“Docket No. 88-2572 SECRETARY OF LABOR.Complainant,v.CONAGRA FLOUR MILLING CO.AND ITS SUCCESSORS,Respondent.OSHRC Docket No. 88-2572DECISION BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Conagra, Inc., (\”Conagra\”), a large corporationinvolved in various agricultural businesses, has more than 2000 facilities, including over250 grain elevators, 28 flour mills, 20 feed mills, meat packing plants, chickenprocessing plants, fertilizer and pesticide plants, and a number of retail businesses.Among these holdings is a Sherman, Texas facility operated by Conagra Flour MillingCompany.\u00a0 This operation includes a grain elevator and a flour mill. A complianceofficer (\”Jones\”) of the Occupational Safety and Health Administration of theDepartment of Labor (\”OSHA\”‘) inspected the flour mill portion of that facility.\u00a0 Based on her observations during that inspection, Jones asked for assistance fromanother compliance officer, Burke, who had experience working as a journeyman electricianand who had inspected other grain processing facilities.\u00a0 The next day, Burkeaccompanied Jones to the mill to assist her with her inspection.As a result of this inspection, the Secretary of Labor(\”the Secretary\”) issued two citations to Conagra, one alleging various seriousviolations of the Occupational Safety & Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”), the other alleging a number of other than serious violations of theAct.\u00a0 Conagra timely contested both citations, and a hearing was held before a ReviewCommission administrative law judge.\u00a0 Conagra petitioned for review of portions ofthe judge’s decision, and review was directed pursuant to section 12(j) of the Act, 29U.S.C. ? 661(j).Four items from the two citations are on review.\u00a0 Three ofthese items allege serious violations, and one alleges an other-than-serious violation.\u00a0 All four items on review occurred in the milling department of Conagra’s facility.\u00a0 The flour mill is in a seven-story building.\u00a0 The first two floors contain thepackaging department. The milling department, where the cited conditions existed, islocated on floors three through seven of the facility. 1. Items 12(f) & 12(g) of the seriouscitation.A. Item 12 of citation 1 alleges serious violations of thestandard found at 29 C.F.R. ?1910.307(b) [[1]] at 15 different locations in the millingdepartment.\u00a0 The judge vacated all but items 12(f) and 12(g). Item 12(f) alleges thata grain testing machine on the fourth floor of the mill neither was approved for use ahazardous location nor had its motor connections covered to prevent the accumulation ofcombustible dust.\u00a0\u00a0 Item 12(g) alleges that a pedestal fan being used on thethird floor of the 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 wereclassified as hazardous, Class II, Division 2 locations.\u00a0 The grain tester cited initem 12(f) was on a work bench on the fourth floor of the facility.\u00a0 Burke statedthat he observed that the wiring of the grain tester was not covered.\u00a0 He testifiedthat there was an opening in the machine through which he could see bare electrical wiresgoing to the motor, so that the wiring was exposed to the possible accumulation of graindust, which could then ignite. Burke inspected the machine to determine whether there wasany marking to show that it was approved for use in a hazardous location and found none.\u00a0 He testified that there was no indication that the grain tester was\”explosive-proof.\”\u00a0 During the inspection, Burke said, he observed aConagra employee using the grain tester.Burke also testified that the fan cited in item 12(g) was avariety commonly used in the home. When he examined it, he could see the windings in themotor, and parts of the motor were exposed, so that grain dust could accumulate and,possibly, ignite.\u00a0 He further stated that he examined this machine to determinewhether it bore any marking to show that it had been approved for use in a hazardousatmosphere and that he found none.Conagra’s corporate safety director, Bellinger, testified as anexpert witness.\u00a0 He and his staff of six assist the managers of more than 2000Conagra facilities in accident prevention and safety. Bellinger testified that, over aperiod of 17 years prior to the hearing, he had visited the Sherman mill \”at leasttwo dozen\” times, but he did not indicate how long each visit lasted.\u00a0 Based onthese visits, Bellinger testified that he was familiar with all the electrical equipmentcited in item 12.\u00a0 He was therefore able to state his conclusion that it was\”general purpose equipment,\” and was therefore governed by the provision in1910.307(d) which says, \”General- purpose equipment or equipment in general-purposeenclosures may be installed in Division 2 locations if the equipment does not constitute asource of ignition under normal operating conditions.\”Bellinger opined that both machines in question were located inClass II, Division 2 areas. Because the fan was thrown out the day of the inspection, hehad not seen it and could not assess its construction.\u00a0 He said that he was familiarwith that make of fan generally, however, and gave his opinion that it was acceptable fora Class 11, Division 2 area.Based on this evidence, the judge found that both machines werein violation of the cited standard. The judge found that the motors of both machines wereexposed to dust.\u00a0 He also found that neither machine was marked to indicate that itwas suitable for use in a hazardous location.\u00a0 The judge assessed a penalty of $32for each of these violations.For the reasons below, we find Conagra’s arguments unconvincingand agree with the judge that the evidence establishes that neither of these machinescomplied with the regulatory requirements for use in a hazardous Class II, Division 2location.\u00a0 Neither machine satisfied the requirement that machines used in Class II,Division 2 locations \”be totally enclosed non-ventilated, totally enclosed pipeventilated. totally enclosed fan cooled, or dust-ignition-proof for which maximum all loadexternal temperature shall not exceed 120 C (248 F) when operating in free air (not dustblanketed) and shall have no external openings.\”B. Because the citation and complaint alleged that the graintester and the fan were \”not approved for hazardous location.\”\u00a0 Conagraasserts that the pleadings incorrectly charged the company with violating the requirementsfor a Class II, Division 1 location.\u00a0 In view of the fact that the evidenceestablishes that the machines were located in a Class II, Division 2 location.[[2]]Conagra argues that the citation alleged the wrong classification and these items shouldbe vacated.Conagra bases its argument on the wording of section 502-8 ofthe National Electrical Code (\”NEC\”), which is incorporated into the standardand specifies different requirements for electrical motors in Class II, Division I areasand Class II, Division 2 areas.\u00a0 The section relied 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 iscorrect; the word \”approved\” is used in the Class II, Division I section but notin the Class ll, Division 2 section.\u00a0 We do not consider that fact to bedeterminative, however, because the term \”approved\” was not necessarily intendedto be exclusive to the first category.\u00a0 For example, if either machine had borne aninscription stating that it had been approved for use in a Class ll, Division I location,it would automatically have been acceptable for use in the less-hazardous Division 2locations cited here. It was therefore reasonable for Burke to look for such a notation,and it was relevant for him to mention its absence during his testimony.\u00a0 The factthat he mentioned this absence of markings on either machine does not establish that heerroneously believed that these were Division I locations.\u00a0 Nor does the fact thatthe judge also mentioned them establish that he erroneously believed that these machineswere located in Division 1 areas.\u00a0 Indeed, reading the portion of the judge’sdecision containing his discussion of the 1910.307(b) items discloses that he was clearlyaware that the entire milling department was a Division 2 area and was cognizant of therequirements for that category: that machines must be enclosed or dust-ignition proof.\u00a0 Neither machine was enclosed in the manner specified in the standard, and neithermachine bore any indication that it was either dust ignition proof or explosion proof.\u00a0 Therefore the judge’s findings were both correct and relevant to this issue.Nevertheless, Conagra also argues that, because Burke used theexpression \”explosive-proof.\” he erroneously applied the criteria for a Division1 location.\u00a0 Examining the record as a whole, however, we see that Burke was the onewho informed Jones that the flour mill was a Class II, Division 2 area.\u00a0 Burke’stestimony demonstrates that he was familiar with the correct standard and that he appliedit.\u00a0 We agree with Conagra that this one statement does not state the correct test,but we consider this an instance of \”misspeaking.\”\u00a0 Examining Burke’stestimony in its entirety, we conclude that this one utterance does not accurately reflectwhat he really said. Burke’s testimony shows that the two machines in question did notcomply with the requirements for electric motors located in Class II, Division 2 areas.\u00a0 We are therefore unwilling to focus on this one mistake to negate the rest of histestimony.Conagra new argues that, because the citation did not specifythat the electrical equipment cited was located in Division II, Class 2 areas and becauseit was misled during prehearing discovery, it lacked fair notice of the Secretary’sallegations.\u00a0 An examination of the record shows that, after the inspection, Jonesmade notes of her observations believing that the flour mill should be classified as aClass II, Division 1 hazardous location.\u00a0 She subsequently conferred with Burke, whoinformed her of an OSHA directive under which flour mills are classified as Class II.Division 2 locations unless air sampling is performed and it is established that there aresufficient levels of combustible dust to cause an explosion.\u00a0 Since no such testingwas performed here, the facility was properly classified as a Class II, Division 2location, and the citation did not mention any specific classification, referring insteadto \”hazardous (classified) location[s].\”\u00a0 When Jones’ notes were given toConagra during discovery proceedings before the hearing, they had not been corrected andstill referred to the mill as a Class II, Division 1 location.On the basis of these notes, Conagra argues that it was misledinto believing that it was cited for having equipment that was not acceptable for a ClassII, Division 1 location and that it prepared its defense on the basis that, contrary tothe Secretary’s allegation, the mill was a Class II, Division 2 location.\u00a0 Conagraasserts that it was therefore not prepared to present a proper defense when, at thehearing, everyone agreed that the mill was properly classified as a Division 2 location.\u00a0 The Judge vacated the citation as to several pieces of electrical equipment citedin item 12 of the citation on the basis of this argument.\u00a0 However, he found that theviolations alleged in items 12(f) and 12(g) were not governed by that argument. Hetherefore affirmed those items.Having reviewed the record, we find that the parties fullylitigated the issue 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’s conclusion.\u00a0 While weagree with Conagra that the citation and the complaint were not specific as to theclassification, we are not convinced that any misunderstanding was solely the fault of theSecretary . Neither the citation nor the complaint contained any language to justifyConagra’s asserted belief that the Secretary was alleging that the cited areas wereDivision I locations:\u00a0 Given the procedures available under the Federal Rules ofCivil Procedure to define 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 wrongclassification in her notes, there is no indication that she did this in a deliberateattempt to mislead Conagra.\u00a0 The record shows that, until she was corrected, Jonesbelieved that the mill was a Division 1 area rather than a Division 2 area, and that shemade her notes immediately following the inspection.\u00a0 It is true that, before thecitation was issued, she had talked with Burke and had been informed of the directive.\u00a0 There is nothing in the record to suggest that her failure to amend the notes wasan intentional act of deceit, as Conagra implies. When the notes were written, Jones couldnot even be certain that a citation would be issued, much less that it would be contested,that the case would be litigated, nor that her notes would be given to Conagra as part ofdiscovery.\u00a0 It thus appears that this was an honest mistake, rather than an effort todeceive the company.\u00a0 Since there is nothing in the record to indicate that Jonesknew that her notes had been given to Conagra’s attorney by the Secretary’s attorney, wesee no reason to impose a sanction on the Secretary for this error.Carrying this argument further in Its reply brief, Conagraasserts that it was prejudiced in the preparation of its case by Its belief that it wascharged with violating the requirements for a Class II, Division I location. \u00a0However, this assertion was not made in Conagra’s Petition for Discretionary Review or inits opening brief.