“Docket No. 79-2597 SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION,Respondent.UNITED STEELWORKERS OFAMERICA, LOCAL UNION 6787,Authorized Employee Representative.OSHRC Docket No. 79-2597ORDERThis matter is before the Commission on a Direction for Review entered by former ChairmanRobert A. Rowland on April 12, 1982. The parties have now filed a Stipulation andSettlement Agreement. Having reviewed the record, and based upon the representationsappearing in the Stipulation and Settlement Agreement, we conclude that this case raisesno matters warranting further review by the Commission. The terms of the Stipulation andSettlement Agreement do not appear to be contrary to the Occupational Safety and HealthAct and are in compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order. This is the final order of the Commission in this case. See 29 U.S.C. ??660(a) and (b).Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: October 12, 1990ELISABETH DOLE, SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION, Respondent.OSHRC Docket No. 79-2597STIPULATION AND SETTLEMENT AGREEMENTIn full settlement and disposition of the instant matter, it ishereby stipulated and agreed by and between complainant, the Secretary of Labor, andrespondent, Bethlehem Steel Corporation, as follows:1. This case is before the Commission upon respondent’s contestof a citation which, as amended by the Secretary’s complaint and by motion, allegedwillful violation of the general duty clause, 29 USC ?654(a)(1). The citation wasaffirmed by the Commission’s administrative law judge, and a penalty of $10,000 wasassessed. (Decision and order of March 11, 1982.)2. The Secretary hereby amends the proposed citation toreclassify the violation of the general duty clause from Type of Violation\”Willful\” to Type of Violation \”Section 17 of the Occupational Safety andHealth Act.\”3. The Secretary hereby amends the proposed penalty to $6,500.4. Respondent hereby withdraws its notice of contest to the citation and to thenotification of proposed penalty as amended above.5. Respondent states that it has already taken steps to bringitself in compliance with 29 CFR 1910.147 at its Burns Harbor, Indiana facility and thatsuch steps will be completed within 60 days from the date of this agreement.6. Respondent agrees to submit to the OSHA Area Office $6,500in full and complete payment of the penalty within 30 days of the date of this Agreement.7. Respondent certifies that a copy of this Stipulation andSettlement Agreement was posted at the workplace on the ____day of August, 1990, inaccordance with Rules 7 and 100 of the Commission’s Rules of Procedures. In addition, acopy of this Stipulation and Agreement was served, by postage prepaid first class mail, onMr. Paul E. Gipson, Jr., USWA Local 6787, 1086 N. Max Mochal Highway, Chesterton, Indiana,on the ____day of August, 1990.8. This Stipulation and Settlement Agreement is made to avoidfurther protracted litigation and shall not be construed as an admission by respondent offault or liability in any other case, cause or proceeding whatsoever other than onearising under the Occupational Safety and Health Act.9. Complainant and respondent will bear their own litigation costs and expenses.Dated this 31 day of August, 1990. Bethlehem Steel CorporationRobert P. Davis SolicitorCynthia A. Attwood Associate Solicitor forOccupational Safety and HealthDonald S. Bauman, Esq.Daniel J. Mick Counsel for RegionalTrial LitigationSECRETARY OF LABOR, Complainant, v.BETHLEHEM STEEL CORPORATION,a Corporation, Respondent.OSHRC Docket No. 79-2597DECISION AND ORDERAppearances:T. TIMOTHY RYAN, Esq., Solicitor of Labor HERMAN GRANT, Esq., Regional Solicitor, JAMES BOWERS, Esq., Office of the Solicitor, Chicago, Illinois, for Raymond J. Donovan, Secretary of Labor, U.S. Department of Labor, Complainant.JACK D. SHOFFNE Esq., for Bethlehem Steel Corporation,Respondent.BOBRICK, JudgeThis proceeding was commenced pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafterreferred to as the Act), wherein Respondent, Bethlehem Steel Corporation, contested aCitation issued by Complainant, Raymond J. Donovan, Secretary of Labor, U.S. Department ofLabor. The Citation charged Respondent with a serious violation of the general duty clauseof the Act, 29 U.S.C. 654(a)(1), Section 5 (a) (1).[[1\/]] The Citation, as amended in theComplaint, alleged that Respondent had violated Section 5(a)(1)\”by failing to furnish to employees of the Respondentemployment and a place of employment which were free from recognized hazards that werecausing or were likely to cause death or serious physical harm to employees of theRespondent in that: employees were not prevented from working on equipment without havingpositive control of the sources of power to the equipment and, where applicable, positivecontrol of the materials in process by the equipment through the installation by theemployee of the employee’s personal padlock or equivalent device in such a manner as toprevent the unexpected application of power to the equipment or the unexpected exposure ofthe materials in process in that the employer failed to implement or use an effectivelockout procedure or equivalent positive protection for minor repairs or adjustments tolance port seals on #3 Hood in the Basic Oxygen Furnace (BOF) Area. The Flag and TagProcedure utilized by the employer for above-mentioned minor repairs and adjustments didnot provide such positive control.\”Trial in this matter was begun February 21, 1980. On April 21,1980, the Complainant, at the conclusion of his case, presented a Motion to Amend theComplaint and Citation wherein the characterization of the Citation was to be changed fromserious to willful-serious, as defined by Section 17(a) of the Act (Tr. 1035). Afterargument was afforded each party, the Motion to Amend was allowed with leave grantedRespondent to recall all witnesses who had given testimony that may have related to thosesubstantive matters giving rise to the amendment, and allowing Respondent to expand uponits cross examination of these witnesses as it believed necessary (Tr. 1122-1124).Respondent declined to recall any witnesses (Tr. 1786, 1787). The trial was concluded inJune, 1980. This matter is now ready for decision.FACTS OF THE CASERespondent is a corporation engaged in the steelmakingindustry, operating a large steelmaking facility in Burns Harbor, Indiana. Steel productsmade at Respondent’s facility are shipped outside the State of Indiana. On April 3, 1979,pursuant to an employee complaint, an Occupational Safety and Health Compliance Officerwas detailed by Complainant to Respondent’s workplace to conduct a safety inspection (Tr.872-874, 949, Ex. C-4). The subject of the safety inspection was \”a safety procedureutilized by the Respondent at its Number 3 Basic Oxygen Furnace to protect employees whomight be performing repair or inspection work on its furnaces from the hazards associatedwith the inadvertent start-up of the furnace machinery\”. The inadvertent start-up ofmachinery could expose employees to the possibility of death or serious physical harmsince their work placed them in close contact to the machinery and equipment comprisingthe Basic Oxygen Furnace (hereinafter referred to as BOF).The investigation specifically concerned itself with thealleged inadequacy of Respondent’s \”Flag and Tag Rule\”, a work safety ruledesigned to prevent inadvertent activation of opened and tagged out power switchescontrolling the flow of power to equipment and machinery located on the BOF. As a resultof the investigation, the Complainant concluded that Respondent’s Flag and Tag Rule was aninsufficient means to protect employees from the hazards associated with inadvertentstart-up of the equipment when the employees were performing repair or inspection work.Accordingly, a Citation was issued alleging a violation of the general duty clause of theAct. The abatement provisions of the Citation required that Respondent utilize a positivelockout system on main power cutout switches which isolate sources of power from theequipment under repair. This would essentially require that employees use personalpadlocks issued by the employer to lock the power switch in the open position. Respondentcontested the Citation maintaining that its Flag and Tag Rule was an effective means toprevent inadvertent start-ups at its Number 3 BOF and further that the padlock lockoutsystem was not feasible and presented other hazards.The cited area, which is representative of the three basicoxygen furnaces operated by Respondent, consists of a large multi-story steel structuredbuilding housing a tiltable metal melting furnace (Tr. 1150-1151, Ex. C-1). The furnace isopen at the top having a large work platform area just above its opening. The workplatform makes up one story of the steel building. Located at the work platform area aretwo vertically situated I-beam type structures (approximately 70 feet in length) which actas a carriage for a large oxygen carrying pipe referred to as a \”lance\”.Auxiliary equipment is also contained within the building and consists of teeming carsused to carry scrap metal to a scrap box, a teeming ladle car used for carrying away themolten metal and a teeming car used to transport the slag away from the furnace (Ex. C-1).The BOF essentially starts its operation with the furnacerotating to a tilt position, the opening of the furnace is set at an angle and in linewith a scrap box hopper. The BOF is then charged with scrap metal after which it rotatesback to the upright position. Heat is then applied to the furnace.During the heating process the lance is slewed from its parked position at the side of thework platform, traversely moving toward the opening in the work platform over the top ofthe furnace, finally being positioned at a point somewhere above the center of the openingto the furnace. The lance, at the appropriate time, is progressively lowered into thefurnace to a point where the bottom of the lance is a set distance above the molten metal(Tr. 21-27, 1150-1155, 1165). Two large semi-circular metal plates, referred to as\”lance port seals\”, move across the top of the furnace and surround the lance,thereby sealing the furnace (Ex. C-2, C-3). Oxygen is then introduced into the metalmelting process. Once the metal is melted, the lance port seals are opened and the lancewithdrawn through the seals into its upper position and slewed to its parked position. Thefurnace is rotated and tilted so that the molten metal can be tapped from the furnace.Lastly, the furnace is again rotated and tilted so that the slag in the bottom of thefurnace is allowed to pour from the furnace into the slag pots.The control and operation of all three of Respondent’s BOF’s,which include the slewing and lowering of the lance, the activation of the lance portseals, the tilting and rotating of the furnace, and introduction of oxygen through thelance, is done from a control room located at the side of the Number 2 BOF some 200 feetdistant from the Number 3 BOF. The control room is referred to as the \”Pulpit\”and the operator is known as the \”Pulpit Operator\”. The pulpit operator monitorsa panel which contains various