“Docket No. 76-1897 SECRETARY OF LABOR, Complainant,v.BLOCKSOM AND COMPANY, Respondent.OSHRC Docket No. 76-1897DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Respondent, Blocksom and Company (\”Blocksom\”), produces stuffingmaterial for mattresses and furniture at a plant in Michigan City, Indiana.\u00a0Following an inspection of the plant by an OSHA compliance officer, the Secretary ofLabor (\”Secretary\”) issued citations to Blocksom alleging numerous violations ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”theAct\”).\u00a0 A number of the alleged violations were settled, and a hearing on theitems remaining in dispute was held before Administrative Law Judge Sidney J.Goldstein.\u00a0 The judge affirmed some items, vacated others, and concluded that certainof the affirmed violations should be classified as de minimis.\u00a0 Commissioner Clearygranted Blocksom’s petition for review of certain aspects of the judge’s decision pursuantto section 12(j) of the Act, 29 U.S.C. ? 661(i).\u00a0 The alleged violations on reviewinvolve emergency respirator training, grounding of electrical equipment, splices inflexible electrical cords, machine guarding, and lockout procedures for machinery duringcleaning and maintenance.\u00a0 We affirm in part and reverse in part.Citation 1, [[1\/]] item 12(2) – Respirator Training.\u00a0 This item alleged that Blocksom violated 29 C.F.R. ? 1910.134(b)(3) [[2\/]] by failing totrain its employees in the proper use of Universal Gas Masks, which Blocksom kept in itsmaintenance department.\u00a0 The respirators had been obtained by Blocksom a considerablelength of time before the inspection for use by employees in fire emergencies.\u00a0 It isundisputed that employees were not trained in the proper manner of using the masks.\u00a0During the inspection, the compliance officer learned of an incident that occurred ayear earlier in which an employee had attempted to use one of the masks to enter abuilding during a fire but was unable to do so because the employee did not know how toget air through the mask.\u00a0 The compliance officer was concerned that an employeeattempting to use the respirator during a fire could be overcome by smoke if the employeedid not know how to use the respirator properly. Blocksom’s plant manager, McDonald, testified that the respirators had notbeen used in the year prior to the inspection. \u00a0He stated that it was now Blocksom’spolicy to evacuate employees in the event of any fire that was beyond immediate controland that this policy was communicated to Blocksom’s employees.\u00a0 He further testifiedthat all work areas now contained automatic sprinklers and that the company relied on twonearby fire departments to fight fires.We vacate this item. [[3\/]]\u00a0 The cited standard requires that the userof a respirator be properly trained in its use and limitations.\u00a0 The mere presence ofrespirators on a jobsite does not trigger the training requirement.\u00a0 In this case, itappears that Blocksom at one time did intend that the respirators would be used byemployees in fighting fires.\u00a0 However, at the time of the alleged violation, Blocksomno longer intended that the respirators be used but had a policy to evacuate the plant inthe event of any fire beyond immediate control and to rely on its automatic sprinklersystem and the nearby fire departments to control all other fires.\u00a0 Thus under thecircumstances of this case, training in the use of respirators was not required. [[4\/]]Citation 1, items 50(2), (3), and (4) – Ungrounded Electrical Equipment During the inspection, the compliance officer observed that the ground prongsof the plugs supplying electrical power to a pedestal light, two pedestal fans, and anextension light were broken off.\u00a0 The Secretary alleged that Blocksom’s failure toground these pieces of equipment violated Article 250-45 of the 1971 National ElectricalCode (\”NEC\”) as adopted by 29 C.F.R. ? 1910.309(a). [[5\/]]\u00a0 We vacate these items.\u00a0 In order to prove that an employer violated astandard, the Secretary must establish by a preponderance of the evidence that thestandard applies to the facts, that there was a failure to comply with the standard, thatemployees had access to the violative condition, and that the employer either knew orcould have known of the condition with the exercise of reasonable diligence.\u00a0 AstraPharmaceutical Products, 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ? 25,578at pp. 31,899-900 (No. 78-6247, 1981), aff’d, 681 F.2d 69 (1st Cir. 1982).\u00a0 Thepertinent part of Article 250-45 requires grounding of equipment only when that equipmentis used in damp or wet locations, or by persons standing on the ground or on metal floorsor working inside of metal tanks or boilers. \u00a0The Secretary presented no evidencethat the cited equipment was used under such conditions.\u00a0 Moreover, variousphotographic exhibits of Blocksom’s workplace do not indicate the presence of metal floorsor of any of the other conditions mentioned in the standard.\u00a0 Accordingly, theSecretary has not proven that the cited standard applies to the facts. [[6\/]]Citation 1, item 52 – Spliced Electrical CordsThe compliance officer observed two electrical cords containing splices in Blocksom’splant.