“Docket No. 80-4109 SECRETARY OF LABOR, Complainant, v. ANOPLATE CORPORATION, Respondent.OSHRC Docket No. 80-4109DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue is whether Anoplate Corporationviolated various OSHA standards and other requirements at its electroplating and metalfinishing plant in Syracuse, New York. A hearing was held before former Administrative LawJudge Barbara L. Hassenfeld after Judge Hassenfeld left the Commission, the case wasre-assigned to Judge Foster Furcolo, who wrote the decision that we review.[[1]] We affirmone of the items, conditionally affirm another, vacate four others, and modify JudgeFurcolo’s decision on two other items by reducing the classification of one to non-seriousand 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) in that employees inbuildings 2 and 3 were not required to wear chemical goggles or face shields at opensurface tanks where there was a \”danger of splashing.\” The cited standardstates:? 1910.94 Ventilation. (d) Open surface tanks–(9) Personal- protection.(v) Whenever there is a danger of splashing, for example, when additions aremade manually to the tanks, or when acids and chemicals are removed from the tanks, theemployees so engaged shall be required to wear either tightfitting chemical goggles or aneffective face shield. See ? 1910.133.It is undisputed that Anoplate required employees to wear chemical goggles or face shieldswhen making manual additions of liquids to tanks or removing liquids from them. Theparties disagree, however, as to whether Anoplate should have required employees to weareye protection while manually placing racks of parts in tanks. We agree with the Secretarythat eye protection should have been required because there is a \”danger ofsplashing\” during that operation. Anoplate’s electroplating and metal finishingoperations were conducted in buildings 2 and 3 of its facility, and they consisted of anumber of lines open surface tanks where different finishes were applied to manufacturedparts. The parts were made of various metals and ranged in size from a few ounces to 20 or30 pounds. Many of the tanks contained acidic or alkaline solutions. Generally, employeesused the following procedure. They placed the parts on a metal rack. The rack was loweredinto the tank solutions and raised from them manually. The top of the rack remained out ofthe solution, hung on a support pole above the tank. The parts on the racks were firstdipped into a cleaning tank, rinsed and then dipped into a series of tanks to anodize orplate them with protective coatings such as chrome of zinc. The tanks were about waistheight on the employees and generally ranged from 150 to 300 gallons in capacity. Thelevel of the solution in an average tank was 4 to 5 inches below the lip of the tank. Eachline consisted of between 10 to 15 tanks and lines were separated by walkways which were 3to 4 1\/2 feet wide.The primary dispute is whether employees shouldhave been required to wear eye protection when manually dipping parts and racks into thetanks. To prove that eye protection was required, the Secretary must establish that a\”danger of splashing\” existed within the meaning of the standard. The Secretaryargues that employees who worked at the tanks were exposed to a \”danger ofsplashing\” affecting the eyes when dipping parts into the tanks because the acidic oralkaline solutions in certain tanks were proven harmful to the eyes, and there was apossibility for splashing injuries to the eyes as shown by the nature of the operation andAnoplate’s injury records. Anoplate argues that the Secretary failed to prove a\”danger of splashing\” because he (1) failed to prove that the liquids, in thetanks would harm eyes, (2) failed to prove a danger of splashing the liquids into theeyes, and (3) failed to prove the existence of a significant risk of harm to employees asa result of the conditions in any event. However, we find that the Secretary hasestablished these facts.We will address first the issue whether theSecretary bore the burden of establishing the existence of a significant risk of harm.Anoplate argues that we should adopt the Second Circuit’s holding in Pratt & WhitneyAircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96 (1981)(\”Pratt & Whitney I\”); see also 715 F.2d 57 (2d Cir. 1983) (\”Pratt& Whitney II\”) (same case), that the Secretary must prove the existence of asignificant risk of harm in each case where he proceeds under a standard that does notincorporate a finding that that risk exists. We agree with the reasoning of Pratt &Whitney and will apply it in our proceedings. Accord, Donovan v. General Motors Corp., GMParts Div., 764 F.2d 32 (1st Cir. 1985). In Pratt & Whitney 1, the Second Circuitreasoned that to interpret an OSHA standard to apply in the absence of a significant riskof harm would be to enlarge the standard’s scope beyond that permitted by the Act. 649F.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 provide absolutelyrisk-free workplaces\” but to \”require the elimination, as far as feasible, ofsignificant risks of harm.\” Industrial Union Dept., AFL-CIO v. American PetroleumInstitute, 448 U.S. 607, 641 (1980). The Supreme Court relied principally on section 3(8)of the Act, 29 U.S.C. ? 652(8), stating:By empowering the Secretary to promulgatestandards that are \”reasonably necessary or appropriate to provide safe or healthfulemployment and places of employment,\” the Act implies that, before promulgating anystandard, the Secretary must make a finding that the workplaces in question are not safe.But \”safe\” is not the equivalent of \”risk-free.\” There are manyactivities that we engage in every day — such as driving a car or even breathing city air– that entail some risk of accident or material health impairment; nevertheless, fewpeople would consider these activities \”unsafe.\” Similarly, a workplace canhardly be considered \”unsafe\” unless it threatens the workers with a significantrisk of harm.448 U.S. at 642. Consistent with that decision,where a standard is not expressly or impliedly based on a finding that noncompliance willresult in a significant risk of harm, but rather — by using terms such as\”hazard\” or \”danger\” — leaves that determination to the Commission ona case-by-case basis, there must be a showing that a significant risk of harm exists inthe particular case.The standard cited here does not incorporate afinding of a significant risk of harm. Put another way, the standard does not presume ahazard when 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 CCH OSHD ? 26,455, p. 33,625 (No.76-4355, 1983). Rather, it sets forth eye protection requirements that apply only in caseswhere there is a \”danger of splashing.\” The standard is directly analogous tothe one involved in Pratt & Whitney I, ? 1910.94(d)(7)(iii). That standard prohibitsthe use of a common exhaust system for open surface tanks where the combination ofsubstances in a duct system \”may constitute a fire, explosion, or chemical reactionhazard.