lights that show whether electrical power is going to thevarious motors that tilt and rotate the furnace and slew and lower the lance (Tr. 20-27).The pulpit operator can observe the immediate area at each of the lance port seals bymeans of a black and white TV monitor (Tr. 34-38). However, the visual resolution. of theTV screen leaves much to be desired in its ability to clearly discern employees who mightbe working at the lance port seal area (Tr. 43, 78, 83, 84).Approximately every three months the furnace must be completely rebuilt and the largercomponents of the furnace repaired or overhauled. This takes about four and one half totwelve days, and is referred to by Respondent as \”relining\” (Tr. 1136-1139,1181, 1437). All other repair work (occurring when the BOF is in operation) is referred toas minor repair work (Tr. 108, 145). Employees regularly throughout the work week performrepair work on or around the three furnaces. This includes work on the lance port sealsand on components around the top of the furnace as well as work on the teeming cars andladles (Tr. 102-107, 143, 174, Ex. C-7). The job of performing repair work to the lanceport seals and other components of the furnace can become hazardous by reason of thepossibility of inadvertent activation of either the lance drive motors or furnace tiltmotors. This is true even though the employees who are to perform the repair work are tofirst isolate power going to those motors driving the equipment at the BOF. Isolation ofpower is done by having main power electrical switches placed in the open position, orpneumatic or hydraulic valves closed, thereby disrupting the flow of power to the motorsdriving equipment on the BOF during the period when the repair work is to take place.Employees working on the teeming cars would also have the main power switches controllingpower to the motors that drive the cars placed in an open position.The unexpected activation of the tilt furnace motors couldcause the furnace to tilt, throwing men from the platform area to the ground (Tr. 42, 52).When working on the lance port seals, the furnace is normally turned upside down toprevent extreme heat and smoke being introduced into the work area, which could happen ifthe top of the furnace was inadvertently rotated to its upright position (Tr. 127, 128).Other serious hazards can occur from the unexpected movement of the lance carriage. If thelance were unexpectedly slewed into an area where the employees were working, theemployees could be hit by the carriage (Tr. 171, 950, 951). An additional hazard exists toworkers who may be working on the upper platform over the furnace from any sudden movementof the lance which could cause large pieces of hardened metal, which had adhered to thelance during the melting process, to fall from the lance itself. Any movement of the lancecauses these hardened metal globules, referred to as \”skull\”, to dislodge fromthe lance and fall into the work area where it could hit an employee. All the abovediscussed hazards could cause death or serious physical injury to Respondent’s employees(Tr. 126, 128, 883).In order to prevent injuries which could occur from inadvertentor unexpected start-up of machinery under repair or inspection, whether at the BOF or anyother work area, the Respondent maintained a work rule known as the \”Lock-Out, Flagand Tag Rule\”. This rule is a part of Respondent’s general safety rules and ispublished in a handbook given to all employees (Ex. C-5, C- 5-a). The work rule is alsopublished as part of various Division safety rules, (Ex. C-6, C-6-a), and is mentioned inwritten job safety procedures known as Job Safety Analysis (Ex. C-8, Tr. 59, 109, 405,455).Respondent’s Flag and Tag Rule was designed to work as follows:Employees who were to make repairs or inspections to machinery or equipment, which ifmoved or cycled could result in their injury, were to have the main power switchcontrolling the machinery under repair opened (valves closed) and a flag and tag attachedto the opened switch or closed valve. With the main power switch opened (or valve closed)power, whether electrical, hydraulic or pneumatic, capable of cycling or starting theequipment would be isolated from the equipment thereby preventing its activation. The flagand tag was to be a warning to all other employees against closing the power switch orvalve, which would cause a restoration of power to the machinery undergoing repairs.The rule specifically provided that no one other than theperson who placed the flag on the switch or valve was ever to remove the flag or tag. Forexample, employees who were to perform repair work on the Number 3 BOF would have theelectrical breaker controlling power to the furnace tilt motors, lance slew motors andlance hoist motors placed in an open position, affixing their flags to the open switch. Incases where several switches were next to one another a wood bar would be placed on theopen switches with a flag attached to the bar. The bar was to be a warning to allemployees that all switches upon which it rested were not to be closed. Respondentbelieved, and holds firmly to its belief, that its Flag and Tag Rule would in allinstances act as a positive means of preventing the unauthorized closing of\”flagged\” main power switches or valves, and that flags, once placed on a mainpower switch or valve, would not be removed by persons other than the individual who hadinitially affixed the flag to the open switch, and thus the power switch was considered\”locked out\” (Tr. 1198, 1402, 1403, 1663, 1725).The procedure ostensibly established by Respondent in flagginga main power switch required the employee who was to perform the repairs or inspection tolocate an electrician who then would open a locked door to the room where the electricalmain power switches were located (referred to as control room); the electrician wouldenter the control room with the employee and open the appropriate power switches asdesired by the employee, thereby disrupting the flow of power to those components of theBOF desired immobilized. Once the electrician had opened the needed power switches, theemployee would place his flag and tag on the opened switch (Tr. 122). The number ofindividual flags and tags placed on a power switch could vary with the number of employeesworking at a particular location. Each employee working in the repair area who would besusceptible to injury from movement of any component of the BOF was required to place hisflag on the open switch. [[2\/]] Pursuant to this procedure, electrical switches were notto be closed until all flags were removed.Removal of the flags was done in a fashion similar to thatfollowed when flags were placed on electrical switches. The employee who had placed theflag on the switch was the only person authorized to remove his particular flag. Uponremoval of all flags the electrician would close the switch thereby restoring the flow ofpower to the equipment.As mentioned, the switches which control power to the motorsoperating the basic components of the BOF were located in various control rooms generallysituated distant from the work area (Tr. 791). It had been the policy of Respondent thatonly electricians would be allowed to open the locked doors to the control rooms andmanipulate the switches (Tr. 116, 148, 459, Ex. C-9, C-10). This was an adjunct to thesecurity of flags placed on power switches. At times, however, the doors to the controlroom were not kept closed and locked but were left unlocked and open. This occurred withregular frequency during the summer months when the day’s high temperatures combined withthe heat generated by the electrical equipment, making it necessary to keep the doors tothe rooms open as a means of obtaining additional cooling ventilation to the room.This was done in an attempt to lower the high temperatures so as to avoid damage to theequipment (Tr. 116, 118, 751, 752). This, however, allowed for unauthorized individuals toenter the electrical control rooms thereby diminishing the security of the flags placed onthe switches (Tr. 116, 118, 751, 752).The basic flag in use at Respondent’s Burns Harbor Plantconsisted of a piece of blue cloth attached to a tag by way of a rubber or leather band,(hence the name \”Flag and Tag Rule\”). The tag contained information identifyingthe employee to whom the flag belonged (Exs. R-4, 2nd page, R-21, C-9, C-10). The statedpurpose of the Flag and Tag Rule is \”to protect personnel from injury\” byserving as a \”warning to all other employees not to operate the machine unit . . .whenever said employee is in danger of injury due to the nature of the job he isdoing\” (Exs. R-4, R-5, R-6).Whether the flag and tag rule operated as an adequate means ofprotecting employees from the hazards associated with inadvertent application of power toequipment under repair or inspection (thus allowing equipment to cycle or move whileemployees were working on same), became a long term continuous virulent controversybetween Respondent and Respondent’s employees. This manifested itself in formal andinformal grievances being filed by employees working at the BOF’s (Ex. C-4, 20-26, 28, 29,32, 33, 34, 35, 36, 37).The Respondent has continuously maintained that its Flag andTag Rule was a sufficient means to prevent unexpected or inadvertent application of powerto the equipment or machinery during periods when employees were making repairs.Respondent considered its flagging rule equivalent to a physical lockout which did notincorporate into its meaning the required use of a padlock, notwithstanding the fact thatits rule was entitled \”Lockout, Flag and Tag Rule\” (Tr. 1236, 1402, 1403, 1663,1725, Ex. C-5-a). The Respondent considered its Flag and Tag Rule a generic approach topositively insuring the interruption of power to equipment under repair and wasaccordingly inclusive of the term \”locked\”. The rule was considered byRespondent to have its own generic flexibility incorporating the concept of being\”locked\” without the need of a padlock. According to Respondent, the utilizationof a flag and tag on an open switch obviated the need for a padlock or any other devicethat could physically prevent the disconnected power switch from being moved to theengaged position (Tr. 1236, 1402, 1403, 1663, 1725).The employees, on the other hand, believed that the Flag andTag Rule was an unreliable means of preventing the inadvertent application of power toequipment since the flag could be easily removed by someone other than the person whoinitially placed the flag on the opened electrical power switch (or closed valve),allowing for the closing of the electrical power switch or opening of a pneumatic orhydraulic valve. This belief of employees developed over a period of time after numerousinstances of employees being subjected to inadvertent start-up of equipment or theunexpected restoration of power to the equipment under repair. These occurrences weredirectly attributed to the unauthorized removal of flags from main power switches bypersons other than those who had placed the flags on the switch. Additionally, there werecontinued and numerous instances of the terms of the flag rule not being followed.The incidents