“SECRETARY OF LABOR,Complainant,v.CONTINENTAL ELECTRIC COMPANY,Respondent.OSHRC Docket No. 83-0921 _DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The issue in this case is whether Administrative Law Judge Joe D. Sparksproperly vacated the Secretary’s citation alleging that ContinentalElectric Company (\”Continental\”) committed a nonserious violation of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78, byfailing to provide a hearing conservation program as required by theSecretary’s noise standard, 29 C.F.R. ? 1910.95.[[1\/]] The judgeconcluded that the Secretary had not proven that Continental knew orshould have known of the allegedly violative conditions. We reverse thejudge’s decision and affirm the citation.The relevant facts are not in dispute. Continental uses apneumatically-operated tool know as an \”air file\” to remove excessmaterial from castings. During an inspection of Continental’s facilitythe Secretary’s industrial hygienist measured noise levels as high as120 to 103 decibels while the air file was operating. Since theselevels indicated that the employee who operated the air file might beexposed to noise in excess of the limit permitted by the standard, thehygienist asked whether Continental had taken any noise measurements. Continental’s representative said that the company had performed its ownmonitoring but refused to divulge its noise records. In the absence ofany information as to the employee’s actual noise exposure, thehygienist decided to conduct a full-shift noise sample by placing anoise dosimeter on the air file operator wore the dosimeter for 7 hoursand 17 minutes, during which time he operated the air fileintermittently. The dosimeter indicated that the operator was exposedto slightly more than 92 decibels on an 8-hour time-weighted averagebasis. In response to the hygienist’s inquiry, the operator told thehygienist that the day the air file less than on other days. Continental stipulated that it did not have a hearing conservationprogram when the inspection occurred.[[2\/]]Continental argued, and Judge Sparks held, that there was no showingthat it had actual or constructive knowledge of the noise levels at theair file operator;s work station.[[3\/]] We disagree; we conclude thatContinental in the exercise of reasonable diligence should have beenaware of the amount of noise to which the air file operator wasexposed.[[4\/]]The Secretary may prove knowledge by establishing either that theemployer actually knew of the hazardous conditions or that the employershould have taken measures that would have informed it that suchconditions existed. E.g., R.D. Anderson Construction Co., 12 BNA OSHC1665, 1668-69, 1986-87 CCH OSHD ?27,500, pp. 35,640-41 (No. 81-1469,1986), Union Boiler Co., 83 OSAHRC 11\/C7, 11BNA OSHC 1241, 1244, 1983-84CCH OSHD ?26,453, p. 33, 606 (No. 79-232, 1983) aff’d mem., 732 F.2d151 (4th Cir. 1984). When employees are exposed to a condition that isregulated by the Secretary’s health standards such as noise, reasonablediligence requires the employer to use those test procedures ormeasurements that are available to determine whether the exposureexceeds the limits set forth in the standard. Seaboard Foundry, Inc.,83 OSAHRC 23\/C7, 11 BNA OSHC 1398, 1402, 1983-84 CCH OSHD ?26,522, p.33,775 (No. 77-3964, 1983); General Electric Co., 81 OSAHRC 41\/A2, 9 BNAOSHC 1722, 1728, 1981 CCH OSHD ?25,345, p. 31, 455 (No. 13732, 1981). See Union Boiler, supra (general discussion of employer’s duty toanticipate hazards to which employees may be exposed by inspecting workarea).In addition to an employer’s general obligation to determine theseverity of health hazards in it workplace, the hearing conservationstandard requires that the employer conduct noise monitoring \”wheninformation indicates that any employee’s exposure may equal or exceedan 8-hour time-weighted average of 85 decibels.\” 29 C.F.R.?1910.95(d)(1). The fact that the air file produced noise levels ashigh as 103 decibels[[5\/]] would clearly indicate to a reasonablydiligent employer the possibility that the air file operator’s overallnoise exposure could average more than 85 decibels over an 8-hour workday. Thus, Continental had duty to measure the exposure of the air fileoperator under the terms of the hearing conservation standard itself. See R.D. Anderson, 12 BNA OSHC at 1688, 1986-87 CCH OSHD at p. 35,640(discussion of monitoring requirement of the asbestos standard, 29C.F.R. ?1910.1001(f)(1).The record shows that Continental in fact had taken noise measurementsof it own. Absent the introduction into evidence of the result of itsnoise monitoring, we cannot conclude that Continental had actualknowledge of the 8-hour time-weighted average noise level to which theair file operator was exposed. However, considering that the length oftime the air file was used on the day of inspection was typical of, oreven less than, it use on other days, [[6\/]] we conclude thatContinental’s noise measurements should have put it on notice of a needfor a hearing conservation program for the air file operator. Areasonably diligent employer conducting its own noise measurements wouldhave been aware that the air file operator normally is exposed to anoise level considerably in excess of 85 decibels.Accordingly, the judge’s decision is reversed, and the citation allegingthat Continental failed to comply with 29 C.F.R. ?1910.95(c) isaffirmed. The Secretary proposed no penalty and we assess none. FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED: April 18, 1989————————————————————————SECRETARY OF LABORComplainant,v.CONTINENTAL ELECTRIC COMPANY,Respondent.OSHRC Docket Nos.83-0920 and 83-0921(Consolidated)Appearances:L.K. Cooper, Jr. Esquire, Office of the Solicitor, U.S. Department ofLabor, Birmingham, Alabama, on behalf of complainant.Winston B. McCall, Jr., Esquire, Birmingham, Alabama, on behalf ofrespondent._DECISION AND ORDER_SPARKS, Judge: This proceeding arises under section 10(c) of theOccupational Safety and Health Act of 1970 (the \”Act\”).Compliance officers of OSHA conducted inspections to determinecompliance with the Act. Citation were issued charging violations ofsafety and noise standards. By amendment, the Secretary withdrew safetycitation number one and deleted items 2b, 5c, and 8b of citation numbertwo. Item five of citation number two was modified (Tr. 5-6). Left atissue from docket number 83-0920, citation number two, are item 1, 2a,3, 4, 5a, 5b, 6a(a), 6b(a), 6c(b), 6c(c), and 8a. The citation indocket number 83-921 alleging a failure to have a continuing, effectivehearing conservation program is also at issue. All items remaining fordecision are alleged to be other than serious violations. There are noissues involving purposed penalties or abatement dates (Tr. 48-49). Thecases were consolidated by an order of April 12, 1984.Respondent contends the Secretary failed to carry his burden of provingthe violations. _Clarence Brown d\/b\/a Brown’s Contracting,_ 77 OSAHRC78\/C4, 5 BNA OSHC 1455, 1977-78 CCH OSHD ?21,816 (No. 7690, 1977). Thefindings of fact specifically enumerated and those stated in thefollowing discussion are found to be established by the preponderance ofthe evidence of recordIDOCKET NO. 83-0920CITATION NO. 2Item one alleges a violation of 29 C.F.R. ?1910.22(d)(1) [[1\/]] in thatand overhead area was not marked to show its maxim load limit. Anoverhead area used to store flat cardboard boxes was not so marked. The evidence fails to identify the building official or the approvedloadlimit for the area in question. Although the record establish thatrespondent occupied and used the building, it does not establish thatrespondent is the \”owner of the building or his duly authorized agent.