“Docket No. 89-1263, DELFORD INDUSTRIES, INC.SECRETARY OF LABOR, Complainant, v. DELFORD INDUSTRIES, INC., Respondent.OSHRC Docket No. 89-1263ORDEROn July 22, 1991, the Secretary filed a Noticeof Withdrawal of citation in the above-captioned case.\u00a0 The Secretary has withdrawnthe only remaining item at issue in this case, Item 9 of Citation 1.The Commission acknowledges receipt of theSecretary’s Notice of Withdrawal and set aside the Judge’s Decision and Order whichmodified and affirmed and affirmed Item 9 of Citation 1 and assessed a $300 penalty.\u00a0There being no matters remaining before the Commission requiring further consideration,the Commission orders the above-captioned case dismissed.\u00a0 See 29 U.S.C. ??659(c), 660(a) and (b). Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 9, 1991SECRETARY OF LABOR, Complainant, v. DELFORD INDUSTRIES, INC., Respondent.OSHRC Docket Nos. 89-1263and 89-1753NOTICE OF WITHDRAWALThe Secretary of Labor notifies the Commission and the parties that she herebywithdraws Citation No. 1, Item 9, which was at issue in this litigation.\u00a0 29 C.F.R.? 1910.304(f)(5)(v).\u00a0 The administrative law judge agreed and petition, ChairmanFoulke granted discretionary review to determine, inter alia , whether theamendment was not proper.\u00a0 Neither Delford nor Judge Burroughs specified the precisesubsection of 29 C.F.R. ?1910.304(f)(5)(v) which applied to the admittedly ungroundedplug on Delford’s chemical tank, and the Secretary was unable to determine thatsubsections applies.\u00a0 The only subsection that could conceivably apply would be 29C.F.R. ?1910.304(f)(5)(v)(c)(5); however, the evidence of the record makes it unlikelythat Delford’s chemical tank fits within the definition of \”appliances\” as setforth at 29 C.F.R.\u00a0 ?1910.399(a)(6).\u00a0 To the contrary, the Secretary believesthe standard most likely to apply to the facts as brought out at at the hearing is 29C.F.R. ?1910.304(f)(4)(iv)(B).\u00a0 However, the administrative law judge’s finding ofviolation under 29 C.F.R. ?1910.304(f)(5)(v) (1990) is not tenable on the record, andthat no Rule 15(b) motion to amend the citation to specify the more applicable standard isappropriate at this time.\u00a0 The Secretary therefore withdraws her citation in thiscase.\u00a0 See generally, Cuyahoga ValleyRy. Co. v. United Transportation Union,474 U.S. 3 (1985) (Secretary of Labor retains prosecutorial disecutorial discretion at allstages of litigation.)Respectfully submitted.David S. FortneyDeputy Solicitor of LaborCynthia L. Attwood Associate Solictor for Occupational Safety and HealthDonald G. ShalhoubDeputy Associate Solictor forOccupational Safety and HealthDaniel J. Mick Counsel for RegionalTrial LitigationLaura V. FargasAttorneySECRETARY OF LABOR, Complainant, v. DELFORD INDUSTRIES, INC., Respondent.OSHRC Docket Nos. 89-1263 and 89-1753ORDER These consolidated cases were directed forreview by Chairman Edwin G. Foulke, Jr., on December 11, 1990.\u00a0 Review was directedonly on issues involving Docket No. 89-1263.\u00a0 Review was not directed on any issueinvolving Docket No. 89-1753. Under Commission Rule of Procedure 92 (a), 29 C.F.R. ?2200.92 (a), however, the direction for review established jurisdiction in the Commissionto review \”the entire case, \” that is, all issues in Docket Nos. 89-1263 and89-1753.\u00a0 Having reviewed the entire record, the Commission now finds that there isno compelling public interest that would warrant further review of the issues presented inDocket No. 89-1753.Accordingly, on the Commission’s own motionpursuant to Commission Rule of Procedure 10, 29 C.F.R. ? 2200.10, Docket No. 89-1753 issevered and the judge’s decision as to that docket number is deemed a final order of theCommission.\u00a0 Docket No. 89-1263 remains pending before the Commission on review.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: January 17, 1991SECRETARY OF LABOR, Complainant, v. DELFORD INDUSTRIES, INC., Respondent.OSHRC Docket Nos. 89-1263 and 89-1753 (Consolidated)APPEARANCES: Diane C. Sherman, Esquire, Office of theSolicitor, U.S. Department of Labor, New York, New York, on behalf of complainant.Robert Reach, Jr., President, DelfordIndustries, Inc., Middletown, New York, on behalf of respondent.DECISION AND ORDERBurroughs, Judge:\u00a0 Delford Industries,Inc., (\”Delford\”), a manufacturer of rubber extrusion products, contests aserious and \”other\” citations issued to it on April 3, 1989 (Docket No, 89-1263)and a serious citation issued to it on May 15, 1989 (Docket No. 89-1753).\u00a0 The caseswere consolidated at the commencement of the hearing (Tr. 3).Compliance Officer Terri Harding arrived atDelford’s place of business in Middletown, New York, on February 14, 1989.\u00a0 Afterexamining the OSHA 200 logs, Ms. Harding requested permission to conduct an inspection(Tr. 14-17).\u00a0 She was told to obtain a search warrant.\u00a0 Permission having beenrefused, she left the premises (Tr. 17).\u00a0 At a subsequent date, Ms. Harding wasadvised that Delford would consent to the inspection.\u00a0 She returned on February 22,1989, with Eileen Walsh, an industrial hygienist (Tr. 165, 168), and conducted awalk-around inspection Tr. 19-20).DOCKET NO. 89-1263SERIOUS CITATIONItem 1Alleged Violation of 29 C.F.R. ?1910.23(a)(5)The Secretary charges that Delford was inviolation of ? 1910.23(a)(5), [[1]] because an alleged trapdoor floor opening, measuring19 inches by 17 inches and 30 inches deep, in the water pit area of the mill room, wasunguarded.\u00a0 Delford presents two defenses to the allegation.\u00a0 It contends thatthe opening was not a pit or trapdoor floor opening and that, even if there was a pit ortrapdoor floor opening, the standard is still inapplicable.\u00a0 According to Delford,the applicability of the standard depends on the pit or trapdoor opening being used on aninfrequent basis.\u00a0 It contends that the alleged area was a walkway frequently used byemployees.Ms. Harding observed a couple of floor planksmissing \”in a walkway\” leading to the water pit in the mill room.\u00a0 Themissing planks left an opening measuring approximately 19 inches by 17 inches.\u00a0 Theopening was 30 inches [[2]] deep.\u00a0 The walkway was used by employees to gain accessto the electrical services and the water pit (Tr. 20-27).\u00a0 Exhibit C-1 is aphotograph of the area (Tr. 27-28).\u00a0 The photograph was taken after the planks hadbeen replaced (Tr. 28).\u00a0 When Ms. Harding observed the opening, it was not covered,no one was in attendance around the opening, and it was not guarded by guardrails (Tr.29-30).\u00a0 The opening was in plain view of anyone passing in the area (Tr. 32-33).Ms. Harding testified, after looking at hernotes, that the walkway was used approximately once a week (Tr. 22).\u00a0 She was notaware from whom she secured this information (Tr. 24-25).\u00a0 She later stated that shetalked with Mr. Reach and that he told her that it was used to gain access to the pit andto the electrical installations (Tr. 25).\u00a0 The walkway was the main access to the pitarea (Tr. 27).Ms. Harding makes reference to the cited area asa \”walkway\” leading to the water pit (Tr. 20, 21).\u00a0 The two planks weremissing from the walkway.\u00a0 She does not describe the area of the missing planks as apit or trapdoor.[[3]]\u00a0 The standard, by express wording, applies to \”every pitand trapdoor floor opening.\”\u00a0 The language of the standard is plain andunambiguous.\u00a0 While the walkway in question provided access to the water pit, thisdoes not make the walkway a pit or trapdoor floor opening.\u00a0 The cited violation wasthe hazard created by missing planks in the walkway.\u00a0 The condition of the pit wasnot cited.\u00a0 The photograph of the two planks (Ex. C-1) reveals that they were notcovering a water pit or trapdoor floor opening.The Secretary has the burden of proof inestablishing the applicability of the standard.\u00a0 Astra Pharmaceuticals, Inc.,82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1979).\u00a0 Inher brief, the Secretary represents that [t]he opening was caused by the absence of two ofseveral planks which provided a cover to a pit and also served as a walkway.\” \u00a0The representation goes beyond the established evidence.\u00a0 The evidence does notestablish that the planks \”provided a cover to a pit.\” The Secretary’s principalwitness testified that the cited area was \”a walkway leading to the water pit\”(emphasis added) (Tr. 21). The evidence does not establish what the planks cover (Seefootnote 3).\u00a0 The Secretary has failed to establish the two missing planksconstituted a trapdoor floor opening or were a pit cover.\u00a0 The alleged violation isvacated.Item 2Alleged Violation of 29 C.F.R. ?1910.23(c)(1)The Secretary withdrew item two of the seriouscitation which alleged a violation of ? 1910.23(c)(1) (Tr. 35).Item 3Alleged Violation of 29 C.F.R. ?1910.212(a)(1)The Secretary alleges that Delford was inviolation of ? 1910.212(a)(1), because splicing and injection presses had unguarded pinchpoints created by a gap between the upper portion of the dies and the cylinder.\u00a0 Apinch point is allegedly created as the die ascends to rejoin the upper portion of thecylinder (Tr. 40, 41).\u00a0 Delford submits that the presses had two-hand trippingdevices and that it was in compliance with the standard.\u00a0 The presses were equippedwith two-hand tripping devices, but they were not operational. The devices had beendisconnected or were in a state of disrepair.\u00a0 The issue must be decided on the basisof how the presses were being operated at the time of inspection.The purpose of the splicing press is to join twoflexible rubber pieces into one.\u00a0 This procedure is performed by the machine operatorplacing floppy rubber material into the die area and then activating the press.\u00a0 Whenthe press is activated, the die descends and joins the two pieces (Tr. 36, 37, 42). \u00a0Where the pieces are joined is the point of operation (Tr. 41).\u00a0 (The unguarded pointof operation is a separate allegation.)\u00a0 The unguarded pinch point cited in thisallegation occurs as the process ends and the upper die ascends to rejoin the uppercylinder (Tr. 38-40, 41).\u00a0 The gap exists between the upper portion of the die plateand the cylinder above it (Exs. C-2, C-3 C-4; Tr. 38).\u00a0 The size of the gap betweenthe upper die in its descended position and the cylinder is 3-3\/4 inches (Tr. 39,113).\u00a0 It is this gap that is closed as the upper die ascends to the upper cylinderand creates a pinch point between the upper die and the cylinder.\u00a0 The injection andsplicing processes are similar in operation (Tr. 37-42).The operator stands directly in front of thepress while feeding materials into the die area.\u00a0 Once the material has been placedin the point of operation, the press is activated by a lever which is located above and tothe left of the cylinder (Ex. C-2; Tr. 39-40). Harding testified that the operator’s handscould be within the die area when the cylinder is descending (Tr. 40).\u00a0 She latertestified that, when the left hand activates the lever, the right hand is free to goanywhere (Tr. 42).\u00a0 The material is placed in the die area or point of operation byhand.\u00a0 Ms. Harding later testified that the employee would have to hold onto thefloppy material while the machine is activated (Tr. 49).\u00a0 If the machine is activatedwith the left hand, then the right hand would be holding the material while it isactivated.Section 1910.212(a)(1) [[4]] is a general,introductory standard setting forth guarding requirements to \”all machines.\”\u00a0 Faultless Div., Bliss & Laughlin Industries., Inc. v. Secretary ofLabor, 674 F.2d 1177 (7th Cir. 1982).\u00a0 In order to establish a violation of ?1910.212(a)(1), the Secretary must first prove the existence of a hazard which is revealed\”by how the machine functions and how it is operated by the employees.\”\u00a0 StacyMfg. Co., 82 OSAHRC 14\/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ? 25,965 (No. 76-1656,1982).\u00a0 A potential hazard in this case would exist as the upper die, which descendedto mold the two rubber pieces together, ascends to rejoin the upper cylinder.\u00a0 Thedescending of the die causes a 3-3\/4-inch gap that is closed as the upper die ascends tothe cylinder.\u00a0 It is obvious that anyone inadvertently placing a finger or hand intothe gap as the die ascends would be exposed to injury.The crux of the dispute is how likely the work habit or environment of the operator wouldpermit an inadvertent or accidental placing of hands or fingers in the gap. \u00a0Unfortunately, too many relevant facts are left to the imagination–an imperfect mannerfor determining a hazard.\u00a0 The evidence does not show that the operator had anyreason to place his hands or fingers in the gap area as the die ascends.\u00a0 The recorddoes not state how fast the die ascends.\u00a0 Ms. Harding’s testimony as to whether theright hand is free or is holding the floppy rubber material in the die as the press isactivated by the left hand is inconsistent.\u00a0 If the right hand is holding materials,it is difficult to see how Ms. Harding could conclude it was free to accidentally contactthe gap area.\u00a0 If the operator places the material by hand into the point ofoperation and holds it until the upper die descends and molds the two pieces, it isdoubtful that he would have time to get a finger or hand in the gap area.\u00a0 This isespecially true in light of Ms. Harding’s later testimony that the stock is removed byhand after the operation is completed (Tr. 49).\u00a0 She also testified that the stock isadjusted in the die by hand.\u00a0 The evidence does not disclose how close the right handis to the gap area as the operator holds it when the die ascends and when he removes thematerial as the die ascends.In determining whether a hazard exists, allcircumstances, including the manner in which the machine functions and how it is operatedby the employees, must be considered.\u00a0 Rockwell International Corp., 80 OSAHRC118\/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980).\u00a0 The operation ofthe presses does not require that the operator place his hand in the gap area.The evidence of whether a hazard exists inoperation of the presses is left to speculation and conjecture.\u00a0 The evidence is tooincomplete to conclude a hazard existed.\u00a0 The more fact that the gap was unguardedand that it was not impossible for an employee to get his hands or fingers in the areadoes not demonstrate that the operator was exposed to a hazard.\u00a0 Cf., Armour FoodCo., 1990 OSAHRC BNA OSHC 1990 CCH OSHD ? (No. 86-247, September 24, 1990).\u00a0 TheSecretary failed to show the location of the hands as the die ascends.\u00a0 The evidencefails to disclose any reason or occasion for an employee’s hands or fingers to come intocontact with the gap.The Secretary must show a more directrelationship between the manner in which the press is operated and the hazard presented bythe gap.