involving violations of Respondent’s Flag and TagRule resulted in a loss of confidence by employees in the ability of the rule to protectthem from the hazards associated with the unexpected and inadvertent application of powerto machinery and equipment under repair. These incidents resulted in the filing ofnumerous formal and informal grievances by the employees with Respondent (Exs. C-19-29,32, 33, 34, 37). This situation further resulted in the filing of a safety complaint byone of Respondent’s employees with the Complainant alleging the presence of a hazard toemployees working at Number 3 BOF by reason of the absence of an adequate lockout systemto prevent the unexpected application of power to equipment under inspection or repair(Ex. C-4, Tr. 41-48). A safety inspection of Respondent’s work practice involving the FlagRule was made by Complainant as a result of the employee complaint; this gave rise to theinstant contested Citation.FINDINGS OF FACT AND CONCLUSIONS OF LAW ALLEGED VIOLATION OF SECTION 5(a)(1) OF THE ACT(a) Elements and proof in a general duty case under currentcase law Section 5(a)(1) of the Act requires of an employer that he\”furnish to each of his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death or serious physicalharm to his employees. Commission rulings concerning the Secretary’s burden inestablishing the existence of a 5(a)(1) violation, hold that there must be a showing thatthe employer failed to render its workplace \”free\” of a hazard, that the hazardwas \”recognized\” and that the hazard was causing or likely to cause death orserious physical harm to its employees. Brown and Root, Inc., 1980 CCH OSHD para.24,853. With respect to recognition of the hazard, the Commission rulings place upon theSecretary the burden to show that the manner in which an employer went about the activitycriticized in the Citation was known by it to be hazardous or was generally recognized assuch by the industry, or was reasonably foreseeable. Pratt & Whitney, 1980 CCHOSHD para. 24,447; SSC Corp., 1976-77 OSHD para. 20,814.The Commission has further pointed out that it is upon the Secretary to show that therewere feasible steps the employer could have taken to avoid the Citation — in other wordsit is the Secretary who must establish the feasibility of its abatement charge within itsCitation. Brown and Root, Inc., supra. The courts have adopted the Commission’sviews as to what proof the Secretary must establish in order to sustain its charge that anemployer violated Section 5(a)(1) of the Act. Whirlpool Corp. v. OSHRC, 645 F. 2d1096 (D.C. Cir. 1981); Pratt and Whitney Aircraft v. Secretary of Labor, 649F. 2d 96 (2nd Cir. 1981); Usery v. Marquette Cement Manufacturing Co., 568F. 2d 902 (2nd Cir. 1977); National Reality and Construction Co. v. OSHRC,489 F. 2d 1257 (D.C. Cir. 1973).Viewing the instant record, I find that the credible evidencein this case, by an overwhelming margin, has established that the Secretary has met hisburden of proof in establishing that a violation of Section 5(a)(1) of the Act existed atRespondent’s workplace, as that burden of proof has been articulated by both the ReviewCommission and reviewing courts.(b) Application of the Decision and Affirmed CitationIn the instant case the Complainant has charged the Respondentwith violating Section 5(a)(1) of the Act by allowing employees to work on equipment underrepair or inspection without having in place a positive control of the sources of power tosuch equipment to prevent unexpected or unanticipated start-up of the equipment during therepair or inspection activities. The Citation charged that only through use of a systemwhereby employees use personal padlocks, or equivalent devices, to lock out power switchescould the dangerous hazards associated with the unexpected application of power beeliminated. The Citation charged Respondent’s \”Flag and Tag Rule\” as beingineffective in the prevention of safety hazards, also charging Respondent with failing toimplement or use an effective lockout procedure when making repairs or adjustments to itslance port seals, or other equipment, at its Number 3 basic oxygen furnace (BOF). TheRespondent answers the Citation denying that the employees did not have a positive lockoutprocedure in place, defending and forwarding its \”Flag and Tag Rule\” as afeasible method of locking out power sources to equipment which may be under repair.Respondent further maintained that use of \”padlocks\” as a means of locking outpower switches was both technically and economically unfeasible, and presented othersafety hazards.While the Citation refers only to the Number 3 BOF, it is clearthat the ruling in this case will directly apply to Respondent’s other basic oxygenfurnaces at its work place (as well as impacting throughout its plant) where employees,while making repairs or inspections to equipment, are subjected to hazards of seriousinjury or death resulting from unexpected application of power to the equipment underrepair or inspection. This seems the only logical approach in this case since the factshave established that all three BOF work areas were substantially identical, werecontiguous to one another, were operated as an integral operation, were worked on by thesame employees, were all controlled from one operating station (pulpit), and had mainpower control switches for all three BOF’s located in the same control rooms (Tr. 20-40,118, 130, 743, 1147-1155, 1341-1343, Ex. C-31). Any other application of this Decision(and the affirmed Citation) would render the same work areas occupied by the sameemployees and employee groups with varying, conflicting lockout rules. This unquestionablywould have the least desirable effect of uncertainty in providing for the safety ofemployees in all three BOF operations. Finally, the instances where the \”Flag and TagRule\” failed to protect employees from the inadvertent start-up of equipment exposingemployees to the dangers of death or serious physical harm occurred not only in all threeBOF work areas, but throughout the Respondent’s workplace at its Burns Harbor Plant (Tr.561, 565, 573-578, Exs. C-20, C-21, C-22, C-24, C-25, C- 26, C-27, C-30, C-31, C-32, C-34,C-37, C-44, C-47, Ex. R-1, R-11, R-14).(c) The Workplace Environs and Operation of the Flag and TagRuleIt is important to understand the massiveness of the equipmentwhich is worked on by the employees and how that relates to the enormity of the hazardcreated by inadvertent application of power to the equipment and possible cycling ofequipment while employees are in close and intimate proximity to it. The work area, whichis the subject of the Citation, is at Respondent’s Basic Oxygen Furnace (BOF) of which ithas three (Tr. 1150, Ex. C-1). The basic oxygen steelmaking process is differentiated fromother steel production processes through introduction of oxygen into the metal meltingfurnace through a large pipe structure called a lance. The lance is approximately 70 feetlong and 10 inches in diameter and rides on an I-beam type carriage. During the meltingprocess the lance is lowered into the furnace and oxygen is blown into the molten steelbath increasing the temperature of the molten metal and removing impurities from themolten metal. A heavy metal seal clamps around the lance holding it in place during its\”blowing\” process (Tr. 1151-1165).Movement of the lance, as well as a tilting movement of thefurnace, is controlled by a \”pulpit operator\” located in a control room(\”pulpit\”) approximately 200-250 feet from the Number 3 furnace; all three BOF’sare controlled by the one operator at the \”pulpit\” (Tr. 20, 88). The pulpitoperator has no direct visual contact with the lance or lance port seal work area butobserves this area on a black and white TV monitor. This is an aid to prevent the operatorfrom swinging the lance into the work area or tilting the furnace while employees may beworking there (Tr. 34, 35, 73, 74, 1151-1155). Additionally, the operator has a consolethat contains lights indicating whether power is going to the motors which move andoperate the lance and furnace (Tr. 38). If employees are working in the area the lancemust be in the parked position (Tr. 40).There are two lances at each BOF; one is in the standbyposition and one in the ready position. When not in use, the lance which is in the readyposition is kept in the \”park\” position which is about 10 feet away from themouth of the furnace (Tr. 1151). At the beginning of the metal melting process (\”aheat\”), the lance traverses or \”slews\” from the parked position to the\”ready\” position, a point directly over the mouth of the furnace, the bottom ofthe lance being approximately 4-5 feet above the opening (Tr. 1151). It is then loweredinto the \”in hood\” position at which point the lance is inside the lance portseal but a few feet above the mouth of the furnace. When the lance is lowered to a pointdirectly above the molten metal bath, oxygen is then blown into the molten metal. Afterthe melting process is completed, the lance is raised from the furnace, traversing to theparked position. The furnace is then tilted so as to allow for the pouring of the moltenmetal and pouring away of slag. The furnace is then turned in the upright position.By reason of the tremendous heat associated with metal melting,and the dynamics in the movement of the massive equipment making up the BOF, thecomponents of the BOF require continuous and frequent repairs (Tr. 103, 104, Ex. C-7).These repairs are referred to as \”minor repairs\”, often involving the lance andlance port seals (Ex. C-7). In providing for the safety of Respondent’s employees who mustperform these repairs to this large equipment, power to the motors which move the lanceand which move or tilt the furnace is disrupted at a main control point by breaking themain power circuits leading from the power source to the motors. This disruption in theflow of power is done at electrical control rooms where are located large knife-edgeelectrical switches. These switches once placed in an open position immobilize theequipment and keep it from moving while employees are in the repair work area. The same istrue with electrically powered teeming cars that carry molten metal or slag from thefurnace. These cars often need repair work done to them. The motors that drive these carsalso have their main control switches at the electrical control rooms. The lance portseals are operated by compressed air, and during \”minor repairs\” are secured byclosing off an air valve located near the seals at the side of the BOF.The hazard associated with inadvertent or unexpected start-upor movement of BOF equipment to which employees making repairs or inspections are exposedinvolve their being struck or crushed by the moving equipment, or being knocked from thework platform to the ruble pit below, or being knocked into the furnace itself. Death orserious physical injury is likely to occur from any such encounter (Tr. 42, 46, 52, 83,126-128, 171, 230-234, 600, 601, 706, 753-757, 872, 873, 883, 943, 952, 995-999, 1354,Exs. C-22, R-62). An additional hazard develops from falling pieces of hardened metalglobs from off the lance when the lance is