\” _See Cole, Division of Litton Business Systems, Inc. ,_ 79 OSAHRC87\/A2, 7 BNA OSHC 2145, 1979 CCH OSHD ?23,944 (Nos. 77-3432 BS 78-2939,1979). The burden is upon the Secretary to prove that a particularstandard applies to the cited working conditions._Howard BarthelmassPainting Co.,_ 81 OSAHRC 84\/E1, 9 BNA OSHC 2160, 1981 CCH OSHD ? 25,637(No. 78-5450, 1981). The Secretary has failed to carry his burden ofshowing essential elements of the standard so item one must be vacated.Item 2a alleges a violation of 29 C.F.R. ?1910.106(e)(2)(iv)(d) [[2\/]]in that paint regularly used in the painting operations was not drawnthrough a self-closing. The drum was marked flammable. The flashpoint of Chem Glaze paint was daily drawn from a drum and through avalve which was not self-closing. The drum was marked flammable. Theflash point of Chem Glaze paint was 70? F. (Tr. 353-354). Flammableliquid having a flash point below 100? F. The information was availableto respondent from the specification sheets furnished by themanufacturer. A violation of item 2a was established.Item three alleges a violation of 29 C.F.R. ?1910.106(e)(9)(iii) [[3\/]]in that combustible rags were stored in a plastic trash can. Theevidence shows the rags were used to wipe up paint until they became sostiff they could no longer perform that purpose and were storeddiscarded into plastic trash can. A combustible liquid is defined asany liquid having a flash point of the hardened paint. Complainantargues that the rags themselves, made of cloth, were combustiblematerial subject to the restrictions of the standard (Comp. Brief P.2). The compliance officer testified, however, it was only because therags were used to wipe up paint that she considered the materialcombustible (Tr. 68,218). No tests were conducted by the Secretary andrespondent’s tests flame up when a flame was applied. The evidence ofthe record does not establish that the soiled rags were combustiblewaste material. Item three must be vacated.Item four alleges a violation of 29 C.F.R. ?1910.151(c) [[4\/]] in thatemployees were exposed to injurious corrosive materials and suitablefacilities for quick drenching of flushing of the eyes and body were notavailable within the work area for immediate emergency use. Twoemployees regularly used epoxy resin, a corrosive material (Tr.273,282). Respondent did not have special safety showers and eye washfacilities, but bathrooms with sinks and a drinking fountain werelocated at an end of the building. The bathrooms had hot and coldrunning water (Tr. 347). The compliance officer estimated the bathroomswere 25 to 50 feet the work area (Tr. 176). Respondent’s supervisorestimated the distance as 20 feet and stated the employees could reachthe bathrooms within seconds (Tr. 347-349).In _Gibson Discount Center, Store No. 15,_ 78 OSHARC 30\/C1, ^ BNA OSHC1526, 1978 CCH OSHD ?22,669 (No. 14657, 1978), the Review Commissionheld that whether a violation exists depends on consideration of allcircumstances. There it was established that battery acid is nothazardous if washed out within a short period and that an exposedemployee could reach running water within 29 to 30 seconds. The reviewCommission held that the evidence did not establish a violation. In_E.I. DuPont De Nemours & Co., Inc.,_ 82 OSAHRC 4\/A2, 10 BNA OSHC 1320,1982 CCH OSHD ?22, 669 (no. 14657, 1978), the Commission held that aviolation had not been proved where the employer provided a standardfull-body shower but not a specific eye-wash facility. _See_ _also__Bridgeport Brass Co.,_ __ BNA OSHC ___, 1984 CCH OSHD ?27,054 (No.82-899, 1984).In the instant case, the evidence establishes that the employees didwear eye protection (Tr. 178,348). They could reach the bathrooms whererunning water was available within a matter of seconds. The evidencerunning water was available within a matter of seconds. The evidencefails to show that an injury to the eyes or body would result within theelapsed time. Considering all evidence of record, the Secretary hasnot established that the available facilities are not suitable. Itemfour is vacated.Items 5a and 5b allege violations of 29 C.F.R. ?1910.212(a)(1) [[5\/]]under conditions stated as follows (as amended):Machine guarding was not provided to protect operators and otheremployees from hazards created by: ingoing nip points:(a) Cutting and grinding area in Fiberglass Building -nip points wheresanding belt meets pulleys were not guarded. Machine made by StephenBader Company.(b) In Machine Shop in Iron Building – unguarded nip points on each ofthree small floor grinders where the sanding belt and the V-belt meetthe respective pulleys. Grinders made by Stephen Bader Company.The machine described in 5a has three possible nip points formed whenthe sanding belt comes into contact with rollers or pulleys. The nippoint A e(Ex. C-6) was accessible to employees in back of the machine ifthey had occasion to go back there and could possibly be reached fromthe front (Tr. 84, 88). A well was behind the machine (Tr. 187-188). Nip point B was guarded by location from the front but could be reachedfrom the rear (Tr. 88). The machine was operated eight hours daily. The operator stood two or three away from the machine while operating itand did not put his hands in the point of operation (Tr. 86-87, 186,189). Once the machine is in operation, the employee has no reason totouch it (Tr. 35). No injuries had been reported on the machine (Tr.189-190).In _Stacey Manufacturing, Inc.,_ 82 OSAHRC 14\/B1, 10 BNA 1534, 1982 CCH?25,965 (No. 76-1656, 1982), the Review Commission held as follows:In order to establish a violation of 29 C.F.R. ?1910.212(a)(1), theSecretary must first prove the existence of a hazard. _A.E. BurgessLeather Co.,_ 77 OSAHRC 25\/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD ?21,573 (No. 12501, 1977), _aff’d,_Whether a hazard is presented must be determined from all circumstancesincluding the manner in which the machine function and how it isoperated by the employees. _Rockwell International Corp.,_ 80 OSHARC118\/A2, ___ BNA OSHC ___, 1980 CCH OSHD ?24,979 (No. 12470, 1980). _See__also_ _Syntron,_ _Inc.,_ 83 OSAHRC 1\/C1, 11 BNA OSHC 1158, 1984 CCHOSHD ?26,840 (No. 81-1494-S, 1984); _Skydyne, Inc.,_ ___ OSAHRC ___, 11BNA OSHC 1753, 1984 CCH OSHD ?26, 761 (No. 80-5422, 1984).Here the evidence fails to disclose any reason or occasion for anemployee’s hands or other parts of the body to come into contact withone of the nip points. The Secretary has failed to carry his burden ofproof.The machine described described in item 5b also contained unguarded nippoints (Ex. C-8, C-9; Tr. 91, 102). The machine was used less thanweekly by an employee (Tr. 104, 201). If an employee were to get anypart of his body into the nip points; abrasions, cuts, pinches andamputations could result (Tr. 105). The operator stands in front of themachine and feeds material to a sanding belt. At that time, theoperator is about 37 inches from the nip point (Tr. 199). Any injurieson the sanders have been minor (Tr. 354). Again, the evidence does notreveal any occasions for employees to come into contact with the nippoints.Complaint’s alternative pleading to reallege item 1a of serious citationnumber one is denied (Tr. 325).Items 6a(a) and 6a(b) allege violations of 29 C.F.R. ?1910.215(a)(2)[[6\/]] in that two abrasive wheels used on grinding machinery were notprovided with safety guards which covered the conditions observed by thecompliance officer. A hazard of injury