“SECRETARY OF LABOR.Complainant,v.CONAGRA FLOUR MILLING CO.AND ITS SUCCESSORS,Respondent.OSHRC Docket No. 88-2572*DECISION *BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Conagra, Inc., (\”Conagra\”), a large corporation involved in variousagricultural businesses, has more than 2000 facilities, including over250 grain elevators, 28 flour mills, 20 feed mills, meat packing plants,chicken processing plants, fertilizer and pesticide plants, and a numberof retail businesses. Among these holdings is a Sherman, Texas facilityoperated by Conagra Flour Milling Company. This operation includes agrain elevator and a flour mill. A compliance officer (\”Jones\”) of theOccupational Safety and Health Administration of the Department of Labor(\”OSHA\”‘) inspected the flour mill portion of that facility. Based onher observations during that inspection, Jones asked for assistance fromanother compliance officer, Burke, who had experience working as ajourneyman electrician and who had inspected other grain processingfacilities. The next day, Burke accompanied Jones to the mill to assisther with her inspection.As a result of this inspection, the Secretary of Labor (\”the Secretary\”)issued two citations to Conagra, one alleging various serious violationsof the Occupational Safety & Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”), the other alleging a number of other than seriousviolations of the Act. Conagra timely contested both citations, and ahearing was held before a Review Commission administrative law judge. Conagra petitioned for review of portions of the judge’s decision, andreview was directed pursuant to section 12(j) of the Act, 29 U.S.C. ?661(j).Four items from the two citations are on review. Three of these itemsallege serious violations, and one alleges an other-than-seriousviolation. All four items on review occurred in the milling departmentof Conagra’s facility. The flour mill is in a seven-story building. The first two floors contain the packaging department. The millingdepartment, where the cited conditions existed, is located on floorsthree through seven of the facility.*1. Items 12(f) & 12(g) of the serious citation.**A. *Item 12 of citation 1 alleges serious violations of the standard foundat 29 C.F.R. ?1910.307(b) [[1]] at 15 different locations in the millingdepartment. The judge vacated all but items 12(f) and 12(g). Item 12(f)alleges that a grain testing machine on the fourth floor of the millneither was approved for use a hazardous location nor had its motorconnections covered to prevent the accumulation of combustible dust. Item 12(g) alleges that a pedestal fan being used on the third floor ofthe mill was not approved for use in a hazardous location. Specifically,the citation alleges: 29 C.F.R. 1910.307(b): Equipment, wiring methods, and installations of equipment in hazardous (classified) locations were not intrinsically safe, or approved for the hazardous (classified) location, or safe for the hazardous (classified) location: ……….. f) Grain tester 115 volt, S\/N JS, had no cover over motor connections, not approved for hazardous location, Milling Department, 4th floor. g) Galaxy pedestal fan 115 volt, not approved for hazardous location, Milling Department, 3rd floor.Burke testified that both machines were in areas that were classified ashazardous, Class II, Division 2 locations. The grain tester cited initem 12(f) was on a work bench on the fourth floor of the facility. Burke stated that he observed that the wiring of the grain tester wasnot covered. He testified that there was an opening in the machinethrough which he could see bare electrical wires going to the motor, sothat the wiring was exposed to the possible accumulation of grain dust,which could then ignite. Burke inspected the machine to determinewhether there was any marking to show that it was approved for use in ahazardous location and found none. He testified that there was noindication that the grain tester was \”explosive-proof.\” During theinspection, Burke said, he observed a Conagra employee using the graintester.Burke also testified that the fan cited in item 12(g) was a varietycommonly used in the home. When he examined it, he could see thewindings in the motor, and parts of the motor were exposed, so thatgrain dust could accumulate and, possibly, ignite. He further statedthat he examined this machine to determine whether it bore any markingto show that it had been approved for use in a hazardous atmosphere andthat he found none.Conagra’s corporate safety director, Bellinger, testified as an expertwitness. He and his staff of six assist the managers of more than 2000Conagra facilities in accident prevention and safety. Bellingertestified that, over a period of 17 years prior to the hearing, he hadvisited the Sherman mill \”at least two dozen\” times, but he did notindicate how long each visit lasted. Based on these visits, Bellingertestified that he was familiar with all the electrical equipment citedin item 12. He was therefore able to state his conclusion that it was\”general purpose equipment,\” and was therefore governed by the provisionin 1910.307(d) which says, \”General- purpose equipment or equipment ingeneral-purpose enclosures may be installed in Division 2 locations ifthe equipment does not constitute a source of ignition under normaloperating conditions.\”Bellinger opined that both machines in question were located in ClassII, Division 2 areas. Because the fan was thrown out the day of theinspection, he had not seen it and could not assess its construction. He said that he was familiar with that make of fan generally, however,and gave his opinion that it was acceptable for a Class 11, Division 2 area.Based on this evidence, the judge found that both machines were inviolation of the cited standard. The judge found that the motors of bothmachines were exposed to dust. He also found that neither machine wasmarked to indicate that it was suitable for use in a hazardouslocation. The judge assessed a penalty of $32 for each of these violations.For the reasons below, we find Conagra’s arguments unconvincing andagree with the judge that the evidence establishes that neither of thesemachines complied with the regulatory requirements for use in ahazardous Class II, Division 2 location. Neither machine satisfied therequirement that machines used in Class II, Division 2 locations \”betotally enclosed non-ventilated, totally enclosed pipe ventilated.totally enclosed fan cooled, or dust-ignition-proof for which maximumall load external temperature shall not exceed 120 C (248 F) whenoperating in free air (not dust blanketed) and shall have no externalopenings.\”*B. *Because the citation and complaint alleged that the grain tester and thefan were \”not approved for hazardous location.\” Conagra asserts thatthe pleadings incorrectly charged the company with violating therequirements for a Class II, Division 1 location. In view of the factthat the evidence establishes that the machines were located in a ClassII, Division 2 location.[[2]] Conagra argues that the citation allegedthe wrong classification and these items should be vacated.Conagra bases its argument on the wording of section 502-8 of theNational Electrical Code (\”NEC\”), which is incorporated into thestandard and specifies different requirements for electrical motors inClass II, Division I areas and Class II, Division 2 areas. The sectionrelied on by ConAgra states: *502-8. Motors and Generators.* (a) Class II, Division I. In Class II, Division I locations, motors, generators, and other rotating electrical machinery shall be: (1) Approved for Class II, Division I locations, or (2) Totally enclosed pipe-ventilated, meeting temperature limitations in Section 502-1. (b) Class ll, Division 2. In Class ll, Division 2, locations, motors, generators, and other rotating electrical equipment shad be totally enclosed non-ventilated, totally enclosed pipe ventilated, totally enclosed fan cooled, or dust-ignition-proof for which maximum full load external temperature shall not exceed 120 C (248 F) when operating in free air (not dust blanketed) and shall have no external openings: Exception: if the authority having jurisdiction. believes accumulations of non-conductive and non-abrasive dust will be moderate, and if machines can be easily reached for routine cleaning and maintenance, the following may be installed. a. Standard open-type machines without sliding contacts, centrifugal or other types of switching mechanism (including motor over current overloading and over temperature devices), or integral resistance devices. b. Standard open-type machines with such contacts, switching mechanisms, or resistance devices enclosed within dust-tight housing without ventilating or other openings. C. Self-cleaning textile motors of the squirrel-cage type.An examination of these NEC provisions shows that Conagra is correct;the word \”approved\” is used in the Class II, Division I section but notin the Class ll, Division 2 section. We do not consider that fact to bedeterminative, however, because the term \”approved\” was not necessarilyintended to be exclusive to the first category. For example, if eithermachine had borne an inscription stating that it had been approved foruse in a Class ll, Division I location, it would automatically have beenacceptable for use in the less-hazardous Division 2 locations citedhere. It was therefore reasonable for Burke to look for such a notation,and it was relevant for him to mention its absence during histestimony. The fact that he mentioned this absence of markings oneither machine does not establish that he erroneously believed thatthese were Division I locations. Nor does the fact that the judge alsomentioned them establish that he erroneously believed that thesemachines were located in Division 1 areas. Indeed, reading the portionof the judge’s decision containing his discussion of the 1910.307(b)items discloses that he was clearly aware that the entire millingdepartment was a Division 2 area and was cognizant of the requirementsfor that category: that machines must be enclosed or dust-ignitionproof. Neither machine was enclosed in the manner specified in thestandard, and neither machine bore any indication that it was eitherdust ignition proof or explosion proof. Therefore the judge’s findingswere both correct and relevant to this issue.Nevertheless, Conagra also argues that, because Burke used theexpression \”explosive-proof.\” he erroneously applied the criteria for aDivision 1 location. Examining the record as a whole, however, we seethat Burke was the one who informed Jones that the flour mill was aClass II, Division 2 area. Burke’s testimony demonstrates that he wasfamiliar with the correct standard and that he applied it. We agreewith Conagra that this one statement does not state the correct test,but we consider this an instance of \”misspeaking.\” Examining Burke’stestimony in its entirety, we conclude that this one utterance does notaccurately reflect what he really said. Burke’s testimony shows that thetwo machines in question did not comply with the requirements forelectric motors located in Class II, Division 2 areas. We aretherefore unwilling to focus on this one mistake to negate the rest ofhis testimony.Conagra new argues that, because the citation did not specify that theelectrical equipment cited was located in Division II, Class 2 areas andbecause it was misled during prehearing discovery, it lacked fair noticeof the Secretary’s allegations. An examination of the record showsthat, after the inspection, Jones made notes of her observationsbelieving that the flour mill should be classified as a Class II,Division 1 hazardous location. She subsequently conferred with Burke,who informed her of an OSHA directive under which flour mills areclassified as Class II. Division 2 locations unless air sampling isperformed and it is established that there are sufficient levels ofcombustible dust to cause an explosion. Since no such testing wasperformed here, the facility was properly classified as a Class II,Division 2 location, and the citation did not mention any specificclassification, referring instead to \”hazardous (classified)location[s].\” When Jones’ notes were given to Conagra during discoveryproceedings before the hearing, they had not been corrected and stillreferred to the mill as a Class II, Division 1 location.On the basis of these notes, Conagra argues that it was misled intobelieving that it was cited for having equipment that was not acceptablefor a Class II, Division 1 location and that it prepared its defense onthe basis that, contrary to the Secretary’s allegation, the mill was aClass II, Division 2 location. Conagra asserts that it was thereforenot prepared to present a proper defense when, at the hearing, everyoneagreed that the mill was properly classified as a Division 2 location. The Judge vacated the citation as to several pieces of electricalequipment cited in item 12 of the citation on the basis of thisargument. However, he found that the violations alleged in items 12(f)and 12(g) were not governed by that argument. He therefore affirmedthose items.Having reviewed the record, we find that the parties fully litigated theissue of whether the grain tester and the fan could legally be used in aClass II, Division 2 location and find no error in the judge’sconclusion. While we agree with Conagra that the citation and thecomplaint were not specific as to the classification, we are notconvinced that any misunderstanding was solely the fault of theSecretary . Neither the citation nor the complaint contained anylanguage to justify Conagra’s asserted belief that the Secretary wasalleging that the cited areas were Division I locations: Given theprocedures available under the Federal Rules of Civil Procedure todefine and narrow the issues, we conclude that, although the pleadingswere not precise, they gave fair notice of the charges. See Conley v.Gibson, 355 U.S. 41, 44-45 (1957).Further, while it is true that Jones wrote the wrong classification inher notes, there is no indication that she did this in a deliberateattempt to mislead Conagra. The record shows that, until she wascorrected, Jones believed that the mill was a Division 1 area ratherthan a Division 2 area, and that she made her notes immediatelyfollowing the inspection. It is true that, before the citation wasissued, she had talked with Burke and had been informed of thedirective. There is nothing in the record to suggest that her failureto amend the notes was an intentional act of deceit, as Conagra implies.When the notes were written, Jones could not even be certain that acitation would be issued, much less that it would be contested, that thecase would be litigated, nor that her notes would be given to Conagra aspart of discovery. It thus appears that this was an honest mistake,rather than an effort to deceive the company. Since there is nothing inthe record to indicate that Jones knew that her notes had been given toConagra’s attorney by the Secretary’s attorney, we see no reason toimpose a sanction on the Secretary for this error.Carrying this argument further in Its reply brief, Conagra asserts thatit was prejudiced in the preparation of its case by Its belief that itwas charged with violating the requirements for a Class II, Division Ilocation. However, this assertion was not made in Conagra’s Petitionfor Discretionary Review or in its opening brief. Moreover, we are notpersuaded that the company relied exclusively on Jones’ notes. IfConagra believed that it was cited for the wrong classification, theobvious action to have taken was for it to bring to the Secretary’sattention that its facility was not a Class II, Division 1 location andto try to get the citation dropped without having to spend the time andmoney to prepare for and conduct a hearing on that issue. We thereforecannot accept Conagra’s assertion that t was prejudiced in thepreparation and presentation of its case because Jones made an error inmaking her notes after the inspection. It is not sufficient for a partyto make a general allegation of prejudice without presenting somespecific evidence of prejudice. \/E.g., United States v. Hougham\/, 364U.S. 310, 316-17 (1960).Although Conagra asserts that it was not prepared to try that issue, ithas not pointed on review to any evidence that she would have presentedhad it had more complete notice of the nature of the charges. Todetermine whether a party has suffered prejudice, it is proper to lookat whether the party had a fair opportunity to defend and whether itcould have offered any additional evidence if the case were retried.