“SECRETARY OF LABOR,Complainant,v.ANOPLATE CORPORATION,Respondent.OSHRC Docket No. 80-4109_DECISION _Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).At issue is whether Anoplate Corporation violated various OSHA standardsand other requirements at its electroplating and metal finishing plantin Syracuse, New York. A hearing was held before former AdministrativeLaw Judge Barbara L. Hassenfeld after Judge Hassenfeld left theCommission, the case was re-assigned to Judge Foster Furcolo, who wrotethe decision that we review.[[1]] We affirm one of the items,conditionally affirm another, vacate four others, and modify JudgeFurcolo’s decision on two other items by reducing the classification ofone to non-serious and amending the other to a de minimis notice.[[2]]_Citation 1, Item 1(c)(Amended Complaint ? VI(c):_? 1910.94(d)(9)(v)– Eye protectionThe Secretary alleged a violation of 29 C.F.R. ? 1910.94 (d)(9)(v) inthat employees in buildings 2 and 3 were not required to wear chemicalgoggles or face shields at open surface tanks where there was a \”dangerof splashing.\” The cited standard states:? 1910.94 Ventilation. (d) Open surface tanks–(9) Personal- protection.(v) Whenever there is a danger of splashing, for example, when additionsare made manually to the tanks, or when acids and chemicals are removedfrom the tanks, the employees so engaged shall be required to weareither tightfitting chemical goggles or an effective face shield. See ?1910.133.It is undisputed that Anoplate required employees to wear chemicalgoggles or face shields when making manual additions of liquids to tanksor removing liquids from them. The parties disagree, however, as towhether Anoplate should have required employees to wear eye protectionwhile manually placing racks of parts in tanks. We agree with theSecretary that eye protection should have been required because there isa \”danger of splashing\” during that operation.Anoplate’s electroplating and metal finishing operations were conductedin buildings 2 and 3 of its facility, and they consisted of a number oflines open surface tanks where different finishes were applied tomanufactured parts. The parts were made of various metals and ranged insize from a few ounces to 20 or 30 pounds. Many of the tanks containedacidic or alkaline solutions. Generally, employees used the followingprocedure. They placed the parts on a metal rack. The rack was loweredinto the tank solutions and raised from them manually. The top of therack remained out of the solution, hung on a support pole above thetank. The parts on the racks were first dipped into a cleaning tank,rinsed and then dipped into a series of tanks to anodize or plate themwith protective coatings such as chrome of zinc. The tanks were aboutwaist height on the employees and generally ranged from 150 to 300gallons in capacity. The level of the solution in an average tank was 4to 5 inches below the lip of the tank. Each line consisted of between 10to 15 tanks and lines were separated by walkways which were 3 to 4 1\/2feet wide.The primary dispute is whether employees should have been required towear eye protection when manually dipping parts and racks into thetanks. To prove that eye protection was required, the Secretary mustestablish that a \”danger of splashing\” existed within the meaning of thestandard. The Secretary argues that employees who worked at the tankswere exposed to a \”danger of splashing\” affecting the eyes when dippingparts into the tanks because the acidic or alkaline solutions in certaintanks were proven harmful to the eyes, and there was a possibility forsplashing injuries to the eyes as shown by the nature of the operationand Anoplate’s injury records. Anoplate argues that the Secretary failedto prove a \”danger of splashing\” because he (1) failed to prove that theliquids, in the tanks would harm eyes, (2) failed to prove a danger ofsplashing the liquids into the eyes, and (3) failed to prove theexistence of a significant risk of harm to employees as a result of theconditions in any event. However, we find that the Secretary hasestablished these facts.We will address first the issue whether the Secretary bore the burden ofestablishing the existence of a significant risk of harm. Anoplateargues that we should adopt the Second Circuit’s holding in Pratt &Whitney Aircraft, Div. of United Technologies Corp. v. Secretary ofLabor, 649 F.2d 96 (1981) (\”Pratt & Whitney I\”); see also 715 F.2d 57(2d Cir. 1983) (\”Pratt & Whitney II\”) (same case), that the Secretarymust prove the existence of a significant risk of harm in each casewhere he proceeds under a standard that does not incorporate a findingthat that risk exists. We agree with the reasoning of Pratt & Whitneyand will apply it in our proceedings. Accord, Donovan v. General MotorsCorp., GM Parts Div., 764 F.2d 32 (1st Cir. 1985). In Pratt & Whitney 1,the Second Circuit reasoned that to interpret an OSHA standard to applyin the absence of a significant risk of harm would be to enlarge thestandard’s scope beyond that permitted by the Act. 649 F.2d at 103-04.The court pointed out that the Supreme Court in a plurality decision hadheld that the Act \”was not designed to require employers to provideabsolutely risk-free workplaces\” but to \”require the elimination, as faras feasible, of significant risks of harm.\” Industrial Union Dept.,AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 641 (1980). TheSupreme Court relied principally on section 3(8) of the Act, 29 U.S.C. ?652(8), stating:By empowering the Secretary to promulgate standards that are \”reasonablynecessary or appropriate to provide safe or healthful employment andplaces of employment,\” the Act implies that, before promulgating anystandard, the Secretary must make a finding that the workplaces inquestion are not safe. But \”safe\” is not the equivalent of \”risk-free.\”There are many activities that we engage in every day — such as drivinga car or even breathing city air — that entail some risk of accident ormaterial health impairment; nevertheless, few people would considerthese activities \”unsafe.\” Similarly, a workplace can hardly beconsidered \”unsafe\” unless it threatens the workers with a significantrisk of harm.448 U.S. at 642. Consistent with that decision, where a standard is notexpressly or impliedly based on a finding that noncompliance will resultin a significant risk of harm, but rather — by using terms such as\”hazard\” or \”danger\” — leaves that determination to the Commission on acase-by-case basis, there must be a showing that a significant risk ofharm exists in the particular case.The standard cited here does not incorporate a finding of a significantrisk of harm. Put another way, the standard does not presume a hazardwhen its terms are not met. Pratt & Whitney II 715 F.2d at 63; cf.Stanbest, Inc., 83 OSAHRC 10\/D6, 11 BNA OSHC 1222, 1231, 1983-84 CCHOSHD ? 26,455, p. 33,625 (No. 76-4355, 1983). Rather, it sets forth eyeprotection requirements that apply only in cases where there is a\”danger of splashing.\” The standard is directly analogous to the oneinvolved in Pratt & Whitney I, ? 1910.94(d)(7)(iii). That standardprohibits the use of a common exhaust system for open surface tankswhere the combination of substances in a duct system \”may constitute afire, explosion, or chemical reaction hazard.