is presented to the operator andany other person nearby.Respondent contends that the Packer bench grinder [item 6a(a)] was notin use at the time of the inspection and was later discarded. Thecompliance officer did not see it in use, and a photograph taken thedate of the inspection shows the electric cord and plug wrapped aroundthe machine (Ex. C-10; Tr. 109). Respondent’s representatives on thewalkaround inspection stated the machine was used for short times one ortwo times weekly (Tr. 112). At the hearing, a supervisor testified thatthe machine had not been used in a while; but, if needed, it would havebeen used (Tr. 359, 376-377). The conclusion to be drawn from theevidence is that the grinder was available for use when needed. Thefact that it was not used more frequently does not relieve respondentfrom such exposure which presented the hazard of a wheel coming off orapart.The shop built grinder in item 6a(b) was also used infrequently, butemployee exposure and the condition of the unguarded grinder were clear.Item 6b alleges two violations, (a) and (b), of 29 C.F.R. ?1910.215(a)(4)[[7]] in that work rests on grinding machinery were notadjusted closely to the wheel with a maximum opening of one-eight inch. Such conditions present hazards that fingers or work product may becomecaught between the rest and wheel. The evidence establishes theconditions alleged. Respondent contends the machines are used for onlyshort periods of time and no injuries have resulted from thosemachines. The machines are regularly used and are available for use. The conditions of use present a hazard of injury giving rise to otherthan serious violations. Item 6c alleges three instances of violations of 29 C.F.R. ?1910.215(b)(9)[[8]] as a result of the distances between the abrasivewheels and the peripheral guards. It is not disputed that the distancein each case was greater than the one-quarter inch permitted by theregulation. Respondent argues that there have been no injuries, thatthe machines are not used frequently, employees used protectiveequipment and in one instance the deviation from the standard was notgreat. Such guards are designed to contain fragments should an abrasivewheel break (Tr. 119-120, 130). Other than serious violations describedin 6c(a), and 6c(c) were established.Item seven alleges three areas of the facility where respondent failedto mark electrical dis_connect boxes to indicated their purposesc_ontrary to 29 C.F.R. ? 1910.303(f).[[9]] The evidence clearly showsthat the electrical boxes on the front wall of the iron ship, theassembly areas of the iron building and near the shipping and receivingarea of the fiberglass building were not so marked, nor were theirpurposes evident from their locations. The boxes control circuits tolights, equipment and appliances. Respondent points out that themachines also had ON-OFF switches and plugs which could be pulled out ofthe wall outlets. The alternate means of disconnecting machinery doesnot obviate the necessity for properly marking the electrical disconnectboxes.Item 8a alleges a violation of 29 C.F.R. ? 1910.305(b((1)[[10]] in thatknockout plugs were not present in a temporary outlet near a drillpress. The evidence establishes the facts alleged (ex. C-10). Althoughthe outlet was used only for a short period of time once a week, ahazard was present at that time (Tr. 144-146). Fingers or tools couldcome into contact with live electrical wires through the holes. Aviolation has been established.IIDOCKET NO. 83-921CITATION NO. 1The only citation of docket number 83-921 alleges a violation of thenoise conservation standard at 29 C.F.R. ? 1910.95(c)[[11]] in that theemployer failed to administer a continuing, effective hearingconservation program where employee noise exposure equaled or exceededan eight-hour time-weighted sound level of 85 dBA.The evidence established that the air file operator in the fiberglassdepartment was exposed to noise at 120.5% of the allowable exposure at90 dBA. The findings are sufficient to require a noise conservationprogram as provided in 29 C.F.R. ? 1910.95(c).Respondent stipulated it did not have a continuing, effective hearingconservation program within the meaning of the Act (Tr. 285). Respondent attacks the reliability of the findings. The industrialhygienist, Ms. Etterer, however, demonstrated a through knowledge of herequipment and the procedures necessary to take accurate and fair samplesof the environment. The equipment was properly calibrated before andafter use. The findings were checked and calculations carefully made. She is found to be a competent and reliable expert witness.Two legal problems are presented. In _Forging Industry Association v.Secretary of Labor, _748 F.2d 210 (4th Cir. 1984), 12 BNA OSHC 1041,1984 CCH OSHD ? 27,102 (No. 83-1420, 1984), the Court of Appeals for theFourth Circuit held the hearing conservation amendment to be invalid. It is not certain that the matter has been exhausted so the issue willnot be decided on that basis. The record is deficient of evidence thatthe employer knew or should have known of the conditions, an element ofproof of an other than serious as well as a serious violation. TheCommission has held such evidence necessary because an employer cannotbe expected to have corrected a hazard of which he was unaware.The alleged violation, therefore, must be vacated. _L.M. SesslerExcavating & Wrecking, Inc.,_ ___OSAHRC___,___BNA OSCH___, 1984 CCHOSHD ? 26,943 (No. 79-2168, 1984)._FINDINGS OF FACT_1. Respondent is a corporation with a manufacturing facility locatedat Lovic Road, Birmingham, Alabama, where it is engaged in theproduction of electric pole hardware.2. Pursuant to a warrant, Compliance Officer Virginia Simmons andIndustrial Hygienist Judith Etterer entered respondent’s plant on August17, 1983, to inspect for compliance with the Occupational Safety andHealth Act. Employees had been sent home on that day so the agentsreturned on August 24 to observe operations and interview employees. Noise monitoring was conducted on August 25 (Tr. 14, 21, 94, 236, 246).3. In the air file department, an overhead storage area was notmarked to show the maximum weight load limit (Ex. C-1, C-2; Tr. 26-34, 215).4. An employee worked under the unmarked overhead storage area (Ex.C-2; Tr. 32-33, 150-153, 266).5. The overhead storage area was constructed of three-to-four-inchsteel post supports and heavy lumber flooring (Tr. 155-156, 331, 334).6. The overhead storage area was used to store flat cardboard boxes. The boxes usually exerted a weight of 50 pounds per square foot onstorage floor. The maximum exerted was 75 pounds (Tr. 154, 157, 332).7. The maximum weight the overhead storage area could hold was 200pounds per square foot, but the storage area was not so marked (Tr. 333).8. There were no signs of stress on the storage area (Tr. 158, 334).9. A paint product marked \”Chem Glaze\” was contained in a drum in thepaint area (Ex. C-3; Tr. 38-39, 41-42, 335-556).10. The contents of the drum were flammable (Tr. 38-39, 41, 161,337-338, 369-370).11. Two employees regularly used the paint product Chem Glaze (Tr.41-42, 44-45).12. The employees removed paint from the drum at least once a day(Tr. 46, 165-166).13. The paint was removed from the drum by means of a ball or turnvalve not a self-closing valve (Tr. 47, 160, 215-216, 368-369).14. A non self-closing valve allows vapors to escape the containerpresenting a hazard of fire (Tr. 49-50, 166).15. The chance of a spark igniting the paint was low (Tr. 168).16. A plastic trash can in the Fiberglas Department was used to storesoiled cloth rags (Ex. C-4; Tr. 52, 217).17. The rags were used to wipe up paint. After the paint in the ragsbegan to harden, the rags were no longer suitable for use and werediscarded into the plastic trash can (Tr. 53, 55, 58-60, 340).18. When the top of the trash can was removed, the odor of paint wassmelled; but the paint smell could have come from other areas (Tr. 55,69, 170).19. The paint wiped up by the rags was flammable (Tr. 66\/68, 218).20. The trash can contained only a few rags; it was not as much ashalf-filled (Tr. 168).21. Tests performed by respondent after the inspection showed that,when a flame was applied to a rag hardened with paint, the rag charredand turned red but did not flame up (Tr. 345).22. Respondent’s employees daily placed an epoxy resin on pole linehardware products (Ex. C-5; Tr. 69-71, 78, 269).23. The epoxy resin was obtained from Southeast Resin Company,Shalimar, Florida (Tr. 71, 174-175).24. Employees also used methylene chloride and acetone in the area(Tr. 72, 73, 271).25. The epoxy resin, methylene chloride and acetone are corrosivematerials (Tr. 72, 73-74, 276-275, 282, 302).26. Respondent did not have an eye wash or a quick drenching showerfor the body (Tr. 78, 175).27. Respondent’s building has a water fountain and two bathrooms withsinks for men and women located near the area where corrosive materialswere being used (Tr. 177, 180, 292-293, 346-349).28. Bathroom sinks and drinking water fountains provide hot and coldrunning water (Tr. 347).29. An asindales grinder manufactured by Stephen Bader Companylocated in the cutting and grinding area of the Fiberglass Building hadthree nip points (Ex. C-6; Tr. 80-83).30. A nip point is the point is at which two moving pieces cometogether (Tr. 81).31. A sanding belt made of reinforced paper created nip points as itrotated around rollers or pulleys of the grinder (Tr. 182, 350).32. Two of the three nip points were partially but not completelyguarded by location (Tr. 82, 83, 86, 88, 186-189).33. Two of the nip points could be reached from the rear, and onefrom the front (tr. 83, 88).34. Employees of respondent operated the Asindales grinder eighthours a day grinding the ends of fiberglass rods (Tr. 87-88, 350).35. The sanding belt breaks an average of twice a day (Tr. 350).36. Respondent performed a test shortly after the inspection byplacing an object five-eights inch in diameter in the nip point betweenthe wheel and the sanding belt at which time the belt broke. The testhas no validity in establishing the potential damage to a human fingeras a fiberglass rod is of much harder material (Tr. 352, 371-372).37. An operator stands three or four feet away and feeds rods intothe machine but has no reason to touch the machine while it is operating(Tr. 350, 353).38. The only occasion for a person to be behind the machine is tochange out a broken belt (Tr. 353).39. Three grinders in the machine shop manufactured by Stephen BaderCompany had exposed nip points created by a sanding belt and a V-belt oneach moving over rollers or pulleys (C-8, C-9; Tr. 91, 101, 190).40. The four nip points were not guarded (Tr. 101-102, 200-202).41. The grinder in the machine area was available for use and wasused less than weekly (Tr. 105, 220).42. If a person got any part of his body into nip points, the resultcould be abrasions, cuts, pinches and amputations (Tr. 105, 202).43. The nip points of the grinders could be guarded (Ex. C-9; Tr. 106).44. If the sanding belts broke, the machine stopped (Tr. 194, 356).45. Respondent performed a test after the inspection during which aglove was placed between the belt and pulley at which time the beltbroke, but it is not known how far the glove entered into the nip pointbefore the belt was broken (Tr. 356, 374-376).46. A Packard bench grinder did not have a guard over the spindle andnut and flange projection (Ex. C-10; Tr. 110).47. At the time of the inspection, the grinder was available for useand was used one or two times weekly (Tr. 111-112, 204).48. The hazards presented by the unguarded machine include the wheelcoming off or shattering thereby striking someone (Tr. 113-114).49. The photograph of the machine shows the electrical plug wrappedaround the machine (Ex. C-10).50. After the inspection, the Packard bench grinder was removed fromoperation (Tr. 203-204, 357-359).51. The grinder was used to grind a level edge on fiberglass rods(Tr. 222).52. A grinder in the machine shop of the Iron Building had anunguarded flange projection and spindle end nut (Ex. C-11; Tr. 115-116).53. The grinder described above was available for use and was usedone or two times weekly (Tr. 117, 205, 362).54. Respondent’s representatives Randy Hall and Mr. Argo agreed thegrinder presented a potentially hazardous condition and requestedsufficient time to have a guard made (Tr. 117).55. On the date of the inspection, the work rests of a dual-wheelDayton bench grinder located in the machine shop in the FiberglassBuilding were improperly adjusted. The left work rest wasthree-quarters inch from the wheel. The right work rest was one-quarterinch from the wheel (Ex. C-12; Tr. 126, 365).56. The grinder was used one to two times weekly (Tr. 127).57. There were no tongue guards on either wheel of the Dayton benchgrinder at the time of the inspection, but such guards were added priorto a discovery inspection in August 1984 (Ex. C-12; tr. 130, 207-208).58. The improperly adjusted work rests present a hazard that work maybecome jammed against the wheel causing it to break or that fingers maybe pulled against the wheel (Tr. 208).59. A Dayton bench grinder in the machine shop of the Iron Buildinghad an improperly adjusted work rest. The work rest was three-quartersinch from the wheel (Ex. C-13; Tr. 133).60. The grinder was used regularly (Tr. 134-135).61. The left tongue guard on the Dayton bench grinder in the machineshop of the Iron Building was three-quarters inch from the wheel (Tr.135-136).62. The same dual-wheel shop-built grinder referred to in item 6a(b)also lacked a tongue guard (Ex. C-11; Tr. 119, 121).63. A tongue guard is an adjustable protrusion from the top of theperipheral guard designed to protect an operator should the wheel break(Ex. C-11; Tr. 119-120).64. The distance between the abrasive wheel and the edge of theperipheral guard where the tongue guard should have been attached wasthree inches (Tr. 121).65. During the inspection, electrical disconnect boxes on the frontwall of the Iron Shop were not marked to show the electrical systemswhich they controlled (Tr. 136-137, 308).66. The handles of the disconnect boxes were in the ON position andthe electrical service was in use (Tr. 136, 309).67. The location or arrangement of the disconnect boxes did notreveal the equipment served by the electrical boxes (Tr. 137).68. Respondent’s representatives acknowledged that the electricalboxes controlled the electric service, but they were uncertain exactlywhich equipment was served from each box (Tr. 136-137, 139, 213, 308).69. Individual machines could be disconnected by unplugging it fromthe wall outlet or by means of the ON-OFF switch (Tr. 211-212).70. Electrical disconnect boxes in the assembly area of the IronBuilding were in service but were not marked to show their purposes (Tr.139-140, 313).71. The electric disconnect boxes were not so located or arranged sothat their purpose was evident (Tr. 140, 313).72. The disconnect boxes in the Assembly Area control the main sourceof electrical service and heaters, fans and machines (Tr. 311-315).73. Electrical disconnect boxes in the shipping and receiving areawere in operation but were not marked