\/Monod v. Futura, Inc\/., 415 F.2d 1170, 1174 (10th Cir. 1969). At thehearing, when it became apparent that OSHA’s witnesses and Conagra’ssafety director all agreed that the mill was a Class II, Division 2area, Conagra did not seek either a continuance in order to obtainadditional evidence or to keep the record open after the hearing inorder to submit additional evidence. \/Cf\/. \/United States ex relSeminole Sheet Metal Co. v. SCI, Inc\/., 828 F.2d 671, 677 (11th Cir.1987) (amendment to conform pleadings to evidence):\/Watson v. CannonShoe Co\/., 165 F.2d 311, 313 (5th Cir. 1948).On review, with the issue squarely framed. Conagra did not seek toreopen the record to present evidence on that question. Conagra pointsto no evidence that it would have introduced and makes no specificallegations to support its claim. Having reviewed the record, we do notfind that the company could have presented other evidence to rebut theSecretary’s prima facia evidence that the cited machines did not satisfythe requirements for a Class II, Division 2 location. \/Cf.\/ \/Seifert v.Solem\/, 387 F-2d 925, 929 (7th Cir. 1967) (amendment of pleadings attrial to add allegation caused no prejudice). We therefore find thatConagra has not proved that it suffered any specific prejudice in thepreparation and presentation of its case because of the purportedinadequate notice. Accordingly, the Commission does not accept eitherConagra’s claim that it believed that the Secretary alleged that thegrain tester and the fan were located in Class II, Division I locationsbecause neither the citation nor the complaint specified theclassification, or its unsubstantiated assertion that it was prejudicedby its erroneous belief.*C.*Conagra also argues that its equipment fell within an exception set outin section 502 8 of the NEC, quoted above, which, Conagra asserts,permits an open motor to be used in a Class II, Division 2 location ifthe authority having jurisdiction believes that accumulations of dustwill, be moderate and the machines can be easily reached for cleaning. The party claiming to fall under such an exception has the burden ofproof of its claim. \/Dover Elevator Co\/., 15 BNA OSHC 1378, 1381,1991CCH OSHD ? 29,524, p. 39,849 (No. 88-2642,1991); \/Peavey Grain Co\/., 15BNA OSHC 1354,1359 n. 9,1991 CCH OSHD ? 29,533, p. 39,873 n. 9 (No.89-3046, 1991). Not only has Conagra failed to carry its burden here,but we find by a preponderance of the evidence in this record thatneither of the two machines in question qualified as a self cleaningtextile motor of the squirrel-cage type or as either of the other kindsof machines described in sections a-c of the provision on which Conagrarelies.Conagra claims that Jones testified that all the electrical equipment inthe facility met the requirements for Class II, Division 2 locations. An examination of the record reveals, however, that she really said thatthe electrical equipment of floors 5-7 complied. The fan and the graintester were not on those floors. Jones’ testimony therefore does notpreclude a finding that those two machines were in violation.*D.*Conagra further argues that the Secretary has not proved a violationbecause Conagra did not know that this machinery was in violation. Itis well established that, in order to prove a violation, the Secretarymust prove that the employer had either actual or constructive knowledgeof the violative conditions. \/Gary Concrete Prod\/., 15 BNA OSHC 1051,1052, 1991 CCH OSHD ? 29,344, p. 39,449 (No. 86-1087, 1991). This meansthat the employer either knew of the violative conditions or could haveknown of them with the exercise of reasonable diligence. \/WoolstonConstr.\/, 15 BNA OSHC 1114, 1116, 1991 CCH OSHD ? 29,394, p. 39,567 (No.88-1877, 1991), \/aff’d,\/ No. 91-1413 (D.C. Cir. May 22, 1992); \/see alsoGetty Oil Co. v OSHRC\/, 530 F.2d 1143 (5th Cir. 1976). The Secretarydoes not have to prove that the employer knew that the conditionsconstituted a violation. \/Shaw Constr\/., 6 BNA OSHC 1341, 1342-43, 1978CCH OSHD ? 22,524, p. 27,177 (No. 3324, 1978).Because of the potentially disastrous consequences of explosion or fire,the standard permits only machinery that meets the NEC’s requirementsfor a Class II, Division 2 location to be used in the mill. Conagratherefore had an obligation to assure that its equipment was incompliance. Here, the exposed wiring on both machines was readilyapparent to Burke and would have been equally visible to Conagra if ithad exercised due diligence to assure that the grain tester and fan werenot potential sources of ignition. Consequently, we find that Conagrahad constructive knowledge of the exposed wiring because it could easilyhave discovered the exposed wiring if it had exercised due diligence toinspect its machinery to insure that it was in compliance. SeeAutomatic Sprinkler Corp., 8 BNA OSHC 1384, 1387-88, 1980 CCH OSHD ?24,495, pp. 29,926-27 (No. 76-5089, 1980) (employer has duty toanticipate and make reasonable effort to inspect for hazards). Conagra’sclaim that it lacked knowledge is therefore rejected.*E. *Conagra asserts that the citation would never have been issued if Joneshad known Conagra asserts that the citation would never have been issuedif Jones had known the correct classification from the outset. Giventhe fact that the record does establish the existence of a violation,this argument is irrelevant. Furthermore, there is nothing in therecord to support Conagra’s claim, and we do not believe that thefactual assumption on which it rests is accurate. [[3]]*F.*Conagra also asserts that only the wireways leading to the motors of thegrain tester, not the motor itself, were exposed, and that there is norequirement that wireways be dust-ignition-proof. At the outset, we notethat the term \”wireways\” is defined in 29 C.F.R. ? 1910.399: \”Wirewaysare sheet-metal troughs with hinged or removable covers for housing andprotecting electric wires and cable and in which conductors are laid inplace after the wireway has been installed as a complete system.\” Ittherefore appears that Conagra was referring to something else. Assumingthat Conagra really meant the wiring to the motors, we reject itsassertion that the wiring need not be covered and need not bedust-ignition-proof. The wiring is an integral part of the motor andcannot be separated from it. It would render the standard meaninglessif the wiring could be exposed and did not have to meet the samerequirements as the motor. We conclude that the requirements that applyto a motor apply equally to the wiring in and to the motor. Based onthe above findings, we affirm the judge’s finding of a violation foritems 12(f) and 12(g).*G.*We now turn to the characterization of the violation. The Secretaryalleged that these violations were serious. Under section 17(k) of theAct, 29 U.S.C. ? 666(k), a violation is serious if there is asubstantial probability that death or serious physical harm couldresult. This does not mean that the occurrence of an accident must be asubstantially probable result of the violative condition but, rather,that a serious injury is the likely result if an accident does occur. \/Super Excavators, Inc.,\/ 15 BNA OSHC 1313, 1315, 1991 CCH OSHD, ?29,498, p. 39,804 (No. 89-2253, 1091): \/Natkin & Co.\/, I BNA OSHC 1204,1205, 1971-73 CCH OSHD ? 15,679, pp. 20,967-68 (No. 401, 1973). Althoughthe likelihood of a fire or explosion resulting from these violationsmay not be great, the consequences of a fire or explosion could well hevery serious. We therefore find that the violations cited in items12(f) and 12(g) were serious.*ll. Item 8 of the serious citation*To prevent the accumulation of combustible dust on ledges and surfacesthat cannot easily be reached to sweep them, Conagra and the grainindustry generally use compressed air to blow the dust off thesesurfaces onto the floor, where it can be swept up. This process iscalled a \”blowdown.\” During a blowdown, the dust forms a cloud in theair. If the dust cloud is dense enough, it can reach an explosibleconcentration. For that reason, OSHA’s standard for grain handlingfacilities is intended to prevent situations which might cause the dustto be ignited.Item 8 alleged a serious violation of 29 C.F.R. ? 1910.272(i)(3 ).[[4]] Specifically, the citation said:29 C.F.R. 1910.272(i)(3): The use of compressed air to blow dust fromledges, walls, and other areas was permitted when all machinery thatpresent ignition source was not shut-down, and all other known ignitionsources were not removed or controlled: a) Grain processing machinery was operated during blow-down, and spark producing metal scoops used to shovel grain off concrete floor, located throughout Milling Department.An examination of the citation shows that it alleges two different setsof facts that would constitute a violation: (1) the operation ofmachinery, and (2) the use of spark-producing metal scoops. Jonestestified that she did not actually see a blowdown herself, but that theplant manager told her that the machinery was not shut off during thisactivity. She was also told that metal scoops were used to pick up thedust during blowdowns. She concluded that both situations constituted ahazard.The plant manager testified that floors three through seven of the flourmill are blown down every day. Conagra’s corporate safety directortestified that all of its flour mills conduct blowdown operations, andhe estimated that the operation is performed on every shift. Both ofthese witnesses testified that the Sherman mill is an exceptionallyclean mill and that dust concentrations in the air are very light duringblowdown there. The safety director expressed the opinion that the dustwould not reach the minimum explosible concentration.Another Conagra employee testified that all the metal scoops used topick up the dust are aluminum and that Conagra does not have any otherkind of scoop in the mill. Based on this testimony, the judge foundthat the scoops being used were aluminum, a non-ferrous metal, and wouldnot cause sparks. Therefore he vacated that portion of the citation.The judge found that there was a violation, however, because the companydid not deny that its grain processing equipment continued to run duringblowdowns. He held that the operation of the grain tester cited in,item 12(f) constituted a violation.In its Petition for Discretionary Review, Conagra, asserted that thetestimony of Jones clearly established that the only basis for thecitation was the use of the metal scoops. In its brief, Conagra assertsthat the citation does not mention grain processing machinery and thatJones mentioned the machinery only after she realized that the metalscoops would not support a violation. Our review of the record shows,however, that these arguments are specious. Reference to the portion ofthe citation quoted above clearly shows that it alleged that grainprocessing machinery was operated during blowdown operations. At thehearing, Conagra’s own attorney read into the record portions of Jonesnotes that clearly show that, before the citation was issued, sheconsidered the failure to shut down the machinery to be a hazard.Conagra misstates facts in the record when it asserts that Jonestestified that all the machinery in the area where blowdown wasconducted was in compliance with the NEC. In fact, Jones testified thatthe machinery on floors 5, 6, and 7 was in compliance. The record as awhole clearly establishes that blowdowns were conducted on every floorin the flour mill. Because there was noncompliant equipment on thethird floor (the fan) and the fourth floor (the grain tester), therecord establishes that there was a violation.Citing a 1988 letter from the Millers’ National Federation to theAssistant Secretary of Labor for Occupational Safety and Health and thereply to that letter, Conagra asserts that OSHA has approved allequipment normally used in flour milling as safe for use in theselocations. Its argument is based, however, on the letter to OSHA, noton the letter from OSHA. An examination of the reply letter clearlyshows that OSHA did not give blanket approval to all flour millingmachinery but stated that machinery could be operated during blowdownoperations only under certain circumstances specified in the replyletter. One of those circumstances was that electrical wiring be incompliance with the requirements set out in 29 C.F.R ?? 1910.301-399. Because the grain tester and the fan did violate section 1910.307(b),the conditions set out by the Assistant Secretary were not met. Conagratherefore cannot rely or, that letter to demonstrate acceptance of itsequipment.We give no weight to Conagra’s argument that is based on its assertionthat Jones believed that blowdowns were not performed on the third andfourth floors. Even if Jones’ memory was not accurate at the hearingand her testimony on this issue was inconsistent, the preponderance ofthe evidence as a whole clearly establishes that blowdowns wereperformed on those two floors and that there was machinery on bothfloors which did not meet the requirements for a Class II. Division 2location. Although there is no evidence about whether the fan was shutdown during blowdowns, Conagra has conceded that the grain testeroperated during blowdowns. The judge found that the use of the graintester constituted a violation, and we agree. We therefore find thatConagra was in violation of 29 C.F.R. ? 