\u00a0 For instance, at what speed did the die ascend and how close were theoperator’s hands to the gap area as he removed the stock from the die.\u00a0 Since thereare no reported injuries, there is no evidence to show that the hazard was realistic whenconsidered in relation to the manner in which the press was operated.\u00a0 The lack ofinjuries, although not conclusive, buttresses arguments that there was no exposure toinjury.\u00a0 Rockwell International Corp., supra.\u00a0 The Secretary has failedto meet her burden of proof.\u00a0 The alleged violation of ? 1910.212(a)(1) is vacated.Item 4Alleged Violation of 29 C.F.R. ?1910.212(a)(3)(ii)The alleged violation of ? 1910.212(a)(3)(ii)involves the same splicers covered under the previous allegation concerning pinch points(Tr. 46, 47).\u00a0 The Secretary contends that the splicers violated ?1910.212(a)(3)(ii) since the point of operation was unguarded (Tr. 46).\u00a0 Aspreviously discussed under item three, the splicers were equipped with two-hand trippingdevices, but none of them were operational (Tr. 48-49).\u00a0 The splicer was activated bya lever located in the area of the timer on the upper left of the splicer (Tr. 47, 48-49).The operator stands in front of the splicer andtakes two pieces of the stock, a floppy rubber material, and places it into the point ofoperation by hand.\u00a0 The left hand is normally used to activate the splicer. \u00a0According to Harding, this leaves the right-hand free to be in any area of the die orpress (Tr. 47).\u00a0 This statement is inconsistent with later testimony that theemployees would have to hold onto the floppy material while the press is activated (Tr.49).\u00a0 If this is the case, then the statement that the right hand is free to be inany area of the die or press can’t be true.\u00a0 Her testimony that the material isremoved from the die by hand (Tr. 49) is also inconsistent with the statement that theright hand is free.\u00a0 The opening between the two dies where the stock is placed is2-1\/4 inches (Tr. 47-48).Section 1910.212(a)(3)(ii) [[5]] requires thatthe point of operation of a machine be guarded if the operator is exposed to injury, andthat the guarding device be so designed and constructed as to prevent the operator fromhaving any part of his body in the danger zone during the operating cycle.\u00a0 Thestandard, by express wording, requires that the point of operation expose an employee toinjury before the employer has to guard it.\u00a0 Rockwell International Corp., 80OSAHRC 118\/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980).\u00a0 \”Themere fact that it [is] not impossible for an employee to insert his hands [in the point ofoperation] does not itself prove that the point of operation exposes him to injury. \u00a0Whether a machine presents a hazard must be determined by how the machine functions andhow it is operated by employees.\”\u00a0 Rockwell International Corp., supra, 9BNA OSHC at 1097-98.\u00a0 In order to prove a violation of ? 1910.212(a)(3)(ii), theSecretary must establish that (1) the point of operation of the splicers was unguarded,and (2) that the operation of the splicers exposed employees to injury.\u00a0 TheSecretary has established the first point but has failed in meeting her burden of proof onthe second point.Once again, relevant details as to how thesplicers function and are operated by employees are missing. [[6]] Ms. Harding assumesthere is a violation since the point of operation is not guarded. There is no dispute overthis fact; but, before guarding is required, the Secretary must show that the operator isexposed to injury as a result of the manner in which the splicer is utilized. While Ms.Harding testified that the operator’s hands were \”in close proximity to thedie,\” (Tr. 47) it is impossible to find a violation on this fact. The words\”close proximity\” are too nebulous in meaning to assume that there was any realdanger in operating the splicers. [[7]] The descriptive words \”close proximity\”are of little value unless they are defined in terms of precise measurements, e.g., ininches. The Commission’s purpose is to afford an employer an independent review of theSecretary’s allegations. This purpose would be defeated if the Commission decided theissue on such nebulous terminology. In this instance, does \”close proximity\”mean within two feet or two inches? (See footnote 7.) The party having the burden of proofmust suffer the consequences for any failure to present sufficient facts in support of thealleged violation.Accordingly, the allegation is vacated.Item 5Alleged Violation of 29 C.F.R. ?1910.212(a)(4)The Secretary alleges that Delford violated ?1910.212(a)(4) by its failure to have an interlocking barrier guard on a tumbler in thewash area that was ten feet, two inches, long and three feet in diameter.\u00a0 This factis not disputed.\u00a0 Delford argues that the configuration of the tumbler, table, andlocation of the control button protect an employee from any injuries.A large tumbler was used in the wash area towash parts.\u00a0 The parts to be washed are loaded through two front doors of thetumbler.\u00a0 A control button for the tumbler is located on the right at the end of thetumbler and away from the movement of the tumbler.\u00a0 The tumbler is approximately tenfeet long and three feet in diameter (Exs. C-5, C-6; Tr. 52-53, 119).\u00a0 A metal table,two feet in width, is welded into place in front of the tumbler and extends a foot or morebeyond the length of the tumbler (Exs. C-5, C-6; Tr. 120).\u00a0 The employee stands atthe control while activating the tumbler (Tr. 54).\u00a0 The control is located withininches of the end of the tumbler (Ex. C-6).\u00a0 Employees operating the controls wouldbe at the end of the table and within a few inches of the end of the tumbler (Ex. C-6; Tr.119).While Ms. Harding states that employees would beexposed to brushing up against the tumbler or the tumbler edge (Tr. 54), this does notappear to be a realistic hazard.\u00a0 The configuration of the tumbler and metal tableprotruding in front and beyond the ends would prevent any accidental brushing up againstit.\u00a0 The table was two feet wide (Tr. 120). The employee would have to climb onto themetal table to brush up against the tumbler.\u00a0 He could reach the end by hand, but theplacement of the controls and metal table are such that any hand of an employee that comesbetween the frame holding the tumbler and the tumbler would have to be deliberate. (SeeExs. C-5, C-6).\u00a0 While Ms. Harding testified that the operator’s hands could becrushed if he got them in the area between the tumbler and the frame, a look at exhibitsC-5 and C-6 dispels her theory.\u00a0 The distance between the control and tumbler at theend is too large to crush anyone’s hand if it accidentally got in the area between thetumbler and the control.\u00a0 Ms. Harding did not see the tumbler in operation (Tr. 122)and is only guessing as to potential hazards.Section 1910.212(a)(4) requires revolving drums to be guarded by an enclosure which isinterlocked with the drive mechanism so that the drum cannot revolve unless the guardenclosure is in place.\u00a0 The standard must be read in conjunction with ?1910.212(a)(1) which states machine guarding \”shall be provided to protect theoperator and other employees in the machine area from hazards.\”\u00a0 The Secretaryhas failed to show that the operation of the tumbler presents any hazard to employees.\u00a0 The configuration of the tumbler in relation to the metal table and the location ofthe control buttons make it impossible for someone to accidentally brush up against thetumbler.\u00a0 The fact that there is no history of injuries from the operation of thetumbler buttresses the conclusion that there was no realistic exposure to a hazard.Rockwell International Corp., supra.\u00a0 The alleged violation is vacated.Item 6Alleged Violation of 29 C.F.R. ?1910.219(c)(4)(i)The Secretary alleges Delford violated ?1910.219(c)(4)(i) for failure to guard a projecting shaft from a motor in the Banbury Roomof the pit area with a safety sleeve.\u00a0 The standard states:(4) Projecting shaft ends.\u00a0 (i) Projectingshaft ends shall present a smooth edge and end and shall not project more than one-halfthe diameter of the shaft unless guarded by nonrotating caps or safety sleeves.The diameter of the shaft was three inches.\u00a0 The projection was six inches.\u00a0 Since the shaft projected more than one-halfof the diameter, the standard is applicable.\u00a0 There is no dispute that the shaft wasnot guarded by a nonrotating cap or safety sleeve. The shaft had a keyway cut into it (Ex.C-7; Tr. 58-60).Ms. Harding testified that the shaft was in anexposed area where someone could walk by it. On direct examination, she indicated that anemployee might enter the area to perform maintenance or to make adjustments to theequipment in the area (Tr. 59). She was concerned that an employee could brush up againstthe shaft (Tr. 60). Her testimony in regard to employees in the pit area is inconsistent.She first testified that she did not ask the operator for what reason he would enter thepit (Tr. 137-138). She then stated that the operator did not tell her for what purpose hewent into the pit; but, when pressed under cross-examination, she stated the operator said\”maintenance of the area\” (Tr. 139). She displayed little knowledge of the pitarea or what maintenance would be performed (Tr. 134-141). There is no evidence she sawanyone in the pit area. She admitted it was not a heavily traveled area (Tr. 142).Ms. Harding’s testimony is considered to benebulous and inconsistent.\u00a0 There is no evidence of any exposure to the rotatingshaft. There is no description of the pit area.\u00a0 Its dimensions are unknown and thereis no evidence as to how close anyone would come to the rotating shaft if they entered thepit area. While the shaft was unguarded, employees did not work in the area and theevidence indicates that maintenance duties would be the only reason to enter the pit. Ms.Harding assumes exposure if anyone enters the pit. No reason is offered as to why anyonewould have to approach the shaft even if they entered the pit. The relation of the shaftto walk areas in the pit is unknown. Once again, the Secretary has failed to provesufficient facts to allow a thoughtful and incisive independent review of the violation.\u00a0 The point is not whether Ms. Harding thinks there was a violation but whether thefacts of record support a violation. The paucity of facts prevent a finding of exposure inthis instance.\u00a0 The alleged violation is vacated. [[9]]Item 7Alleged Violation of 29 C.F.R. ?1910.219(e)(5)(i)The Secretary alleges that Delford was inviolation of ? 1910.219(e)(5)(i) for failure to guard the nip points of a three-inch wideleather belt with metal lacing on the Rusnak Tool Works milling machine in the machineshop and the lower portion of a one-half inch V-belt and cone pulley on coiler and packmachines one, two and three.\u00a0 Section 1910.219(e)(5)(i) provides:(5) Cone-pulley belts. (i) The cone belt andpulley shall be equipped with a belt shifter so constructed as to adequately guard the nippoint of the belt and pulley.\u00a0 If the same of the belt shifter does not adequatelyguard the nip point of the belt and pulley, the nip point shall be further protected bymeans of a vertical guard placed in front of the pulley and extending at least to the topof the largest step of the cone.There is no dispute over the fact that the coneand belt pulleys were not equipped with a belt shifter (Tr. 65).Ms. Harding observed two separate areas of theplant that had unprotected cone belts and pulleys (Tr. 61).\u00a0 One unprotected belt wasa three-inch wide leather belt with metal lacing that was on a Rusnak Tool Works millingmachine in the machine shop.\u00a0 The other belt was a one-half-inch V-belt located inthe microwave extrusion area on three separate machines.\u00a0 The belts at both locationswere located less than seven feet from the floor (Tr. 61-67).\u00a0 Nip points werecreated where the belt ran onto the pulley (Tr. 65).The operator stands in front of the milling machine to perform his work.\u00a0 The beltpulley is located \”Just above and back a little from the [operator’s] hand area\”(Tr. 63). When operating the coiler and pack machines one, two and three, the operatorstands in \”close proximity\” but not directly at the cone and pulley (Tr. 63-64).\u00a0 Ms. Harding later revealed that the operator stands approximately two feet from thecone and pulley (Tr. 64).\u00a0 Harding also testified that there were areas one couldwalk around the machine (Tr. 64).\u00a0 She was unable to describe the coiler and packmachines (Tr. 64).In Astra Pharmaceutical Products, Inc., supra,the Commission stated that the Secretary, in order to prove a violation of section 5 (a)(2) of the Act, must show by a preponderance of the evidence that (1) the cited standardapplies, (2) there was a failure to comply with the cited standard, (3) employees hadaccess to the violative condition, and (4) the cited employer either knew or could haveknown of the condition with the exercise of reasonable diligence.\u00a0 There is no doubtconcerning the applicability of the cited standard or that Delford failed to comply withthe standard.\u00a0 The focus is on whether employees had access to the violativecondition in carrying out their job duties.\u00a0 The cone and pulleys were less thanseven feet from the floor.\u00a0 This fact is undisputed. The cone and pulley on theRusnak Tool Works milling machine was described as follows in relation to the operator:\u00a0 \”Just above and back a little bit from his head area\” (Tr. 63).\u00a0 Theoperator’s location with respect to the coiler and pack machines was described as follows(Tr. 64):Q.\u00a0 Where does the operator stand inrelationship to that machine?A.\u00a0 He would stand in close proximity but not directly at the cone and pulley.Q.\u00a0 How far would you say he would be from the cone belts and pulley?A.\u00a0 In that instance, a couple of feet.It is also noted that Ms. Harding was unable todescribe the coil and pack machines (Tr. 143).\u00a0 She could recall no injuriesresulting from unguarded cone and pulleys on the coil and pack machines (Tr. 145).The language used by Ms. Harding, for the mostpart, was not specific enough to conclude that the operation of the machines exposedanyone to the violative conditions.\u00a0 This fact, combined with her lack of knowledgeof the coil and pack machines (Tr. 143), is persuasive in concluding that the Secretaryhas failed to meet her burden of proof.\u00a0 There is no evidence as to where the coneand pulley are located on the machines or their location in relationship to the operator.\u00a0 The exposure must be one that is realistic and can be expected to bring theemployee in contact with the cone and pulley during normal operation of the machines. Thefact that he can touch the cone and pulley by a deliberate act of reaching in isinsufficient to meet the burden of proving he had access to the violative condition.