\” Thus, use of a common exhaust system is prohibited only where certainhazards \”may\” occur. The Second Circuit held that under that standard theSecretary must show in each case the existence of a significant risk of harm from the useof a common exhaust system. Similarly, under the standard cited here, the Secretary mustshow a \”danger of splashing\” in each case, that is, a significant risk of harmdue to splashing.[[3]]We find that the evidence in this case meetsthat test. The solutions in numerous tanks were shown to be harmful to the eyes ifsplashed into them. The IH made an \”educated observation\” that the solutions inover half of Anoplate’s tanks were corrosive enough to at least irritate the eyes. Hisconclusion was based in part on (1) statements by either Milton Stephenson, Anoplate’spresident, or his son John, who acted as safety director, regarding the concentrations ofacids and alkalies in the tanks beside which employees were working during the inspection;(2) Anoplate’s injury records; and (3) sources in the literature indicating that the sametype of chrome plating done at Anoplate can lead to employees suffering holes in the nose.As to the concentrations of acids and alkalies,the industrial hygienist testified that Milton or John Stephenson had told him thesolutions in various tanks were as follows: sulfuric acid in a concentration of 15% to 20%by volume; chromic acid in a concentration of 28 ounces per gallon of liquid (22% byvolume); nitric acid in a concentration of 40% to 55% by volume; hydrochloric acid in aconcentration of up to 40% by volume. Certain other tanks were heated to 160?- 180? Fand contained Oakite alkaline cleaners.[[4]]As to the injury records, the IH testified thatat the inspection he was shown records for the previous three years and that they showed\”quite a few eye injuries due to acid in the eye,\” although these records didnot show how the acid got into the eyes. The records also revealed injuries due to acidsplashing on the body. There also was an employee eye injury due to splashing of nitricacid about 2 1\/2 months before the inspection. The employee involved was a plater in theanodizing department, where the injury occurred. He was not required to wear eye gogglesat that time. Another splashing injury to an employee’s eyes in 1978, involving chromicacid, occurred during chemical additions to a tank.[[5]] It is logical to infer from thoseinjury records that the solutions in certain tanks at the time of the inspection would heharmful to the eyes if splashed into them, and there was no contrary evidence. In fact,the IH testified without contradiction that each type of electroplating is a quite uniformprocess.The IH had the scientific background to supporthis opinion based on the injury records and the other data noted above, that many of thesolutions would be harmful to the eyes. The IH held a master’s degree in environmentalhealth, had taken numerous organic and inorganic chemistry courses, was a registeredsanitarian with the state of California and had five years of experience as an OSHAindustrial hygienist.As to the literature relied on by the IH, he didnot identify it. His reliance on it to establish that chromic acid ions can cause holes inthe nose is, however, consistent with a finding in another case made by the Commission onthe basis of expert testimony and on an OSHA standard, section 1910.94(d)(9) (viii), whichrequires the nostrils and other body parts of workers exposed to chromic acid to beexamined for incipient ulceration. See Schulte Corp., ___ OSAHRC ____, 12 BNA OSHC 1222,1224, 1985 CCH OSHD ? 27,210, p. 35,126 (No. 80-2666, 1985)(expert testimony establishedthat 0.1% chromic acid solution could lead to chromic ulcers from direct contact, as thecrucial factor is not strength of solution but presence of chromic ion).Contrary to Anoplate’s contention, the IH’sother testimony, read as a whole, is consistent as to the harmfulness of the solutions. Headmitted on cross-examination that he did not take samples to verify Anoplate’s statementsas to what was in the various tanks, but given the statements by Anoplate officials, hedid not need to. Those statements are admissions binding on Anoplate. F.R.E. 801(d)(2)(D).Because the IH had not taken samples, he admitted he was not absolutely certain whetherthe solutions in a nickel tank, chromic acid tank and an acid zinc line would be harmfulif an employee put his hand into them, but based on his education and experience he was ofthe opinion that they could be harmful to the hand, a part of the body less delicate thanthe eye. His opinion testimony was consistent that certain of Anoplate’s tanks containedharmful solutions. In light of this evidence and the lack of evidence to the contrary, wefind that the evidence establishes that the solutions would be harmful to the employees’eyes.We also find a significant risk that thesesolutions might splash into the employees’ eyes. Splashing of these liquids into the eyeshad occurred and was likely to recur. We note again the recent splashing injury to the eyeof an Anoplate employee. We also note that splashing injuries to the body had occurredwithin the last three years at Anoplate’s plant. Inasmuch as employees stood by the tanksand worked over them when lowering racks of parts into them and lifting the racks out, wefind that an employee’s eyes would be directly at risk if a splash occurred in a tank witha harmful solution while the employee dipped parts into it. The IH testified that he saw\”employees using almost all of the tanks at one time or another\” and that in hisopinion employees would work at all the tanks, including the nitric acid tanks. Finally,we find a significant risk to the eyes despite the fact that eye irritation was the onlyhazard that the IH definitely stated would result from a splash into the eyes. Eyeirritation caused by strong acid solutions and hot alkaline solutions splashed inemployees’ eyes must be considered significant for the eye is an especially delicateorgan. 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, 723 F.2d 410 (5th Cir. 1984). We alsonote that the Act contemplates violations that are not \”serious\”. See section17(c) of the Act, 29 U.S.C. ? 666(c). We therefore find that a significant risk of harmto employees’ eyes was posed and therefore that a \”danger of splashing\” withinthe meaning of the standard was shown.Anoplate makes a number of other arguments in support of its position that eye protectionwas not required during the operations involved here. It argues that the standard does notapply to ordinary plating operations. It urges that to prove a violation of the citedstandard, the Secretary must show a violation of ? 1910.133, referred to in the standard.It also asserts that no violation of the cited standard can be found unless the Secretaryproves the feasibility of the means of compliance set forth in it–\”tight-fittingchemical goggles or an effective face shield.\” We reject these arguments for thefollowing reasons.We reaffirm the Commission’s holding in Schultethat the standard applies when a \”danger of splashing\” arises from adding partsto a tank.