moved. These metal pieces form on the lanceduring the melting process. These hardened metal globs, or \”skull\” as they arecalled, readily fell from the lance into the work area when moved. Employees working inthe swing radius of the lance could receive serious physical injury if the lance weresuddenly moved into the work area causing the \”skull\” to fall from the lanceonto the employees (Tr. 40, 126-128). Lastly, the furnace is generally placed in an upsidedown position when the lance port seals are undergoing repair. In the case of inadvertentor unexpected rotation of the furnace, smoke, fumes and heat could be omitted from themouth of the furnace into the work area and could cause serious burns to employees workingthere (Tr. 127-28).To prevent the situation where equipment under repair could be inadvertently activated,Respondent established its Flag and Tag Rule. This rule, in the main, required that mainpower switches controlling power to machinery under repair or inspection be placed in anopen position [[3\/]] and a flag and tag placed on the open switch by the individual who isto make the repairs. The tag would carry the name, department symbol or code of the manwho placed the flag on the open switch. While Respondent’s work rule mentions the use of alock to accomplish a \”lockout\”, Respondent specifically prohibited the use oflocks. [[4\/]] Cardinal to success of the rule’s capability to protect workers from thehazards of unanticipated or inadvertent start-up of equipment under repair, as enforced byRespondent, was the prohibition of removal of the flag or tag from an open power switch byan employee other than the employee who placed it on the switch, except under certaincontrolled conditions (Exs. C-5-a, C-6-a). (d) The Parties PositionsWhile Respondent’s own rule refers to the use of a\”lock\”, Respondent throughout these proceedings maintained that its rule did notintend for that word to mean a padlock and that the use of a flag and tag is a genericproposition that incorporates the concept of a lock. Respondent’s view is that the flagand tag is comparable, equal, and inclusive of the act of using a padlock in locking mainpower switches in an open position (Tr. 1236, 1402, 1403, 1663, 1725).The Complainant maintained that Respondent’s failure to providea work practice wherein employees who were repairing or inspecting machinery would lockout the power switches with a personal padlock, to which only the employee using same hadthe key, caused the work area to be hazardous since the flag could be easily removed byother employees, and indeed was done so by both hourly employees as well as Respondent’sown supervisors. This allowed for power to be restored to the equipment, with theresultant hazard of unanticipated start-up, while those employees who had placed the flagson the switches were relying upon them for safety in their work. The Complainant furthermaintained that the hazard was easily recognized by Respondent at its workplace by reasonof the many incidents arising from Respondent’s Flag and Tag Rule being disregarded orviolated. Complainant asserts that the hazard was not only recognizable, but all butignored since it was Respondent’s own supervisors who in many instances allowed orparticipated in the removal of employees’ flags from open power switches without theknowledge or consent of the affected employee.The Complainant has concluded that not only was the flag andtag system forwarded by Respondent an inherently ineffective and recognized unsafeprocedure for protecting employees engaged in repair or inspection of machinery from theunexpected application of power to the equipment but in and of itself created a hazard ifemployees were required to work on machinery whose main power switches were merely flaggedin an open position (Tr. 237, 238, 269, 271, 272, 273, 341, 342).(e) Evaluation of Expert TestimonyAs a prelude to resolving the contested factual issues, opinionevidence of the expert witness, together with the observations of the lay experts, will beconsidered first. I find the conclusions and observations of the Complainant’s expertwitnesses that with the use of padlocks for locking power switches in the open positionthere would be little to no possibility of unauthorized persons causing main powerswitches to be closed, and power unexpectedly restored to equipment being repaired, justtoo persuasive and logical to be ignored. The conclusions and observations of theseexperts resulted from many years of experience with the use of padlocks, as well as withthe use of the flag and tag system. Their combined extensive experience with use of thepadlock for positively locking out power switches clearly established that padlocks werenot only effective in meeting the hazards involved herein but were completely compatiblewith the operation of virtually any type machinery, including that involved withelectrical equipment and their components (Tr. 238, 239, 240, 253, 255, 257, 283, 284,287, 288, 337, 342, 343, 344, 362). I find Complainant’s experts’ conclusions concerningthe use of a lock, as opposed to a flag and tag, as a positive means of protectingemployees from the inadvertent start-up of equipment singularly persuasive.[[5\/]] Ifurther find that the testimony of Complainant’s expert witnesses established that use ofpadlocks to meet the hazards of inadvertent start-up of equipment under repair was a wellentrenched procedure in industry in general, and the steel industry in particular. Itsimply cannot be said that the inherent inability of a flag and tag system to effectivelyprotect employees from hazards similar to that involved in this case was not recognized inthe steel making industry (Tr. 238, 239, 241-252, 335-340, 343, 399, 400, 401, 405, 878,879, 883, 884). Thus in so far as it may need be established that there was industryrecognition of the cited hazard, Complainant, in this regard, has borne his burden. NationalReality and Construction Company v. OSHRC, supra; S. C. Corp,1976-77 CCH OSHD para. 20,814.Finally, it should be noted that the opinions, conclusions andobservations reached by Complainant’s expert and lay witnesses that a hazard existed atthe worksite by reason of the use of flags and tags as a form of \”lockout\” waswell substantiated by the repeated predicted shortcomings within the Flag and Tag Rule;there were indeed many instances of capricious removal of flags from open power switcheswithout the knowledge or authority of the person who had placed the flags there in thefirst place, as will be more fully described below.(f)\u00a0\u00a0 The Flag and Tag Rule’s Failure to Operateas an Effective Safety RuleThis record is ladened with incident after incident where flagsplaced on open switches, under Respondent’s Flag and Tag Rule, by employees who were toperform inspection or repair work were removed from the switches without the knowledge ofthe employees who had placed them there in the first place. These continuous recurringincidents subjected employees to the dangers and hazards of unexpected start-up ofequipment undergoing repair, and was of significant concern to the employees. This concernmanifested itself in the filing of grievances and the threat of a job walkoff. The cited hazard in this case was well established by the Complainant with the testimonyof employees who experienced their flags and tags being removed from flagged open mainpower switches of equipment undergoing repairs. These incidents, while dating prior to1971 [[6\/]] persisted nearly to the date of trial herein. The following describes the typeof incidents which demonstrates the inherent shortcomings of a flag rule.In April of 1971, the flags of employees working on a transfercar were removed by a laborer under the direction of the sub-foreman placing thoseemployees working on the transfer car into hazardous situation by reason of thepossibility of inadvertent and unexpected movement of the equipment (Tr. 577, 581, 589,631, 639, 640, Ex. C-29). In late 1973, employees were working on coupling of a teemingcar when a supervisor had an electrician remove their flags without their knowledge. Theswitches were energized causing the car to move and the coupling which they were workingon to rotate. The employees narrowly missed sustaining severe injury (Tr. 600, 601,753-756, Ex. C-33, pages 8, 9).In January, 1974, one of the most serious incidents involvingthe Flag and Tag Rule occurred tragically illustrating the extreme hazards employees canbe exposed to in the event of a failure in the integrity of the rule. A millwright in theBOF Mechanical Department lost his arm and leg when he was run over by an ingot car onwhich he was working. The ingot car was put into motion when a string of cars from anothertrack was moved through an unlocked and unflagged rail switch onto the track where theemployee was working (Tr. 565- 70, Ex. C-27). In Respondent’s accident investigationreport, and at the hearing, it was shown, that only strict application of the Flag and TagRule would have prevented the accident. The flag rule was violated by reason of thesupervisor’s decision to use a safety watchman on the track instead locking and flaggingthe actual switch. This decision was made in order to \”expedite\” the job (Tr.1408, Ex. C-27).Sometime in the first half of 1975, an employee who was engagedin lubricating equipment, and was in close proximity to said equipment had his flagremoved from a flagged out power switch; this subjected him to injury by reason of thepossible start-up of the equipment (Tr. 528). During that same period two employeesworking on a teeming car had their flags pulled off a main power switch allowing for therestoration of power to the teeming car. This was done by their foreman and placed the twoemployees in danger (Tr. 529, 530).In December, 1977, a foreman attempted to have one employeeflag out power switches for other employees who were to later work on BOF equipmentcontrolled by said switches. This became the subject of a grievance (Tr. 585, 688, Ex.C-32). In February, 1979, a foreman removed an employee’s flag from the Number 2 BOF tiltcontrols while the employee was working on the furnace (Ex. C-24). In August, 1979, alaborer removed flags on power switches placed there by employees who were repairingrelated equipment. This subjected the individuals to the possibility of inadvertentstart-up of the equipment. The situation was averted by a safety watchman catching theinfraction and having the flags restored to the power switches (Tr. 492, Ex. C-23).In December, 1979, an employee working on a teeming car, who had placed a heavy metal slabacross the tracks to prevent movement of a second teeming car into the work area, had theslab removed by order of management without his knowledge. This subjected the employee tothe hazard of the second teeming car rolling into the work area causing injury to theindividual (Tr. 615-617, 706-709, 713), 714 Ex. C-37.). As late as March, 1980, a foremanremoved the flag from a power switch of an employee performing repairs on equipment, (theforeman admitting that this was regularly done). This incident became the subject of agrievance (Tr. 479, Ex. C-20).All these above described incidents seemed