SECRETARY OF LABOR, Complainant, v. UNITED TECHNOLOGIES, PRATT & WHITNEY, Respondent. Docket No. 90-0660 _ORDER _ This matter is before the Commission on a Direction for Review entered by Chairman Edwin G. Foulke, Jr. on November 25, 1991. The parties have now filed a Stipulation and Settlement Agreement. Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure. Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order, and we set aside the Administrative Law Judge's Decision and Order to the extent that it is inconsistent with the Stipulation and Settlement Agreement. This is the final order of the Commission in this case. See 29 U.S.C. §§ 659(c), 660(a), and (b). Edwin G. Foulke, Jr. Chairman Donald G. Wiseman Commissioner Velma Montoya Commissioner Dated: November 18, 1992 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY, Respondent. OSHRC Docket No. 90-0660 APPEARANCES Donald R. McCoy, Esquire, Associate Regional Solicitor, U.S. Department of Labor, Ft. Lauderdale, Florida, on behalf of complainant. W. Scott Railton, Esquire, Reed, Smith, Shaw and McClay, Washington, D.C., on behalf of respondent. _DECISION AND ORDER_ SALYERS, Judge: Pratt & Whitney Aircraft Group (Pratt & Whitney), a division of United Technologies Corporation, was issued a citation on January 18, 1990, charging nine alleged serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act). The citation was issued pursuant to an inspection conducted by OSHA Industrial Hygienist Peter Foreman, who was assigned the inspection following an incident that occurred on August 23, 1989, when two Pratt & Whitney employees were splashed with a cyanide solution from a chemical tank. Item 1 alleges a serious violation of 29 C.F.R. § 1910.94(d)(9)(i) for failing to instruct all employees working in and around open-surface tank operations as to the hazards of their respective jobs, and in the personal protection and first aid procedures applicable to those hazards. Item 2 alleges a serious violation of 29 C.F.R. § 1910.132(a) for failing to provide and to require the use of protective head equipment where employees were exposed to the hazard of potential head injuries. Item 3 alleges a serious violation of 29 C.F.R. § 1910.132(a) for failing to provide and to require the use of protective clothing and equipment where employees were exposed to chemical hazards. Item 4 alleges a serious violation of 29 C.F.R. § 1910.133(a)(1) for failing to require the use of protective eye and face equipment where there was a reasonable probability of injure that could be prevented by such equipment. Item 5 alleges a serious violation of 29 C.F.R. § 134(e)(e) for failing to prepare written procedures covering safe use of respirators in dangerous atmospheres that might be encountered in normal operations or in emergencies. Item 6(a) alleges a serious violation of 29 C.F.R. § 1910.145 (c)(2)(i) for failing to use caution signs to warn employees entering the plating shop that it was a chemical hazard area. Item 6(b) alleges a serious violation of 29 C.F.R. § 1910.145(c)(3) for failing to post safety instruction signs in the plating shop where there was a need for general instructions and suggestions relative to safety measures. Item 7 alleges a serious violation of 29 C.F.R. § 1910.145(f)(5) for failing to use danger tags on the energy sources and controls for the process solution pump for the tank involved in the splashing incident which gave rise to this case. Item 8(a), alleging a serious violation of 29 C.F.R. § 1910.1200(f)(5)(i), was withdrawn by the Secretary in her post-hearing brief and will be vacated by the undersigned (Secretary's brief, pp. 24-25). Item 8(b) alleges a serious violation of 29 C.F.R. § 1910.1200(f)(5)(i) for failing to have each container in the workplace labeled, tagged or marked with the appropriate hazard warning. Item 8(c) alleges a serious violation of 29 C.F.R. § 1910.1200(f)(8) by removing or defacing existing labels on incoming containers of hazardous chemicals. Item 9 alleges a serious violation of 29 C.F.R. § 1910.1200(h) for failure to provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard was introduced into their work area. The incident which gave rise to the present case occurred at Pratt & Whitney's plant located in West Palm Beach, Florida. Approximately 8,000 employees work at that plant, which is primarily a research and development facility for jet and rocket engines (Tr. 1117, 1119). Some manufacturing work goes on there (Tr. 1118). The employees are mostly engineers and technicians; there are approximately 1,300 hourly positions at the plant (Tr. 1119). The plating shop, which is the focus of this case, is located in a rectangular room. Two of its sides are approximately 150 feet long. No dimension was given for the other two sides (Tr. 1120). The plating shop at the time of the inspection contained eight rows of open-surface tanks. The eight rows were designated with the letters A through H. Each row contained six to nine tanks. Each tank in a row would be designated by its row letter and the tank's number in the row, e.g., A-1, A-2, A-3, etc. (Tr. 1120-1121). Some of the tanks contained chemical solutions and others were rinse tanks (Tr. 1122). In the summer of 1989, Pratt & Whitney began the process of relocating the plating lines (Tr. 23, 1141). This involved emptying out the tanks, moving pipes and relocating the tanks (Tr. 23, 1131-1132). This renovation process was going on when the splashing incident occurred on August 23, 1989. On that day, William Mousseau and Harry Brockett, both maintenance pipe fitters for Pratt & Whitney, were in the plating shop, discussing their next assignment. Mousseau estimated that they were standing eight to nine feet from the tank designated as E-3[[1]] (Tr. 21, 38, 118). The company's "Safety Engineers Investigation Report," introduced into evidence as Exhibit C-2, states that Mousseau and Brockett were standing "approximately three to five feet west of the tank." While they were talking, an electrician, Donald Stoffel, was working on the wiring of the tank's pump. At that time, the pump was disconnected from a filter unit adjacent to the tank. Stoffel momentarily energized the pump (bumped it) to check its rotation. Because the pump outlet was not connected to the filter unit, some of the tank's solution discharged, splashing Mousseau and Brockett. The solution contained potassium silver cyanide and potassium cyanide, known as "silver strike solution" (Ex. C-2, Tr. 40-41, 129). Mousseau was wearing blue jeans, a shirt, socks and sneakers. He was splashed on one calf and foot. Mousseau felt a burning sensation on his leg and went to a nearby sink and rinsed off his leg (Tr. 41, 43). Dale Seams, a solution technician, happened by and told Mousseau that mere rinsing of his leg was inadequate and that he needed to take a shower. Mousseau did so and then reported to the medical station (Tr. 42-43). Mousseau was examined by a nurse, Ida, and the