\u00a0 Moreover, we are not persuaded that the company reliedexclusively on Jones’ notes.\u00a0 If Conagra believed that it was cited for the wrongclassification, the obvious action to have taken was for it to bring to the Secretary’sattention that its facility was not a Class II, Division 1 location and to try to get thecitation dropped without having to spend the time and money to prepare for and conduct ahearing on that issue.\u00a0 We therefore cannot accept Conagra’s assertion that t wasprejudiced in the preparation and presentation of its case because Jones made an error inmaking her notes after the inspection.\u00a0 It is not sufficient for a party to make ageneral allegation of prejudice without presenting some specific evidence of prejudice. E.g.,United States v. Hougham, 364 U.S. 310, 316-17 (1960).Although Conagra asserts that it was not prepared to try thatissue, it has not pointed on review to any evidence that she would have presented had ithad more complete notice of the nature of the charges.\u00a0 To determine whether a partyhas suffered prejudice, it is proper to look at whether the party had a fair opportunityto defend and whether it could have offered any additional evidence if the case wereretried. Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969).\u00a0 Atthe hearing, when it became apparent that OSHA’s witnesses and Conagra’s safety directorall agreed that the mill was a Class II, Division 2 area, Conagra did not seek either acontinuance in order to obtain additional evidence or to keep the record open after thehearing in order to submit additional evidence.\u00a0 Cf.\u00a0 United Statesex rel Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 677 (11th Cir. 1987)(amendment to conform pleadings to evidence): Watson v. Cannon Shoe Co., 165 F.2d311, 313 (5th Cir. 1948).On review, with the issue squarely framed. Conagra did not seekto reopen the record to present evidence on that question.\u00a0 Conagra points to noevidence that it would have introduced and makes no specific allegations to support itsclaim.\u00a0 Having reviewed the record, we do not find that the company could havepresented other evidence to rebut the Secretary’s prima facia evidence that the citedmachines did not satisfy the 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).\u00a0 We therefore find that Conagra has notproved that it suffered any specific prejudice in the preparation and presentation of itscase because of the purported inadequate notice.\u00a0 Accordingly, the Commission doesnot accept either Conagra’s claim that it believed that the Secretary alleged that thegrain tester and the fan were located in Class II, Division I locations because neitherthe citation nor the complaint specified the classification, or its unsubstantiatedassertion that it was prejudiced by its erroneous belief.C.Conagra also argues that its equipment fell within an exceptionset out in section 502 8 of the NEC, quoted above, which, Conagra asserts, permits an openmotor to be used in a Class II, Division 2 location if the authority having jurisdictionbelieves that accumulations of dust will, be moderate and the machines can be easilyreached for cleaning.\u00a0 The party claiming to fall under such an exception has theburden of proof of its claim.\u00a0 Dover Elevator Co., 15 BNA OSHC 1378,1381,1991 CCH 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).\u00a0 Not only has Conagra failed to carry its burden here, but we find by apreponderance of the evidence in this record that neither of the two machines in questionqualified as a self cleaning textile motor of the squirrel-cage type or as either of theother kinds of machines described in sections a-c of the provision on which Conagrarelies.Conagra claims that Jones testified that all the electricalequipment in the facility met the requirements for Class II, Division 2 locations. \u00a0An examination of the record reveals, however, that she really said that the electricalequipment of floors 5-7 complied.\u00a0 The fan and the grain tester were not on thosefloors.\u00a0 Jones’ testimony therefore does not preclude a finding that those twomachines were in violation.D.Conagra further argues that the Secretary has not proved aviolation because Conagra did not know that this machinery was in violation.\u00a0 It iswell established that, in order to prove a violation, the Secretary must prove that theemployer had either actual or constructive knowledge of the violative conditions.\u00a0 GaryConcrete Prod., 15 BNA OSHC 1051, 1052, 1991 CCH OSHD ? 29,344, p. 39,449 (No.86-1087, 1991).\u00a0 This means that the employer either knew of the violative conditionsor could have known of them with the exercise of reasonable diligence.\u00a0 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 also Getty Oil Co. vOSHRC, 530 F.2d 1143 (5th Cir. 1976).\u00a0 The Secretary does not have to prove thatthe employer knew that the conditions constituted a violation.\u00a0 Shaw Constr.,6 BNA OSHC 1341, 1342-43, 1978 CCH OSHD ? 22,524, p. 27,177 (No. 3324, 1978).Because of the potentially disastrous consequences of explosionor fire, the standard permits only machinery that meets the NEC’s requirements for a ClassII, Division 2 location to be used in the mill.\u00a0 Conagra therefore had an obligationto assure that its equipment was in compliance.\u00a0 Here, the exposed wiring on bothmachines was readily apparent to Burke and would have been equally visible to Conagra ifit had exercised due diligence to assure that the grain tester and fan were not potentialsources of ignition.\u00a0 Consequently, we find that Conagra had constructive knowledgeof the exposed wiring because it could easily have discovered the exposed wiring if it hadexercised due diligence to inspect its machinery to insure that it was in compliance.\u00a0 See Automatic Sprinkler Corp., 8 BNA OSHC 1384, 1387-88, 1980 CCH OSHD ? 24,495,pp. 29,926-27 (No. 76-5089, 1980) (employer has duty to anticipate and make reasonableeffort to inspect for hazards). Conagra’s claim that it lacked knowledge is thereforerejected.E. Conagra asserts that the citation would never have been issuedif Jones had known Conagra asserts that the citation would never have been issued if Joneshad known the correct classification from the outset.\u00a0 Given the fact that the recorddoes establish the existence of a violation, this argument is irrelevant. \u00a0Furthermore, there is nothing in the record to support Conagra’s claim, and we do notbelieve that the factual assumption on which it rests is accurate. [[3]]F.Conagra also asserts that only the wireways leading to themotors of the grain tester, not the motor itself, were exposed, and that there is norequirement that wireways be dust-ignition-proof. At the outset, we note that the term\”wireways\” is defined in 29 C.F.R. ? 1910.399: \”Wireways are sheet-metaltroughs with hinged or removable covers for housing and protecting electric wires andcable and in which conductors are laid in place after the wireway has been installed as acomplete system.\”\u00a0 It therefore appears that Conagra was referring to somethingelse. Assuming that Conagra really meant the wiring to the motors, we reject its assertionthat the wiring need not be covered and need not be dust-ignition-proof.\u00a0 The wiringis an integral part of the motor and cannot be separated from it.\u00a0 It would renderthe standard meaningless if the wiring could be exposed and did not have to meet the samerequirements as the motor.\u00a0 We conclude that the requirements that apply to a motorapply equally to the wiring in and to the motor.\u00a0 Based on the above findings, weaffirm the judge’s finding of a violation for items 12(f) and 12(g).G.We now turn to the characterization of the violation.\u00a0 TheSecretary alleged that these violations were serious.\u00a0 Under section 17(k) of theAct, 29 U.S.C. ? 666(k), a violation is serious if there is a substantial probabilitythat death or serious physical harm could result.\u00a0 This does not mean that theoccurrence of an accident must be a substantially probable result of the violativecondition but, rather, that a serious injury is the likely result if an accident doesoccur.\u00a0 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). Although the likelihood of afire or explosion resulting from these violations may not be great, the consequences of afire or explosion could well he very serious.\u00a0 We therefore find that the violationscited in items 12(f) and 12(g) were serious.ll. Item 8 of the serious citationTo prevent the accumulation of combustible dust on ledges andsurfaces that cannot easily be reached to sweep them, Conagra and the grain industrygenerally use compressed air to blow the dust off these surfaces onto the floor, where itcan be swept up. This process is called a \”blowdown.\”\u00a0 During a blowdown,the dust forms a cloud in the air.\u00a0 If the dust cloud is dense enough, it can reachan explosible concentration.\u00a0 For that reason, OSHA’s standard for grain handlingfacilities is intended to prevent situations which might cause the dust to be ignited.Item 8 alleged a serious violation of 29 C.F.R. ?1910.272(i)(3 ).[[4]]\u00a0 Specifically, the citation said:29 C.F.R. 1910.272(i)(3): The use of compressed air to blowdust from ledges, walls, and other areas was permitted when all machinery that presentignition source was not shut-down, and all other known ignition sources were not removedor 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 twodifferent sets of facts that would constitute a violation:\u00a0 (1) the operation ofmachinery, and (2) the use of spark-producing metal scoops. Jones testified that she didnot actually see a blowdown herself, but that the plant manager told her that themachinery was not shut off during this activity.\u00a0 She was also told that metal scoopswere used to pick up the dust during blowdowns.\u00a0 She concluded that both situationsconstituted a hazard.The plant manager testified that floors three through seven ofthe flour mill are blown down every day.\u00a0 Conagra’s corporate safety directortestified that all of its flour mills conduct blowdown operations, and he estimated thatthe operation is performed on every shift.\u00a0 Both of these witnesses testified thatthe Sherman mill is an exceptionally clean mill and that dust concentrations in the airare very light during blowdown there.\u00a0 The safety director expressed the opinion thatthe dust would not reach the minimum explosible concentration.Another Conagra employee testified that all the metal scoopsused to pick up the dust are aluminum and that Conagra does not have any other kind ofscoop in the mill.\u00a0 Based on this testimony, the judge found that the scoops beingused were aluminum, a non-ferrous metal, and would not cause sparks.\u00a0 Therefore hevacated that portion of the citation.The judge found that there was a violation, however, becausethe company did not deny that its grain processing equipment continued to run duringblowdowns.\u00a0 He held that the operation of the grain tester cited in, item 12(f)constituted a violation.In its Petition for Discretionary Review, Conagra, assertedthat the testimony of Jones clearly established that the only basis for the citation wasthe use of the metal scoops.\u00a0 In its brief, Conagra asserts that the citation doesnot mention grain processing machinery and that Jones mentioned the machinery only aftershe realized that the metal scoops would not support a violation.\u00a0 Our review of therecord shows, however, that these arguments are specious. Reference to the portion of thecitation quoted above clearly shows that it alleged that grain processing machinery wasoperated during blowdown operations.\u00a0 At the hearing, Conagra’s own attorney readinto the record portions of Jones notes that clearly show that, before the citation wasissued, she considered the failure to shut down the machinery to be a hazard.Conagra misstates facts in the record when it asserts thatJones testified that all the machinery in the area where blowdown was conducted was incompliance with the NEC.\u00a0 In fact, Jones testified that the machinery on floors 5, 6,and 7 was in compliance.\u00a0 The record as a whole clearly establishes that blowdownswere conducted on every floor in the flour mill.\u00a0 Because there was noncompliantequipment on the third floor (the fan) and the fourth floor (the grain tester), the recordestablishes that there was a violation.Citing a 1988 letter from the Millers’ National Federation tothe Assistant Secretary of Labor for Occupational Safety and Health and the reply to thatletter, Conagra asserts that OSHA has approved all equipment normally used in flourmilling as safe for use in these locations.\u00a0 Its argument is based, however, on theletter to OSHA, not on the letter from OSHA.\u00a0 An examination of the reply letterclearly shows that OSHA did not give blanket approval to all flour milling machinery butstated that machinery could be operated during blowdown operations only under certaincircumstances specified in the reply letter.\u00a0 One of those circumstances was thatelectrical wiring be in compliance with the requirements set out in 29 C.F.R ??1910.301-399.\u00a0 Because the grain tester and the fan did violate section 1910.307(b),the conditions set out by the Assistant Secretary were not met.\u00a0 Conagra thereforecannot rely or, that letter to demonstrate acceptance of its equipment.We give no weight to Conagra’s argument that is based on itsassertion that Jones believed that blowdowns were not performed on the third and fourthfloors.