“*SECRETARY OF LABOR.**Complainant.**v.**HACKNEY BRIGHTON CORPORATION.**Respondent.**OSHRC Docket No. 88-610**\/DECISION \/*Before: FOULKE, Chairman: WISEMAN and, MONTOYA, Commissioners.BY THE COMMISSION:Hackney\/Brighton Corporation (\”Hackney\”) fabricates steel for pressurevessels at a facility in Lancaster, Pennsylvania. On February 12, 1988,Compliance Officer John Wormer inspected the facility in response to anemployee safety complaint. Following the inspection, the OccupationalSafety and Health Administration (\”OSHA\”), of the United StatesDepartment of Labor, issued Hackney one citation alleging seriousviolations of the Occupational Safety and Health Act of 1971, 29 U.S.C.?? 651-678 (\”the Act\”). The Secretary of Labor proposed penaltiestotaling $500.[[1]] Review Commission Administrative Law Judge David J.Knight vacated all items in the citation. Issues arising from items 1(b)and 2 of the citation were specified in the direction for review. [[2]]For the reasons set forth below, we reverse the judge regarding theseitems, find that Hackney’s violations of the standards wereother-than-serious and assess a total penalty of $150.1. Whether the Administrative Law Judge erred in vacating the allegedserious violation of 29 C.F.R. ? 1910.37(j).*A. Background*The Secretary alleged that Hackney failed to comply with section1910.37(j)[[3]] by failing to provide a substantially level means ofegress through an exit door. She proposed a total penalty of $150 forthe alleged violations of 29 C.F.R. ?? 1910.37(h)(1) and 1910.37(j).The door was located near a corner of the east wall of the building andwas elevated approximately 4 feet above floor level. The door was madeof steel, with no glass windows or other openings, and there was nolock, panic bar, or any other means of gaining access from the outside.The side of the exit door inside the building was equipped with a panicbar opening mechanism, which was located approximately three feet abovethe doorsill. Because there were no stairs or ramps leading to or fromthe elevated exit door, an employee who wished to exit through this doorwould have to reach 6 1\/2 to 7 feet above ground level to engage thepanic bar, climb up 4 feet to the door sill while holding the door open,and jump down 4 feet on the exit side. The surface outside the exit doorconsisted of \”recently excavated or graded soil.\” The exit door waslocated approximately 40 feet from another exit on the same wall andabout 60 feet from another fire door. The building had two otherexits.[[4]] All five of the exits were accessible to all of Hackney’semployees. There was at least one employee working in this area whomight require use of this exit in the event of an emergency or if one ofthe other doors was blocked.Plant Manager Rudolph Chiappetta told Compliance Officer Wormer that theCommonwealth of Pennsylvania’s Department of Labor and Industry hadinstructed Hackney to install an exit door at this location in order toreceive an occupancy permit. The door not be installed at ground levelbecause there was a \”heavy\” stone wall below the door, visible on theoutside of the building. Chiappetta testified that Hackney did not put apermanent stairway outside the fire door because of a high incidence ofvandalism, robberies, drug activity and street people in that area, and\”if we had stairs there they would try to force their way into [the]building\” Chiappetta did not testify why there is no stairway or rampinside the building. The compliance officer testified that Chiapettatold him that Hackney \”had not gotten around to putting steps or a rampup on either side of this exit door as of the date of the inspection.\”Chiapetta testified that there were two wooden ladders approximately 20feet from the exit. The ladders were to be used so that \”in case of anemergency…we would take the ladder, open the door and put the ladderdown\” to facilitate exiting the building. The compliance officertestified that he did not remember seeing a ladder during his inspection.When asked about the type of injuries that could occur as a result ofthe door being elevated 4 feet above the ground, the compliance officertestified that \”normally, if it were a healthy person in a normalsituation, they could probably go four feet without a problem. But, ifit were a panic situation or if a person had some type of handicap, itmay create some physical problems for that person to drop four feet.