1910.272(i)(3) for improperlyconducting blowdown operations on the fourth floor of the flour millwithout first shutting down a potential ignition source.We note that the Secretary’s brief asserts that a cove, of the graintester was missing. Our review of the record does not support thatinterpretation of the testimony. Burke testified that the wiring was notcovered, that he could see bare wires through an opening in themachine. We do not believe that he testified that there was a coverthat was not in place.This violation was alleged to be serious, and Conagra has not disputedthat characterization. Having reviewed the record, we find that it wasserious.*III. Item 1 of the other-than-serious citation.*The Secretary also cited Conagra for a violation of 29 C.F.R. ?1910.37(i),[[5]] alleging that a window on the fourth floor and a windowon the sixth floor, which provided the only means on those two floors ofgetting to the fire escape, did not have adequate headroom. The windowswere 40 1\/2 inches wide, 21 inches high, and were located 42 inchesabove the floor.On each of the other floors of the flour mill, there was a door leadingto the fire escape, but the only way to get to the fire escape from thefourth and sixth floors was through the cited windows. There was a signover the window on the sixth floor which indicated that it providedaccess to the fire escape, and employees had been told to use thewindows as exits in the event of an emergency.There was an elevator or \”man-lift\” in the middle of the building, andthere was a stairwell located near the elevator. Jones testified thatthey were very close together and that an employee might not be able toget to the area where they were located in an emergency. Therefore, shetestified, it was necessary to have an emergency exit as well.The judge found that Conagra intended that the windows be used to get tothe fire escape if there was an emergency and found that they did notmeet the requirements of the standard. He therefore found a violation. We conclude that he was correct.Conagra asserts that it was cited because Jones believed that thewindows provided the only means of egress from the two floors inquestion. Jones testified, however, that she meant an emergency exitwhen she used the term \”means of egress,\” and the judge properlyrejected Conagra’s argument. For Conagra’s assertion that Jonesbelieved the windows and fire escapes provided the only access to thefourth and sixth floors to be correct, Jones would have had to travelfrom floor to floor by the fire escape when she was conducting herinspection. The record makes it clear that this was not the case,because Conagra’s plant manager, who participated in the inspection,testified that the windows had never actually been used to get to thefire escape. It is obvious that Jones used either the stairway or theelevator, or both, during her inspection, so she had to have known thatthe windows were not the only way to get to and from the fourth andsixth floors. The record is clear that she was well aware of thestairway and the elevator.Even if Jones was confused, as Conagra suggests, it would be irrelevantas a defense here. Taken as a whole, [[6]] the record establishes thatConagra intended the windows to be used for access to the fire escapesin an emergency; and Conagra admits that to have been the case. Therecord further shows that the dimensions of the windows did not meet therequirements of section 1910.37(i). Having considered the entirerecord, we find that a violation has been established. We thereforefind that Conagra’s assertions on this item are without merit.Conagra also attempts to challenge Jones’ credibility because shetestified that the plant manager told her the windows were the onlymeans of egress, while he testified that he never told her that. Jonestestified that she used the term \”means of egress\” to mean an exit foruse in an emergency. The plant manager testified that the windowsprovided the only access to the fire escape from the two floors inquestion, and that he told Jones exactly that. The witnesses weretherefore saying the same thing in different words, and Conagra’scredibility question is really a matter of semantics. Consequently, wegive no weight to this argument.*IV. Penalties.*Section 17(j) of the Act provides that the Commission shall assess anappropriate penalty for each violation, giving due consideration to thesize of the employer, the gravity of the violation, the good faith ofthe employer, and the employer’s history of previous violations, 29U.S.C. ? 666(j). The Secretary proposed a penalty of $480 for Item 8and for item 12. The judge considered the statutory factors andassessed a penalty of $480 for item 8. Because he vacated the citationas to thirteen of the fifteen locations cited in item 12, the judgepro-rated the penalty and assessed $32 each for items 12(f) and 12(g). No penalty was proposed or assessed for the other-than-serious item. Neither party has addressed on review the appropriateness of the penalties.Conagra is a very large company which has received several previouscitations, although none of the items on review was alleged to be arepeated violation. The fact that Conagra discarded the electric fanimmediately indicates good faith. Although the consequences of anaccident would likely be serious, based on this record we consider thelikelihood of an accident to be remote.[[7]] We therefore find thatthese violations were of low gravity.Having considered the four factors to be considered in assessing apenalty set out in section 17(j) and the parties’ lack of argument onthis question, we find no reason to amend the judge’s assessment. Weconsider those penalties to be appropriate.*V. Conclusion.*For the reasons above, we affirm the judge’s decision finding seriousviolations of 29 C.F.R. ? 1910.3017(b) and 1910.272(i)(3) and another-than-serious violation of 29 C.F.R. ? 1910.37(i). A total penaltyof $544 assessed for these violations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 18, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.CONAGRA FLOUR MILLING COMPANY,Respondent.Docket No. 88-2572_*DECISION AND ORDER *_BOTKIN, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to ? 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq.(\”the Act\”) .Respondent is an agribusiness corporation with over 2000 facilities,including some 300 grain processing facilities. One of these is a flourmill in Sherman, Texas, with 88 employees. (Tr. 20; 121; 325-26; 373;375-76) . The Occupational Safety and Health Administration (\”OSHA\”)conducted an inspection of the facility on August 18 and 19, 1988. (Tr.45). As a result, one serious and one \”other\” citation, both alleging anumber of violations, were issued.Respondent timely contested all items of both citations. At thehearing, the parties resolved a number of items of both citations. [[1]] The remaining contested items of citation number (items 1, 2(a),3, 7, 8, 9, 10, 12, 13(a)(b) and 13 (b)(b)), allege, respectively,serious violations of 29 C.F.R. ?? 1910.23(c) (1) 1910.23(e)(1),1910.133(a)(1), 1910.272 (i) (1), 1910 272 (i)(3), 1910.272 (L)(1)(i),1910.272(L)(3), 1910.307(b), 1910.1200(f)(5)(i) and 1910.1200(f)(5)(ii).[[2]] The remaining contested items of citation number 2 (items 1, 2, 5and 6 (b)) allege, respectively, \”other\” violations of 29 C.F.R. ??1910.37(i) , 1910.37(q)(1), 1910.244(a)(1)(ii) and 1910.1200(g)(1). Thecontested items are discussed below, in the order in which they appearin the citations.The hearing regarding this matter took place in Dallas, Texas. TheCommission’s jurisdiction was not in issue and no additional personsintervened. Both parties submitted post trial briefs._29 C.F.R. ? 1910.23(c)(1)[[3]]_Gloria Jones testified. She has been an OSHA compliance officer (\”CO\”)since 1985, and has conducted approximately 300 inspections. Sheconducted the subject inspection.She was accompanied by Clarence Rome, the plant manager, Red Doty, theplant maintenance supervisor, and William Burke, another CO. During theinspection, Jones saw an unguarded concrete deck connected to theexterior of the second floor of the seven-story milling building. Sheobserved repair work being performed on the deck. The deck was 14’9\”above the ground and 125′ long. Rome told Jones that employees used itto load feed onto rail cars. There were no cars when she was there, butRome described the process to her. Employees walk across the deck and awalkway that bridges the distance between the deck and the rail car. Jones said the deck was hazardous because employees could fall off andsustain serious injury. She stated Exhibits R-2 and R-3 were not whatshe saw because they showed the deck with guard rails. (Tr. 19-23;25-26; 49-59; 105-06).William Burke also testified. He is a CO with eight years of OSHAexperience. He was assigned to assist Jones because of his experience.[[4]] He and Jones asked what the unguarded deck was used for. Rometold them it was used to load product into rail cars and described theoperation. Burke saw the walkway employees used to get to the cars; itdid not have a guard rail. He described it as a metal loading dock plateabout 4′ wide and 5′ long, which had to be lowered or swung into placeon the rail car. (Tr. 118-21; 125-130; 168-69; 187-89).Burke did not know the distance between the deck and the rail cars. Hesaid if it was 6-12\”, an employee could be injured by stepping orfalling into the gap. He also said a fall hazard would exist anytime anemployee went out on the deck and there was no rail car there. (Tr.127-28; 188-90).Burke said Exhibits R-2 and R-3 appeared to be photographs of the citedarea.[[5]] He marked R-2 with an \”X\” to show the deck. He said it wasnot a roof because it was a walking and working surface, and because ithad a shed roof over it. He did not know the purpose of the shed roof,but said it could be to keep weather out of the cars. (Tr. 183-87).Clarence Rome, the plant manager, testified. He referred to the deckshown as \”X\” in R-2 as both a roof and a dock. He described the loadingprocess. Rail cars are parked under the roof or canopy between theelevator and mill to keep them out of the weather. There are usuallytwo cars, but can be up to four; they are 50′ long. A pneumatic linegoes from the plant to the canopy, where it \”spouts off\” into threelines above the cars. The cars are parked so that each one’s hatch iscentered under a line. To access the line, an employee crosses the deckcarrying a rubber hose about 10′ long and 5\” in diameter. He lowers thedock plate and crosses it to get to the top of the car. He hooks upthe hose to the line and drops it into the hatch. He then retraces hissteps and goes downstairs to turn on a blower which blows feed into thecar. He checks the site every two hours. Two or three cars are loadedeach week, but only one car is loaded at a time. After one is loaded,the employee walks from it to the next car. The dock below the deck isalso used for loading feed into cars. (Tr. 296-05; 341-44; 357).Rome said the dock plate is hinged to the side of the deck, but furtherdown than where the \”X\” on R-2 appears. It has chains on its front soemployees can drop it over to the car and pull it up. They walk to theedge of the deck to pull it up. Rome said employees do not go out ontothe deck unless a rail car is there, and that they only use it to crossover to the cars. He said the distance between the cars and the deckis about 12\”. In the 14 years he has been at the facility, no one hasever fallen from the deck. (Tr. 331-05; 340-41).Respondent does not dispute the cited deck was not guarded. Itcontends, rather, it is a roof and that the standard does not it assertsit is \”apparent\” from photographs and witness descriptions that the deckis a roof, and that its purpose is to provide protection from theelements. I disagree.Respondent claims Rome’s testimony shows the cited deck protects therail cars from weather. (Tr. 299). However, it is not clear Rome wasreferring to the cited deck. (Tr. 300). Even if he was, his latertestimony, that the parked rail cars are about 12\” from the deck,demonstrates it is physically impossible for the deck to cover cars. R-2and R-3 also demonstrate the deck does not extend far enough out tocover the cars. Moreover, the testimony of Rome and Burke establishesthat the canopy or shed roof which covers the loading area, shown in R-2and R-3, is what actually protects the cars from weather.Rome said loading occurs on the dock below the deck, and that productand employees on that dock are protected. (Tr. 299-301). Again, it isnot clear he meant the deck provided protection, and his other testimonysuggests he meant the canopy. However, even if the deck sometimesserves to protect product and employees on the – dock below, this doesnot establish this is its primary purpose, particularly since the recorddoes not reveal the frequency of loading on that dock. Respondent claimsRome said loading takes place on the dock below \”every day.\” Romeactually said loading \”used to\” take place there every day, andRespondent did not allow him to state the current practice. (Tr. 300). Consequently, there is no basis for Respondent’s assertion that \”most ofthe loading\” occurs on the dock below, and that loading from the citeddeck occurs \”very limited occasions.\” To the contrary, the record showsloading from the deck is a regular and recurring event.As set out above, the standard requires guarding on open-sided floors,platforms or runways four feet or more above ground level. The deck atissue is 14′ 9\” high. Further, 1910.21(a)(4) defines \”platform\” as follows: A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.The Commission has held a deck to be a platform within the meaning of1910.21(a)(4) where employees are regularly assigned to work on it toperform duties central to the employer’s operations.Clements Food Co., 84 OSAHRC 26\/A2, 11 BNA OSHC 2120, 2126, 1984 CCHOSHD P 26,972 (No. 80-0607, 1984). This judge concludes the deck is aplatform within the meaning of 1910-21(a) (4) and that the standard applies.Having found the standard applies, it must now be determined whetherRespondent’s employees had access to the hazard posed by the violativecondition. Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 2050,1978 CCH OSHD ? 23,135 (No. 16057, 1978); Giles & Cotting, Inc., 76OSAHRC 30\/D4, 3 BNA OSHC 2002, 1976 CCH OSHD ? 20,448 (No. 504, 1976).Both CO’s described the hazard as falling from the deck. Clearly, a fallfrom a 14′ 9\”, deck could cause serious injury or death. Access tothis hazard is established by Jones’ testimony that she saw repair workbeing done on the deck when no cars were there. Even when cars arepresent, the distance between them and the deck is about 12\”, and Burkesaid employees could be injured by stepping or falling into the gap. Access to this hazard is established by Rome’s testimony. Employees walkacross the deck several times a week pursuant to their loading duties,at times carrying a bulky rubber hose. To access the cars, they lower ametal dock plate from the deck; when raising the plate, they stand atthe edge of the deck. Even though Rome said no one had ever fallen fromthe deck, it is not unreasonable to conclude an employee working underthese conditions could step or fall in the manner Burke described andsustain a serious injury. Access to the hazard has been shown. Thecitation is affirmed, and the Secretary’s proposed penalty of $420.00 isassessed.