\u00a0 One of the cords supplied power to a portable electrical spotlight; the otherwas a motor lead cable to the No. 2 Wet Picker Machine.\u00a0 Bare wire was visible at thesplice in the motor lead cable.\u00a0 The compliance officer testified that he observedemployees working in areas where they could contact the cords and he was concerned thatemployees could suffer electric shock or electrocution.\u00a0 Blocksom’s expert witness,James F. Van Namee, testified that the splices were in inaccessible locations where theycould not be contacted by employees.[[7\/]]The Secretary alleges that Blocksom violated Article 400-5 of the 1971 NEC.\u00a0That article provides:\u00a0 \”Flexible cord shall be used only in continuouslength without splice or tap.\”We conclude that Blocksom violated the standard as alleged.\u00a0 Thestandard absolutely prohibits splices in flexible cords, and it is undisputed that the twocords in Blocksom’s plant were spliced.\u00a0 Thus, there was noncompliance with thestandard.\u00a0 Blocksom contends, however, that the violative condition was notaccessible to employees, relying on Van Namee’s testimony.We conclude that access was proven.\u00a0 One of the splices was on aportable spotlight.\u00a0 Even if that splice was inaccessible at one time, the fact thatit was on a portable piece of equipment, which could be used in different locations, showsthat the splice was accessible to employees.\u00a0 Concerning the motor lead cable, thecompliance officer testified that the splice was visible, there were operators in front ofthe machine and other employees working at the discharge end of the machine.\u00a0 He alsotestified that the improper splicing could mean the machine was not properly grounded.\u00a0Van Namee concluded that \”[t]here is no possibility of the employees, operatorscoming in contact with\” the spliced cord because it was under the table on which themachine rested.\u00a0 However, he did not explain why employees working at the machinecould not contact the visible splice and bare wire under the machine table.\u00a0 Weconclude that the Secretary established by a preponderance of the evidence that employeeshad access to the hazards of electrical shock and electrocution, and we affirm this item[[8\/]] See Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 1978 CCH OSHD ? 23,135(No. 16057, 1978). Citation 2 – Lockout ProceduresThe citation alleged that Blocksom violated section 5(a)(1) of the Act [[9\/]] by failingto \”establish a procedure for securing or deenergizing electricity on machinery toprevent employees from being exposed to dangerous equipment during machine adjustment,cleaning and maintenance operations.\”\u00a0 At the hearing, the compliance officertestified that the alleged violation concerned Blocksom’s failure to institute a lockoutprocedure during machine maintenance and cleaning operations.\”\u00a0 He describedsuch a procedure as a positive means of deenergizing equipment such that it could not beaccidentally turned on.\u00a0 One way this could be accomplished is by placing a lock onthe main power switch to the machine, with the key to the lock kept in the possession ofthe employee working on the machine.\u00a0 The Secretary presented a witness, Eugene L.Permenter, whom Blocksom stipulated was an expert on safety in the textile industry.\u00a0Permenter testified that the major cause of serious injuries in the textile industryis machine accidents and that the industry recognized the need to implement lockoutprocedures to prevent such accidents.Blocksom did not attempt to rebut any of the factual or opinion testimonyoffered by the Secretary but contends that it did not violate section 5(a)(1) in theprecise manner alleged in the citation.\u00a0 Blocksom points out that the citationalleged a violation for not \”securing or deenergizing\” equipment.\u00a0 Thecompany interprets the citation to permit compliance by either of two means:\u00a0 lockingout (securing) machinery or deenergizing the machinery.\u00a0 Because all machinery wasturned off during the instances of alleged violation observed by the compliance officer,Blocksom contends it was in compliance with the deenergization alternative it asserts ispermitted by the citation.We reject Blocksom’s argument and affirm the citation.\u00a0 Although thecitation is not worded as specifically as it might have been, the testimony at the hearingmade it clear that the violation alleged by the Secretary consisted of Blocksom’s failureto implement a lockout procedure.\u00a0 All of the testimony of the compliance officer andPermenter, the two witnesses who testified with respect to this citation, was directed atthe absence of a lockout procedure at Blocksom’s plant.\u00a0 \”So long as fair noticeis afforded, an issue litigated at an administrative hearing may be decided by the hearingagency even though the formal pleadings did not squarely raise the issue.\”\u00a0Baroid Division of NL Industries v. OSHRC, 660 F.2d 439, 449 (10th Cir. 1981),quoting National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir.1973).\u00a0 See also Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3rd Cir.1980).\u00a0 We conclude that the evidence presented at the hearing gave Blocksom fairnotice that the citation charged a violation for failure to implement a lockout procedure[[10\/]] and we affirm the judge’s finding of a violation.