[[5]] He believed that it was possible for \”broken bones, severe bruiseswith hematomas, or anything of that nature\” to occur from employeesjumping down 4 feet from the exit door’s sill to the outside. The CObased this on his past experience reviewing accident reports thatdescribed \”falls with less than four foot, to even soft ground, thathave resulted in broken bones, overturned ankles with complications, andbruises, and things of that nature that required medical attention.\”However, the compliance officer testified that there was a \”lowprobability\” of a serious injury occurring. [[6]]The judge vacated the section 1910.37(j) violation on the grounds thatfour other available means of access existed at the facility, onlyeleven employees worked in the building and there were ladders nearbywhich would provide safe access to the exit door.The judge concluded that the door \”being four feet off the floor andeasily operable does not constitute a hazard or impeded agrees whichthis standard is written to prevent.On review the Secretary argues that the judge ignored the standard’s\”clear intent to require only stairs or ramps where a egress is notsubstantially level.\” The Secretary asserts that the lack of egresscould be potentially fatal where a tire has blocked the plant’s otherexits or where confusion compels an employee to precipitantly attempt tonegotiate the elevated exit\”.In response, Hackney argues that under Spot-Bilt, Inc.,II BNA OSHC 1998,1984, CCH OSHD ? 26,944 (No. 79-5328, 1984), not every exit of afacility must comply with the cited egress standard when there areadequate exits. In Spot-Bilt, the employer was cited under the emergencyegress standards at 29 C.F.R. ?? 1910.36(b)(4). 1910.37(k)(2). and1910.37(q)(1) for failing to maintain a tree and unobstructed means ofegress and to mark it with an exit sign. The cited door. which waslocked, had its handle and exit sign removed and was also blocked by anumber of objects, including sheets of plywood. Spot-Bilt locked thedoor because it was being used for unauthorized egress during work hoursand because of \”break-ins\” The Commission vacated the citation, findingthat the five other exits in the room met the cited standard’s purposeof ensuring that employees had free and unobstructed egress from the room.Hackney also argues that if a violation is found, it should beclassified as de minimis because the Secretary failed to prove directand immediate relationship to the safety or health of its workers, basedon the unlikelihood of a fire, the compliance officer’s testimony of a\”low probability\” of an injury and that other exits were available tothe employees. For support, Hackney cited National Rolling Mills, 4 BNAOSHC 1719, 1720- 21, 1976-77 CCH OSHD ? 21,114, p.25,415 No. 7987,1976)(fall distance of 3 feet into a pit is de minimis when exposuresare brief and brief and precautions are present). [[7]]The Secretary responds to Hackney’s citation of Spot-Bilt by arguingthat Spot-Bilt does not apply to the case since in the instant case,Hackney made no effort to discourage or otherwise prevent employee useof the elevated door.\” The Secretary argues in the alternative that\”Spot-Bilt is simply bad law*B. Discussion*Section 1910.37(j) requires that a \”means of egress\” be equipped withstairs or ramps when it is not \”substantially level.\” Hackney arguesthat under Spot-Bilt, the door here would not be considered a means ofegress. In Spot-Bilt, however, in addition to the presence of numerousother exits, the cited door was not intended for use as a door, it hadno handle or exit sign, and access to it was limited by a number ofobjects placed in front of it. Here, despite the lack of of asubstantially level access to, the door. the door could be opened fromthe inside, and it was intended to be a means of egress. Because thedoor was intended to provide a means to exit the building in anemergency, we find that the door is a \”means of egress.\” Since it isclear that an exit 4 feet above the ground cannot be consideredsubstantially level,\”.we therefore find that Hackney violated the standard.For a violation to he deemed serious under section 17(k) of the Act. 29U.S.C. ? 