[[6]]*29 C.F.R. *?*1910.23(e)(1)[[7]]*Gloria Jones testified she observed a metal landing on the exterior ofthe sixth floor of the milling building. The landing led to a metalladder or stairway going up and down. Clarence Rome told her thelanding was a fire escape for employees on the sixth floor. Jonesidentified Exhibit R-4 as a photograph of the landing. [[3]] She saidthe standard was violated because the only guard rail on the landing was30\” high. She believed the landing needed to be well guarded since itwas a fire escape. She said the landing was cited as a platform, butwas not a working space. (Tr. 22-25; 59-62).Clarence Rome testified that R-4 was a platform that serves as a fireescape on the sixth floor of the milling building. He was with Joneswhen she saw it . He said no one works on it, and that in the 14 yearshe has been at the facility, he has never seen anyone on it. (Tr. 305-309).The citation alleges a violation as follows: Exterior fire escape platform had top rail 30\” high with no intermediate rail, located at the 6th floor of Milling Department.The record establishes the guard rail on the landing does not meet therequirements of the standard. However, the landing was cited as aplatform. The definition of \”platform,\” set out at 1910.21 (a) (4),provides as follows: A working space for persons, elevated above surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.As Respondent notes, the Court in General Elec. Co. v. OSAHRC, 583 F.2d61, 65 (2d Cir. 1978), held that a reasonable interpretation of\”platform,\” within the meaning of 1910.21(a)(4) and 1910.23 (c)(1), wasan elevated working space where employees worked on a regular basis. TheCommission has adopted this interpretation. Globe Indus., Inc., 82OSAHRC 22\/D4, 10 BNA OSHC 1596, 1598, 1982 CCH OSHD ? 26,048 (No. 77-4313, 1982). The record clearly snows the landing is not a platformwithin the meaning of 1910.21(a)(4). The citation is vacated.[[9]]*29 C.F.R. ? 1910.133(a)(1) [[10]]*Gloria Jones testified she saw one of Respondent’s employees, CarlBoling, assisting another employee who was welding metal parts. Bolingwas holding the item being welded and was facing the operation, whichproduced sparks and rays. The welder wore face protection, but Bolingdid not. Jones asked Boling why he wasn’t using a face shield,and hereplied he didn’t have one. Jones said this was hazardous because ofthe likelihood that welding rays or flying metal chips could causeserious eye injury. She stated it is not possible to look directly at awelding arc without an eye injury occurring. She did not know if Bolinghad had an injury. (Tr. 26-28; 62-67).Jerry Lee Curtis also testified. He is a welder at the facility. Hewas welding on the day of the inspection, and Boling stood next to himand assisted. Boling was not wearing protection, but had his headturned away. When Boling assists, he is only there for a second or twoand always turns his head away. Curtis uses a full face hood when hewelds, and cannot see a person standing next to him. He said it is notpossible to look directly at a welding arc without suffering an eyeinjury. As far as he knew, Boling had not had an injury. (Tr. 227-31).Respondent does not dispute Boling was not wearing the protectiveequipment the standard requires. It contends, rather, there was noreasonable probability of injury because Boling was turned away from thewelding operation. I do not agree.Since Curtis admitted his welding hood prevents him from seeing someonenext to him, his testimony does not establish Boling looked away. Further, his statement that Boling had not had an injury isinconclusive. Boling did not testify and he could have had an injuryof which Curtis was not aware. Jones, on the other hand, said Bolingwas facing the operation.However, even if Boling’s practice was to look away, and even if he didso on this occasion, this judge nevertheless finds the practice presentsa reasonable probability of injury. It is not difficult to conceive ofsituations in which even the most attentive employee could bedistracted. If Boling were to inadvertently look at the operation, therecord demonstrates he would most probably sustain an injury. It alsodemonstrates any such injury would likely be serious.The Commission has addressed a similar situation, in _Daniel Constr.Co_., 82 OSAHRC 23\/A2, 10 BNA OSHC 1549, 1982 CCH OSHD ? 26,027 (No.16265, 1982). In that case, an assistant helped with a weldingoperation. He was one foot from the operation and was instructed tolook away. He wore safety glasses, but they provided inadequateprotection. In affirming the violation, the Commission held that\”[t]here is no question here that the light radiation from the weldingoperation presented a potential for eye injury within the meaning ofsection 1926.102 (a) (1) \”[[11]]. _Id_. at 1553. Employers can easilyprevent this kind of injury by providing and requiring the use ofprotective equipment. Respondent did neither. [[12]] The citation isaffirmed, and the proposed penalty of $280.00 assessed._*29 C.F.R. *?*1910.272(i) (1)[[13]]*_Gloria Jones testified she asked Clarence Rome if there was ahousekeeping program. He showed her Exhibit R-6, an elevator inspectionand maintenance program, but no housekeeping program. She did notrecall seeing R-5 or R-7. She said not having a program was hazardousbecause milling facilities operate machinery and produce dust, which canbe an ignition source. If the dust is not cleaned up regularly, it cancause a fire or explosion and serious injuries or death. Jones said boththe mill and silos should have a written program. Although this was herfirst grain facility inspection, she considered the mill clean. (Tr.28-32; 48-49; 68-71; 73; 75; 112-13).William Burke testified. He described the facility as a seven-storyflour mill and a grain elevator, or storage silos. He said it lookedclean. He said the purpose of housekeeping is to prevent theaccumulation of dust in quantities that could create a fire or explosionhazard (Tr. 121-22; 130; 209).Clarence Rome identified R-7 as the Sherman mill’s sanitation program,and R-5 and R-6 as the elevator sanitation program. He believed he gaveJones R-5 and R-6. He did not give her R-7 since he was not sure whatshe was asking for. He said he had it in his office at the time, andthat its purpose is to ensure product quality. (Tr. 309-12; 344-45).Wayne Bellinger testified. He has been ConAgra’s corporate safetydirector for 15 years. He provides safety and accident preventionassistance and training to ConAgra facilities; his training referencesOSHA standards and the National Electric Code. He is a frequentlecturer on milling and elevator safety, and he served for over tenyears on the steering committee of the Grain Industry Safety and HealthCenter, which was funded by an OSHA grant. He has a diploma inchemistry from the University of the State of New York.[[14]] (Tr.372-78; 438).Bellinger participated in forming the mill’s housekeeping program andhas evaluated it on his some 24 visits to the facility. He said theelevator and mill are the two areas that needed a program. His opinionwas that R-5 and R-7 met the standard requirements. He disagreed thatR-7 is for quality control. (Tr. 375; 380-82; 440).The subject standard is a subpart of the grain handling facilitiesstandard, and applies to grain elevators and flour mills. See1910.272(b). The Sherman facility was therefore required to have awritten housekeeping program for its elevator and mill. Respondentasserts the standard does no apply. Bellinger’s testimony, that theelevator and mill needed a housekeeping program, would seem tocontradict this assertion. However, since I conclude Respondent hascomplied with the standard, this argument need not be addressed.The record demonstrates Jones recommended the citation because when sheasked for a housekeeping program, all she received was R-6. [[15]] It isunderstandable Jones believed there was a violation on the basis of whatshe received. However, it is found R- 5 and R-7 were at the worksite atthe time of the inspection, [[16]] and that Rome did not give them toJones because he did not understand her request. [[17]] It is alsofound R- 5 and R-7 constitute housekeeping programs for the elevator andmill, respectively within the meaning of the standard. My reasons follow.The standard itself does not provide methods of compliance. However,the Appendix which follows it offers nonmandatory guidelines to helpemployers comply with the standard. It mentions, inter alia, machinecleaning, vacuuming, sweeping, blowing down and washing down as methodsto reduce dust accumulations. A reading of R-5 and R-7 demonstratesRespondent has incorporated these methods, as well as others, into itshousekeeping programs. The citation is vacated. [[18]]*29 C.F.R. 1910.272(i)(3) [[19]]*Gloria Jones testified Clarence Rome told her compressed air was used toblow dust from ledges, walls and other areas of the milling departmentat the same time grain processing machinery was operating and metalscoops were being used to shovel flour and grain from the concretefloor. She did not see the blowdown operation, but said it washazardous because the machinery and scoops could produce sparks whichcould cause a fire or explosion during blowdown. (Tr. 33-35; 88-92;110; 113).William Burke testified blowdown should not occur without properhousekeeping and maintenance, since it can create airborne dustparticles and cause an explosion. He did not see the operation. Herecalled seeing an employee in the elevator using what looked like aregular shovel. He and Jones asked Rome and the employee if nonferrousscoops were used, and neither knew. He said metal scoops can producesparks. (Tr. 131-33; 192).Clarence Rome testified. He described blowdown as a cleaning processwhich occurs daily on the third through seventh floors of the millingbuilding, in which nine employees work. They use hoses to blow downdust from above. During blowdown, about a ten-foot circle of dust getsinto the air and then settles to the ground, where it is swept up. Romesaid he can clearly see from one end to the other of a 75-foot roomwhere a blowdown is taking place. He said the shovels used in thefacility are OSHA-approved, and are aluminum, not ferrous. Hedetermined this by putting one of the shovels on a grinder; when he did,it did not spark. (Tr. 313- 315; 326-27; 345-46).C. R. Blankenship testified. He is a bolter at the mill. He said thefacility uses only aluminum scoops, and that they are used to clean upspills. He was present when one was put on a grindstone in 1964; it didnot make any sparks. (Tr. 223-26).Wayne Bellinger testified. He has seen hundreds of blowdowns at ConAgrafacilities and has seen them at the Sherman mill. All ConAgra flourmills blow down every day. The purpose of blowdown, is to bring downdust from overhead places not easily reached; there is never much. Blowdown results in a light dust film in the air, with a three-footdenser region. The denser region would be less at the Sherman facilitybecause it is exceptionally clean. (Tr. 382-84).Bellinger said the dust resulting from blowdown is not sufficient tocause a fire or explosion. USDA tests show that for this to occur,there has to be a minimum of 50 to 55 grams per cubic meter of dust inthe air. Bellinger described this as a very dense atmosphere, suchthat an operator cannot see his hand held out at one meter. (Tr.384-85; 415).Bellinger identified Exhibit R-17 as a 1988 letter from John A.Pendergrass, former Assistant Secretary for OSHA, which gives OSHA’sinterpretation of various subparts of the grain handling facilitiesstandard. He said the Sherman facility met the 1910.272(i)(3)requirements set out in R-17. (Tr. 389-92). The subject citation alleges a violation as follows: Grain processing machinery was operated during blow-down, and spark producing metal scoops used to shovel grain off concrete floor, located throughout Milling Department.The testimony of Jones demonstrates the citation was issued because ofboth the operation of grain processing machinery and the use of metalscoops during blowdown. The record shows the use of scoops was nothazardous, as the facility uses only aluminum scoops and shovels that donot produce sparks. However, the record also shows, and Respondentdoes not deny, that grain processing machinery was operated duringblowdown. Accordingly, this hazard will be addressed.The subject standard is a subpart of the grain handling, facilitiesstandard, and it applies to the Sherman facility. Its purpose is toprevent conditions which could cause fires or explosions. See1910.272(a) and (b). The standard’s background makes it clear thatblowdown is permissible only after the implementation of certainprecautions. See 52 F.R. 49613. R-17 states OSHA’s interpretation of1910.272(i)(3) as follows: It is OSHA’s position that all equipment and machinery, including equipment used in milling flour, can be a potential ignition source in grain handling facilities. The Agency’s intent is to assure that such potential ignition sources are controlled during \”blow-down\” operations. If an effective preventive maintenance program is implemented; and, electrical wiring, motors, and machinery are in compliance with 29 CFR 1910, Subpart S and other appropriate provisions, OSHA would consider these to be adequate controls. Under these circumstances, \”blow-down\” operations would be permitted when equipment and machinery are in operation.After careful consideration of the standard and its background, Iconclude R-17 is a reasonable interpretation of 1910-272(i)(3). Asnoted above, the alleged violation is the operation of grain processingmachinery during blowdown. Thus, if Respondent can demonstrate the millhad an effective preventive maintenance program for its grain processingmachinery, and that all. of that equipment complied with the electricalprovisions of 29 C.F.R. 1910 Subpart S and other appropriate provisions,then it was not in violation of the standard.BeIIinger’s opinion was that the mill complied with R-17. The1910.272(L)(1)(i) discussion, infra, shows the mill did, in fact, havean effective preventive maintenance program for its equipment. However,the 1910.307(b) discussion, infra, establishes that two items ofelectrical equipment were not in compliance with the provisions of 29C.F.R. 1910 Subpart S. The item of equipment relevant to thisdiscussion was a 115-volt grain tester on the fourth floor, which wasfound to not meet the requirements of 1910.307 (b).