\u00a0 The allegations are vacated.Item 8Alleged Violation of 29 C.F.R. ?1910.219(i)(2)The Secretary alleges Delford violated therequirements of ? 1910.219(i)(2) in three separate instances:\u00a0 (1) the Banbury motorlocated in the Banbury Room of the pit area had revolving couplings that were not guarded;(2) the couplings for the brake on the number four milling machine were unguarded, and (3)the number one milling machine had a midrail lacking near the hand brake and there was noguardrail near the operator station.Ms. Harding testified that she observed threeseparate instances where employees were exposed to unguarded revolving couplings (Tr.67-68).\u00a0 A coupling on one of the milling machines was only partially guarded (Ex.C-8). Ms Harding testified that a coupling on the motor located in the Banbury Room of thepit area was unprotected (Ex. C-7; Tr. 68) and that the number one and number four millingmachines had unguarded couplings (Tr. 68).\u00a0 She stated that anyone passing by theareas of the unguarded couplings or performing maintenance in the area would be exposed tothe hazard (Tr. 68).\u00a0 Exhibit C-8 is a photograph of a partially guarded coupling ona milling machine. It also shows partial guardrails in the area Tr. 69). While it is truethat the coupling is only partially guarded, the statement by Ms. Harding that an employeeworking or walking in the area would come into contact with the revolving coupling bearslittle relationship to reality.\u00a0 A quick glance at the photograph of the partiallyguarded coupling easily reveals that employees are prevented from accidentally contactingthe coupling by its location within the configuration of the machine (Ex. C-8). Anemployee would have to make a deliberate attempt to contact the coupling.\u00a0 There wasno realistic exposure to the violative condition.Exhibit C-7 is a photograph of the unprotectedcoupling on the motor located in the Banbury Room of the pit area.\u00a0 The coupling isinaccessible by virtue of its location.\u00a0 It is located so far inside the machine thatit would be difficult to reach even if an employee made a deliberate attempt to touch it.\u00a0 Again, there was no realistic exposure to the violative condition.\u00a0 The factthat a coupling is unprotected or only partially protected does not automatically resultin a violation of the standard.The unguarded coupling on the other millingmachine is not described.\u00a0 It is, therefore, impossible to judge whether or not therewas exposure to the violative condition, a fact which must be proved by the Secretary.\u00a0 Ms. Harding’s testimony that any employee passing by the couplings would lieexposed is not supported by the photographs (Exs. C-7, C-B).\u00a0 Ms. Harding isunrealistic on this item, as she has been on other items, as to what constitutes exposure.\u00a0 The allegations are vacated.Item 9Alleged Violation of 29 C.F.R.?1910.304(f)(1)(iv) The Secretary alleges that Delford violated ?1910.304(f)(1)(iv) [[10]] since it had in use an electrical motor with an ungrounded leadcord.\u00a0 The motor operated on 110 volts (Tr. 73-74).\u00a0 The standard requiresground of AC systems of 50 volts to 1000 volts. Delford argues that the applicablestandard is ? 1910.304(f)(5)(v) which covers \”Equipment connected by cord orplug.\”Ms. Harding testified that the chemical tank inthe boiler room had an electrical motor with an ungrounded lead cord.\u00a0 The electricalsystem was AC and carried 110 volts.\u00a0 The ground prong was missing from the lead cord(Tr. 73-74).\u00a0 The motor was used to operate the number two chemical tank (Tr. 74).The boiler room was a wet area of the plant (Tr. 75).\u00a0 Ms. Harding testified that thework of employees would cause them to come into contact with the chemical tank (Tr. 74).Paragraph (f) of ? 1910.304 is entitled\”Grounding\” and states that paragraphs (f)(1) through (f)(7) contain groundingrequirements for systems, conduits and equipment.\u00a0 The specific provision cited bythe Secretary [(f)(1)(iv)] refers to AC systems.\u00a0 The provision which Delfordcontends is applicable [(f)(5)(v)] refers to \”Equipment connected by cord andplug.\”\u00a0 The evidence is clear that Delford was cited because the ground prongwas missing from the lead cord.\u00a0 There is no allegation that the AC system was notgrounded as required by ? 1910.304(f)(1)(iv).\u00a0 The allegation has reference to theremoval of the ground prong from the lead cord. Section 1910.304(f)(5)(v) specificallyapplies to grounding of cord and plug connections.\u00a0 Accordingly, the allegedviolation of ? 1910.304(f)(1)(iv) is vacated.Although the alleged violation is vacated, theevidence reflects a violation of another standard.\u00a0 The facts are not disputed andsupport a violation of ? 1910.304(f)(5)(v).\u00a0 The violation consisted of the removalof the ground prong on the plug of the cord. Where the undisputed facts of record supporta different standard from that alleged, an amendment to conform to the proof, pursuant toRule 15 (b) of the Federal Rules of Civil Procedure, is in order and is usually grantedunless the employer is prejudiced by its being granted.\u00a0 \”[I]t is important toemphasize that pleadings before the Commission are to be liberally construed and easilyamended.\”\u00a0 Bill C. Carroll Co., 79 OSAHRC 87\/C13, 7 BNA OSHC 1806, 1809,1979 CCH OSHD ? 23,940 (No. 76-2748, 1979).\u00a0 Whether a party is prejudiced bygranting an amendment involves the issue of \”whether the party opposing thatamendment was denied a fair opportunity to prepare and present its cases on the merits,and whether it could offer additional evidence if the case were tried again on a differenttheory.\”\u00a0 Moran and Culpepper, Inc., 81 OSAHRC 26\/A2, 9 BNA OSHC 15331537, 1981 CCH OSHD ? 25,293 (No. 9850, 1981).The allegation points is a simple matter that inundisputed–the ground prong had been removed.\u00a0 The removal of the prong resulted inthe violation. Amending the pleadings to find a violation of ? 1910.304(f)(5)(v) will notprejudice Delford.\u00a0 There is no dispute over the relevant fact.\u00a0 Accordingly, anamendment is granted and a violation of ? 1910.304(f)(5)(v) is determined from the factsof record.\”OTHER\” CITATION Item 1Alleged Violation of 29 C.F.R. ?1910.22(a)(1)The Secretary alleges that Delford was inviolation of ? 1910.22(a)(1) because the back exit from the Banbury Room leading to themain floor had debris in the stairway landing.\u00a0 Delford does not argue that somedebris might have been on the stairway landing but states it was there temporarily. \u00a0According to Delford, \”[t]he alleged condition was transitory and selfabated.\”\u00a0 It further states that the condition presented no direct or immediatehazard to employees.Ms. Harding observed an exit leading from theBanbury Room was cluttered with various debris–rags, paper and containers. Approximatelyhalf of the landing was taken up with the debris (Tr. 76-78). The debris did notcompletely block the stairs.\u00a0 Anyone traversing the stairs could pass to the leftside of the debris (Tr. 78).The cited standard, ? 1910.22(a)(1), is clearin its requirements.\u00a0 It provide:All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.The standard requires all passageways to be keptin a clean and orderly condition.\u00a0 The landing to the stairs from the room wascovered with debris. The debris would present a hazard to employees as they traversed thearea.\u00a0 The violation has been established.Item 2Alleged Violation of 29 C.F.R. ?1910.37(k)(2)The Secretary alleges that Delford was inviolation of 1910.37(k)(2) due to the fact the exit door in the Banbury Mill Area wasblocked by barrels of chemicals.\u00a0 Delford argues that this was a temporary conditionresulting from the barrels having been just delivered.\u00a0 It also argues that therewere at least two other exits and an overhead door.Ms. Harding observed that the rear exit door inthe Banbury Mill Area was blocked by barrels of chemicals (Tr. 78-79).\u00a0 Employeeswere working in the room (Tr. 79).\u00a0 The photograph placed into evidence by theSecretary supports the testimony of Ms. Harding (Ex. C-9).\u00a0 The photograph clearlyshows the exit door blocked by several barrels.\u00a0 An overhead door was located besidesthe exit door.\u00a0 It was in the down position (Ex. C-9; Tr. 156).\u00a0 There were atleast two other exits from the area that did not include the overhead door (Tr. 156).Section 1920.37(k)(2) provides that\”[m]eans of egress shall be continuously maintained free of all obstructions orimpediments to full instant use in the case of fire or other emergency.\”\u00a0 Thestandard, by the use of the words \”continuously maintained free\” and \”fullinstant use,\” places an employer on notice that temporary unloading which blocks anexit is prohibited by the standard. Emergencies usually arise without advance notice.\u00a0 It is important that all exits be kept free at all times because of this fact.\u00a0 Delford’s argument that it was a temporary condition has no merit.\u00a0 Thestandard further refers to \”means of egress\” which would include all exits.\u00a0 The fact there were at least two other exits does not excuse the fact that the exitwas blocked.\u00a0 In the confusion of a fire or other emergency, there is no assurancethat all persons in the building will know or remember which exit or exits are blocked.\u00a0 The alleged violation is affirmed.Item 3Alleged Violation of 29 C.F.R. ? 1910.101(b)The Secretary alleges that Delford was inviolation of ? 1910.101(b), because a cylinder of nitrogen in the Banbury pit area wasunsecured.\u00a0 The citation was amended by paragraph XVI of the complaint to reflectthat Delford did not comply with section 3.2.3 and\/or 3.3.8 of the Compressed GasAssociation Pamphlet P-1-1965 rather than section 3.4.4 referenced in the citation. \u00a0Delford argues that the failure of the Secretary to divulge the contents of the CompressedGas Association Pamphlet P-1-1965 referenced in the standard refutes the allegation madeby the Secretary.Ms. Harding observed a cylinder of nitrogen inthe Banbury Pit area.\u00a0 It was located at the base of the stairway which led into thepit along the left wall.\u00a0 It was not secured (Tr. 80).\u00a0 Employees using thestairs to go down to the pit area were exposed to the condition (Tr. 81).Section 1910.101(b) [[11]] makes reference to Compressed Gas Association PamphletP-1-1965.\u00a0 The sections referenced in the complaint provide:3.2.3 Never drop cylinders nor permit them tostrike against each other or against other surfaces violently.3.3.8 Protect cylinders from any object thatwill produce a cut or other abrasion in the surface of the metal. Do not store cylindersnear elevators or gangways, or in locations where heavy moving objects may strike or fallon them. Where caps are provided for valve protection, such caps shall be kept oncylinders in storage.The Secretary’s brief relies on section 3.3.8 ofthe pamphlet as the basis for the violation.Section 3.3.8 prohibits storing cylinders nearelevators or gangways or in locations where heavy moving objects may strike or fall onthem.\u00a0 This provision pertains to storing cylinders near elevators or gangways.\u00a0 The alleged violation cited was for having a cylinder of nitrogen unsecured.Section 3.3.8 does not require the cylinders to be secured.\u00a0 Its primary purpose isto protect the cylinder from any object that might produce a cut or other abrasion in themetal. Section 3.2.3 also does not require the cylinders to be secured.The original allegation set forth in thecitation, before amendment, makes reference to section 3.4.4 with the statement that onecylinder of nitrogen was unsecured. Section 3.4 of pamphlet P-1 of 1965 is entitled:\u00a0 \”Withdrawing Cylinder Contents.\”\u00a0 Subsection 3.4.4 states:Before using cylinder, be sure it is properlysupported to prevent it from being knocked over.There is no evidence the nitrogen cylinder wasin use.\u00a0 Ms. Harding noticed the cylinder at the base of the stairway.\u00a0 Delfordwas cited because the cylinder was unsecured.The Secretary has failed to show that Delfordwas required to secure the cylinder.\u00a0 The sections of the Compressed Gas AssociationPamphlet P-1-1965 referenced by the Secretary do not require the cylinder to be secured.[[12]]\u00a0 The alleged violation is vacated.Item 4Alleged Violation of 29 C.F.R. ?1910.157(e)(3)The Secretary alleges Delford violated ?1910.157(e)(3) by failure to record the date of the assured maintenance check on twoportable fire extinguishers.\u00a0 This section provides, in pertinent part, as follows:The employer shall assure that portable fireextinguishers are subjected to an annual maintenance check . . . The employer shall recordthe annual maintenance date and retain this record for one year after that last entry orthe life of the shell, whichever is less. The record shall be available to the AssistantSecretary upon request.Delford states that the fire extinguishers areinspected constantly by company engineers and that they were approved by an outsidecompany.Ms. Earding observed two fire extinguisherswhich did not have evidence of annual maintenance (Tr. 83).\u00a0 One was located in theBanbury Pit area and the second was located in the machine shop.\u00a0 These facts areundisputed and support the allegation.\u00a0 The alleged violation is affirmed.Delford argues that the fire extinguishers wereinspected.\u00a0 The Secretary has not alleged that an annual maintenance check was notmade.\u00a0 It is the following language in the standard which the Secretary alleges wasviolated:The employer shall record the annual maintenancedate and retain the record for one year after the last entry or the life of the shell,whichever is less.The standard requires an annual maintenance check and the recording of the date.\u00a0 Thestandard states that \”[t]he employer shall record the annual maintenance date.\”\u00a0 The use of the word \”shall\” makes the requirement mandatory.Item 5Alleged Violation of 29 C.F.R. ?1910.215(b)(9)The Secretary alleges Delford violated ?1910.215(b)(9) for failure to have tongue guards on two Baldor grinders located in themachine shop.\u00a0 The grinders have an abrasive wheel which is used to sharpen tool bits(Tr. 84-85).\u00a0 Delford argues that the grinders have a peripheral adjustable memberwhich shields the entire area of the rotating wheel.Ms. Harding observed two Baldor grinders(abrasive wheels) in the machine shop that did not have the necessary tongue guards (Tr.84-85, 98).\u00a0 The left side of one of the grinders was missing a tongue guard and thesecond grinder did not have any tongue guards (Tr. 87).\u00a0 The two grinders had aperiphery guard and work rest (Tr. 85).Section 1910.215(b)(9) provides:Exposure adjustment.