666(k), there must be \”a substantial probability that death orserious physical harm could result if an accident occurred. Indetermining whether a violation is serious, the issue is not whether anaccident Is likely to occur, but whether the result of an accident wouldlikely be death or serious injury. Spancrete Northeast, Inc., 15 BNAOSHC 1020, 1024, 1991 CCH OSHD ? 29,313, p.39,358 (No. 86-521, 1991).The compliance officer testified that \”broken bones\” or \”severe bruises\”were possible if a person exited the door in a panic situation, but healso testified that the probability of a serious injury occurring waslow. Based on this testimony, we find that the evidence does notestablish a substantial probability that death or serious physical harm,could result from Hackney’s failure to provide a substantially levelmeans of egress. We therefore find that the Secretary failed to meet herburden of proving a serious violation of this standard.However, we find no basis for finding the violation de minimis, asargued by Hackney. A violation properly characterized as de minimis whenit has no direct or immediate relationship to employee safety, and isnormally limited to situations in which the hazard is so trifling thatan abatement order would not significantly promote the objectives of theAct Dover Elevator Co., 15 BNA OSHC 1378, 1382, 1991 CCH OSHD ? 29,524.p. 39,850 (No. 88-2642, 1991. See also Super Excavations, Inc.,15 BNAOSHC 1313, 1991 CCH OSHD ? 29,498 No. 89-2253, 1991 Pratt & WhitneyAircraft, 9 BNA OSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401, 1981).Here, Hackney has provided no basis for a finding that the violationlacks a direct or immediate relationship to employee safety. It is clearthat if an accident had occurred, it would be neither \”trifling\” norlikely to result in death or serious injury. We therefore conclude thatthe violation was other-than-serious.Based on the penalty factors enumerated in 17(j) of the Act, 29 U.S.C. ?666(j), we assess a penalty of $75 for the other-than-serious violationof 29 C.F.R. ? 1910.37(j).II. Whether the Administrative Law Judge erred in vacating the allegedserious violation of 29 C.F.R. ? 1910.252(a) (2) (iv) (c).*A. Background*The Secretary alleged that Hackney failed to comply with section1910.252 (g) (2) (iv) (c)[[8]] by storing an acetylene cylinder in acompressed gas storage area with ten oxygen cylinders. She proposed apenalty of $150.The compliance officer testified that he observed a storage area locatedin the middle of Hackney’s facility which contained one acetylenefuel-gas cylinder among several oxygen tanks without the requisitedistance or noncombustible barrier between them. The area containing thegas cylinders was demarcated by yellow painted partitions and erectedsteel bars. It was the compliance officer’s understanding that this wasthe primary storage area for these tanks, and he did not recall anyother areas being shown to him. The cited gas cylinders were capped andnot in use. Approximately 15 feet from the storage area, an employeeoperated a radiograph burner machine that emitted two sources ofignition: open flames and electrical sparking.Chiappetta testified that he told the compliance officer that thecylinders in question were delivered up to a half-hour before closingtime the Thursday before the inspection on Friday[[9]] Chiappettatestified that the cylinders referred to in the citation were\”temporarily place(d) there pending their movement.\” He testified thatthe acetylene cylinders are normally stored 40 feet away from the oxygencylinders. When the cylinders are delivered, they are brought in throughthe main entrance at the building and left at the \”storage area.\” Thosecylinders containing a \”gas,\” such as acetylene, are then moved to aseparate gas storage area. If the acetylene had been delivered \”earlyenough,\” it would have been moved immediately, but the acetylenecylinder in question was not moved because it was \”the end of theshift.\” Chiappetta testified that if the compliance officer \”hadn’t comein that morning, it would have been moved at that time, early in themorning.