[[20]]Respondent contends Jones testified that all of the electrical equipmentin the areas where blowdown took place met the National Electric coderequirements for Class I, Division 2 locations, and that her testimonyis an admission the mill was in compliance with R-17. I disagree. Therecord reveals Jones’ actual testimony was only in regard to the grainprocessing equipment on the mill’s fifth, sixth and seventh floors. (Tr. 94).Respondent further contends there was no violation because the recorddoes not establish that dust concentrations during blowdown were denseenough to cause a fire or explosion. It points to Bellinger’s opinionand to decisions which support his opinion. Although the cases on whichRespondent relies are final orders of the Commission, they are notCommission decisions and have no precedential value. Moreover, theypredate the subject standard, which, as noted above, prohibits blowdownunless certain safeguards are implemented. R-17, which Respondent itselfoffered, has been found to be a reasonable interpretation of thestandard. Since Respondent was not in compliance with R-17, a violationis established.The Secretary proposed a penalty of $420.00 for this citation item. Asnoted above, only one piece of equipment has been found in violation ofthe standard. However, due to the nature of the violation the proposedpenalty of $420.00 is assessed._29 C.F.P. 1910.272(L)(1)(i)[[21]] _Gloria Jones testified she asked for a preventive maintenance program atthe beginning of her two-day inspection. Clarence Rome and Red Dotygave her Exhibits C-1 and R-9, but not until about 30 minutes after theinspection was completed. Jones said C-1, a preventive maintenanceschedule, and R-9, a repair list, were not sufficient. They did notidentify the machinery or its location, show what was done or have anyinspection history or set procedures. She said this was hazardousbecause employees were exposed to grain processing and dust collectionequipment in the facility. If not maintained, bearings, blowers and beltdrives can create sparks, which can cause a fire or explosion in amilling facility because of the dust produced. Jones had no knowledgeany equipment was not maintained, and saw nothing wrong with any of it.(Tr. 35-42; 94-102; 111-13).William Burke testified that when he and Jones asked for a preventivemaintenance, it could not be produced. After the inspection, Doty leftand returned a half hour later with C-1,which was handwritten and not onConAgra letterhead. Burke said C-1 and R-9 were insufficient, but thatC-1 would have met the standard if it had identified equipment morespecifically and shown what was done. (Tr. 133-36; 197-208).Clarence Rome testified that most maintenance is done in the millingdepartment, since that is where most equipment is located. He has dailyand weekly meetings with his six supervisors to discuss and scheduleequipment repair and replacement. The supervisor, Doty, inspects millequipment every day; problems are readily visible. Doty and the headmiller make a cumulative list of items to take care of when the mill isshut down, which occurs every three weeks or when there is a problem. The purpose of shutdown is for the six facility mechanics to check andreplace equipment, like bearings and motors. During shutdown, all ninemilling employees, and the maintenance department, perform maintenancework. ( 315-24).Rome identified R-9 as a shutdown work schedule for the milling crew,which the head miller formulates and posts in his office so the crewwill know what to do during shutdown. He identified C-1 as a routinepreventive maintenance schedule. He said all items on the list are doneon a regular weekly basis, and that if it were not done, \”we could runinto a lot of problems.\” He had seen C-1 before, in Doty’s office, butdid not know how long it had been there. (Tr. 322-23; 358-59).The subject citation states as follows: The employer did not implement preventive maintenance procedures consisting of regularly scheduled inspections of mechanical and safety control equipment, lubrications, and other appropriate maintenance in accordance with manufacturers’ recommendations.As Respondent points out, the language appearing in the last two linesof the citation is actually part of 1910.272(L)(1)(ii), rather than1910.272(L)91)(i), the subject standard. The citation apparentlycombines the language of subparts (i) and (ii), but only alleges aviolation of (i). However, this does not require vacation of thecitation, as Respondent urges.While vacation may be proper where an employer receives insufficientnotice of the alleged violation, Respondent was clearly on notice it wascited because OSHA believed its preventive maintenance program wasinadequate. Moreover, the fact the citation contains language fromsubpart (ii) does not prejudice Respondent. The record does not show aviolation of subpart (ii), the issue was not litigated, and it does notform a basis for this decision.The subject standard applies and required the Sherman facility to have apreventive maintenance program for its elevator and mill. See1910.272(b) . The record shows the mill has a program which providespreventive maintenance for all of its equipment. Rome did not say whenthe procedures he described went into effect, but indicated there wouldbe problems if maintenance were not done regularly. This suggestspreventive maintenance is a necessary part of mill operations and thatthe procedures were in effect at the time of the inspection. Moreover,C-1 and R-9 were produced at the time of the inspection. [[22]]The Secretary contends C-1 and R-9 do not demonstrate a preventivemaintenance program within the meaning of the standard. In effect, sheasserts the standard requires programs to be in writing. It this wereOSHA’s intent, it would presumably have expressly provided for writtenprograms. [[23]] Since the cited standard has no such provision, I canonly conclude it does not require that programs be in writing. IfRespondent had not demonstrated an effective program, a violation wouldbe found. However, it is found that Respondent has shown the mill’sprogram complied with the standard.[[24]]The Secretary does not assert Respondent did not have a program for itselevator, and presented no testimony on the issue. Regardless, I willaddress this matter briefly. Exhibit R-6 is ConAgra’s elevatorinspection form. [[25]] It indicates weekly inspections are made toensure safety, maintenance, lubrication and housekeeping requirementsare met, and ows an inspection was made the week of August 8, 1988. Ifind R-6 complies with the standard. The citation is vacated._29 C.F.R. _?_1910.272(L)(3) [[26]]_Gloria Jones testified Respondent had no equipment inspectioncertification records. C-1 and R-9 were insufficient because they didnot show inspection dates, who performed the inspections and serialnumbers of other identifiers of processing and dust collecting equipmentand bucket elevators. Jones said failure to inspect and certify washazardous because equipment could malfunction, produce sparks and createa fire or explosion, resulting in serious injuries or death to employeesworking around it. She said serious injury was probable because of thedust produced by the facility. (Tr. 39-43; 112-13).William Burke testified that certification enables both OSHA and theemployer to determine if maintenance has taken place, which avertsequipment malfunction. He said the requirements are preventive innature. (Tr. 136-37).Wayne Bellinger testified. He said certification is required only forequipment specifically listed in 1910.272(L) (1) (i), and that equipmentnot listed is exempt. His opinion was that the Sherman facility met thecertification requirements, which he discussed. (Tr. 394-95; 445).Bellinger said the dryer requirement does not apply, since the facilityhas no dryers. He discussed Exhibit R-17, which gives OSHA’sinterpretation of various subparts of the grain handling facilitiesstandard.[[27]] Based on R-17, Bellinger said the only grain streamprocessing equipment at the facility are the hammer mills, which have nomechanical or safety control equipment. They start up and shut down withthe mill, and he can tell if they are operating correctly by standingnext to them. They are inspected during routine mill inspections, buthave no separate inspection requirement. Bellinger stated the dustcollection equipment requirement does not apply, since, according toR-17, that equipment does not refer to pneumatic systems used fortransporting product in mills. He said the bucket elevator requirementdoes apply, since the facility’s elevator has them; R-6 shows what isinspected. (Tr. 389; 395-97).The subject standard applies to grain elevators and flour mills andtherefore applies to Respondent’s facility. See 1910.272(b). After acareful reading of the standard, I conclude it requires a certificationrecord only for the equipment set out at 1910.272(L)(1)(i), as follows: [T]he mechanical and safety control equipment associated with dryers, grain stream processing equipment, dust collection equipment including filter collectors, and bucket elevators.There is no evidence the certification requirement in regard to dryersapplies in this case. However, I find the evidence shows thatcertification records for the other equipment listed in (L) (1) (i) wererequired, and that Respondent did not comply with the standard. Myreasons follow.The record shows the hammer mills at the Sherman facility are grainstream processing equipment within the meaning of the standard. Bellinger said they operate, but have no mechanical or safety controlequipment. I am unable to conceive of how the hammer mills couldoperate without mechanical equipment. That they have such equipment isdemonstrated by the fact they are inspected along with other millingequipment. I conclude the hammer mills required a certification record.Since there is no evidence of such a record, a violation is established.Bellinger indicated the dust collection equipment certificationrequirement did not apply. I disagree, R-17 shows the standard refersto filter collectors of pneumatic dust collection systems. (Exh. R-17,pg. 2). Bellinger did not state the facility did not have suchequipment, and R-7, the mill sanitation program, demonstrates it did. [[29]] R-7 addresses the checking and internal cleaning of dustcollecting systems, filter collectors and pneumatic collectors. (Exh.R-7, V-A pg. 4-5). I conclude this equipment required a certificationrecord. There is no evidence of such a record, and a violation is found.Bellinger stated the facility’s elevators as bucket elevators, andindicated R-6, an elevator inspection form, met the certificationrequirement. [[29] ] I do not agree. R-6 does not show the serialnumber or other identifier of the equipment inspected,as the standardrequires. A reading of R-6 does not even establish the presence ofbucket elevators. As CO Burke indicated, the purpose of certificationis to enable OSHA and the employer to determine if specific equipmenthas had preventive maintenance. This R-6 does not do.Although the foregoing demonstrates the subject standard was violated,the 1910.272 (L)(1)(i) discussion, supra, shows Respondent did performinspections and preventive maintenance as required. The problem lies inRespondent’s failure to keep adequate records, rather than in a failureto inspect and maintain equipment. The importance of record keeping hasalready been noted. Nonetheless, since a record keeping violation, inand of itself, cannot cause serious injury or death, the citation willbe affirmed as nonserious. [[30]] The penalty originally proposed was$420.00. Since the violation is nonserious, a $210.00 penalty isappropriate._20 C.F.R. _?_1910.307(b) [[31]]_Gloria Jones testified that when she wrote out her OSHA inspectionreport, Exhibit R-1, she classified the Sherman facility as Class II,Division 1 (\”Division 1\”). After consulting with William Burke, she andhe decided it should be Class II, Division 2 (\”Division 2\”). ConAgrawas not advised. (Tr. 44-46; 77-78)William Burke testified that although he was assigned to because of hisexperience, it was her inspection and he did not take any notes or makeany citation recommendations. Jones prepared R-1 and drafted thecitation language. When he learned she was classifying the facility asDivision 1, he told her it should be Division 2. He reviewed R-1 beforethe hearing and noticed it showed Division 1. (Tr. 168-80).Burke determined the entire facility was Division 2 based on an OSHAdirective which provides that grain handling facilities will be soclassified unless test sampling is done to show otherwise. No sampleswere taken of the facility. OSHA uses the National Electric Code(\”NEC\”)definitions to classify operations.A Division 1 area is one where combustible dust is normally present. ADivision 2 area does not normally have combustible dust unless somethinggoes wrong, when it could go to Division 1. Burke a Division 2classification was consistent with the Sherman facility. (Tr. 137-39;155; 176-77).Burke testified about what he and Jones observed in the milling buildingwhich led to the citation items. Item (a) was an uncovered junction boxwith conductors. Item (b) was a three-phase 480-volt switch box with a220-volt switching system that was not dust-tight. These items were onthe second floor. Items (c), (i), (k), (m) and (n) were uncoveredduplex receptacle outlets. Item (c) was on the second floor, (i) was onthe fifth, (k) was on the sixth, and (m) and (n) were on the seventhfloor. Items (d), (e), (h), (j), (l) and (o) were uncovered 220-voltwelding receptacles on the second through seventh floors. (Tr. 137-53;156-61).Item (f) was a 115-volt grain tester on the fourth floor. Its wireswere uncovered, which exposed the motor to dust, and the motor did notindicate it was explosion-proof or suitable for a particular location. Burke said it was plugged in and energized, and that an employee wasusing it. Item (g) was a pedestal fan with no markings to indicate itwas suitable for a specific environment. Burke saw its motor windings,which indicated the motor was exposed to dust. He said dustaccumulations in the motors could cause a fire and serious burninjuries. He saw a fan plugged into a receptacle, and said he and Jonesobserved employees on the third through seventh floors. (Tr. 154-56;164-67; 213).Wayne Bellinger testified. He identified Exhibits R-19 and R-18 asArticles 500 and 502 of the NEC. He said they applied to the Shermanfacility because they prescribe rules for electric equipmentinstallation in classified locations. (Tr.407).Bellinger said the mill has no Division 1 areas. He was familiar withthe cited areas and gave his opinion about their locationclassifications. He said item (a) was in an unclassified area,and that(f) and (g) were in division 2 areas; (g) was on the third floor. Hesaid he would almost characterize the location of (b) as unclassified,and that if it was Division 2, it was weak. He stated the welding andduplex receptacles were all in the same location by the stairway in thecenter of the mill. He considered these locations unclassified, andsaid if they were Division 2, it was weak. (Tr. 413-419).It is the Secretary’s burden to demonstrate that the cited equipment wasin a location that required compliance with the NEC. [[32]]. Since shepresented no such evidence in regard to item (a),and Bellingerunequivocally testified it was in an unclassified area, item (a), didnot violate the subject standard.A different result is reached in regard to items (f) and (g). Bellingeradmitted both of those items were in Division 2 areas. The NEC requiresmotors in Division 2 areas to be enclosed or dust ignition-proof. SeeExh. R-18, ? 