\u00a0 Even if Jones’ memory was not accurate at the hearing and her testimony onthis issue was inconsistent, the preponderance of the evidence as a whole clearlyestablishes that blowdowns were performed on those two floors and that there was machineryon both floors which did not meet the requirements for a Class II. Division 2 location.\u00a0 Although there is no evidence about whether the fan was shut down during blowdowns,Conagra has conceded that the grain tester operated during blowdowns. The judge found thatthe use of the grain tester constituted a violation, and we agree.\u00a0 We therefore findthat Conagra was in violation of 29 C.F.R. ? 1910.272(i)(3) for improperly conductingblowdown operations on the fourth floor of the flour mill without first shutting down apotential ignition source.We note that the Secretary’s brief asserts that a cove, of thegrain tester was missing.\u00a0 Our review of the record does not support thatinterpretation of the testimony. Burke testified that the wiring was not covered, that hecould see bare wires through an opening in the machine.\u00a0 We do not believe that hetestified that there was a cover that was not in place.This violation was alleged to be serious, and Conagra has notdisputed that characterization. Having reviewed the record, we find that it was serious.III. Item 1 of the other-than-seriouscitation.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 window on the sixthfloor, which provided the only means on those two floors of getting to the fire escape,did not have adequate headroom.\u00a0 The windows were 40 1\/2 inches wide, 21 inches high,and were located 42 inches above the floor.On each of the other floors of the flour mill, there was a doorleading to the fire escape, but the only way to get to the fire escape from the fourth andsixth floors was through the cited windows. There was a sign over the window on the sixthfloor which indicated that it provided access to the fire escape, and employees had beentold to use the windows as exits in the event of an emergency.There was an elevator or \”man-lift\” in the middle ofthe building, and there was a stairwell located near the elevator. Jones testified thatthey were very close together and that an employee might not be able to get to the areawhere they were located in an emergency.\u00a0 Therefore, she testified, it was necessaryto have an emergency exit as well.The judge found that Conagra intended that the windows be usedto get to the fire escape if there was an emergency and found that they did not meet therequirements of the standard.\u00a0 He therefore found a violation.\u00a0 We conclude thathe was correct.Conagra asserts that it was cited because Jones believed thatthe windows provided the only means of egress from the two floors in question.\u00a0 Jonestestified, however, that she meant an emergency exit when she used the term \”means ofegress,\” and the judge properly rejected Conagra’s argument.\u00a0 For Conagra’sassertion that Jones believed the windows and fire escapes provided the only access to thefourth and sixth floors to be correct, Jones would have had to travel from floor to floorby the fire escape when she was conducting her inspection.\u00a0 The record makes it clearthat this was not the case, because Conagra’s plant manager, who participated in theinspection, testified that the windows had never actually been used to get to the fireescape. It is obvious that Jones used either the stairway or the elevator, or both, duringher inspection, so she had to have known that the windows were not the only way to get toand from the fourth and sixth floors.\u00a0 The record is clear that she was well aware ofthe stairway and the elevator.Even if Jones was confused, as Conagra suggests, it would beirrelevant as a defense here. Taken as a whole, [[6]] the record establishes that Conagraintended the windows to be used for access to the fire escapes in an emergency; andConagra admits that to have been the case.\u00a0 The record further shows that thedimensions of the windows did not meet the requirements of section 1910.37(i). \u00a0Having considered the entire record, we find that a violation has been established. \u00a0We therefore find that Conagra’s assertions on this item are without merit.Conagra also attempts to challenge Jones’ credibility becauseshe testified that the plant manager told her the windows were the only means of egress,while he testified that he never told her that. Jones testified that she used the term\”means of egress\” to mean an exit for use in an emergency. The plant managertestified that the windows provided the only access to the fire escape from the two floorsin question, and that he told Jones exactly that.\u00a0 The witnesses were thereforesaying the same thing in different words, and Conagra’s credibility question is really amatter of semantics. Consequently, we give no weight to this argument.IV. Penalties.Section 17(j) of the Act provides that the Commission shallassess an appropriate penalty for each violation, giving due consideration to the size ofthe employer, the gravity of the violation, the good faith of the employer, and theemployer’s history of previous violations, 29 U.S.C. ? 666(j).\u00a0 The Secretaryproposed a penalty of $480 for Item 8 and for item 12.\u00a0 The judge considered thestatutory factors and assessed a penalty of $480 for item 8.\u00a0 Because he vacated thecitation as to thirteen of the fifteen locations cited in item 12, the judge pro-rated thepenalty and assessed $32 each for items 12(f) and 12(g).\u00a0 No penalty was proposed orassessed for the other-than-serious item.\u00a0 Neither party has addressed on review theappropriateness of the penalties.Conagra is a very large company which has received severalprevious citations, although none of the items on review was alleged to be a repeatedviolation.\u00a0 The fact that Conagra discarded the electric fan immediately indicatesgood faith.\u00a0 Although the consequences of an accident would likely be serious, basedon this record we consider the likelihood of an accident to be remote.[[7]] We thereforefind that these violations were of low gravity.Having considered the four factors to be considered inassessing a penalty set out in section 17(j) and the parties’ lack of argument on thisquestion, we find no reason to amend the judge’s assessment.\u00a0 We consider thosepenalties to be appropriate.V. Conclusion.For the reasons above, we affirm the judge’s decision findingserious violations 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 penalty of $544 assessedfor these violations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: August 18, 1992SECRETARY OF LABOR,Complainant,v.CONAGRA FLOUR MILLING COMPANY,Respondent.Docket No. 88-2572DECISION AND ORDER BOTKIN, Judge:This is a proceeding brought before theOccupational Safety and Health Review Commission (\”the Commission\”) pursuant to? 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq.(\”the Act\”) .Respondent is an agribusiness corporation withover 2000 facilities, including some 300 grain processing facilities. One of these is aflour mill in Sherman, Texas, with 88 employees.\u00a0 (Tr. 20; 121; 325-26; 373; 375-76).\u00a0 The Occupational Safety and Health Administration (\”OSHA\”) conducted aninspection of the facility on August 18 and 19, 1988. (Tr. 45). As a result, one seriousand one \”other\” citation, both alleging a number of violations, were issued.Respondent timely contested all items of bothcitations.\u00a0 At the hearing, the parties resolved a number of items of both citations.\u00a0 [[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) and1910.1200(f)(5)(ii). [[2]] The remaining contested items of citation number 2 (items 1, 2,5 and 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).\u00a0 The contesteditems are discussed below, in the order in which they appear in the citations.The hearing regarding this matter took place inDallas, Texas.\u00a0 The Commission’s jurisdiction was not in issue and no additionalpersons intervened.\u00a0 Both parties submitted post trial briefs.29 C.F.R. ? 1910.23(c)(1)[[3]]Gloria Jones testified.\u00a0 She has been an OSHAcompliance officer (\”CO\”) since 1985, and has conducted approximately 300inspections.\u00a0 She conducted the subject inspection.She was accompanied by Clarence Rome, the plantmanager, Red Doty, the plant maintenance supervisor, and William Burke, another CO. Duringthe inspection, Jones saw an unguarded concrete deck connected to the exterior of thesecond floor of the seven-story milling building. She observed repair work being performedon the deck.\u00a0 The deck was 14’9\” above the ground and 125′ long. Rome told Jonesthat employees used it to load feed onto rail cars.\u00a0 There were no cars when she wasthere, but Rome described the process to her.\u00a0 Employees walk across the deck and awalkway that bridges the distance between the deck and the rail car.\u00a0 Jones said thedeck was hazardous because employees could fall off and sustain serious injury.\u00a0 Shestated Exhibits R-2 and R-3 were not what she saw because they showed the deck with guardrails. (Tr. 19-23; 25-26; 49-59; 105-06).William Burke also testified.\u00a0 He is a COwith eight years of OSHA experience.\u00a0 He was assigned to assist Jones because of hisexperience. [[4]]\u00a0 He and Jones asked what the unguarded deck was used for. \u00a0Rome told them it was used to load product into rail cars and described theoperation.\u00a0 Burke saw the walkway employees used to get to the cars; it did not havea guard rail. He described it as a metal loading dock plate about 4′ wide and 5′ long,which had to be lowered or swung into place on the rail car. (Tr. 118-21; 125-130; 168-69;187-89).Burke did not know the distance between the deckand the rail cars.\u00a0 He said if it was 6-12\”, an employee could be injured bystepping or falling into the gap.\u00a0 He also said a fall hazard would exist anytime anemployee went out on the deck and there was no rail car there.\u00a0 (Tr. 127-28; 188-90).Burke said Exhibits R-2 and R-3 appeared to bephotographs of the cited area.[[5]]\u00a0 He marked R-2 with an \”X\” to show thedeck.\u00a0 He said it was not a roof because it was a walking and working surface, andbecause it had a shed roof over it.\u00a0 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. Hereferred to the deck shown as \”X\” in R-2 as both a roof and a dock.\u00a0 Hedescribed the loading process.\u00a0 Rail cars are parked under the roof or canopy betweenthe elevator and mill to keep them out of the weather.\u00a0 There are usually two cars,but can be up to four; they are 50′ long.\u00a0 A pneumatic line goes from the plant tothe canopy, where it \”spouts off\” into three lines above the cars.\u00a0 Thecars are parked so that each one’s hatch is centered under a line.\u00a0 To access theline, an employee crosses the deck carrying a rubber hose about 10′ long and 5\” indiameter.\u00a0 He lowers the dock plate and crosses it to get to the top of the car.\u00a0 He hooks up the hose to the line and drops it into the hatch.\u00a0 He thenretraces his steps and goes downstairs to turn on a blower which blows feed into the car.\u00a0 He checks the site every two hours.\u00a0 Two or three cars are loaded each week,but only one car is loaded at a time.\u00a0 After one is loaded, the employee walks fromit to the next car.\u00a0 The dock below the deck is also used for loading feed into cars.(Tr. 296-05; 341-44; 357).Rome said the dock plate is hinged to the side ofthe deck, but further down than where the \”X\” on R-2 appears.\u00a0 It haschains on its front so employees can drop it over to the car and pull it up.\u00a0 Theywalk to the edge of the deck to pull it up.\u00a0 Rome said employees do not go out ontothe deck unless a rail car is there, and that they only use it to cross over to the cars.\u00a0 He said the distance between the cars and the deck is about 12\”.\u00a0 In the14 years he has been at the facility, no one has ever fallen from the deck. (Tr. 331-05;340-41).Respondent does not dispute the cited deck was notguarded.\u00a0 It contends, rather, it is a roof and that the standard does not it assertsit is \”apparent\” from photographs and witness descriptions that the deck is aroof, and that its purpose is to provide protection from the elements.\u00a0 I disagree.Respondent claims Rome’s testimony shows the citeddeck protects the rail cars from weather. (Tr. 299). However, it is not clear Rome wasreferring to the cited deck. (Tr. 300).\u00a0 Even if he was, his later testimony, thatthe parked rail cars are about 12\” from the deck, demonstrates it is physicallyimpossible for the deck to cover cars. R-2 and R-3 also demonstrate the deck does notextend far enough out to cover the cars.\u00a0 Moreover, the testimony of Rome and Burkeestablishes that the canopy or shed roof which covers the loading area, shown in R-2 andR-3, is what actually protects the cars from weather.Rome said loading occurs on the dock below thedeck, and that product and employees on that dock are protected.\u00a0 (Tr. 299-301).\u00a0 Again, it is not clear he meant the deck provided protection, and his othertestimony suggests he meant the canopy.\u00a0 However, even if the deck sometimes servesto protect product and employees on the – dock below, this does not establish this is itsprimary purpose, particularly since the record does not reveal the frequency of loading onthat dock. Respondent claims Rome said loading takes place on the dock below \”everyday.