[[11\/]]Citation 3 – Machine GuardingThis citation alleged that Blocksom violated 29 C.F.R. ?? 1910.219(f)(1)and (f)(3) [[12\/]] by failing to guard certain chain and sprocket drives and gears.\u00a0The citation involves two types of machine:\u00a0 a 72-inch Garnett machine and arope-spinning machine.Garnett Machine (Item 1A, Example 3, and Item 1C, Example 1):The 72-inch Garnett machine processes synthetic fibers into a sheet-typematerial.\u00a0 Along the side of the machine where the operator stands are various chainand sprocket drives and gears, which are in motion when the machine is operating.\u00a0 Anexpanded metal screen is located between the moving parts and the operator.\u00a0 Thescreen is supported by steel posts and can be slid upward along the posts to give accessto the machine.The machine operates automatically, with the operator observing the machinethrough the metal screen.\u00a0 It is sometimes necessary for the operator to have accessto the machine to remove excess material so that the machine will not clog.\u00a0 Theoperator uses a five-foot-long pole to remove the excess material.\u00a0 This is done withthe machine running and the screen raised.\u00a0 The operator also occasionally blowsexcess material off the machine with an air hose while the screen is raised and themachine is running.We conclude that the Garnett machine was adequately guarded.\u00a0 When thescreen was in its lowered position it would prevent any possibility of contact with thechains, sprockets, and gears.\u00a0 The screen was only raised for brief periods when itwas necessary to have access to the machine for cleaning purposes.\u00a0 The cleaningoperation was performed using either an air hose or a five- foot-long pole, which wouldkeep the operator a safe distance from the moving parts.\u00a0 We therefore conclude thatBlocksom’s method of guarding eliminated any hazard to employees and vacate these items.[[13\/]] See Rockwell International Corp. 80 OSAHRC 118\/A2, 9 BNA OSHC 1092, 1097-98, 1980CCH OSHD ? 24,979 at p. 30,846 (No. 12470, 1980).Rope-Spinning Machines (Item 1A, Example 2):Blocksom’s rope-spinning machines manufacture rope from fiber.\u00a0 Like theGarnett machine discussed above, expanded metal screens are positioned around a machineduring normal operation.\u00a0 However, in order to \”thread-up\” a machine, anemployee must lower a hinged section of the screen and feed fibers by hand between certainrollers.\u00a0 Immediately adjacent to the rollers are chain and sprocketmechanisms.\u00a0 The Secretary alleges that Blocksom violated 29 C.F.R. ? 1910.219(f)(3)by failing to guard these mechanisms.In arguing for vacation of this item, Blocksom contends that the screensadequately guarded the machines.\u00a0 Blocksom relies on the testimony of its expertwitness, Van Namee, who offered the opinion that the machines were adequately guarded.\u00a0 However, testimony, including that of Blocksom’s plant manager, establishes thatthe machines were not guarded and running while they were being threaded up.\u00a0 In viewof the close proximity of employees’ hands to the rollers and the chain and sprocketmechanisms while the machines were in operation we conclude the machines were inadequatelyguarded and affirm this item.Citation 4 – Machine GuardingAt issue under this citation are items alleging that Blocksom violated 29 C.F.R. ?1910.212(a)(1)[[14\/]] by failing to guard two machines:\u00a0 a Duoform slitter and avertical reciprocating lapper. [[15\/]] Duoform Slitter (Item 1, Example 1C):This machine contains a number of circular rotating knives, each about eightinches in diameter, that slice sheets of fibrous padding into strips. Employees feed thematerial by hand into the knives. An employee testified that, on one occasion, he had beenwearing gloves when a knife had caught the glove and pulled it off his hand. He was notinjured. Blocksom’s plant manager, McDonald, stated that the knives were too dull toinjure a person who contacted a rotating blade. He testified that the knives cut thepadding material by pressure rather than by the sharpness of their blades.In order to prove a violation of section 1910.212(a)(1), the Secretary mustprove that the operation of a machine presents a hazard to employees.\u00a0 Papertronics,Division of Hammermill Paper Co., 78 OSAHRC 54\/C6, 6 BNA OSHC 1818, 1978 CCH OSHD ?22,898 (No. 76-3517, 1978).\u00a0 We conclude that the Secretary has met that burden.\u00a0 Although we credit McDonald’s testimony that the knife blades were too dull to cuton mere contact, the fact that the blades cut the padding material by pressure establishesthat the knives exerted sufficient force to injure the hands or fingers of employeesshould they be caught under a blade.\u00a0 Moreover, the record shows that there was adanger that employees could get their fingers or hands under the blades.\u00a0 Theemployees fed the padding material by hand directly into the blades, and the incident inwhich one employee had a glove removed by a blade demonstrates that employees’ hands couldbe endangered by the blades.\u00a0 Accordingly, we affirm this item.We conclude that the violation was not proved to be serious in nature asalleged.