\” At around 9:30 a.m. Friday, the cylinders were placed in theirstorage areas. There was only one employee exposed to the allegedhazard, and the compliance officer opined that the condition was of alow gravity.The judge vacated the section 1910.25(a)(2)(iv)(c) violation on thegrounds that the 2 1\/2 hour delay between the plant opening at 7:00 a.m.and the 9:30 a.m. inspection was not tantamount to storage.The Secretary argues that the judge erred in vacating this allegedviolation because the cylinders were, in fact, in storage overnight. TheSecretary claims that the issue is not whether the cylinders were storedbut whether short-term storage falls within the standard’s coverage. TheSecretary claims that the term storage \”encompasses even a short-termplacement of oxygen cylinders with acetylene tanks,\” and claims that herinterpretation is entitled to deference.Hackney argues that the cylinder was not in storage within the meaningof the standard. Hackney notes that the standard refers to cylinders instorage, and stresses that the word \”in\” before \”storage\” \”denotes theplacement of cylinders in a particular area with some degree ofpermanency.\” Hackney claims that the acetylene cylinder was temporarilykept with the oxygen cylinders until it could later be moved to its owndesignated storage facility. Hackney also argues that \”but forinterruption in [Hackney’s] normal procedure, which was caused by [thecompliance officer’s] early morning inspection, the subject cylinderwould have been put in its respective storage area shortly after thefacility opened, rather than at approximately 9:30 a.m., as happened onthe morning of the inspection.\”In response, the Secretary argues that Hackney’s argument would permitan employer to avoid complying with the standard \”simply by formallydesignating an area as a storage area [so that] a cylinder not in thisspecial are will not be ‘in storage’ even if it has been negligentlyleft unused in a production area for days at a time.\”*B. Discussion*It is undisputed that the acetylene cylinder was left with the oxygencylinders in the oxygen cylinder storage area between 3:00 p.m. and 3:30p.m. on the day before the inspection, and was not moved to its ownstorage area until 9:30 a.m. the next day. The acetylene cylinder wasnot to be used. but rather was to be relocated to its proper storagearea \”early in the morning.\” We have held that under section1910.252(a)(2)(iv)(c) cylinders are in storage if they are either not inuse or soon to be in use. See MCC of Florida, Inc. 9 BNA OSHC 1895,1897, 1981 CCH OSHD ? 25,420, p. 31,681 (No. 15757, 1981) (cylinders arenot \”in storage\” where they are \”available for immediate use in the areawhere they were located\”): Pratt & Whitney Aircraft, 9 BNA OSHC at 1672,1981 CCH OSHD at p. 31,519 (cylinders tied together in a corner coveredwith dust and not used for \”quite awhile\” were not available forimmediate use and were in storage); Grossman Steel & Aluminum Corp. 6BNA OSHC 2020, 2023-24, 1978,CCH OSHD ? 23.097.(No. 76-2834.1978)(oxygen tank and acetylene tank were not in storage but wereavailable for use in an area where welding was to be performed on aintermittent basis). See also Armour Food Co. 14 BNA OSHC1817,1827,1987-1990 CCH OSHD ? 29,088. p. 38,889 (No. 86-247, 1990)(cited under section 1910.252(a)(2)(ii)(b), cylinders on a cart at thelocation where they will be used within fifteen minutes are in used andnot in storage). Given the fact that the acetylene cylinder was storedovernight with the oxygen cylinders, we find that the cylinders were instorage within the meaning of the standard and that Hackney violatedthat standard.Testimony as to the seriousness of the violation was given by thecompliance officer. He testified that the presence of the acetylene nearthe oxygen would tend to enhance any ongoing fire that occurred near thecylinders. Nevertheless, he also opined that violation was one of \”lowgravity,\” and that \”the severity factor is also considered in that lowgravity.