\”\u00a0 Rome actually said loading \”used to\” take place there everyday, and Respondent did not allow him to state the current practice. (Tr. 300). \u00a0Consequently, there is no basis for Respondent’s assertion that \”most of theloading\” occurs on the dock below, and that loading from the cited deck occurs\”very limited occasions.\”\u00a0 To the contrary, the record shows loading fromthe deck is a regular and recurring event.As set out above, the standard requires guardingon open-sided floors, platforms or runways four feet or more above ground level.\u00a0 Thedeck at issue is 14′ 9\” high. Further, 1910.21(a)(4) defines \”platform\” asfollows: 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 platformwithin the meaning of 1910.21(a)(4) where employees are regularly assigned to work on itto perform duties central to the employer’s operations.Clements Food Co., 84 OSAHRC 26\/A2, 11 BNA OSHC2120, 2126, 1984 CCH OSHD P 26,972 (No. 80-0607, 1984).\u00a0 This judge concludes thedeck is a platform within the meaning of 1910-21(a) (4) and that the standard applies.Having found the standard applies, it must now bedetermined whether Respondent’s employees had access to the hazard posed by the violativecondition.\u00a0 Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 2050, 1978 CCH OSHD? 23,135 (No. 16057, 1978); Giles & Cotting, Inc., 76 OSAHRC 30\/D4, 3 BNA OSHC 2002,1976 CCH OSHD ? 20,448 (No. 504, 1976).Both CO’s described the hazard as falling from thedeck. Clearly, a fall from a 14′ 9\”, deck could cause serious injury or death. \u00a0Access to this hazard is established by Jones’ testimony that she saw repair work beingdone on the deck when no cars were there.\u00a0 Even when cars are present, the distancebetween them and the deck is about 12\”, and Burke said employees could be injured bystepping or falling into the gap.\u00a0 Access to this hazard is established by Rome’stestimony. Employees walk across the deck several times a week pursuant to their loadingduties, at times carrying a bulky rubber hose.\u00a0 To access the cars, they lower ametal dock plate from the deck; when raising the plate, they stand at the edge of thedeck.\u00a0 Even though Rome said no one had ever fallen from the deck, it is notunreasonable to conclude an employee working under these conditions could step or fall inthe manner Burke described and sustain a serious injury.\u00a0 Access to the hazard hasbeen shown.\u00a0 The citation is affirmed, and the Secretary’s proposed penalty of$420.00 is assessed.[[6]]29 C.F.R. ?1910.23(e)(1)[[7]]Gloria Jones testified she observed a metallanding on the exterior of the sixth floor of the milling building.\u00a0 The landing ledto a metal ladder or stairway going up and down.\u00a0 Clarence Rome told her the landingwas a fire escape for employees on the sixth floor.\u00a0 Jones identified Exhibit R-4 asa photograph of the landing. [[3]]\u00a0 She said the standard was violated because theonly guard rail on the landing was 30\” high.\u00a0 She believed the landing needed tobe well guarded since it was a fire escape.\u00a0 She said the landing was cited as aplatform, but was not a working space. (Tr. 22-25; 59-62).Clarence Rome testified that R-4 was a platformthat serves as a fire escape on the sixth floor of the milling building.\u00a0 He was withJones when she saw it . He said no one works on it, and that in the 14 years he has beenat 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 thelanding does not meet the requirements of the standard. However, the landing was cited asa platform.\u00a0 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.2d 61, 65 (2d Cir. 1978), held that a reasonable interpretation of\”platform,\” within the meaning of 1910.21(a)(4) and 1910.23 (c)(1), was anelevated working space where employees worked on a regular basis. The Commission hasadopted this interpretation.\u00a0 Globe Indus., Inc., 82 OSAHRC 22\/D4, 10 BNA OSHC 1596,1598, 1982 CCH OSHD ? 26,048 (No. 77- 4313, 1982).\u00a0 The record clearly snows thelanding is not a platform within the meaning of 1910.21(a)(4).\u00a0 The citation isvacated.[[9]]29 C.F.R. ? 1910.133(a)(1) [[10]]Gloria Jones testified she saw one of Respondent’semployees, Carl Boling, assisting another employee who was welding metal parts. \u00a0Boling was holding the item being welded and was facing the operation, which producedsparks and rays.\u00a0 The welder wore face protection, but Boling did not. Jones askedBoling why he wasn’t using a face shield,and he replied he didn’t have one. \u00a0 Jonessaid this was hazardous because of the likelihood that welding rays or flying metal chipscould cause serious eye injury.\u00a0 She stated it is not possible to look directly at awelding arc without an eye injury occurring.\u00a0 She did not know if Boling had had aninjury.\u00a0 (Tr. 26-28; 62-67).Jerry Lee Curtis also testified.\u00a0 He is awelder at the facility.\u00a0 He was welding on the day of the inspection, and Bolingstood next to him and assisted.\u00a0 Boling was not wearing protection, but had his headturned away.\u00a0 When Boling assists, he is only there for a second or two and alwaysturns his head away.\u00a0 Curtis uses a full face hood when he welds, and cannot see aperson standing next to him.\u00a0 He said it is not possible to look directly at awelding arc without suffering an eye injury.\u00a0 As far as he knew, Boling had not hadan injury. (Tr. 227-31).Respondent does not dispute Boling was not wearingthe protective equipment the standard requires.\u00a0 It contends, rather, there was noreasonable probability of injury because Boling was turned away from the weldingoperation.\u00a0 I do not agree.Since Curtis admitted his welding hood preventshim from seeing someone next to him, his testimony does not establish Boling looked away.\u00a0 Further, his statement that Boling had not had an injury is inconclusive. \u00a0Boling did not testify and he could have had an injury of which Curtis was notaware.\u00a0 Jones, on the other hand, said Boling was facing the operation.However, even if Boling’s practice was to lookaway, and even if he did so on this occasion, this judge nevertheless finds the practicepresents a reasonable probability of injury.\u00a0 It is not difficult to conceive ofsituations in which even the most attentive employee could be distracted.\u00a0 If Bolingwere to inadvertently look at the operation, the record demonstrates he would mostprobably sustain an injury.\u00a0 It also demonstrates any such injury would likely beserious.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).\u00a0 In that case, an assistant helped with a welding operation.\u00a0 He was one foot from the operation and was instructed to look away.\u00a0 He woresafety glasses, but they provided inadequate protection.\u00a0 In affirming the violation,the Commission held that \”[t]here is no question here that the light radiation fromthe welding operation presented a potential for eye injury within the meaning of section1926.102 (a) (1) \”[[11]]. Id. at 1553.\u00a0\u00a0 Employers can easilyprevent this kind of injury by providing and requiring the use of protective equipment.Respondent did neither. [[12]]\u00a0 The citation is affirmed, and the proposed penalty of$280.00 assessed.29 C.F.R. ?1910.272(i) (1)[[13]]Gloria Jones testified she asked Clarence Rome ifthere was a housekeeping program.\u00a0 He showed her Exhibit R-6, an elevator inspectionand maintenance program, but no housekeeping program.\u00a0 She did not recall seeing R-5or R-7. She said not having a program was hazardous because milling facilities operatemachinery and produce dust, which can be an ignition source.\u00a0 If the dust is notcleaned up regularly, it can cause a fire or explosion and serious injuries or death.Jones said both the mill and silos should have a written program.\u00a0 Although this washer first grain facility inspection, she considered the mill clean. (Tr. 28-32; 48-49;68-71; 73; 75; 112-13).William Burke testified.\u00a0 He described thefacility as a seven-story flour mill and a grain elevator, or storage silos.\u00a0 He saidit looked clean.\u00a0 He said the purpose of housekeeping is to prevent the accumulationof dust in quantities that could create a fire or explosion hazard (Tr. 121-22; 130; 209).Clarence Rome identified R-7 as the Sherman mill’ssanitation program, and R-5 and R-6 as the elevator sanitation program.\u00a0 He believedhe gave Jones R-5 and R-6. He did not give her R-7 since he was not sure what she wasasking for.\u00a0 He said he had it in his office at the time, and that its purpose is toensure product quality. (Tr. 309-12; 344-45).Wayne Bellinger testified.\u00a0 He has beenConAgra’s corporate safety director for 15 years. He provides safety and accidentprevention assistance and training to ConAgra facilities; his training references OSHAstandards and the National Electric Code.\u00a0 He is a frequent lecturer on milling andelevator safety, and he served for over ten years on the steering committee of the GrainIndustry Safety and Health Center, which was funded by an OSHA grant.\u00a0 He has adiploma in chemistry from the University of the State of New York.[[14]] (Tr. 372-78;438).Bellinger participated in forming the mill’shousekeeping program and has evaluated it on his some 24 visits to the facility.\u00a0 Hesaid the elevator and mill are the two areas that needed a program.\u00a0 His opinion wasthat R-5 and R-7 met the standard requirements.\u00a0 He disagreed that R-7 is for qualitycontrol. (Tr. 375; 380-82; 440).The subject standard is a subpart of the grainhandling facilities standard, and applies to grain elevators and flour mills.\u00a0 See1910.272(b).\u00a0 The Sherman facility was therefore required to have a writtenhousekeeping program for its elevator and mill.\u00a0 Respondent asserts the standard doesno apply. Bellinger’s testimony, that the elevator and mill needed a housekeeping program,would seem to contradict this assertion.\u00a0 However, since I conclude Respondent hascomplied with the standard, this argument need not be addressed.The record demonstrates Jones recommended thecitation because when she asked for a housekeeping program, all she received was R-6.[[15]] It is understandable Jones believed there was a violation on the basis of what shereceived.\u00a0 However, it is found R- 5 and R-7 were at the worksite at the time of theinspection, [[16]] and that Rome did not give them to Jones because he did not understandher request. [[17]]\u00a0 It is also found R- 5 and R-7 constitute housekeeping programsfor the elevator and mill, respectively within the meaning of the standard.\u00a0 Myreasons follow.The standard itself does not provide methods ofcompliance.\u00a0 However, the Appendix which follows it offers nonmandatory guidelines tohelp employers comply with the standard.\u00a0 It mentions, inter alia, machine cleaning,vacuuming, sweeping, blowing down and washing down as methods to reduce dustaccumulations.\u00a0 A reading of R-5 and R-7 demonstrates Respondent has incorporatedthese methods, as well as others, into its housekeeping programs.\u00a0 The citation isvacated. [[18]]29 C.F.R. 1910.272(i)(3) [[19]]Gloria Jones testified Clarence Rome told hercompressed air was used to blow dust from ledges, walls and other areas of the millingdepartment at the same time grain processing machinery was operating and metal scoops werebeing used to shovel flour and grain from the concrete floor.\u00a0 She did not see theblowdown operation, but said it was hazardous because the machinery and scoops couldproduce sparks which could cause a fire or explosion during blowdown.\u00a0 (Tr. 33-35;88-92; 110; 113).William Burke testified blowdown should not occurwithout proper housekeeping and maintenance, since it can create airborne dust particlesand cause an explosion.\u00a0 He did not see the operation. He recalled seeing an employeein the elevator using what looked like a regular shovel.\u00a0 He and Jones asked Rome andthe employee if nonferrous scoops were used, and neither knew.\u00a0 He said metal scoopscan produce sparks. (Tr. 131-33; 192).Clarence Rome testified.\u00a0 He describedblowdown as a cleaning process which occurs daily on the third through seventh floors ofthe milling building, in which nine employees work.\u00a0 They use hoses to blow down dustfrom above.\u00a0 During blowdown, about a ten-foot circle of dust gets into the air andthen settles to the ground, where it is swept up.\u00a0 Rome said he can clearly see fromone end to the other of a 75-foot room where a blowdown is taking place.\u00a0 He said theshovels used in the facility are OSHA-approved, and are aluminum, not ferrous.\u00a0 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 themill.\u00a0 He said the facility uses only aluminum scoops, and that they are used toclean up spills.\u00a0 He was present when one was put on a grindstone in 1964; it did notmake any sparks. (Tr. 223-26).Wayne Bellinger testified. He has seen hundreds ofblowdowns at ConAgra facilities and has seen them at the Sherman mill.\u00a0 All ConAgraflour mills blow down every day.\u00a0 The purpose of blowdown, is to bring down dust fromoverhead places not easily reached; there is never much.\u00a0 Blowdown results in a lightdust film in the air, with a three-foot denser region.\u00a0 The denser region would beless at the Sherman facility because it is exceptionally clean.\u00a0 (Tr. 382-84).Bellinger said the dust resulting from blowdown isnot sufficient to cause a fire or explosion.\u00a0 USDA tests show that for this to occur,there has to be a minimum of 50 to 55 grams per cubic meter of dust in the air. \u00a0Bellinger described this as a very dense atmosphere, such that an operator cannot see hishand held out at one meter.