[[6]] Anoplate specifically argues that the phrase \”the employees soengaged\” in the standard (p. 2 supra) limits its application to the manual additionof acids and chemicals to the tanks, or when acids and chemicals are removed from thetanks. As Schulte noted, however, the phrase \”for example\” in the standardsignifies that the standard was intended to cover more than just additions and removal ofacids and chemicals. A common sense interpretation of the words \”the employees soengaged\” is that they refer to employees engaged in work at open surface tanks wherethere is a danger of splashing.We reject Anoplate’s argument that the proofrequirements of ? 1910.133 must be met to prove a violation of ? 1910.94(d)(9)(v).Section 1910.133, an eye protection standard, states, \”Protective eye and faceequipment shall be required where there is a reasonable probability of injury that can beprevented by such equipment.\” Section 1910.133 also contains detailed requirementsfor eye goggles and face shields. We conclude that the reference in section 1910.94(d)(9)(v) to section 1910.133 is merely a cross-reference intended to point the readerto the detailed specifications for eye goggles and face shields under that standard, andnot an indication that section 1910.94(d)(9)(v) applies only when section 1910.133 wouldapply anyway. In any event, in evaluating significant risk under section 1910.94(d)(9)(v),we do consider the reasonable probability of injury.We also reject Anoplate’s assertion that theSecretary had to prove the feasibility of the specific means of compliance required by thestandard, \”tight- fitting chemical goggles or an effective face shield.\” Where aregulation specifies the means of compliance, as here, the Secretary bears no burden ofproving 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 theconditions constituting the violations as shown by its own injury records and by the factthat its president, or his son, who acted as safety director, had occasion daily toobserve the employees as they worked.As to the seriousness of the violation, we findthe evidence about eye irritation did not demonstrate a substantial probability thatserious harm could result from the violation, as discussed above. Thus, we find only anonserious violation. See Duquesne Light Co., 84 OSAHRC 23\/D2, 11 BNA 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 there was no supply ofclean, cold water near each open surface tank containing liquids that could harmemployees’ skin if splashed on the body. The standard states: Near each tank containing a liquid which may burn, irritate, or otherwise be harmful tothe skin if splashed upon the worker’s body, there shall be a supply of clean cold water.The water pipe (carrying a pressure not exceeding 25 pounds) shall be provided with aquick opening valve and at least 48 inches of hose not smaller than three-fourths inch, sothat no time may be lost in washing off liquids from the skin or clothing. Alternatively,deluge showers and eye flushes shall be provided in cases where harmful chemicals may besplashed on parts of the body.The basic dispute is whether the Secretaryproved that Anoplate’s facilities were inadequate in light of the numerous,continuously-running water hoses Anoplate had in the two buildings where electroplatingwas carried on. We agree with Anoplate that its facilities were not shown to violate thestandard.The Secretary relies on the IH’s testimony thatthe only facilities he considered suitable for washing harmful liquids off the body weretwo eyewash bottles in building 3, and that he considered them insufficient to comply withthe cited standard. The IH also testified that the tanks containing harmful liquids weredispersed around buildings 2 and 3.The judge found a serious violation on thisevidence, and also determined there was a need for deluge showers, based on the IH’sstatement to that effect. However, unrebutted testimony by Anoplate’s presidentestablishes that it had numerous water pipes and hoses meeting the specifications of thestandard. He testified that there were at least three water hoses withcontinuously-running water feeding rinse tanks in each building. Those hoses were at least48 inches in length and 3\/4-inch or larger in diameter, as required by the standard.Though the water pipes did have quick-opening valves, the fact that they ran continuouslymade that measure unnecessary.[[7]] The Secretary argues that the rinse tank water wasinsufficient because it had residues of the chemicals used in Anoplate’s processes.However, all of the continuously-running hoses apparently could be readily removed fromthe tanks for purposes of washing the eyes and body and there was no testimony that therunning water was not \”clean cold water.\” Thus, there was no showing that thehose water was insufficient under the standard.We also find a lack of proof that these waterhose facilities were no sufficiently \”near each tank containing a liquid whichmay…be harmful to the skin if splashed upon the worker’s body.\” As we stated inGibson Discount Center, Store No. 15, 78 OSAHRC 30\/C1, 6 BNA OSHC 1526, 1527, 1978 CCHOSHD ? 22,669, p. 27,357 (No. 14657, 1978), in vacating a citation under a similareyeflush standard:We agree with [the employer] that this standarddoes not require water facilities to be within any specific linear distance. Rather, thedistance permitted depends on the particular circumstances; for example, the strength ofthe corrosive material and the configuration of the work area. (Footnote omitted.) Theonly specific evidence offered by the Secretary as to where eyewash facilities should belocated was in regard to building 2. The IH testified that in his opinion there should bea suitable eyewash facility for each line in that building. He noted that the building was140 feet long and 50 feet wide and that about eight employees worked there. He also notedthat it contained an aluminum anodizing line, a cadmium plating line, a zinc plating lineand lines using alkaline cleaners and phosphoric acid, and that these lines weredistributed throughout the building.The IH did not indicate how close to the harmfulsolutions in each line the water supplies needed to be. There was no evidence as to howquickly Anoplate’s acid and alkaline solutions should be flushed from the body to avoidinjury, or how the configuration of the work area affected the allowable distance. Thus,as in Gibson Discount Center, we lack a sufficient factual basis to conclude thatAnoplate’s washing facilities were too far away from the tanks containing harmful liquids.We also note that the IH testified that at thetime of the inspection he had concluded that only three sources of supply were needed inbuilding 2, one at each end of the room and one in the middle. Thus, his opinions were notconsistent as to how many facilities were needed, and where, and he did not explain whyhis opinion changed. Anoplate had at least three suitable facilities each in building 2and in building 3. The evidence does not show that those facilities were not\”near\” enough to the various plating lines.The judge erred in finding that deluge showerswere required because the water hose system did not meet the standard’s requirements.Since the Secretary did not show the inadequacy of the water hose system, he did notestablish 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, 29 U.S.C. ? 654(a)(1),or in the alternative, ? 