502-8(b). The record shows items (f) and (g) did not meetthis requirement.Respondent contends there were no violations because it complied with1910.307(d), which provides, in pertinent part: Equipment in Division 2 locations. General-purpose equipment in general-purpose enclosures may be installed in Division 2 locations if the equipment does not constitute a source of ignition under normal operating conditions.As Respondent asserts, both Burke and Bellinger testified the citedequipment was general purpose equipment. (Tr. 215; 411). However, as Iread 910.307(d), Respondent has the burden of demonstrating theequipment did not constitute a source of ignition under normal operatingconditions. It is found Respondent has not met its burden, for thefollowing reasons.Burke testified the accumulation of dust in the exposed motors couldcause a fire. It is clear the blowdown procedure described in the1910.272(i) (3) discussion, supra, creates airborne dust. Blowdownoccurs daily on the third through seventh floors of the hill. It is notunreasonable to conclude that over a period of time, this could createdust accumulations in the motors in sufficient quantities to cause afire. Respondent has not shown the condition would not cause the motorsto be an ignition source; therefore, it has not met its burden under1910.307(d). The record demonstrates the hazards of the equipment andemployee exposure. [[33]] A violation is established for items (f) and(g). [[34]]In regard to the remaining items, the citation charges as follows: 29 CFR 1910.237 (b): Equipment, wiring methods, and installations of equipment in hazardous (classified) locations were not intrinsically safe, or approved for the hazardous (classified) location, or safe for the hazardous (classified) location.The citation also alleges that each item of equipment was \”not approvedfor hazardous location.\” The language in the complaint is identical tothat in the citation, and neither gives a location classification. However, it is clear the Secretary’s intent at the hearing was to provea Division 2 location.Respondent’s contention, which it first asserted at the hearing, is thatthe citation alleges a Division 1 location based on the language in R-1,the inspection report. Respondent points out it received R-1 duringdiscovery and that it relied on it in concluding the citation alleged aDivision 1 area. It maintains it was not aware of the Division 2 chargeuntil the hearing, and that the citation should be vacated since theSecretary failed to prove Division 1. (Tr. 174; 361-72; Respondent’sBrief 66- 70).The record establishes that Jones, inexperienced in grain facilityinspections, erroneously classified the facility as Division 1 andneglected to change the classification after learning it was incorrect.(Tr. 48-49; Exh. R- 1, pgs. 14-28).Clearly, a reading of R-(?) would lead Respondent to believe it wasbeing cited as a Division I facility.The Secretary at the hearing acknowledged the citation did not specify aclassification, but implied Respondent had notice of the interrogatoryresponses referenced that division. (Tr. 365-68). I have reviewed theresponses that relate to the subject citation which appear in paragraphs(n) through (s) of Respondent’s Answer to Interrogatory No. 1. With theexception on (n), which relates to item (a) of the citation, theresponses state there were no violations because Division 2 areas do notneed approval. I interpret this as an assertion that the cited areas,with the exception of item (a) , were Division 2 locations, and concludethe responses were a defense against a Division I charge.Although Respondent does not use the word \”prejudice,\” it is apparentthe crux of its argument is that it was prejudiced because the citationprovided inadequate notice. It is axiomatic that fair notice requiresthe Secretary to reasonably apprise an employer of the share insufficient advance of the hearing to allow a meaningful opportunity toprepare a defense. Secretary of Labor v. Dow Chemical USA, 801 F.2d926 (7th Cir. 1986).For the areas discussed hereinabove, it is clear that Respondent couldnot successfully claim prejudice. However, in regard to the remainingsubitems thereof, it appears likely that Respondent was, in fact,prejudiced by a lack of notice. The only evidence presented in defenseof the division 2 charge was Bellinger’s testimony. I found his opinionabout item (b) and the receptacle areas ambivalent, in that he wasunable to state unequivocally and without qualification, that they wereunclassified areas. Obviously, with proper notice, Respondent’scapability to present a more persuasive defense in regard to those itemsmight have been significantly strengthened. Therefore, I conclude theevidence requires a vacation of 1910.307(b) charges in items (b)-(e) and(h)-(o).Turning to the assessment of an appropriate penalty, the total penaltyproposed for all fifteen items were $490.00. The foregoing demonstratestwo violations of the standard. Accordingly, a penalty of $32.00 isassessed for each violation, resulting in a total penalty of $64.00._29 C.F.R _?_1910.1200(f) (5) (i) [[35]]_Gloria Jones testified she saw a 55-gallon drum that did not identifyits contents. Red Doty, the maintenance supervisor, told her itcontained naphtha and that maintenance employees used it to clean metalparts. Jones interviewed an employee and learned it was used daily. Employees lay the drum on its side and turn on a faucet so that thenaphtha runs into a container; they then take it where it is needed. (Tr. 242-43; 256-58).Jones identified Exhibit C-2 as the material safety data sheet (\”MSDS\”)for naphtha ConAgra management gave her. She used the and other sourcematerials to conclude naphtha was hazardous. It is combustible and cancause respiratory, eye and skin irritation. Jones said the probabilityof injury was great since the drum did not warn employees. (Tr. 244-48).James Doty, the facility’s maintenance supervisor, testified naphtha isused at the facility. It is stored in a 55-gallon drum. The onlylabel on the drum is the manufacturer’s label, which he though was\”MCXV113.\” (Tr. 222-23).Clarence Rome testified. He uses naphtha, or mineral spirits,at home;he buys it at a local paint store. He uses it to clean paint brushes,parts and his hands. It is used for the same purposes at theplant,where they clean a lot of parts. He doesn’t use as much at homeas at work. (Tr. 338-39; 356).Wayne Bellinger testified. He identified Exhibit R-20 as ConAgra’s MSDSfor mineral spirits. He described mineral spirits as a broad group ofrefined hydrocarbons which includes the cited product. He noted thatGosselin, Smith and Hodge’s Clinical Toxicology of Commercial Productsdefines mineral spirits in two categories. He said the categories arequite similar.[[36]] (Tr. 422-23; 430- 31; Exh. R-21).Bellinger uses mineral spirits as a solvent at home to clean paintbrushes, metal parts and his hands. He identified Exhibit R-23 as abottle of mineral spirits he had recently purchased in a Wal-Mart. Hesaid it is basically the same as the cited product and is used for thesane purposes. (Tr. 433-35).Bellinger said naphtha is combustible. He read the warning labels fromR-23, and said none of those were on the cited drum. Sherman SolventCompany delivered the drum, and also sent C-2. The only label on thedrum was \”CV-1335.\” He tried to get labels from Sherman Solvent afterthe inspection, but never received them. (Tr. 425; 435-36; 448-50).As a preliminary matter, the undersigned notes Respondent states thecitation,as amended, alleges a violation of ? 1901.1200(f)(l). However, the record plainly shows the citation was amended to allege aviolation of 1910.1200(f)(5)(i), and that Respondent did not contest theamendment. (Tr. 8-12).Turning to the evidence, it is clear the drum contents were notidentified as the standard requires. It is also clear the product ishazardous, and that the standard applies. C-2 is the MSDS for the citednaphtha. It shows the product is combustible, with a flashpoint of 106degrees Fahrenheit. The standard, at defines \”combustible liquid\” as onehaving a flashpoint over 100 degrees Fahrenheit.Respondent apparently does not deny C-2 is the MSDS which relates to thecited naphtha, or that the product is hazardous. It contends, rather,that since naphtha is the same as mineral spirits, a consumer product,it is exempt from the hazard communication standard. While I decline tofind the cited naphtha is the \”same exact product\” as R-23, asRespondent urges, I do note the record demonstrates marked similaritiesin naphtha and mineral spirits products, particularly in regard to theirhazards. They are combustible and can cause eye, skin and lungirritation. (Tr. 424; 450; Exh. C-2; R-20; R-21; R-23).Addressing Respondent’s argument, the standard does provide an exceptionat 1910.1200 (b) (6) (vii) for consumer products. However, itspecifically states as follows: This section does not apply to: [a]ny consumer product or hazardous substance … where the employer can demonstrate it is used in the workplace in the same manner as normal consumer use, and which use results in a duration and frequency of exposure which is not greater than experienced by consumers.In accordance with established Commission precedent on exceptions, theemployer bears the burden of demonstrating the exception applies. Iconclude Respondent has not met its burden.Assuming arguendo that naphtha is a consumer product and that its use atthe Sherman facility is the same as normal consumer use, Respondent hasnot shown the duration and frequency of employee exposure is not greaterthan that of consumers. The evidence shows employees dispense naphthafrom a 55-gallon drum every day to clean parts, and Rome himself said heuses less naphtha at home than at work. Since Respondent has notdemonstrated it falls within the exception, a serious volition isestablished. A penalty of $70.00 is assessed.[[37]]\”_29 C.F.R. _?_1910.1200 (f) (5) (ii)[[38]]_The evidence shows the facts giving rise to the preceding citation alsoresulted in this citation. (Tr. 248-49). The subject standard requirescontainers of hazardous substances to have appropriate hazard warnings.The preceding discussion demonstrates naphtha is hazardous and that thedrum had no warning label. It also demonstrates employee exposure andthat the standard’s exception did not apply. A serious violation isestablished, and a penalty of $70.00 is assessed.[[39]]_29 C.F.R. _?_1910.37(i) [[40]]_Gloria Jones testified she observed two windows, one on the fourth andone on the sixth floor of the milling building, which were 21\” long,40.5\” wide and 42\” above the floor. The room in which each window waslocated had a door leading out to that floor’s milling area, where astairway and a manlift were located. There were no other exits oneither floor. Clarence Rome told her the windows were only means ofegress on those floors for emergency evacuation in case of a fire orexplosion. Jones believed the condition was hazardous because the sixemployees who worked in the area could sustain cuts, bruises, or smokeinhalation injuries in trying to exit through an inadequate space in anemergency. (Tr. 250-52; 263-67; 283).Clarence Rome testified the cited windows are fire escapes and have beendesignated as such, but have never been used. He did not tell Jonesthey were the only means of egress. There is also a stairwell and amanlift which are located together in the center of each floor. If thatarea was blocked off, the fire escape would be the only other exit. (Tr.328-29; 352-53).Respondent contends the citation was issued because Jones believed thewindows were the only means of egress from the fourth and sixth floors. The record does not support this contention. The citation describes thewindows as \”used as means of egress to reach exterior fire escapeplatform.\” And, while Jones’ worksheet states the windows are \”theonly exit\” (Exh. R-1, pg. 34), her testimony shows she recommended thecitation because Rome told her they were the only exits for emergencyevacuation. Rome himself testified the windows were fire escapes andwould be the only means of egress if the stairwell area wasinaccessible. It is clear Respondent intended the windows to serve asmeans of egress in case of emergencies. It is also clear they did notmeet the requirements of the cited standard. A nonserious violation isfound. No penalty is assessed.[[41]]_29 C.F.R. _?_1910.37(q)(l) [[42]]_Gloria Jones testified she saw a hatch door with faded red markings onthe seventh floor of the milling building. Red Doty, the maintenancesupervisor, told her the hatch was an emergency fire exit. He said ithad been marked, but the paint had worn off. Jones said Exhibit R-10looked like the kind of door she saw.[[43]] She said the yellow paintmarkings in R-10 made the hatch visible, but that if it was used as anexit, it needed a visible red exit sign. She said the conditionrepresented a smoke inhalation hazard to employees who worked In thearea. (Tr.252-53; 268-72; 284).Clarence Rome testified R-10 showed the hatch as it looked on the day ofthe inspection. He said it is an exit and part of the fire escape, andthat one of nine employees would use it. He said it is visible on thatside of the room. (Tr. 330-31; 353).Respondent asserts the hatch is not an exit. Rome’s testimony refutesthis assertion. Alternatively, Respondent asserts that since the hatchis visible, its access need not be marked. Respondent, misinterprets thestandard, which imposes two separate requirements. First, an exit musthave a \”readily visible sign.\” Second, access to an exit must be markedby \”readily visible signs\” where the exit is not immediately visible. Since the evidence establishes the hatch is readily visible, the secondrequirement is met. Regardless, Respondent has not met the firstrequirement, since the hatch was not marked with a \”readily visiblesign.\” A nonserious violation is established. No penalty is assessed.[[44]]_29 C.F.R. _?