“Docket No. 83-0921 SECRETARY OF LABOR,Complainant,v.CONTINENTAL ELECTRIC COMPANY,Respondent.OSHRC Docket No. 83-0921\u00a0DECISIONBefore: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The issue in this case is whether Administrative LawJudge Joe D. Sparks properly 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, by failing to provide ahearing conservation program as required by the Secretary’s noise standard, 29 C.F.R. ?1910.95.[[1\/]] The judge concluded that the Secretary had not proven that Continental knewor should have known of the allegedly violative conditions.\u00a0 We reverse the judge’sdecision and affirm the citation.The relevant facts are not in dispute.\u00a0 Continental uses a pneumatically-operated tool know as an \”air file\” toremove excess material from castings.\u00a0 During an inspection of Continental’s facilitythe Secretary’s industrial hygienist measured noise levels as high as 120 to 103 decibelswhile the air file was operating.\u00a0 Since these levels indicated that the employee whooperated the air file might be exposed to noise in excess of the limit permitted by thestandard, the hygienist asked whether Continental had taken any noise measurements.\u00a0 Continental’s representative said that the company had performed its own monitoringbut refused to divulge its noise records.\u00a0 In the absence of any information as tothe employee’s actual noise exposure, the hygienist decided to conduct a full-shift noisesample by placing a noise dosimeter on the air file operator wore the dosimeter for 7hours and 17 minutes, during which time he operated the air file intermittently.\u00a0 Thedosimeter indicated that the operator was exposed to slightly more than 92 decibels on an8-hour time-weighted average basis.\u00a0 In response to the hygienist’s inquiry, theoperator told the hygienist that the day the air file less than on other days.\u00a0 Continental stipulated that it did not have a hearing conservation program when theinspection occurred.[[2\/]]Continental argued, and Judge Sparks held, that therewas no showing that it had actual or constructive knowledge of the noise levels at the airfile operator;s work station.[[3\/]]\u00a0 We disagree; we conclude that Continental in theexercise of reasonable diligence should have been aware of the amount of noise to whichthe air file operator was exposed.[[4\/]]The Secretary may prove knowledge by establishingeither that the employer actually knew of the hazardous conditions or that the employershould have taken measures that would have informed it that such conditions existed.\u00a0 E.g., R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1668-69, 1986-87 CCH OSHD?27,500, pp. 35,640-41 (No. 81-1469, 1986), Union Boiler Co., 83 OSAHRC 11\/C7, 11BNA OSHC1241, 1244, 1983-84 CCH OSHD\u00a0 ?26,453, p. 33, 606 (No. 79-232, 1983) aff’d mem., 732F.2d 151 (4th Cir. 1984).\u00a0 When employees are exposed to a condition that isregulated by the Secretary’s health standards such as noise, reasonable diligence requiresthe employer to use those test procedures or measurements that are available to determinewhether the exposure exceeds the limits set forth in the standard.\u00a0 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 BNA OSHC 1722, 1728, 1981 CCHOSHD ?25,345, p. 31, 455 (No. 13732, 1981).\u00a0 See Union Boiler, supra (generaldiscussion of employer’s duty to anticipate hazards to which employees may be exposed byinspecting work area).In addition to an employer’s general obligation todetermine the severity of health hazards in it workplace, the hearing conservationstandard requires that the employer conduct noise monitoring \”when informationindicates that any employee’s exposure may equal or exceed an 8-hour time-weighted averageof 85 decibels.\” 29 C.F.R. ?1910.95(d)(1).\u00a0 The fact that the air file producednoise levels as high as 103 decibels[[5\/]] would clearly indicate to a reasonably diligentemployer the possibility that the air file operator’s overall noise exposure could averagemore than 85 decibels over an 8-hour work day.\u00a0 Thus, Continental had duty to measurethe exposure of the air file operator under the terms of the hearing conservation standarditself.\u00a0 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, 29 C.F.R.?1910.1001(f)(1).The record shows that Continental in fact had takennoise measurements of it own.\u00a0 Absent the introduction into evidence of the result ofits noise monitoring, we cannot conclude that Continental had actual knowledge of the8-hour time-weighted average noise level to which the air file operator was exposed.\u00a0 However, considering that the length of time the air file was used on the day ofinspection was typical of, or even less than, it use on other days, [[6\/]] we concludethat Continental’s noise measurements should have put it on notice of a need for a hearingconservation program for the air file operator.\u00a0 A reasonably diligent employerconducting its own noise measurements would have been aware that the air file operatornormally is exposed to a noise level considerably in excess of 85 decibels.Accordingly, the judge’s decision is reversed, andthe citation alleging that Continental failed to comply with 29 C.F.R. ?1910.95(c) isaffirmed.\u00a0 The Secretary proposed no penalty and we assess none.\u00a0FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED: April 18, 1989SECRETARY 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 of Labor,Birmingham, Alabama, on behalf of complainant.Winston B. McCall, Jr., Esquire, Birmingham, Alabama, on behalf of respondent.DECISION AND ORDERSPARKS, Judge:\u00a0 This proceeding arises under section 10(c) of theOccupational Safety and Health Act of 1970 (the \”Act\”).Compliance officers of OSHA conducted inspections todetermine compliance with the Act.\u00a0 Citation were issued charging violations ofsafety and noise standards.\u00a0 By amendment, the Secretary withdrew safety citationnumber one and deleted items 2b, 5c, and 8b of citation number two. \u00a0 Item five ofcitation number two was modified (Tr. 5-6).\u00a0 Left at issue from docket number83-0920, citation number two, are item 1, 2a, 3, 4, 5a, 5b, 6a(a), 6b(a), 6c(b), 6c(c),and 8a.\u00a0 The citation in docket number 83-921 alleging a failure to have acontinuing, effective hearing conservation program is also at issue.\u00a0 All itemsremaining for decision are alleged to be other than serious violations.\u00a0 There are noissues involving purposed penalties or abatement dates (Tr. 48-49).\u00a0 The cases wereconsolidated by an order of April 12, 1984.Respondent contends the Secretary failed to carry hisburden of proving the violations.\u00a0 Clarence Brown d\/b\/a Brown’s Contracting,77\u00a0 OSAHRC 78\/C4, 5 BNA OSHC 1455, 1977-78 CCH OSHD ?21,816 (No. 7690, 1977).\u00a0The findings of fact specifically enumerated and those stated in the following discussionare found to be established by the preponderance of the evidence of recordIDOCKET NO. 83-0920CITATION NO. 2Item one alleges a violation of 29 C.F.R.?1910.22(d)(1) [[1\/]] in that and overhead area was not marked to show its maxim loadlimit.\u00a0 An overhead area used to store flat cardboard boxes was not so marked. \u00a0The evidence fails to identify the building official or the approvedload limit for thearea in question. Although the record establish that respondent occupied and used thebuilding, it does not establish that respondent is the \”owner of the building or hisduly authorized agent.\”\u00a0 See Cole, Division of Litton Business Systems, Inc., \u00a0 79 OSAHRC 87\/A2, 7 BNA OSHC 2145, 1979 CCH OSHD ?23,944 (Nos. 77-3432 BS78-2939, 1979). The burden is upon the Secretary to prove that a particular standardapplies to the cited working conditions. Howard Barthelmass Painting Co., 81 OSAHRC84\/E1, 9 BNA OSHC 2160, 1981 CCH OSHD ? 