representative ofthe experiences in the work place (Tr. 75, 79, 461, 473, 561, 749, 752). They are found tobe a clear indication of a flag’s inability to act as a positive protective lockout ofpower switches. These incidents amply demonstrate how flags used to prevent thereactivation of power can be easily removed by persons other than the individual whoplaced the flags on the open switches, thus leaving the employee unknowingly exposed tothe dangers of injury from unexpected movement or start-up of the machinery under repair.This situation was exacerbated the fact that on many occasions the doors to the controlrooms where power switches are located are left unlocked and open (Tr. 116, 118, 751,752).While Respondent attributes these incidents to improper FlagRule procedures or to communication problems (Tr. 1173, 1175, 1222, 1379-1382, 1410),Respondent misses the mark in failing to recognize that the incidents are not deviationsin the effectiveness of the Flag Rule but examples of the inherent fatal flaw inconsidering the flag a positive means to insure that equipment under repair will not beinadvertently started. This conclusion rings especially true since on many occasions itwas Respondent’s own supervisors who made a conscious deliberate decision not to complywith the explicit terms of the flag rule.Considering the realities of the work place, I simply do not find the testimony ofRespondent’s witnesses who equated the use of a flag to a padlock as a means of\”locking out\” power switches to have any basis in reason or fact. In light ofthe evidence making the record in this case such a conclusion is found not only to beunrealistic, but has caused to exist at subject work place a hazard to those employeesrequired to perform repair work on equipment seemingly protected by flags.Respondent’s Flag and Tag Rule was further shown to be afailure as a lockout safety rule by reason of the extent of deviations from compliancewith the rule itself. This record contains significant evidence which shows that the Flagand Tag Rule, because of its inability and its ineffectiveness to positively protectemployees engaged in repair work, had never won acceptance from employees as an effectivemeans of protection from subject hazard; nor would it ever.There apparently developed a derisive attitude by employees,both supervisors and hourly employees, towards compliance with the Flag and Tag Rule. Thisresulted in significant instances of noncompliance with the rule by both supervisors andhourly employees, but mainly by supervisors.[[7\/]] This manifested itself indisenchantment with the rule by hourly employees and disregard of the rule by supervisors,all of which predictably further degraded the effectiveness of the rule. The record inthis case contains significant examples of the many instances where compliance with theFlag and Tag Rule was simply ignored. Indeed, one of these instances resulted in thefiling of a safety complaint with the Complainant and is demonstrative of this situation.The safety complaint was filed by the Pulpit Operator after he had experienced severalincidents involving employees narrowly escaping from injury when he had activated thelance or other BOF equipment this complaint gave rise to this action (Tr. 71, 75, 77, 80).The first of these incidents, occurring several months prior tothe filing of the OSHA complaint, came to the Pulpit Operator’s attention when an employeeapproached him claiming that the employee, while working on the lance port seals, hadnarrowly missed being killed when the lance was slewed by the Pulpit Operator in on him(Tr. 46-47). The employee had been instructed by his foreman to quickly adjustments on thelance port seal without flagging out the perform necessary breakers (Tr. 47, 170-171). Asecond similar incident occurred on February 26, 1979, which prompted the filing of thesafety complaint (Tr. 41-48, Ex. C-4). The Pulpit Operator was again told to slew thelance, not knowing employees were working on the lance port seal (Tr. 43). A foremanworking at the lance port seal did not cause to have the equipment flagged out even thoughemployees were ordered to work there. According to Respondent’s supervisors the foremanassumed that another individual’s flag was on the lance’s main power breaker (Tr. 1229-39,1245-49). Had an effective lockout utilizing padlocks been in place these incidents wouldnot have occurred.Perhaps the most telling of the Flag and Tag Rule’s inherentinability to be considered an effective and convincing means of protecting employees fromthese hazards discussed in this case was the continuous non-compliance with the rule byRespondent’s own supervisors [[8\/]] (Tr. 561, 578, 593 600, 621, 639, Exs. C-28, 32, 688,699,700, 824, 857, 863). This situation had three distinct aspects to it. First, it showedin and of itself the inherent weaknesses ingrained within the flag rule, and the rule’sperpetuation of the hazard to which employees, who had placed reliance upon said flag rulefor protection, were exposed. Second, it had the effect of causing employees to lose faithin the flag rule as a means of protection and to insist that padlocks be used instead offlags to secure the open power switches (Tr. 133, 136, 140, 168, 461-469, 473, 561, 699,749, 750, 772). Third, the lack of confidence of the employees in the rule manifesteditself in diminished compliance with the rule, further degrading it as a legitimate meansof hazard prevention. This last aspect is considered a reasonably foreseeable event sincehuman nature does not respond or adhere to useless acts, specifically those that purportto be safety related when in fact they are not. Respondent’s flag rule was such a rule.(g)\u00a0 Respondent broadly argues that the hazard to WhichEmployees Were ExposedRespondent broadly argues that the hazard alleged in theCitiation was not recognizable and that this, accordingly,\u00a0 fatally flawed theCitation.Respondent’s arguments in all its parts is singularly unpersuasive. The Commission, aswell as the Courts, has held that the knowledge (or recognition) requirement withinsection 5(a)(1) of the Act can be satisfied by proving that the employer had actualknowledge that a condition was hazardous or by showing that the standard of knowledge inthe relevant industry recognized the condition to be hazardous.[[9\/]] National RealityCo. supra; Brennan v. Vy Lactose Laboratories, Inc., 494 F. 2d 460 (8thCir. 1974); Brown & Root Inc., 1980 supra. In this case, the Complainantclearly showed that there was actual recognition of the hazard by Respondent and thus hasmet his burden of proof in this regard. Respondent’s argument in defense of the Citationis rejected.The employees, continually, over a prolonged period, and up torecent date voiced their concern about the effectiveness of the Flag and Tag Rule as ameans or protecting them from the hazards of inadvertent start-up of equipment underrepair. This was done directly on the job to supervisors, by way of safety complaints, andthrough the job grievance procedure. In 1976, employees refused to rely on the Flag andTag Rule and began using locks by reason of the number of violations of the Flag and TagRule, many of which were by supervisors who simply disregarded the rule. After aconfrontation with Respondent on this matter the employees agreed that use of the lockswould be for a limited period, allowing to Respondent that time necessary to rehabilitatethe rule so that it could be an effective means of protection. Though each time theemployees were willing to use locks for a limited duration, so that Respondent couldinstitute better training aimed at upgrading the effectiveness of the rule, it sorelyappeared that rehabilitation of the Flag and Tag Rule as a means of avoiding the hazardsassociated with inadvertent startup was just not possible (Tr. 749, 788, 827, 853-855,861).Two separate grievance hearings held under the arbitrationprovisions of the Collective Bargaining Agreement were held concerning the reliability ofthe Flag and Tag Rule as a means of protecting employees and the employees’ right to usepadlocks supplied by Respondent. The arbitrations dealt with then recent breaches of theFlag and Tag Rule (Ex. C- 19, R-1). It was during the second grievance procedure that itbecame clear to Respondent’s supervisors that the employees had totally lost faith in theFlag and Tag Rule and would not work without locks being provided to them for use inlocking power switches in the open position. Respondent’s supervisors recognized the factthat employees would not return to work without the protections which could only beafforded through the use of padlocks (Tr. 1469). At that time it was hoped by Respondentthat with enhanced training the employees would come to have restored faith in theeffectiveness of the Flag and Tag Rule, and not insist on the use of company providedlocks; Respondent’s hopes never materialized and the event never came about (Tr. 827,1469-1472, 1475). The significance of this evidence in determining that a recognizedhazard existed at the workplace, as charged in the Citation, simply cannot be ignored.I need not rehash that evidence showing time after time anemployee, who had placed a flag on a main power switch relying upon that flag forprotection from the subject hazard, having the flag removed by a second employee, who alltoo often was one of Respondent’s own supervisors, thereby placing the employee’s safetyin jeopardy — all known to Respondent. Further, I will not discuss those cases whereemployees, by reason of a failure in the Flag and Tag Rule, were experiencing close callsdue to the reactivation of power and the inadvertent start-up of equipment which was underrepair and initially appropriately flagged out — all known to Respondent. Finally it ishard to imagine there was not recognition of the hazard when Respondent’s own safety workrules specifically provided for the use of padlocks to accomplish proper \”lockingout\” of power switches (Ex. C-5, C-6).