\” Thus, use of a commonexhaust system is prohibited only where certain hazards \”may\” occur. TheSecond Circuit held that under that standard the Secretary must show ineach case the existence of a significant risk of harm from the use of acommon exhaust system. Similarly, under the standard cited here, theSecretary must show a \”danger of splashing\” in each case, that is, asignificant risk of harm due to splashing.[[3]]We find that the evidence in this case meets that test. The solutions innumerous tanks were shown to be harmful to the eyes if splashed intothem. The IH made an \”educated observation\” that the solutions in overhalf of Anoplate’s tanks were corrosive enough to at least irritate theeyes. His conclusion was based in part on (1) statements by eitherMilton Stephenson, Anoplate’s president, or his son John, who acted assafety director, regarding the concentrations of acids and alkalies inthe tanks beside which employees were working during the inspection; (2)Anoplate’s injury records; and (3) sources in the literature indicatingthat the same type of chrome plating done at Anoplate can lead toemployees suffering holes in the nose.As to the concentrations of acids and alkalies, the industrial hygienisttestified that Milton or John Stephenson had told him the solutions invarious tanks were as follows: sulfuric acid in a concentration of 15%to 20% by volume; chromic acid in a concentration of 28 ounces pergallon of liquid (22% by volume); nitric acid in a concentration of 40%to 55% by volume; hydrochloric acid in a concentration of up to 40% byvolume. Certain other tanks were heated to 160?- 180? F and containedOakite alkaline cleaners.[[4]]As to the injury records, the IH testified that at the inspection he wasshown records for the previous three years and that they showed \”quite afew eye injuries due to acid in the eye,\” although these records did notshow how the acid got into the eyes. The records also revealed injuriesdue to acid splashing on the body. There also was an employee eye injurydue to splashing of nitric acid about 2 1\/2 months before theinspection. The employee involved was a plater in the anodizingdepartment, where the injury occurred. He was not required to wear eyegoggles at that time. Another splashing injury to an employee’s eyes in1978, involving chromic acid, occurred during chemical additions to atank.[[5]] It is logical to infer from those injury records that thesolutions in certain tanks at the time of the inspection would heharmful to the eyes if splashed into them, and there was no contraryevidence. In fact, the IH testified without contradiction that each typeof electroplating is a quite uniform process.The IH had the scientific background to support his opinion based on theinjury records and the other data noted above, that many of thesolutions would be harmful to the eyes. The IH held a master’s degree inenvironmental health, had taken numerous organic and inorganic chemistrycourses, was a registered sanitarian with the state of California andhad five years of experience as an OSHA industrial hygienist.As to the literature relied on by the IH, he did not identify it. Hisreliance on it to establish that chromic acid ions can cause holes inthe nose is, however, consistent with a finding in another case made bythe Commission on the basis of expert testimony and on an OSHA standard,section 1910.94(d)(9) (viii), which requires the nostrils and other bodyparts of workers exposed to chromic acid to be examined for incipientulceration. See Schulte Corp., ___ OSAHRC ____, 12 BNA OSHC 1222, 1224,1985 CCH OSHD ? 27,210, p. 35,126 (No. 80-2666, 1985)(expert testimonyestablished that 0.1% chromic acid solution could lead to chromic ulcersfrom direct contact, as the crucial factor is not strength of solutionbut presence of chromic ion).Contrary to Anoplate’s contention, the IH’s other testimony, read as awhole, is consistent as to the harmfulness of the solutions. He admittedon cross-examination that he did not take samples to verify Anoplate’sstatements as to what was in the various tanks, but given the statementsby Anoplate officials, he did not need to. Those statements areadmissions binding on Anoplate. F.R.E. 801(d)(2)(D). Because the IH hadnot taken samples, he admitted he was not absolutely certain whether thesolutions in a nickel tank, chromic acid tank and an acid zinc linewould be harmful if an employee put his hand into them, but based on hiseducation and experience he was of the opinion that they could beharmful to the hand, a part of the body less delicate than the eye. Hisopinion testimony was consistent that certain of Anoplate’s tankscontained harmful solutions. In light of this evidence and the lack ofevidence to the contrary, we find that the evidence establishes that thesolutions would be harmful to the employees’ eyes.We also find a significant risk that these solutions might splash intothe employees’ eyes. Splashing of these liquids into the eyes hadoccurred and was likely to recur. We note again the recent splashinginjury to the eye of an Anoplate employee. We also note that splashinginjuries to the body had occurred within the last three years atAnoplate’s plant. Inasmuch as employees stood by the tanks and workedover them when lowering racks of parts into them and lifting the racksout, we find that an employee’s eyes would be directly at risk if asplash occurred in a tank with a harmful solution while the employeedipped parts into it. The IH testified that he saw \”employees usingalmost all of the tanks at one time or another\” and that in his opinionemployees would work at all the tanks, including the nitric acid tanks.Finally, we find a significant risk to the eyes despite the fact thateye irritation was the only hazard that the IH definitely stated wouldresult from a splash into the eyes. Eye irritation caused by strong acidsolutions and hot alkaline solutions splashed in employees’ eyes must beconsidered significant for the eye is an especially delicate organ.Vanco Construction, Inc., 82 OSAHRC 71\/A2, 11 BNA OSHC 1058, 1060,1983-84 CCH OSHD ? 26,372, p. 33,453 (No. 79-4945, 1982), aff’d, 723F.2d 410 (5th Cir. 1984). We also note that the Act contemplatesviolations that are not \”serious\”. See section 17(c) of the Act, 29U.S.C. ? 666(c). We therefore find that a significant risk of harm toemployees’ eyes was posed and therefore that a \”danger of splashing\”within the meaning of the standard was shown.Anoplate makes a number of other arguments in support of its positionthat eye protection was not required during the operations involvedhere. It argues that the standard does not apply to ordinary platingoperations. It urges that to prove a violation of the cited standard,the Secretary must show a violation of ? 1910.133, referred to in thestandard. It also asserts that no violation of the cited standard can befound unless the Secretary proves the feasibility of the means ofcompliance set forth in it–\”tight-fitting chemical goggles or aneffective face shield.\” We reject these arguments for the following reasons.We reaffirm the Commission’s holding in Schulte that the standardapplies when a \”danger of splashing\” arises from adding parts to atank.[[6]] Anoplate specifically argues that the phrase \”the employeesso engaged\” in the standard (p. 2 supra) limits its application to themanual addition of acids and chemicals to the tanks, or when acids andchemicals are removed from the tanks. As Schulte noted, however, thephrase \”for example\” in the standard signifies that the standard wasintended to cover more than just additions and removal of acids andchemicals. A common sense interpretation of the words \”the employees soengaged\” is that they refer to employees engaged in work at open surfacetanks where there is a danger of splashing.We reject Anoplate’s argument that the proof requirements of ? 