company doctor, Dr. McCurdy. Mousseau was released from the medical station but was then called back. From there Mousseau was taken to the emergency room at Palm Beach Gardens Hospital (Tr. 43-45). Brockett was splashed with the "silver strike solution" from the back of his neck down to his socks (Tr. 129). One of the platers walked by and told Brockett, "[T]hat's silver cyanide....that stuff will kill you, that's deadly stuff in that, deadly poison..." (Tr. 130). Upon hearing this, Brockett "panicked" and ran out of the plating area. Brockett got on his bicycle and rode all the way back to the maintenance shop to shower off. When he arrived there, he discovered that the shower was disconnected. Brockett returned to the plating area, where he was able to shower (Tr. 131). At that time Brockett felt a slight tingling sensation. He reported to the medical station and was released. He was then ordered back to the medical station and was taken from there to the hospital along with Mousseau (Tr. 132-133, 140). _ITEM 1: 29 C.F.R. § 1910.94(d)(9)(i) _ 29 C.F.R. § 1910.94(d)(9)(i) provides: All employees working in and around open-surface tank operations must be instructed as to the hazards of their respective jobs, and in the personal protection and first aid procedures applicable to these hazards. A._Res Judicata_ Pratt & Whitney argues that the Secretary is barred from bringing this charge by res judicata. Pratt & Whitney bases this defense on a 1986 Review Commission decision, _Pratt & Whitney Aircraft Group, Division of United Technologies Corporation,_ 12 BNA OSHC 1770, 1986 CCH OSHD ¶ 27,564 (No. 80-5830, 1986). In Pratt, the Review Commission reversed the administrative law judge's finding that the company was in violation of § 1910.94(d)(9)(i) and vacated the citation item. The Secretary reiterates in her post-hearing brief her argument made at the hearing that Pratt & Whitney failed to plead res judicata as an affirmative defense in its answer as required by Commission Rule 36(b)(1), 29 C.F.R. § 2200.36(b)(1).[[2]] At the beginning of the hearing, Pratt & Whitney moved to amend its answer to plead res judicata as an affirmative defense (Tr. 15). The undersigned granted the motion, noting that the Secretary was aware that Pratt & Whitney intended to pursue this defense, and was not surprised or prejudiced by the amendment (Tr. 17-20). That ruling stands. Pratt & Whitney's res judicata defense must be addressed. For a prior judgment to bar a subsequent action, it is firmly established (1) that the prior judgment must have been rendered by a court of competent jurisdiction; (2) that there must have been a final judgment on the merits; (3) that the parties, or those in privity with them, must be identical in both suits; and (4) that the same cause of action must be involved in both suits. _Ray v. Tennessee Valley Authority_, 677 F.2d 818, 821 (11th Cir. 1982). Res judicata bars subsequent litigation in matters that were actually litigated as well as on every ground of recovery which might have been presented. Id., at 822. The _Pratt_ decision was rendered by the Review Commission, a court of competent jurisdiction; the decision was a final judgment on the merits; and the Secretary and Pratt, the parties in the present case, were the same parties in the previous decision. Thus, the first three elements of the res judicata defense are met. The fourth element requires that "the same cause of action must be involved in both suits." Here, Pratt and Whitney's defense must fail. The events that gave rise to the respective causes of action took place almost a decade apart, the first in Connecticut, the present one in Florida. The events involved different employees engaged in different operations. The cause of action are not the same and claim preclusion does not apply. B. _Collateral Estoppel_ Pratt & Whitney argues that, if the claim preclusion of res judicata does not apply to Item 1, then the issue preclusion of collateral estoppel does. Although in a broad general sense the term "res judicata" encompasses the concept of collateral estoppel, strictly speaking they do have distinct meanings....The doctrine of collateral estoppel precludes relitigation only of issues that were actually litigated in the initial suit, whether or not the second suit is based on the same cause of action. _Precision Air Parts, Inc. v. Avco Corp.,_ 736 F.2d 1499, 1501 (11th Cir. 1984). The formulation of the collateral estoppel standard is well established: (1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgement in that earlier action. _McKinnon v. Blue Cross and Blue Shield of Alabama_, 935 F.2d 1187, 1192 (11th Cir. 1991), quoting _Greenblatt v. Drexel Burnham Lambert, Inc.,_ 763 F.2d 1352, 1361 (11th Cir. 1985). It is Pratt & Whitney's position that the issues in Pratt were identical to the issues in the present case: "(1) whether Pratt & Whitney's instructions to employees working around open surface tanks comply with § 1910.94(d)(9)(i), (2) whether Pratt & Whitney is required to ensure that employees working around open surface tanks use personal protective equipment, and (3) whether goggles are sufficient eye protection for employees working around open surface tanks." (Pratt & Whitney's Brief, p. 53). If these were in fact the issues previously litigated, then Pratt & Whitney would have a good argument that the Secretary should be precluded from litigating them in the instant case. These issues, however, are too broadly drawn. If every employer could preclude the Secretary from bringing an action in this manner, then the purposes of the Act could be easily circumvented. Any employer who was charge with the violation of a specific standard which was subsequently vacated in a Review Commission hearing would be free afterward to violate the same standard with impunity. For example, in Pratt, the Review Commission vacated the citation for the violation of § 1910.94(d)(9)(i). If, as Pratt & Whitney claims, this precludes the Secretary from litigating the issue of whether its "instructions to employees working around open surface tanks comply with § 1910.94(d)(9)(i)," the Pratt would have license forever after to fail to give any instructions whatsoever to its employees working in open tank areas in any of its facilities. This produces an untenable result. It is necessary to examine the underlying factual situations in both Pratt and the instant case in order to determine whether the precise issues litigated in Pratt are the same here. In Pratt, the alleged violation occurred in the Electro-Chemical Machine Department ("ECM"), where airplane parts were machined to a specified size and shape by an electro-chemical process. These parts were then moved to the "pickling line" where they were "pickled" or cleaned, by dipping them into open surfaced tanks. One of the tanks contained a 35% hydrochloric acid solution, one tank contained a 35% nitric acid solution, and another tank contained alkali