1910.176(c),[[9]] in that \”chemically incompatiblematerials such as acids and cyanides were stored together or were adjacent to each other,exposing employees to possible dangerous vapors, gases or fire if chemicals shouldaccidentally come in contact with each other.\” Section 5(a)(1) of the Act states thateach employer shall furnish to each of his employees employment anda place of employment which are free from recognized hazards that are causing or arelikely to cause death or serious physical harm to his employees;We conclude that the Secretary met his burden ofproof under the general duty clause and therefore affirm this item.It is undisputed that a row of containers labeled or identified as cyanides were storedwithin two to seven feet of a row of containers labeled or identified as acids, in astorage area of building 1. The two rows were separated only by a walkway. It also isundisputed that potentially deadly hydrogen cyanide (\”HCN\”) gas would begenerated if acid and cyanide were to mix.To prove that an employer violated section5(a)(1), the Secretary must show that a condition or activity in the employer’s workplacepresents a hazard to employees, that the cited employer or the employer’s industryrecognizes the hazard, that the hazard is likely to cause death or serious physical harmand that feasible means exist to eliminate or materially reduce the hazard. Sharon SteelCorp., ___ OSAHRC ____, 12 BNA OSHC 1539, 1541, 1985 CCH OSHD ? 23,423, p. 35,526 (No.80-2751, 1985).It is clear that the common storage of cyanideand acid containers posed a hazard,[[10]] and that Anoplate recognized this to be ahazard. As the judge noted, Anoplate’s John Stephenson confirmed during the inspectionthat the containers held cyanides and acids, some in liquid form and some in a dry state,and agreed that their common storage was hazardous. Manufacturers’ warnings on some of theacid containers stated \”Caution: keep away from cyanides\” and those on somecyanide containers urged that the cyanide be kept away from acids. The record alsoestablished a feasible and useful means of abatement. The IH testified withoutcontradiction that Anoplate could store the cyanides and acids in separate rooms.The remaining question is whether the Secretaryproved that Anoplate’s storage practices were \”hazards that are causing or are likelyto cause death or serious physical harm\” to Anoplate’s employees. It is undisputedthat HCN gas is \”likely to cause death or serious physical harm\” to exposedemployees if generated. Anoplate argues, however, that a violation cannot be found becauseit was not shown that HCN gas formation was likely to occur. If Anoplate means by itsargument that the evidence must show that the occurrence of serious harm is more likelythan not, or that the likelihood must be established with mathematical precision, we woulddisagree. There are serious injuries and illnesses that are less than 51% probable toresult from recognized hazards in the workplace but are nevertheless sufficiently\”likely\” to warrant abatement. We do not think it necessary that the Secretarypin down a probability precisely. Although we think that no test of likelihood can bestated with complete clarity, we do think it proper to look to both the likelihood anddegree of harm and to be mindful that by using the limiting phrase \”recognizedhazards that are causing or are likely to cause death or serious physical harm,\”Congress had a definite purpose to accomplish–to limit section 5(a)(1) to conditions thatfew could doubt are dangerous enough to warrant abatement. We also think it important thata number of federal courts have indicated that a mathematically precise test isunnecessary, and that the Commission’s good judgment in the matter must govern in the end:If evidence is presented that a practice couldeventuate in serious physical harm upon other than a freakish or utterly implausibleconcurrence of circumstances, the Commission’s expert determination of likelihood shouldbe 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); TitaniumMetals Corp. of America v. Usery, 579 F.2d 536 (9th Cir. 1978).Here, the evidence establishes a sufficientlikelihood of generation of HCN through intermixture of cyanide and acid. Intermixturecould occur in several ways. The metal containers that held some of the cyanides and acidscould have rusted and leaked their contents. Anoplate’s president acknowledged that metalcontainers rust and can leak. Indeed, one metal container in the immediate vicinity of thecyanides–which Anoplate’s president testified may have contained chromic acid–hadleaked. Intermixture also could occur during a fire in the storage area. Some of thecontainers of cyanides and acids were made of cardboard, which could burn and liberate thecontents. The storage area had an overhead sprinkler system designed to activate in theevent of fire; the water released from that system would have increased the likelihood ofintermixture and generation of HCN gas if during the fire acids and cyanides were releasedfrom their containers. We therefore conclude that the Secretary established the existenceof a hazard that was \”likely to cause death or serious physical harm\” undersection 5(a)(1).[[11]]Anoplate argues that citation to section 5(a)(1)is inappropriate here because the cited condition is covered by ? 1910.176(c)(n.9 supra).See 29 C.F.R. ? 1910.5(f) (section 5(a)(1) inapplicable when standard applies); BriskWaterproofing, Inc., 73 OSAHRC 30\/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD ? 16,345 (No.1046, 1973) (same). The condition cited by the Secretary under section 5(a)(1) is commonstorage of chemicals that 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 poisoning hazard, and we are unconvinced thatthe drafters of ? 1910.176(c), which is entitled \”Housekeeping,\” implicitlyintended to cover HCN poisoning but require little or no protection against it, weconclude that section 1910.176(c) does not cover the cited condition and hence does notpreempt section 5(a)(1).Anoplate also argues that Judge Hassenfeld’sruling permitting the prehearing amendment to allege a violation of section 5(a)(1) of theAct in the alternative was erroneous. Anoplate argues that the amendment was tardy andcaused it to devote more time and effort to the defense of the new allegation. A judge’sruling on a motion to amend will be upheld unless 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 amendments should begranted as long as the objecting party would not be prejudiced in the preparation andpresentation 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 arosefrom the same physical circumstance cited originally–the common storage of acids andcyanides. The hazard of poisoning by gas, which the standard does not cover, wasnevertheless encompassed by the term \”possible dangerous gases [or] vapors\” inthe citation and the amended complaint. The Secretary’s answers to interrogatoriesspecifically identified HCN gas as an alleged hazard resulting from common storage. Themotion to amend was made 3 1\/2 months before the hearing on the merits. Anoplate did notshow that the timing of the amendment adversely affected its ability to prepare andpresent its defense nor did it show how the judge who presided over the prehearing stageabused her discretion in granting the motion to amend. We therefore uphold the judge’sorder granting the amendment.