1910.133must be met to prove a violation of ? 1910.94(d)(9)(v). Section1910.133, an eye protection standard, states, \”Protective eye and faceequipment shall be required where there is a reasonable probability ofinjury that can be prevented by such equipment.\” Section 1910.133 alsocontains detailed requirements for eye goggles and face shields. Weconclude that the reference in section 1910. 94(d)(9)(v) to section1910.133 is merely a cross-reference intended to point the reader to thedetailed specifications for eye goggles and face shields under thatstandard, and not an indication that section 1910.94(d)(9)(v) appliesonly when section 1910.133 would apply anyway. In any event, inevaluating significant risk under section 1910.94(d)(9)(v), we doconsider the reasonable probability of injury.We also reject Anoplate’s assertion that the Secretary had to prove thefeasibility of the specific means of compliance required by thestandard, \”tight- fitting chemical goggles or an effective face shield.\”Where a regulation specifies the means of compliance, as here, theSecretary bears no burden of proving that those means are feasible.E.g., Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1115(7th Cir. 1982); see Brennan v. OSHRC (Underhill Construction Corp.),513 F.2d 1032, 1035 (2d Cir. 1975).Anoplote had the requisite knowledge of the conditions constituting theviolations as shown by its own injury records and by the fact that itspresident, or his son, who acted as safety director, had occasion dailyto observe the employees as they worked.As to the seriousness of the violation, we find the evidence about eyeirritation did not demonstrate a substantial probability that seriousharm could result from the violation, as discussed above. Thus, we findonly a nonserious violation. See Duquesne Light Co., 84 OSAHRC 23\/D2, 11BNA OSHC 2033, 2038-39, 1983-84 CCH OSHD ? 26,259, pp. 34,602-03 (No.79-1682, 1984)._Citation 1, Item 2 (Amended Complaint ? VI(d):_? 1910.94(d)(9)(vii)–Facilities for washing off harmful chemicalsThe Secretary alleged a violation of ? 1910.94(d)(9)(vii) in that therewas no supply of clean, cold water near each open surface tankcontaining liquids that could harm employees’ skin if splashed on thebody. The standard states:Near each tank containing a liquid which may burn, irritate, orotherwise 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 apressure not exceeding 25 pounds) shall be provided with a quick openingvalve and at least 48 inches of hose not smaller than three-fourthsinch, so that no time may be lost in washing off liquids from the skinor clothing. Alternatively, deluge showers and eye flushes shall beprovided in cases where harmful chemicals may be splashed on parts ofthe body.The basic dispute is whether the Secretary proved that Anoplate’sfacilities were inadequate in light of the numerous,continuously-running water hoses Anoplate had in the two buildings whereelectroplating was carried on. We agree with Anoplate that itsfacilities were not shown to violate the standard.The Secretary relies on the IH’s testimony that the only facilities heconsidered suitable for washing harmful liquids off the body were twoeyewash bottles in building 3, and that he considered them insufficientto comply with the cited standard. The IH also testified that the tankscontaining harmful liquids were dispersed around buildings 2 and 3.The judge found a serious violation on this evidence, and alsodetermined there was a need for deluge showers, based on the IH’sstatement to that effect. However, unrebutted testimony by Anoplate’spresident establishes that it had numerous water pipes and hoses meetingthe specifications of the standard. He testified that there were atleast three water hoses with continuously-running water feeding rinsetanks in each building. Those hoses were at least 48 inches in lengthand 3\/4-inch or larger in diameter, as required by the standard. Thoughthe water pipes did have quick-opening valves, the fact that they rancontinuously made that measure unnecessary.[[7]] The Secretary arguesthat the rinse tank water was insufficient because it had residues ofthe chemicals used in Anoplate’s processes. However, all of thecontinuously-running hoses apparently could be readily removed from thetanks for purposes of washing the eyes and body and there was notestimony that the running water was not \”clean cold water.\” Thus, therewas no showing that the hose water was insufficient under the standard.We also find a lack of proof that these water hose facilities were nosufficiently \”near each tank containing a liquid which may…be harmfulto the skin if splashed upon the worker’s body.\” As we stated in GibsonDiscount Center, Store No. 15, 78 OSAHRC 30\/C1, 6 BNA OSHC 1526, 1527,1978 CCH OSHD ? 22,669, p. 27,357 (No. 14657, 1978), in vacating acitation under a similar eyeflush standard:We agree with [the employer] that this standard does not require waterfacilities to be within any specific linear distance. Rather, thedistance permitted depends on the particular circumstances; for example,the strength of the corrosive material and the configuration of the workarea. (Footnote omitted.) The only specific evidence offered by theSecretary as to where eyewash facilities should be located was in regardto building 2. The IH testified that in his opinion there should be asuitable eyewash facility for each line in that building. He noted thatthe building was 140 feet long and 50 feet wide and that about eightemployees worked there. He also noted that it contained an aluminumanodizing line, a cadmium plating line, a zinc plating line and linesusing alkaline cleaners and phosphoric acid, and that these lines weredistributed throughout the building.The IH did not indicate how close to the harmful solutions in each linethe water supplies needed to be. There was no evidence as to how quicklyAnoplate’s acid and alkaline solutions should be flushed from the bodyto avoid injury, or how the configuration of the work area affected theallowable distance. Thus, as in Gibson Discount Center, we lack asufficient factual basis to conclude that Anoplate’s washing facilitieswere too far away from the tanks containing harmful liquids.We also note that the IH testified that at the time of the inspection hehad concluded that only three sources of supply were needed in building2, one at each end of the room and one in the middle. Thus, his opinionswere not consistent as to how many facilities were needed, and where,and he did not explain why his opinion changed. Anoplate had at leastthree suitable facilities each in building 2 and in building 3. Theevidence does not show that those facilities were not \”near\” enough tothe various plating lines.The judge erred in finding that deluge showers were required because thewater hose system did not meet the standard’s requirements. Since theSecretary did not show the inadequacy of the water hose system, he didnot establish that deluge showers or eye flushes were required.[[8]]_Citation 1, Item 3 (Amended Complaint ? VI (e)):_Section 5(a)(1) of the Act–Storage of acids and cyanidesThe Secretary alleged a violation of section 5(a)(1) of the Act, 29U.S.C. ? 654(a)(1), or in the alternative, ? 