to show what they controlled (Ex.C-14; Tr. 142-144, 314).74. The boxes were not located or arranged so that their purposeswere evident (Tr. 143).75. The electrical boxes controlled circuits to drill presses, lightsand oven (Tr. 143).76. Knockout plugs were missing from a temporary electrical outlet inthe Fiberglass Building (Ex. C-10; Tr. 144-146).77. A knockout plug is a piece of metal which can be pushed out toallow conduit into the box (Tr. 146).78. The temporary outlet was energized and available for use. Theoutlet was used for five minutes or less one day a week (Tr. 145-146,213-214).79. The absence of knockout plugs would permit fingers or tools tocome into contact with live electrical wires (Tr. 146).80. Judith Shell Etterer is an industrial hygienist who has beenemployed by OSHA for nine years. She holds a B.S. degree in chemistrywith a minor in biology. She has completed all course work for a Masterof Science degree in industrial hygiene and was writing her thesis. Inaddition, she had completed approximately 30 training courses, primarilyin industrial hygiene and occupational health (Tr. 230-232, 236).81. On August 24, Ms. Etterer took screening samples for noise levelswith a sound level meter (Tr. 237-238, 242).82. On August 25, full-shift monitoring was conducted to determinenoise exposure of the air file operator, Mr. Edward Self (Ex. C-15; Tr.246-247, 286-287).83. The air file operator used a pneumatic tool called an air file toknock burrs off of castings. The operation of the tool was intermittent(Ex. C-16; Tr. 261, 263).84. The noise was monitored by a dosimeter which was placed on theemployee (Tr. 248, 297-289).85. Prior to and after its use, the dosimeter was calibrated (Tr.249-250, 260-261).86. The dosimeter remained on the air file operator for a totalperiod of 437 minutes beginning at 5:20 a.m. (Tr. 252, 262).87. The noise readings were made in four segments; 5:20 a.m. to 7:30a.m., 7:30 a.m. to 10:00 a.m., 10:42 a.m. to 12:05 p.m., and 12:06 p.m.to 1:20 p.m. (Tr. 252-253, 258-260).88. The dosimeter is programmed to show the percentage of noise andemployee has been exposed to based upon 90 decibels for an eight-hourtime-weighted average (Tr. 254, 256-257).89. By adding the readings for each segment, the total exposure wasobtained (Tr. 258-260).90. The air file operator was exposed to a noise level of 92.02decibels on the A-scale (Tr. 255, 291).91. The noise levels were typical or normal during the day thesampling was performed (Tr. 262).92. On August 17, 24 and 25, 1983, the dates of the inspection,respondent did not have a continuing, effective hearing conservationprogram within the meaning of ? 1910.95(c) (Tr. 285-286)._CONCLUSIONS OF LAW_1. Respondent is subject to the Act and this proceeding.2. Respondent violated the following items under conditionsconstituting other than serious violations:Docket No. 83-920Citation No. 2Item 2aItems 6a, 6b and 6cItem 7Item 8a3. Respondent’s motions to dismiss are denied as to the foregoingviolations.4. Respondent did not violate the following items:Docket No. 83-920Citation No. 1Items 1a and 1bCitation No. 2Item 1Item 2bItem 3Item 4Items 5a, 5b and 5cItem 8bDocket No. 83-921Citation No. 1_ORDER_It is ORDERED:The items listed in paragraph two are affirmed; those listed inparagraph four are vacated.Dated this 16th day of April, 1985. JOE D. SPARKSJudge————————————————————————CONTINENTAL ELECTRIC COMPANY,APPLICANT,v.SECRETARY OF LABOR,RESPONDENT.OSHRC Docket Nos.83-0920 and 83-0921(Consolidated)APPEARANCES:L.K. Cooper, JR., Esquire, Office of the Solicitor, U. S. Department ofLabor, Birmingham, Alabama, on behalf of respondent.Winston B. McCall, Jr., Esquire, Birmingham, Alabama, on behalf ofappellant._DECISION AND ORDER_SPARKS, Judge: This proceeding was instituted by Continental ElectricCompany for legal fees and expenses under the Equal Access to JusticeAct, as amended.One of the two captioned cases alleged safety issues and the otherinvolved alleged violations of the hearing conservation standard. Thecases were consolidated under Docket No. 83-0920.Applicant prevailed on several safety items, including some which werewithdrawn by the Secretary prior to decision, but lost on the hearingconservation issue and several safety items.This case was brought by applicant to recover reasonable attorney feesand expenses.Pertinent portions of 28 U.S.C.A. ? 2412 provide as follows: (d) (1) (A) except as otherwise specifically provided by statute, acourt shall award to a prevailing party other than the United Statesfees and other expenses,…(a), incurred by that party…includingproceedings for judicial review of agency action, brought by or againstthe United States in any court having jurisdiction of that action,unless the court finds that the position of the United States wassubstantially justified or that special circumstances make an award unjust.*** (B) A party seeking an award of fees and other expenses shall,within thirty days of final judgment in the action, submit to the courtan application for fees and other expenses which shows that the party isa prevailing party and is eligible to receive an award under thissubsection, and the amount sought, including an itemized statement fromany attorney or expert witness representing or appearing in behalf ofthe party stating the actual time expended and the rate at which feesand other expenses are computed. The party shall also allege that theposition of the United States was not substantially justified. Whetheror not the position of the United States was substantially justifiedshall be determined on the basis of the record (including the recordwith respect to the action or failure to act by the agency upon whichthe civil action is based) which is made in the civil action for whichfees and other expenses are sought. (C) The court, in its discretion, may reduce the amount to beawarded pursuant to this subsection, or deny an award, to the extentthat the prevailing party during the course of the proceedings engagedin conduct which unduly and unreasonably protracted the final resolutionof the matter in controversy. (2) For the purposes of this subsection– (A) \”fees and other expenses\” includes the reasonable expenses ofexpert witnesses, the reasonable cost of any study, analysis,engineering report, test, or project which is found by the court to benecessary for the preparation of the party’s case, and reasonableattorney fees (The amount of fees awarded under this subsection shall bebased upon prevailing market rates for the kind and quality of theservices furnished, except that (i) no expert witness shall becompensated at a rate in excess of the highest rate of compensation forexpert witnesses paid by the United States; and (ii) attorney fees shallnot be awarded in excess of $75 per hour unless the court determinesthat an increase in the cost of living or a special factor, such as thelimited availability of qualified attorneys for the proceedingsinvolved, justifies a higher fee.); (B) \”party\” means (i) an individual whose net worth did not exceed$2,000,000 at the time the civil action was filed, or (ii) any owner ofan unincorporated business, or any partnership, corporation,association, unit of local government, or organization, the net worth ofwhich did not exceed $7,000,000 at the time the civil action was filed,and which had not more than 500 employees at the time the civil actionwas filed;….The Secretary of Labor does not dispute that applicant is a qualifiedparty and was the prevailing party on several items but contends it didnot prevail on all items for which expenses are claimed.The Secretary does also contend, however, that its position wassubstantially justified, that applicant unduly and unreasonablyprotracted the proceedings, that applicant failed to prove the amount ofattorney’s fees and expenses, and special circumstances make an awardunjust in this case.I_QUALIFIED PARTY_Continental submitted a financial statement showing net worth of lessthan five million dollars. Applicant also asserts it had fewer than 100employees.II_THE ITEMS AT ISSUE AND THE PREVAILING PARTY_Applicant manufactured components for the electric transmission industryat its facility on Lovic Road, Birmingham, Alabama. Pursuant to aninspection warrant, Compliance Officer Virginia Simmons and IndustrialHygienist Judith Etterer went to applicant’s plant to conduct aninspection on August 17, 1983. The employees were sent home on thatday, but the inspection did take place on August 24. On September 9,1983, two citations alleging safety violations were issued as follows:Serious Citation No. 1Item 1a, 29 C.F.R. ? 