\u00a0 Safety guards of thetypes described in subparagraphs (3) and (4) of this paragraph, where the operator standsin front of the opening, shall be constructed so that the peripheral protecting member canbe adjusted to the constantly decreasing diameter of the wheel.\u00a0 The maximum angularexposure above the horizontal plane of the wheel spindle as specified in paragraphs (b)(3) and (4) of this section shall never be exceeded, and the distance between the wheelperiphery and the adjustable tongue or the end of the peripheral member at the top shallnever exceed one-fourth inch.\u00a0 (See Figures 0-18, 0-19, 0-20, 0-21, 0-22, and 0-23).Figures 0-18 and 0-19, as pictured in thestandard, show adjustable tongue guards providing for angular protection for all sizes ofwheels.\u00a0 The tongue guard prevents any flying objects from being thrown out at theemployee using the grinder.\u00a0 The standard specifies that \”the distance betweenthe wheel periphery and the adjustable tongue or the end of the peripheral member at thetop shall never exceed one-fourth inch.\”\u00a0 Since there were no tongue guards,Delford was not in compliance with the standard.\u00a0 The alleged violation is affirmed.Item 6Alleged Violation of 29 C.F.R. ? 1910.303The Secretary alleges Delford violated ?1910.303(f) by virtue of the fact that the disconnects in the mill room were not labeledand there was a circuit breaker panel without adequate labeling in the extrusion area (Tr.88).\u00a0 Delford argues that no hazard was presented by the condition, that the standardonly applies if a hazard exists, and that the Secretary had to prove the presence of ahazard.Ms. Harding observed that disconnects in themill room were not labeled and that there was a circuit breaker in the extrusion areawithout adequate labeling (Tr. 88).\u00a0 There is no dispute over these facts.Section 1910.303(f) provides as follows: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 markings shallbe of sufficient durability to withstand the environment involved.Delford argues that the Secretary has to prove ahazard exists before the standard is applicable.\u00a0 This is not a correct position withrespect to all standards.\u00a0 Some standards, by their express wording, require that ahazard be shown before they are applicable; other standards automatically recognize ahazard which the standard was promulgated to prevent.\u00a0 In such circumstances, it isnot necessary for the Secretary to prove that hazard again. A hazard is presumed if thefacts coincide with the conditions the standard seeks to prevent.\u00a0 In order to provea violation of a particular standard, the first thing the Secretary must do is show by apreponderance, of the evidence that the cited standard applies.\u00a0 AstraPharmaceutical Products, Inc., supra, 9 BNA OSHC at 2129. If the standard requires theSecretary to establish a hazard, then she must prove the hazard to show the standard isapplicable.Section 1910.303(f) does not require that theSecretary prove a hazard before it is applicable.\u00a0 The standard is presumed to havebeen promulgated to prevent a hazard that could arise if the disconnects were not labeled.\u00a0 In this instance, the Secretary must show that the standard is applicable and thatthe disconnects were not marked or were not legibly marked.\u00a0 Ms. Harding’s testimonyis undisputed on these points.\u00a0 The cited condition is controlled by ? 1910.303(f).\u00a0 Delford had disconnects and they were not marked to indicate their purpose.In addition to proving that (1) the citedstandard applies, and (2) that there was a failure to comply with the standard; theSecretary must show that (3) employees had access to the violative condition, and (4) thecited employer either knew or could have known of the condition with the exercise ofreasonable diligence.\u00a0 Astra Pharmaceutical Products, Inc., 9 BNA OSHC at2129.\u00a0 The evidence supports a violation of the standard.\u00a0 The allegation isaffirmed.Item 7Alleged Violation of 29 C. F. R. ?1910.305(g)(1)(iii)The Secretary withdrew the alleged\”other\” violation of ? 1910.305 (g)(1)(iii) (Tr. 90).Item 8Alleged Violation of ? 1910.305(g)(2)(iii)The Secretary alleges Delford violated ?1910.305(g)(2)(iii) because a flexible cord in the microwave extrusion area had a\”pendant with frayed cord due to tension of receptacle without restraint.\”In the microwave extrusion area, a flexible cordin use was not fitted with tension restraints (Ex. C-10; Tr. 90).\u00a0 The photograph ofthe condition shows a pendant cord in disrepair and with no tension restraints (Tr. 91).\u00a0 Two machines were plugged into the receptacle held by the flexible cord (Ex. C-10;Tr. 92).\u00a0 The receptacle was in serious disrepair (Tr. 93). Employees were working inthe area (Tr. 92).Section 1910.305(g)(2)(iii) provides:Flexible cords shall be connected to devices andfittings so that strain relief is provided which will prevent pull from being directlytransmitted to joints or terminal screws.It is undisputed that no strain relief wasprovided.\u00a0 This fact is supported by the photograph entered into evidence as C-10.The alleged violation is affirmed.DOCKET No. 89-1753Alleged Violation of 29 C.F.R. ? 1910.132(a)The Secretary alleges that Delford was inserious violation of ? 1910.132(a) since employees were handling chemicals capable ofcausing skin irritation or contact dermatitis without wearing rubber or chemical-resilientgloves.\u00a0 Delford argues that the compliance officer was unable to differentiatebetween an allergic reaction and dermatitis.It also contends that she did not run any tests proving that the chemicals used actuallycaused dermatitis and offered no proof of the existence of contact dermatitis.\u00a0 It isclaimed that the listing of a rash condition on the Log 200 form does not necessarily meanthat the claim is bona fide.On February 22, 1990, Industrial HygienistEileen M. Walsh conducted an inspection of Delford’s facilities in Middletown, New York.\u00a0 The inspection was based on a complaint received by the local OSHA office.Employees were complaining that there were various instances of contact dermatitis thatoccurred in the plant over a number of years and that nothing could be done about it. Thecomplaint also dealt with the fact that there was a hole in the floor in the Banbury area(Tr. 168).In connection with the inspection, Ms. Walshmade a review of the OSHA 200 logs maintained by Delford for the years 1986, 1987 and1988.\u00a0 The OSHA 200 logs show that during the year 1987, three employees had lostwork days due to contact dermatitis.\u00a0 The OSHA 200 log for 1988 shown that there werethree different instances of contact dermatitis involving the same individual (Tr. 176).Contact dermatitis is a rash or irritation whichcan develop on the hands due to contact with a chemical (Tr. 177).\u00a0 Ms. Walsh spoketo two employees who had had contact dermatitis and one employee who was currentlyexperiencing difficulty with it.\u00a0 She viewed the hands of the individual who hadcontact dermatitis and described the hands as being very raw, red and chapped.\u00a0 Sheindicated that moisture had gone out of the hands and that there was extreme irritation(Tr. 177-178).Ms. Walsh determined that the employees handledchemicals.\u00a0 She asked the management representative what chemicals they used and alsorequested to see the material safety data sheets in those areas where the problems hadbeen occurring (Tr. 178).\u00a0 She reviewed the MSDS’s and Mr. Reach confirmed the factthat the chemicals used by employees were as listed in the MSDS’s (Tr. 179).\u00a0 Shedetermined that the employees handled paraplex, morfax, polyethylene, and sulfads (Tr.178).\u00a0 She determined that anyone having contact with these chemicals could contactdermatitis or possibly more serious illnesses (Tr. 179).\u00a0 Most of the chemicals beingused required neoprene, rubber or chemical resistant gloves (Tr. 179).The Secretary placed into evidence (Ex. C-14)several copies of material safety data sheets which show that the handling of thechemicals or skin contact with the chemicals could lead to dermatitis and possible skinsensitization.\u00a0 All of the chemicals listed in the material safety data sheets arenot used or a daily basis.\u00a0 However, all of them are kept on the premises and areused by the employees at different times (Tr. 180).\u00a0 Ms. Walsh observed thatDelford’s employees were using cotton gloves to handle the chemicals. She considered thecotton gloves to be inadequate protection since they are not chemical resistant (Tr. 184).\u00a0 The employees come into contact with the chemicals as they take them out of thebins and the plastic bags and pour them into a machine (Tr. 184).Respondent’s president, in hiscross-examination, sought to prove that Ms. Walsh had incorrectly referred to thecondition as contact dermatitis.\u00a0 Ms. Walsh admitted that she had no documentationfrom any doctors to confirm the fact that the employees had contact dermatitis (Tr.191-192).\u00a0 She also admitted that she could not tell the difference between anallergy and contact dermatitis (Tr. 192). She further conceded that there were no cases ofskin irritation for the year 1989 (Tr. 194).\u00a0 The OSHA 200 logs for 1987 and 1988recorded cases of contact dermatitis and confirm the fact that it existed among theworkers.\u00a0 Delford made the determination of the cases as they were recorded and itsattempt to repudiate the cases by insinuating that it was a rash is without merit.The standard in issue is broadly worded andimposes a generalized duty to protect employees by the use of whatever personal protectiveequipment is necessary by reason of certain hazards.\u00a0 As a prerequisite toestablishing a violation of ? 1910.132(a), the Secretary must either show that theemployer had actual knowledge that such a hazard existed or that a reasonable personfamiliar with the circumstances would perceive that a hazard exists which warrants the useof protective equipment.\u00a0 Armour Food Co., supra; Owens-CorningFiberglas Corp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ? 23,509 (No.76-4990, 1979), aff’d, 659 F.2d 1285 (5th Cir. 1981). The evidence supports a finding thatDelford knew or should have known that a hazardous condition existed which required theuse of appropriate gloves.\u00a0 The material safety data sheets listed various harmfuleffects to the skin including irritation, contact dermatitis, skin sensitization, and insome instances, skin tumors.\u00a0 The OSHA 200’s listed cases of contact dermatitis whichhad resulted in lost work time.\u00a0 The employees were wearing cotton gloves for someprotection against the chemicals although these gloves were inadequate.\u00a0 The materialsafety data sheets also suggested the use of rubber gloves.\u00a0 The OSHA 200’s and thematerial safety data sheets are strong evidence that a reasonable person, familiar withthe facts and circumstances particular to the industry in which Delford is engaged, wouldbe aware of the hazard.\u00a0 The alleged violation is affirmed.CLASSIFICATION OF VIOLATIONSThe Secretary has alleged that the violations of? 1910.304(f)(1)(iv) and ? 1910.132(a) are serious within the meaning of section 17(k)of the Act. \”To establish that a violation is ‘serious’ it must be shown that thereis a reasonable probability that death or serious physical harm could result from theviolative condition and that the employer knew or with the exercise of reasonablediligence could have known of the presence of the violation.\”\u00a0 WisconsinElectric Power Co., 76 OSAHRC 134\/B2, 4 BNA OSHC 1787, 1976-77 CCH OSHD ? 21,234 atp. 25,532 (No. 5209, 1976), aff’d 567 F.2d 735 (7th Cir. 1977).\u00a0 The Secretary doesnot have to establish the likelihood of an accident before the violation can be classifiedas serious.\u00a0 She \”need only show that an accident is possible and that such anaccident will most likely result in a serious injury.\”\u00a0 Communications, Inc.,79 OSAHRC 61\/A2, 7 BNA OSHC 1598, 16020 1979 CCH OSHD ? 23,759, at p. 28,813 (No.76-1924, 1979), aff’d in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).The violation of ? 1910.304(f)(1)(iv) resultsfrom the fact that a ground prong was missing from the plug which led to an electricalmotor in the boiler room. The system carried 110 volts.\u00a0 As result of the lack of theground plug, employees were exposed to possible electrocution or burns of a seriousnature.The violation of ? 1910.132(a) resulted fromthe fact that employees were exposed to contact dermatitis.\u00a0 Contact dermatitis canresult in infections and other complications which can lead to serious illnesses (Tr.186).The violations of ? 1910.304(f)(1)(iv) and ?1910.132(a) are properly classified as serious.PENALTY DETERMINATIONwhile the Secretary proposed a penalty of $400for the violation of ? 1910.304 (f)(1)(iv), and $360 for the violation of ? 1910.132(a);the Commission is the final arbiter in all contested cases.\u00a0 Secretary v. OSHRCand Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).\u00a0 Under section 17(j) ofthe Act, the Commission is required to find and give due consideration to the size of theemployer’s business, the gravity of the violation, the good faith of the employer, and thehistory of previous violations in determining the assessment of an appropriate penalty.\u00a0 The gravity of the offense is the principal factor to be considered.\u00a0 Naciremaoperating CO., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 1972).The gravity of the violation of ?1910.304(f)(1)(iv) is difficult to determine.\u00a0 The number of employees exposed andthe length of their exposure is unknown.\u00a0 The employer has had other inspections butdisplayed good faith in this matter by correcting the alleged violations pointed out to iton the spot or quickly thereafter.\u00a0 After considering all the factors in section17(j) of the Act, it is determined that a penalty of $300 is appropriate for theviolation.Several employees were exposed to chemicals thatcaused or could cause contact dermatitis.\u00a0 The employees were wearing cotton gloveswhich tended to absorb the chemicals.\u00a0 Employees could develop infections and severecomplications from the progression of contact dermatitis that could cause more serioushealth problems.\u00a0 A penalty of $360 is assessed for the violation of ? 