cleaner. Large parts were moved from tank to tank with a motorized hoist. An operator controlled the hoist by pressing a button while standing in front of the pickling line. Employees dipped smaller parts by hand. Sometimes employees hand-dipped small bottles or buckets into the acid solution tanks. The Review Commission held that (Id. at 1772): The burn hazard from the acids was obvious to the ECM operators based on their knowledge, common sense, and experience. The corrosive property of acids is a matter of common knowledge, and as part of their experience at the pickling line, P & W's ECM operators saw that the acid solutions ate away at the deposits on the metal parts being dipped in the two tanks. The present case is distinguishable from _Pratt_. In _Pratt_, the company's instructions were deemed adequate under specific circumstances. The exposed employees were experienced ECM operators who worked on a daily basis with acid. The company could rely on the operator's experience and the common knowledge that acid can cause serious burns. In contrast, the exposed employees in the present case were pipefitters and an electrician. The hazardous substance was a solution containing cyanide, not acid. The exposed employees did not work in the plating department on a daily basis. While it is common knowledge that ingesting cyanide can be deadly, it is perhaps less well known that cyanide poses a threat as a result of skin contact. The issue confronted in Pratt was: whether instructions in job hazards, personal protection, and first aid given to experienced operators working on a daily basis with tanks of acid were adequate under the circumstances. The issue in the present case is: whether instructions in job hazards, personal protection, and first aid given to maintenance personnel unfamiliar with plating operations who were working around tanks containing cyanide solutions were adequate under the circumstances. The issue in the present case is not identical to the issue litigated in Pratt and collateral estoppel does not apply. C. _Instructions as to Hazards_ Having concluded that the litigation of Item 1 is not precluded by res judicata or collateral estoppel, it must now be determined whether Pratt & Whitney violated § 1910.94(d)(9)(i) in the instant case. The Pratt decision held that the cited standard requires "employers to give instructions that are reasonable under the circumstances." Pratt, 12 BNA OSHC at 1722. William Mousseau's duties at the West Palm Beach facilities were the installation and maintenance of plumbing fixtures. At the time of the hearing, Mousseau was working on the plumbing in the plant's cafeteria (Tr. 22). In August of 1989, Mousseau was working in the plating department helping with its renovation. The job involved "getting rid of tanks, taking tanks out, moving pipes so they can remove the tanks. It's basically tearing down one complete section so it can be redone, rebuilt, and getting another section operational and ready to go." (Tr. 23). Before he was assigned to the renovation work in the plating department, Mousseau had no experience working with the open surface tanks. Mousseau was given information regarding the contents of specific tanks as he moved them (Tr. 25-26). Mousseau usually asked Dale Seams, a solution technician, about the contents of the tanks as he got around to them (Tr. 27): "Well, it's like if we were getting ready to move something or work around something, you know, he--you know, immediately I'd either ask him or, you know, somebody would say something about it, or I'd find out what's in that." The word "cyanide" was stenciled on tank D-1, but Mousseau did not notice it until after he was splashed with the tank's contents (Tr. 29). No one informed Mousseau about the contents of tank D-1 until after the incident because, Mousseau stated, "basically, I wasn't working on the tank itself, so I wasn't really, you know, concerned with, you know, having to get anything on me, 'cause I wasn't working on that tank." (Tr. 30-31). Pratt & Whitney had a labeling system that it used on the tanks to inform employees of the nature and hazards of their contents. Mousseau "really didn't know how to read the labels on the tanks." (Tr. 33). Brockett testified that he was given no safety instructions regarding working around the tanks at the time he was assigned to the plating department (Tr. 122-123). Brockett was not aware that tank D-1 contained cyanide until after he was splashed with its contents. He stated that "the only knowledge that I had received was if I asked." (Tr. 124). Brockett received general training as to protective clothing but nothing specific as to what is required around the tanks of chemicals in the plating department (Tr. 149-150). In its brief, Pratt & Whitney argues that the employees were provided with protective equipment, that there were signs in the plating department warning employees to wear goggles in marked areas, and that both employees had attended hazard communication training sessions (Tr. 84-88, 206-207, 1332-1333). The hazardous communication training took place in 1987 (Tr. 1333). Pratt & Whitney contends that these steps were sufficient to meet compliance with § 1910.94(d)(9)(i). In determining the reasonableness of instructions, we must consider such factors as the obviousness of the hazard...., the experience of the employees, the likelihood that an accident would occur, and the degree of harm that would result from an accident. Id., 12 BNA OSHC at 1722 (citation omitted). Each of these factors will be considered in turn. (i) _THE OBVIOUSNESS OF THE HAZARD_ Neither Mousseau nor Brockett were aware that tank D-1 contained cyanide until after they were splashed with its contents. Pratt & Whitney claims that the tank was labeled, but Mousseau did not know how to read the labels. Brockett was not familiar with the labeling system (Tr. 147). Furthermore, Brockett testified that tank D-1's label was "very faded and discolored" (Tr. 149). Not only was the hazard not obvious to Mousseau and Brockett before they were splashed, the seriousness of the accident was not clear to the employees even after learning that they were splashed with a cyanide solution. Mousseau thought it was sufficient to rinse off his leg in a sink. He had to be told to take a shower. The record establishes that the hazard of being splashed with a cyanide solution was not obvious to Brockett and Mousseau. (ii)_THE EXPERIENCE OF THE EMPLOYEES_ Mousseau and Brockett were pipefitters who worked in all areas of the West Palm Beach facility. They had no specialized knowledge of the plating department and had not experience in working with the open surface tanks. The employees received information about the tanks on a tank-by-tank basis, and then only if they asked. (iii)_THE LIKELIHOOD THAT AN ACCIDENT WOULD OCCUR_ Besides the actual incident that gave rise to this case, Brockett testified that he accidentally dropped screwdrivers in tanks