1910.176(c),[[9]] in that\”chemically incompatible materials such as acids and cyanides werestored together or were adjacent to each other, exposing employees topossible dangerous vapors, gases or fire if chemicals shouldaccidentally come in contact with each other.\” Section 5(a)(1) of theAct states that each employer shall furnish to each of his employeesemployment anda place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees;We conclude that the Secretary met his burden of proof under the generalduty clause and therefore affirm this item.It is undisputed that a row of containers labeled or identified ascyanides were stored within two to seven feet of a row of containerslabeled or identified as acids, in a storage area of building 1. The tworows were separated only by a walkway. It also is undisputed thatpotentially deadly hydrogen cyanide (\”HCN\”) gas would be generated ifacid and cyanide were to mix.To prove that an employer violated section 5(a)(1), the Secretary mustshow that a condition or activity in the employer’s workplace presents ahazard to employees, that the cited employer or the employer’s industryrecognizes the hazard, that the hazard is likely to cause death orserious physical harm and that feasible means exist to eliminate ormaterially reduce the hazard. Sharon Steel Corp., ___ OSAHRC ____, 12BNA OSHC 1539, 1541, 1985 CCH OSHD ? 23,423, p. 35,526 (No. 80-2751, 1985).It is clear that the common storage of cyanide and acid containers poseda hazard,[[10]] and that Anoplate recognized this to be a hazard. As thejudge noted, Anoplate’s John Stephenson confirmed during the inspectionthat the containers held cyanides and acids, some in liquid form andsome in a dry state, and agreed that their common storage was hazardous.Manufacturers’ warnings on some of the acid containers stated \”Caution:keep away from cyanides\” and those on some cyanide containers urged thatthe cyanide be kept away from acids. The record also established afeasible and useful means of abatement. The IH testified withoutcontradiction that Anoplate could store the cyanides and acids inseparate rooms.The remaining question is whether the Secretary proved that Anoplate’sstorage practices were \”hazards that are causing or are likely to causedeath or serious physical harm\” to Anoplate’s employees. It isundisputed that HCN gas is \”likely to cause death or serious physicalharm\” to exposed employees if generated. Anoplate argues, however, thata violation cannot be found because it was not shown that HCN gasformation was likely to occur. If Anoplate means by its argument thatthe evidence must show that the occurrence of serious harm is morelikely than not, or that the likelihood must be established withmathematical precision, we would disagree. There are serious injuriesand illnesses that are less than 51% probable to result from recognizedhazards in the workplace but are nevertheless sufficiently \”likely\” towarrant abatement. We do not think it necessary that the Secretary pindown a probability precisely. Although we think that no test oflikelihood can be stated with complete clarity, we do think it proper tolook to both the likelihood and degree of harm and to be mindful that byusing the limiting phrase \”recognized hazards that are causing or arelikely to cause death or serious physical harm,\” Congress had a definitepurpose to accomplish–to limit section 5(a)(1) to conditions that fewcould doubt are dangerous enough to warrant abatement. We also think itimportant that a number of federal courts have indicated that amathematically precise test is unnecessary, and that the Commission’sgood judgment in the matter must govern in the end:If evidence is presented that a practice could eventuate in seriousphysical harm upon other than a freakish or utterly implausibleconcurrence of circumstances, the Commission’s expert determination oflikelihood should be accorded considerable deference by the courts.National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 n.33(D.C. Cir. 1973). Accord, Illinois Power Co. v. OSHRC, 632 F.2d 25, 29(6th Cir. 1980); Titanium Metals Corp. of America v. Usery, 579 F.2d 536(9th Cir. 1978).Here, the evidence establishes a sufficient likelihood of generation ofHCN through intermixture of cyanide and acid. Intermixture could occurin several ways. The metal containers that held some of the cyanides andacids could have rusted and leaked their contents. Anoplate’s presidentacknowledged that metal containers rust and can leak. Indeed, one metalcontainer in the immediate vicinity of the cyanides–which Anoplate’spresident testified may have contained chromic acid–had leaked.Intermixture also could occur during a fire in the storage area. Some ofthe containers of cyanides and acids were made of cardboard, which couldburn and liberate the contents. The storage area had an overheadsprinkler system designed to activate in the event of fire; the waterreleased from that system would have increased the likelihood ofintermixture and generation of HCN gas if during the fire acids andcyanides were released from their containers. We therefore conclude thatthe Secretary established the existence of a hazard that was \”likely tocause death or serious physical harm\” under section 5(a)(1).[[11]]Anoplate argues that citation to section 5(a)(1) is inappropriate herebecause the cited condition is covered by ? 1910.176(c)(n.9 supra). See29 C.F.R. ? 1910.5(f) (section 5(a)(1) inapplicable when standardapplies); Brisk Waterproofing, Inc., 73 OSAHRC 30\/E1, 1 BNA OSHC 1263,1973-74 CCH OSHD ? 16,345 (No. 1046, 1973) (same). The condition citedby the Secretary under section 5(a)(1) is common storage of chemicalsthat when mixed accidentally could generate HCN gas and poisonemployees. The standard mentions only fire and explosion hazards.Inasmuch as ? 1910.176(c) does not expressly cover the HCN poisoninghazard, and we are unconvinced that the drafters of ? 1910.176(c), whichis entitled \”Housekeeping,\” implicitly intended to cover HCN poisoningbut require little or no protection against it, we conclude that section1910.176(c) does not cover the cited condition and hence does notpreempt section 5(a)(1).Anoplate also argues that Judge Hassenfeld’s ruling permitting theprehearing amendment to allege a violation of section 5(a)(1) of the Actin the alternative was erroneous. Anoplate argues that the amendment wastardy and caused it to devote more time and effort to the defense of thenew allegation. A judge’s ruling on a motion to amend will be upheldunless the ruling was an abuse of discretion. E.g., TRG Drilling Corp.,81 OSAHRC 108\/D10, 10 BNA OSHC 1268, 1981 CCH OSHD ? 25,837 (No.80-6008, 1981). The Commission has also held that prehearing amendmentsshould be granted as long as the objecting party would not be prejudicedin the preparation and presentation of its case. United Cotton Goods,Inc., 82 OSAHRC 8\/A2, 10 BNA OSHC 1389, 1982 CCH OSHD ? 25,928 (No.77-1894, 1982). Here, the original and amended charges arose from thesame physical circumstance cited originally–the common storage of acidsand cyanides. The hazard of poisoning by gas, which the standard doesnot cover, was nevertheless encompassed by the term \”possible dangerousgases [or] vapors\” in the citation and the amended complaint. TheSecretary’s answers to interrogatories specifically identified HCN gasas an alleged hazard resulting from common storage. The motion to amendwas made 3 1\/2 months before the hearing on the merits. Anoplate did notshow that the timing of the amendment adversely affected its ability toprepare and present its defense nor did it show how the judge whopresided over the prehearing stage abused her discretion in granting themotion to amend. We therefore uphold the judge’s order granting theamendment._Citation 2, Item 1 (Amended Complaint ? VI(f):_29 C.F.R. ? 