\u00a0 In order to prove that a violation is serious, the Secretary must show asubstantial probability that the result of an accident would be death or serious physicalharm.\u00a0 29 U.S.C. ? 666(j); Consolidated Rail Corp., 82 OSAHRC 24\/F7, 10 BNA OSHC1564, 1568, 1982 CCH OSHD ? 26,046 at p. 32,715 (No. 78-1504, 1982), appeal dismissed,No. 82-3301 (3d Cir. Nov. 16, 1982).\u00a0 Although the record shows that employees couldsuffer injury to their fingers or hands should they get caught under a knife blade, thereis no evidence showing a substantial probability that the injury would be serious. Wetherefore affirm this item as a nonserious violation.Vertical Reciprocating Lapper (Item 1, Example 8):This machine contains an inclined reciprocating mechanism several feet inlength that comes as close as eight inches to an aisleway in the rear of the machine.\u00a0 Employees sometimes use the aisleway when the machine is operating.\u00a0 TheSecretary alleged that Blocksom violated section 1910.212(a)(1) in that the lapperoperator and other employees were subjected to the potential hazard of being struck by theunguarded lapper.We conclude that the Secretary failed to prove that the lapper was hazardousto employees.\u00a0 Assuming that the lapper could strike an employee using the aisleway,the mere fact that moving parts of a machine could contact an employee does not prove thatsuch contact would cause injury.\u00a0 Edison Lamp Works, 79 OSAHRC 81\/C7, 7 BNA OSHC1818, 1979 CCH OSHD ? 23,913 (No. 76-484, 1979); Papertronics, Division of HammermillPaper Co., supra.\u00a0 The record in this case does not establish that the movingmechanism moved with sufficient force to cause injury.\u00a0 We also note that thelapper’s function is to distribute material, not to perform any type of cutting orprocessing function that requires great force.\u00a0 Finally, Blocksom’s expert, VanNamee, testified that he had seen many lappers and had never seen one guarded.\u00a0 Thefact that it is not common practice to guard lappers suggests that their operation doesnot present a hazard.\u00a0 This item is vacated [[16\/]] Citation 5 – Machine GuardingAt issue under this citation are items alleging that Blocksom violated 29 C.F.R. ?1910.217(c)(1)(i).[[17\/]] by failing to guard the point of operation of two machines:\u00a0 a mechanical full-revolution die press and a Sheridan embossing machine.Mechanical Full-Revolution Die Press (Item 1(A), Example 1):This machine, which Blocksom admits is a mechanical power press subject tothe cited standard, is used to punch pieces out of sheet metal.\u00a0 The operator holdsthe sheet metal stock with one hand and trips the press with the other.\u00a0 Thecompliance officer testified that there was no method of machine safeguarding at the pointof operation and that the operator’s hands and fingers were exposed to the potentialhazard of being caught between the dies.\u00a0 Blocksom contends that there was no hazardbecause both of the operator’s hands were occupied away from the point of operation duringthe operating cycle, one holding the stock and the other tripping the press.We affirm this item.\u00a0 The compliance officer’s testimony that the pointof operation was not safeguarded was unrebutted.\u00a0 We reject Blocksom’s argument thatthe operator was protected by having both his hands occupied during the operating cycle.\u00a0 Although two-hand tripping devices are a permissible type of point of operationdevice, such a device must require \”application of both of the operator’s hands tomachine operating controls. . . .\” 29 C.F.R. ? 1910.217(c)(3)(i)(e). (Emphasisadded.)\u00a0 Compliance with this section cannot be achieved if one of the operator’shands is holding the material being processed, as was the case in Blocksom’s operation.\u00a0 Indeed, as the Secretary points out, the primary purpose of the standard is toprotect an operator’s hand used to hold stock from inadvertently entering the point ofoperation. [[18\/]]\u00a0 See Amforge Division, Rockwell International, 80 OSAHRC 46\/A2, 8BNA OSHC 1405, 1980 CCH OSHD ? 24,439 (No. 76-3488, 1980).[[19\/]]Sheridan Embossing Machine (item 2):This machine was used to stamp patterns out of a fibrous padding material.\u00a0 The compliance officer testified that the point of operation was unguarded and thatemployees could have gotten part of their bodies caught between the dies.\u00a0 Blocksom’sexpert witness, Van Namee, was of the opinion that the machine was not a mechanical powerpress subject to the cited standard.\u00a0 He stated that a mechanical power pressincludes a slide, to which a die is attached, that slides within guides, and that theSheridan embossing press did not have such a mechanism.We agree with Blocksom’s argument that section 1910.217(c)(1)(i) does notapply to this machine.\u00a0 Van Namee’s testimony that a mechanical power press mustcontain a slide that slides within guides is consistent with the Commission’s decisionconcerning the applicability of the mechanical power press standards in Western SteelManufacturing Co., 76 OSAHRC 112\/E2, 4 BNA OSHC 1640, 1976-77 CCH OSHD ? 21,054 (No.3528, 1976).\u00a0 Moreover, his testimony that the Sheridan embossing machine did notcontain such a mechanism was unrebutted.