on two separate occasions. On one occasion he was wearing protective gear and on the other he wasn't (Tr. 195). It is clear that a room containing over fifty open surface tanks (many of which contain hazardous chemicals) which employees must work around presents the possibility of an accident occurring. In this case, an accident did occur. (iv) _DEGREE OF HARM RESULTING FROM ACCIDENT_ Mousseau and Brockett were fortunate in that they sustained no lasting harm from the splashing incident. Dr. Thomas Wilcox testified that cyanide is a toxic substance that will kill a person if it is absorbed into his or her body. The record discloses that cyanide can be absorbed into a person's body through the skin (Tr. 1456). A person does not have to be totally immersed in a vat of cyanide in order to sustain a toxic exposure (Tr. 1452-1453). Cyanide is an extremely poisonous substance, "[A]s little as fifteen milligrams can prove fatal." (Tr. 1457). The Secretary has established that serious physical harm or death can result from an employees' exposure to cyanide. The hazard to the employees was not obvious to them, the employees were not experienced in working in the plating shop, an accident was likely to occur in the shop, and serious physical harm or death could have resulted from an accident. Under these circumstances, Pratt & Whitney failed to give adequate instructions to its maintenance personnel. Mousseau and Brockett were not given any orientation instructions at the time of their initial assignment, and it was left up to the employees to inquire as to the contents of the individual tanks. Pratt & Whitney was in serious violation of § 1910.94(d)(9)(i). _ITEM 2: 29 C.F.R. § 1910.132(a)_ 29 C.F.R. § 1910.132(a), in pertinent part, provides: Protective equipment, including personal protective equipment for.......head......shall be provided, used and maintained.......wherever it is necessary by reason of hazards......encountered in a manner capable of causing injury.... OSHA industrial hygienist Peter Foreman observed two millwrights in the plating shop removing the tank and duct work for tank H-3 (Tr. 344, 659-660). The tank and duct work were slightly suspended several inches by crane hoist (Tr. 659, 963). The millwrights were not wearing any form of head protection. Foreman stated that the millwrights were exposed to hazards from working beneath the tank and duct work, and also from sharp edges and projections of the steel floor grating (Tr. 323). Donald Cooper was one of the millwrights who Foreman observed working. Cooper testified that Pratt & Whitney had provided him and his crew with hard hats, and that the company had a policy requiring them to wear hard hats whenever there was an overhead hazard. Cooper and the other millwright had their hard hats with them that day, but were not wearing them because they perceived no hazards of head injury in the work they were doing (Tr. 962, 984). It was not possible for anyone to get underneath the suspended tank. The tank was only six inches off the ground. The purpose of lifting the tank was to move it; there was no reason for anyone to get under it (Tr. 659, 959). Cooper explained, "We were only moving it laterally. We were bringing it out of one corner, twisting it and sitting it over." (Tr. 983). Neither was anyone working beneath the suspended duct work (Tr. 964-965). Cooper stated that no one was working directly under the grating. The millwrights were working below the level of the grating, but off to the side where they were not exposed to the sharp edges of the grating (Tr. 965, 967, 979). The Secretary has failed to prove that Pratt & Whitney's employees were exposed to the hazard of head injuries. No overhead hazards were presented in the operations they were performing. Pratt & Whitney was not in violation of § 1910.132(a) for failure to require its employees to use protective head equipment. _ITEM 3: 29 C.F.R. § 1910.132(a)_ 29 C.F.R. § 1910.132(a) also provides, in pertinent part: Protective equipment, including personal protective equipment for eyes, face, head, and extremities, [and] protective clothing....shall be provided, used and maintained....whenever it is necessary by reason of....chemical hazards...encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. The Secretary charges that Pratt & Whitney millwrights in the plating shop were not using chemically impervious suits, aprons, gloves, sleeves and boots during equipment installation work on and around open surface tanks and pipes containing hazardous chemicals. Foreman observed several solution control employees emptying a tank containing nitric acid. The solution control employees were wearing "aprons, boots, respirators, face shields, gloves, and extensive protective equipment..." (Tr. 344, Exs. C-16, C-17). At the same time, millwrights were working around the same tank. They were disconnecting the ventilation system from the tank and connecting it to a hoist to lift it and hold it while the tank was being moved and turned. The millwrights were wearing tyvek suits and goggles (Tr. 344). Millwright Donald Cooper testified that Pratt & Whitney made available protective equipment. "They always had coveralls and the gloves, goggles, face shields--anything you needed." (Tr. 971). Pratt & Whitney argues that the Secretary is collaterally estopped from litigating whether it was in violation of § 1910.132(a) because the Review Commission vacated a citation for the violation of § 1910.94(d)(9) in _Pratt_, 12 BNA OSHC 1770. In _Pratt_, the company was charged with a violation of §1910.94(d)(9)(iii) and (iv) in that it did not "provide" impervious gloves and aprons for employees working at open surface tanks. The cited standards provide: (iii) All persons required to handle work wet with a liquid other than water _shall be provided_ with gloves impervious to such a liquid and of a length sufficient to prevent entrance of liquid into the tops of the gloves. The interior of gloves shall be kept free from corrosive or irritating contaminants. (iv) All persons required to work in such a manner that their clothing may become wet _shall be provided_ with such aprons, coats, jackets, sleeves, or other garments made of rubber, or of other materials impervious to liquids other than water, as are required to keep their clothing dry. Aprons shall extend well below the top of boots to prevent liquid splashing into the boots. Provision of dry, clean, cotton along with rubber shoes or short boots and an apron impervious to liquids other than water shall be considered a satisfactory substitute when small parts are cleaned, plated, or acid dripped in open tanks and rapid work is required. (Emphasis added). Sections (iii) and (iv) both mandate that protective equipment "shall be provided" to employees. The Secretary argued in Pratt that §§ 1910.94(d)(9)(iii) and (iv) should be construed to require the use of protective equipment. The Review Commission rejected this argument, holding