\”If we were to substitute our judgement for that of the complianceofficer, we might find the violation to be serious. However, we areconstrained by the evidence presented in this case to find that theSecretary failed to establish that a substantial probability that deathor serious physical harm could result if an accident occurred. Wetherefore find the violation to be other-than-serious.Although we find that the Secretary failed to establish that theviolation was serious, Hackney has provided no support for it claim thatthe violation should be characterized as de minimus. It is clear that ifan accident did occur, the result would not be trifling. Nor is thereany suggestion that oxygen and acetylene cylinders should not beseparated as the standard requires. Hackney represented that thecylinder would have been moved had it not arrived so late in the day.Based on the penalty factors enumerated in 17(j) of the Act, 29 U.S.C. ?666(j), we assess a penalty of $75 for the other-than-serious violationof 29 C.F.R. ? 1910.252 (a) (2) (iv) (c).*III.Order*Accordingly, we find that the violation of 29 C.F.R. ? 1910.37(j) wasother-than-serious and assess a penalty of $75. We also find that theviolation of ? 1910.252(a)(2)(iv)(c) was other-than-serious, and assessa penalty of $75, for a total penalty of $150.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated August 28, 1992————————————————————————*SECRETARY OF LABOR.Complainant.v.HACKNEY BRIGHTON CORPORATION.Respondent.**OSHRC Docket No. 88-610**Decision and Order*Appearances: For the complainant::Marshall H. Harris, Regional SolicitorU.S. Department of LaborPhiladelphia, Pa.By: _Joseph T., Crawford_, Esq.For the respondent::_Frederick W Addison. III_, Esq.Rader, Addison & Stony, P.C.Dallas, TexasBy a citation[[1]] issued February 23, 1988, the Occupational Safety andHealth Administration of the U.S. Department of Labor (complainant)alleges that Hackney\/Brighton Corporation, a fabricator of steel forpressure vessels in Lancaster, Pennsylvania, (respondent), seriouslyviolated (that is, a substantial probability of serious physical harm ordeath existed, 29 U.S.C. ? 666(j); three safety standards.The first concerning the adequacy of an emergency exit, in two parts, isas follows as this is governed by the safety standard at 29 ? 1910.27:(h) Discharge from exits. (1) All exits shall discharge directly to thestreet, or to a yard, court, or other open space that gives safe accessto a public way. The streets to adequate to accommodate all personsleaving the building. Yards courts or other open spaces to which exitsdischarge shall also be of adequate width and size to provide allpersons leaving the building with ready access to the street.(j) Changes in elevation. Where a means of egress is not substantiallylevel, such differences in elevation shall be negotiated by stairs or ramps.A total of 11 non-handicapped employees are engaged at this facility(Tr. 58, 86). The plant floor (a trapezoid) measures approximately 140by 540 by 80 by 140 feet (Ex. R-3) with five doors. The door inquestion, shown as the \”fire door\” on a sketch, exhibit R-3, is locatednear a corner of the building about 40 feet from another exit (Tr. 53),on one side , and about 60 feet from another door (Tr. 89).But its bottom sill is four feet up from the floor (Tr. 17-18 and photoC-2); and the panic bar three more feet or seven feet from the floor(Tr. 21). Respondent’s plant manager testified, however, that twoladders were located 20 feet from this door; all employees can reach thepanic bar from floor level and handily open it; and all doors are easilyaccessible to all employees (Tr. 92-103, 135-196). He pointed out theladder to the inspecting officer (Tr. 107) but the officer did notremember either that statement being made or seeing a ladder (Tr. 114, 121).The area of the plant’s location has a high vandalism rate and ispopulated by \”kids\” and drug users. Street people find accommodationsalong the wall, settling there with mattresses and even a refrigerator.Respondent fears that they might force their way into the building ifthey could reach this door. Therefore, it was installed in 1986 abovefloor level without a ramp or any ready access (Tr. 90-92, 113).This door accesses to an open and graded area (not paved) with noobstructions whatsoever impeding a safe exit to the street by any numberof people as required by 29 C.F.R. ? 