1910.132(a).FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of lawcontained in this opinion are incorporated herein in accordance with Rule 52(a) of theFederal Rules of Civil Procedure.ORDER Based upon the foregoing findings of fact andconclusions of law, it is ORDERED:1. That the serious citation and proposedpenalties issued to Delford on April 3, 1989, (Docket No. 89-1263), are vacated, modifiedand affirmed as follows: Item No. Disposition Assessed Penalty 1 Vacated Vacated 2 Vacated Vacated 3 Vacated Vacated 4 Vacated Vacated 5 Vacated Vacated 6 Vacated Vacated 7 Vacated Vacated 8 Vacated Vacated 9 Modified and Affirmed $300 2. That items three and seven of the \”other\” citation issued to Delford on April3, 1989, (Docket No. 89-1261), are vacated and items one, two, four, five, six, and eightare affirmed; and3. That the serious citation issued to Delfordon May 15, 1989, (Docket No. 89-1753), is affirmed and a penalty of $360 assessed for theviolation.Dated this 6th day of November, 1990.JAMES D. BURROUGHSJudgeOSHRC Docket Nos. 89-1263 and 89-1753 (Consolidated)APPEARANCES: Diane C. Sherman, Esquire, Office of the Solicitor, U. S. Department of Labor, New York,New York, on behalf of complainant.Robert Reach, Jr., President, Delford Industries, Inc., Middletown, New York, on behalf ofrespondent.DECISION AND ORDERBurroughs, Judge:\u00a0 Delford Industries,Inc., (\”Delford\”), a manufacturer of rubber extrusion products, contests aserious and \”other\” citations issued to it on April 3, 1989 (Docket No. 89-1263)and a serious citation issued to it on May 15, 1989 (Docket No. 89-1753).\u00a0 The caseswere consolidated at the commencement of the hearing (Tr. 3).Compliance Officer Terri Harding arrived atDelford’s place of business in Middletown, New York, on February 14, 1989.\u00a0 Afterexamining the OSHA 200 logs, Ms. Harding requested permission to conduct an inspection(Tr. 14-17). She was told to obtain a search warrant.\u00a0 Permission having beenrefused, she left the premises (Tr. 17).\u00a0 At a subsequent date, Ms. Harding wasadvised that Delford would consent to the inspection.\u00a0 She returned on February 22,1989, with Eileen Walsh, an industrial hygienist (Tr. 165, 168), and conducted awalk-around inspection (Tr. 19-20).DOCKET NO. 89-1263 SERIOUS CITATION Item 1Alleged Violation of 29 C.F.R. ?1910.23(a)(5)The Secretary charges that Delford was inviolation of ? 1910.23(a)(5), [[1]] because an alleged trapdoor floor opening, measuring19 inches by 17 inches and 30 inches deep, in the water pit area of the mill room, wasunguarded. Delford presents two defenses to the allegation.\u00a0 It contends that theopening was not a pit or trapdoor floor opening and that, even if there was a pit ortrapdoor floor opening, the standard is still inapplicable.\u00a0 According to Delford,the applicability of the standard depends on the pit or trapdoor opening being used on aninfrequent basis.\u00a0 It contends that the alleged area was a walkway frequently used byemployees.Ms. Harding observed a couple of floor planksmissing \”in a walkway\” leading to the water pit in the mill room.\u00a0 Themissing, planks left an opening measuring approximately 19 inches by 17 inches.\u00a0 Theopening was 30 inches [[2]] deep.\u00a0 The walkway was used by employees to gain accessto the electrical services and the water pit (Tr. 20-27).\u00a0 Exhibit C-1 is aphotograph of the area (Tr. 27-28).\u00a0 The photograph was taken after the planks hadbeen replaced (Tr. 28).When Ms. Harding observed the opening, it wasnot covered, no one was in attendance around the opening, and it was not guarded byguardrails (Tr. 29-30).\u00a0 The opening was in plain view of anyone passing in the area(Tr. 32-33).Ms. Harding testified, after looking at hernotes, that the walkway was used approximately once a week (Tr. 22).\u00a0 She was notaware from whom she secured this information (Tr. 24-25).\u00a0 She later stated that shetalked with Mr. Reach and that he told her that it was used to gain access to the pit andthe electrical installations (Tr. 25).\u00a0 The walkway was the main access to the pitarea (Tr. 27).Ms. Harding makes reference to the cited area asa \”walkway\” leading to the water pit (Tr. 20, 21).\u00a0 The two planks weremissing from the walkway. She does not describe the area of the missing planks as a pit ortrapdoor.[[3]]\u00a0 The standard, by express working, applies to \”every pit andtrapdoor floor opening.\”\u00a0 The language of the standard is plain and unambiguous.\u00a0 While the walkway in question provided access to the water pit, this does not makethe walkway a pit or trapdoor floor opening.\u00a0 The cited violation was the hazardcreated by missing planks in the walkway.\u00a0 The condition of the pit was not cited.\u00a0 The photograph of the two planks (Ex. C-1) reveals that they ware not covering awater pit or trapdoor floor opening.The Secretary has the burden of proof inestablishing the applicability of the standard.\u00a0 Astra Pharmaceuticals, Inc.,82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1979).\u00a0 Inher brief, the Secretary represents that \”[t]he opening was caused by the absence oftwo of several planks which provided a cover to a pit and also served as a walkway.\”\u00a0 The representation goes beyond the established evidence.\u00a0 The evidence doesnot establish that the planks \”provided a cover to a pit.\” The Secretary’sprincipal witness testified that the cited area was \”a walkway leading to the waterpit\” (emphasis added) (Tr. 21). The evidence does not establish what the planks cover(See footnote 3).\u00a0 The Secretary has failed to establish the two missing planks 17,42.\u00a0 Where the pieces are joined is the the point of operation (Tr. 41).\u00a0 (Theunguarded point of operation is a separate allegation.) The unguarded pinch point cited inthis a allegation occurs as the process ends and the upper die ascends to rejoin the uppercylinder (Tr. 38-40, 41).\u00a0 The gap exists between the upper portion of the die plateand the cylinder above it (Exs. C-2, C-35, C-4, Tr. 38).\u00a0 The size of the gap betweenthe upper die in its descended position and the cylinder is 3-3\/4 inches (Tr. 39, 113).\u00a0 It is this gap that is closed as the upper die ascends to the upper cylinder andcreates a pinch point between the upper die and the cylinder.\u00a0 The injection andsplicing processes are similar in operation (Tr. 37-42).The operator stands directly in front of thepress while feeding materials into the die area.\u00a0 Once the material has been placedin the point of operation, the press is activated by a lever which is located above and tothe left of the cylinder (Ex. C-2; Tr. 39-40). Harding testified that the operator’s handscould be within the die area when the cylinder is descending (Tr. 40).\u00a0 She latertestified that, when the left hand activates the lever, the right hand is free to goanywhere (Tr. 42).\u00a0 The material is placed in the die area or point of operation byhand.\u00a0 Ms. Harding later testified that the employee would have to hold onto thefloppy material while the machine is activated (Tr. 49).\u00a0 If the machine is activatedwith the left hand, then the right hand would be holding the material while it isactivated.Section 1910.212(a)(1) [[4]] is a general,introductory standard setting forth guarding requirements to \”all machines.\”\u00a0 Faultless Div., Bliss & Laughlin Industries., Inc. v. Secretary ofLabor, 674 F.2d 1177 (7th Cir. 1982).\u00a0 In order to establish a violation of ?1910.212(a)(1), the Secretary must first prove the existence of a hazard which is revealed\”by how the machine functions and how it is operated by the employees.\” StacyMfg. Co. 82 OSAHRC 14\/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ? 25,965 (No. 76-1656,1982).\u00a0 A potential hazard in this case would exist as the upper die, which descendedto mold the two rubber pieces together, ascends to rejoin the upper cylinder.\u00a0 Thedescending of the die causes a 3-3\/4-inch gap that is closed as the upper die ascends tothe cylinder.\u00a0 It is obvious that anyone inadvertently placing a finger or hand intothe gap as the die ascends would be exposed to injury.The crux of the dispute is how likely the work habit or environment of the operator wouldpermit an inadvertent or accidental placing of hands or fingers in the gap. \u00a0Unfortunately, too many relevant facts are left to the imagination–an imperfect mannerfor determining a hazard.\u00a0 The evidence does not show that the operator had anyreason to place his hands or fingers in the gap area as the die ascends.\u00a0 The recorddoes not state how fast the die ascends.\u00a0 Ms. Harding’s testimony as to whether theright hand is free or is holding the floppy rubber material in the die as the press isactivated by the left hand is inconsistent.\u00a0 If the right hand is holding materials,it is difficult to see how Ms. Harding could conclude it was free to accidentally contactthe gap area.\u00a0 If the operator places the material by hand into the point ofoperation and holds it until the upper die descends and molds the two pieces, it isdoubtful that he would have time to get a finger or hand in the gap area.\u00a0 This isespecially true in light of Ms. Harding’s later testimony that the stock is removed byhand after the operation is completed (Tr. 49).\u00a0 She also testified that the stock isadjusted in the die by hand.\u00a0 The evidence does not disclose how close the right handis to the gap area as the operator holds it when the die ascends and when he removes thematerial as the die ascends.In determining whether a hazard exists, allcircumstances, including the manner in which the machine functions and how it is operatedby the employees, must be considered.\u00a0 Rockwell International Corp., 80 OSAHRC118\/A2, BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980).\u00a0 The operation ofthe presses does not require that the operator place his hand in the gap area.The evidence of whether a hazard exists inoperation of the presses is left to speculation and conjecture.\u00a0 The evidence is tooincomplete to conclude a hazard existed.\u00a0 The mere fact that the gap was unguardedand that it was not impossible for an employee to get his hands or fingers in the areadoes not demonstrate that the operator was exposed to a hazard.\u00a0 Cf., Armour FoodCo., 1990 OSAHRC, BNA OSHC 1990 CCH OSHD ? (No. 86-247, September 24, 1990). \u00a0The Secretary failed to show the location of the hands as the die ascends. \u00a0 Theevidence fails to disclose any reason or occasion for an employee’s hands or fingers tocome into contact with the gap.The Secretary must show a more directrelationship between the manner in which the press is operated and the hazard presented bythe gap.\u00a0 For instance, at what speed did the die ascend and how close were theoperator’s hands to the gap area as he removed the stock from the die.\u00a0 Since thereare no reported injuries, there is no evidence to show that the hazard was realistic whenconsidered in relation to the manner in which the press was operated.\u00a0 The lack ofinjuries, although not conclusive, buttresses arguments that there was no exposure toinjury.\u00a0 Rockwell International Corp., supra.\u00a0 The Secretary has failedto meet her burden of proof. The alleged violation of ? 1910.212(a)(1) is vacated.Item 4Alleged Violation of 29 C.F.R. ?1910.212(a)(3)(ii)The alleged violation of ? 1910.212(a)(3)(ii) involves the same splicers covered underthe previous allegation concerning pinch points (Tr. 46, 47).\u00a0 The Secretary contendsthat the splicers violated ? 1910.212(a)(3)(ii) since the point of operation wasunguarded (Tr. 46).\u00a0 As previously discussed under item three, the splicers wereequipped with two-hand tripping devices, but none of them were operational (Tr. 48-49).\u00a0 The splicer was activated by a lever located in the area of the timer on the upperleft of the splicer (Tr. 47, 48-49).The operator stands in front of the splicer andtakes two pieces of the stock, a floppy rubber material, and places it into the point ofoperation by hand. The left hand is normally used to activate the splicer. According toHarding, this leaves the right hand free to be in any area of the die or press (Tr. 47).This statement is inconsistent with later testimony that the employees would have to holdonto the floppy material while the press is activated (Tr. 49). If this is the case, thenthe statement that the right hand is free to be in any area of the die or press can’t betrue. Her testimony that the material is removed from the die by hand (Tr. 49) is alsoinconsistent with the statement that the right hand is free. The opening between the twodies where the stock is placed is 2-1\/4 inches (Tr. 47-48).Section 1910.212(a)(3)(ii) [[5]] requires thatthe point of operation of a machine be guarded if the operator is exposed to injury, andthat the guarding device be so designed and constructed as to prevent the operator fromhaving any part of his body in the danger zone during the operating cycle. The standard,by express wording, requires that the point of operation expose an employee to injurybefore the employer has to guard it. Rockwell International Corp., 80 OSAHRC 118\/A2, 9 BNAOSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980). \”The mere fact that it [is] notimpossible for an employee to insert his hands [in the point of operation] does not itselfprove that the point of operation exposes him to injury. whether a machine presents ahazard must be determined by how the machine functions and how it is operated byemployees.\” Rockwell International Corp., supra, 9 BNA OSHC at 1097-98. In order toprove a violation of ? 1910.212(a)(3)(ii), the Secretary must establish that (1) thepoint of operation of the splicers was unguarded, and (2) that the operation of theoperation of the splicers employees to injury. The Secretary has established.the firstpoint but has failed in meeting her burden of proof on the second point.Once again, relevant details as to how thesplicers function and are operated by employees are missing. [[6]] Ms. Harding assumesthere is a violation since the point of operation is not guarded. There is no dispute overthis fact; but, before guarding is required, the Secretary must show that the operator isexposed to injury as a result of the manner in which the splicer is utilized. While Ms.Harding testified that the operator’s hands were \”in close proximity to thedie,\” (Tr. 47) it is impossible to find a violation on this fact. The words\”close proximity\” are too nebulous in meaning to assume that there was any realdanger in operating the splicers. [[7]] The descriptive words \”close proximity\”are of little value unless they are defined in terms of precise measurements, e.g., ininches. The Commission’s purpose is to afford an employer an independent review of theSecretary’s allegations. This purpose would be defeated if the Commission decided theissue on such nebulous terminology. In this instance, does \”close proximity\”mean within two feet or two inches? See footnote 7.) The party having the burden of proofmust suffer the consequences for any failure to present sufficient facts in support of thealleged violation. Accordingly, the allegation is vacated.Item 5Alleged Violation of 29 C.F.R. ? 