that the word "provide" is not ambiguous and could not be strained to mean "use". "The Commission, as an adjudicatory body, lacks authority to rewrite the standards and may not impose on them a meaning that would deprive employers of fair notice of the conduct required or prohibited." _Id._, 12 BNA OSHC at 1776. Because the evidence was undisputed in _Pratt_, as in the present case, that protective equipment was available to the employees, the citation for failure to provide protective equipment was vacated. In the present case, Pratt & Whitney was cited under § 1910.132(a), which requires that protective equipment be "provided, used, and maintained." Because this standard explicitly mandates that protective equipment be used as well as provided, it is not the identical issue as was litigated in _Pratt_. Absent identical issues, a collateral estoppel claim must fail. Pratt & Whitney raises a further argument that has more merit. The company argues that §§ 1910.94(d)(9)(iii) and (iv) are specific standards that address protective equipment repaired for employees working around open surface tanks. Section 1910.94(d) is captioned "Open surface tanks" and § 1910.94(d)(9) is captioned "Personal protection." Section 1910.132(a) is a general standard which is contained within Subpart I, "Personal Protective Equipment," and is captioned "General requirements." 29 C.F.R. § 1910.5(c)(1) provides in pertinent part: If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation or process. 29 C.F.R. § 1910.5(c)(2) provides: On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards apply. It must be determined whether § 1910.94(d)(9) is "specifically applicable" to the cited condition. The hazard at issue is exposure to hazardous chemicals in and around open surface tanks. The Secretary specifically cited Pratt & Whitney for failure of its employees to use "chemically impervious suits, aprons, gloves, sleeves, and boots." Section 1910.132(a) requires the use of "personal protective equipment for eyes, face, head, and extremities...whenever it is necessary by reason of...chemical hazards..." Section 1910.94(d)(9)(iii) and (iv) specifically require the employer to provide employees working around open surface tanks with gloves, aprons, coats, jackets, sleeves, and boots. Sections 1910.94(d)(9)(iii) and (iv) are clearly more specific to the cited condition than § 1910.132(a). The Secretary cites _Bratton Corp._, 14 BNA OSHC 1893, 1990 CCH OSHD ¶ 29,152 (No. 83-132, 1990), for the proposition that, where the "more specific" standard fails to prevent certain hazards, the "general" standard applies if it provides the protection that the "more specific" standard omits. In _Bratton_, the employer was a steel erection contractor. It was charged with a violation of § 1926.28(a),[[3]] a general standard requiring the wearing of personal protective equipment. _Bratton_ argued that § 1926.28(a) did not apply because it was preempted by § 1926.750(b)(2)(i),[[4]] a specific steel erection standard. The Review Commission ruled that the general standard was applicable in that case because § 1926.750(b)(2)(i) addressed only interior fall hazards, affording no protection against exterior fall hazards. The Review Commission held: We agree with the various appellate court decisions that have drawn a distinction between interior and exterior fall hazards and hold that the steel erection standards in Subpart R do not preempt application of the general construction standards to steel erection work "where general standards provide meaningful protection to employees beyond the protection afforded by the steel erection standards... _Williams Enterprises, Inc._, 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD ¶ 26,542, p. 33,877 (No. 79-843, 1983), _aff'd in pertinent part_, 744 F.2d 170 (D.C. Cir. 1984). Bratton, 1990 CCH OSHD at p. 38,992. The Secretary argues that there is a distinction between the hazards addressed by § 1910.132(a) and § 1910.94(d)(9)(iii) and (iv). The Secretary states that item 3 "is not confined to work around open surface tanks in plating operations and the attendant dripping and splashing hazard. It pertains to 'employees during _equipment installation on and around_ open surfaces, tanks _and pipes_ containing hazardous chemicals.' (Secretary's brief, p. 14, emphasis in original). Apparently the Secretary considers the addition of the words "equipment installation work" and "pipes" in the citation to significantly alter the meaning of in and around open surface tank operations contained in § 1910.94(d). The undersigned disagrees. The hazard presented in both cases is contact with hazardous chemicals. The phrase "equipment installation work on and around open surface tanks and pipes" encompasses "in and around open surface tank operations." The general personal protection equipment standard, § 1910.132(a) is preempted by the more specific standard, § 1910.94(d)(9)(iii) and (iv), as provided for in § 1910.5(c)(1). Item 3 is vacated. Even if the cited standard was not preempted by § 1910.94(iii) and (iv), item 3 would still be vacated because Pratt & Whitney was denied fair notice. "An employer lacking fair notice of a standard cannot be found in violation of the act for failure to comply with that standard." _Bratton_, 1990 CCH OSHD at p. 38, 992. In _Pratt_, the company was charged with the failure to require its employees to use gloves and aprons, just at Pratt & Whitney was charged in the present case. The standards cited were §§ 1910.94(d)(9)(iii) and (iv). The Review Commission vacated the items, holding that the standards "require only that....protective equipment must be made available." _Pratt_, 12 BNA OSHC at 1776. It was entirely reasonable for Pratt & Whitney to assume, based on the _Pratt_ decision, that it was not required by the Act to ensure that its employees actually used protective equipment, but was only required to make such equipment available. To charge Pratt & Whitney with the same violation using a different standard violates its right to fair notice. The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them. _Diamond Roofing_, 528 F.2d 645, 650 (5th Cir. 1976). In _Pratt_, the Review Commission noted that the Secretary "could have promulgated a standard imposing a use requirement as suggested by the Second Circuit in a case involving a similar standard..."