away and consisted of pedal-operated water fountain suitable only for washing hands (Tr. 199). McCann stated that Bodiford cold him that this was the only source of water available (Tr. 810-311). McCann himself did not take an inventory of water sources (Tr. 822). Bodiford denied that he ever told McCann that the water fountain was the only source of water in the area (Tr. 870-871). Terry Goodwin conducted an inventory of the sources of running water in the painting and primer areas and came up with the following inventory: "two restrooms with one lavatory each in it. One restroom with three lavatories. A restroom with two. The paint office had one lavatory in it. There was one restroom with eight lavatories. Two inspector's offices with one lavatory each. Three water coolers or--or drinking fountain and three water hoses" (Tr. 721). Goodwin conducted a test to gauge the amount of time needed to reach running water if flushing or drenching was required. "I determined that from any place in the paint shop that you could be within [sic] the fresh running water within 30 seconds, and typically, it was 15 to 20 seconds to any of them" (Tr. 722). In _Gibson Discount Center, Store No. 15_, 78 OSAHRC 30/C1, 6 BNA OSHC 1526, 1527, 1977-78 CCH OSHD ¶ 22,669 (No. 14657, 1978), the Commission stated: We agree with respondent that this standard does not require water facilities to be within any specific linear distance. Rather, the distance permitted depends on the particular circumstances; for example, the strength of the corrosive material and the configuration of the work area. See Plessy, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD para. 18,907 (No. 946, 1974). (Footnote omitted) Under Commission rationale, the sources of water referred to by Trinity would be close enough to satisfy the requirement that facilities be provided in the work area.[[7]] The question for determination is whether the sources of water were "suitable" facilities. Trinity cites several cases which reflect that the Commission and its Administrative Law Judges have held that garden hoses, water fountains, sinks, showers and dip tanks are sufficient to comply with the standard. These decisions have eroded the intent of the standard to such a degree that it is difficult to ever find a violation of its provisions. Every plant has sources of water. The standard, however, requires that the water source be _within _the employee's work area and be _suitable_ for quick _drenching_ or _flushing_ of the eyes. In essence, following the decisions cited by Trinity means that if there is a source of running water available in the plant, there can be no violation. The word "suitable" is not without some meaning. Compliance Officer McCann testified that a source of fresh running water, under constant pressure, that you can get in the eyes is sufficient to comply with the standard (Tr. 316-317). Restroom lavatories are often dirty and would present a source of contaminated water when filled so that an employee can place his head in the sink to quick flush. Drinking fountains this Judge is familiar with have very low water pressure and have no way the eyes could be submerged for a quick flush. The same detriment arises in the use of a water hose. The standard's purpose is to render aid to the employee at the earliest time. Where the Secretary establishes a need for quick drenching or flushing, as in this case, the burden is on the employer to prove that he has _suitable_ facilities.[[8]] A need has been established by the Secretary. Sources of fresh running water referred to by Trinity are not deemed suitable for quick drenching or flushing of the eyes. Trinity has merely recited sources of water--it has not proven they are suitable for purposes of this standard. Since the sources of water are not within the immediate work area, Trinity must also establish that the location of the facilities have been communicated to the employees. They must know where to go in the event of an emergency. A few seconds' delay in determining where to go could be crucial. Trinity has not indicated where employees were directed to go to in case of an emergency. It has simply shown sources of water. Trinity was in "other" violation of § 1910.151(c). _Item 6: 29 C.F.R. § 1200(fl(4)(i)_ The citation and complaint allege a violation of 29 C.F.R. § 1910.1200(f)(4)(i). There is no such standard. Curiously, the Secretary did not amend this error and even