1910.87 (h), cited above.Complainant’s brief does not mention this alleged violation at all and Ifind that no fact supports it. This item is vacated in the order below.However, a jump of four feet to ground could cause bodily harm astestified to by the officer, but with a low probability of injury (Tr.57-59, 74) if a panic situation existed. But given 1) four other readilyavailable means of access; 2) only 11 employees in the building; and 3)ladders nearby (and I accept the plant manager’s testimony over theofficer’s here since the latter did not remember) which would providesafe access to and from the door, I find that this door being four feetfrom the prior and easily openable (Tr. 93-94),does not constitute aharzard of impeded egress which this standard is written to prevent andI conclude that no violation of 29 C.F.R ?1910.37(j) exists under thesecircumstances. This item is violation in the order below.The second alleged violation concerns the placement of compressed gascylinders specifically encompassed by 29 C.F.R. ? 1910.212(a)(2)(iv)(c):oxygen cylinders in storage shall be separated from fuel-gas cylindersor combustible materials (especially oil or grease) ,a minimum distanceof 20 feet or by a noncombustible barrier at lease 5 feet high having afire-resistance rating of at least one-half hour.The officer testified that an open area enclosed by yellow steel bars(photo exhibit C-2) was a storage area for compressed gases and withinit was one acetylene cylinder among several oxygen tanks. A source ofignition was within 15 feet of this area (Tr. 26-30, 75). Any leak couldresult in a fire or explosion (Tr. 31).The officer did not recall being shown any other storage area forcylinders, or being told when these particular bottles were delivered tothe plant (Tr.65-69).Respondent disputes this allegation on the basis that these mixedcylinders were not in \”storage\” as the standard requires before aviolation may be affirmed. Its plant manager testified that thecylinders on the right of photo exhibit C-3 were delivered between 3:00and 3:30 p.m. the night before when the plantwas closing. At around9:30 the next morning, they are separated and placed in their storageareas, the oxygen and acetylene being 40 feet apart from each other (Tr.94-98 and exhibit sketch R-3). This is normal procedure when gases aredelivered late in the day (Tr. 114).While the plant opens at 7:00 a.m, I do not find that this two-and-halfhour delay tantamount to storage. [[2]] In fact, the acetylene bottlewas moved to its storage place while the officer was at the plantaccording to the plant manager (Tr.114). The normal safety operation ofthe plant requires storage of these tanks apart, and the standard doesnot forbid placing these tanks together but rather their storage. _Cf._,_Secretary v. MCC of Flordia, Inc._, 9 OSCH 1895. I conclude thisstandard has not been violated as alleged in that the time betweendelivery and the final storage is not unreasonable; and this item isvacated in the order below. Finally, respondent is alleged to have violated 29 C.F.R.?1910.304(f)(5)(v) requiringEquipment connected by cord and plug. Under any of the conditionsdescribed in paragraphs (f)(5)(v)(a) through (f)(5)(v)(c) of thissection, exposed non-current-carrying metal parts of cord andplug-connected equipment which may become energized shall be grouped.in that a radiograph machine (which cuts circular patterns in steelplates, see photo exhibit C-3) in operation was missing the ground prongform its plug (Tr. 33) Thus, according to the officer, if the machine’soperator (the only employee exposed) came into any metal contact whenthe machine experienced any type of short circuit , he could suffer anelectrical shock (Tr. 34-38). The plant manager could not explain howthe ground prong came to be missing (Tr. 37). The officer testifiedthat these three-prong plugs may be at any hardware store and installedin minutes (Tr. 68).This alleged violation may not be sustained. The machine’s cord wasplugged into an extension cord which in turn ran to the source of power(Tr. 76). The plant manager testified that the extension cord had aground plug and was properly grounded in accordance with the company’ssafety manual and practices (Tr. 112). The officer’s testify, duringthe case-in-chief or when called for rebuttal, concerning the fact thatthe machine was grounded