25,637 (No. 78-5450, 1981).\u00a0 The Secretaryhas failed to carry his burden of showing essential elements of the standard so item onemust be vacated.Item 2a alleges a violation of 29 C.F.R. ?1910.106(e)(2)(iv)(d) [[2\/]] in thatpaint regularly used in the painting operations was not drawn through a self-closing.\u00a0 The drum was marked flammable.\u00a0 The flash point of Chem Glaze paint was dailydrawn from a drum and through a valve which was not self-closing.\u00a0 The drum wasmarked flammable.\u00a0 The flash point of Chem Glaze paint was 70? F.\u00a0 (Tr.353-354).\u00a0 Flammable liquid having a flash point below 100? F.\u00a0 The informationwas available to respondent from the specification sheets furnished by the manufacturer.\u00a0 A violation of item 2a was established.Item three alleges a violation of 29 C.F.R. ?1910.106(e)(9)(iii) [[3\/]] in thatcombustible rags were stored in a plastic trash can.\u00a0 The evidence shows the ragswere used to wipe up paint until they became so stiff they could no longer perform thatpurpose and were stored discarded into plastic trash can.\u00a0 A combustible liquid isdefined as any liquid having a flash point of the hardened paint.\u00a0 Complainant arguesthat the rags themselves, made of cloth, were combustible material subject to therestrictions of the standard (Comp. Brief P. 2).\u00a0 The compliance officer testified,however, it was only because the rags were used to wipe up paint that she considered thematerial combustible (Tr. 68,218).\u00a0 No tests were conducted by the Secretary andrespondent’s tests flame up when a flame was applied.\u00a0 The evidence of the recorddoes not establish that the soiled rags were combustible waste material.\u00a0 Item threemust be vacated.Item four alleges a violation of 29 C.F.R.?1910.151(c) [[4\/]] in that employees were exposed to injurious corrosive materials andsuitable facilities for quick drenching of flushing of the eyes and body were notavailable within the work area for immediate emergency use.\u00a0 Two employees regularlyused epoxy resin, a corrosive material (Tr. 273,282).\u00a0 Respondent did not havespecial safety showers and eye wash facilities, but bathrooms with sinks and a drinkingfountain were located at an end of the building.\u00a0 The bathrooms had hot and coldrunning water (Tr. 347).\u00a0 The compliance officer estimated the bathrooms were 25 to50 feet the work area (Tr. 176).\u00a0 Respondent’s supervisor estimated the distance as20 feet and stated the employees could reach the bathrooms within seconds (Tr. 347-349).In Gibson Discount Center, Store No. 15, 78 OSHARC 30\/C1, ^ BNA OSHC 1526,1978 CCH OSHD ?22,669 (No. 14657, 1978), the Review Commission held that whether aviolation exists depends on consideration of all circumstances.\u00a0 There it wasestablished that battery acid is not hazardous if washed out within a short period andthat an exposed employee could reach running water within 29 to 30 seconds.\u00a0 Thereview Commission held that the evidence did not establish a violation.\u00a0 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 a violation had not been provedwhere the employer provided a standard full-body shower but not a specific eye-washfacility.\u00a0 See also Bridgeport Brass Co., __ BNA OSHC ___, 1984CCH OSHD ?27,054 (No. 82-899, 1984).In the instant case, the evidence establishes thatthe employees did wear eye protection (Tr. 178,348).\u00a0 They could reach the bathroomswhere running water was available within a matter of seconds.\u00a0 The evidence runningwater was available within a matter of seconds.\u00a0 The evidence fails to show that aninjury to the eyes or body would result within the elapsed time. \u00a0 Considering allevidence of record, the Secretary has not established that the available facilities arenot suitable.\u00a0 Item four 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 protectoperators and other employees from hazards\u00a0 created by:\u00a0 ingoing nip points:(a) Cutting and grinding area in Fiberglass Building-nip points where sanding belt meets pulleys were not guarded.\u00a0 Machine made byStephen Bader Company.(b) In Machine Shop in Iron Building – unguarded nippoints on each of three small floor grinders where the sanding belt and the V-belt meetthe respective pulleys.\u00a0 Grinders made by Stephen Bader Company.The machine described in 5a has three possible nippoints formed when the sanding belt comes into contact with rollers or pulleys. \u00a0 Thenip point A e(Ex. C-6) was accessible to employees in back of the machine if they hadoccasion to go back there and could possibly be reached from the front (Tr. 84, 88).\u00a0A well was behind the machine (Tr. 187-188).\u00a0 Nip point B was guarded by locationfrom the front but could be reached from the rear (Tr. 88).\u00a0 The machine was operatedeight hours daily.\u00a0 The operator stood two or three away from the machine whileoperating it and did not put his hands in the point of operation (Tr. 86-87, 186,189).\u00a0 Once the machine is in operation, the employee has no reason to touch it (Tr.35).\u00a0 No injuries had been reported on the machine (Tr. 189-190).In Stacey Manufacturing, Inc., 82 OSAHRC14\/B1, 10 BNA 1534, 1982 CCH ?25,965 (No. 76-1656, 1982), the Review Commission held asfollows:In order to establish a violation of 29 C.F.R.?1910.212(a)(1), the Secretary must first prove the existence of a hazard. A.E.Burgess Leather 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 fromall circumstances including the manner in which the machine function and how it isoperated by the employees.\u00a0 Rockwell International Corp., 80 OSHARC 118\/A2,___ BNA OSHC ___, 1980 CCH OSHD ?24,979 (No. 12470, 1980).\u00a0 See also Syntron,Inc., 83 OSAHRC 1\/C1, 11 BNA OSHC 1158, 1984 CCH OSHD ?26,840 (No. 81-1494-S,1984); Skydyne, Inc., ___ OSAHRC ___, 11 BNA OSHC 1753, 1984 CCH OSHD ?26, 761(No. 80-5422, 1984).Here the evidence fails to disclose any reason or occasion for an employee’s handsor other parts of the body to come into contact with one of the nip points. \u00a0 TheSecretary has failed to carry his burden of proof.The machine described described in item 5b alsocontained unguarded nip points (Ex. C-8, C-9; Tr. 91, 102).\u00a0 The machine was usedless than weekly by an employee (Tr. 104, 201).\u00a0 If an employee were to get any partof his body into the nip points; abrasions, cuts, pinches and amputations could result(Tr. 105).\u00a0 The operator stands in front of the machine and feeds material to asanding belt.\u00a0 At that time, the operator\u00a0 is about 37 inches from the nip point(Tr. 199).\u00a0 Any injuries on the sanders have been minor (Tr. 354).\u00a0 Again, theevidence does not reveal any occasions for employees to come into contact with the nippoints. Complaint’s alternative pleading to reallege item 1aof serious citation number one is denied (Tr. 325). Items 6a(a) and 6a(b) allege violations of 29 C.F.R.?1910.215(a)(2) [[6\/]]\u00a0 in that two abrasive wheels used on grinding machinery werenot provided with safety guards which covered the conditions observed by the complianceofficer.\u00a0 A hazard of injury is presented to the operator and any other personnearby.Respondent contends that the Packer bench grinder[item 6a(a)] was not in use at the time of the inspection and was later discarded. \u00a0The compliance officer did not see it in use, and a photograph taken the date of theinspection shows the electric cord and plug wrapped around the machine (Ex. C-10; Tr.109). Respondent’s representatives on the walkaround inspection stated the machine wasused for short times one or two times weekly (Tr. 112). At the hearing, a supervisortestified that the machine had not been used in a while; but, if needed, it would havebeen used (Tr. 359, 376-377).