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 in Anoplate’s injury andillness log were insufficient. It is undisputed that Anoplate maintained an injury andillness log and that it recorded for each injury the date, the employee’s name and themedical attention given. Anoplate did not, however, always record the employee’s job titleand regular department as required by OSHA Form 200. There is also a dispute over whetherthe injury record identified the injury or illness with sufficient specificity. Theregulation provides:? 1904.2 Log and summary of occupationalinjuries and illnesses.(a) Each employer shall, except as provided in paragraph (b) of this section,(1) maintain in each establishment a log and summary of all recordable occupationalinjuries and illnesses for that establishment; and (2) enter each recordable injury andillness on the log and summary as early as practicable but no later than 6 working daysafter receiving information that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to aperson not familiar with it shall be used. The log and summary shall be completed in thedetail provided in the form and instructions on form OSHA No. 200.OSHA Form 200 requires for each injury thefollowing information, among other things: the employee’s \”regular job title\” or\”a brief description of the employee’s duties,\” the \”department in whichthe employee is regularly employed or a description of normal workplace to which employeeis regularly employed or a description of normal workplace to which employee isassigned,\” and \”a brief description of the injury or illness and…the part orparts of body affected.\” We conclude that the Secretary established a technicalviolation of the requirement that the employee’s job title and regular department beentered, but that the violation was de minimis. We also find that the evidence isinsufficient that Anoplate failed to specify the type of injury.Judge Furcolo found that Anoplate’s injuryrecords did not always specify the injured employee’s job title or location. This findingis supported by the record. Although the Secretary did not submit the injury records intoevidence, the IH testified on the basis of his examination of the records that the injuredemployee’s job title and regular department were not always listed.However, the IH also testified that an Anoplatemanager had told him that the missing details in its records were not necessary becauseall the employees in Anoplate’s small workforce (about 38 employees) knew what everyoneelse did. Also, the IH testified that he was able to make a fair assumption as to thelocation in the plant of each type of eye injury based on the information in the records.In light of this, and the lack of evidence that the failure to list the injured employees’job titles and regular departments hindered the IH’s investigation, it appears that thepurposes of the form were achieved. In these circumstances, Anoplate’s noncompliance bearssuch a negligible relationship to employee safety and health as to render imposition of apenalty or abatement order inappropriate, and therefore we affirm the violation of the\”job title\” and \”regular department\” requirements as de minimis. 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 italleges a failure to specify the type of injury. OSHA Form 200 requires only a \”briefdescription\” of the type of injury and the parts of the body affected. Again, becausethe Secretary did not submit the records in evidence, the only evidence on the issue isthe testimony of the IH. The IH’s testimony is, however, inconsistent as to whether thetype of injury was listed; at one point, the IH testified that to his recollectionAnoplate’s records failed to disclose the nature of employees’ injuries, but at anotherpoint he testified that the records included the types of injuries. He also did notexplain what specific deficiencies there were in the descriptions of injuries. Thisevidence is insufficient to support a finding of a violation.Because the only violation we find is deminimis, we amend this item to a 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 section1904.6 in that Anoplate’s OSHA Form 200 (and its predecessor forms OSHA No. 100 and 102)\”were not retained in the establishment for 5 years following the end of the year towhich they relate.\” The regulation provides:? 1904.6 Retention of records.Records provided for in ?? 1904.2, 1904.4, and 1904.5 (including form OSHA No.200 and its predecessor forms OSHA No. 100 and OSHA No.102) shall be retained in eachestablishment for 5 years following the end of the year to which they relate.We find the proof insufficient that the recordswere not retained in the establishment as required, and thus we vacate the item.Judge Furcolo found a violation because the IHhad asked during the inspection for Anoplate’s injury records for the preceding fiveyears. Because the company was able to produce records during the inspection for only thepast three years, the judge found that Anoplate \”apparently had them for only 3years.\” However, the key question under the standard is whether the Secretarysubmitted sufficient evidence that the records were not \”retained\” in theestablishment for five years. The standard does not require that they shall be provided tothe Secretary upon request. That is required by section 1904.7(a).The evidence is insufficient to establish thatAnoplate’s records were not \”retained\” in the establishment for five years.During the inspection, Anoplate’s president told the IH that there were records aroundgoing back farther than three years, but that he simply could not locate them at thattime. At the hearing, the IH testified, \”I don’t have any evidence that they did notmaintain records, all that I know is that I didn’t get five years [of records].\”Indeed, the Secretary presented no evidence that Anoplate did not retain records for thefull five years. He did not apply for a subpoena under Commission Rule 55, 29 C.F.R. ?2200.55, to require the production of the records by their custodian at Anoplate, orrequest admissions under Commission Rule 52, 29 C.F.R. ? 2200.52. Without evidence ofnonretention, we cannot find a violation. 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 an infrequently usedsump pit adjacent to a wall in building 2 had an uncovered area about 11-13 inches wide, 21\/2 feet long and 3-4 feet deep, on the first day of the inspection.[[12]] The standardprovides:? 1910.23 Guarding floor and wall openings and holes. (a) Protection for floor openings.