_1910.244(a)(l)(ii) [[45]]_Gloria Jones testified she saw a portable hydraulic hand jack in themaintenance department which was not marked to show its rated loadcapacity. It had no brand name or serial number on it. Red Doty, themaintenance supervisor, called it a jack and told her employees used itto move metal parts. He said it had never had a data plate. Jones saidthe jack was hazardous because it could be overloaded and break down,resulting in bruises or cuts from falling parts. (Tr. 253-55: 286; 288).Wayne Bellinger testified he took Exhibit R-11 on November 9, 1988. Hesaid it showed the cited equipment, which he called a hand pallettruck. He knew this was the cited equipment because Doty told him itwas. Doty stenciled the load capacity on it, probably the day of theinspection, because the CO said it had to be done. Doty did not knowthe actual capacity, and guessed it was 2500 pounds. (Tr. 400-03).Bellinger said R-11 shows the same pallet truck depicted in ExhibitR-12, and that its actual capacity is 4500 pounds. It is used to liftpallets. It is operated by pushing the arms, which are about 3\” thick,under a pallet and pumping then up hydraulically. The arms raise about4\” off the floor, which lifts the pallet about 1\” off the floor. (Tr.403-05).Clarence Rome testified that R-11 shows a pallet truck, and that it isthe same as the one shown in R-12. He said it is used to lift and moveparts in maintenance, and that it raises about 6\” off the floor. It isoperated by pumping the handle up and down with a jacking motion. It isoperated manually and is not powered. (Tr. 331-32: 335; 353-55).Respondent does not dispute the equipment was not marked to show itsrated load capacity at the time of the inspection. It contends,however, the standard does not apply because the equipment is not ajack. The Secretary’s initial burden, therefore, is to demonstrate thecited standard applies to the cited equipment. Dun-Par Engineered FormCo., 86 OSAHRC 40\/A8, 12 BNA OSHC 1962, 1986 CCH OSHD ? 27,651 (No.82-928, 1986).The Commission recently discussed this issue in Paschen Contractors,Inc., OSAHRC _ , 14 BNA OSHC 1754, 1990 CCH OSHD ? 29,066 (No. 84-1285,1990). In that case, the Commission had to decide whether 1926.550(d)(4), which pertains to cranes, applied to the employer’s liftingdevice. In finding it did not, the Commission based its decision on thefact that the characteristics of the lifting device did not fit withinthe applicable definitions of \”crane.\” In this case, therefore, itmust be determined whether the cited equipment’s characteristics fitwithin the applicable definition of \”jack.\”The applicable definition appears at 1910.241(d) (l) and states as follows: A jack is an appliance for lifting and lowering or moving, horizontally a load by application of a pushing force. NOTE: Jacks may be of the following types: Lever and ratchet, screw and hydraulic.This judge interprets the foregoing to mean that a jack is either adevice that lifts and lowers a load by the application of a pushingforce, or one that moves a load horizontally by the application of apushing force.Respondent asserts the cited equipment is not a jack because it does notlift and lower. The record refutes this assertion. Witness testimonyshows the equipment is used to lift and move parts and palIets, and R-12shows it can lift and lower loads of up to 4500 pounds. The record alsoestablishes the equipment operates by the application of a pushingforce. R- 12 shows a lever with a lifting, neutral and loweringposition, and states the equipment \”[a]llows pumping at angle mostconvenient to the operator.\” Rome’s testimony shows operators use theequipment by pumping the lever up and down with a jacking motion.I conclude the cited equipment is a \”jack\” within the meaning of1910.241(d)(l) and that the standard applies. Paschen, supra. [[46]]The fact the equipment is hydraulic supports this conclusion,in that the\”note\” following 1910.241 (d) (1) lists hydraulic jacks as an example.The record shows the jack was not marked to show its load capacity atthe time of the inspection and that employees used it. The record alsoshows the hazards of the condition. A non serious violation isestablished. No penalty is assessed.[[47]]_29 C.F.R. 1910.1200(g)(1)[[48]]_Gloria Jones testified that on the day of her inspection, when she askedfor the material safety data sheet (\”MSDS\”) for the naphtha in the55-gallon drum in the maintenance shop, it was not available. She andClarence Rome went through ConAgra’s MSDS book, but could not find it.ConAgra gave it to her later, at the closing conference. Jones saidthis was a hazard because in an emergency, there would be no informationavailable about the substance. (Tr. 242-44; 255-56; 277-78: Exh. C-2).Clarence Rome testified that when he and Jones went through his book,they could not find the MSDS for mineral spirits. Jones through anotherbook on her own, that of Ben Jones, the facility sanitarian, but couldnot find it. Rome believed it was in Ben Jones’ manual at the time, andthat it was later found there and a copy sent to the CO.(Tr. 337-38).Wayne Bellinger testified. He identified Exhibit R-20 as ConAgra’s MSDSfor mineral spirits. He said it was at the facility at the time of theinspection, in each of the three copies of the hazard communicationprogram book the facility has. He indicated Ben Jones sent R-20 toOSHA. (Tr. 423-430).The 1910.1200 (f) (5) (i) discussion, supra,demonstrates the citednaphtha was subject to the hazard communication standard requirements. Respondent was therefore required to have an MSDS for it. The 1910.1200(f) (5) (i) discussion also demonstrates that C-2 is the MSDS for thecited product. The record shows it was given to CO Jones until theclosing conference.Respondent asserts R-20 is its MSDS for mineral spirits, and that it wasavailable at the time of the inspection. The similarities in naphthaand mineral spirits products were noted in the 1910.1200 (f) (5) (i)discussion. However, even assuming arguendo that R-20 was a viablesubstitute for C-2, the evidence shows it was not available when Jonesasked for it Although Bellinger said there was a copy of R-20 in each ofthe facility’s three MSDS books, neither Rome nor Jones could find it inRome’s book. Jones could not find it in the second book she lookedthrough, and the third book apparently could not be located. Moreover,even though Rome and Bellinger believed R-20 was found later and sent toOSHA, the record shows the Government never received it [[49]] (Tr. 423-30).While R-20 may have been somewhere in the facility at the time of theinspection, the evidence shows it was not readily available. C-2 waslikewise not available. As the Secretary points out, if an MSDS is notavailable, health hazard determinations cannot be made in emergencysituations. A nonserious violation is established. No penalty isassessed.[[90]]_Penalty Determination_Penalties have been assessed for various violations, both serious andnonserious, _supra._ In assessing the penalties, due consideration hasbeen given to the size of the employer’s business, the gravity of theviolations, the good faith of the employer and the history of previousviolations._Findings of Fact_All findings of fact relevant and necessary to a determination of thecontested issues have been found specially and appear above. See Rule52(a) of the Federal Rules of Civil Procedure. Proposed findings of factor conclusions of law that are inconsistent with this decision are DENIED._Conclusions of Law_1. Respondent, ConAgra Flour Milling Company, is engaged in a businessaffecting commerce and has employees within the meaning of ? 3(5) of theAct.2. The Commission has jurisdiction of the parties and of the subjectmatter of the proceeding.3. Respondent was in serious violation of 29 C.F.R. ?? 1910. 23 (c)(1),1910.133(a)(l), 1910.212(a)(5), 1910.272(i)(3) and 1910.204(f)(5)(v).4. Respondent was in serious violation of 29 C.F.R. ? 1910.23(e)(l),insofar as it relates to item 2(b) of citation 1.5. Respondent was in serious violation of 29 C.F.R. ? 1910.178(p)(l),insofar as it relates to items 4(a)-(d) of citation 1.6. Respondent was in serious violation of 29 C.F.R. ? 1910.307(b),insofar as it relates to items 12(f) and 12(g) of citation 1.7. Respondent was in serious violation of 29 C.F.R. 1910.1200(f)(5)(i),insofar as it relates to item 13(a)(b) of citation 1.8. Respondent was in serious violation of 29 C.F.P. ?1910.1200(f)(5)(ii), insofar as it relates to item 13(b)(b) of citation 1.9. Respondent was not in violation of 29 C.F.R. ?? 1910.272(e)(l),1910.272(i)(i), 1910.272(L)(l)(i) and 1910.1200(h) of citation 1.10. Respondent was not in violation of 29 C.F.R. ? 1910.23(e)(l),insofar as it relates to item 2(a) of citation, 1.11. Respondent was not in violation of 29 C.F.R. ? 1910.178(p)(l),insofar as it relates to items 4(e) and 4(f).12. Respondent was not in violation of 29 C.F.R. ? 1910.307(b), insofaras it relates to items 12(a)-(e) and (h)-(o) of citation 1.13. Respondent was not in violation of 29 C.F.R. 1910.1200 (f) (5) (i),insofar as it relates to item 13 (a) (a) of citation 1.14. Respondent was not in violation of 29 C.F.R ? 1910.1200 (f) (5)(ii), insofar as it relates to item 13(b) (a) of citation 1.15. Respondent was in nonserious violation of 29 C.F.R. ?? 1910.37 (i),1910.37(q)(1), 1910.106(d) (4) (v), 1910.244 (a) (1) (ii) and 1910.272(L) (3).16. Respondent was in nonserious violation of 29 C.F.R. ? 1910.1200 (g)(1) , insofar as it relates to item 6(b) of citation 2.17. Respondent was not in violation of 29 C.F.R. ? 1910.157(c)(1) and1910.1200(g)(2)(i) of citation 2.18. Respondent was not in violation of 29 C.F.R. ? 1910.1200(g) (1) ,insofar as it relates to item 6(a) citation 2._Order_Upon the basis of the foregoing findings of fact, conclusions of law,and the entire record, it is ORDERED that:1. To the extent that the parties’ proposed findings of fact andconclusions of law are inconsistent with this decision, they are DENIED.2. Item 1 of serious citation 1 is AFFIRMED and a penalty of $420.00 isassessed.3. Item 2(b) of serious citation 1 is AFFIRMED and a penalty of $210.00is assessed.4. Item 3 of serious citation 1 is AFFIRMED and a penalty of $280.00 isassessed.5. Item 4(a)-(d) of serious citation1 is AFFIRMED and a penalty of$184.00 is assessed.6. Item 5 of serious citation 1 is AFFIRMED and a penalty of $280.00 isassessed.7. Item 8 of serious citation 1 is AFFIRMED and a penalty of $420.00 isassessed.8. Item 10 of serious citation 1 is amended to allege a nonseriousviolation, and as so amended, it is AFFIRMED and a penalty of $210.00 isassessed.9. Item 11 of serious citation 1 is AFFIRMED and a penalty of $280.00 isassessed.10. Item 12(f) and (g) of serious citation 1 is AFFIRMED and a penaltyof $70.00 is assessed.11. Item 13(a)(b) of serious citation 1 is AFFIRMED and a penalty of$70.00 is assessed.12. Item 13(b) (b) of serious citation 1 is AFFIRMED and a penalty of$70.00 is assessed.13. Items 2(a), 4(e)-(f), 6, 7, 9, 12(a)-(e) and (h)-(o), 13(a) (a),13(b) (a) and 14 and of serious citation 1 are VACATED.14. Items 1, 2, 3, 5 and 6(b) of nonserious citation 2 are AFFIRMED, andno penalties are assessed.15. Items 4, 6(a) and 7 of nonserious citation 2 are VACATED.E. CARTER BOTKINAdministrative Law JudgeFebruary 19, 1991————————————————————————FOOTNOTES:[[1]] That standard provides: ?*1910.307 Hazardous (classified) locations.* (b) \/Electrical installations\/. Equipment, wiring methods, and installations of equipment in hazardous (classified) locations shall be intrinsically safe, approved for the hazardous, (classified) location, or safe or for the hazardous (classified) location. Requirements for each of these options are as follows: (1) \/Intrinsically safe\/. Equipment and associated wiring approved as intrinsically safe shall be permitted in any hazardous (classified) location for which it is approved. (2) \/Approved for the hazardous\/ (\/classified\/) location (i) Equipment shall be approved not only for the class of location but also for the ignitable or combustible properties of the specific gas, vapor, dust, or fiber that will be present. *Note*: NFPA 70, the National Electrical Code, lists or defines hazardous gases, vapors, and dusts by \”Groups\” characterized by their ignitable or combustible properties. (ii) Equipment shall be marked to show the class. group. and operating temperature or temperature range. based on operation in a 40 degrees C ambient, for which it is approved. The temperature marking may not exceed the ignition temperature of the specific gas or vapor to be encountered. However, the following provisions modify this marking requirement for specific equipment: (A) Equipment of the non-heat-producing type, such as junction boxes conduit, and fittings, and equipment of the heat-producing type having a maximum temperature not more than 100 degrees C (212 degrees F) need not have a marked operating temperature or temperature range. (B) Fixed lighting fixtures marked for use in Class 1, Division 2 locations only, need not be marked to indicate the group. (C) Fixed general-purpose equipment in Class 1 locations, other than lighting fixtures, which is acceptable for use in Class 1. Division 2 locations need not be marked with the class, group, division, or operating temperature. (D) Fixed dust-tight equipment, other than lighting fixtures, which is not acceptable for use in Class II, Division 2, and Class III locations need not be marked with the class, group, division, or operating temperature. (3) \/Safe for the hazardous (classified) location\/. Equipment which is safe for the location shall be of a type and design which the employer demonstrates will provide protection from the hazards arising from the combustibility and flammability of vapors, liquids, gases, dusts, or fibers.[[2]] 29 C.F.R. ? 1910.399 defines Class II locations and describes thedivisions within that class:\/ Class II locations\/. Class II locations are those that are hazardousbecause of the presence of combustible dust. Class II locations includethe following: (i)\/Class II, Division 1\/. A Class II, Division 1 location is alocation: (a) In which combustible dust is or may be in suspension inthe air under normal operating conditions, in quantities sufficient toproduce explosive or ignitable mixtures; or (b) where mechanical failureor abnormal operation of machinery or equipment might cause suchexplosive or ignitable mixtures to be produced, and might also provide asource oil ignition through simultaneous failure of electric equipment,operation of protection devices, or from other causes, or (c) in whichcombustible dusts of an electrically conductive nature may be present. NOTE: This classification may include areas of grain handlingand processing plants, starch plants, sugar-pulverizing plants, maltingplants, hay-grinding plants, coal pulverizing plants, areas where metaldust and powders are produced or processed, and other similar locationswhich contain dust producing machinery and equipment (except where theequipment is dust-tight or vented to the outside). These areas wouldhave combustible dust in the air, under normal operating conditions, inquantities sufficient to produce explosive or ignitable mixtures.Combustible dusts which are electrically nonconductive include dustsproduced in the handling and processing of grain and grain products,pulverized sugar and cocoa, dried egg and milk powders, pulverizedspices, starch and pastes, potato and woodflour, oil meat from beans andseed, dried hay, and other organic materials which may producecombustible dusts, when processed or handled. Dusts containing magnesiumor aluminum are particularly hazardous and the use of extreme caution isnecessary to avoid ignition and explosion. (ii) \/Class II\/, Division 2. A Class II, Division 2 location is alocation in which: (a) combustible dust will not normally be insuspension in the air in quantities sufficient to produce explosive orignitable mixtures, and dust accumulations are normally insufficient tointerfere with the normal operation of electrical equipment or otherapparatus; or (b), dust may be in suspension in the air as a result ofinfrequent malfunctioning of handling or processing equipment. and dustaccumulations resulting therefrom may be ignitable by abnormal operationor failure of electrical equipment or other apparatus. NOTE: This classification includes locations where dangerousconcentrations of suspended dust would not be likely but where dustaccumulations might form on or in the vicinity of electric equipment.These areas may contain equipment from which appreciable quantities ofdust would escape under abnormal operating conditions or be adjacent toa Class II Division 1 location, as described above, into which anexplosive or ignitable concentration of dust may be put into suspensionunder abnormal operating conditions.