1910.219(d) (i) (a) In Machine Shop in Iron Building-unguarded pulleys on each ofthree small floor grinders made by Stephen Bader Company.Item 1b, 29 C.F.R. ? 1910.219(e)(3)(i) (a) In the Machine Sop _(sic)_ in the Iron Building – unguarded ‘v’belt on each of three small floor grinders made by Stephen Bader Company.Proposed penalty $210.Other Citation No. 2Item 1, 29 C.F.R. ? 1610.22(d) (1) (a) In air File Department in Fiberglass Building – overhead storagearea not marked to indicate maximum weight load limit.Item 2a, 29 C.F.R. ? 1910.106(e) (2) (iv) (d) (a) In the paint Department in the Fiberglass Building – paint wasnot drawn through a self-closing valve.Item 2b, 29 C.F.R. ? 1910.106(e)(6)(i) (a) At the Paint Department in the Fiberglass Building – container offlammable \”Chemglaze\” paint was not grounded.Item 3, 29 C.F.R. ? 1910.106(e)(9)(i) (a) Paint area in the Fiberglass Department-rags used to clean upflammable paints were stored in a covered plastic container.Item 4, 29 C.F.R. ? 1910.151(c)Facilities for quick drenching or flushing of the eyes and body were notprovided for immediate emergency use in the fiberglass assembly area.Item 5, 29 C.F.R. ? 1910.212(a)(1)Machine guarding was not provided to protect operator(s) and otheremployees from hazard(s) created by: ingoing nip points: (a) Cutting and grinding area in Fiberglass Building – nip pointswhere sanding belt meets pulleys were not guarded. Machine made byStephen Bader Company. (b) In Machine Shop in Iron Building-unguarded nip points on each ofthree small floor grinders where sanding belt meets pulleys. Grindersmade by Stephen Bader Company. (c) In Assembly Area of Iron Building-unguarded nip points onvertical table grinder where sanding belt meets pulleys.Item 6a, 29 C.F.R. ? 1910.215(a)(2)Abrasive wheel(s) used on grinding machinery were not provided withsafety guard(s) which covered the spindle end, nut, flange projections: (a) Grinding area in Fiberglass Building-Packard Bench Grinder didnot have a guard over the spindle end, nut projection. (b) At Machine Shop in Iron Building – shop built dual wheel grinderdid not have guards over the spindle end, nut, flange projections.Item 6b, 29 C.F.R. ? 1910.215(a) (4)Work rest(s) on grinding machinery were not adjusted closely to thewheel with a maximum opening of one-eighth inch: (a) At corner of Machine Shop in Fiberglass Building – work rests onDayton Beach Grinder were in excess of 1\/8 inch from the wheel. (b) In Machine Shop in Iron Building – work rest on Dayton BenchGrinder was 3\/4 inches from grinding wheel.Item 6c, 29 C.F.R. ? 1910.215(b) (9)The distance between the abrasive wheel periphery(s) and the adjustabletongue or the end of the safety guard peripheral member at the topexceeded one-fourth inch: (a) In Machine Shop in Iron Building – tongue guard on left wheel ofDayton Bench Grinder was 3\/4\” from wheel. (b) At corner of Machine Shop in Fiberglass Building – left sidegrinding wheel on Dayton Bench Grinder was 1 1\/2\” from outer peripheralguard. Right side wheel was 1\/2\” from outer peripheral guard. (c) In Machine Shop in Iron Building – on dual wheel, shop builtgrinder, both wheels were 3\” from outer peripheral guard.Item 7, 29 C.F.R. ? 1910.303(f) (a) On front wall of Iron Shop – electrical disconnect boxes werenot marked to indicate purpose. (b) Assembly Area of Iron Building-electrical disconnect boxes werenot marked to indicate purpose. (c) By shipping and receiving in Fiberglass Building – electricaldisconnect boxes were not marked to indicate purpose.Item 8a, 29 C.F.R. ? 1910.305(b)(1) (a) At Grinding Area in Fiberglass Building-knockout plugs weremissing from the temporary outlet hanging on wall by drill presses.Item 8b, 29 C.F.R. ? 1910.305(g)(l)(i) (a) In Grinding area of Fiberglass Building-flexible cord hanging onnails on wall was used to supply power for drill presses.The total penalty proposed for both citations was $210.Prior to the trial on the merits, the Secretary withdrew item 1b of theserious citation and items 2b, 5c and 8b of the other than seriouscitation. After trial and decision, the applicant prevailed on thefollowing items:Serious Citation No. 1Item 1aOther Than Serious Citation No. 2Items 1, 2b, 3, 4, 5a, 5b, 5c, 8bThe Secretary prevailed on the following items:Serious Citation No. 1NoneOther Than Serious Citation No. 2Items 2a, 6a, 6b, 6c, 7, 8aNone of the proposed $210 penalty was assessed._III__WAS THE POSITION OF THE SECRETARY SUBSTANTIALLY JUSTIFIED?_The Secretary offered evidence to support its position regarding eachalleged violation including those on which it did not prevail. Thefactual evidence and legal precedence are discussed in detail in theDecision and Order of the undersigned dated April 16, 1985. A total of86 findings of fact were made. Of course, the position of the Secretarywas more firmly supported and more reasonable regarding some items thanothers.Although the government is certainly not responsible for fees andexpenses as to every issue upon which it does not prevail, it seemsclear that the 1985 amendments to the EAJA intended to increase thegovernment’s burden of showing it was substantially justified in itsposition. A review of the findings, decision and briefs of the partiesestablishes in this case that the Secretary has not shown it wassubstantially justified within the meaning of the EAJA, regarding any ofthe issues upon which the applicant prevailed. _See Sierra Club v.Secretary of Army, _280 F2.d 513 (1st Cir. 1987).The Secretary makes essentially the same arguments to establish that herpositions were substantially justified as she did originally toestablish the existence of violations. While the Secretary’s case ineach instance was not frivolous nor arbitrary or capricious, it hadweaknesses of fact or law, set forth in the decision, which renders itnot substantially justified for the purposes of the EAJA as amended.IV_AMOUNT OF AWARD _Applicant submitted a claim for $9,200 attorney fees and $676 expenseswith its brief received March 17, 1986. The claim for attorney feeswere subsequently reduced to $7,467, but an additional claim for fees of$3,934 was made for time spent preparing its claim under the EAJA.Applicant’s attorney did not maintain logs precisely describing the workperformed on the cases so there is no way to state with any degree ofcertainty how much time was spent on the various items upon which itprevailed and how much time was spent on items which were affirmed. Theattorney originally claimed a total of 206.5 hours defending all itemswhich he agreed should be reduced to 184.5 hours. He