_Pratt_, 12 BNA OSHC at 1775. Her failure to do so cannot be remedied by substituting a general standard requiring use of a more specific standard that requires only availability. Pratt & Whitney was not in violation of § 1910.132(a). _ITEM 4: 29 C.F.R. § 1910.133(a)(1)_ 29 C.F.R. § 1910.133(a)(1) provides: Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employers shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards. The Secretary alleges that protective face shields were not use by employees during equipment installation work on and around open surface tanks and pipes containing hazardous chemicals. The solution control employees who were emptying the tank containing nitric acid were wearing full-face piece respirators with a face protection on them (Ex. C-16, Tr. 361). Millwrights working around the same tank were wearing only goggles (Ex. C-11, Tr. 363-364). In dealing with open surface tanks, reference must be made to § 1910.94(d)(9)(v), which provides: Whenever there is a danger of splashing, for example, when additions are made manually to the tanks, or when acids and chemicals are removed from the tank, the employees so engaged shall be required to wear either tight-fitting chemical goggles or an effective face shield. _See_ § 1910.133. Section 1910.94(d)(9)(v) requires that either goggles or face shields be worn by employees working around open surface tanks. The Secretary argues that "this provision should not be interpreted as giving the employer the option of requiring the use of one or the other." (Secretary's brief, p. 17). Pratt & Whitney takes issue with the Secretary's interpretation of the standard. As with item 3, _supra_, the question of fair notice is raised regarding this item. In two previous cases to which Pratt & Whitney was a party, it was found in violation of § 1910.94(d)(9)(v) for failing to require its employees to wear either goggles or face shields. In _Pratt & Whitney_ _Aircraft_, 9 BNA OSHC 1653, 1981 CCH OSHD ¶ 25,359 (No. 13401, 1981), the company was found in violation for failing to require the use of either goggles or face shields by its employees who were working around open surface tanks in the plating department. Having been issued a Review Commission decision explicitly stating that employees working around open surface tanks in the plating department must wear either goggles or face shields, it was only reasonable for Pratt & Whitney to assume that it was on safe ground requiring its employees to wear one or the other of these protective devices as such circumstances. Employers should be able to place some reliance on Review Commission decisions, especially when they involve the same employer in similar circumstances. To hold Pratt & Whitney in violation of § 1910.133(a)(1) in this instance would be to work an injustice on the company. The undersigned declines to do so. Pratt & Whitney was not in violation of § 1910.133(a)(1). _ITEM 5: 29 C.F.R. § 1910.134(e)(3)_ 29 C.F.R. § 1910.134(e)(3) provides: Written procedures shall be prepared covering safe use of respirators in dangerous atmospheres that might be encountered in normal operations or in emergencies. Personnel shall be familiar with these procedures and the available respirators. During his inspections, Foreman observed two empty boxes outside the wall to the plating department. At one time the boxes had contained self-contained breathing apparatuses (SCBAs) (Ex. C-18, Tr. 387). The SCBAs had been removed from the plating department sometime in 1988 and given to the fire department (Tr. 1287). A sign on the cabinets informed employees the SCBAs were removed and to call the fire department in the event of an emergency (Ex. C-18, Tr. 390). The SCBAs had been removed because the company determined that it preferred to use emergency personnel (Tr. 1287-1289). The fire department is a separate department within the facility. Foreman did not inspect or try to determine what procedures were available in the fire department regarding the SCBAs (Tr. 543, 1199). The Secretary has failed to establish a violation of this standard. If no SCBAs are available for use, no written procedures are required. The Secretary failed to prove that the fire department, which did have SCBAs, did not have the written procedures covering their use. Pratt & Whitney was not in violation of § 1910.134(e)(3). _ITEM 6a: 29 C.F.R. § 1910.145(c)(2)(i)_ 29 C.F.R. § 1910.145(c)(2)(i) provides: Caution signs shall be used only to warn against potential hazards or to caution against unsafe practices. Pratt & Whitney had caution signs posted at both entrances to the plating shop (Exs. C-21, R-7, R-8, Tr. 582). At one entrance of the plating shop, the caution sign reads, "Caution, safety glasses required in this area." (Ex. R-7, Tr. 580-581). At the other entrance to the plating shop are a caution sign and a notice that reads, "Safety control area, see foreman before entering." (Ex. R-8, Tr. 582). Foreman testified, and the Secretary argues, that an adequate warning should at least have said "caution, chemical hazard area." (Tr. 414). The cited standard does not mandate specific language to be used on the warning signs. Pratt & Whitney cannot be held in violation of § 1910.145(c)(2)(i) merely because it did not foresee the exact wording that Foreman would deem appropriate. Whether Pratt & Whitney violated the standard must be determined by looking at the adequacy of the signs it actually did post. The standard provides that caution signs shall be used to "warn against potential hazards" or "to caution against unsafe practices." Pratt & Whitney's sign warning, "Caution, safety glasses required in this area," is a sign warning against an unsafe practice, i.e., not wearing safety glasses. The sign stating, "Safety control area, see foreman before entering," falls into the first category as a warning against potential hazards. Is "Caution, safety control area" adequate to meet the requirements of § 1910.145(c)(2)(i)? The Secretary would have accepted "Caution, chemical hazard area." The difference then, is between the words "safety control" and "chemical hazard." While the latter is more specific as to the nature of the potential hazard, "Caution, safety control area" puts any employee reading the sign on notice. "Safety control area" implies that there is a reason for safety control, namely a hazardous condition. Combined with the word "caution," a reasonable person would be warned that some potential hazard was present. Perhaps the warning is not as detailed as the Secretary wants, but the standard is worded in very broad terms. If the Secretary wants to require signs stating "chemical hazard area" in areas where chemical hazards exist, she must make the standard more explicit. "The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend." General Electric Co. v. OSHRC, 583 F.2d 61, 67 (2nd Cir. 1978) (quoting Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978). Pratt & Whitney was not in violation of § 1910.145(c)(2)(i). _ITEM 6b: 29 C.F.R. § 1910.145(c)(3)_ 29 C.F.R. § 1910.145(c)(3) provides: Safety instruction signs shall be used where there is a need for general instructions and suggestions relative to safety measures. Pratt & Whitney had labels posted on each tank, identifying the tank's contents. As noted in the discussion of item 1, supra, the maintenance employee did not understand how to read the labeling system. The maintenance personnel were the very employees who most need general instructions as to safety measures, because they were the ones most unfamiliar with the chemical