1910.212(a)(4)The Secretary alleges that Delford violated ?1910.212(a)(4) by its failure to have an interlocking barrier guard on a tumbler in thewash area that was ten feet, two inches, long and three feet in diameter. This fact is notdisputed. Delford argues that the configuration of the tumbler, table, and location of thecontrol button protect an employee from any injuries.A large tumbler was used in the wash area towash parts. The parts to be washed are loaded through two front doors of the tumbler. Acontrol button for the tumbler is located on the right at the end of the tumbler and awayfrom the movement of the tumbler. The tumbler is approximately ten feet long and threefeet in diameter (Exs. C-5, C-6; Tr. 52-53, 119). A metal table, two feet in width, iswelded into place in front of the tumbler and extends a foot or more beyond the length ofthe tumbler (Exs. C-5, C-6; Tr. 120). The employee stands at the control while activatingthe tumbler (Tr. 54). The control is located within inches of the end of the tumbler (Ex.C-6). Employees operating the controls would be at the end of the table and within a fewinches of the end of the tumbler (Ex. C-6; Tr. 119).While Ms. Harding states that employees would beexposed to brushing up against the tumbler or the tumbler edge (Tr. 54), this does notappear to be a realistic hazard. The configuration of the tumbler and metal tableprotruding in front and beyond the ends would prevent any accidental brushing up againstit. The table was two feet wide (Tr. 120). The employee would have to climb onto the metaltable to brush up against the tumbler. He could reach the end by hand, but the placementof the controls and metal table are such that any hand of an employee that comes betweenthe frame holding the tumbler and the tumbler would have to be deliberate. (See Exs. C-5,C-6). While Ms. Harding testified that the operator’s hands could be crushed if he gotthem in the area between the tumbler and the frame, a look at exhibits C-5 and C-6 dispelsher theory. The distance between the control and tumbler at the end is too large to crushanyone’s hand if it accidentally got in the area between the tumbler and the control. Ms.Harding did not see the tumbler in operation (Tr. 122) and is only guessing as topotential hazards.Section 1910.212(a)(4) [[8]] requires revolving drums to be guarded by an enclosure whichis interlocked with the drive mechanism so that the drum cannot revolve unless the guardenclosure is in place. The standard must be read in conjunction whit ? 1910.212 (a)(1)which states machine guarding \”shall be provided to protect the operator and otheremployees in the machine area from hazards.\” The Secretary has failed to show thatthe operation of the tumbler presents any hazard to employees. The configuration of thetumbler in relation to the metal table and the location of the control buttons make itimpossible for someone to accidentally brush up against the tumbler. The fact that thereis no history of injuries from the operation of the tumbler buttresses the conclusion thatthere was no realistic exposure to a hazard. Rockwell International Corp., supra. Thealleged violation is vacated.Item 6Alleged Violation of 29 C.F.R. ?1910.219(c)(4)(i)The Secretary alleges Delford violated ?1910.219(c)(4)(i) for failure to guard a projecting shaft from a motor in the Banbury Roomof the pit area with a safety sleeve. The standard states:(4) Projecting shaft ends. (i) Projecting shaftends shall present a smooth edge and end and shall not project more than one-half thediameter of the shaft unless guarded by nonrotating caps or safety sleeves.The diameter of the shaft was three inches. Theprojection was six inches. Since the shaft projected more than one-half of the diameter,the standard is applicable. There is no dispute that the shaft was not guarded by anonrotating cap or safety sleeve. The shaft had a keyway cut into it (Ex. C-7; Tr. 58-60).Ms. Harding testified that the shaft was in anexposed area where someone could walk by it. On direct examination, she indicated that anemployee might enter the area to perform maintenance or to make adjustments to theequipment in the area (Tr. 59). She was concerned that an employee could brush up againstthe shaft (Tr.60). Her testimony in regard to employees in the pit area is inconsistent.She first testified that she did not ask the operator for what reason he would enter thepit (Tr. 137-138). She then stated that the operator did not tell her for what purpose hewent into the pit; but, when pressed under cross-examination, she stated the operator said\”maintenance of the area\” (Tr. 139). She displayed little knowledge of the pitarea or what maintenance would be performed (Tr. 134-141). There is no evidence she sawanyone in the pit area. She admitted it was not a heavily traveled area (Tr. 142).Ms. Harding’s testimony is considered to benebulous and inconsistent. There is no evidence of any exposure to the rotating shaft.There is no description of the pit area. Its dimensions are unknown and there is noevidence as to how close anyone would come to the rotating shaft if they entered the pitarea. While the shaft was unguarded, employees did not work in the area and the evidenceindicates that maintenance duties would be the only reason to enter the pit. Ms. Hardingassumes exposure if anyone enters the pit. No reason is offered as to why anyone wouldhave to approach the shaft even if they entered the pit. The relation of the shaft to walkareas in the pit is unknown. Once again, the Secretary has failed to prove sufficientfacts to allow a thoughtful and incisive independent review of the violation. The point isnot whether Ms. Harding thinks there was a violation but whether the facts of recordsupport a violation. The paucity of facts prevent a finding of exposure in this instance.The alleged violation is vacated. [[9]]Item 7Alleged Violation of 29 C.F.R. ?1910.219(e)(5)(i)The Secretary alleges that Delford was inviolation of ? 1910.219(e)(5)(i.) for failure to guard the nip points of a three-inchwide leather belt with metal lacing on the Rusnak Tool works milling machine in themachine shop and the lower portion of a one-half-inch V-belt and cone pulley on coiler andpack machines one two and three. Section 1910.219(e)(5)(i) provides:(5) Cone-pulley belts. (i) The cone belt andpulley shall be equipped with a belt shifter so constructed as to adequately guard the nippoint of the belt and pulley. If the frame of the belt shifter does not adequately guardthe nip point of the belt and pulley, the nip point shall be further protected by means ofa vertical guard placed in front of the pulley and extending at least to the top of thelargest step of the cone.There is no dispute over the fact that the coneand belt pulleys were not equipped with a belt shifter (Tr. 65).Ms. Harding observed two separate areas of theplant that had unprotected cone belts and pulleys (Tr. 61). One unprotected belt was athree-inch wide leather belt with metal lacing that was on a Rusnak Tool Works millingmachine in the machine shop. The other belt was a one-half-inch V-belt located in themicrowave extrusion area on three separate machines. The belts at both locations werelocated less than seven feet from the floor (Tr. 61-67). Nip points were created where thebelt ran onto the pulley (Tr. 65).area\” (Tr. 63). The operator’s location with respect to the coiler and pack machineswas described as follows (Tr. 64):Q. Where does the operator stand in relationship to that machine?A. He would stand in close proximity but not directly at the cone and pulley.Q. How far would you say he would be from the cone belts and pulley?A. In that instance, a couple of feet.It is also noted that Ms. Harding was unable todescribe the coil and pick machines (Tr. 143). She could recall no injuries resulting fromunguarded cone and pulleys on the coil and pack machines (Tr. 145).The language used by Ms. Harding, for the mostpart, was not specific enough to conclude that the operation of the machines exposedanyone to the violative conditions. This fact, combined with her lack of knowledge of thecoil and pack machines (Tr. 143), is persuasive in concluding that the Secretary hasfailed to meet her burden of proof. There is no evidence as to where the cone and pulleyare located on the machines or their location in relationship to the operator. Theexposure must be one that is realistic and can be expected to bring the employee incontact with the cone and pulley during normal operation of the machines. The fact that hecan touch the cone and pulley by a deliberate act of reaching in is insufficient to meetthe burden of proving he had access to the violative condition. The allegations arevacated.Item 8Alleged Violation of 29 C.F.R. ? 1910.219(i)(2)The Secretary alleges Delford violated therequirements of ? 1910.219(i)(2) in three separate instances: (1) the Banbury motorlocated in the Banbury Room of the pit area had revolving couplings that were not guarded;(2) the couplings for the brake on the number four milling machine were unguarded, and (3)the number one milling machine had a midrail lacking near the hand brake and there was noguardrail near the operator station.Ms. Harding testified that she observed threeseparate instances where employees were exposed to unguarded revolving couplings (Tr.67-68). A coupling on one of the milling machines was only partially guarded (Ex. C-8).Ms. Harding testified that a coupling on the motor located in the Banbury Room of the pitarea was unprotected (Ex. C-7; Tr. 68) and that the number one and number four millingmachines had unguarded couplings (Tr. 68). She stated that anyone passing by the areas ofthe unguarded couplings or performing maintenance in the area would be exposed to thehazard (Tr. 68). Exhibit C-8 is a photograph of a partially guarded coupling on a millingmachine. It also shows partial guardrails in the area (Tr. 69). While it is true that thecoupling is only partially guarded, the statement by Ms. Harding that an employee workingor walking in the area would come into contact with the revolving coupling bears littlerelationship to reality. A quick glance at the photograph of the partially guardedcoupling easily reveals that employees are prevented from accidentally contacting thecoupling by its location within the configuration of the machine (Ex. C-8). An employeewould have to make a deliberate attempt to contact the coupling. There was no realisticexposure to the violative condition.Exhibit C-7 is a photograph of the unprotectedcoupling on the motor located in the Banbury Room of the pit area. The coupling isinaccessible by virtue of its location. It is located so far inside the machine that itwould be difficult to reach even if an employee made a deliberate attempt to touch it.Again, there was no realistic exposure to the violative condition. The fact that acoupling is unprotected or only partially protected does not automatically result in aviolation of the standard.The unguarded coupling on the other millingmachine is not described. It is, therefore, impossible to judge whether or not there wasexposure to the violative condition, a fact which must be proved by the Secretary. Ms.Harding’s testimony that any employee passing by the couplings would be exposed is notsupported by the photographs (Exs. C-7, C-8). Ms. Harding is unrealistic on this item, asshe has been on other items, as to what constitutes exposure. The allegations are vacated.Item 9Alleged Violation of 29 C.F.R. ?1910.304(f)(1)(iv)The Secretary alleges that Delford violated ?1910.304(f)(1)(iv) [[10]] since it had in use an electrical motor with an ungrounded leadcord. The motor operated on 110 volts (Tr. 73-74). The standard requires ground of ACsystems of 50 volts to 1000 volts. Delford argues that the applicable standard is ?1910.304(f)(5)(v) which covers \”Equipment connected by cord or plug.\”Ms. Harding testified that the chemical tank inthe boiler room had an electrical motor with an ungrounded lead cord. The electricalsystem was AC and carried 110 volts. The ground prong was missing from the lead cord (Tr.73-74). The motor was used to operate the number two chemical tank (Tr. 74). The boilerroom was a wet area of the plant (Tr. 75) Ms. Harding testified that the work of employeeswould cause them to come into contact with the chemical tank (Tr. 74).Paragraph (f) of ? 1910.304 is entitled\”Grounding\” and states that paragraphs (f)(1) through (f)(7) contain groundingrequirements for systems, conduits and equipment. The specific provision cited by theSecretary [(f)(1)(iv)] refers to AC systems. The provision which Delford contends isapplicable [(f)(5)(v)] refers to \”Equipment connected by cord and plug.\” Theevidence is clear that Delford was cited because the ground prong was missing from thelead cord. There is no allegation that the AC system was not grounded as required by ?1910.304(f)(1)(iv). The allegation has reference to the removal of the ground prong fromthe lead cord. Section 1910.304(f)(5)(v) specifically applies to grounding of cord andplug connections. Accordingly, the alleged violation of ? 1910.304(f)(1)(iv) is vacated.Although the alleged violation is vacated, theevidence reflects a violation of another standard. The facts are not disputed and supporta violation of ? 1910.304(f)(5)(v). The violation consisted of the removal of the groundprong on the plug of the cord. Where the undisputed facts of record support a differentstandard from that alleged, an amendment to conform to the proof, pursuant to Rule 15(b)of the Federal Rules of Civil Procedure, is in order and is usually granted unless theemployer is prejudiced by its being granted. \”[I]t is important to emphasize thatpleadings before the Commission are to be liberally construed and easily amended.\”Bill C. Caroll Co., 79 OSAHRC 87\/C13, 7 BNA OSHC 1806, 1809, 1979 CCH OSHD ? 23,940 (No.76-2748, 1979). Whether a party is prejudiced by granting an amendment involves the issueof \”whether the party opposing the amendment was denied a fair opportunity to prepareand present its cases on the merits, and whether it could offer additional evidence if thecase were tried again on a different theory.\” Morgan and Culpepper, Inc., 81 OSAHRC26\/A2, 9 BNA OSHC 1533, 1537, 1981 CCH OSHD ? 25,293 (No. 9850, 1981).The allegation points to a simple matter that isundisputed–the ground prong had been removed. The removal of the prong resulted in theviolation. Amending the pleadings to find a violation of ? 1910.304(f)(5)(v) will notprejudice Delford. There is no dispute over the relevant fact. Accordingly, an amendmentis granted and a violation of ? 1910.304(f)(5)(v) is determined from the facts of record.\”OTHER\” CITATION Item 1Alleged Violation of 29 C.F.R. ? 1910.22(a)(1)The Secretary alleges that Delford was inviolation of ? 1910.22(a)(1) because the back exit from the Banbury Room leading to themain floor had debris in the stairway landing. Delford does not argue that some debrismight have been on the stairway landing but states it was there temporarily. According toDelford, \”[t]he alleged condition was transitory and self abated.\” It furtherstates that the condition presented no direct or immediate hazard to employees.Ms. Harding observed an exit leading from theBanbury Room was cluttered with various debris–rags, paper and containers. Approximatelyhalf of the landing was taken up with the debris (Tr. 76-78). The debris did notcompletely block the stairs. Anyone traversing the stairs could pass to the left side ofthe debris (Tr. 78).The cited standard, ? 