arbitrarilyassessed 50% of the total hours as work on the serious citation on whichapplicant prevailed and claimed $70 per hour for 92.25 hours or a totalof $5,166. For the other than serious citation, he claimed $807 (11.53hours each) for each time on which applicant prevailed for a total of$4,034. It is certain that the time spend on items upon which applicantprevailed is, at best, only a rough guess. The total expenses of $965were allocated according to the same formula for a total of $676. The Act provides only for the payment of \”reasonable\” attorney fees. The time claimed by applicant’s attorney is excessive considering therelatively simple factual and legal issues involved in these cases. Theextensive discovery, briefs and other paperwork generated by this casesuggest that applicant’s attorney likely did spend all the hours claimedworking on the case. But it was unreasonable for any attorney to spendso much time preparing, trying and briefing the issues involved here. That is particularly true of Serious Citation No. 1 which involved onlytwo simple items, one of which was withdrawn prior to hearing. The onlyalleged serious violation tried charged that applicant had \”…unguarded pulleys on each of three small floor grinders made by StephenBader Company.\” Applicant is entitled to fees for time spent on theitem which was withdrawn (an unguarded v-belt). For work on thatcitation, applicant claims to have worked 92.55 hours for a fee of$5,166. The claim is unreasonable in time and money. The factual andlegal contentions were very simple and the proposed penalty was only$210. Only \”reasonable\” fees can be recovered the Act. _William B.Hopke Co.,_ 12 BNA OSHC 2159 (No. 81-206, 1986). Even considering thatapplicant’s attorney is not experienced in the Occupational Safety andHealth Act, no more than 20 hours would be considered reasonable forwork on the serious citation.Applicant was the prevailing party on four items and subparts to twoitems of the other than serious citation. Applicant’s attorney claimsfewer hours for his work on the other than serious citation than on theserious one although more items were involved. As more other thanserious items were cited, it is reasonable that more time was requiredto defend against the charges, therefore, 30 hours is found toconstitute a reasonable expenditure of time for such items. It isconcluded that 50 hours is a reasonable time for defending against theserious and other than serious citations. That time multiplied by thestipulated prevailing fee of $70 per hour yields a reasonable fee of$3,500. A further reasonable attorney’s fee of $700 is justified for 10hours work preparing applicant’s EAJA claim. Its claim for $3,934 forsuch is patently unreasonable. Expenses of $676 appear supported.V_SPECIAL CIRCUMSTANCES_The Secretary contends that \”special circumstances\” make any awardunjustified. The Secretary points out that abusive language andsubterfuge were used to impede the investigation and intimidate thecompliance officers. Applicant’s officials certainly did not display acooperative attitude or good manners, and some of their actions mighthave been viewed as threatening the female inspectors. But, there is noevidence of any illegal actions or that applicant prevented OSHA fromconducting a complete inspection of its facilities. Applicant’sactions do not rise to the level which would bar a recovery of attorneyfees and expenses.]VI_DID APPLICANT UNDULY AND UNREASONABLY PROTRACT THE PROCEEDINGS?_Without question, the amount of discovery, motions and trial time wasfar above average for a case involving such relatively simple issues andso small ($210) proposed penalty. The Secretary implies that applicantintentionally prolonged the case to tie-up the Secretary’s legalresources. Without doubt, the case was exhaustively contested, butthere is no evidence that it was done with such evil motive. It may bethat much of the excessive time was due to respondent’s attorney’sunfamiliarity with proceedings under OSHA. In any event, the timeclaimed by applicant’s attorney was beyond the bounds of reasonablenessand is so treated when determining the amount of reasonable attorneyfees for which reimbursement is due.The above constitute findings of fact._CONCLUSIONS OF LAW_1. Applicant is a qualified party eligible for benefits within themeaning of the EAJA.2. Applicant was the prevailing party on both items of the seriouscitation and four items and two partial items of the other than seriouscitations.3. The position of the Secretary was not substantially justified.4. Applicant had reasonable attorney’s fees of $4,200 and expenses of$676 defending against the charges on which it was the prevailing party._ORDER_Applicant is entitled to reasonable attorney’s fees of $4,200 andexpenses of $676.Dated this 14th day of September, 1989. JOE D. SPARKSJudge ————————————————————————FOOTNOTES:[[1\/]] The standard provided in pertinent part as follows:?1910.95 Occupational noise exposure.(a) Protection against the effects of noise exposure shall be providedwhen the sound levels exceed those shown in Table G-16…Table G-16— Permissible noise ExposuresThe table referred to above is not available in this format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY 202-606-5386; FAX:202-606-5050; email: [email protected] (c) Hearing conservation program. (1) The employer shall administer acontinuing, effective hearing conservation program, as described inparagraphs (c) through (o) of this section, whenever employee noiseexposures equal or exceed an 8-hour time-weighted average sound level(TWA) of 85 decibels…..[[2\/]] A hearing conservation program, as prescribed in ?1910.95(c)-(o),consists of a number of measures to prevent or reduce the incidence ofhearing loss. Among other requirements, the employer must administeraudiometric testing to employees exposed to an 8-hour time-weightedaverage of 85 or more decibels. Hearing protection devices such asearmuffs or plug \\s must be made available to these employees, and theemployer must insure that employees who show a certain degree of hearingloss wear these hearing protectors. There are additional requirementsfor training employees in the use and care of hearing protectors, andsome information and recordkeeping provisions.[[3\/]] Judge Sparks found that the air file operator was exposed tovarying levels of noise that were equivalent to a constant noise levelof 92.02 decibels, that these levels were typical or normal for the airfile operation, and that Continental did not have a hearing conservationprogram when inspection took places that is , the judge found that thecondition in Continental plant fail to comply with the terms of thehearing conservation standard. In vacating the citation for failure ofthe Secretary to prove knowledge, the judge stated that the record didnot show the Continental knew or should have known of the \”conditions\”at issue. Although the judge decision is not specific, the partiesagree that their knowledge dispute is limited to the question of whetherContinental knew or could have known of the existence of excessivenoise exposure.[[4\/]] Review was also directed on whether employer knowledge is aproper element of a nonserious violation of the Act and, if so, whetherit is proper to place on the Secretary the burden of proving knowledge.We decline to disturb the well-settled and longstanding precedentholding that knowledge of conditions that fail to comply with a standardis a necessary prerequisite to finding an employer in violation of theAct, regardless of the characterization of the violation of the Act,regardless of the characterization of the violation, and that theSecretary has the burden of proving all elements of a violation,including knowledge. E.g., Horne Plumbing & Heating Co. v. OSHRC, 528F.2d 564, 570-71 (5th Cir. 1976) (requiring Secretary to proveknowledge, even of nonserious violations, so as to avoid imposing strictliability on employers); R.D. Anderson Constr. Co., 12 BNA OSHC 1665,1668, 1986-87 CCH OSHD ? 