\u00a0 (Tr. 384-85; 415).Bellinger identified Exhibit R-17 as a 1988 letterfrom John A. Pendergrass, former Assistant Secretary for OSHA, which gives OSHA’sinterpretation of various subparts of the grain handling facilities standard.\u00a0 Hesaid 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 citationwas issued because of both the operation of grain processing machinery and the use ofmetal scoops during blowdown.\u00a0 The record shows the use of scoops was not hazardous,as the facility uses only aluminum scoops and shovels that do not produce sparks. \u00a0However, the record also shows, and Respondent does not deny, that grain processingmachinery was operated during blowdown.\u00a0 Accordingly, this hazard will be addressed.The subject standard is a subpart of the grainhandling, facilities standard, and it applies to the Sherman facility.\u00a0 Its purposeis to prevent conditions which could cause fires or explosions.\u00a0 See 1910.272(a) and(b).\u00a0 The standard’s background makes it clear that blowdown is permissible onlyafter the implementation of certain precautions.\u00a0 See 52 F.R. 49613. R-17 statesOSHA’s interpretation of 1910.272(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.\u00a0 The Agency’s intent is to assure that such potential ignition sources are controlled during \”blow-down\” operations.\u00a0 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.\u00a0 Under these circumstances, \”blow-down\” operations would be permitted when equipment and machinery are in operation.After careful consideration of the standard andits background, I conclude R-17 is a reasonable interpretation of 1910-272(i)(3).\u00a0 Asnoted above, the alleged violation is the operation of grain processing machinery duringblowdown.\u00a0 Thus, if Respondent can demonstrate the mill had an effective preventivemaintenance program for its grain processing machinery, and that all. of that equipmentcomplied with the electrical provisions of 29 C.F.R. 1910 Subpart S and other appropriateprovisions, then it was not in violation of the standard.BeIIinger’s opinion was that the mill compliedwith R-17.\u00a0 The 1910.272(L)(1)(i) discussion, infra, shows the mill did, in fact,have an effective preventive maintenance program for its equipment. However, the1910.307(b) discussion, infra, establishes that two items of electrical equipment were notin compliance with the provisions of 29 C.F.R. 1910 Subpart S.\u00a0 The item of equipmentrelevant to this discussion 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 ofthe electrical equipment in the areas where blowdown took place met the National Electriccode requirements for Class I, Division 2 locations, and that her testimony is anadmission the mill was in compliance with R-17.\u00a0 I disagree. The record revealsJones’ actual testimony was only in regard to the grain processing equipment on the mill’sfifth, sixth and seventh floors.\u00a0 (Tr. 94).Respondent further contends there was no violationbecause the record does not establish that dust concentrations during blowdown were denseenough to cause a fire or explosion.\u00a0 It points to Bellinger’s opinion and todecisions which support his opinion.\u00a0 Although the cases on which Respondent reliesare final orders of the Commission, they are not Commission decisions and have noprecedential value.\u00a0 Moreover, they predate the subject standard, which, as notedabove, prohibits blowdown unless certain safeguards are implemented. R-17, whichRespondent itself offered, has been found to be a reasonable interpretation of thestandard.\u00a0 Since Respondent was not in compliance with R-17, a violation isestablished.The Secretary proposed a penalty of $420.00 forthis citation item.\u00a0 As noted above, only one piece of equipment has been found inviolation of the standard.\u00a0 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 preventivemaintenance program at the beginning of her two-day inspection.\u00a0 Clarence Rome andRed Doty gave her Exhibits C-1 and R-9, but not until about 30 minutes after theinspection was completed. Jones said C-1, a preventive maintenance schedule, and R-9, arepair list, were not sufficient. They did not identify the machinery or its location,show what was done or have any inspection history or set procedures. She said this washazardous because employees were exposed to grain processing and dust collection equipmentin the facility. If not maintained, bearings, blowers and belt drives can create sparks,which can cause a fire or explosion in a milling facility because of the dust produced.\u00a0 Jones had no knowledge any equipment was not maintained, and saw nothing wrong withany of it. (Tr. 35-42; 94-102; 111-13).William Burke testified that when he and Jones asked for a preventive maintenance, itcould not be produced.\u00a0 After the inspection, Doty left and returned a half hourlater with C-1,which was handwritten and not on ConAgra letterhead.\u00a0 Burke said C-1and R-9 were insufficient, but that C-1 would have met the standard if it had identifiedequipment more specifically and shown what was done. (Tr. 133-36; 197-208).Clarence Rome testified that most maintenance isdone in the milling department, since that is where most equipment is located.\u00a0 Hehas daily and weekly meetings with his six supervisors to discuss and schedule equipmentrepair and replacement.\u00a0 The supervisor, Doty, inspects mill equipment every day;problems are readily visible.\u00a0 Doty and the head miller make a cumulative list ofitems to take care of when the mill is shut down, which occurs every three weeks or whenthere is a problem.\u00a0 The purpose of shutdown is for the six facility mechanics tocheck and replace equipment, like bearings and motors.\u00a0 During shutdown, all ninemilling employees, and the maintenance department, perform maintenance work. ( 315-24).Rome identified R-9 as a shutdown work schedulefor the milling crew, which the head miller formulates and posts in his office so the crewwill know what to do during shutdown.\u00a0 He identified C-1 as a routine preventivemaintenance schedule.\u00a0 He said all items on the list are done on a regular weeklybasis, and that if it were not done, \”we could run into a lot of problems.\”\u00a0 He had seen C-1 before, in Doty’s office, but did not know how long it had beenthere.\u00a0 (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 appearingin the last two lines of the citation is actually part of 1910.272(L)(1)(ii), rather than1910.272(L)91)(i), the subject standard.\u00a0 The citation apparently combines thelanguage of subparts (i) and (ii), but only alleges a violation of (i). However, this doesnot require vacation of the citation, as Respondent urges.While vacation may be proper where an employerreceives insufficient notice of the alleged violation, Respondent was clearly on notice itwas cited because OSHA believed its preventive maintenance program was inadequate. \u00a0Moreover, the fact the citation contains language from subpart (ii) does not prejudiceRespondent.\u00a0 The record does not show a violation of subpart (ii), the issue was notlitigated, and it does not form a basis for this decision.The subject standard applies and required theSherman facility to have a preventive maintenance program for its elevator and mill. See1910.272(b) .\u00a0 The record shows the mill has a program which provides preventivemaintenance for all of its equipment.\u00a0 Rome did not say when the procedures hedescribed went into effect, but indicated there would be problems if maintenance were notdone regularly.\u00a0 This suggests preventive maintenance is a necessary part of milloperations and that the procedures were in effect at the time of the inspection. \u00a0Moreover, C-1 and R-9 were produced at the time of the inspection. [[22]] The Secretary contends C-1 and R-9 do notdemonstrate a preventive maintenance program within the meaning of the standard.\u00a0 Ineffect, she asserts the standard requires programs to be in writing. It this were OSHA’sintent, it would presumably have expressly provided for written programs. [[23]] \u00a0Since the cited standard has no such provision, I can only conclude it does not requirethat programs be in writing.\u00a0 If Respondent had not demonstrated an effectiveprogram, a violation would be found.\u00a0 However, it is found that Respondent has shownthe mill’s program complied with the standard.[[24]]The Secretary does not assert Respondent did nothave a program for its elevator, and presented no testimony on the issue. \u00a0Regardless, I will address this matter briefly.\u00a0 Exhibit R-6 is ConAgra’s elevatorinspection form. [[25]]\u00a0 It indicates weekly inspections are made to ensure safety,maintenance, lubrication and housekeeping requirements are met, and ows an inspection wasmade the week of August 8, 1988.\u00a0 I find R-6 complies with the standard.\u00a0 Thecitation is vacated.29 C.F.R. ? 1910.272(L)(3) [[26]]Gloria Jones testified Respondent had no equipmentinspection certification records. C-1 and R-9 were insufficient because they did not showinspection dates, who performed the inspections and serial numbers of other identifiers ofprocessing and dust collecting equipment and bucket elevators.\u00a0 Jones said failure toinspect and certify was hazardous because equipment could malfunction, produce sparks andcreate a fire or explosion, resulting in serious injuries or death to employees workingaround it.\u00a0 She said serious injury was probable because of the dust produced by thefacility. (Tr. 39-43; 112-13).William Burke testified that certification enablesboth OSHA and the employer to determine if maintenance has taken place, which avertsequipment malfunction.\u00a0 He said the requirements are preventive in nature. (Tr.136-37).Wayne Bellinger testified.\u00a0 He saidcertification is required only for equipment specifically listed in 1910.272(L) (1) (i),and that equipment not listed is exempt.\u00a0 His opinion was that the Sherman facilitymet the certification requirements, which he discussed. (Tr. 394-95; 445).Bellinger said the dryer requirement does notapply, since the facility has no dryers.\u00a0 He discussed Exhibit R-17, which givesOSHA’s interpretation of various subparts of the grain handling facilities standard.[[27]]\u00a0 Based on R-17, Bellinger said the only grain stream processing equipment at thefacility are the hammer mills, which have no mechanical or safety control equipment. Theystart up and shut down with the mill, and he can tell if they are operating correctly bystanding next to them. They are inspected during routine mill inspections, but have noseparate inspection requirement. Bellinger stated the dust collection equipmentrequirement does not apply, since, according to R-17, that equipment does not refer topneumatic systems used for transporting product in mills. He said the bucket elevatorrequirement does apply, since the facility’s elevator has them; R-6 shows what isinspected.\u00a0 (Tr. 389; 395-97).The subject standard applies to grain elevatorsand flour mills and therefore applies to Respondent’s facility.\u00a0 See 1910.272(b).\u00a0 After a careful 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 requirementin regard to dryers applies in this case. However, I find the evidence shows thatcertification records for the other equipment listed in (L) (1) (i) were required, andthat Respondent did not comply with the standard. My reasons follow.The record shows the hammer mills at the Shermanfacility are grain stream processing equipment within the meaning of the standard. \u00a0Bellinger said they operate, but have no mechanical or safety control equipment. \u00a0 Iam unable to conceive of how the hammer mills could operate without mechanicalequipment.\u00a0 That they have such equipment is demonstrated by the fact they areinspected along with other milling equipment.\u00a0 I conclude the hammer mills required acertification record. Since there is no evidence of such a record, a violation isestablished.Bellinger indicated the dust collection equipmentcertification requirement did not apply.\u00a0 I disagree, R-17 shows the standard refersto filter collectors of pneumatic dust collection systems. (Exh. R-17, pg. 2). \u00a0Bellinger did not state the facility did not have such equipment, and R-7, the millsanitation program, demonstrates it did.\u00a0 [[29]] R-7 addresses the checking andinternal cleaning of dust collecting systems, filter collectors and pneumatic collectors.(Exh. R-7, V-A pg. 4-5). I conclude this equipment required a certification record. \u00a0There is no evidence of such a record, and a violation is found.Bellinger stated the facility’s elevators asbucket elevators, and indicated R-6, an elevator inspection form, met the certificationrequirement. [[29] ] I do not agree.\u00a0 R-6 does not show the serial number or otheridentifier of the equipment inspected,as the standard requires.\u00a0 A reading of R-6does not even establish the presence of bucket elevators.\u00a0 As CO Burke indicated, thepurpose of certification is to enable OSHA and the employer to determine if specificequipment has had preventive maintenance.\u00a0 This R-6 does not do.Although the foregoing demonstrates the subjectstandard was violated, the 1910.272 (L)(1)(i) discussion, supra, shows Respondent didperform inspections and preventive maintenance as required.\u00a0 The problem lies inRespondent’s failure to keep adequate records, rather than in a failure to inspect andmaintain equipment.