* * *(5) Every pit and trapdoor floor opening, infrequently used, shall be guarded bya floor opening cover of standard strength and construction. While the cover is not inplace, the pit or trap opening shall be constantly attended by someone or shall beprotected on all exposed sides by removable standard railings.We vacate this item because the Secretary failedto prove that employees had been in the zone of danger posed by the violative condition,or that it was reasonably predictable that they would be in that zone of danger.The judge found a violation on the ground thatthe uncovered area was near an employee passageway, and he suggested that an employeemight, through inadvertence, step into the opening. However, in order to prove a violationthe Secretary must prove that it is reasonably predictable that employees have been, are,or will be in the zone of danger during the course of their assigned duties, personalcomfort activities on the job or normal means of entrance to and exit from their assignedworkplace. E.g., Carpenter Contracting Corp., 84 OSAHRC 22\/B10, 11 BNA OSHC 2027, 2029-30and n. 3, 1983-84 CCH OSHD ? 26,950, pp. 34,563-64 and n. 3 (No. 81-838, 1984). Althoughthe uncovered pit contained a sump pump, which employees would occasionally repair, theconcern of the Secretary evidently is that employees not so engaged might fall into thepit. The IH testified that the uncovered area was about 15 feet from a metal plating linewhere employees worked; he also testified that it was \”near\” an employeepassageway but he did not specify the distance between the two. We cannot determine fromthese statements why an employee might approach the pit, which was adjacent to a wall.Admittedly, repairs to the pump were infrequent. The IH speculated that an employee mighthave stepped next to the unguarded area to move a large, heavy tank that was there on thefirst day of his inspection; however, he admitted that possibly no employee had been nearthe area for that operation. This evidence is too speculative to serve as the basis forfinding a violation. No evidence established that it was reasonably predictable thatemployees would be in the zone of danger created 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 for spraypainting The Secretary alleged a violation of ? 1910.107(e)(2) in that the quantity of flammableand combustible liquids kept in the vicinity of Anoplate’s spray painting operation\”exceeded the minimum required for the operation,\” and that the manner of bulkstorage of portable containers of such liquids was impermissible. The standard provides:The quantity of flammable or combustible liquidskept in the vicinity of spraying operations shall be the minimum required for operationsand should ordinarily not exceed a supply for 1 day or one shift. Bulk storage of portablecontainers of flammable or combustible liquids shall be in a separate, constructedbuilding detached from other important buildings or cut off in a standard manner.We find that Anoplate violated the mandatoryprovisions of both sentences of the standard.The Secretary established that the quantity ofpaint, thinners and solvents stored adjacent to the spray booth exceeded \”the minimumrequired for operations.\” The IH testified that numerous cans with labels indicatingthat they contained paint, thinners and solvents were stockpiled on the opposite side ofone of the spray booth’s walls, and that five-gallon drums of the same liquids werestockpiled on an adjacent 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 shows approximately 10 or more cans he identifiedas containing these liquids on the wall opposite the spray booth. He picked up numerouscontainers and found that some were full and others were half-full. He testified that anAnoplate employee who did spray painting told him that they never would use all thestockpiled paint, thinners and solvents in a day, and that the employee also said thatless than an hour of spray painting was done on an average day. Anoplate did not objectto, or contradict, the IH’s testimony of what the employee told him. We therefore findthat the quantity of paint, thinners and solvents exceeded \”the minimum required foroperations.\”We also find that the liquids were\”flammable or combustible\” within the ordinary meaning of those words. The IHtestified that all the containers of liquids had labels identifying their contents aspaint, thinners and solvents. The IH also testified based on his experience and knowledgeof chemistry and from reading the labels that these liquids were flammable or combustible.He was well-qualified to give that opinion based on his scientific background, discussedabove at p. 8. See Stanbest, 11 BNA OSHC at 1227, 1983-84 CCH OSHD at pp. 33,620-21. Moreimportantly, Anoplate did no offer any contraverting evidence that these liquids were notflammable or combustible.Moreover, the labels on certain containersspecifically stated that they held a \”flammable liquid.\” There were containersstating that they held xylene and MEK (methylethyl ketone). We take official notice under5 U.S.C. ? 556(e) that these substances have flashpoints of 81-90? F and 22? F,respectively.N.Sax, Dangerous Properties of Industrial Materials, 438, 1094-95 (5th ed.1979)(\”Sax\”). See Stanbest, 11 BNA OSHC at 1227, 1983-84 CCH OSHD at p.33,620-21. These flashpoints are low enough that they would be considered flammable in theusual sense of the word, i.e., as \”capable of being easily ignited and of burningwith extreme rapidity.\” Webster’s Third New International Dictionary (1971); Sax at438, 1094 (fire hazard of MEK (2-butanone) and xylene rated as \”dangerous whenexposed to heat or flame\”); National Fire Protection Association (\”NFPA\”),Fire Protection Guide on Hazardous Materials, pp. 325M-13, 325M-103, 325M-139, 49-16 and49-230 (xylene and MEK have fire hazard ratings of 3 on scale of 0 to 4, i.e., \”canbe ignited under almost all normal temperature conditions\”); see also id. at 704M-19(\”if [a liquid] has a flashpoint, it must be considered flammable orcombustible\”).[[13]]The evidence also establishes that Anoplate’sbulk storage of portable containers of flammable and combustible liquids was not confinedto \”a separate, constructed building detached from other important buildings or cutoff in a standard manner.\” Anoplate stored paint, thinners and other flammables andcombustibles in three paint lockers in the same room with the spray booth and only about20 to 25 feet from it. It also stockpiled those materials on walls adjacent to the spraybooth. We therefore find that Anoplate violated the bulk storage provision of thestandard.Anoplate argues that the standard is merelyadvisory and cannot be enforced against it. Anoplate relies on the language that flammableor combustible liquids \”should ordinarily not exceed a supply for 1 day or oneshift.\” (Emphasis added.) We agree that the language just quoted is not mandatorybecause it uses the word \”should\”. However, Anoplate was shown to have violatedportions of the standard that use the word \”shall\” and we find violations ofonly those portions.Anoplate argues that the Secretary failed toshow that it knew or reasonably could have known of the violative conditions. We disagree,for the conditions were in plain view.Finally, Anoplate argues that the Secretaryfailed to show a significant risk of harm. As discussed above, we agree with the reasoningin Pratt & Whitney that where a standard does not incorporate a finding of asignificant risk of harm, but leaves that for case-by-case determination, the Secretarymust show the existence of a significant risk of harm in each case. However, the Pratt& Whitney court noted that most OSHA standards are specific and presume the existenceof a safety hazard when their terms are not met. 715 F.2d at 63. That is, theyspecifically require or prohibit certain practices or conditions without proof of a hazardor potential hazard. Those standards incorporate a finding that the prohibited practicesor conditions present a significant risk of harm (or that the absence of requiredpractices or conditions presents a significant risk of harm). The Pratt & Whitneycourt made clear that the Secretary need not prove a significant risk of harm under thosestandards, citing with approval Super Excavators, Inc. v. OSHRC, 674 F.2d 592, 595(\”the Secretary need only prove a [violation of a] regulatory standard where thestandard is specific.