cites that nonexistent standard again in her posthearing brief (Secretary's Brief, pg. 11). Since the standard does not exist, there can be no violation. The Secretary alleges that Trinity stored hazardous chemicals, in the form of paints, in containers which were not properly labeled to identify the associated hazards. Apparently, the Secretary meant to cite § 1910.1200(f)(1) which provides: (f) _Labels and other forms of warning_. (1) The chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the following information.... The basis of the allegation is McCann's observation that some of the paints the employees were using were coming out of containers that were not labeled (Tr. 120). Trinity established that the unlabeled containers were used for mixing paint that was to be used that day (Tr. 527-528). Trinity correctly asserts that containers used for temporary, someday use of chemicals are exempt from the labeling requirement. Section 1910.1200(f)(7) provides: (7) The employer is not required to label portable containers into which hazardous chemicals are transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer. Trinity was not in violation of § 1910.1200(f) (1) (which it was not cited for). _Item 7: 29 C.F.R. § 1910.1200(g)(1)_ Item 7 alleges that Trinity did not have a material safety data sheet ("MSDS") for yellow paint, as required by § 1910.1200 (g(1). Section 1910.1200(g)(1) provides: (1) Chemical manufacturers and importers shall obtain or develop a material safety data sheet for each hazardous chemical they produce or import. Employers shall have a material safety data sheet for each hazardous chemical which they use. When McCann asked for the MSDS for that paint, Hull gave McCann a technical data sheet for the paint but not the MSDS (Ex. C-16; Tr. 136-138). During his walkaround inspection on February 9, 1989, McCann requested a copy of the MSDS for the yellow paint Trinity was using on rail cars (Tr. 136, 345). Hull and Bodiford told McCann they would look up the MSDS when they returned to the office (Tr. 137). When they returned to the office at the end of the day on February 9, Hull and Pierce went to look for the MSDS on the yellow paint. They spent ten to fifteen minutes looking for the MSDS under the name "Koppers" because they thought that was the brand name of the paint (Tr. 531-532). When they could not quickly find the MSDS, they provided the compliance officers with a copy of the technical data sheet on the paint and promised to locate the MSDS and send it to OSHA (Tr. 138-139, 532). After McCann left the plant, Hull discovered that he had been looking for the MSDS under the brand name "Koppers" when actually the brand name the MSDS was listed under was "Kop-Coat." The same day of the inspection Hull located the MSDS and forwarded it to the OSHA office (Ex. C-8; Tr. 533-535). It is undisputed that the MSDS was on the premises the day of the inspection. The standard only requires that "Employees shall have a material safety data sheet for each hazardous chemical which they use." Trinity has shown that it had the MSDS and that it was not in violation of § 1910.1200(g)(1). _Penalties_ The Commission is the final arbiter of penalties in all contested cases. _Secretary v. OSAHRC And Interstate Glass Co.,_ 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the appropriate penalty. The gravity of the offense is the principal factor to be considered. _Nacirema Operating Co_., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972). Trinity employs more than 740 employees at its Bessemer plant (Tr. 206-207). The Bessemer plant had no previous history of citations (Tr. 207-208). There was no evidence that, once the compliance officers obtained a warrant, Trinity was anything less than cooperative. The likely result of a fall of 15 feet onto a concrete surface would be death or serious physical injury, including a concussion and broken bones. Upon consideration of this and other relevant factors, a penalty of $600 is deemed appropriate for the violation of section 5(a)(1) (Item 1 of Citation No. 1, Docket No. 89-2316). No penalty is assessed for the _de minimis_ violation of § 1904.2(a) (Item 1b(a) of Citation No. 2, Docket No. 89-2316). No penalty is assessed for the "other" than serious violation of § 1904.5(c) (Item 1 of Citation No. 3, Docket No. 69-2316). No penalty is assessed for the "other" than serious violation of § 1910.22(a)(1) (Item 3 of Citation No. 