[[3]] The decision to issue the citation was not made by eithercompliance officer but by the area director or authorized by him.Presumably, he was as aware of the directive as Burke was. Consequently,it appears to us more likely than not that the individual who made thedecision to issue the citation was aware of the directive to classifyflour mills as Class II, Division 2 locations unless air samplingestablished that the mill in question was a Class II, Division 1 area.We are therefore unwilling to assume, as Conagra does, that the citationwas issued because of a mistaken belief as to the classification of theflour mill.[[4]] That standard provides:*? 1910.272 Grain handling facilities.* i) \/Housekeeping.\/ The employer shall develop and implement awritten housekeeping program that establishes the frequency andmethod(s) determined best to reduce accumulations fugitive grain dust onledges, floors. equipment, and other exposed surfaces. (3) The use of compressed air to blow dust from ledges. walls,and other areas shall only be permitted when all machinery that presentsan ignition source in the area is shut-down. and all other knownpotential ignition sources in the area are removed or controlled.[[5]] The cited standard provides:*? 191.0.37 Means of egress, general.* (i) \/Headroom\/. Means of egress shall be so designed andmaintained as to provide adequate headroom, but in no case shall theceiling height be less than 7 feet 6 inches nor any projection from theceiling be less than 6 feet 8 inches from the floor.[[6]] The Commission must base its decision on the record as a wholerather than on one isolated bit of evidence. See Harrington Constr. 4BNA OSHC 1471, 1473-74, 1976-77 CCH OSHD ? 20,913. p. 25,110 (No. 9809,1976).[[7]] The likelihood that an accident would occur and the likelihoodthat an injury would result from that accident are factors to beconsidered in evaluating the gravity of a violation for assessing apenalty. Super Excavators Inc., Bulz Bros. Packing Co., 1 BNA OSHC1118,1119,1971-73 CCH OSHD ? 15,464, 20,728 (No. 91, 1973). [[1]] Respondent withdrew its notice of contest as to items 2(b),4(a)-(d), 5, and 11 of serious citation 1, and items 3(a) and (b) of\”other\” citation 2. The Secretary withdrew items 4(e) and (f), 13(a)(a),13(b)(a) and 14 of the serious citation, as well as items 4, 6(a) and 7of citation 2. (Tr. 5-8). The effect of said withdrawals is reflected inthose sections dealing with penalty determination, conclusions of lawand order, infra.[[2]] These last two items originally alleged violations of1910.1200(f)(4)(i) and 1910.1200(f)(4)(ii). However, the Secretary’smotion to amend the citation to allege violations of 1910.1200(f)(5)(i)and 1910.1200(f)(5)(ii), respectively, was granted at the hearing. (Tr.8-12)[[3]] 1910.23(c)(1) provides, in pertinent part: _Protection of open-sided floors, platforms. and runways._ Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e) (3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.[[4]] Burke is approved by OSHA to conduct grain facility inspections,based on his four previous inspections of such facilities and on hiselectrical background, which includes 8500 hours of training in anelectrician apprenticeship program and journeyman electricianexperience. (Tr. 119-21).[[5]] The record demonstrates that Wayne Bellinger, Respondent’sCorporate safety director, took R-2 and R-3 on November 9 or 10, 1988.(Tr. 9-50; 397-98).[[6]] In finding a violation, Respondent’s argument regarding Jones’credibility has been noted. Jones testified Rome told her the distancebetween the cars and the deck was 4-5′, and Rome testified this was notwhat he said. (Tr. 23; 302-03). Based on the record, it appears Rometold Jones the dock plate was 4-5′ long, and she understood him to meanthe distance between the cars and the deck. I observed Jones’ demeanoras she testified, and found her to be a sincere and credible witness.That she misunderstood Rome does not, in my view, impinge upon herintegrity, nor does it change my decision, as the record clearlysupports the finding of a violation.[[7]] 1910.23(e)(1) provides, in pertinent part: Railing, toe boards, and cover specifications. A standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway, or ramp level.[[8]] Wayne Bellinger testified he took R-4 on November 9 or 10, 1983.(Tr. 398-99)[[9]] The undersigned has considered whether a 15(b) amendment pursuantto the Federal Rules of Civil Procedure would be appropriate, in thatthe cited standard also pertains to floors, runways and ramps. However,since the record is devoid of any evidence the landing is a floor,runway or ramp, there is no basis for such an amendment. Moreover, anamendment to allege a violation of 1910.37(g)(2), which requires anunenclosed exterior way of an exit access to be guarded, is likewiseinappropriate. The record clearly shows the landing had a guard rail,which is all that 1910.37(g)(2) requires.[[10]] 1910.133(a)(1) provides as follows: Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.[[11]] 1926.102(a)(1), which requires eye and face protection whenmachines or operations present a potential for eye or face injury, issufficiently similar to the standard at issue to be persuasive on thispoint. This is so even though Daniel affirmed a nonserious violation.There, the employee wore safety glasses which were found to beinadequate. Here, the employee used no protection. Respondent cites toseveral cases dealing with the subject standard; however, as they do notaddress the potential of welding to cause eye injuries, they areunpersuasive.[[12]] Respondent asserts there was eye protection \”convenientlyavailable\” to Boling. However, there is no evidence of this. The recordshows that when asked why he wasn’t using a face shield, Boling said hedidn’t have one.[[13]] 1910.272(i) (1) provides as follows: Housekeeping. The employer shall develop and implement a written housekeeping program that establishes the frequency and method(s) determined best to reduce accumulations of fugitive grain dust on ledges, floors, equipment, and other exposed surfaces.[[14]] The Government stipulated that Bellinger is an expert in grainprocessing. (Tr. 378).[[15]] The testimony of Jones is credited over that of Rome on thispoint, as his testimony indicates he only thought he gave her R-5.[[16]] The Secretary does not assert R-5 was not at the worksite, andRome’s testimony indicates it was. Moreover, although the secretaryasserts R-7 was not \”available,\” Rome said it was in his office. Iobserved Rome’s demeanor and have no reason to doubt his testimony onthis point.[[17]] Rome so testified, and it is plausible this occurred. Of thethree exhibits, only, R-6 makes any specific reference to\”housekeeping,\” and it is understandable Rome would have produced onlyR-6 pursuant to Jones’ request. Moreover, R-5 and R-7 are entitled\”sanitation\” programs, and Rome’s testimony shows he believes R-7’spurpose is to ensure product quality. It is likely he believes the saneof R-5, and that this is the reason he did not produce the documents atthe time of the inspection.[[18]] In vacating the citation, I am not unmindful of Rome’s statementthat the purpose of R-7 is to ensure product quality. Bellingerdisagreed with this statement. However, even if R-7’s purpose is, inpart, quality control, it is also a housekeeping program within themeaning of the standard. A finding that Respondent complied with thestandard is also consistent with the testimony of both CO’s, whoconsidered the facility clean.[[19]] 1910.272(1)(3) provides as follows: The use of compressed air to blow dust from ledges, walls, and other areas shall only be permitted when all machinery that presents an ignition source in the area is shut-down, and all other known potential ignition sources in the area are removed or controlled.[[20]] 1910.307(b) is part of 29 C.F.R. 1910 Subpart S.[[21]]1910.272(L) (I) (i) provides as follows: Preventive maintenance. The employer shall implement preventive maintenance procedures consisting of: Regularly scheduled inspections of at least the mechanical and safety control equipment associated with dryers, grain stream processing equipment, dust collection equipment including filter collectors, and bucket elevators.[[22]]The secretary implies the exhibits are suspect because they arehandwritten, not on ConAgra letterhead and were not immediatelyavailable. However, Rome identified both exhibits as part of themaintenance program. I have already considered Rome’s credibility,supra, and conclude C-1 and R-9 are evidence of Respondent’s program.[[23]]Compare, for example, 1910. 272 (i) (1), supra, which specificallyprovides for a written housekeeping program.[[24]]This conclusion is consistent with the testimony of Jones. She hadno knowledge the equipment was not maintained, and saw no problems withany of it.[[25]]Rome’s identification of R-6 as part of Respondent’s elevatorsanitation program was noted in the 1910.272(i) (1) discussion, supra.[[26]] 1910.272(L)(3) provides as follows: A certification record shall be maintained of each inspection, performed in accordance with this paragraph (L), containing the date of the inspection, the name of person who performed the inspection and the serial number, or other identifier, of the equipment specified in paragraph (L) (1) (i) that was inspected.[[27]] Bellinger’s identification of Exhibit R-17 as a 1988 letter fromJohn A. Pendergrass, former Assistant Secretary for OSHA, was notedsupra, in the 1910.272 (i) (3) discussion.[[28]] Rome’s identification of R-7 as the Sherman facility’s millsanitation program is set out supra, in the 1910.272(i)(1) discussion.[[29]] Rome’s identification of R-6 as part of the facility’s elevatorsanitation program was set out supra, in the 1910.272(i)(1) discussion.[[30]] The record establishes employee exposure. Jones saw at least oneemployee working in the elevator when she was there, and Rome said nineemployees worked in the mill. (Tr. 84; 323).[[31]] The subject standard is part of 1910.307, the hazardous(classified) location standard. 1910.307 sets out requirements forelectric equipment and wiring in locations which are classifiedaccording to the flammable or combustible properties of substances inthe location, including dust. It also assigns six hazardous locationdesignations, which are defined at 1910.399(a). 1910.307(b) provides, inpertinent part: _Electrical installations._ Equipment, wiring methods, and installations of equipment In hazardous (classified) locations shall be intrinsically safe, approved for the hazardous (classified) location, or safe or for the hazardous (classified) location.[[32]] A \”Note\” following 1910.307(b) states that the NEC containsguidelines for determining the type and design of equipment andinstallations which will meet the standard requirements.[[33]] There is no direct evidence employees used the cited fan.However, Burke’s testimony shows fans were used, which leads theundersigned to conclude the cited fan was also used.[[34]] In finding a violation, Burke’s testimony has obviously beencredited. Respondent implies his testimony is somehow suspect because hewas not in charge of the inspection and was \”mostly a spectator.\” Idisagree. Burke was assigned to assist Jones due to his electricalbackground and grain facility inspection experience, which was noted atfootnote 4. He participated in the actual inspection of the facility,observed the conditions about which he testified and noted the relevantNEC requirements. I found him credible and convincing.[[35]] 1910.1200 (f) (5) (i) provides, in pertinent part: The employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information: Identity of the hazardous chemical(s) contained therein.[[36]]Bellinger’s chemistry education was noted in the 1910.272 (i) (1)discussion, supra. (Tr. 374; 422; 438).[[37]] This item of the citation, 13 (a), originally alleged twoviolations: however, is noted _supra_, the Secretary withdrew 13 (a)(a). Item 13(b), _infra_, also originally alleged two violations, but theSecretary withdrew 13(b) (a). The proposed penalty for all four itemswas $280.00. The penalty assessed for the subject violation is onefourth of the original penalty.[[38]] 1910.1200 (f) (5) (ii) provides, in pertinent part: [T]he employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information: Appropriate hazard warnings.[[39]] See footnote 37, supra[[40]] 1910.37 (i) provides as follows: _Headroom_. Means of egress shall be so designed and maintained as to provide adequate headroom, but in no ease shall the ceiling height be less than 7 feet 6 inches nor any projection from the ceiling be less than 8 feet 8 inches from the floor.[[41]] There was no penalty proposed for this citation item.[[42]] 1910.37(q)(1) provides as follows:Exit marking: Exits shall be marked by a readily visible sign. Access toexits shall be marked by readily visible signs in all cases where theexit or way to reach it is not immediately visible to the occupants.[[43]] Wayne Bellinger testified he took R-10 on November 9,1988 (Tr.399- 400).[[44]] There was penalty proposed for this citation item.[[45]] 1910.244(a)(l)(ii) divides is follows:_Jacks–Loading and Unloading_. The rated load shall be legibly andpermanently, marked in a prominent location on the jack by casting,stamping or other suitable means.[[46]] Contrary to Respondent’s assertion, _Pratico v. Portland TerminalCo_., 783 F.2d 255 (1st Cir. 1985), supports this conclusion. There, inholding a device was a \”jack\” within the meaning of 1910.241(d)(l), thecourt noted a \”jack\” was \”[a] machine, usually portable, for liftingweights by force acting from below.\” Id. at 260 (citation omitted).[[47]] There was no penalty proposed for this citation item.[[48]]1010.1200(g)(1)pertinent part: Employers shall have a material safety data sheet for each hazardous chemical which they use.[[49]] Bellinger testified he saw a copy of R-20 in OSHA’s investigationfile. (Tr. 426-27). However, an in camera viewing of the Government’sfile did not reveal R-20. (Tr. 429).[[50]] There was no penalty proposed for this citation item.”