\”) 715 F.2d at 63-64 and n.4.The first part of ? 1910.107(e)(2) specificallyprohibits storage of flammable and combustible liquids in the vicinity of sprayingoperations in a quantity exceeding \”the minimum required for operations.\” Itdoes not leave for case-by-case determination whether sufficient hazards exist to warrantthose precautions. Thus, it presumes the existence of a hazard 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 thestandard specifically requires \”bulk storage of portable containers of flammable orcombustible liquids\” to be confined to a \”separate constructed building\”meeting certain requirements. Again, no case-by-case determination of whether hazardsexist is called for. Thus, that part of the standard also presumes the existence of ahazard when its terms are not met.Because both mandatory requirements in thestandard presume the existence of a hazard when their terms are not met, the Secretarybears no burden of proving a significant risk of harm due to noncompliance with them. Asdiscussed above, the Secretary made out a violation of both those mandatory requirements.We will therefore affirm this item unless Anoplate requests an opportunity within 10 daysof this decision’s date of issuance to present evidence contrary to the facts of which wehave 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 than 30p.s.i.\” The standard provides:Compressed air used for cleaning. Compressed air shall not be used for cleaning purposesexcept where reduced to less than 30 p.s.i. and then only with effective chip guarding andpersonal protective equipment.We vacate this item because the evidence isinsufficient that the compressed air was used for \”cleaning\” as opposed tomerely drying parts that already had been cleaned and rinsed in Anoplate’s tanks.The IH used an air pressure gauge to determinethat at least one compressed air nozzle used on metal-plated parts had a pressure of 70 to80 pounds of pressure per square inch. The IH testified that the air nozzle was used toblow excess water and solution off metal-plated parts after they had been rinsed, and tospeed the drying process.The judge affirmed this item, finding that theair pressure exceeded 30 p.s.i. However, the standard applies only to compressed air usedfor \”cleaning,\” not drying off of parts. The evidence here did not demonstratethat the compressed air operations were \”cleaning\” within the meaning of thestandard. Thus, we vacate this item.PenaltiesIn assessing penalties, the Commission is to give \”due consideration to theappropriateness of the penalty with respect to the size of the business of the employerbeing charged, the gravity of the violation, the good faith of the employer, and thehistory of previous violations.\” Section 17(j) of the Act, 29 U.S.C. ? 666(i).Anoplate is a small employer with about 38 employees and there was no evidence of ahistory of violations. The IH testified that Anoplate did not demonstrate complete goodfaith based on its inadequate efforts to abate the alleged eyewash facilities and pitopening violations, and based on its recordkeeping deficiencies. We disagree because wehave found no violation as to the eyewash facilities and pit opening and have found therecordkeeping deficiencies to be de minimis. Thus, the amount of the penalty dependsprincipally on the gravity of the violations we have found.The judge assessed a $50 penalty for the failure to require eye goggles or face shields.We will reduce the penalty to $25 because, unlike the judge, we find insufficient evidencethat the violation would result in serious injury, even though a significant risk of harmexisted.As to the section 5(a)(1) violation for failureto use separate storage areas for cyanide and acid containers, we agree with the judgethat a $50 penalty is appropriate. Anoplate took the precaution of keeping the variouscontainers shut, lessening the chances of intermixture of the incompatible chemicals. Onthe other hand, the consequences of intermixture justify the imposition of a penalty.As to the other item we are affirming, the non-serious spray painting storage item, theSecretary proposed no penalty but the judge assessed $25, without explanation. TheSecretary did not provide an evidentiary basis to assess the gravity and probability ofharm due to Anoplate’s storage practices. Thus, we assess no penalty for this violation.To summarize, we affirm citation 1, item 1(section 1910.94(d)(9)(v) as nonserious with a $25 penalty. We affirm citation 1, item 3(section 5(a)(1) of the Act) and assess a $50 penalty. We affirm citation 2, item 4(section 1910. 107(e)(2)) with no penalty, unless Anoplate requests an opportunity tointroduce evidence contrary to officially noticed facts within 10 days of this decision’sdate of issuance. We amend citation 2, item 1 (section 1904.2(a)) to a de minimis noticewith no penalty or abatement 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 COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED: March 4, 1986SECRETARY OF LABOR, Complainant v. ANOPLATE CORPORATION, RespondentOSHRC DOCKET NO. 80-4109CORRECTION OF DECISIONOn July 1, 1982, I issued a Decision which will be filed with the Commission onJuly 21, 1982, and will become its final order on August 20, 1982. I find an error in itthat should be corrected.On page 6, under \”Findings of Fact\”,strike the first 18 words, the 3 commas, and the colon.FOSTER FURCOLO JUDGE, OSHRCDated: July 12, 1982Boston, MassachusettsThe Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office Bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] Both parties petitioned for discretionaryreview of aspects of the judge’s decision and those petitions were granted. The Secretarysubsequently notified the Commission of his intent to withdraw his petition. TheCommission treated the notice as a motion to withdraw the petition and granted it onJanuary 9, 1985.[[2]] Anoplate in its brief on review challengesthe adequacy of the judge’s findings of fact on certain items. However, the Commission hasthe ultimate responsibility for findings of fact, and may enter its own findings. KennethP. 