3, Docket No. 89-2316). A penalty of $630 is considered appropriate for item 5 of the serious citation (29 C.F.R. § 1910-151(c)) issued in Docket No. 89-2317. _FINDINGS OF FACTS AND CONCLUSIONS OF LAW_ The foregoing decision constitutes the findings of facts and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. _ORDER _ Based upon the foregoing decision, it is hereby ORDERED: (1) That Citation No. 1 of Docket No. 89-2316, alleging a serious violation of 5(a)(1) of the Act, is affirmed and a penalty of $600 is assessed; (2) That item 1a of Citation No. 2 of Docket No. 89-2316, alleging a willful violation of 29 C.F.R. § 1904.2(a), is vacated; (3) That item 1b(a) of Citation No. 2 of Docket No. 89-2316, alleging a willful violation of 29 C.F.R. § 1904.2(a), is affirmed as _de minimis_ and no penalty is assessed; (4) That items 1b(b), 1b(c) and 1b(d) of Citation No. 2 of Docket No. 89-2316, alleging violations of 29 C.F.R. § 1904.2(a), are vacated: (5) That item 1 of Citation No. 3 of Docket No. 89-2316, alleging a violation of 29 C.F.R. § 1904.5(c), is affirmed as _de minimis_ and no penalty is assessed; (6) That item 2 of Citation No. 3 of Docket No. 89-2316, alleging a violation of 29 C.F.R. § 1904.5(d)(1), is vacated; (7) That item 3 of Citation No. 3 of Docket No. 89-2316, alleging a violation of 29 C.F.R. § 1910.22(a)(1), is affirmed and no penalty is assessed; (8) That item 4 of Citation No. 3 of Docket No. 89-2316 is vacated; (9) That items 1, 2, 3, 4, 6 and 7 and proposed penalties of Citation No. 1 of Docket No. 89-2317 are vacated; and (10) That item 5 of Citation No. 1 of Docket No. 89-2317 is affirmed and a penalty of $630 is assessed. JAMES D. BURROUGHS Judge FOOTNOTES: [[1]] Citation no. 3, item 3. No. 89-2316 (the housekeeping violation) and Citation no. 1, item 5, No. 89-2317 (the first aid eyewash facility violation). [[2]] The cited standard, found in Subpart D-- Walking-Working Surfaces, provides: § 1910.22 General requirements. (a)/Housekeeping/ All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition. [[3]] The employee complaint that prompted the inspection stated. "6. [Sill] weld area has catwalk that employees work from and where large amounts of material such as []re-enforcement stiff[e]ners, belly bands, roping irons and horseshoes are placed. This material is placed by crane and is often unstable and could fall on employ[]ees below." While employees seemed more concerned with the hazard overhead than that underfoot, the parities addressed only the tripping hazard. [[4]]/RSR Corp. v Donovan, /747 F.2d 294, 303 (5th Cir. 1984); /Quality Stamping Prods., v. OSHRC,/ 709 F.2d 1093, 1099 (6th Cir. 1983);/BPR, Inc. v. Secretary of Labor/, 643 F.2d 890, 895 (1st Cir. 1981); /Cleveland Consol., v OSHRC, /648 F.2d 1160, 1165 (5th Cir 1981); [[5]] Some of Trinity's lawyer's questioning in the transcript and some of his argument in the brief leave the impression that an employee would be forced to make multiple trips between the walkway and the floor, but no one testified to that effect. The employee complaint suggests that materials were lifted by crane, and at one point, Trinity's brief seems to envision the same thing, but the record contains no direct testimony on this either. [[6]] Goodwin testified that he knew of no way to go about installing the railcar parts other than working from the raised walkway, but this statement does not relate to the real issue: the existence of any alternative means to protect employees from tripping on the walkway while still allowing them to do their job. [[7]] Trinity further contends that it was infeasible for the employees to perform their work from anywhere other than the walkway. But that is not at issue.The Secretary does not claim that Trinity violated the Act by requiring its employees to work from the walkway, or that the only way to abate the hazard is to have employees work from some other location. The Secretary does contend that Trinity has a duty to make the walkway a safe place to work. [[8]] Found in Subpart K-Medical and Firm Aid, the cited standard provides: § 1910.151 Medical services and first aid. (c) Where the eyes or body of any person may he exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use. [[9]] Based on Goodwin's testimony, judge found that these sources of water if "suitable" under the standard, would be considered "within the work area for immediate" emergency use" under Commission