27,500, p. 35,640 (No. 81-1469, 1986);Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCHOSHD ? 25,358 (No. 16147, 1981) (lead and concurring opinions). SeeDun-Par Engineered Form Co., 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD ?27,650, p. 36,019 (No. 79-2553), rev’d on other grounds, 843 F.2d 1135(8th Cir. 1988) (elements of the Secretary’s burden). [[5\/]] Noise levels of this magnitude are substantial and are capable ofcausing hearing loss. See Castle & Cooke Foods, 77 OSAHRC 87\/A2, 5 BNAOSHC 1435, 1439-40, 1977-78 CCH OSHD ? 21,854, pp. 26,330-31 (No. 10925,1977), aff’d, 692 F.2d 741 (9th Cir. 1982).[[6\/]] There is no first-hand testimony of the extent to which the airfile was used on days other than the inspection. The evidence that theair file was used at least as much on other days as it was during theinspection consists of a statement the air file operator made to theSecretary’s industrial hygienist. As an out of court declaration, theemployee’s statement inherently has less probative value than would theemployee’s own testimony and is not necessarily entitled to dispositiveweight. Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1123, 1986-87 CCHOSHD ? 27,869, p. 36,540 (No. 80-345, 1987). In this case, however, Continental does not question the employee’sstatement and does not contend that is should not be taken at facevalue. Rather, Continental expresses agreement with the summary of thecase set forth in the Secretary’s brief, in which the Secretary contendsthat the noise levels measured during the inspection were typical ornormal. Accordingly, the parties in effect have stipulated that thenoise levels at the time of the inspection are representative of thoseon other days. We also note that, in the absence of evidence to thecontrary, we would consider the Secretary’s measurements to be probativeof other days. Seaboard Foundry, Inc., 83 OSAHRC 23\/C7, 11 BNA OSHC1398, 1401, 1983-84 CCH OSHD ? 26,552, p. 33,774 (No. 77-3964, 1983). [[1]] Section 1910.22)(d)(1) of 29 C.F.R. provides as follows:floor loading protection. (1) In every building or other structure, orpart thereof, used for mercantile, business, industrial, or storagepurposes, the loads approved by the building official shall be marked onplates of approved design which shall be supplied and securely affixedby the owner of the building, or his duly authorized agent, in aconspicuous place n each space to which they relate. Such plates shallnot be removed or defaced but, if lost, removed, or defaced, shall bereplaced by the owner or his agent.[[2]] Section 1910.106(e)(2)(iv)(d) of 29 C.F.R. states as follows:Flammable or combustible liquids shall be drawn from or transferred intovessels, containers, or portable tanks within a building only through aclosed piping systems, from safety cans, by means of a device drawingthrough the top, or from a container or portable tanks by gravitythrough an approved self-closing valve. Transferring by means of airpressure on the container or portable tanks shall be prohibited.[[3]] Section 1910.106(e)(9)(iii) of 29 C.F.R. reads as follows:_Waste and residue._ Combustible waste material and residues in abuilding or unit operation area shall be kept to a minimum, stored incovered metal receptacles and disposed of daily.[[4]] Section 1910.15(c) of 29 C.F.R. provides as follows:Where the eyes or body of any person may be exposed to injuriouscorrosive materials, suitable facilities for quick drenching or flushingof the eyes and body shall be provided within the work area forimmediate emergency use.[[5]] Section 1910.212(a)(1) of 29 C.F.R. states as follows:(a) _Machine guarding_ –(1) _Types of guarding . _One or more methodsof machine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are–barrier guards, two-handtripping devices, electronic safety devices, etc.[[6]] Section 1910.215(a)(2) of 29 C.F.R. reads as follows:_Guard design. _The safety guard shall cover the spindle, nut, andflange projections. The safety guard shall be mounted so as to maintainproper alignment with the wheel, and the strength of the fasteningsshall exceed the strength of the guard, except:[[7]] Section 1910.215(a)(4) of 29 C.F.R. states as follows:_Work rests. _On offhand grinding machines, work rests shall be used tosupport the work. They shall be of rigid construction and designed tobe adjustable to compensate for wheel wear. Work rests shall be keptadjusted closely to the wheel with a maximum opening of one-eighth inchto prevent the work from being jammed between the wheel and the rest,which may cause wheel breakage. The work rest shall be securely clampedafter each adjustment. The adjustment shall not be made with the wheelin motion.[[8]] Section 1910.215(b)(9) of 29 C.F.R. states as follows:_Exposure adjustment._ Safety guards of the types described insubparagraphs (3) and (4) of this paragraph, where the operator standsin front of the opening, shall be constructed so that the peripheralprotecting member can be adjusted to the constantly decreasing diameterof the wheel. The maximum angular exposure above the horizontal planeof the wheel spindle as specified in paragraphs (b)(3) and (4) of thissection shall never be exceeded, and the distance between the wheelperiphery and the adjustable tongue or the end of the peripheral memberat the top shall never exceed one-fourth inch. (See Figures 0-18, 0-19,0-20, 0-21, 0-22, and 0-23.)[[9]] Section 1910.303(f) of 29 C.F.R. provides as follows:_Identification of disconnecting means and circuits._ Eachdisconnecting means required by this subpart for motors and appliancesshall be legibly marked to indicate its purpose, unless located andarranged so the purpose is evident. Each service, feeder, and branchcircuit, at its disconnecting means or overcurrent device, shall belegibly marked to indicate its purpose, unless located and arranged sothe purpose is evident. These marking shall be of sufficient durabilityto withstand the environment involved.[[10]] Section 1910.305(b)(1) of 29 C.F.R. reads as follows:_Cabinets, boxes, and fittings._ (1) _Conductors entering boxes,cabinets, or fittings. _Conductors entering boxes, cabinets, or fittingsshall be protected from abrasion, and openings through which conductorsenter shall be effectively closed. Unused openings in cabinets, boxes,and fittings shall also be effectively closed.[[11]] Section 1910.85(c) of 29 C.F.R. states: _Hearing conservationprogram._ (1) The employer shall administer a continuing, effectivehearing conservation program, as described in paragraphs (c) through (o)of this section, whenever employee noise exposures equal or exceed an8-hour time-weighted average sound level (TWA) of 85 decibels measuredon the A scale (slow response) or, equivalently, a dose of fiftypercent. For purposes of the hearing conservation program, employeenoise exposures shall be computed in accordance with Appendix A andTable G-16a, and without regard to any attenuation provided by the useof personal protective equipment.(2) For purposes of paragraphs (c) through (n) of this section, an8-hour time-weighted average of 85 decibels or a dose of fifty percentshall also be referred to as the action level. “