\u00a0 Because the cited standard is inapplicable,the item is vacated. [[20\/]]Penalties With respect to the items on review, the judge assessed the following penalties: Citation 1, item 12 $ 0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 item 50 $ 35 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 item 52 $ 0 Citation 2 $700 Citation 3 $400 Citation 4 $100 Citation 5 $350 For citation 1, item 50 and citations 3, 4, and 5, the penalties assessed bythe judge encompass subitems that are not before us for review as well as those subitemsdiscussed in this decision.\u00a0 Accordingly, we will adjust those penalties to reflectthe subitems that are vacated by this decision.\u00a0 We assess the following adjustedpenalties: Citation 1, item 12 $\u00a0 0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 item 50 $ 10 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 item 52 $\u00a0 0 Citation 2 $700 Citation 3 $300 Citation 4 $ 50 Citation 5 $225 Blocksom also asks us to vacate the penalties of $35 assessed by the judge for items 46and 51 of the nonserious citation. [[21\/]] Blocksom admitted the violations alleged inthese items but contested the penalties.\u00a0 Blocksom offers no specific reasons why thepenalties assessed by the judge are inappropriate, and we affirm the judge’s assessments.Order The following items are vacated:\u00a0 Citation 1, items 12(2), 50(2), 50(3), and 50(4);Citation 3, item 1A, example 3 and item 1C, example 1; Citation 4, item 1, example 8;Citation 5, item 2.\u00a0 The penalty for citation 1, item 50 is reduced to $10.\u00a0 Thepenalties for citations 3, 4, and 5 are reduced to $300, $50, and $225 respectively.\u00a0 In all other respects the judge’s decision is affirmed.\u00a0 SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 28 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1\/]] The items contained in citation 1 are alleged to be nonserious. \u00a0The violations alleged in the remaining citations are designated by the Secretary asserious in nature.[[2\/]] This standard provides:? 1910.134 Respiratory protection.(b) Requirements for a minimal acceptable program.(3) The user shall be instructed and trained in the proper use of respirators and theirlimitations.[[3\/]] Blocksom’s petition for review did not directly challenge the meritsof this item but contended that the citation was barred by the Act’s six-month statute oflimitations.\u00a0 29 U.S.C. ? 659(c).\u00a0 However, in this case the statute oflimitations issue is intertwined with the merits of the citation.\u00a0 The Secretaryalleges that Blocksom violated the standard on the date of the inspection and that thecitation, which was issued within six months of the inspection, is therefore not barred.\u00a0 Blocksom’s argument based on the statute of limitations reduces to the contentionthat the company did not violate the standard within six months of the date the citationwas issued.\u00a0 In order to resolve this dispute, it is necessary to determine whether,as the Secretary contends, a violation of the standard occurred at the time of theinspection.\u00a0 Moreover, both parties understood that the merits of the case are beforethe Commission for resolution, as they argued that issue in their briefs on review.[[4\/]] Commissioner Cottine dissents from the decision to vacate this item.\u00a0 First, the only issue raised by Blocksom in its petition for review and directedfor review concerning this item was whether the citation was precluded under the 6-monthtime limitation in section 9(c) of the Act.\u00a0 The appropriateness of consideration ofother issues is in doubt in light of the recent decision in J.L. Manta Plant Services Co.,10 BNA OSHC 2162, 1982 CCH OSHD ? 26,303 (No. 78-4923, 1982).\u00a0 There, the majorityexpressly left open the question whether a party may raise issues on review different fromthose raised in its petition for review.\u00a0 10 BNA OSHC at 2164 n. 6, 1982 CCH OSHD p.33,267 n.6.\u00a0 However, here the majority rules in favor of Blocksom based on issuesdifferent from those raised in its petition.\u00a0 Regarding the merits of Blocksom’ssection 9(c) claim, Commissioner Cottine notes that the conditions cited here continued upto the time of the citation.\u00a0 The respirators never were removed from the worksiteand no instructions on their use ever were given.\u00a0 The Secretary may cite a violationwhich first occurred more than 6 months before the citation if the violation is continuingin nature.\u00a0 See Central of Ga.R.Co., 77 OSAHRC 42\/A2, 5 BNA OSHC 1209, 1977-78 CCHOSHD ? 21,688 (No. 11742, 1977), aff’d on other grounds, 576 F.2d 620 (5th Cir. 1978).\u00a0Accordingly, Commissioner Cottine rejects Blocksom’s section 9(c) claim.Second, assuming that the other issues raised in Blocksom’s brief are beforeus, Commissioner Cottine concludes that Blocksom violated the cited standard by makingrespirators available to employees for fire-fighting purposes but not training employeesto use the respirators.\u00a0 Cf. Bechtel Power Co., 79 OSAHRC 34\/A2, 7 BNA OSHC 1361,1366, 1979 CCH OSHD ? 23,575 at p. 28,577 (No. 13832, 1979) (availability for use ofnoncomplying equipment constitutes a violation).\u00a0 As the compliance officertestified, employees could be subject to the hazard of being overcome by smoke if theyattempt to use the respirators during a fire emergency but do not know how to use themproperly.