1910.22(a)(1), is clearin its requirements. It provides:All places of employment, passageways, storerooms, and service rooms shall be kept cleanand orderly and in a sanitary condition.The standard requires all passageways to be kept in a clean and orderly condition. Thelanding to the stairs from the room was covered with debris. The debris would present ahazard to employees as they traversed the area. The violation has been established.Item 2Alleged Violation of 29 C.F.R. ? 1910.37(k)(2)The Secretary alleges that Delford was inviolation of ? 1910.37(k)(2) due to the fact the exit door in the Banbury Mill Area wasblocked by barrels of chemicals. Delford argues that this was a temporary conditionresulting from the barrels having been just delivered. It also argues that there were atleast two other exits and an overhead door.Ms. Harding observed that the rear exit door inthe Banbury Mill Area was blocked by barrels of chemicals (Tr. 78-79). Employees wereworking in the room (Tr. 79). The photograph placed into evidence by the Secretarysupports the testimony of Ms. Harding (Ex. C-9). The photograph clearly shows the exitdoor blocked by several barrels. An overhead door was located besides the exit door. Itwas in the down position (Ex. C-9; Tr. 156). There were at least two other exits from thearea that did not include the overhead door (Tr. 156).Section 1920.37 (k) (2) provides that\”[m]eans of egress shall be continuously maintained free of all obstructions orimpediments to full instant use in the case of fire or other emergency.\” Thestandard, by the use of the words \”continuously maintained free\” and \”fullinstant use,\” places an employer on notice that temporary unloading which blocks anexit is prohibited by the standard. Emergencies usually arise without advance notice. Itis important that all exits be kept free at all times because of this fact. Delford’sargument that it was a temporary condition has no merit. The standard further refers to\”means of egress\” which would include all exits. The fact there were at leasttwo other exits does not excuse the fact that the exit was blocked. In the confusion of afire or other emergency, there is no assurance that all persons in the building will knowor remember which exit or exit are blocked. The alleged violation is affirmed.Item 3Alleged Violation of 29 C.F.R. ? 1910.101(b)The secretary alleges that Delford was inviolation of ? 1910.101(b), because a cylinder of nitrogen in the Banbury pit area wasunsecured. The citation was amended by paragraph XVI of the complaint to reflect thatDelford did not comply with section 3.2.3 and\/or 3.3.8 of the Compressed Gas AssociationPamphlet P-1-1965 rather than section 3.4.4 referenced in the citation. Delford arguesthat the failure of the Secretary to divulge the contents of the Compressed GasAssociation Pamphlet P-1-1965 referenced in the standard refutes the allegation made bythe Secretary.Ms. Harding observed a cylinder of nitrogen inthe Banbury Pit area. It was located at the base of the stairway which led into the pitalong the left wall. It was not secured (Tr. 80). Employees using the stairs to go down tothe pit area were exposed to the condition (Tr. 81).Section 1910.101(b) [[11]] makes reference to Compressed Gas Association PamphletP-1-1965. The sections referenced in the in complaint provide:3.2.3 Never drop cylinders nor permit them to strike against each other or against othersurfaces violently. 3.3.8 Protect cylinders from any object that will produce a cut or other abrasion in thesurface of the metal. Do not store cylinders near elevators or gangways, or in locationswhere heavy moving objects may strike or fall on them. Where caps are provided for valveprotection, such caps shall be kept on cylinders in storage.The Secretary’s brief relies on section 3.3.8 ofthe pamphlet as the basis for the violation.Section 3.3.8 prohibits storing cylinders nearelevators or gangways or in locations where heavy moving objects may strike or fall onthem. This provision pertains to storing cylinders near elevators or gangways. The allegedviolation cited was for having a cylinder of nitrogen unsecured. Section 3.3.8 does notrequire the cylinders to be secured. Its primary purpose is to protect the cylinder fromany object that might produce a cut or other abrasion in the metal.Section 3.2.3 also does not require the cylinders to be secured.The original allegation. set forth in thecitation, before amendment, makes reference to section 3.4.4 with the statement that onecylinder of nitrogen was unsecured. Section 3.4 of pamphlet P-1 of 1965 is entitled:\”Withdrawing Cylinder Contents.\” Subsection 3.4.4 states:Before using cylinder, be sure it is properlysupported to prevent it from being knocked over.There is no evidence the nitrogen cylinder wasin use. Ms. Harding noticed the cylinder at the base of the stairway. Delford was citedbecause the cylinder was unsecured.The Secretary has failed to show that Delfordwas required to secure the cylinder. The sections of the Compressed Gas AssociationPamphlet P-1-1965 referenced by the Secretary do not require the cylinder to be secured.[[12]] The alleged violation is vacated.Item 4Alleged Violation of 29 C.F.R. ? 1910.157(e)(3)The Secretary alleges Delford violated ?1910.157(e)(3) by failure to record the date of the assured maintenance check on twoportable fire extinguishers. This section provides, in pertinent part, as follows:The employer shall assure that portable fireextinguishers are subjected to an annual maintenance check… The employer shall recordthe annual maintenance date and retain this record for one year after that last entry orthe life of the shell, whichever is less. The record shall be available to the AssistantSecretary upon request.Delford states that the fire extinguishers areinspected constantly by company engineers and that they were approved by an outsidecompany.Ms. Harding observed two fire extinguisherswhich did not have evidence of annual maintenance (Tr. 83). One was located in the BanburyPit area and the second was located in the machine shop. These facts are undisputed andsupport the allegation. The alleged violation is affirmed.Delford argues that the fire extinguishers wereinspected. The Secretary has not alleged that an annual maintenance check was not made. Itis the following language in the standard which the Secretary alleges was violated:The employer shall record the annual maintenancedate and retain the record for one year after the last entry or the life of the shell,whichever is less.The standard requires an annual maintenance check and the recording of the date. Thestandard states that \”[t]he employer shall record the annual maintenance date.\”The use of the word \”shall\” makes the requirement mandatory.Item 5Alleged Violation of 29 C.F.R. ? 1910.215(b)(9)The Secretary alleges Delford violated ?1910.215(b)(9) for failure to have tongue guards on two Baldor grinders located in themachine shop. The grinders have an abrasive wheel which is used to sharpen tool bits (Tr.84-85). Delford argues that the grinders have a peripheral adjustable member which shieldsthe entire area of the rotating wheel.Ms. Harding observed two Baldor grinders(abrasive wheels) in the machine shop that did not have the necessary tongue guards (Tr.84-85, 98). The left side of one of the grinders was missing a tongue guard and the secondgrinder did not have any tongue guards (Tr. 87). The two grinders had a periphery guardand work rest (Tr. 65).Section 1910.215(b)(9) provides:Exposure adjustment. Safety guards of the typesdescribed in subparagraphs (3) and (4) of this paragraph, where the operator stands infront of the opening, shall be constructed so that the peripheral protecting member can beadjusted to the constantly decreasing diameter of the wheel. The maximum angular exposureabove the horizontal plane of the wheel spindle as specified in paragraphs (b)(3) and (4)of this section shall never be exceeded, and the distance between the wheel periphery andthe Section 1910.303(f) provides as follows: Identification disconnecting means and circuits.Each disconnecting means required by this subpart for motors and appliances shall belegibly marked to indicate its purpose, unless located and arranged so the purpose isevident. Each service, feeder, and branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless located andarranged so the purpose is evident. These markings shall be of sufficient durability towithstand the environment involved.Delford argues that the Secretary has to prove ahazard exists before the standard is applicable. This is not a correct position withrespect to all standards. Some standards, by their express wording, require that a hazardbe shown before they are applicable; other standards automatically recognize a hazardwhich the standard was promulgated to prevent. In such circumstances, it is not necessaryfor the Secretary to prove that hazard again. A hazard is presumed if the facts coincidewith the conditions the standard seeks to prevent. In order to prove a violation of aparticular standard, the first thing the Secretary must do is show by a preponderance ofthe evidence that the cited standard applies. Astra Pharmaceutical Products, Inc., supra,9 BNA OSHC at 2129. If the standard requires the Secretary to establish a hazard, then shemust prove the hazard to show the standard is applicable.Section 1910.303(f) does not require that theSecretary prove a hazard before it is applicable. The standard is presumed to have beenpromulgated to prevent a hazard that could arise if the disconnects were not labeled. Inthis instance, the Secretary must show that the standard is applicable and that thedisconnects were not marked or were not legibly marked. Ms. Harding’s testimony isundisputed on these points. The cited condition is controlled by ? 1910.303(f). Delfordhad disconnects and they were not marked to indicate their purpose.In addition to proving that (1) the citedstandard applies, and (2) that there was a failure to comply with the standard; theSecretary must show that (3) employees had access to the violative condition, and (4) thecited employer either knew or could have known of the condition with the exercise ofreasonable diligence. Astra Pharmaceutical Products, Inc., 9 BNA OSHC at 2129. Theevidence supports a violation of the standard. The allegation is affirmed.Item 7Alleged Violation of 29 C.F.R. ?1910.305(g)(1)(iii)The Secretary withdrew the alleged\”other\” violation of ? 1910.305(g)(1)(iii) (Tr. 90).Item 8Alleged Violation of ? 1910.305(g)(2)(iii)The Secretary alleges DeIford violated ?1910.305(g)(2)(iii) because a flexible cord in the microwave extrusion area had a\”pendant with frayed cord due to tension of receptacle without restraint.\”In the microwave extrusion area, a flexible cordin use was not fitted with tension restraints (Ex. C-10; Tr. 90). The photograph of thecondition shows a pendant cord in disrepair and with no tension restraints (Tr. 91). Twomachines were plugged into the receptacle held by the flexible cord (Ex. C-10; Tr. 92).The receptacle was in serious disrepair (Tr. 93). Employees were working in the area (Tr.92).Section 1910.305 (g)(2)(iii) provides:Flexible cords shall be connected to devices andfittings so that strain relief is provided which will prevent pull from being directlytransmitted to Joints or terminal screws.It is undisputed that no strain relief wasprovided. This fact is supported by the photograph entered into evidence as C-10. Thealleged violation is affirmed.DOCKET NO. 89-1753Alleged Violation of 29 C.F.R. ? 1910.132(a)The Secretary alleges that Delford was inserious violation of ? 1910.132(a) since employees were handling chemicals capable ofcausing skin irritation or contact dermatitis without wearing rubber or chemical-resilientgloves. Delford argues that the compliance officer was unable to differentiate between anallergic reaction and dermatitis.It also contends that she did not run any tests proving that the chemicals used actuallycaused dermatitis and offered no proof of the existence of contact dermatitis. It isclaimed that the listing of a rash condition on the Log 200 form does not necessarily meanthat the claim is bona fide. On February 22, 1990, Industrial HygienistEileen M. Walsh conducted an inspection of Delford’s facilities in Middletown, New York.The inspection was based on a complaint received by the local OSHA office. Employees werecomplaining that there were various instances of contact dermatitis that occurred in theplant over a number of years and that nothing could be done about it. The complaint alsodealt with the fact that there was a hole in the floor in the Banbury area (Tr. 168).in connection with the inspection, Ms. Walshmade a review of the OSHA 200 logs maintained by Delford for the years 1986, 1987 and1988. The OSHA 200 logs show that during the year 1987, three employees had lost work daysdue to contact dermatitis. The OSHA 200 log for 1988 shows that there were three differentinstances of contact dermatitis involving the same individual (Tr. 176).Contact dermatitis is a rash or irritation whichcan develop on the hands due to contact. with a chemical (Tr. 177). Ms. Walsh spoke to twoemployees who had had contact dermatitis and one employee who was currently experiencingdifficulty with it. She viewed the hands of the individual who had contact dermatitis anddescribed the hands as being very raw, red and chapped. She indicated that moisture hadout of the hands and that there was extreme irritation (Tr. 177-178).Ms. Walsh determined that the employees handledchemicals. She asked the representative what chemicals they used and also requested to seethe material safety data sheets in those areas where the problems had been occurring (Tr.178). She reviewed the MSD’s and Mr. Reach confirmed the fact that the chemicals used byemployees were as listed in the MSD’s (Tr. 179). She determined that the employees handledparaplex, morfax, polyethylene, and sulfads (Tr. 178). She determined that anyone havingcontact with these chemicals could contact dermatitis or possibly more serious illnesses(Tr. 179). Most of the chemicals being used required neoprene, rubber orchemical-resistant gloves (Tr.179).The Secretary placed into evidence (Ex. C-14)several copies of material safety data sheets which show that the handling of thechemicals or skin contact with the chemicals could lead to dermatitis and possible skinsensitization. All of the chemicals listed in the material safety data sheets are not usedon a daily basis. However, all of them are kept on the premises and are used by theemployees at different times (Tr. 180). Ms. Walsh observed that Delford’s employees wereusing cotton gloves to handle the chemicals. She considered the cotton gloves to beinadequate protection since they are not chemical resistant (Tr. 184). The employees comeinto contact with the chemicals as they take them out of the bins and the plastic bags andpour them into a machine (Tr. 184).Respondent’s president, in hiscross-examination, sought to prove that Ms. Walsh had incorrectly referred to thecondition as contact dermatitis. Ms. Walsh admitted that she had no documentation from anydoctors to confirm the fact that the employees had contact dermatitis (Tr. 191-192). Shealso admitted that she could not tell the difference between an allergy and contactdermatitis (Tr. 192). She further conceded that there were no cases of skin irritation forthe year 1989 (Tr. 194). The OSHA 200 logs for 1987 and 1988 recorded cases of contactdermatitis and confirm the fact that it existed among the workers. Delford made thedetermination of the cases as they were recorded and its attempt to repudiate the cases byinsinuating that it was a rash is without merit.The standard in issue is broadly worded andimposes a generalized duty to protect employees by the use of whatever personal protectiveequipment is necessary by reason of certain hazards. As a prerequisite to establishing aviolation of ? 