\u00a0 The conclusion to be drawn from the evidence is thatthe grinder was available for use when needed.\u00a0 The fact that it was not used morefrequently does not relieve respondent from such exposure which presented the hazard of awheel coming off or apart.The shop built grinder in item 6a(b) was also usedinfrequently, but employee exposure and the condition of the unguarded grinder were clear.Item 6b alleges two violations, (a) and (b), of 29C.F.R. ? 1910.215(a)(4)[[7]] in that work rests on grinding machinery were not adjustedclosely to the wheel with a maximum opening of one-eight inch.\u00a0 Such conditionspresent hazards that fingers or work product may become caught between the rest andwheel.\u00a0 The evidence establishes the conditions alleged.\u00a0 Respondent contendsthe machines are used for only short periods of time and no injuries have resulted fromthose machines.\u00a0 The machines are regularly used and are available for use.\u00a0 Theconditions of use present a hazard of injury giving rise to other than seriousviolations.\u00a0 Item 6c alleges three instances of violations of 29C.F.R. ? 1910.215(b)(9)[[8]] as a result of the distances between the abrasive wheels andthe peripheral guards.\u00a0 It is not disputed that the distance in each case was greaterthan the one-quarter inch permitted by the regulation.\u00a0 Respondent argues that therehave been no injuries, that the machines are not used frequently, employees usedprotective equipment and in one instance the deviation from the standard was notgreat.\u00a0 Such guards are designed to contain fragments should an abrasive wheel break(Tr. 119-120, 130).\u00a0 Other than serious violations described in 6c(a), and 6c(c) wereestablished.Item seven alleges three areas of the facility whererespondent failed to mark electrical disconnect boxes to indicated their purposes contraryto 29 C.F.R. ? 1910.303(f).[[9]] The evidence clearly shows that the electrical boxes onthe front wall of the iron ship, the assembly areas of the iron building and near theshipping and receiving area of the fiberglass building were not so marked, nor were theirpurposes evident from their locations.\u00a0 The boxes control circuits to lights,equipment and appliances.\u00a0 Respondent points out that the machines also had ON-OFFswitches and plugs which could be pulled out of the wall outlets. \u00a0 The alternatemeans of disconnecting machinery does not obviate the necessity for properly marking theelectrical disconnect boxes.Item 8a alleges a violation of 29 C.F.R. ?1910.305(b((1)[[10]] in that knockout plugs were not present in a temporary outlet near adrill press.\u00a0 The evidence establishes the facts alleged (ex. C-10).\u00a0 Althoughthe outlet was used only for a short period of time once a week, a hazard was present atthat time (Tr. 144-146).\u00a0 Fingers or tools could come into contact with liveelectrical wires through the holes.\u00a0 A violation has been established.IIDOCKET NO. 83-921CITATION NO. 1The only citation of docket number 83-921 alleges aviolation of the noise conservation standard at 29 C.F.R. ? 1910.95(c)[[11]] in that theemployer failed to administer a continuing, effective hearing conservation program whereemployee noise exposure equaled or exceeded an eight-hour time-weighted sound level of 85dBA.The evidence established that the air file operatorin the fiberglass department was exposed to noise at 120.5% of the allowable exposure at90 dBA.\u00a0 The findings are sufficient to require a noise conservation program asprovided in 29 C.F.R. ? 1910.95(c).Respondent stipulated it did not have a continuing,effective hearing conservation program within the meaning of the Act (Tr. 285).\u00a0Respondent attacks the reliability of the findings. The industrial hygienist, Ms. Etterer,however, demonstrated a through knowledge of her equipment and the procedures necessary totake accurate and fair samples of the environment.\u00a0 The equipment was properlycalibrated before and after use.\u00a0 The findings were checked and calculationscarefully made.\u00a0 She is found to be a competent and reliable expert witness.Two legal problems are presented.\u00a0 In ForgingIndustry Association v. Secretary of Labor, 748 F.2d 210 (4th Cir. 1984), 12 BNA OSHC1041, 1984 CCH OSHD ? 27,102 (No. 83-1420, 1984), the Court of Appeals for the FourthCircuit held the hearing conservation amendment to be invalid.\u00a0 It is not certainthat the matter has been exhausted so the issue will not be decided on that basis. \u00a0The record is deficient of evidence that the employer knew or should have known of theconditions, an element of proof of an other than serious as well as a seriousviolation.\u00a0 The Commission has held such evidence necessary because an employercannot be expected to have corrected a hazard of which he was unaware.The alleged violation, therefore, must bevacated.\u00a0 L.M. Sessler Excavating & Wrecking, Inc., \u00a0___OSAHRC___,___BNA OSCH___, 1984 CCH OSHD ? 26,943 (No. 79-2168, 1984).FINDINGS OF FACT1.\u00a0\u00a0\u00a0 Respondent is a corporation witha manufacturing facility located at Lovic Road, Birmingham, Alabama, where it is engagedin the production of electric pole hardware.2.\u00a0\u00a0\u00a0 Pursuant to a warrant,Compliance Officer Virginia Simmons and Industrial Hygienist Judith Etterer enteredrespondent’s plant on August 17, 1983, to inspect for compliance with the OccupationalSafety and Health Act.\u00a0 Employees had been sent home on that day so the agentsreturned on August 24 to observe operations and interview employees.\u00a0 Noisemonitoring was conducted on August 25 (Tr. 14, 21, 94, 236, 246).3.\u00a0\u00a0\u00a0 In the air file department, anoverhead storage area was not marked to show the maximum weight load limit (Ex. C-1, C-2;Tr. 26-34, 215).4.\u00a0\u00a0\u00a0 An employee worked under theunmarked overhead storage area (Ex. C-2; Tr. 32-33, 150-153, 266).5.\u00a0\u00a0\u00a0 The overhead storage area wasconstructed of three-to-four-inch steel post supports and heavy lumber flooring (Tr.155-156, 331, 334).6.\u00a0\u00a0\u00a0 The overhead storage area wasused to store flat cardboard boxes.\u00a0 The boxes usually exerted a weight of 50 poundsper square foot on storage floor.\u00a0 The maximum exerted was 75 pounds (Tr. 154, 157,332).7.\u00a0\u00a0\u00a0 The maximum weight the overheadstorage area could hold was 200 pounds per square foot, but the storage area was not somarked (Tr. 333).8.\u00a0\u00a0\u00a0 There were no signs of stress onthe storage area (Tr. 158, 334).9.\u00a0\u00a0\u00a0 A paint product marked\”Chem Glaze\” was contained in a drum in the paint area (Ex. C-3; Tr. 38-39,41-42, 335-556).10.\u00a0\u00a0\u00a0 The contents of the drum wereflammable (Tr. 38-39, 41, 161, 337-338, 369-370).11.\u00a0\u00a0\u00a0 Two employees regularly usedthe\u00a0 paint product Chem Glaze (Tr. 41-42, 44-45).12.\u00a0\u00a0\u00a0 The employees removed paintfrom the drum at least once a day (Tr. 46, 165-166).13.\u00a0\u00a0\u00a0 The paint was removed from thedrum by means of a ball or turn valve not a self-closing valve (Tr. 47, 160, 215-216,368-369).14.\u00a0\u00a0\u00a0 A non self-closing valve allowsvapors to escape the container presenting a hazard of fire (Tr. 49-50, 166).15.\u00a0\u00a0\u00a0 The chance of a spark ignitingthe paint was low (Tr. 168).16.\u00a0\u00a0\u00a0 A plastic trash can in theFiberglas Department was used to store soiled cloth rags (Ex. C-4; Tr. 52, 217).17.\u00a0\u00a0\u00a0 The rags were used to wipe uppaint.\u00a0 After the paint in the rags began to harden, the rags were no longer suitablefor use and were discarded into the plastic trash can (Tr. 53, 55, 58-60, 340).18.