[[10\/]](h) FeasibilityWhile I find Complainant has shown that a recognized hazardexisted at Respondent’s worksite by continuing the use of hanging flags to effect a\”lockout\” of power switches to equipment under repair and inspection, and that asystem of using padlocks would eliminate this hazard, discussion of the feasibility in useof the padlock is necessary since under appropriate Commission and court law it is theSecretary’s burden to establish this fact. Whirlpool v. OSHRC and MARSHALLsupra.; National Realty, 489 F. 2d at 1268. Additionally, this issue was raisedby Respondent as part of its defense to the Citation.The credible evidence introduced in this matter establishedthat the use of padlocks to effect a \”lockout\” of power switches to equipmentunder repair was not only feasible but a reasonable method to address the hazardassociated with unexpected or inadvertent start-up of equipment. The singular ease apadlock can be issued to employees, the ease the padlock can be used by employees, and theease that a lock can be affixed to power switch components of existing equipment atRespondent’s plant belies any real issue that a well organized program would be anythingother than a feasible method to effect lockout of power sources to equipment under repair.That padlocks are currently successfully used at Respondent’s worksite (not to mentionother similarly situated steelmaking facilities) is proof enough that padlocks, as a meansto effect lockouts, are completely compatible devices for use on Respondent’s machineryand equipment, and are completely compatible with the manufacturing processes carried onby Respondent (Tr. 132, 136, 153, 155, 156, 235, 253-257, 258, 273, 294, 295, 303, 335,338, 342, 343, 362, 391, 396, 397, 460, 461, 469, 472, 473, 509, 513, 535, 561, 618, 619,649, 711, 712, 744-749, 788, 794, 798, 827, 830, 838, 876-878, 883, Exs. C-9, C-10, C-12,C-13, C-14, C-15, C-16, C-17, C-18, C-51, C-53).Respondent, in attacking the feasibility of use of padlocks,raises three separate arguments. First, Respondent argues that since some of its equipmentwas incapable of being padlocked, repair work would at times, by necessity, have to bedone under a flag and tag rule and that this amounted to a \”bastardized\” safetyrule rendering the use of padlocks ineffective. Respondent further argues that usingpadlocks on its electrical equipment would be a \”jury rigged\” proposition and byreason of the large numbers of padlocks which might be needed could cause a chain of lockscapable of becoming entangled in the electrical leads resulting in an electrical hazard.Lastly Respondent argues that the use of padlocks would be costly requiring a significantoutlay of money.Respondent’s argument that the operation of two systems (i.e.flag and tag, and padlock) would render uncertain the enforcement of either is specious atbest. Most, if not all, electrical power switching equipment controlling power toproduction equipment is capable of being padlocked, or locked with the equivalent of apadlock [[11\/]] (Tr. 118, 130, 131, 132, 153, 155, 156, 446, 447, 448, 459, 647, 648). Assuch, the advent of a two system program just does not appear probable to any significantdegree to adversely impact upon the effectiveness of using padlocks. In any event there isno hiding from the fact that Respondent’s Flag and Tag Rule was not working effectivelyand replacement of it in any degree is a constructive step toward eliminating or reducinghazards in the workplace.With respect to Respondent’s argument concerning thepossibility of locks causing shorts or becoming enmeshed in the energized leads of theswitching equipment, I find no persuasive evidence that such a hazard existed to anyappreciable degree or that such a hazard, if it did exist, could not be corrected orprevented.The most credible evidence seemed to show that the number ofpadlocks which would be used at any one time would be manageable. This evidence camethrough the testimony of employees who actually worked with the BOF equipment, suchtestimony being straightforward, truthful and compelling in the ordinary common sense ofthings (Tr. 140, 362, 514, 515, 647, 648, 649, 650, 794, 798, 826, 835, 956-962). There islittle credible evidence in this record which would indicate that use of padlocks wouldresult in huge cumbersome chains of locks hanging from switches, as portrayed byRespondent. Additionally, with a well supervised and effectively enforced optional\”group lock system\” (as currently provided in Respondent’s General Safety Rulesfor Employees) the number of individual locks used could be significantly controlled (Tr.258, 287-289, 344, 514, 515, 516, 519, 533, 699, 743, 746, 796-798, 799, 904- 906, 977,1022, 1017, 1018, 1020, Ex. C-5, Section VII – paragraph 2).Moreover, since under Respondent’s own lockout rule (when itchooses to follow that rule) only skilled electricians are allowed to manipulate theelectrical power switches an electrician could safely place the padlock on the powerswitch as desired by the employee. The employee could observe from a safe vantage pointthat his lock was indeed used to lock the appropriate power switch in an open positionwithout incurring any risk of exposure to electrical hazards (Tr. 122, 956-962,1763-1767). Finally, through the use of \”lock expanders\” large numbers of lockscould be safely accommodated when attached to open power switches, without the postulatedunwieldy chain of locks (Tr. 282, 283, 1321, 1322, Ex. C-12, figure 21-14).However, assuming the occurrence of a possible electricalhazard which could not be satisfactorily overcome by use alone of the above discussed workpractices or equipment, Complainant demonstrated that there still existed other wellrecognized and readily available means to deal with or effectively eliminate the hazard.These means could either be used by themselves or in conjunction with those abovementioned, and included electrical insulation of locks, use of non-conductive locks, anduse of rubber shielding which could easily be hung from the switches to separate the locksfrom the energized leads (Tr. 283-285, 1319, 1320, 1333, 1334, 1337).(i) Economic FeasibilityAs to the issue of costs and economic feasibility raised byRespondent, first, I see no reason for Respondent to replace any of its electricalequipment, which would be extraordinarily expensive. Its equipment currently canaccommodate use of padlocks as a lockout device. Further, with use of any of the abovediscussed means, methods or procedures to prevent electrical hazards, no modification ofthe equipment would be necessary with employment of the personal padlock lockout system.Hydraulic or pneumatic valves can easily be locked with a chain and padlock (Tr. 132, 136,141, 153, 155, 156, 460, 461, 462, 469, 470, 538, 618, 647, 648, 711, 749, 762, 795, 826,829, 838, 1318, 1321, 1322, 1472, 1473, Ex. C-9, C-10). Second, the costs associated withpurchase of a large number of padlocks appears insignificant in comparison to the benefitsreceived from a safer hazard-free workplace. Moreover, the cost of locks pales thin incomparison to the magnitude of costs associated with ordinary repair and maintenance ofthe equipment at the BOF (Tr. 258, 304-306, 362). Clearly, there exists in this case nolegitimate economic bar to employment of a personal padlock system provided by Respondentto its employees.(j) Possible Rehabilitation of Flag Rule Through TrainingOne last argument of Respondent needs to be considered, thatbeing Respondent’s perception that any failure in its Flag and Tag Rule’s effectiveness toprevent hazards arising from unexpected start-up could be adequately resolved throughproper training and supervision. Respondent essentially forwards the proposition that itis not the flag and tag system that is at fault when there is a failure in the projectedprotections against inadvertent start-up, but that this is merely a matter of need forenhanced training, communications, or supervision. I find Respondent’s argument begs thebasic question whether or not adherence to the Flag and Tag Rule, as opposed to use of apadlock to accomplish the lockout, was itself the hazard. It cannot be denied that allthrough Respondent’s prolonged training efforts (Tr. 1354, 1459-1461, 1519-1523, Exs. R-5,R-6, R-15, R-16, R-17 R-19), there was no reduction or elimination in the number andseriousness of incidents involving the improper removal of one employee’s flag by anotheremployee (be he an hourly employee or supervisor), and that these incidents subjectedemployees who had relied upon the protection of the flag to possible serious injury fromunexpected start-up of equipment under repair.Considering the extensive record in this case, Respondent’sargument, in and of itself, can only lead to the inescapable conclusion that its Flag andTag Rule has an inherent unremediable inability to adequately deal with the recognizedhazard it was designed to prevent. Respondent’s argument as a defense to the Citation mustbe rejected. BSAF – Wyandotte Corporation, 1981 CCH OSHD para. 25,831.(k) The CitationRespondent has argued that the general duty clause was aninappropriate provision of the Act for Complainant to use in citing the alleged violation.I fail to see the logic of Respondent’s argument, since the Citation is clearly worded interms of Section 5(a)(1) of the Act, unequivocably informs Respondent of the violativecondition — a condition for which no current standard exists, and informs Respondent onhow the hazard could feasibly be abated. Whirlpool Corporation v. OSHRC, 645F. 2d 1096 (D. C. Cir. 1981); Whirlpool Corporation, 1979 OSHD para. 23,552 (ReviewCommission). I find that the amended Citation, on its face, to be an appropriate means forthe Complainant to cite the offending condition. I do not find any authority in the casescited by Respondent to hold otherwise.(1) ConclusionsIt has been made patently clear that maintenance ofRespondent’s Flag and Tag Rule created a serious hazard to employees. The recurring andcontinuing deviations in compliance with Respondent’s Flag and Tag Rule points out boththe rule’s inherent inability to protect employees from the hazards involved in this case,and the validity of Complainant’s position that only through use of a personal padlocksystem can there be achieved a realistic positive means to lockout power switches thuseffectively disrupting power from reaching equipment worked on by employees. Further, therecord is completely devoid of any evidence whatsoever which supports Respondent’sconclusion that the term \”lockout\” really means the use of a Flag and Tag andnot the use of a padlock. A simple, but persuasive and compelling, truth exists in thiscase and that is that none of the events in which an employee removed from an open powerswitch the flag of another employee who was then engaged in repair work, placing thelatter employee in jeopardy of injury, would have occurred had there been in place apadlock, the key to which was on the person who placed the padlock on the switch in thefirst instance.In summary, I find that the Complainant has shouldered hisburden in demonstrating those elements establishing a violation of Section 5(a)(1) of theAct. BASF – Wyandotte Corporation, supra; Brown and Root, Inc., supra;Whirlpool Corp. v. OSHRC, supra; Pratt & Whitney Aircraft v. Secretaryof Labor, supra; Usery v. Marquette Cement Manufacturing Co., supra;National Realty and Construction Co. v. OSHRC, supra. Ample evidencein this case established the existence of a known and recognized serious hazard in the useof flags and tags by employees attempting to accomplish a positive means of lockout forpower sources to machines under repair or inspection. Ample proof exists in this recordshowing that the use of padlocks would virtually eliminate the possibility of unauthorizedclosing of main power switches which had been properly locked open with a padlock. Theevidence further showed that personal padlocks, supplied by Respondent to employees, wouldbe compatible with the operation and use of Respondent’s equipment at all its BOF areas,and was a feasible means to eliminate the hazard to which employees are no exposed.Accordingly, I find Complainant has established that a violation of Section 5(a)(1) of theAct existed by reason of Respondent’s failure to have as a work practice the use ofpadlocks as a means of positively locking out power sources during periods when equipmentwas