1910.132(a), the Secretary must either show that the employer had actualknowledge that such a hazard existed or that a reasonable person familiar with thecircumstances would perceive that a hazard exists which warrants the use of protectiveequipment. Armour Food Co., Supra; Owens-Corning Fiberglas Corp., 79 OSAHRC 26\/D6, 7 BNAOSHC 1291, 1979 CCH OSHD ? 23,509 (No.76-4990, 1979) aff’d, 659 F.2d 1285 (5th Cir.1981). The evidence supports a finding that Delford knew or should have known that ahazardous condition existed which required the use of appropriate gloves. The materialsafety data sheets listed various harmful effects to the skin including irritation,contact dermatitis, skin sensitization, and in some instances, skin tumors. The OSHA 200’slisted cases of contact dermatitis which had resulted in lost work time. The employeeswere wearing cotton gloves for some protection against the chemicals although these gloveswere inadequate. The material safety data sheets also suggested the use of rubber gloves.The OSHA 200’s and the material safety data sheets are strong evidence that a reasonableperson, familiar with the facts and circumstances particular to the industry in whichDelford is engaged, would be aware of the hazard. The alleged violation is affirmed.CLASSIFICATION OF VIOLATIONSThe Secretary has alleged that the violations of? 1910.304(f)(1)(iv) and ? 1910.132(a) are serious within the meaning of section 17(k)of the Act. \”To establish that a violation is ‘serious’ it must be shown that thereis a reasonable probability that death or serious physical harm could result from theviolative condition and that the employer knew or with the exercise of reasonablediligence could have known of the presence of the violation.\” Wisconsin ElectricPower Co., 76 OSAHRC 134\/B2, 4 BNA OSHC 1787, 1976-77 CCH OSHD ? 21,234 at p. 25,532 (No.5209, 1976) aff’d, 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establishthe likelihood of an accident before the violation can be classified as serious. She\”need only show that an accident is possible and that such an accident will mostlikely result in a serious injury.\” Communications, Inc., 79 OSAHRC 6l\/A2, 7 BNA OSHC1598, 1602, 1979 CCH OSHD ? 23,759, at p. 28,813 (No. 76-1924, 1979), aff’d in anunpublished opinion, No. 79-2148 (D.C. Cir. 1981).The violation of ? 1910.304(f)(1)(iv) resultsfrom the fact that a ground prong was missing from the plug which led to an electricalmotor in the boiler room. The system carried 110 volts. As result of the lack of theground plug, employees were exposed to possible electrocution or burns of a seriousnature.The violation of ? 1910.132(a) resulted from the fact that employees were exposed tocontact dermatitis. Contact dermatitis can result in infections and other complicationswhich can lead to serious illnesses (Tr. 186).The violations of ? 1910.304(f)(1)(iv) and ?1910.132(a) are properly classified as serious.PENALTY DETERMINATIONWhile the Secretary proposed a penalty of $400 for the violation of ? 1910.304(f)(1)(iv),and $360 for the violation of ? 1910.132(a); the Commission is the final arbiter in allcontested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir.1973). Under section 17(j) of the Act, the Commission is required to find and give dueconsideration to the size of the employer’s business, the gravity of the violation, thegood faith of the employer, and the history of previous violations in determining theassessment of an appropriate penalty. The gravity of the offense is the principal factorto be considered. Nacirema Operating Co., 72 OSAHRC 1\/B1O, 1 BNA OSHC 1001, 1971-73 CCHOSHD ? 15,032 (No. 4, 1972).The gravity of the violation of?1910.304(f)(1)(iv) is difficult to determine. The number of employees exposed and thelength of their exposure is unknown. The employer has had other inspections but displayedgood faith in this matter by correcting the alleged violations pointed out to it on thespot or quickly thereafter. After considering all the factors in section 17(j) of the Act,it is determined that a penalty of $300 is appropriate for the violation.Several employees were exposed to chemicals thatcaused or could cause contact dermatitis. The employees were wearing cotton gloves whichtended to absorb the chemicals. Employees could develop infections and severecomplications from the progression of contact dermatitis that could cause more serioushealth problems. A penalty of $360 is assessed for the violation of 1910.132(a).FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of lawcontained in this opinion are incorporated herein in accordance with Rule 52(a) of theFederal Rules of Civil Procedure.ORDERBased upon the foregoing findings of fact and conclusions of law, it isORDERED: 1. That the serious citation and proposed penalties issued to Delford on April 3,1989, (Docket No. 89-1263), are vacated, modified and affirmed as follows: Item No. Disposition Assessed Penalty 1 Vacated Vacated 2 Vacated Vacated 3 Vacated Vacated 4 Vacated Vacated 5 Vacated Vacated 6 Vacated vacated 7 Vacated Vacated 8 Vacated Vacated 9 Modified and $300 Affirmed 2. That items three and seven of the \”other\” citation issued to Delford on April3, 1989, (Docket No. 89-1263), are vacated and items one, two, four, five, six, and eightare affirmed; and 3. That the serious citation issued to Delfordon May 15, 1989, (Docket No. 89-1753), is affirmed and a penalty of $360 assessed for theviolation.Dated this other day of November 1990.JAMES D. BURROUGHSJudgeFOOTNOTES: [[1]] Section 1910.23(a)(5) provides:Every pit and trapdoor floor opening, infrequently used, shall be guarded by a flooropening cover of standard strength and construction. While the cover is not in place, thepit or trap opening shall be constantly attended by someone or shall be protected on allexposed sides by removable standard railings.[[2]] The transcript erroneously states thisopening was 300 inches deep (Tr. 21).[[3]] Respondent states in its brief that thewalkway covered a drain leading to a pit combining well and city water. This fact was notestablished in the evidence of record.[[4]] Section 1910.212(a)(1) of 29 C.F.R.provides:(a) Machine guarding –(1) Types of guarding. One or more methods of machine guardingshall be provided to protect the operator and other employees in the machine area fromhazards such an those created by point of operation, ingoing nip points, rotating parts,flying chips and sparks. Examples of guarding methods are–barrier guards, two-handtripping devices, electronic safety devices, etc.[[5]] Section 1910.212(a)(3)(ii) provides:The point of operation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriate standardstherefor, or in the absence of applicable specific standards, shall be so designed andconstructed as to prevent the operator from having any part of his body in the danger zoneduring the operating cycle.[[6]] There is no information as to how far theoperator’s hands are from the point of operation as he holds the material in the die.There is no evidence as to how fast the upper die descends, and there is no evidence as towhether there is any reason for the operator to place his hands in the die area. These areimportant factors in determining if a violation has occurred.[[7]] In using the term \”closeproximity\” in testifying on item seven, Ms. Harding had in mind a distance of twofeet (Tr. 64).[[8]] Section 1910.212 (a) (4) of 29 C. F. R.provides:Barrels, containers, and drums. Revolving drums, barrels, and containers shall be guardedby an enclosure which is interlocked with the drive mechanism, so that the barrel, drum,or container cannot revolve unless the guard enclosure is in place.[[9]] Respondent states in its brief that theBanbury operator is the only employee to enter the pit for the purpose of performingmaintenance and that the equipment is turned off before he enters. This last fact is notpart of the evidence of record and cannot be considered an evidence in resolving thisissue. Prior to the hearing, Mr. Reach was advised an to the hearing procedure andspecifically advised that the Judge could consider only the facts placed into evidence inreaching a decision. He was advised to place all facts into the record he deemed would behelpful to his case.[[10]] Section 1910.304 (f) (1) (iv) provides:AC systems of 50 volts to 1000 volts shall be grounded under any of the followingconditions unless exempted by paragraph (f) (1) (v) of this section:(A) If the system can be so grounded that the maximum voltage to ground on the ungroundedconductors does not exceed 150 volts;(B) If the system is nominally rated 480Y\/277 volt, 3-phase, 4-wire in which the neutralis used as a circuit conductor;(C) If the system is nominally rated 240\/120 volt, 3-phase, 4-wire which the midpoint ofone phase is used as a circuit conductor; or(D) If a service conductor is uninsulated.[[11]] Section 1910.101 (b) provides:Compressed gases. The in-plant handling, storage, and utilization of all compressed gasesin cylinders, portable tanks, rail tankcars, or motor vehicle cargo tanks shall be inaccordance with Compressed Gas Association Pamphlet P-1-1965.[[12]] It is noted that section 3.5.8 of theCompressed Gas Association Pamphlet P-1-1984 does not automatically require every cylinderbe secured. It provides:3.5.8 Storage and Use of Containers. All compressed gas containers in service or instorage shall be stored standing upright where they are not likely to be knocked over, orthe containers shall be secured. At container filling plant operations and sellers’warehouses, the nesting of tightly stacked containers is considered an equivalent safemanner of storage. Gas containers with a water volume up to 305 cu. in (5.0 L) may bestored in a horizontal position.[[1]] Section 1910.23(a)(5) provides:Every pit and trapdoor floor opening, infrequently used, shall be guarded by a flooropening cover of standard strength and construction. While the cover is not in place, thepit or trap opening shall be constantly attended by someone or shall be protected on allexposed sides by removable standard railings.[[2]] The transcript erroneously states thisopening was 300 inches deep (Tr. 21).[[3]] Respondent states in its brief that thewalkway covered a drain leading to a pit combining well and city water. This fact was notestablished in the evidence of record.[[4]] Section 1910.212(a)(1) of 29 C.F.R.provides:(a) Machine guarding–(1) Types of guarding. One or more methods of machine guarding shallbe provided to protect the operator and other employees in the machine area from hazardssuch as those created by point of operation, ingoing nip points, rotating parts, flyingchips and sparks. Examples of guarding methods are–barrier guards, two-hand trippingdevices, electronic safety devices, etc.[[5]] Section 1910.212(a)(3)(ii) provides:The point of operation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriate standardstherefor, or in the absence of applicable specific standards, shall be so designed andconstructed as to prevent the operator from having any part of his body in the danger zoneduring the operating cycle.[[6]] There is no information as to how far theoperator’s hands are from the point of operation as he holds the material in the die.There is no evidence as to how fast the upper die descends, and there is no evidence as towhether there is any reason for the operator to place his hands in the die area. These areimportant factors in determining if a violation has occurred.[[7]] In using the term \”closeproximity\” in testifying on item seven, Ms. Harding had in mind a distance of twofeet (Tr. 64).[[8]] Section 1910.212(a)(4) of 29 C.F.R.provides:Barrels, containers, and drums. Revolving drums, barrels, and containers shall be guardedby an enclosure which is interlocked with the drive mechanism, so that the barrel, drum,or container cannot revolve unless the guard enclosure is in place.[[9]] Respondent states in its brief that theBanbury operator is the only employee to enter the pit for the purpose of performingmaintenance and that the equipment is turned off before he enters. This last fact is notpart of the evidence of record and cannot be considered as evidence in resolving thisissue. Prior to the hearing, Mr. Reach was advised as to the hearing procedure andspecifically advised that the Judge could consider only the facts placed into evidence inreaching a decision. He was advised to place all facts into the record he deemed would behelpful to his case.[[10]] Section 1910.304(f)(1)(iv) provides:AC systems of 50 volts to 1000 volts shall be grounded under any of the followingconditions, unless exempted by paragraph (f)(1)(v) of this section:(A) If the system can be so grounded that the maximum voltage to ground on the ungroundedconductors does not exceed 150 volts;(B) If the system is nominally rated 480Y\/277 volt, 3-phase, 4-wire in which the neutralis used as a circuit conductor;(C) If the system is nominally rated 240\/120 volt, 3-phase, 4-wire which the midpoint ofone phase is used as a circuit conductor; or(D) If a service conductor is uninsulated. [[11]] Section 1910.101(b) provides:Compressed gases. The in-plant handling, storage, and utilization of all compressed gasesin cylinders, portable tanks, rail tankcars, or motor vehicle cargo tanks shall be inaccordance with Compressed Gas Association Pamphlet P-1-1965.[[12]] It is noted that section 3.5.8 of theCompressed Gas Association Pamphlet P-1-1984 does not automatically require every cylinderbe secured. It provides:3.5.8 Storage and Use of Containers. All compressed gas containers in service or instorage shall be stored standing upright where they are not likely to be knocked over, orthe containers shall be secured. At container filling plant operations and sellers’warehouses, the nesting of tightly stacked containers is considered an equivalent safemanner of storage. Gas containers with a water volume up to 305 cu. in (5.0 L) may bestored in a horizontal position.”