\u00a0\u00a0\u00a0 When the top of the trash canwas removed, the odor of paint was smelled; but the paint smell could have come from otherareas (Tr. 55, 69, 170).19.\u00a0\u00a0\u00a0 The paint wiped up by the ragswas flammable (Tr. 66\/68, 218).20.\u00a0\u00a0\u00a0 The trash can contained only afew rags; it was not as much as half-filled (Tr. 168).21.\u00a0\u00a0\u00a0 Tests performed by respondentafter the inspection showed that, when a flame was applied to a rag hardened with paint,the rag charred and turned red but did not flame up (Tr. 345).22.\u00a0\u00a0\u00a0 Respondent’s employees dailyplaced an epoxy resin on pole line hardware products (Ex. C-5; Tr. 69-71, 78, 269).23.\u00a0\u00a0\u00a0 The epoxy resin was obtainedfrom Southeast Resin Company, Shalimar, Florida (Tr. 71, 174-175).24.\u00a0\u00a0\u00a0 Employees also used methylenechloride and acetone in the area (Tr. 72, 73, 271).25.\u00a0\u00a0\u00a0 The epoxy resin, methylenechloride and acetone are corrosive materials (Tr. 72, 73-74, 276-275, 282, 302).26.\u00a0\u00a0\u00a0 Respondent did not have an eyewash or a quick drenching shower for the body (Tr. 78, 175).27.\u00a0\u00a0\u00a0 Respondent’s building has awater fountain and two bathrooms with sinks for men and women located near the area wherecorrosive materials were being used (Tr. 177, 180, 292-293, 346-349).28.\u00a0\u00a0\u00a0 Bathroom sinks and drinkingwater fountains provide hot and cold running water (Tr. 347).29.\u00a0\u00a0\u00a0 An asindales grindermanufactured by Stephen Bader Company located in the cutting and grinding area of theFiberglass Building had three nip points (Ex. C-6; Tr. 80-83).30.\u00a0\u00a0\u00a0 A nip point is the point is atwhich two moving pieces come together (Tr. 81).31.\u00a0\u00a0\u00a0 A sanding belt made ofreinforced paper created nip points as it rotated around rollers or pulleys of the grinder(Tr. 182, 350).32.\u00a0\u00a0\u00a0 Two of the three nip pointswere partially but not completely guarded by location (Tr. 82, 83, 86, 88, 186-189).33.\u00a0\u00a0\u00a0 Two of the nip points could bereached from the rear, and one from the front (tr. 83, 88).34.\u00a0\u00a0\u00a0 Employees of respondentoperated the Asindales grinder eight hours a day grinding the ends of fiberglass rods (Tr.87-88, 350).35.\u00a0\u00a0\u00a0 The sanding belt breaks anaverage of twice a day (Tr. 350).36.\u00a0\u00a0\u00a0 Respondent performed a testshortly after the inspection by placing an object five-eights inch in diameter in the nippoint between the wheel and the sanding belt at which time the belt broke.\u00a0 The testhas no validity in establishing the potential damage to a human finger as a fiberglass rodis of much harder material (Tr. 352, 371-372).37.\u00a0\u00a0\u00a0 An operator stands three orfour feet away and feeds rods into the machine but has no reason to touch the machinewhile it is operating (Tr. 350, 353).38.\u00a0\u00a0\u00a0 The only occasion for a personto be behind the machine is to change out a broken belt (Tr. 353).39.\u00a0\u00a0\u00a0 Three grinders in the machineshop manufactured by Stephen Bader Company had exposed nip points created by a sandingbelt and a V-belt on each moving over rollers or pulleys (C-8, C-9; Tr. 91, 101, 190).40.\u00a0\u00a0\u00a0 The four nip points were notguarded (Tr. 101-102, 200-202).41.\u00a0\u00a0\u00a0 The grinder in the machine areawas available for use and was used less than weekly (Tr. 105, 220).42.\u00a0\u00a0\u00a0 If a person got any part of hisbody into nip points, the result could be abrasions, cuts, pinches and amputations (Tr.105, 202).43.\u00a0\u00a0\u00a0 The nip points of the grinderscould be guarded (Ex. C-9; Tr. 106).44.\u00a0\u00a0\u00a0 If the sanding belts broke, themachine stopped (Tr. 194, 356).45.\u00a0\u00a0\u00a0 Respondent performed a testafter the inspection during which a glove was placed between the belt and pulley at whichtime the belt broke, but it is not known how far the glove entered into the nip pointbefore the belt was broken (Tr. 356, 374-376).46.\u00a0\u00a0\u00a0 A Packard bench grinder did nothave a guard over the spindle and nut and flange projection (Ex. C-10; Tr. 110).47.\u00a0\u00a0\u00a0 At the time of the inspection,the grinder was available for use and was used one or two times weekly (Tr. 111-112, 204).48.\u00a0\u00a0\u00a0 The hazards presented by theunguarded machine include the wheel coming off or shattering thereby striking someone (Tr.113-114).49.\u00a0\u00a0\u00a0 The photograph of the machineshows the electrical plug wrapped around the machine (Ex. C-10).50.\u00a0\u00a0\u00a0 After the inspection, thePackard bench grinder was removed from operation (Tr. 203-204, 357-359).51.\u00a0\u00a0\u00a0 The grinder was used to grind alevel edge on fiberglass rods (Tr. 222).52.\u00a0\u00a0\u00a0 A grinder in the machine shopof the Iron Building had an unguarded flange projection and spindle end nut (Ex. C-11; Tr.115-116).53.\u00a0\u00a0\u00a0 The grinder described above wasavailable for use and was used one or two times weekly (Tr. 117, 205, 362).54.\u00a0\u00a0\u00a0 Respondent’s representativesRandy Hall and Mr. Argo agreed the grinder presented a potentially hazardous condition andrequested sufficient time to have a guard made (Tr. 117).55.\u00a0\u00a0\u00a0 On the date of the inspection,the work rests of a dual-wheel Dayton bench grinder located in the machine shop in theFiberglass Building were improperly adjusted.\u00a0 The left work rest was three-quartersinch from the wheel.\u00a0 The right work rest was one-quarter inch from the wheel (Ex.C-12; Tr. 126, 365).56.\u00a0\u00a0\u00a0 The grinder was used one to twotimes weekly (Tr. 127).57.\u00a0\u00a0\u00a0 There were no tongue guards oneither wheel of the Dayton bench grinder at the time of the inspection, but such guardswere added prior to a discovery inspection in August 1984 (Ex. C-12; tr. 130, 207-208).58.\u00a0\u00a0\u00a0 The improperly adjusted workrests present a hazard that work may become jammed against the wheel causing it to breakor that fingers may be pulled against the wheel (Tr. 208).59.\u00a0\u00a0\u00a0 A Dayton bench grinder in themachine shop of the Iron Building had an improperly adjusted work rest.\u00a0 The workrest was three-quarters inch from the wheel (Ex. C-13; Tr. 133).60.\u00a0\u00a0\u00a0 The grinder was used regularly(Tr. 134-135).61.\u00a0\u00a0\u00a0 The left tongue guard on theDayton bench grinder in the machine shop of the Iron Building was three-quarters inch fromthe wheel (Tr. 135-136).62.\u00a0\u00a0\u00a0 The same dual-wheel shop-builtgrinder referred to in item 6a(b) also lacked a tongue guard (Ex. C-11; Tr. 119, 121).63.\u00a0\u00a0\u00a0 A tongue guard is an adjustableprotrusion from the top of the peripheral guard designed to protect an operator should thewheel break (Ex. C-11; Tr. 119-120).64.\u00a0\u00a0\u00a0 The distance between theabrasive wheel and the edge of the peripheral guard where the tongue guard should havebeen attached was three inches (Tr. 121).65.\u00a0\u00a0\u00a0 During the inspection,electrical disconnect boxes on the front wall of the Iron Shop were not marked to show theelectrical systems which they controlled (Tr. 136-137, 308).66.\u00a0\u00a0\u00a0 The handles of the disconnectboxes were in the ON position and the electrical service was in use (Tr. 136, 309).67.\u00a0\u00a0\u00a0 The location or arrangement ofthe disconnect boxes did not reveal the equipment served by the electrical boxes (Tr.137).68.\u00a0\u00a0\u00a0 Respondent’s representativesacknowledged that the electrical boxes controlled the electric service, but they wereuncertain exactly which equipment was served from each box (Tr. 136-137, 139, 213, 308).69.