hazards. As was made evident by Mousseau's and Brockett's reaction to being splashed with the cyanide solution, suggestions relative to safety measures were needed. Pratt & Whitney was in serious violation of § 1910.145(c)(3). _ITEM 7: 29 C.F.R. § 1910.145(f)(5)_ 29 C.F.R. § 1910.145(f)(5) provides: Danger tags shall be used in major hazard situations where an immediate hazard presents a threat of death or serious injury to employees. Danger tags shall be used only in these situations. No danger tag was placed on the pump for tank D-1 after it was disconnected. On August 23, 1989, the electrician Stoeffel activated the pump, resulting in Mosseau and Brockett getting splashed with the cyanide solution. Pratt & Whitney argues that the standard is inapplicable to the situation at issue because it was not a "major hazard" situation where "an immediate hazard presents a threat of death or serious injury to employees." This Court concludes that no "immediate hazard" was presented. As long as the pump was not activated, there was no hazard to anyone of being splashed by the cyanide solution. "Immediate" connotes a sudden event with no lapse of time. It took the intervening force of the electrician to cause the hazard to the employee. Support of this interpretation can be found elsewhere in the standard. Section 1910.145(f)(6) provides: Caution tags shall be used in minor hazard situations where a non-immediate or potential hazard or unsafe practice presents a lesser threat of employee injury. Caution tags shall be used only in these situations. Section 1910.145(f)(7) provides: Warning tags may be used to represent a hazard level between "Caution" and "Danger," instead of the required "Caution" tag, provided that they have a signal word of "Warning," an appropriate major message, and otherwise meet the general tag criteria of paragraph (f)(4) of this section. A warning tag, rather than a danger tag, would have been the more appropriate tag in this instance. The warning tag standard requires "an appropriate major message." Reference to the definition section of the standard at § 1910.145(f)(2) reveals that "major message" is defined as "that portion of a tag's inscription that is more specific than the signal word and that indicates the specific hazardous condition or the instruction to be communicated to the employee. Examples include: ...."Do Not Start," or "Do Not Use"..... A warning tag containing the major message "Do Not Activate" was clearly more appropriate to the disconnected pump on tank D-1 than was a danger tag. Use of a danger tag would have constituted a violation of § 1910.145(f)(5), which states that danger tags shall be used only in major hazard situations where an immediate hazard exists. Pratt & Whitney was not in violation of § 1910.145(f)(5). _ITEM 8b: 29 C.F.R. § 1910.1200(f)(5)(i)_ 29 C.F.R. 1910.1200(f)(5)(i) provides: Except as provided in paragraphs (f)(6) and (f)(7) the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information: (i) Identity of the hazardous chemical(s) contained therein....... In item 8b(a), the Secretary alleged that Pratt and Whitney had several containers which were not labeled with appropriate hazard warnings identifying hazardous chemicals contained therein. The citation specified the following containers as lacking adequate labels: Niposit NL-62R, ExMac 64 Reducer, Plastisol, Cupric Sulfate, Edwal Hardener Fixer, Picard Acid Wetting Agent, PMC 1609-2, Edwal Quick Fix, PMC 1632-1, Barrett Snac, and 9 PMC-1622-1. Foreman observed containers of Niposit NL-62R and Ex Mac 64 Reducer (Ex. C-21). After looking at the Material Safety Data Sheets (MSDSs), Foreman determined that the two containers lacked adequate warning labels (Tr. 436-438). These containers were labeled with the manufacturer's labels (Tr. 438, 594). As Pratt & Whitney points out, § 1910.1200(d)(1) provides: (emphasis added): Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous. _Employers are not required to evaluate chemicals unless they choose not to rely on the evaluation performed by the chemical manufacturer or importer for the chemical to satisfy this requirement._ Because it is undisputed that it was the manufacturer's labels on the containers of Niposit NL-62R and Ex Mac 64 Reducer, Pratt & Whitney cannot be held liable for the inadequate labels. Exhibit C-22 shows a five-gallon jug labeled plastisol PMC-1671, and "in house" container that had no hazard warning label at all. The Secretary failed to prove that the plastisol container contained a hazardous chemical (Tr. 446-451). Therefore, Pratt & Whitney cannot be held in violation for failure to label this container. Exhibit 23 shows a container of cupric sulfate PMC-1322. The Manufacturer's label did not contain warnings of hazards listed in the chemical's MSDS (Tr. 452). As it was labeled by the manufacturer, Pratt & Whitney is not responsible for any of the label's defects. The MSDS for Edwal Hardener Fixer indicates that it contains sulfuric acid, acetic acid, and aluminum sulfate, which can cause severe irritation to the nose, mouth, skin, and respiratory system. There was no warning label whatsoever on the container (Tr. 455). Pratt & Whitney is responsible for the failure to label this container. The Picard Acid Wetting Agent was labeled with an inadequate manufacturer's label, for which Pratt & Whitney was not responsible (Tr. 456). Exhibit C-25 shows two five-gallon plastic pails labeled PMC-1632 (Tr. 464). PMC-1632 contains non-ionic polyoxyethylated detergent, which is a skin and eye irritant. There were no warning labels on the container (Tr. 465). Exhibit C-24 shows a container of Edwal Quick Fix. The manufacturer's label is covered over with a Pratt & Whitney label (Tr. 461). Because this container is one of the containers at issue in item 8c, it will not be considered here. Exhibit C-26 shows a container of Barrett Snac with a manufacturer's label on it (Tr. 465-467). Any defects in the label are the responsibility of the manufacturer. Exhibit C-27 shows a container marked 9 PMC-1622-1. It is labeled with a Pratt & Whitney label and contains no hazard warning. The substance is Agent/Wetting - for acid cleaners. The Secretary did not have an MSDS for the substance. Any hazards that the substance may present were not brought out at the hearing (Tr. 467-468). Of the substances listed in the citation, only two, Edwal Hardener Fixant and PMC 1632-1, had defective labels which were Pratt & Whitney's responsibility. These two substances posed threats of respiratory, skin, and eye irritation. Item 8b(b) alleges that certain tanks and a bottle in the plating shop were not identified with appropriate hazard warnings. Pratt & Whitney conceded that the bottle labeled PS 607 was labeled incorrectly (Ex. C-35). The bottle contained chromic acid and should have been labeled with an asterisk and a reactivity rating of 1 or 2 instead of a 0 (Tr. 511-512, 1050-1051). Foreman testified that tank F-2, which