1904.2(a)–Sufficiency of injury logThe Secretary alleged a violation of ? 1904.2(a) in that entries inAnoplate’s injury and illness log were insufficient. It is undisputedthat Anoplate maintained an injury and illness log and that it recordedfor each injury the date, the employee’s name and the medical attentiongiven. Anoplate did not, however, always record the employee’s job titleand regular department as required by OSHA Form 200. There is also adispute over whether the injury record identified the injury or illnesswith sufficient specificity. The regulation provides:? 1904.2 Log and summary of occupational injuries and illnesses.(a) Each employer shall, except as provided in paragraph (b) of thissection, (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The logand summary shall be completed in the detail provided in the form andinstructions on form OSHA No. 200.OSHA Form 200 requires for each injury the following information, amongother things: the employee’s \”regular job title\” or \”a brief descriptionof the employee’s duties,\” the \”department in which the employee isregularly employed or a description of normal workplace to whichemployee is regularly employed or a description of normal workplace towhich employee is assigned,\” and \”a brief description of the injury orillness and…the part or parts of body affected.\” We conclude that theSecretary established a technical violation of the requirement that theemployee’s job title and regular department be entered, but that theviolation was de minimis. We also find that the evidence is insufficientthat Anoplate failed to specify the type of injury.Judge Furcolo found that Anoplate’s injury records did not alwaysspecify the injured employee’s job title or location. This finding issupported by the record. Although the Secretary did not submit theinjury records into evidence, the IH testified on the basis of hisexamination of the records that the injured employee’s job title andregular department were not always listed.However, the IH also testified that an Anoplate manager had told himthat the missing details in its records were not necessary because allthe employees in Anoplate’s small workforce (about 38 employees) knewwhat everyone else did. Also, the IH testified that he was able to makea fair assumption as to the location in the plant of each type of eyeinjury based on the information in the records. In light of this, andthe lack of evidence that the failure to list the injured employees’ jobtitles and regular departments hindered the IH’s investigation, itappears that the purposes of the form were achieved. In thesecircumstances, Anoplate’s noncompliance bears such a negligiblerelationship to employee safety and health as to render imposition of apenalty or abatement order inappropriate, and therefore we affirm theviolation of the \”job title\” and \”regular department\” requirements as deminimis. Cf. Clement Food Co., 84 OSAHRC 128\/B10, 11 BNA OSHC 2120,2126, 1983-84 CCH OSHD ? 26,972, p. 34,636 (No. 80-607, 1984).We also vacate the citation to the extent it alleges a failure tospecify the type of injury. OSHA Form 200 requires only a \”briefdescription\” of the type of injury and the parts of the body affected.Again, because the Secretary did not submit the records in evidence, theonly evidence on the issue is the testimony of the IH. The IH’stestimony is, however, inconsistent as to whether the type of injury waslisted; at one point, the IH testified that to his recollectionAnoplate’s records failed to disclose the nature of employees’ injuries,but at another point he testified that the records included the types ofinjuries. He also did not explain what specific deficiencies there werein the descriptions of injuries. This evidence is insufficient tosupport a finding of a violation.Because the only violation we find is de minimis, we amend this item toa de minimis notice with no abatement order or penalty._Citation 2, item 2 (Amended Complaint ? VI(g): _? 1904.6–Retention of injury log? 1904.6–Retention of injury logThe Secretary alleged a violation of section 1904.6 in that Anoplate’sOSHA Form 200 (and its predecessor forms OSHA No. 100 and 102) \”were notretained in the establishment for 5 years following the end of the yearto which they relate.\” The regulation provides:? 1904.6 Retention of records.Records provided for in ?? 1904.2, 1904.4, and 1904.5 (including formOSHA No. 200 and its predecessor forms OSHA No. 100 and OSHA No.102)shall be retained in each establishment for 5 years following the end ofthe year to which they relate.We find the proof insufficient that the records were not retained in theestablishment as required, and thus we vacate the item.Judge Furcolo found a violation because the IH had asked during theinspection for Anoplate’s injury records for the preceding five years.Because the company was able to produce records during the inspectionfor only the past three years, the judge found that Anoplate \”apparentlyhad them for only 3 years.\” However, the key question under the standardis whether the Secretary submitted sufficient evidence that the recordswere not \”retained\” in the establishment for five years. The standarddoes not require that they shall be provided to the Secretary uponrequest. That is required by section 1904.7(a).The evidence is insufficient to establish that Anoplate’s records werenot \”retained\” in the establishment for five years. During theinspection, Anoplate’s president told the IH that there were recordsaround going back farther than three years, but that he simply could notlocate them at that time. At the hearing, the IH testified, \”I don’thave any evidence that they did not maintain records, all that I know isthat I didn’t get five years [of records].\” Indeed, the Secretarypresented no evidence that Anoplate did not retain records for the fullfive years. He did not apply for a subpoena under Commission Rule 55, 29C.F.R. ? 2200.55, to require the production of the records by theircustodian at Anoplate, or request admissions under Commission Rule 52,29 C.F.R. ? 2200.52. Without evidence of nonretention, we cannot find aviolation. Accordingly, we will vacate this item._Citation 2, item 3 (Amended Complaint ? VI(h)_:? ? 1910.23(a)(5)–Unguarded pitThe Secretary alleged a violation of section 1910.23(a)(5) because aninfrequently used sump pit adjacent to a wall in building 2 had anuncovered area about 11-13 inches wide, 2 1\/2 feet long and 3-4 feetdeep, on the first day of the inspection.[[12]] The standard provides:? 1910.23 Guarding floor and wall openings and holes. (a) Protection forfloor openings.* * *(5) Every pit and trapdoor floor opening, infrequently used, shall beguarded by a floor opening cover of standard strength and construction.While the cover is not in place, the pit or trap opening shall beconstantly attended by someone or shall be protected on all exposedsides by removable standard railings.We vacate this item because the Secretary failed to prove that employeeshad been in the zone of danger posed by the violative condition, or thatit was reasonably predictable that they would be in that zone of danger.The judge found a violation on the ground that the uncovered area wasnear an employee passageway, and he suggested that an employee might,through inadvertence, step into the opening. However, in order to provea violation the Secretary must prove that it is reasonably predictablethat employees have been, are, or will be in the zone of danger duringthe course of their assigned duties, personal comfort activities on thejob or normal means of entrance to and exit from their assignedworkplace. E.g., Carpenter Contracting Corp., 84 OSAHRC 22\/B10, 11 BNAOSHC 2027, 2029-30 and n. 3, 1983-84 CCH OSHD ? 