\u00a0\u00a0\u00a0 Individual machines could bedisconnected by unplugging it from the wall outlet or by means of the ON-OFF switch (Tr.211-212).70.\u00a0\u00a0\u00a0 Electrical disconnect boxes inthe assembly area of the Iron Building were in service but were not marked to show theirpurposes (Tr. 139-140, 313).71.\u00a0\u00a0\u00a0 The electric disconnect boxeswere not so located or arranged so that their purpose was evident (Tr. 140, 313).72.\u00a0\u00a0\u00a0 The disconnect boxes in theAssembly Area control the main source of electrical service and heaters, fans and machines(Tr. 311-315).73.\u00a0\u00a0\u00a0 Electrical disconnect boxes inthe shipping and receiving area were in operation but were not marked to show what theycontrolled (Ex. C-14; Tr. 142-144, 314).74.\u00a0\u00a0\u00a0 The boxes were not located orarranged so that their purposes were evident (Tr. 143).75.\u00a0\u00a0\u00a0 The electrical boxes controlledcircuits to drill presses, lights and oven (Tr. 143).76.\u00a0\u00a0\u00a0 Knockout plugs were missingfrom a temporary electrical outlet in the Fiberglass Building (Ex. C-10; Tr. 144-146).77.\u00a0\u00a0\u00a0 A knockout plug is a piece ofmetal which can be pushed out to allow conduit into the box (Tr. 146).78.\u00a0\u00a0\u00a0 The temporary outlet wasenergized and available for use.\u00a0 The outlet was used for five minutes or less oneday a week (Tr. 145-146, 213-214).79.\u00a0\u00a0\u00a0 The absence of knockout plugswould permit fingers or tools to come into contact with live electrical wires (Tr. 146).80.\u00a0\u00a0\u00a0 Judith Shell Etterer is anindustrial hygienist who has been employed by OSHA for nine years.\u00a0 She holds a B.S.degree in chemistry with a minor in biology.\u00a0 She has completed all course work for aMaster of Science degree in industrial hygiene and was writing her thesis.\u00a0 Inaddition, she had completed approximately 30 training courses, primarily in industrialhygiene and occupational health (Tr. 230-232, 236).81.\u00a0\u00a0\u00a0 On August 24, Ms. Etterer tookscreening samples for noise levels with a sound level meter (Tr. 237-238, 242).82.\u00a0\u00a0\u00a0 On August 25, full-shiftmonitoring was conducted to determine noise exposure of the air file operator, Mr. EdwardSelf (Ex. C-15; Tr. 246-247, 286-287).83.\u00a0\u00a0\u00a0 The air file operator used apneumatic tool called an air file to knock burrs off of castings.\u00a0 The operation ofthe tool was intermittent (Ex. C-16; Tr. 261, 263).84.\u00a0\u00a0\u00a0 The noise was monitored by adosimeter which was placed on the employee (Tr. 248, 297-289).85.\u00a0\u00a0\u00a0 Prior to and after its use, thedosimeter was calibrated (Tr. 249-250, 260-261).86.\u00a0\u00a0\u00a0 The dosimeter remained on theair file operator for a total period of 437 minutes beginning at 5:20 a.m. (Tr. 252, 262).87.\u00a0\u00a0\u00a0 The noise readings were made infour segments; 5:20 a.m. to 7:30 a.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.\u00a0\u00a0\u00a0 The dosimeter is programmed toshow the percentage of noise and employee has been exposed to based upon 90 decibels foran eight-hour time-weighted average (Tr. 254, 256-257).89.\u00a0\u00a0\u00a0 By adding the readings for eachsegment, the total exposure was obtained (Tr. 258-260).90.\u00a0\u00a0\u00a0 The air file operator wasexposed to a noise level of 92.02 decibels on the A-scale (Tr. 255, 291).91.\u00a0\u00a0\u00a0 The noise levels were typicalor normal during the day the sampling was performed (Tr. 262).92.\u00a0\u00a0\u00a0 On August 17, 24 and 25, 1983,the dates of the inspection, respondent did not have a continuing, effective hearingconservation program within the meaning of ? 1910.95(c) (Tr. 285-286).CONCLUSIONS OF LAW1.\u00a0\u00a0\u00a0 Respondent is subject to the Actand this proceeding.2.\u00a0\u00a0\u00a0 Respondent violated thefollowing items under conditions constituting other than serious violations:Docket No. 83-920Citation No. 2Item 2aItems 6a, 6b and 6cItem 7Item 8a3.\u00a0\u00a0\u00a0 Respondent’s motions to dismissare denied as to the foregoing violations.4.\u00a0\u00a0\u00a0 Respondent did not violate thefollowing 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. 1ORDERIt is ORDERED:The items listed in paragraph two are affirmed; thoselisted in paragraph four are vacated.Dated this 16th day of April, 1985.\u00a0JOE D. SPARKSJudgeCONTINENTAL 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 of Labor, Birmingham, Alabama, on behalf of respondent.Winston B. McCall, Jr., Esquire, Birmingham, Alabama,on behalf of appellant.DECISION AND ORDERSPARKS, Judge:\u00a0\u00a0\u00a0 This proceeding wasinstituted by Continental Electric Company for legal fees and expenses under the EqualAccess to Justice Act, as amended.One of the two captioned cases alleged safety issuesand the other involved alleged violations of the hearing conservation standard. \u00a0 Thecases were consolidated under Docket No. 83-0920.Applicant prevailed on several safety items,including some which were withdrawn by the Secretary prior to decision, but lost on thehearing conservation issue and several safety items.This case was brought by applicant to recoverreasonable attorney fees and expenses.Pertinent portions of 28 U.S.C.A. ? 2412 provide asfollows:\u00a0\u00a0\u00a0 (d) (1) (A) except as otherwisespecifically provided by statute, a court shall award to a prevailing party other than theUnited States fees and other expenses,…(a), incurred by that party…includingproceedings for judicial review of agency action, brought by or against the United Statesin any court having jurisdiction of that action, unless the court finds that the positionof the United States was substantially justified or that special circumstances make anaward unjust.***\u00a0\u00a0\u00a0 (B) A party seeking an award offees and other expenses shall, within thirty days of final judgment in the action, submitto the court an application for fees and other expenses which shows that the party is aprevailing party and is eligible to receive an award under this subsection, and the amountsought, including an itemized statement from any attorney or expert witness representingor appearing in behalf of the party stating the actual time expended and the rate at whichfees and other expenses are computed.\u00a0 The party shall also allege that the positionof the United States was not substantially justified.\u00a0 Whether or not the position ofthe United States was substantially justified shall be determined on the basis of therecord (including the record with respect to the action or failure to act by the agencyupon which the civil action is based)\u00a0 which is made in the civil action for whichfees and other expenses are sought.\u00a0\u00a0\u00a0 (C) The court, in its discretion,may reduce the amount to be awarded pursuant to this subsection, or deny an award, to theextent that the prevailing party during the course of the proceedings engaged in conductwhich unduly and unreasonably protracted the final resolution of the matter incontroversy.