under repair or inspection.CHARACTERIZATION OF THE VIOLATION AS WILLFULThe Complainant, by amendment,[[12\/]] charged in its Citationand Complaint that Respondent’s violation of Section 5(a)(1) of the Act was willful innature. I find sufficient and convincing evidence to sustain Complainant’s allegation thatthe violation of the general duty clause by Respondent was willful in nature. ThatRespondent was fully aware of the hazard to its employees and was fully aware of thefailures in its own flag and tag rule to adequately cope with such hazard, simply cannotbe denied under any reasonable understanding of the evidence making the record in thiscase. Indeed, it appears the vulnerability of employees to injury under Respondent’s flagand tag work rule was all but ignored by Respondent and its supervision.This case involves instance after instance of employees, whileperforming repair or inspection work on the BOF, being placed in jeopardy of serious ormortal injury by reason of the easy and inappropriate removal of flags from powerswitches. What makes this matter particularly egregious is the fact that in many instancesit was Respondent’s own supervisors who blatantly violated the Flag and Tag Rule orotherwise participated in having the flags removed from open main power switches withoutthe consent or knowledge of the employee who had placed them there initially. Thisapparently was done in order to gain quick restoration of power to the BOF equipment whichin turn allowed Respondent to speedily place its BOF, that had been under repair, backinto production — all taking place regardless of the safety consequences orconsiderations (Tr. 48, 473, 474, 593, 594, 857, 858, 1199). In these acts there did notseem to be any real thought or regard given to the safety of employees working on theequipment, and was in total contravention of the purpose of the flags as a device tosafely secure power switches.The record established that notwithstanding Respondent’schampioning of the virtues of its Flag and Tag Rule, there was little regard byRespondent’s supervision in faithfully following the flag rule (Tr. 479, 528, 529, 530,565-570, 577, 581, 583, 589, 600, 601, 615-617, 639, 706, 709, 713, 753, 756, 1408). Itcould be said that violations of the Flag and Tag Rule by Respondent’s supervisors, withits hazardous component to employees, was done intentionally when it suited Respondent’spurposes. After all this record shows that no supervisor was ever disciplined in theslightest for disregarding the rule (Tr. 621, 1195, 1264-1267, 1278, 1485, 1579-1583) –even a supervisor who had seriously violated the rule at least twice, yet was stillconsidered to have had an unblemished record (Tr. 1313).There had been numerous grievances and safety complaints filedby employees concerning both the surreptitious removal of employees’ flags from powerswitches and the fact that the provisions of the Flag and Tag Rule was being ignored.Respondent’s only response to these grievances and complaints was its relentlessimposition of the flag rule until that point when employees, in mortal fear of theirsafety, appeared ready to walk off the job unless something was done. Then, on a limitedbasis, and for the alleged purpose of attempting to obtain time to rehabilitate its ruleso that some sort of faith could be restored to it, did Respondent allow select employeesto use padlocks to positively lockout power sources. After a period of time, it shouldhave been clear that it was impossible for the employees to regain faith in the Flag andTag Rule since those other employees who were not allowed to use locks, but required torely on the flag rule, continued to experience their flags being improperly removed fromopened power switches. No such realization came to Respondent.Time and time again the inherent shortcoming in the Flag andTag Rule was brought to Respondent’s attention but Respondent acted indifferently to theseincidents plainly showing a willingness to subject its employees to otherwise avoidabledangers and hazards. Respondent’s only answer to the failures of its Flag and Tag Rule wasits strident, but baseless, fidelity to the belief that the rule presented the same degreeof positiveness that a padlock system would have in securing power switches. I find thatordinary reason would have dictated that the continual and reoccurring episodes involvingthe failures in the workplace of Respondent’s flag rule would have brought to mind thevulnerability for easy removal of the flags from opened power switches and the flag’sfailure as a safety device. Accordingly, the only objective conclusion that can bereached, in light of these facts, is that the belief or opinion of Respondent that theeffectiveness of its Flag and Tag Rule was, vis-a-vis, comparable to that of a personalpadlock program, was one not reached in good faith. A fortiori, there exists little to barthe way for the ultimate finding that this employer’s conduct was willful in nature. KVS-TVMBuilders, 10 BNA OSHC 1128, 1981 CCH OSHD para. 23,738; Wright & Lopez, Inc.(Docket No. 76-0256), 10 BNA OSHC 1108, 1981 CCH OSHD para. 25,728; Marshall v.M.W. Watson, Inc., 652 F. 2d 977 (10th Cir. 1981), Judge’s Decision 1979 OSHD para.24,009; Mel Jarvis Construction Co., 10 BNA OSHC 1053, 1981 CCH OSHD para. 25,713;Wright and Lopez, Inc. (Docket No. 76-3743), 8 BNA OSHC 1261, 1980 CCH OSHD para.24,419; General Electric Co., 5 BNA OSHC 1448, 1977 CCH OSHD para. 21,853; WesternWaterproofing Co. v. Marshall, supra; C. N. Flagg & Co., 2 BNA OSHC1539, 1974-75, CCH OSHD para. 19,251.I find the actions of Respondent in failing to have in place aprogram whereby padlocks are issued to employees, allowing them to lock open powerswitches while they are engaged in repair or inspection of equipment, to be an act showinga careless disregard of employee safety and an intentional disregard of, or plainindifference to, the Act’s requirements. Wright & Lopez, Inc. (Docket No.76-0256), supra; St. Joe Minerals Corp. v. OSHRC, 647 F. 2d 840, (8thCir. 1981), and cases cited at Note 12 therein; Western Waterproofing Co., v. Marshall,supra; Babcock & Wilcox Co. v. OSHRC, 622 F. 2d 1160 (3rd Cir. 1980);Empire-Detroit Steel v. OSHRC, 579 F. 2d 378 (6th Cir. 1978).Accordingly, I find that Respondent’s conduct in violating thegeneral duty clause, as alleged in the amended Complaint and Citation, was willful innature.ASSESSMENT OF PENALTIESIn the instant case, the Secretary has proposed an amendedpenalty of $10,000. This amount represents the maximum penalty that could be imposed for awillful violation.In assessing the appropriateness of a penalty, the firstconsideration should be whether the proposed penalty satisfies the purposes of the Act.Next the Commission must consider \”the size of the business of the employer beingcharged, the gravity of the violation, the good faith of the employer, and the history ofthe previous violations\”, as provided under Section 17(j) of the Act. St. JoeMinerals Corp., d\/b\/a St. Joe Lead Co.– Smelting Division, 10 BNA OSHC 1023, 1981 CCHOSHD para. 25,644.With respect to the size of Respondent’s business, thisemployer is a large corporation with adequate facilities and personnel to expeditiouslydeal with its occupational safety problems. Viewing the gravity of the violation, theevidence established that literally hundreds of employees were exposed to the hazardscaused by use of the Flag and Tag Rule as the means of obtaining positive lockout ofequipment under repair. The evidence further established that unexpected activation ofequipment while under repair, and ostensibly guarded by flags, could result in seriousinjury or even death. The gravity of the violation must be considered high.In determining the good faith of the employer, the recordestablished little good faith on the part of Respondent in addressing the hazards causedby imposition of its flag rule. Indeed, it was shown that expediency in bringingRespondent’s equipment which had been under repair back into operation, as allowed underthe flag rule, surpassed any consideration for the safety of employees. The history ofthis case involves just too many incidents of employees narrowly escaping injury, or beingexposed to hazards, by reason of the failures in Respondent’s flag rule — many of whichwere caused by Respondent’s own supervisors.While an employer’s training efforts would normally be a factorin adjusting a penalty in its favor, such is not appropriate in this case. Respondent’sactivities in establishing training programs, allegedly designed to deal with the hazardsincident to the flag and tag rule, was done not so much to provide a safe work place as itwas to legitimize its discredited flag rule long shown to be inherently flawed as a safetyrule. This case deals with a long history of employees being exposed to otherwiseavoidable dangers caused by Respondent’s compassionless adherence to its flag rule overthe much sought after personal padlock system.I see no compelling reason why the maximum penalty should notbe imposed in this case. After carefully reviewing the record, I find no supportiveevidence or legal basis why the proposed maximum penalty should receive any adjustment.Imposition of the proposed penalty, it is believed, will serve as an inducement for quickabatement of the hazards throughout Respondent’s workplace. Accordingly, I find thepenalty of $10,000 in accord with the purpose of the Act in assuring employees a safeworkplace. As such, that amount will be affirmed.OTHER MATTERSThe Respondent, in its post trial brief, argues that it was notafforded fundamental due process by the Administrative Law Judge during the hearing(labeled Point I). While a review of the record will show that each party was affordedevery opportunity to present that evidence it believed necessary to its case, and wasafforded complete and unabridged examination and cross-examination of each witness (exceptwhen repetition became excessive), comment will be made to some of Respondent’s arguments.Respondent has argued that certain documents were admitted intoevidence without proper foundation. While the record demonstrates that an adequatefoundation was laid for the introduction of each of the documents listed in Respondent’sargument, it should be recognized that in an administrative hearing the technical rules ofevidence become less important when juxtaposed against considerations dealing with thereliability and probative value of the proffered evidence. Each document allowed intoevidence herein had that quantum of reliability and relevancy which made it important tothe issues in this case. Hurlock Roofing Company, 1979 CCH OSHD para. 24,006;Administrative Procedure Act, 5 U.S.C. 556(d). Only marginally relevant evidence andevidence confusing, misleading, prejudicial or time wasting was not allowed into therecord.Respondent further argues that its case was prejudiced becausethe Administrative Law Judge allowed into the record evidence and testimony which predatedthe six month period for issuance of a Citation under Section 9(c) of the Act. Respondentsargument as a matter of law is without merit as has been determined so by the Commissionand reviewing courts. Ford Motor Company, 1977-78 CCH OSHD para. 22,106; EmpireDetroit Steel Division v. OSHRC, 1977 CCH OSHD para. 22,813, 579 F. 2d 378 (6thCir. 