26,950, pp. 34,563-64and n. 3 (No. 81-838, 1984). Although the uncovered pit contained a sumppump, which employees would occasionally repair, the concern of theSecretary evidently is that employees not so engaged might fall into thepit. The IH testified that the uncovered area was about 15 feet from ametal plating line where employees worked; he also testified that it was\”near\” an employee passageway but he did not specify the distancebetween the two. We cannot determine from these statements why anemployee might approach the pit, which was adjacent to a wall.Admittedly, repairs to the pump were infrequent. The IH speculated thatan employee might have stepped next to the unguarded area to move alarge, heavy tank that was there on the first day of his inspection;however, he admitted that possibly no employee had been near the areafor that operation. This evidence is too speculative to serve as thebasis for finding a violation. No evidence established that it wasreasonably predictable that employees would be in the zone of dangercreated by the unguarded portion of the pit. Thus, we vacate this item._Citation 2, item 4 (Amended Complaint ? VI (i):? 1910.107(e)(27)—Storage of flammable and combustible liquids forspray painting _The Secretary alleged a violation of ? 1910.107(e)(2) in that thequantity of flammable and combustible liquids kept in the vicinity ofAnoplate’s spray painting operation \”exceeded the minimum required forthe operation,\” and that the manner of bulk storage of portablecontainers of such liquids was impermissible. The standard provides:The quantity of flammable or combustible liquids kept in the vicinity ofspraying operations shall be the minimum required for operations andshould ordinarily not exceed a supply for 1 day or one shift. Bulkstorage of portable containers of flammable or combustible liquids shallbe in a separate, constructed building detached from other importantbuildings or cut off in a standard manner.We find that Anoplate violated the mandatory provisions of bothsentences of the standard.The Secretary established that the quantity of paint, thinners andsolvents stored adjacent to the spray booth exceeded \”the minimumrequired for operations.\” The IH testified that numerous cans withlabels indicating that they contained paint, thinners and solvents werestockpiled on the opposite side of one of the spray booth’s walls, andthat five-gallon drums of the same liquids were stockpiled on anadjacent wall. Labels on containers are sufficient evidence of theircontents in the absence of contrary evidence. See Alpha Poster Service,Inc., supra n. 10. A photograph in evidence taken by the IH showsapproximately 10 or more cans he identified as containing these liquidson the wall opposite the spray booth. He picked up numerous containersand found that some were full and others were half-full. He testifiedthat an Anoplate employee who did spray painting told him that theynever would use all the stockpiled paint, thinners and solvents in aday, and that the employee also said that less than an hour of spraypainting was done on an average day. Anoplate did not object to, orcontradict, the IH’s testimony of what the employee told him. Wetherefore find that the quantity of paint, thinners and solventsexceeded \”the minimum required for operations.\”We also find that the liquids were \”flammable or combustible\” within theordinary meaning of those words. The IH testified that all thecontainers of liquids had labels identifying their contents as paint,thinners and solvents. The IH also testified based on his experience andknowledge of chemistry and from reading the labels that these liquidswere flammable or combustible. He was well-qualified to give thatopinion based on his scientific background, discussed above at p. 8. SeeStanbest, 11 BNA OSHC at 1227, 1983-84 CCH OSHD at pp. 33,620-21. Moreimportantly, Anoplate did no offer any contraverting evidence that theseliquids were not flammable or combustible.Moreover, the labels on certain containers specifically stated that theyheld a \”flammable liquid.\” There were containers stating that they heldxylene and MEK (methylethyl ketone). We take official notice under 5U.S.C. ? 556(e) that these substances have flashpoints of 81-90? F and22? F, respectively.N.Sax, Dangerous Properties of Industrial Materials, 438, 1094-95 (5thed. 1979)(\”Sax\”). See Stanbest, 11 BNA OSHC at 1227, 1983-84 CCH OSHD atp. 33,620-21. These flashpoints are low enough that they would beconsidered flammable in the usual sense of the word, i.e., as \”capableof being easily ignited and of burning with extreme rapidity.\” Webster’sThird New International Dictionary (1971); Sax at 438, 1094 (fire hazardof MEK (2-butanone) and xylene rated as \”dangerous when exposed to heator flame\”); National Fire Protection Association (\”NFPA\”), FireProtection Guide on Hazardous Materials, pp. 325M-13, 325M-103,325M-139, 49-16 and 49-230 (xylene and MEK have fire hazard ratings of 3on scale of 0 to 4, i.e., \”can be ignited under almost all normaltemperature conditions\”); see also id. at 704M-19 (\”if [a liquid] has aflashpoint, it must be considered flammable or combustible\”).[[13]]The evidence also establishes that Anoplate’s bulk storage of portablecontainers of flammable and combustible liquids was not confined to \”aseparate, constructed building detached from other important buildingsor cut off in a standard manner.\” Anoplate stored paint, thinners andother flammables and combustibles in three paint lockers in the sameroom with the spray booth and only about 20 to 25 feet from it. It alsostockpiled those materials on walls adjacent to the spray booth. Wetherefore find that Anoplate violated the bulk storage provision of thestandard.Anoplate argues that the standard is merely advisory and cannot beenforced against it. Anoplate relies on the language that flammable orcombustible liquids \”should ordinarily not exceed a supply for 1 day orone shift.\” (Emphasis added.) We agree that the language just quoted isnot mandatory because it uses the word \”should\”. However, Anoplate wasshown to have violated portions of the standard that use the word\”shall\” and we find violations of only those portions.Anoplate argues that the Secretary failed to show that it knew orreasonably could have known of the violative conditions. We disagree,for the conditions were in plain view.Finally, Anoplate argues that the Secretary failed to show a significantrisk of harm. As discussed above, we agree with the reasoning in Pratt &Whitney that where a standard does not incorporate a finding of asignificant risk of harm, but leaves that for case-by-casedetermination, the Secretary must show the existence of a significantrisk of harm in each case. However, the Pratt & Whitney court noted thatmost OSHA standards are specific and presume the existence of a safetyhazard when their terms are not met. 715 F.2d at 63. That is, theyspecifically require or prohibit certain practices or conditions withoutproof of a hazard or potential hazard. Those standards incorporate afinding that the prohibited practices or conditions present asignificant risk of harm (or that the absence of required practices orconditions presents a significant risk of harm). The Pratt & Whitneycourt made clear that the Secretary need not prove a significant risk ofharm under those standards, citing with approval Super Excavators, Inc.v. OSHRC, 674 F.2d 592, 595 (\”the Secretary need only prove a [violationof a] regulatory standard where the standard is specific.