\u00a0\u00a0\u00a0 (2) For the purposes of thissubsection–\u00a0\u00a0\u00a0 (A) \”fees and otherexpenses\” includes the reasonable expenses of expert witnesses, the reasonable costof any study, analysis, engineering report, test, or project which is found by the courtto be necessary for the preparation of the party’s case, and reasonable attorney fees (Theamount of fees awarded under this subsection shall be based upon prevailing market ratesfor the kind and quality of the services furnished, except that (i) no expert witnessshall be compensated at a rate in excess of the highest rate of compensation for expertwitnesses paid by the United States; and (ii) attorney fees shall not be awarded in excessof $75 per hour unless the court determines that an increase in the cost of living or aspecial factor, such as the limited availability of qualified attorneys for theproceedings involved, justifies a higher fee.);\u00a0\u00a0\u00a0 (B) \”party\” means (i) anindividual whose net worth did not exceed $2,000,000 at the time the civil action wasfiled, or (ii) any owner of an unincorporated business, or any partnership, corporation,association, unit of local government, or organization, the net worth of which did notexceed $7,000,000 at the time the civil action was filed, and which had not more than 500employees at the time the civil action was filed;….The Secretary of Labor does not dispute thatapplicant is a qualified party and was the prevailing party on several items but contendsit did not prevail on all items for which expenses are claimed.The Secretary does also contend, however, that itsposition was substantially justified, that applicant unduly and unreasonably protractedthe proceedings, that applicant failed to prove the amount of attorney’s fees andexpenses, and special circumstances make an award unjust in this case.IQUALIFIED PARTYContinental submitted a financial statement showingnet worth of less than five million dollars.\u00a0 Applicant also asserts it had fewerthan 100 employees.IITHE ITEMS AT ISSUE AND THE PREVAILING PARTYApplicant manufactured components for the electrictransmission industry at its facility on Lovic Road, Birmingham, Alabama. Pursuant to aninspection warrant, Compliance Officer Virginia Simmons and Industrial Hygienist JudithEtterer went to applicant’s plant to conduct an inspection on August 17, 1983.\u00a0 Theemployees were sent home on that day, but the inspection did take place on August 24. OnSeptember 9, 1983, two citations alleging safety violations were issued as follows:Serious Citation No. 1Item 1a, 29 C.F.R. ? 1910.219(d) (i)\u00a0\u00a0\u00a0 (a) In Machine Shop in IronBuilding-unguarded pulleys on each of three small floor grinders made by Stephen BaderCompany.Item 1b, 29 C.F.R. ? 1910.219(e)(3)(i)\u00a0\u00a0\u00a0 (a) In the Machine Sop (sic)in the Iron Building – unguarded ‘v’ belt on each of three small floor grinders made byStephen Bader Company.Proposed penalty $210.Other Citation No. 2Item 1, 29 C.F.R. ? 1610.22(d) (1)\u00a0\u00a0\u00a0 (a) In air File Department inFiberglass Building – overhead storage area not marked to indicate maximum weight loadlimit.Item 2a, 29 C.F.R. ? 1910.106(e) (2) (iv) (d)\u00a0\u00a0\u00a0 (a) In the paint Department in theFiberglass Building – paint was not drawn through a self-closing valve.Item 2b, 29 C.F.R. ? 1910.106(e)(6)(i)\u00a0\u00a0 (a) At the Paint Department inthe Fiberglass Building – container of flammable \”Chemglaze\” paint was notgrounded.Item 3, 29 C.F.R. ? 1910.106(e)(9)(i)\u00a0\u00a0\u00a0 (a) Paint area in the FiberglassDepartment-rags used to clean up flammable paints were stored in a covered plasticcontainer.Item 4, 29 C.F.R. ? 1910.151(c)Facilities for quick drenching or flushing of theeyes and body were not provided for immediate emergency use in the fiberglass assemblyarea.Item 5, 29 C.F.R. ? 1910.212(a)(1)Machine guarding was not provided to protectoperator(s) and other employees from hazard(s) created by: ingoing nip points:\u00a0\u00a0\u00a0 (a) Cutting and grinding area inFiberglass Building – nip points where sanding belt meets pulleys were not guarded. \u00a0Machine made by Stephen Bader Company.\u00a0\u00a0\u00a0 (b) In Machine Shop in IronBuilding-unguarded nip points on each of three small floor grinders where sanding beltmeets pulleys.\u00a0 Grinders made by Stephen Bader Company.\u00a0\u00a0\u00a0 (c) In Assembly Area of IronBuilding-unguarded nip points on vertical 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 notprovided with safety guard(s) which covered the spindle end, nut, flange projections:\u00a0\u00a0\u00a0 (a) Grinding area in FiberglassBuilding-Packard Bench Grinder did not have a guard over the spindle end, nut projection.\u00a0\u00a0\u00a0 (b) At Machine Shop in IronBuilding – shop built dual wheel grinder did 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 adjustedclosely to the wheel with a maximum opening of one-eighth inch:\u00a0\u00a0\u00a0 (a) At corner of Machine Shop inFiberglass Building – work rests on Dayton Beach Grinder were in excess of 1\/8 inch fromthe wheel.\u00a0\u00a0\u00a0 (b) In Machine Shop in IronBuilding – work rest on Dayton Bench Grinder 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 adjustable tongue or the end of the safety guard peripheral member at the topexceeded one-fourth inch:\u00a0\u00a0\u00a0 (a) In Machine Shop in IronBuilding – tongue guard on left wheel of Dayton Bench Grinder was 3\/4\” from wheel.\u00a0\u00a0\u00a0 (b) At corner of Machine Shop inFiberglass Building – left side grinding wheel on Dayton Bench Grinder was 1 1\/2\”from outer peripheral guard.\u00a0 Right side wheel was 1\/2\” from outer peripheralguard.\u00a0\u00a0\u00a0 (c) In Machine Shop in IronBuilding – on dual wheel, shop built grinder, both wheels were 3\” from outerperipheral guard.Item 7, 29 C.F.R. ? 1910.303(f)\u00a0\u00a0\u00a0 (a) On front wall of Iron Shop -electrical disconnect boxes were not marked to indicate purpose.\u00a0\u00a0\u00a0 (b) Assembly Area of IronBuilding-electrical disconnect boxes were not marked to indicate purpose.\u00a0\u00a0\u00a0 (c) By shipping and receiving inFiberglass Building – electrical disconnect boxes were not marked to indicate purpose.Item 8a, 29 C.F.R. ? 1910.305(b)(1)\u00a0\u00a0 (a) At Grinding Area inFiberglass Building-knockout plugs were missing from the temporary outlet hanging on wallby drill presses.Item 8b, 29 C.F.R. ? 1910.305(g)(l)(i)\u00a0\u00a0\u00a0 (a) In Grinding area of FiberglassBuilding-flexible cord hanging on nails on wall was used to supply power for drillpresses.The total penalty proposed for both citations was$210.Prior to the trial on the merits, the Secretarywithdrew item 1b of the serious citation and items 2b, 5c and 8b of the other than seriouscitation.\u00a0 After trial and decision, the applicant prevailed on the following 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.IIIWAS THE POSITION OF THE SECRETARY SUBSTANTIALLYJUSTIFIED?The Secretary offered evidence to support itsposition regarding each alleged violation including those on which it did not prevail.\u00a0 The factual evidence and legal precedence are discussed in detail in the Decisionand Order of the undersigned dated April 16, 1985.\u00a0 A total of 86 findings of factwere made.\u00a0 Of course, the position of the Secretary was more firmly supported andmore reasonable regarding some items than others.Although the government is certainly not responsiblefor fees and expenses as to every issue upon which it does not prevail, it seems clearthat the 1985 amendments to the EAJA intended to increase the government’s burden ofshowing it was substantially justified in its position.\u00a0 A review of the findings,decision and briefs of the parties establishes in this case that the Secretary has notshown it was substantially justified within the meaning of the EAJA, regarding any of theissues upon which the applicant prevailed.\u00a0 See Sierra Club v. Secretary of Army, 280F2.d 513 (1st Cir. 1987).The Secretary makes essentially the same arguments toestablish that her positions were substantially justified as she did originally toestablish the existence of violations. While the Secretary’s case in each instance was notfrivolous nor arbitrary or capricious, it had weaknesses of fact or law, set forth in thedecision, which renders it not substantially justified for the purposes of the EAJA asamended.IVAMOUNT OF AWARD\u00a0\u00a0\u00a0 Applicant submitted a claim for $9,200 attorney feesand $676 expenses with its brief received March 17, 1986.