\u00a0 The importance of record keeping has already been noted. \u00a0Nonetheless, since a record keeping violation, in and of itself, cannot cause seriousinjury or death, the citation will be affirmed as nonserious. [[30]]\u00a0 The penaltyoriginally 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 herOSHA inspection report, Exhibit R-1, she classified the Sherman facility as Class II,Division 1 (\”Division 1\”).\u00a0 After consulting with William Burke, she and hedecided it should be Class II, Division 2 (\”Division 2\”).\u00a0 ConAgra was notadvised. (Tr. 44-46; 77-78)William Burke testified that although he wasassigned to because of his experience, it was her inspection and he did not take any notesor make any citation recommendations.\u00a0 Jones prepared R-1 and drafted the citationlanguage.\u00a0 When he learned she was classifying the facility as Division 1, he toldher it should be Division 2.\u00a0 He reviewed R-1 before the hearing and noticed itshowed Division 1. (Tr. 168-80).Burke determined the entire facility was Division2 based on an OSHA directive which provides that grain handling facilities will be soclassified unless test sampling is done to show otherwise.\u00a0 No samples were taken ofthe facility.\u00a0 OSHA uses the National Electric Code(\”NEC\”) definitions toclassify operations.A Division 1 area is one where combustible dust isnormally present.\u00a0 A Division 2 area does not normally have combustible dust unlesssomething goes wrong, when it could go to Division 1. Burke a Division 2 classificationwas consistent with the Sherman facility. (Tr. 137-39; 155; 176-77).Burke testified about what he and Jones observedin the milling building which led to the citation items. Item (a) was an uncoveredjunction box with conductors.\u00a0 Item (b) was a three-phase 480-volt switch box with a220-volt switching system that was not dust-tight.\u00a0 These items were on the secondfloor.\u00a0 Items (c), (i), (k), (m) and (n) were uncovered duplex receptacle outlets.Item (c) was on the second floor, (i) was on the fifth, (k) was on the sixth, and (m) and(n) were on the seventh floor.\u00a0 Items (d), (e), (h), (j), (l) and (o) were uncovered220-volt welding receptacles on the second through seventh floors.\u00a0 (Tr. 137-53;156-61).Item (f) was a 115-volt grain tester on the fourthfloor.\u00a0 Its wires were uncovered, which exposed the motor to dust, and the motor didnot indicate it was explosion-proof or suitable for a particular location.\u00a0 Burkesaid it was plugged in and energized, and that an employee was using it. Item (g) was apedestal fan with no markings to indicate it was suitable for a specific environment.\u00a0 Burke saw its motor windings, which indicated the motor was exposed to dust. \u00a0He said dust accumulations in the motors could cause a fire and serious burninjuries.\u00a0 He saw a fan plugged into a receptacle, and said he and Jones observedemployees on the third through seventh floors. (Tr. 154-56; 164-67; 213).Wayne Bellinger testified.\u00a0 He identifiedExhibits R-19 and R-18 as Articles 500 and 502 of the NEC.\u00a0 He said they applied tothe Sherman facility because they prescribe rules for electric equipment installation inclassified locations.\u00a0 (Tr.407).Bellinger said the mill has no Division 1 areas.\u00a0 He was familiar with the cited areas and gave his opinion about their locationclassifications.\u00a0 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.\u00a0 He said he would almostcharacterize the location of (b) as unclassified, and that if it was Division 2, it wasweak.\u00a0 He stated the welding and duplex receptacles were all in the same location bythe stairway in the center of the mill.\u00a0 He considered these locations unclassified,and said if they were Division 2, it was weak.\u00a0 (Tr. 413-419). It is the Secretary’s burden to demonstrate that the cited equipment was in a locationthat required compliance with the NEC. [[32]].\u00a0 Since she presented no such evidencein regard to item (a),and Bellinger unequivocally testified it was in an unclassifiedarea, item (a), did not violate the subject standard.A different result is reached in regard to items (f) and (g).\u00a0 Bellinger admittedboth of those items were in Division 2 areas.\u00a0 The NEC requires motors in Division 2areas to be enclosed or dust ignition-proof. See Exh. R-18, ? 502-8(b).\u00a0 The recordshows items (f) and (g) did not meet this requirement.Respondent contends there were no violationsbecause it complied with 1910.307(d), which provides, in pertinent part: Equipment in Division 2 locations. \u00a0 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 Bellingertestified the cited equipment was general purpose equipment.\u00a0 (Tr. 215; 411).However, as I read 910.307(d), Respondent has the burden of demonstrating the equipmentdid not constitute a source of ignition under normal operating conditions.\u00a0 It isfound Respondent has not met its burden, for the following reasons.Burke testified the accumulation of dust in theexposed motors could cause a fire. It is clear the blowdown procedure described in the1910.272(i) (3) discussion, supra, creates airborne dust. Blowdown occurs daily on thethird through seventh floors of the hill.\u00a0 It is not unreasonable to conclude thatover a period of time, this could create dust accumulations in the motors in sufficientquantities to cause a fire.\u00a0 Respondent has not shown the condition would not causethe motors to be an ignition source; therefore, it has not met its burden under1910.307(d). The record demonstrates the hazards of the equipment and employee exposure.[[33]]\u00a0 A violation is established for items (f) and (g). [[34]]In regard to the remaining items, the citationcharges 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 ofequipment was \”not approved for hazardous location.\” The language in thecomplaint is identical to that in the citation, and neither gives a locationclassification.\u00a0 However, it is clear the Secretary’s intent at the hearing was toprove a Division 2 location.Respondent’s contention, which it first assertedat the hearing, is that the citation alleges a Division 1 location based on the languagein R-1, the inspection report. Respondent points out it received R-1 during discovery andthat it relied on it in concluding the citation alleged a Division 1 area. It maintains itwas not aware of the Division 2 charge until the hearing, and that the citation should bevacated since the Secretary failed to prove Division 1.\u00a0 (Tr. 174; 361-72;Respondent’s Brief 66- 70).The record establishes that Jones, inexperiencedin grain facility inspections, 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 Respondentto believe it was being cited as a Division I facility.The Secretary at the hearing acknowledged thecitation did not specify a classification, but implied Respondent had notice of theinterrogatory responses referenced that division. (Tr. 365-68).\u00a0 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 the exception on (n), which relates toitem (a) of the citation, the responses state there were no violations because Division 2areas do not need approval.\u00a0 I interpret this as an assertion that the cited areas,with the exception of item (a) , were Division 2 locations, and conclude the responseswere a defense against a Division I charge.Although Respondent does not use the word\”prejudice,\” it is apparent the crux of its argument is that it was prejudicedbecause the citation provided inadequate notice.\u00a0 It is axiomatic that fair noticerequires the Secretary to reasonably apprise an employer of the share in sufficientadvance of the hearing to allow a meaningful opportunity to prepare a defense. \u00a0Secretary of Labor v. Dow Chemical USA, 801 F.2d 926 (7th Cir. 1986).For the areas discussed hereinabove, it is clearthat Respondent could not successfully claim prejudice.\u00a0 However, in regard to theremaining subitems thereof, it appears likely that Respondent was, in fact, prejudiced bya lack of notice.\u00a0 The only evidence presented in defense of the division 2 chargewas Bellinger’s testimony.\u00a0 I found his opinion about item (b) and the receptacleareas ambivalent, in that he was unable to state unequivocally and without qualification,that they were unclassified areas.\u00a0 Obviously, with proper notice, Respondent’scapability to present a more persuasive defense in regard to those items might have beensignificantly strengthened. Therefore, I conclude the evidence requires a vacation of1910.307(b) charges in items (b)-(e) and (h)-(o).Turning to the assessment of an appropriatepenalty, the total penalty proposed for all fifteen items were $490.00.\u00a0 Theforegoing demonstrates two violations of the standard.\u00a0 Accordingly, a penalty of$32.00 is assessed 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 drumthat did not identify its contents.\u00a0 Red Doty, the maintenance supervisor, told herit contained naphtha and that maintenance employees used it to clean metal parts. \u00a0Jones interviewed an employee and learned it was used daily.\u00a0 Employees lay the drumon its side and turn on a faucet so that the naphtha runs into a container; they then takeit where it is needed.\u00a0 (Tr. 242-43; 256-58).Jones identified Exhibit C-2 as the materialsafety data sheet (\”MSDS\”) for naphtha ConAgra management gave her.\u00a0 Sheused the and other source materials to conclude naphtha was hazardous.\u00a0 It iscombustible and can cause respiratory, eye and skin irritation.\u00a0 Jones said theprobability of injury was great since the drum did not warn employees.\u00a0 (Tr. 244-48).James Doty, the facility’s maintenance supervisor,testified naphtha is used at the facility.\u00a0 It is stored in a 55-gallon drum. \u00a0The only label on the drum is the manufacturer’s label, which he though was\”MCXV113.\”\u00a0 (Tr. 222-23).Clarence Rome testified.\u00a0 He uses naphtha, ormineral spirits,at home; he buys it at a local paint store.\u00a0 He uses it to cleanpaint brushes, parts and his hands.\u00a0 It is used for the same purposes at theplant,where they clean a lot of parts.\u00a0 He doesn’t use as much at home as at work.\u00a0 (Tr. 338-39; 356).Wayne Bellinger testified.\u00a0 He identifiedExhibit R-20 as ConAgra’s MSDS for mineral spirits.\u00a0 He described mineral spirits asa broad group of refined hydrocarbons which includes the cited product.\u00a0 He notedthat Gosselin, Smith and Hodge’s Clinical Toxicology of Commercial Products definesmineral spirits in two categories.\u00a0 He said the categories are quite similar.[[36]](Tr. 422-23; 430- 31; Exh. R-21).Bellinger uses mineral spirits as a solvent athome to clean paint brushes, metal parts and his hands.\u00a0 He identified Exhibit R-23as a bottle of mineral spirits he had recently purchased in a Wal-Mart.\u00a0 He said itis basically the same as the cited product and is used for the sane purposes. (Tr.433-35).Bellinger said naphtha is combustible.\u00a0 Heread the warning labels from R-23, and said none of those were on the cited drum. \u00a0Sherman Solvent Company delivered the drum, and also sent C-2. The only label on the drumwas \”CV-1335.\”\u00a0 He tried to get labels from Sherman Solvent after theinspection, but never received them. (Tr. 425; 435-36; 448-50).As a preliminary matter, the undersigned notesRespondent states the citation,as amended, alleges a violation of ? 1901.1200(f)(l).\u00a0 However, the record plainly shows the citation was amended to allege a violation of1910.1200(f)(5)(i), and that Respondent did not contest the amendment. (Tr. 8-12).Turning to the evidence, it is clear the drumcontents were not identified as the standard requires. It is also clear the product ishazardous, and that the standard applies. C-2 is the MSDS for the cited naphtha.\u00a0 Itshows the product is combustible, with a flashpoint of 106 degrees Fahrenheit. Thestandard, at defines \”combustible liquid\” as one having a flashpoint over 100degrees Fahrenheit.Respondent apparently does not deny C-2 is theMSDS which relates to the cited naphtha, or that the product is hazardous.\u00a0 Itcontends, rather, that since naphtha is the same as mineral spirits, a consumer product,it is exempt from the hazard communication standard.\u00a0 While I decline to find thecited naphtha is the \”same exact product\” as R-23, as Respondent urges, I donote the record demonstrates marked similarities in naphtha and mineral spirits products,particularly in regard to their hazards.\u00a0 They are combustible and can cause eye,skin and lung irritation. (Tr. 424; 450; Exh. C-2; R-20; R-21; R-23). Addressing Respondent’s argument, the standarddoes provide an exception at 1910.1200 (b) (6) (vii) for consumer products.\u00a0 However,it specifically 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 Commissionprecedent on exceptions, the employer bears the burden of demonstrating the exceptionapplies.\u00a0 I conclude Respondent has not met its burden.Assuming arguendo that naphtha is a consumerproduct and that its use at the Sherman facility is the same as normal consumer use,Respondent has not shown the duration and frequency of employee exposure is not greaterthan that of consumers.\u00a0 The evidence shows employees dispense naphtha from a55-gallon drum every day to clean parts, and Rome himself said he uses less naphtha athome than at work.\u00a0 Since Respondent has not demonstrated it falls within theexception, a serious volition is established.\u00a0 A penalty of $70.00 isassessed.[[37]]\”29 C.F.R. ? 