contained hydrochloric acid, should have been marked with a reactivity rating of 2 instead of 0 (Ex. C-28, Tr. 471), and tank H-3, containing nitric acid solution, should have a reactivity rating of 1 or 2 instead of 0 (Ex. C-9, Tr. 475-477). Tank H-5 contained electroless nickel plating solution (Ex. C-30, Tr. 480). It should have been marked with a higher reactivity rating than 0 (Tr. 481). Lynn Hamel is an industrial hygienist for Pratt & Whitney (Tr. 993-994). She is in charge of the company's hazardous materials identification system (HMIS) (Ex. R-14, Tr. 1004). Pratt & Whitney uses numerical ratings for reactivity which are set by the National Fire Protection Association (NFPA). Hamel testified that she used no independent judgment in assigning the ratings; they are taken directly from NFPA standard 704 (Ex. R-14, Tr. 1013). The Secretary offered no evidence other than Foreman's testimony that the reactivity ratings were inaccurate. His testimony alone, when countered by Hamel's testimony and Exhibit R-14, does not meet the Secretary's burden of proof. It cannot be determined from the record whether or not the reactivity ratings were too low. The Secretary has established with regard to item 8b that Pratt & Whitney failed to have adequate hazard warnings for two chemical substances, both of which had the potential to cause skin, eye, and respiratory irritation. Pratt & Whitney is in serious violation for those substances only. _ITEM 8c: 29 C.F.R. § 1910.1200(f)(8)_ 29 C.F.R. 1910.1200(f)(8) provides: The employer shall not remove or deface existing labels on incoming containers of hazardous chemicals, unless the container is immediately marked with the required information. The Secretary charges that Pratt and Whitney had containers of hydrochloric acid, hydrofluoric acid, and Edwal Quick Fix on which the labels were defaced. Exhibit C-24 shows a container of Edwal Quick, which contains acetic acid, sodium thiosulfate, ammonium thiosulfate, and boric acid. The Pratt & Whitney label covered the back of the manufacturer's label (Tr. 461-463). Exhibit C-31 shows a hydrochloric acid container with a label written over in magic marker. Exhibit C-32 shows plastic jugs of hydrofluoric acid with white stickers over the labels of two of them (Tr. 482). The Secretary has established that the foregoing labels were obscured and did not convey an adequate warning. Pratt & Whitney was in serious violation of § 1910.1200(f)(8). _ITEM 9: 29 C.F.R. 1910.1200(h)_ 29 C.F.R. 1910.1200(h) provides: Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area. (1) _Information_. Employees shall be informed of: (i) The requirements of this section; (ii) Any operations in their work area where hazardous chemicals are present; and, (iii) The location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and material safety data sheets required by this section. (2) _Training_. Employee training shall include at least: (i) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.); (ii) The physical and health hazards of the chemicals in the work area; (iii) The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and, (iv) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information. Pratt & Whitney had a very good written hazard communication training program. Dr. Isabel Perry put together and implemented the program, which included a booklet of MSDSs (Exhibit R-1) and training sessions conducted by Dr. Perry (Tr. 1271). The course was approximately two hours long and was offered every thirty days. Dr. Perry used slides in the course and administered a questionnaire afterwards (Exs. R-25, R-26, Tr. 1271, 1273, 1275, 1277). Despite the quality of the written hazard communication program, there was an apparent problem with its communication to Pratt and Whitney's employees. Foreman questioned platers, plumbers, electricians, and the electrical, pipefitting, and plating shop supervisors (Tr. 287). Foreman found that there were a number of inadequacies in the employees' training. Most employees were aware of the hazard communication program but many did not know where to find it. Many were not aware of the MSDS system. Some were unsure of the numerical hazard rating system. Many did not understand what an "S" meant ("Refer to supervisor") or what protective equipment they should wear in specific situations. They were unaware of the carcinogens they were working with (Tr. 289-291). Platers told of sticking their bare hands into tanks containing nickel to neutralize chemicals they got on their hands. Skin lesions can develop from such a practice (Tr. 493-495). Most of the employees did not understand the labeling system. They were unaware of the meaning of an asterisk on a warning label (indicating a chronic health hazard) (Tr. 295). The Secretary has established that Pratt & Whitney was in serious violation of § 1910.1200(h). _PENALTY DETERMINATION_ 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 17(j) of the Act, the Commission is required to fined 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. Pratt & Whitney employed approximately 8,000 employees. No history of previous violations at that particular facility was shown and no basis was given for doubting Pratt & Whitney's good faith. All of the violations that the Secretary established posed potential hazards of death or serious physical harm. After due consideration, the following penalties are deemed appropriate: _Item_ _Penalty_ 1 $1,000 6b 500 8b 100 8c 100 9 1,000 _FINDINGS OF FACT AND CONCLUSIONS OF LAW_ The foregoing decision constitutes the findings of facts and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). _ORDER_ Based upon the foregoing decision, it is hereby ORDERED that the items contained in Citation No. 1 shall be disposed of as follows: _ITEM_ _DISPOSITION_ _PENALTY_ 1 Affirmed $1,000 2 Vacated -0- 3 Vacated -0- 4 Vacated -0- 5 Vacated -0- 6a Vacated -0- 6b Affirmed 500 7 Vacated -0- 8a Vacated -0- 8b Affirmed as to 100 Edwal Hardene Fixant, PMC-1632, and PS 607 8c Affirmed 100 9 Affirmed 1,000 Dated this 24th day of October, 1991. EDWIN G. SALYERS Judge ------------------------------------------------------------------------ FOOTNOTES: [[1]] At the time of the splashing incident, the tank was designated as E-3. Due to its relocation during the renovation, it was subsequently designated as D-1. The tank was referred to as D-1 throughout much of the testimony. For the purposes of this decision, it shall be understood that E-3 and D-1 refer to the same tank. [[2]] Rule 36(b)(1) provides in pertinent part: The employer shall state in its answer in separate numbered paragraphs any matter that may constitute...an affirmative defense.....Such matters include, but are not limited to, the following: .....res judicata........ [[3]] 29 C.F.R. § 1926.28(a) provides: The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. [[4]] 29 C.F.R. § 1926.750(b)(2)(i) provides: Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.`