as required by cited standard and concludedthrough the extension cord. As a matter of fact, I find that themachine was grounded as required by cited standard and conclude that noviolation of that has been shown. Additionally, this three-pronged plugis not of a common variety but is difficult to obtain and was on orderbefore the inspection, being finally installed by an electricalcontractor on March 31, 1988 (Tr. 99, 100-101 and exhibit R-4). Thisitem is vacated in the order below._*ORDER: *_Based on the finding of fact and conclusion of the law reached afterconsidering the evidence and the parties’ arguments and proposals, whichto extent shown are adopted or rejected as having insufficient supportin the preponderance of the evidence or precedent, it is ORDERED thatthe citation issued February 23, 1988, alleging serious violations of items1) 29 C.F.R. ? 1910.37 (h (I) and .37(j);2) 29 C.F.R. ? 1910.252(a) (2) (iv) (c); and3) 29 C.F.R. ? 1910.304 (f) (5) (v) be, and they are hereby, vacatedtogether with the civil penalties (totaling $500) assessed therefor.DAVID J. KNIGHTJudge, OSHRCFOOTNOTES:[[1]] The alleged violations are as follows: 1(a):29 C.F.R. ?1910.37(h)(1) – one of the exits at its facility allegedly timed todischarge directly into a street or other open space. 1(b) 29 C.F.R. ?1910.37(j) – one of the exit doors at the facility was four feet abovethe level of the interior floor: 2: 29 C.F.R. ? 1910.252(a)(2)(iv)(c) -an acetylene cylinder was allegedly stored in a compressed gas storagearea with 10 oxygen cylinders; and 3: 29 C.F.R. ? 1910.304(f)(5)(v) -the ground prong was missing on a radiograph machine power cord.[[2]] The Secretary did not petition for review of the judge’s vacationof serious citation no. 1 Item 1(a), which alleged a serious violationof 29 C.F.R. ? 1910.37(h)(1). On December 21, 1990, the Secretary fileda notice of withdrawal of serious citation no. 1, Item 3, which allegeda serious violation of 29 C.F.R. ? 1910.304 (f)(5)(v). On January 25,1991, the Commission struck this item from the direction for review.[[3]] Section 1910.37(j) provides as follows:Changes in elevation. Where a means of egress is not substantiallylevel, such differences in elevation shall be negotiated by stairs or ramps.[[4]] The compliance officer testified that Hackney’s facility had atotal of three exits. However, it appears that the compliance officerwas referring to the total number of fire exits. Plant Manager RudolphChiappetta testified that there were a total of five doors in this facility.[[5]]Chiapetta testified that none of Hackney’s employees are incapableof climbing up the 4-foot ledge in order to reach the door.[[6]] There was no testimony regarding injuries which could occur whilereaching the elevated fire door.[[7]] To support this and other arguments in his briefs. Hackney citiesseveral unreviewed judges’ decisions However, an unreviewed judge’sdecisions does not have procedural value Leone Constru. 3 BNA OSHC 1979,1975-76 CCH OSHD ?20,387 (No. 4090, 1976).[[8]] Section 1910.252 provides as follows:Oxygen cylinders in storage shall be separated from fuel-gas cylindersor combustible materials except oil or grease, a minimum distance of 20feet or by a noncombustible at least 6 feet high having a fireresistance of at least one-half hour.In 1990, 29 CFR ? 1910.252(a)(2)(iv)(c) was recodified without anysubstantive changes as 29 C.F.R. ?1910.253(b)(4)(iii)[[9]] The facility closes at 3:30 pm and the bottles were dropped offbetween 3:00 pm and 3:30 pm. [[1]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651, et seq., citations were issued after inspection (here on February12, 1988) and may be contested within a 15- working day period (hereMarch 1, 1988) Both parties were represented by counsel at the hearing(August 10, 1988). Briefs were filed by both parties by October 19,1988. Jurisdiction is admitted (Tr. 6) and respondent does not assert(apparently withdraws) it’s motion concerning the number of employeesnecessary to justify the issuance of a citation (Tr. 7 and respondent’sletter dated October 12, 1988).[[2]] In _Secretary v. Ormet Corp_., 9 OSHC 1055, cited by complainantthe Commission found the cylinders in question were in \”storage\” Seefoot note 12 at page 1060.”