1910.1200 (f) (5)(ii)[[38]]The evidence shows the facts giving rise to thepreceding citation also resulted in this citation. (Tr. 248-49).\u00a0 The subjectstandard requires containers of hazardous substances to have appropriate hazard warnings.The preceding discussion demonstrates naphtha is hazardous and that the drum had nowarning label.\u00a0 It also demonstrates employee exposure and that the standard’sexception did not apply.\u00a0 A serious violation is established, and a penalty of $70.00is assessed.[[39]]29 C.F.R. ? 1910.37(i) [[40]]Gloria Jones testified she observed two windows,one on the fourth and one on the sixth floor of the milling building, which were 21\”long, 40.5\” wide and 42\” above the floor.\u00a0 The room in which each windowwas located had a door leading out to that floor’s milling area, where a stairway and amanlift were located.\u00a0 There were no other exits on either floor.\u00a0 Clarence Rometold her the windows were only means of egress on those floors for emergency evacuation incase of a fire or explosion.\u00a0 Jones believed the condition was hazardous because thesix employees who worked in the area could sustain cuts, bruises, or smoke inhalationinjuries in trying to exit through an inadequate space in an emergency. (Tr. 250-52;263-67; 283).Clarence Rome testified the cited windows are fireescapes and have been designated as such, but have never been used.\u00a0 He did not tellJones they were the only means of egress.\u00a0 There is also a stairwell and a manliftwhich are located together in the center of each floor.\u00a0 If that area was blockedoff, the fire escape would be the only other exit. (Tr. 328-29; 352-53).Respondent contends the citation was issuedbecause Jones believed the windows were the only means of egress from the fourth and sixthfloors.\u00a0 The record does not support this contention.\u00a0 The citation describesthe windows as \”used as means of egress to reach exterior fire escape platform.\”\u00a0 And, while Jones’ worksheet states the windows are \”the only exit\” (Exh.R-1, pg. 34), her testimony shows she recommended the citation because Rome told her theywere the only exits for emergency evacuation.\u00a0 Rome himself testified the windowswere fire escapes and would be the only means of egress if the stairwell area wasinaccessible.\u00a0 It is clear Respondent intended the windows to serve as means ofegress in case of emergencies.\u00a0 It is also clear they did not meet the requirementsof the cited standard.\u00a0 A nonserious violation is found.\u00a0 No penalty isassessed.[[41]]29 C.F.R. ? 1910.37(q)(l) [[42]]Gloria Jones testified she saw a hatch door withfaded red markings on the seventh floor of the milling building.\u00a0 Red Doty, themaintenance supervisor, told her the hatch was an emergency fire exit.\u00a0 He said ithad been marked, but the paint had worn off.\u00a0 Jones said Exhibit R-10 looked like thekind of door she saw.[[43]]\u00a0 She said the yellow paint markings in R-10 made thehatch visible, but that if it was used as an exit, it needed a visible red exit sign.\u00a0 She said the condition represented a smoke inhalation hazard to employees whoworked In the area. (Tr.252-53; 268-72; 284). Clarence Rome testified R-10 showed the hatch asit looked on the day of the inspection. He said it is an exit and part of the fire escape,and that one of nine employees would use it.\u00a0 He said it is visible on that side ofthe room.\u00a0 (Tr. 330-31; 353).Respondent asserts the hatch is not an exit.Rome’s testimony refutes this assertion.\u00a0\u00a0 Alternatively, Respondent assertsthat since the hatch is visible, its access need not be marked. Respondent, misinterpretsthe standard, which imposes two separate requirements. First, an exit must have a\”readily visible sign.\”\u00a0 Second, access to an exit must be marked by\”readily visible signs\” where the exit is not immediately visible.\u00a0 Sincethe evidence establishes the hatch is readily visible, the second requirement is met.\u00a0 Regardless, Respondent has not met the first requirement, since the hatch was notmarked with a \”readily visible sign.\”\u00a0 A nonserious violation isestablished. No penalty is assessed. [[44]]29 C.F.R. ? 1910.244(a)(l)(ii) [[45]]Gloria Jones testified she saw a portablehydraulic hand jack in the maintenance department which was not marked to show its ratedload capacity. It had no brand name or serial number on it.\u00a0 Red Doty, themaintenance supervisor, called it a jack and told her employees used it to move metalparts.\u00a0 He said it had never had a data plate.\u00a0 Jones said the jack washazardous because it could be overloaded and break down, resulting in bruises or cuts fromfalling parts. (Tr. 253-55: 286; 288).Wayne Bellinger testified he took Exhibit R-11 onNovember 9, 1988.\u00a0 He said it showed the cited equipment, which he called a handpallet truck.\u00a0 He knew this was the cited equipment because Doty told him it was.\u00a0 Doty stenciled the load capacity on it, probably the day of the inspection, becausethe CO said it had to be done.\u00a0 Doty did not know the actual capacity, and guessed itwas 2500 pounds. (Tr. 400-03).Bellinger said R-11 shows the same pallet truckdepicted in Exhibit R-12, and that its actual capacity is 4500 pounds.\u00a0 It is used tolift pallets. It is operated by pushing the arms, which are about 3\” thick, under apallet and pumping then up hydraulically.\u00a0 The arms raise about 4\” off thefloor, which lifts the pallet about 1\” off the floor.\u00a0 (Tr. 403-05).Clarence Rome testified that R-11 shows a pallettruck, and that it is the same as the one shown in R-12. He said it is used to lift andmove parts in maintenance, and that it raises about 6\” off the floor.\u00a0 It isoperated by pumping the handle up and down with a jacking motion.\u00a0 It is operatedmanually and is not powered.\u00a0 (Tr. 331-32: 335; 353-55).Respondent does not dispute the equipment was notmarked to show its rated load capacity at the time of the inspection.\u00a0 It contends,however, the standard does not apply because the equipment is not a jack.\u00a0 TheSecretary’s initial burden, therefore, is to demonstrate the cited standard applies to thecited equipment.\u00a0 Dun-Par Engineered Form Co., 86 OSAHRC 40\/A8, 12 BNA OSHC 1962,1986 CCH OSHD ? 27,651 (No. 82-928, 1986).The Commission recently discussed this issue inPaschen Contractors, Inc., OSAHRC _ , 14 BNA OSHC 1754, 1990 CCH OSHD ? 29,066 (No.84-1285, 1990).\u00a0 In that case, the Commission had to decide whether 1926.550(d) (4),which pertains to cranes, applied to the employer’s lifting device.\u00a0 In finding itdid not, the Commission based its decision on the fact that the characteristics of thelifting device did not fit within the applicable definitions of \”crane.\” \u00a0In this case, therefore, it must be determined whether the cited equipment’scharacteristics fit within 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 ajack is either a device that lifts and lowers a load by the application of a pushingforce, or one that moves a load horizontally by the application of a pushing force.Respondent asserts the cited equipment is not ajack because it does not lift and lower.\u00a0 The record refutes this assertion. Witnesstestimony shows the equipment is used to lift and move parts and palIets, and R-12 showsit can lift and lower loads of up to 4500 pounds. The record also establishes theequipment operates by the application of a pushing force.\u00a0 R- 12 shows a lever with alifting, neutral and lowering position, and states the equipment \”[a]llows pumping atangle most convenient to the operator.\”\u00a0 Rome’s testimony shows operators usethe equipment by pumping the lever up and down with a jacking motion.I conclude the cited equipment is a\”jack\” within the meaning of 1910.241(d)(l) and that the standard applies.\u00a0 Paschen, supra. [[46]]The fact the equipment is hydraulic supports thisconclusion,in that the \”note\” following 1910.241 (d) (1) lists hydraulic jacksas an example.The record shows the jack was not marked to show its load capacity at the time of theinspection and that employees used it.\u00a0 The record also shows the hazards of thecondition.\u00a0 A non serious violation is established.\u00a0 No penalty isassessed.[[47]]29 C.F.R. 1910.1200(g)(1)[[48]]Gloria Jones testified that on the day of herinspection, when she asked for the material safety data sheet (\”MSDS\”) for thenaphtha in the 55-gallon drum in the maintenance shop, it was not available.\u00a0 She andClarence Rome went through ConAgra’s MSDS book, but could not find it. ConAgra gave it toher later, at the closing conference.\u00a0 Jones said this was a hazard because in anemergency, there would be no information available about the substance.\u00a0 (Tr. 242-44;255-56; 277-78: Exh. C-2).Clarence Rome testified that when he and Joneswent through his book, they could not find the MSDS for mineral spirits.\u00a0 Jonesthrough another book on her own, that of Ben Jones, the facility sanitarian, but could notfind it.\u00a0 Rome believed it was in Ben Jones’ manual at the time, and that it waslater found there and a copy sent to the CO.(Tr. 337-38).Wayne Bellinger testified.\u00a0 He identifiedExhibit R-20 as ConAgra’s MSDS for mineral spirits.\u00a0 He said it was at the facilityat the time of the inspection, in each of the three copies of the hazard communicationprogram book the facility has.\u00a0 He indicated Ben Jones sent R-20 to OSHA. (Tr.423-430).The 1910.1200 (f) (5) (i) discussion,supra,demonstrates the cited naphtha was subject to the hazard communication standardrequirements.\u00a0 Respondent was therefore required to have an MSDS for it.\u00a0 The1910.1200 (f) (5) (i) discussion also demonstrates that C-2 is the MSDS for the citedproduct.\u00a0 The record shows it was given to CO Jones until the closing conference.Respondent asserts R-20 is its MSDS for mineralspirits, and that it was available at the time of the inspection.\u00a0 The similaritiesin naphtha and mineral spirits products were noted in the 1910.1200 (f) (5) (i)discussion.\u00a0 However, even assuming arguendo that R-20 was a viable substitute forC-2, the evidence shows it was not available when Jones asked for it Although Bellingersaid there was a copy of R-20 in each of the facility’s three MSDS books, neither Rome norJones could find it in Rome’s book.\u00a0 Jones could not find it in the second book shelooked through, and the third book apparently could not be located.\u00a0 Moreover, eventhough Rome and Bellinger believed R-20 was found later and sent to OSHA, the record showsthe Government never received it [[49]] (Tr. 423-30).While R-20 may have been somewhere in the facilityat the time of the inspection, the evidence shows it was not readily available.\u00a0 C-2was likewise not available.\u00a0 As the Secretary points out, if an MSDS is notavailable, health hazard determinations cannot be made in emergency situations. Anonserious violation is established.\u00a0 No penalty is assessed.[[90]]Penalty DeterminationPenalties have been assessed for variousviolations, both serious and nonserious, supra.\u00a0 In assessing the penalties,due consideration has been given to the size of the employer’s business, the gravity ofthe violations, the good faith of the employer and the history of previous violations.Findings of FactAll findings of fact relevant and necessary to adetermination of the contested issues have been found specially and appear above. \u00a0See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed findings of fact orconclusions of law that are inconsistent with this decision are DENIED.Conclusions of Law1. Respondent, ConAgra Flour Milling Company, isengaged in a business affecting commerce and has employees within the meaning of ? 3(5)of the Act.2. The Commission has jurisdiction of the partiesand of the subject matter of the proceeding.3. Respondent was in serious violation of 29C.F.R. ?? 1910. 23 (c)(1), 1910.133(a)(l), 1910.212(a)(5), 1910.272(i)(3) and1910.204(f)(5)(v).4. Respondent was in serious violation of 29C.F.R. ? 1910.23(e)(l), insofar as it relates to item 2(b) of citation 1.5. Respondent was in serious violation of 29C.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 29C.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 29C.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 29C.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), insofar as 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 29C.F.R. ?? 1910.37 (i), 1910.37(q)(1), 1910.106(d) (4) (v), 1910.244 (a) (1) (ii) and1910.272 (L) (3).16. Respondent was in nonserious violation of 29C.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) and 1910.1200(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. OrderUpon 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’ proposedfindings of fact and conclusions of law are inconsistent with this decision, they areDENIED.2. Item 1 of serious citation 1 is AFFIRMED and apenalty of $420.00 is assessed.3. Item 2(b) of serious citation 1 is AFFIRMED anda penalty of $210.00 is assessed.4. Item 3 of serious citation 1 is AFFIRMED and apenalty of $280.00 is assessed.5. Item 4(a)-(d) of serious citation1 is AFFIRMEDand a penalty of $184.00 is assessed.6. Item 5 of serious citation 1 is AFFIRMED and apenalty of $280.00 is assessed.7. Item 8 of serious citation 1 is AFFIRMED and apenalty of $420.00 is assessed.8. Item 10 of serious citation 1 is amended toallege a nonserious violation, and as so amended, it is AFFIRMED and a penalty of $210.00is assessed.9. Item 11 of serious citation 1 is AFFIRMED and apenalty of $280.00 is assessed.10. Item 12(f) and (g) of serious citation 1 isAFFIRMED and a penalty of $70.00 is assessed.11. Item 13(a)(b) of serious citation 1 isAFFIRMED and a penalty of $70.00 is assessed.12. Item 13(b) (b) of serious citation 1 isAFFIRMED 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 nonseriouscitation 2 are AFFIRMED, and no penalties are assessed.15. Items 4, 6(a) and 7 of nonserious citation 2are VACATED.E. CARTER BOTKINAdministrative Law JudgeFebruary 19, 1991FOOTNOTES: [[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 anddescribes the divisions within that class:\u00a0 Class II locations.