\”) 715 F.2d at63-64 and n.4.The first part of ? 1910.107(e)(2) specifically prohibits storage offlammable and combustible liquids in the vicinity of spraying operationsin a quantity exceeding \”the minimum required for operations.\” It doesnot leave for case-by-case determination whether sufficient hazardsexist to warrant those precautions. Thus, it presumes the existence of ahazard when its terms are not met. See Stanbest, 11 BNA OSHC at 1231,1983-84 CCH OSHD at p. 33,625. The second part of the standardspecifically requires \”bulk storage of portable containers of flammableor combustible liquids\” to be confined to a \”separate constructedbuilding\” meeting certain requirements. Again, no case-by-casedetermination of whether hazards exist is called for. Thus, that part ofthe standard also presumes the existence of a hazard when its terms arenot met.Because both mandatory requirements in the standard presume theexistence of a hazard when their terms are not met, the Secretary bearsno burden of proving a significant risk of harm due to noncompliancewith them. As discussed above, the Secretary made out a violation ofboth those mandatory requirements. We will therefore affirm this itemunless Anoplate requests an opportunity within 10 days of thisdecision’s date of issuance to present evidence contrary to the facts ofwhich we have taken official notice. See n.13 supra._Citation 2, item 5 (Amended Complaint ? VI(j):_? 1910.242(b)–Compressed air pressureThe Secretary alleged a violation of section 1910.242(b) in that\”compressed air used for cleaning purposes was not reduced to less than30 p.s.i.\” The standard provides:Compressed air used for cleaning. Compressed air shall not be used forcleaning purposes except where reduced to less than 30 p.s.i. and thenonly with effective chip guarding and personal protective equipment.We vacate this item because the evidence is insufficient that thecompressed air was used for \”cleaning\” as opposed to merely drying partsthat already had been cleaned and rinsed in Anoplate’s tanks.The IH used an air pressure gauge to determine that at least onecompressed air nozzle used on metal-plated parts had a pressure of 70 to80 pounds of pressure per square inch. The IH testified that the airnozzle was used to blow excess water and solution off metal-plated partsafter they had been rinsed, and to speed the drying process.The judge affirmed this item, finding that the air pressure exceeded 30p.s.i. However, the standard applies only to compressed air used for\”cleaning,\” not drying off of parts. The evidence here did notdemonstrate that the compressed air operations were \”cleaning\” withinthe meaning of the standard. Thus, we vacate this item._Penalties_In assessing penalties, the Commission is to give \”due consideration tothe appropriateness of the penalty with respect to the size of thebusiness of the employer being charged, the gravity of the violation,the good faith of the employer, and the history of previous violations.\”Section 17(j) of the Act, 29 U.S.C. ? 666(i). Anoplate is a smallemployer with about 38 employees and there was no evidence of a historyof violations. The IH testified that Anoplate did not demonstratecomplete good faith based on its inadequate efforts to abate the allegedeyewash facilities and pit opening violations, and based on itsrecordkeeping deficiencies. We disagree because we have found noviolation as to the eyewash facilities and pit opening and have foundthe recordkeeping deficiencies to be de minimis. Thus, the amount of thepenalty depends principally on the gravity of the violations we have found.The judge assessed a $50 penalty for the failure to require eye gogglesor face shields. We will reduce the penalty to $25 because, unlike thejudge, we find insufficient evidence that the violation would result inserious injury, even though a significant risk of harm existed.As to the section 5(a)(1) violation for failure to use separate storageareas for cyanide and acid containers, we agree with the judge that a$50 penalty is appropriate. Anoplate took the precaution of keeping thevarious containers shut, lessening the chances of intermixture of theincompatible chemicals. On the other hand, the consequences ofintermixture justify the imposition of a penalty.As to the other item we are affirming, the non-serious spray paintingstorage item, the Secretary proposed no penalty but the judge assessed$25, without explanation. The Secretary did not provide an evidentiarybasis to assess the gravity and probability of harm due to Anoplate’sstorage practices. Thus, we assess no penalty for this violation.To summarize, we affirm citation 1, item 1 (section 1910.94(d)(9)(v) asnonserious with a $25 penalty. We affirm citation 1, item 3 (section5(a)(1) of the Act) and assess a $50 penalty. We affirm citation 2, item4 (section 1910. 107(e)(2)) with no penalty, unless Anoplate requests anopportunity to introduce evidence contrary to officially noticed factswithin 10 days of this decision’s date of issuance. We amend citation 2,item 1 (section 1904.2(a)) to a de minimis notice with no penalty orabatement requirement. We vacate citation 1, item 2, alleging aviolation of section 1910.94(d)(9)(vii). We also vacate citation 2,items 2, 3 and 5, alleging violations of section 1904.6, 1910.23(a) (5)and 1910.242(b), respectively.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: March 4, 1986————————————————————————SECRETARY OF LABOR,Complainantv.ANOPLATE CORPORATION,RespondentOSHRC DOCKET NO. 80-4109_CORRECTION OF DECISION_On July 1, 1982, I issued a Decision which will be filed with theCommission on July 21, 1982, and will become its final order on August20, 1982. I find an error in it that should be corrected.On page 6, under \”Findings of Fact\”, strike the first 18 words, the 3commas, and the colon.FOSTER FURCOLOJUDGE, OSHRCDated: July 12, 1982Boston, Massachusetts————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Both parties petitioned for discretionary review of aspects of thejudge’s decision and those petitions were granted. The Secretarysubsequently notified the Commission of his intent to withdraw hispetition. The Commission treated the notice as a motion to withdraw thepetition and granted it on January 9, 1985.[[2]] Anoplate in its brief on review challenges the adequacy of thejudge’s findings of fact on certain items. However, the Commission hasthe ultimate responsibility for findings of fact, and may enter its ownfindings. Kenneth P. Thompson Co., 80 OSAHRC 67\/A2, 8 BNA OSHC 1696,1699, 1980 CCH OSHD ? 24,593 , p. 30,174 (No. 76-2633, 1980); see Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied,425 U.S. 903 (1976). We will enter our own findings here.