1978). Additionally, such evidence was highly relevant in the determination of theissues in this case.Respondent’s next argument involves what it perceived as aninability of the Administrative Law Judge to render a decision on the various motionspresented at the close of Complainant’s case by reason of the fact that there existed atranscript of the hearing which had inaccuracies in it. While it is not the custom inthese proceedings to have any part of the transcript completed prior to the close of thehearing, it so happened that the trial schedule was spread over a period of time so as tofacilitate the personal schedules of the attorneys, and that this allowed for part of thetranscript covering the first few days of the trial to become available prior to the closeof Complainant’s case. As someone who was more than a were casual observer to theseproceedings, I found it unnecessary to review the transcript prior to the conclusion ofthe hearing and submission of post trial briefs. The content or condition of thetranscript had no bearing whatsoever on the various rulings made in this case. It cansafely be said that it was solely the quality of the motions and the persuasiveness of thearguments supporting those motions that was the basis for issuance of any order or ruling.The final argument of Respondent that will be consideredrelates to what it describes as \”inappropriate statements of the ALJ\”. In thisregard, it will be for the reviewing bodies to determine whether any statements of theAdministrative Law Judge were inappropriate, rendering an unfair prejudice to any party,or whether those statements impinged upon the fairness of the proceedings. However, inRespondent’s listing of \”inappropriate\” statements, where Respondent haschallenged the right of the Administrative Law Judge to ask questions of witnesses, Ibelieve Respondent’s argument tears at the basic fabric insuring a fair trial. It is theresponsibility of the Administrative Law Judge to assure that the facts of the case arefully elicited. Indeed it is the Judge’s obligation to ask questions so that record mayreflect with clarity what the witnesses intended to convey. It is the Judge’sresponsibility to question witnesses to clarify any confusing or ambiguous testimony or todevelop additional facts, and this is what was done. (Occupational Safety and HealthReview Commission Rules of Procedure, Rules 66 and 66 (j); Federal Rules of Evidence, Rule614 (b).Finally, the undersigned has not lightly taken this line ofargument made by Respondent and by reason of this has reviewed and re-reviewed thetranscript to insure that fundamental fairness was given all parties in this case duringthe hearing and subsequently in rendering a decision. In this regard, I searched throughthe record and have been unable to find any instances where any party to these proceedingswas not afforded fundamental due process. Additionally, I have taken particular pains andefforts in writing the decision in a manner in which each party will know exactly how andwhy a particular conclusion was reached — all of which may account in some measure forthe length of this decision. After due consideration, I find no rational basis to alterthese proceedings in any matter by reason of these arguments made by Respondent.ORDER Based upon the foregoing Findings of Fact and Conclusions ofLaw, as set out in my Decision and Order, and for good cause shown, it is ORDERED:1. That item 1 of the Willful-Serious Citation 1 is AFFIRMED.2. A penalty of $10,000 is assessed.Edward A. Bobrick Judge, OSHRCDated: March 11, 1982 Chicago, IllinoisFOOTNOTES: [[1\/]] Section 5 (a) (1) reads in pertinent part:(a) Each employer — (1) shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to his employees.[[2\/]] The employee could also place a \”group flag\”whereby several employees working closely together would operate under one flag (Tr. 138,798, Ex. C-5-a, pg. 13, para. No. 2).[[3\/]] In the case of electrical equipment, main power switchesare placed in the open position. Pneumatic and hydraulic valves are placed in a closedposition.[[4\/]] Respondent’s \”Lock-out, Flag and Tag Rule\”found in Section VII of its General Safety Rules for Employees (Ex. C-5-a) provides inapplicable part: (1) This rule is especially applicable to those employees who oil,inspect or work around machinery and includes those who repair cranes or crane runways.The main switch handle controlling machinery which will be repaired or inspected shall beopened and locked out whenever provisions allow a lock to be used.The lock shall beposted with a flag or tag before anyone shall be permitted to work around or on themachinery involved. Plant procedure is to be followed. All flags and tags shall have thename, department symbol or code and check number of the man who places them. The flags andtags are to be securely fastened with cord or non-metallic material. Wire is not to beused for this purpose. No one shall remove a lock, a flag or tag except the person whoplaces it except under the following conditions: In the event that a person does notremove his lock, flag or tag and cannot be located, and it is necessary to put the machinein operation, the supervisor, after making a thorough check of the machinery in questionin company with a repairman, on turn, may remove the lock, flag or tag. (Emphasisadded)[[5\/]] After weighing the knowledge and experience of allexpert witnesses concerning the subject matter of this case, the self interest of thewitnesses and the reasoning upon which their testimony is based, I find I cannot ascribeto Respondent’s witness the same degree of reliability as I did with Complainant’switnesses. I found Respondent’s expert witness, while sincere in his views, not able tosquarely deal with those hard issues involving the consequences of flags beinginappropriately removed from open power switches (Tr. 1707, 1708). The witness’s offeringof a synergistic review of Respondent’s basic flag rule did not bring any ready insightinto the case (Tr. 1725). Further, the bulk of this witnesses’ testimony dealt withequipment not analogous to that involved in this case (Tr. 1753-1759).[[6\/]] There was significant testimony and evidence introducedshowing that prior to 1971 the Flag and Tag Program was not working as a means of positivelockout protection for employees. This evidence consisted of employee testimony as well asdocumentation of grievances relating to the removal by supervisors of flags from openswitches (Tr. 578, Ex. C-28, Tr. 587, Ex. C-30, Tr. 1349-1530, Ex. R-4). Since theseincidents occurred prior to the effective date of the Act, they cannot be consideredactionable or relevant in any way and thus are viewed as not material to the issues inthis case. Accordingly, all evidence of this nature has been disregarded in anyconclusions reached herein.With respect to evidence outside the statutory six-month periodreferred to in Section 9(c) of the Act, but occurring subsequent to the effective date ofthe Act, I do not agree with Respondent’s view as to its lack of relevancy andadmissibility. I find this evidence relevant, material, and admissible. Ford Motor Co.,1977-78 CCH OSHD para. 22,106; Empire Detroit Steel Division v. OSHRC, 579 F.2d 378 (5th Cir. 1978).[[7\/]] The statement of a BOF Mechanical employee wasillustrative of the fact that while hourly employees tried to adhere and rely on the flagrules for protection, supervisory employees did not feel a like compunction. \”We knowthe importance of it because it is our lives and our friends lives that we work with thatare involved\” (Tr. 768).[[8\/]] The record, and the discussion of it, contains ampleexamples of violations of the terms, spirit and purpose of the Flag and Tag Rule byRespondent’s supervisors. I will not re-review them except to make reference to twoincidents that portray the typical workings of the Flag and Tag Rule, and the attitude ofRespondent and its supervisors toward the rule as a means of obtaining employee jobsafety. One incident involves a foreman who attempted to have one set of employee’s flagsplaced on open power switches for a second set of employees (Tr. 593, Ex. C-32). Thissubverted the entire purpose of the rule. A grievance was filed challenging the actions ofthe supervisor. Then there is the telling incident which took place as late as March 10,1980. A foreman removed a flag from an open power switch placed by an employee who wasthen working on a generator controlled by the flagged out power switch. The foreman whoadmitted removing the employee’s flag, without the employee’s knowledge, found excuse forhis conduct by stating \”employees take each other’s blue flag and tag off ascommonplace don’t they\” (Tr. 479, Ex. C-20). Significantly, no disciplinaryaction was ever initiated by Respondent toward the supervisor even though this was thesecond such incident in which he was involved — indeed, no disciplinary action had everbeen taken by Respondent toward any supervisors for violating the flag and tag rule (Tr.621, 1195, 1264-1267, 1278, 1485, 1579-1583).[[9\/]] As to industry recognition see pages 20-21 supra.[[10\/]] N. 4 supra[[11\/]] In support of its argument concerning the lack oflockout facilities, Respondent offered the testimony of an expert witness who describedhow significant amounts of equipment at the plant could not be padlocked. The testimony ofthis expert witness, however, concerned itself with high voltage electrical equipmentwhich was a type of equipment substantially different than that involved in this case. Theelectrical equipment referred to by Respondent’s expert in his opinions was different incharacter to the mechanical equipment involved in this case since it had its ownelectrical switching devices which were equivalent to padlocks, had these devices in closeproximity to the equipment, was used only by skilled electricians, and was generally itsown power source (Tr. 1693-1695, 1734-1737, 1753, 1754-1759). I find the testimony ofRespondent’s expert not on point, offering little insight into the contested issues byreason of the significant differences between the equipment and its uses and purposeswhich formed the basis of his opinion, and that equipment involved in this case.[[12\/]] At the close of Complainant’s case, and immediatelybefore Respondent proceeded with its part of the case, Complainant presented a Motion toAmend Complaint wherein paragraph IV(c) of the Complaint was amended to allege that thecharged violation constituted a willful\/serious violation within the meaning of Section17(a) of the Act. Complainant further moved that paragraph IV(g) of the Complaint beamended with respect to the penalty proposed for Item 1 of Citation No. 1 to allege thatthe proposed penalty be $10,000 (Tr. 1034). After allowing the parties ample opportunityto prepare and present their arguments concerning the Motion to Amend (Tr. 1065, 1068,1072, 1088-1122), for those reasons announced at trial, I allowed Complainant to amend hisComplaint characterizing the alleged violation as willful in nature and changing theproposed penalty (Tr. 1122-1126).”