\u00a0 The claim for attorneyfees were subsequently reduced to $7,467, but an additional claim for fees of $3,934 wasmade for time spent preparing its claim under the EAJA.Applicant’s attorney did not maintain logs preciselydescribing the work performed 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 it prevailed and howmuch time was spent on items which were affirmed.\u00a0 The attorney originally claimed atotal of 206.5 hours defending all items which he agreed should be reduced to 184.5hours.\u00a0 He arbitrarily assessed 50% of the total hours as work on the seriouscitation on which applicant prevailed and claimed $70 per hour for 92.25 hours or a totalof $5,166.\u00a0 For the other than serious citation, he claimed $807 (11.53 hours each)for each time on which applicant prevailed for a total of $4,034.\u00a0 It is certain thatthe time spend on items upon which applicant prevailed is, at best, only a rough guess.\u00a0 The total expenses of $965 were allocated according to the same formula for a totalof $676.\u00a0 The Act provides only for the payment of\”reasonable\” attorney fees.\u00a0 The time claimed by applicant’s attorney isexcessive considering the relatively simple factual and legal issues involved in thesecases.\u00a0 The extensive discovery, briefs and other paperwork generated by this casesuggest that applicant’s attorney likely did spend all the hours claimed working on thecase.\u00a0 But it was unreasonable for any attorney to spend so much time preparing,trying and briefing the issues involved here.\u00a0 That is particularly true of SeriousCitation No. 1 which involved only two simple items, one of which was withdrawn prior tohearing.\u00a0 The only alleged serious violation tried charged that applicant had\”… unguarded pulleys on each of three small floor grinders made by Stephen BaderCompany.\”\u00a0 Applicant is entitled to fees for time spent on the item which waswithdrawn (an unguarded v-belt).\u00a0 For work on that citation, applicant claims to haveworked 92.55 hours for a fee of $5,166.\u00a0 The claim is unreasonable in time and money.\u00a0 The factual and legal contentions were very simple and the proposed penalty wasonly $210.\u00a0 Only \”reasonable\” fees can be recovered the Act. William B.Hopke Co., 12 BNA OSHC 2159 (No. 81-206, 1986). Even considering that applicant’sattorney is not experienced in the Occupational Safety and Health Act, no more than 20hours would be considered reasonable for work on the serious citation.Applicant was the prevailing party on four items andsubparts to two items of the other than serious citation.\u00a0 Applicant’s attorneyclaims fewer hours for his work on the other than serious citation than on the serious onealthough more items were involved.\u00a0 As more other than serious items were cited, itis reasonable that more time was required to defend against the charges, therefore, 30hours is found to constitute a reasonable expenditure of time for such items.\u00a0 It isconcluded that 50 hours is a reasonable time for defending against the serious and otherthan serious citations.\u00a0 That time multiplied by the stipulated prevailing fee of $70per hour yields a reasonable fee of $3,500. A further reasonable attorney’s fee of $700 isjustified for 10 hours work preparing applicant’s EAJA claim.\u00a0 Its claim for $3,934for such is patently unreasonable.\u00a0 Expenses of $676 appear supported.VSPECIAL CIRCUMSTANCESThe Secretary contends that \”specialcircumstances\” make any award unjustified.\u00a0 The Secretary points out thatabusive language and subterfuge were used to impede the investigation and intimidate thecompliance officers.\u00a0 Applicant’s officials certainly did not display a cooperativeattitude or good manners, and some of their actions might have been viewed as threateningthe female inspectors.\u00a0 But, there is no evidence of any illegal actions or thatapplicant prevented OSHA from conducting a complete inspection of its facilities. \u00a0Applicant’s actions do not rise to the level which would bar a recovery of attorney feesand expenses.]VIDID APPLICANT UNDULY AND UNREASONABLY PROTRACT THEPROCEEDINGS?Without question, the amount of discovery, motionsand trial time was far above average for a case involving such relatively simple issuesand so small ($210) proposed penalty.\u00a0 The Secretary implies that applicantintentionally prolonged the case to tie-up the Secretary’s legal resources.\u00a0 Withoutdoubt, the case was exhaustively contested, but there is no evidence that it was done withsuch evil motive.\u00a0 It may be that much of the excessive time was due to respondent’sattorney’s unfamiliarity with proceedings under OSHA.\u00a0 In any event, the time claimedby applicant’s attorney was beyond the bounds of reasonableness and is so treated whendetermining the amount of reasonable attorney fees for which reimbursement is due.The above constitute findings of fact.CONCLUSIONS OF LAW1.\u00a0\u00a0\u00a0 Applicant is a qualified partyeligible for benefits within the meaning of the EAJA.2.\u00a0\u00a0\u00a0 Applicant was the prevailingparty on both items of the serious citation and four items and two partial items of theother than serious citations.3.\u00a0\u00a0\u00a0 The position of the Secretarywas not substantially justified.4.\u00a0\u00a0\u00a0 Applicant had reasonableattorney’s fees of $4,200 and expenses of $676 defending against the charges on which itwas the prevailing party.ORDERApplicant is entitled to reasonable attorney’s feesof $4,200 and expenses of $676.Dated this 14th day of September, 1989.\u00a0JOE D. SPARKSJudge \u00a0FOOTNOTES: [[1\/]] The standard provided in pertinent part asfollows:?1910.95 Occupational noise exposure.(a) Protection against the effects of noise exposureshall be provided when the sound levels exceed those shown in Table G-16…Table G-16— Permissible noise ExposuresThe table referred to above is not available in thisformat.Please telephone the Review Commission PublicInformation 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 employershall administer a continuing, effective hearing conservation program, as described inparagraphs (c) through (o) of this section, whenever employee noise exposures equal orexceed an 8-hour time-weighted average sound level (TWA) of 85 decibels…..[[2\/]] A hearing conservation program, as prescribedin ?1910.95(c)-(o), consists of a number of measures to prevent or reduce the incidenceof hearing loss.\u00a0 Among other requirements, the employer must administer audiometrictesting to employees exposed to an 8-hour time-weighted average of 85 or more decibels.\u00a0 Hearing protection devices such as earmuffs or plug \\s must be made available tothese employees, and the employer must insure that employees who show a certain degree ofhearing loss wear these hearing protectors.\u00a0 There are additional requirements fortraining employees in the use and care of hearing protectors, and some information andrecordkeeping provisions.[[3\/]] Judge Sparks found that the air file operatorwas exposed to varying levels of noise that were equivalent to a constant noise level of92.02 decibels, that these levels were typical or normal for the air file operation, andthat Continental did not have a hearing conservation program when inspection took placesthat is , the judge found that the condition in Continental plant fail to comply with theterms of the hearing conservation standard.\u00a0 In vacating the citation for failure ofthe Secretary to prove knowledge, the judge stated that the record did not show theContinental knew or should have known of the \”conditions\” at issue.