\u00a0 Commissioner Cottine concludes that Blocksom’s asserted policy ofevacuating employees in the event of a fire does not eliminate the hazard.\u00a0 Thepolicy is equivocal in that Blocksom still permits employees to attempt to fight firesthat are not \”beyond immediate control.\”\u00a0 Thus, Blocksom’s employees stillare permitted to engage in fire fighting in some circumstances.\u00a0 Also, Blocksom’sasserted policy is inconsistent with its making respirators available to workers when thesole use for respirators is in fighting fires.\u00a0 Employees who know that respiratorsare available for this purpose may well attempt to fight a fire hoping that it can bebrought quickly under control.\u00a0 Even assuming Blocksom no longer intended thatemployees use the available emergency respirators at any time, there is no evidence thatit specifically explained that to the employees.\u00a0 Commissioner Cottine would find aviolation.[[5\/]] 29 C.F.R. ? 1910.309(a) provides:? 1910.309 National Electrical Code.(a) The requirements contained in the following articles and sections of the NationalElectrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to allelectrical installations and utilization equipment.Article 250-45 is among the articles listed.\u00a0 That article provides, inpertinent part:250-45 Equipment Connected by Cord and Plug.\u00a0 Under any of the followingconditions, exposed noncurrent-carrying metal parts of cord- and plug-connected equipment,which are liable to become energized, shall be grounded:***(d) In other than residential occupancies, ……. (4) cord- and plug-connectedappliances used in damp or wet locations, or by persons standing on the ground or on metalfloors or working inside of metal tanks or boilers . . . .[[6\/]] Because of our disposition, we need not determine whether the citedpieces of equipment are \”appliances\” within the meaning of Article 250-45.[[7\/]] We note that evidence of the accessibility to hazardous conditions need not beaddressed through expert testimony.\u00a0 No particular expertise is required to offercredible evidence on the issue.[[8\/]] Chairman Rowland would classify the violation as de minimis.\u00a0 Thecompliance officer testified that splices in cords could lead to a hazard of electricshock or electrocution.\u00a0 However, there is no evidence that the splice in the cord tothe portable spotlight was not insulated in manner sufficient to eliminate this hazard.\u00a0Further, there is no evidence that the portable spotlight was moved from where itwas located at the time of the inspection, which was a location that, according to theunrebutted testimony of Van Namee, was inaccessible to employees.\u00a0 With respect tothe splice in the motor lead cable, Chairman Rowland disagrees with the majority that VanNamee’s testimony is not sufficient to establish that employees could not come intocontact with the wire. Therefore, Chairman Rowland concludes that the hazard to employeeswas negligible and that the de minimis classification is appropriate.\u00a0 See DanielConstr. Co., Boise Cascade Project, 81 OSAHRC 107\/D2, 10 BNA OSHC 1254, 1260, 1982 CCHOSHD ? 25,840 at p. 32,331 (No. 80-1224, 1981), aff’d, 692 F.2d 818 (1st Cir. 1982).[[9\/]] Section 5(a)(1), 29 U.S.C. ? 654(a)(1), provides:Sec. 5(a)(1) Each employer–(a) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[10\/]] Chairman Rowland dissents from the affirmance of the citation.\u00a0The majority finds Blocksom in violation of ? 5(a)(1) for failing to lock outmachinery during maintenance.\u00a0 The citation, however, did not allege that theviolation consisted of Blocksom’s failure to lock out machinery; it charged Blocksom withfailing to secure or deenergize machinery.\u00a0 In the Chairman’s view, the majority’saction amounts to an improper amendment of the citation.An amendment of a citation to find a violation based on Blocksom’s failure tolock out machinery would only be appropriate if the parties squarely recognized at thetrial that they were trying an unpleaded issue.\u00a0 Farmers Cooperative Grain and SupplyCo., 82 OSAHRC\u00a0\u00a0\u00a0\u00a0\u00a0 ,10 BNA OSHC 2086, 1982 CCH OSHD ? 26,301(No. 79-1177, 1982) (Rowland, Chairman, dissenting).\u00a0 During the hearing, thecompliance officer, who was the only witness who testified to the operative factssurrounding the alleged violation, consistently used the words \”deenergize\” and\”secure,\” as well as \”lock out,\” in describing the precautions hebelieved Blocksom should have taken.\u00a0 Moreover, at one point in his testimony, thecompliance officer referred to the fact that Blocksom had been given \”an option\”between \”securing and deenergizing\” the machinery.\u00a0 Additionally,Blocksom’s attorney consistently asked questions that indicated he believed the citationpermitted either deenergization or securing of the machinery.\u00a0 Accordingly, ChairmanRowland would conclude that the parties did not squarely recognize they were trying anunpleaded issue.\u00a0 Therefore, amendment of the citation is inappropriate.\u00a0Because all the machines involved in this citation were deenergized during the instancesof alleged violation observed by the compliance officer, Chairman Rowland concludes thatBlocksom did not violate the Act in the manner alleged in the citation and would vacatethe citation.