precedent. [[10]] /E.I du Pont de Nemours & Co./, 10 BNA OSHC 1320,1982 CCH OSHD ¶ 25,888 (No. 76-2400, 1982) (standard safety shower found to be suitable); /Gibson Discount Center,/ Store No. 15, 6 BNA OSHC 1526, 1978 CCH OSHD ¶ 22,669 (No. 14657, 1978) (citation vacated for failure to prove that water source 35 feet away violated standard); and /Idaho Travertine Corp/, 5 BNA OSHC 1504, 1976-77 CCH OSHD ¶ 21,090 (No. 1134, 1976) (specifically accorded the precedential value of an unreviewed judge's decision). [[11]] /E.g., Bridgeport Brass Co/., 11 BNA OSHC 2255, 1984-85 CCH OSHD ¶ 27,054 (No. 82-4399, 1984) (citation vacated because employer had an actual eyewash fountain). [[12]] That standard, found in Subpart G-Occupational Health and Environmental Control, provides: *§ 1910.94 Ventilation.* ..... (d) /Open surface tanks/- -... (9) /Personal protection./... (vii) Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body. there shall be a supply of clean cold water. The water pipe (carrying a pressure not exceeding 25 pounds) shall be provided with a quick opening valve and at least 48 inches of hose not smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body. [[1]] The Secretary withdrew item 4 of the "other" citation in Docket No. 89-2316 (Tr. 9). [[2]] Even though the Secretary repeatedly alleged a violation of § 1910.1200 (f) (4) (i), it is a nonexistent standard. [[3]] Section 1904.7(a) provides: (a) Each employer shall provide upon request, records provided for in § 1904.2, 1904.4, and 1904.5 [OSHA Forms 200 (and annual summary) and 101], for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the [A]ct . . . . [[4]] The Secretary provided the following helpful chart as a digest of the unrecorded illnesses and injuries. The number under "C-7" indicates the page number of the First Report of Injury on which the recordable injury appears. The number under "Log" indicates the page number of the log on which the illness or injury should have been recorded but was not. Date Name C-7 Log 8/31/87 Pilot, Willie 160 467 7/27/87 Hurst, Betty 161 465 6/l/87 Hayes, Robert 163 462 5/27/87 Lockhart, Lonzo 165 462 5/21/87 Fraser, James 168 461-462 5/20/87 Harrison, Terry 170 461 5/20/87 Pierson, Jeffrey 171 461 5/19/87 Smith, Danny 100 461 5/11/87 Pitts, Willis K. 172 461 4/20/87 Bohannon, Mitchell 176 460 4/14/87 Brown, Jesse L. 178 460 4/6/87 Donaldson, Leottamus 174 460 3/12/87 Florence, Sandra G. 111 459 2/6/07 Mahand, Leonard 179 458 2/12/87 Cotton, Darryl 113 458 11/28/88 Fletcher, Thomas 148 475 10/3/86 Matthews, Elmer 150 474 7/29/88 Darden, Alvin 119 473 7/28/88 Lacey, Dwayne 109 473 6/18/8C Castle, Nina 105 473 6/20/88 Cole, Johnny R. 152 473 6/7/88 Watley, Donald 154 473 31/31/88 Brasher, Bonnie 156 471 3/5/88 Barker, Eugene 157 471 3/27/87 White, Donald 158 471 3/22/86 Reese, Joseph 102 471 [[5]] The previous comments on Pierce and unpreventable employee misconduct made under item 1, Citation No. 2, are equally applicable to this issue. [[6]] Section 1904.5(d)(1), in pertinent part, provides: (d) (1) Each employer shall post a copy of the establishment's summary in each establishment in the same manner that notices are required to be posted under § 1903.2(a)(1) of this chapter . . . . [[7]] What constitutes an employee's work area? The commission's rationale takes a liberal view in interpreting the work area. If employees are working in a specific area of a plant, is his work area the whole plant? Under Commission case law, the work area is insignificant. The importance is placed on the time to reach the water facilities; however, section 1910.151(c) makes no reference to any specific time frame. The facilities are to be _within the work area_ for _immediate use_. The intent of the standard is clear that the facilities should be in the vicinity of the worker. He should not have to stop and think where sources of water are located in the plant. [[8]] The Secretary has the burden to prove the applicability of the standard. In this case, the burden is met by establishing that "the eyes or body" of an employee "may be exposed to injurious corrosive materials." The burden is on the employer to show he has suitable facilities. Even if the Secretary has this additional burden, Trinity has failed to show that the sources of water are fresh, under constant pressure (Tr. 316-317), and sufficient to provide ample quantities of water to comply with the _quick_ drenching or flushing requirement.