\u00a0 Class II locationsare those that are hazardous because of the presence of combustible dust.\u00a0 Class IIlocations include the following:\u00a0\u00a0 (i) Class II, Division 1.\u00a0 A ClassII, Division 1 location is a location: (a) In which combustible dust is or may be insuspension in the air under normal operating conditions, in quantities sufficient toproduce explosive or ignitable mixtures; or (b) where mechanical failure or abnormaloperation of machinery or equipment might cause such explosive or ignitable mixtures to beproduced, and might also provide a source oil ignition through simultaneous failure ofelectric equipment, operation of protection devices, or from other causes, or (c) in whichcombustible dusts of an electrically conductive nature may be present.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NOTE: Thisclassification may include areas of grain handling and processing plants, starch plants,sugar-pulverizing plants, malting plants, hay-grinding plants, coal pulverizing plants,areas where metal dust and powders are produced or processed, and other similar locationswhich contain dust producing machinery and equipment (except where the equipment isdust-tight or vented to the outside). These areas would have combustible dust in the air,under normal operating conditions, in quantities sufficient to produce explosive orignitable mixtures. Combustible dusts which are electrically nonconductive include dustsproduced in the handling and processing of grain and grain products, pulverized sugar andcocoa, dried egg and milk powders, pulverized spices, starch and pastes, potato andwoodflour, oil meat from beans and seed, dried hay, and other organic materials which mayproduce combustible dusts, when processed or handled. Dusts containing magnesium oraluminum are particularly hazardous and the use of extreme caution is necessary to avoidignition and explosion.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (ii) Class II,Division 2. A Class II, Division 2 location is a location in which: (a) combustible dustwill not normally be in suspension in the air in quantities sufficient to produceexplosive or ignitable mixtures, and dust accumulations are normally insufficient tointerfere with the normal operation of electrical equipment or other apparatus; or (b),dust may be in suspension in the air as a result of infrequent malfunctioning of handlingor processing equipment. and dust accumulations resulting therefrom may be ignitable byabnormal operation or failure of electrical equipment or other apparatus.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NOTE: This classificationincludes locations where dangerous concentrations of suspended dust would not be likelybut where dust accumulations might form on or in the vicinity of electric equipment. Theseareas may contain equipment from which appreciable quantities of dust would escape underabnormal operating conditions or be adjacent to a Class II Division 1 location, asdescribed above, into which an explosive or ignitable concentration of dust may be putinto suspension under 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 asaware of the directive as Burke was. Consequently, it appears to us more likely than notthat the individual who made the decision to issue the citation was aware of the directiveto classify flour mills as Class II, Division 2 locations unless air sampling establishedthat the mill in question was a Class II, Division 1 area. We are therefore unwilling toassume, as Conagra does, that the citation was issued because of a mistaken belief as tothe classification of the flour mill.[[4]] That standard provides:? 1910.272 Grain handling facilities.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 i) Housekeeping.\u00a0 The employer shall develop and implement a written housekeeping program thatestablishes the frequency and method(s) determined best to reduce accumulations fugitivegrain dust on ledges, floors. equipment, and other exposed surfaces.\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (3) The use of compressedair to blow dust from ledges. walls, and other areas shall only be permitted when allmachinery that presents an 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.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (i) Headroom.\u00a0 Means of egress shall be so designed and maintained as to provide adequateheadroom, but in no case shall the ceiling height be less than 7 feet 6 inches nor anyprojection from the ceiling be less than 6 feet 8 inches from the floor.[[6]] The Commission must base its decision on the record as awhole rather than on one isolated bit of evidence. See Harrington Constr. 4 BNA 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 thelikelihood that an injury would result from that accident are factors to be considered inevaluating the gravity of a violation for assessing a penalty. Super Excavators Inc., BulzBros. Packing Co., 1 BNA OSHC 1118,1119,1971-73 CCH OSHD ? 15,464, 20,728 (No. 91, 1973).\u00a0[[1]] Respondent withdrew its notice of contest as to items2(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 7 of citation 2.(Tr. 5-8). The effect of said withdrawals is reflected in those sections dealing withpenalty determination, conclusions of law and order, infra.[[2]] These last two items originally alleged violations of1910.1200(f)(4)(i) and 1910.1200(f)(4)(ii). However, the Secretary’s motion to amend thecitation 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. \u00a0 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 facilityinspections, based on his four previous inspections of such facilities and on hiselectrical background, which includes 8500 hours of training in an electricianapprenticeship program and journeyman electrician experience. (Tr. 119-21).[[5]] The record demonstrates that Wayne Bellinger,Respondent’s Corporate 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 regardingJones’ credibility has been noted. Jones testified Rome told her the distance between thecars and the deck was 4-5′, and Rome testified this was not what he said. (Tr. 23;302-03). Based on the record, it appears Rome told Jones the dock plate was 4-5′ long, andshe understood him to mean the distance between the cars and the deck. I observed Jones’demeanor as she testified, and found her to be a sincere and credible witness. That shemisunderstood Rome does not, in my view, impinge upon her integrity, nor does it change mydecision, as the record clearly supports 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 or10, 1983. (Tr. 398-99)[[9]] The undersigned has considered whether a 15(b) amendmentpursuant to the Federal Rules of Civil Procedure would be appropriate, in that the citedstandard also pertains to floors, runways and ramps. However, since the record is devoidof any evidence the landing is a floor, runway or ramp, there is no basis for such anamendment. Moreover, an amendment to allege a violation of 1910.37(g)(2), which requiresan unenclosed exterior way of an exit access to be guarded, is likewise inappropriate. Therecord 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 protectionwhen machines or operations present a potential for eye or face injury, is sufficientlysimilar to the standard at issue to be persuasive on this point. This is so even thoughDaniel affirmed a nonserious violation. There, the employee wore safety glasses which werefound to be inadequate. Here, the employee used no protection. Respondent cites to severalcases dealing with the subject standard; however, as they do not address the potential ofwelding to cause eye injuries, they are unpersuasive.[[12]] Respondent asserts there was eye protection\”conveniently available\” to Boling. However, there is no evidence of this. Therecord shows that when asked why he wasn’t using a face shield, Boling said he didn’t haveone.[[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 ingrain processing. (Tr. 378).[[15]] The testimony of Jones is credited over that of Rome onthis point, as his testimony indicates he only thought he gave her R-5.[[16]] The Secretary does not assert R-5 was not at theworksite, and Rome’s testimony indicates it was. Moreover, although the secretary assertsR-7 was not \”available,\” Rome said it was in his office. I observed Rome’sdemeanor and have no reason to doubt his testimony on this point.[[17]] Rome so testified, and it is plausible this occurred. Ofthe three exhibits, only, R-6 makes any specific reference to \”housekeeping,\”and it is understandable Rome would have produced only R-6 pursuant to Jones’ request.Moreover, R-5 and R-7 are entitled \”sanitation\” programs, and Rome’s testimonyshows he believes R-7’s purpose is to ensure product quality. It is likely he believes thesane of R-5, and that this is the reason he did not produce the documents at the time ofthe inspection.[[18]] In vacating the citation, I am not unmindful of Rome’sstatement that the purpose of R-7 is to ensure product quality. Bellinger disagreed withthis statement. However, even if R-7’s purpose is, in part, quality control, it is also ahousekeeping program within the meaning of the standard. A finding that Respondentcomplied with the standard 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 becausethey are handwritten, not on ConAgra letterhead and were not immediately available.However, Rome identified both exhibits as part of the maintenance program. I have alreadyconsidered Rome’s credibility, supra, and conclude C-1 and R-9 are evidence ofRespondent’s program.[[23]]Compare, for example, 1910. 272 (i) (1), supra, whichspecifically provides for a written housekeeping program.[[24]]This conclusion is consistent with the testimony ofJones. She had no knowledge the equipment was not maintained, and saw no problems with anyof it.[[25]]Rome’s identification of R-6 as part of Respondent’selevator sanitation 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 1988letter from John A. Pendergrass, former Assistant Secretary for OSHA, was noted supra, inthe 1910.272 (i) (3) discussion.[[28]] Rome’s identification of R-7 as the Sherman facility’smill sanitation program is set out supra, in the 1910.272(i)(1) discussion.[[29]] Rome’s identification of R-6 as part of the facility’selevator sanitation program was set out supra, in the 1910.272(i)(1) discussion.[[30]] The record establishes employee exposure. Jones saw atleast one employee 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 for electric equipment andwiring in locations which are classified according to the flammable or combustibleproperties of substances in the location, including dust. It also assigns six hazardouslocation designations, which are defined at 1910.399(a). 1910.307(b) provides, inpertinent part: Electrical installations.\u00a0 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 theNEC contains guidelines for determining the type and design of equipment and installationswhich will meet the standard requirements.[[33]] There is no direct evidence employees used the citedfan. However, Burke’s testimony shows fans were used, which leads the undersigned toconclude the cited fan was also used.[[34]] In finding a violation, Burke’s testimony has obviouslybeen credited. Respondent implies his testimony is somehow suspect because he was not incharge of the inspection and was \”mostly a spectator.\” I disagree. Burke wasassigned to assist Jones due to his electrical background and grain facility inspectionexperience, which was noted at footnote 4. He participated in the actual inspection of thefacility, observed the conditions about which he testified and noted the relevant NECrequirements. 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 allegedtwo violations: however, is noted supra, the Secretary withdrew 13 (a)(a).\u00a0\u00a0 Item 13(b), infra, also originally alleged two violations, but theSecretary withdrew 13(b) (a). The proposed penalty for all four items was $280.00. Thepenalty assessed for the subject violation is one fourth 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 to exits shall bemarked by readily visible signs in all cases where the exit or way to reach it is notimmediately visible to the occupants.[[43]] Wayne Bellinger testified he took R-10 on November9,1988 (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 belegibly and permanently, marked in a prominent location on the jack by casting, stampingor other suitable means.[[46]] Contrary to Respondent’s assertion, Pratico v.Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985), supports this conclusion. There,in holding a device was a \”jack\” within the meaning of 1910.241(d)(l), the courtnoted a \”jack\” was \”[a] machine, usually portable, for lifting weights byforce 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’sinvestigation file. (Tr. 426-27). However, an in camera viewing of the Government’s filedid not reveal R-20. (Tr. 429).[[50]] There was no penalty proposed for this citation item.”