[[11\/]] We also reject Blocksom’s argument that it cannot be found inviolation of ? 5(a)(1) because no specific standard requires lockout procedures.\u00a0 Itis precisely those situations not covered by any specific standard that are appropriatelythe subject of citation under ? 5(a)(1).\u00a0 See American Smelting and Refining Co. v.OSHRC, 501 F.2d 504 (8th Cir. 1974); United States Pipe and Foundry Co., 78 OSAHRC 8\/D6, 6BNA OSHC 1332, 1978 CCH OSHD ? 22,514 (No. 11739, 1978).[[12\/]] These standards provide:? 1910.219 Mechanical power-transmission apparatus(f) Gears, sprockets, and chains — (1) Gears.\u00a0 Gears shall be guarded in accordancewith one of the following methods:(i) By a complete enclosure; or(ii) By a standard guard as described in paragraph (o)of this section, at least seven (7) feet high extending six (6) inches above the meshpoint of the gears; or(iii) By a band guard covering the face of gear and having flanges extended inward beyondthe root of the teeth on the exposed side or sides.\u00a0 Where any portion of the trainof gears guarded by a band guard is less than six (6) feet from the floor a disk guard ora complete enclosure to the height of six (6) feet shall be required.(3) Sprockets and chains.\u00a0 All sprocket wheels and chains shall beenclosed unless they are more than seven (7) feet above the floor or platform.\u00a0 Wherethe drive extends over other machine or working areas, protection against falling shall beprovided.\u00a0 This subparagraph does not apply to manually operated sprockets.[[13\/]] Commissioner Cottine dissents from this disposition.\u00a0 Heconcludes that the majority impermissibly questions the wisdom of the cited standards infinding that the manner in which Blocksom has guarded the 72-inch Garnett machineeliminated any hazard to employees.\u00a0 See Cox Enterprises Inc., OSAHRC , 11 BNA OSHC1074, 1983 CCH OSHD ? 26,386 (No. 12074, 1982) (Cottine, Commissioner, concurring).\u00a0 The standards presume that unguarded gears, chains, and sprockets are hazardous toemployees.\u00a0 See Austin Bridge Co., 79 OSAHRC 81\/A2, 7 BNA OSHC 1761, 1979 CCH OSHD ?23,935 (No. 76-93, 1979).\u00a0 Moreover, the record clearly shows that a hazard exists.\u00a0 During the periods when the machine is being unclogged or cleaned, the expandedmetal screen that is normally between the operator and the moving parts is raised so thatit no longer provides any protection.\u00a0 The employee stand directly in front of themachine while performing the operation and sometimes walks around behind the guard toperform this work.\u00a0 The employee may use an air hose of unspecified length to removeexcess material.\u00a0 Photographic exhibits show that the unguarded moving parts aresignificantly closer to the employee than the areas of the machine from which material isbeing removed.\u00a0 Thus, the record establishes that the employee has access to theunguarded parts.\u00a0 See Pass & Seymour, Inc., 79 OSAHRC 101\/C13, 7 BNA OSHC 1961,1979 CCH OSHD ? 24,074 (No. 76-4520, 1979), appeal dismissed, No. 80-4013 (2d Cir. March19, 1980).[[14\/]] This standard provides:? 1910.212 General requirements for all machines.(a) Machine guarding–(1) Types of guarding.\u00a0 One or more methods of machine guardingshall be provided to protect the operator and other employees in the machine area fromhazards such as those created by point of operation, ingoing nip points, rotating parts,flying chips and sparks.\u00a0 Examples of guarding methods are — barrier guards,two-hand tripping devices, electronic safety devices, etc.[[15\/]] Blocksom also takes exception to the judge’s finding of a de minimisviolation of ? 1910.212(a)(1) for the absence of guarding on a hot wire slitter machine.\u00a0 A de minimis violation carries no penalty assessment or abatement requirement andcannot be used in future proceedings as evidence of a history of previous violations.\u00a0 Therefore, an employer is not aggrieved by, and cannot seek review of, a finding ofa de minimis violation.\u00a0 Westburne Drilling, Inc., 77 OSAHRC 79\/C11, 5 BNA OSHC 1457,1977-78 CCH OSHD ? 21,814 (No. 15631, 1977).\u00a0 Accordingly, we will affirm thejudge’s disposition of this item without review.[[16\/]] Commissioner Cottine concludes that the Secretary proved the existence of a hazardand would affirm this item.\u00a0 He notes that an employee familiar with the lappertestified, without contradiction, that an employee caught in the lapper would be draggedback and forth across the line until somebody shut it off.\u00a0 The same employeetestified that the lapper contained sharp edges. Another employee testified that theaisleway employees used at the rear of the machine was between 2 and 3 feet wide.\u00a0 InCommissioner Cottine’s view, this testimony establishes that employees who must workwithin several inches of the lapper’s path of motion are exposed to a hazard within themeaning of ? 1910.212(a)(1).\u00a0 The evidence of a hazard is not rebutted by contraryindustry custom and practice, which are not dispositive of whether particular hazardsexist.\u00a0 See, e.g., Beaird-Poulan, Div. of Emerson Electric Co., 79 OSAHRC 21\/D11, 7BNA OSHC 1225, 1979 CCH OSHD ? 