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 Secretary must show asignificant risk both that splashing to the eyes could occur, and that the result would beharmful to the employee. Pratt & Whitney II, 715 F.2d at 64, However, CommissionerRader does not agree that the record in this case establishes a significant risk thatsplashing to the eyes could occur. Milton Stephenson’s unrebutted testimony was thatAnoplate had only one eye injury from splashing in nineteen years. It is true thatAnoplate’s injury records showed other eye injuries, but there is no evidence that theseresulted from splashing. To say that one splashing injury in nineteen years establishes a\”significant risk\” is to nullify the significant risk best for all practicalpurposes. In General Motors Corporation, GM Parts Division, 84 OSAHRC 23\/A2, 11 BNA OSHC2062, 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-and one-half yearperiod did not establish a realistic hazard under the facts in that case. CommissionerRader believes that the precedent in General Motors and in Pratt & Whitney requirevacation of citation 1, item 1(c) in the present case.[[4]] Contrary to Anoplate’s assertion, the IHdid not testify that an employee dipped his bare hand into any of these tanks as evidenceof lack of corrosiveness of its contents.[[5]] Anoplate’s president testified that thatinjury occurred because the employee was not wearing eye protection, contrary toAnoplate’s instructions to wear it during chemical additions to the tanks. Thus, thatinjury did not occur during the operations in question here. The injury is evidence,however, that the chromic acid solutions in certain tanks could injure the eyes.[[6]] As in Schulte, we reject Anoplate’sattempt to introduce for the first time on review an affidavit that Anoplate assertssupports its interpretation of the standard. Anoplate simply attached the affidavit to itsbrief without making any motion to re- open the record and admit the affidavit intoevidence. When Anoplate filed its brief, we had already made clear that regularity inlegal practice in cases on review was expected. See McWilliams Forge Co., ___ OSAHRC ___,11 BNA OSHC 2128, 2131, 1984 CCH OSHD ? 29,979, p. 34,671 (No. 80-5868, 1984) (partiesmay no longer make motions in review briefs and petitions for discretionary review). Evenif we were to treat Anoplate’s conduct as a motion to re-open the record and admit theaffidavit into evidence, we would deny it. First, the affidavit is not admissible. UnderCommission Rule 69, 29 C.F.R. ? 2200.69, affidavits are not admissible in lieu oftestimony without the consent of the opposing party; the Secretary has not consented tothe admission of the affidavit. Second, Anoplate’s attempt is too late. The time tointroduce evidence is at the hearing, not on review. Although the affidavit was signedfour days before the hearing, Anoplate supplies no convincing reason why the affidavit wasnot presented at the hearing, why the affiant was not called to testify, or why theaffidavit was not presented to the judge after the hearing. Anoplate argues that it didnot present the affidavit to the judge because it could not have reasonably anticipatedthat the judge in his decision would interpret the standard to apply to parts dipping. TheCommission, however, construed the standard in that way almost three months before thehearing here. Pratt & Whitney Aircraft, 81 OSAHRC 39\/A2, 9 BNA OSHC 1653, 1663, 1981CCH OSHD ? 25,359, p. 31,510 (No. 13401, 1981). Anoplate was also on notice at least fromthe time of the Secretary’s response to interrogatories that the violation was alleged tohave occurred during parts-dipping. Moreover, the Secretary’s evidence at the hearingcovered the hazards of parts-dipping. Finally, we consider the probative value of theaffidavit to be a relevant consideration here. See Chesapeake Operating Co., 82 OSAHRC36\/C9, 10 BNA 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 of the intent of thedrafters of the standard. According to 29 C.F.R. ? 1910.99 (sources of standards),section 1910.94(d) was derived from a standard drafted under the auspices of the AmericanNational Standards Institute (ANSI), ANSI Z9.1-1969, Safety Code for Ventilation andOperation of Open-Surface Tanks. The affiant states that he served from 1969 to 1980 onthe \”subcommittee which drafted and periodically reviewed the . . . standard ‘ANSIZ9.1–1969. . . . \”‘ We have found, however, that there was no ANSI Z9.1–1969 andthat the statement in section 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 code supplantsZ9.1-1951). We therefore reject the affidavit.[[7]] There was no specific evidence as to what pressure the water pipes carried (thestandard calls for a pressure not exceeding 25 pounds). However, the Secretary did notsubmit evidence that the water pipes were out of compliance in this regard. He bears theburden of proof on the issue. Thus, no violation was proven based on excessive pressure inthe water pipes.[[8]] The evidence against Anoplate stands insharp contrast to that in Schulte, where the Commission found a nonserious violation ofthe same standard. There, the evidence showed certain plating lines using acidic solutionswere 60 feet and 125 feet, respectively, from the closest eyewash facilities, that thepath-ways to both eyewashes were partially obstructed, and that the nitric acid solutionsin certain tanks should be removed very quickly (within 15-30 seconds) to avoid a chemicalburn.[[9]] Section 1910.176 provides:? 1910.176 Handling materials–general. (C) Housekeeping Storage areas shall be kept free from accumulation of materials thatconstitute hazards from tripping, fire, explosion, or pest harborage. Vegetation controlwill be exercised when necessary.[[10]] Anoplate argues that the contents of the containers were not proven because the IHdid not actually open the containers and take samples. There was evidence that one of theliquid containers, labeled \”hydroflourosilic acid,\” was tested by Anoplate andfound not to contain acid. However, the IH’s unrebutted testimony that Milton or JohnStephenson told him the containers held cyanides and acids, and the labels on thecontainers to that effect, are sufficient evidence on this point. F.R.E. 801(d)(2)(D);Alpha Poster Service, Inc., 76 OSAHRC 141\/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 other containers labeledas acids or cyanides did not contain those materials. The IH also determined that at leastsome of the containers were full by handling them.[[11]] Anoplate contends that the Secretary was required to prove a \”significantrisk\” of harm to establish a section 5(a)(1) violation. We intimate no opinion aboutthe merits of this contention. We merely note that if the Secretary bears this burden ofproof under section 5(a)(1), our findings indicate that he certainly met it.[[12]] At the hearing, Judge Hassenfeld further amended the amended complaint to eliminatereference to a board subsequently placed over the uncovered area. The Secretary hadalleged that the board was of substandard strength.[[13]] Because our decision rests in part onofficial notice of material facts \”not appearing in the evidence of record,\” wenote that under 5 U.S.C. ? 556(e) Anoplate is entitled, upon timely request, to anopportunity to show that the facts noticed are erroneous. Thus, this item will be affirmedunless Anoplate requests an opportunity within 10 days to present evidence showing thatany of the facts we have noticed is in error.”