\u00a0 Although the judge decision is not specific, the parties agree that their knowledgedispute is limited to the question of whether Continental knew or could have known of theexistence\u00a0 of excessive noise exposure.[[4\/]] Review was also directed on whether employerknowledge is a proper element of a nonserious violation of the Act and, if so, whether itis proper to place on the Secretary the burden of proving knowledge.We decline to disturb the well-settled andlongstanding precedent holding that knowledge of conditions that fail to comply with astandard is a necessary prerequisite to finding an employer in violation of the Act,regardless of the characterization of the violation of the Act, regardless of thecharacterization of the violation, and that the Secretary has the burden of proving allelements of a violation, including knowledge.\u00a0 E.g., Horne Plumbing & Heating Co.v. OSHRC, 528 F.2d 564, 570-71 (5th Cir. 1976) (requiring Secretary to prove knowledge,even of nonserious violations, so as to avoid imposing strict liability 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).\u00a0 See Dun-ParEngineered 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 theSecretary’s burden).\u00a0 [[5\/]] Noise levels of this magnitude are substantialand are capable of causing hearing loss.\u00a0 See Castle & Cooke Foods, 77 OSAHRC87\/A2, 5 BNA OSHC 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 extentto which the air file was used on days other than the inspection.\u00a0 The evidence thatthe air file was used at least as much on other days as it was during the inspectionconsists of a statement the air file operator made to the Secretary’s industrialhygienist.\u00a0 As an out of court declaration, the employee’s statement inherently hasless probative value than would the employee’s own testimony and is not necessarilyentitled to dispositive weight.\u00a0 Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1123,1986-87 CCH OSHD ? 27,869, p. 36,540 (No. 80-345, 1987).\u00a0 In this case, however, Continental does not questionthe employee’s statement and does not contend that is should not be taken at face value.\u00a0 Rather, Continental expresses agreement with the summary of the case set forth inthe Secretary’s brief, in which the Secretary contends that the noise levels measuredduring the inspection were typical or normal.\u00a0 Accordingly, the parties in effecthave stipulated that the noise levels at the time of the inspection are representative ofthose on other days.\u00a0 We also note that, in the absence of evidence to the contrary,we would consider the Secretary’s measurements to be probative of other days.\u00a0 Seaboard Foundry, Inc., 83 OSAHRC 23\/C7, 11 BNA OSHC 1398, 1401, 1983-84 CCH OSHD? 26,552, p. 33,774 (No. 77-3964, 1983).\u00a0[[1]] Section 1910.22)(d)(1) of 29 C.F.R. provides asfollows:floor loading protection. (1) In every building orother structure, or part thereof, used for mercantile, business, industrial, or storagepurposes, the loads approved by the building official shall be marked on plates ofapproved design which shall be supplied and securely affixed by the owner of the building,or his duly authorized agent, in a conspicuous place n each space to which theyrelate.\u00a0 Such plates shall not be removed or defaced but, if lost, removed, ordefaced, shall be replaced 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 fromor transferred into vessels, containers, or portable tanks within a building only througha closed piping systems, from safety cans, by means of a device drawing through the top,or from a container or portable tanks by gravity through an approved self-closingvalve.\u00a0 Transferring by means of air pressure on the container or portable tanksshall be prohibited.[[3]] Section 1910.106(e)(9)(iii) of 29 C.F.R. readsas follows:Waste and residue.\u00a0 Combustible wastematerial and residues in a building or unit operation area shall be kept to a minimum,stored in covered metal receptacles and disposed of daily.[[4]] Section 1910.15(c) of 29 C.F.R. provides asfollows:Where the eyes or body of any person may be exposedto injurious corrosive materials, suitable facilities for quick drenching or flushing ofthe eyes and body shall be provided within the work area for immediate emergency use.[[5]] Section 1910.212(a)(1) of 29 C.F.R. states asfollows:(a) Machine guarding –(1) Types ofguarding .\u00a0 One or more methods of machine guarding shall be provided to protectthe operator and other employees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips and sparks.\u00a0Examples of guarding methods are–barrier guards, two-hand tripping devices, electronicsafety devices, etc.[[6]] Section 1910.215(a)(2) of 29 C.F.R. reads asfollows:Guard design. The safety guard shall cover thespindle, nut, and flange projections.\u00a0 The safety guard shall be mounted so as tomaintain proper alignment with the wheel, and the strength of the fastenings shall exceedthe strength of the guard, except:[[7]] Section 1910.215(a)(4) of 29 C.F.R. states asfollows:Work rests.\u00a0 On offhand grindingmachines, work rests shall be used to support the work.\u00a0 They shall be of rigidconstruction and designed to be adjustable to compensate for wheel wear.\u00a0 Work restsshall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch toprevent the work from being jammed between the wheel and the rest, which may cause wheelbreakage.\u00a0 The work rest shall be securely clamped after each adjustment.\u00a0 Theadjustment shall not be made with the wheel in motion.[[8]] Section 1910.215(b)(9) of 29 C.F.R. states asfollows:Exposure adjustment.\u00a0 Safety guards ofthe types described in subparagraphs (3) and (4) of this paragraph, where the operatorstands in front of the opening, shall be constructed so that the peripheral protectingmember can be adjusted to the constantly decreasing diameter of the wheel.\u00a0 Themaximum angular exposure above the horizontal plane of the wheel spindle as specified inparagraphs (b)(3) and (4) of this section shall never be exceeded, and the distancebetween the wheel periphery 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 asfollows:Identification of disconnecting means andcircuits.\u00a0 Each disconnecting means required by this subpart for motors andappliances shall be legibly marked to indicate its purpose, unless located and arranged sothe purpose is evident.\u00a0 Each service, feeder, and branch circuit, at itsdisconnecting means or overcurrent device, shall be legibly marked to indicate itspurpose, unless located and arranged so the purpose is evident.\u00a0 These marking shallbe of sufficient durability to withstand the environment involved.[[10]] Section 1910.305(b)(1) of 29 C.F.R. reads asfollows: Cabinets, boxes, and fittings. (1) Conductorsentering boxes, cabinets, or fittings. Conductors entering boxes, cabinets, orfittings shall be protected from abrasion, and openings through which conductors entershall be effectively closed. \u00a0 Unused openings in cabinets, boxes, and fittings shallalso be effectively closed.[[11]] Section 1910.85(c) of 29 C.F.R. states:\u00a0 Hearingconservation program. (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 an 8-hour time-weighted average soundlevel (TWA) of 85 decibels measured on the A scale (slow response) or, equivalently, adose of fifty percent.\u00a0 For purposes of the hearing conservation program, employeenoise exposures shall be computed in accordance with Appendix A and Table G-16a, andwithout regard to any attenuation provided by the use of personal protective equipment.(2) For purposes of paragraphs (c) through (n) ofthis section, an 8-hour time-weighted average of 85 decibels or a dose of fifty percentshall also be referred to as the action level.\u00a0″