23,493 (No. 12600, 1979) (Section 5(a)(1) of the Act).[[17\/]] This standard provides:1910.217 Mechanical power presses.(c) Safeguarding the point of operation — (1) General requirements.\u00a0 (i) It shall bethe responsibility of the employer to provide and insure the usage of \”point ofoperation guards\” or properly applied and adjusted point of operation devices onevery operation performed on a mechanical power press.\u00a0 See Table 0-10.[[18\/]] Contrary to the dissent, the preponderance of the evidence establishes that thepoint of operation opening on the press was more than one fourth of an inch.\u00a0 Thecompliance officer testified that the employee’s hands or fingers could be caught betweenthe dies. Blocksom has never denied that the opening between the dies was wide enough fora hand or finger to enter, nor argued that the Secretary failed to prove the width of theopening.\u00a0 Van Namee testified that as far as safety is concerned there was nodifference between the cited press and one shown in Blocksom’s photographic exhibit 16-58,and that the two presses were identical in operation.\u00a0 The press shown in thatexhibit clearly has a die opening in excess of one-fourth inch.\u00a0 We conclude that theevidence preponderates in favor of the Secretary in this issue.[[19\/]] Chairman Rowland dissents from the affirmance of this item. He notesthat ? 1910.217(c)(1)(ii), which immediately follows the cited standard, provides: \u00a0\”The requirement of subdivision (i) of this subparagraph shall not apply when thepoint of operation opening is one-fourth inch or less.\”\u00a0 Thus, an employer neednot safeguard the point of operation of a mechanical power press unless the opening isgreater than one-quarter of an inch. In order to prove a violation, the Secretary wouldhave to show that the opening is larger than this amount.\u00a0 In this case, however, theSecretary introduced no evidence establishing this critical fact.\u00a0 In this regard,Chairman Rowland notes that the press in exhibit 16-58, on which the majority relies inconcluding the Secretary proved the size of the point of operation opening, is entirelydifferent in appearance from the one in issue here.\u00a0 Moreover, even if the press inexhibit 16-58 and the press here are identical in operation and with respect to safety,this does not mean that both machines have the same point of operation openings. \u00a0Accordingly, Chairman Rowland concludes that the Secretary did not sustain his burden ofproving that the cited standard applies to the facts.[[20\/]] Commissioner Cottine agrees that the cited standard does not apply.\u00a0 He notes, however, that if there is no specific standard requiring point ofoperation guarding of a particular machine, the general machine guarding standard at 29C.F.R. ? 1910.212(a)(3)(ii) would apply.\u00a0 See Western Steel Mfg. Co., supra. \u00a0On the basis of the record, he concludes that a violation of ? 1910. 212(a)(3)(ii) hasbeen established and he would amend the citation to conform to the evidence pursuant toRule 15(b) of the Federal Rules of Civil Procedure.\u00a0 See e.g., Rogers Mfg. Co., 79OSAHRC 67\/E2, 7 BNA OSHC 1617, 1979 CCH OSHD ? 23,800 (No. 76-896, 1979).\u00a0 Theunrebutted testimony of the compliance officer establishes that the point of operation ofthe Sheridan embossing machine was unguarded and exposed employees to injury. \u00a0Therefore, Commissioner Cottine would find that Blocksom violated ?1910.212(a)(3)(ii).\u00a0 See Faultless Div., Bliss & Laughlin Indus. v. Secretary ofLabor, 674 F.2d 1177 (7th Cir. 1982); Tube-Lok Products, 81 OSAHRC 17\/B7, 9 BNA OSHC 1369,1981 CCH OSHD ? 25,235 (No. 16200, 1981).Amendment pursuant to Fed. R. Civ. P. 15(b) is required even in the absenceof a motion to amend if all issues relevant to the amended charge have been tried by theimplied consent of the parties.\u00a0 See Daniel Constr. Co., 82 OSAHRC 23\/A2, 10 BNA OSHC1549, 1555 n. 13, 1982 CCH OSHD ? 26,027 at p. 32,675-76 n. 13 (No. 16265, 1982); RogersMfg. Co., supra; Southwestern Bell Tel. Co., 78 OSAHRC 100\/D8, 6 BNA OSHC 2130, 1978 CCHOSHD ? 23,187 (No. 14761, 1978).\u00a0 Where, as here, the amendment changes only thelegal theory underlying the citation, consent will be implied when the party opposingamendment has introduced or failed to object to evidence relevant to the unpleaded issueand that party would not be prejudiced by the amendment.\u00a0 Farmers Cooperative Grainand Supply Co., 82 OSAHRC\u00a0\u00a0\u00a0 , 10 BNA OSHC 2086, 2088, 1982 CCH OSHD ?26,301 at p. 33,262 (No. 79-1177, 1982).\u00a0 Blocksom did not object to the testimonyshowing that the point of operation of the Sheridan embossing press was unguarded andpresented a hazard to employees.\u00a0 Moreover, Blocksom would not be prejudiced by theamendment as it had a full opportunity to try all issues relevant under ?1910.212(a)(3)(ii).[[21\/]] Item 46 alleged that Blocksom violated 29 C.F.R. ? 1910.242(b) by usingcompressed air for cleaning purposes of 80 pounds per square inch.\u00a0 The standardpermits a maximum pressure of 30 pounds per square inch.\u00a0 Item 51 alleged thatBlocksom violated 29 C.F.R. ? 1910.309(a) by failing to guard live electrical parts atvoltages ranging from 110 to 440 volts.”