[[3]] Commissioner Rader agrees that under the standard the Secretarymust show a significant risk both that splashing to the eyes couldoccur, and that the result would be harmful to the employee. Pratt &Whitney II, 715 F.2d at 64, However, Commissioner Rader does not agreethat the record in this case establishes a significant risk thatsplashing to the eyes could occur. Milton Stephenson’s unrebuttedtestimony was that Anoplate had only one eye injury from splashing innineteen years. It is true that Anoplate’s injury records showed othereye injuries, but there is no evidence that these resulted fromsplashing. To say that one splashing injury in nineteen yearsestablishes a \”significant risk\” is to nullify the significant risk bestfor all practical purposes. In General Motors Corporation, GM PartsDivision, 84 OSAHRC 23\/A2, 11 BNA OSHC 2062, 2065, 1984 CCH OSHD ?26,961, p. 34,611 (No. 78- 1443, 1984), aff’d, 764 F.2d 32 (1st Cir.1985), the Commission held that four foot injuries over a two-andone-half year period did not establish a realistic hazard under thefacts in that case. Commissioner Rader believes that the precedent inGeneral Motors and in Pratt & Whitney require vacation of citation 1,item 1(c) in the present case.[[4]] Contrary to Anoplate’s assertion, the IH did not testify that anemployee dipped his bare hand into any of these tanks as evidence oflack of corrosiveness of its contents.[[5]] Anoplate’s president testified that that injury occurred becausethe employee was not wearing eye protection, contrary to Anoplate’sinstructions to wear it during chemical additions to the tanks. Thus,that injury did not occur during the operations in question here. Theinjury is evidence, however, that the chromic acid solutions in certaintanks could injure the eyes.[[6]] As in Schulte, we reject Anoplate’s attempt to introduce for thefirst time on review an affidavit that Anoplate asserts supports itsinterpretation of the standard. Anoplate simply attached the affidavitto its brief without making any motion to re- open the record and admitthe affidavit into evidence. When Anoplate filed its brief, we hadalready made clear that regularity in legal practice in cases on reviewwas expected. See McWilliams Forge Co., ___ OSAHRC ___, 11 BNA OSHC2128, 2131, 1984 CCH OSHD ? 29,979, p. 34,671 (No. 80-5868, 1984)(parties may no longer make motions in review briefs and petitions fordiscretionary review). Even if we were to treat Anoplate’s conduct as amotion to re-open the record and admit the affidavit into evidence, wewould deny it. First, the affidavit is not admissible. Under CommissionRule 69, 29 C.F.R. ? 2200.69, affidavits are not admissible in lieu oftestimony without the consent of the opposing party; the Secretary hasnot consented to the admission of the affidavit. Second, Anoplate’sattempt is too late. The time to introduce evidence is at the hearing,not on review. Although the affidavit was signed four days before thehearing, Anoplate supplies no convincing reason why the affidavit wasnot presented at the hearing, why the affiant was not called to testify,or why the affidavit was not presented to the judge after the hearing.Anoplate argues that it did not present the affidavit to the judgebecause it could not have reasonably anticipated that the judge in hisdecision would interpret the standard to apply to parts dipping. TheCommission, however, construed the standard in that way almost threemonths before the hearing here. Pratt & Whitney Aircraft, 81 OSAHRC39\/A2, 9 BNA OSHC 1653, 1663, 1981 CCH OSHD ? 25,359, p. 31,510 (No.13401, 1981). Anoplate was also on notice at least from the time of theSecretary’s response to interrogatories that the violation was allegedto have occurred during parts-dipping. Moreover, the Secretary’sevidence at the hearing covered the hazards of parts-dipping. Finally,we consider the probative value of the affidavit to be a relevantconsideration here. See Chesapeake Operating Co., 82 OSAHRC 36\/C9, 10BNA OSHC 1790, 1792-93, 1982 CCH OSHD ? 26,142, p. 32,915 (No. 78-1353,1982). We are not convinced, however, that the affidavit is probative ofthe intent of the drafters of the standard. According to 29 C.F.R. ?1910.99 (sources of standards), section 1910.94(d) was derived from astandard drafted under the auspices of the American National StandardsInstitute (ANSI), ANSI Z9.1-1969, Safety Code for Ventilation andOperation of Open-Surface Tanks. The affiant states that he served from1969 to 1980 on the \”subcommittee which drafted and periodicallyreviewed the . . . standard ‘ANSI Z9.1–1969. . . . \”‘ We have found,however, that there was no ANSI Z9.1–1969 and that the statement insection 1910.99 to that effect must be a misprint. There was an ANSIZ9.1–1951 and an ANSI Z9.1–1977. See ANSI Z9.1–1971, ? 1.4 (1971 codesupplants Z9.1-1951). We therefore reject the affidavit.[[7]] There was no specific evidence as to what pressure the water pipescarried (the standard calls for a pressure not exceeding 25 pounds).However, the Secretary did not submit evidence that the water pipes wereout of compliance in this regard. He bears the burden of proof on theissue. Thus, no violation was proven based on excessive pressure in thewater pipes.[[8]] The evidence against Anoplate stands in sharp contrast to that inSchulte, where the Commission found a nonserious violation of the samestandard. There, the evidence showed certain plating lines using acidicsolutions were 60 feet and 125 feet, respectively, from the closesteyewash facilities, that the path-ways to both eyewashes were partiallyobstructed, and that the nitric acid solutions in certain tanks shouldbe removed very quickly (within 15-30 seconds) to avoid a chemical burn.[[9]] Section 1910.176 provides:? 1910.176 Handling materials–general.(C) Housekeeping Storage areas shall be kept free from accumulation ofmaterials that constitute hazards from tripping, fire, explosion, orpest harborage. Vegetation control will be exercised when necessary.[[10]] Anoplate argues that the contents of the containers were notproven because the IH did not actually open the containers and takesamples. There was evidence that one of the liquid containers, labeled\”hydroflourosilic acid,\” was tested by Anoplate and found not to containacid. However, the IH’s unrebutted testimony that Milton or JohnStephenson told him the containers held cyanides and acids, and thelabels on the containers to that effect, are sufficient evidence on thispoint. F.R.E. 801(d)(2)(D); Alpha Poster Service, Inc., 76 OSAHRC141\/B8, 4 BNA OSHC 1883, 1976-77 CCH OSHD ? 21,354 (No. 7869, 1976).That one container did not contain acid does not establish that othercontainers did not contain acids. There is no evidence that any othercontainers labeled as acids or cyanides did not contain those materials.The IH also determined that at least some of the containers were full byhandling them.[[11]] Anoplate contends that the Secretary was required to prove a\”significant risk\” of harm to establish a section 5(a)(1) violation. Weintimate no opinion about the merits of this contention. We merely notethat if the Secretary bears this burden of proof under section 5(a)(1),our findings indicate that he certainly met it.[[12]] At the hearing, Judge Hassenfeld further amended the amendedcomplaint to eliminate reference to a board subsequently placed over theuncovered area. The Secretary had alleged that the board was ofsubstandard strength.[[13]] Because our decision rests in part on official notice of materialfacts \”not appearing in the evidence of record,\” we note that under 5U.S.C. ? 556(e) Anoplate is entitled, upon timely request, to anopportunity to show that the facts noticed are erroneous. Thus, thisitem will be affirmed unless Anoplate requests an opportunity within 10days to present evidence showing that any of the facts we have noticedis in error.”