“Docket No. 88-610 SECRETARY OF LABOR.Complainant.v.HACKNEY BRIGHTON CORPORATION.Respondent.OSHRC Docket No. 88-610DECISION Before: FOULKE, Chairman: WISEMAN and, MONTOYA, Commissioners. BY THE COMMISSION:Hackney\/Brighton Corporation (\”Hackney\”) fabricatessteel for pressure vessels at a facility in Lancaster, Pennsylvania. On February 12, 1988,Compliance Officer John Wormer inspected the facility in response to an employee safetycomplaint. Following the inspection, the Occupational Safety and Health Administration(\”OSHA\”), of the United States Department of Labor, issued Hackney one citationalleging serious violations of the Occupational Safety and Health Act of 1971, 29 U.S.C.?? 651-678 (\”the Act\”). The Secretary of Labor proposed penalties totaling$500.[[1]] Review Commission Administrative Law Judge David J. Knight vacated all items inthe citation. Issues arising from items 1(b) and 2 of the citation were specified in thedirection for review. [[2]] For the reasons set forth below, we reverse the judgeregarding these items, 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 alleged serious violation of29 C.F.R. ? 1910.37(j).A. BackgroundThe Secretary alleged that Hackney failed to comply with section 1910.37(j)[[3]] byfailing to provide a substantially level means of egress through an exit door. Sheproposed a total penalty of $150 for the 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 thebuilding and was elevated approximately 4 feet above floor level. The door was made ofsteel, with no glass windows or other openings, and there was no lock, panic bar, or anyother means of gaining access from the outside. The side of the exit door inside thebuilding was equipped with a panic bar opening mechanism, which was located approximatelythree feet above the doorsill. Because there were no stairs or ramps leading to or fromthe elevated exit door, an employee who wished to exit through this door would have toreach 6 1\/2 to 7 feet above ground level to engage the panic bar, climb up 4 feet to thedoor sill while holding the door open, and jump down 4 feet on the exit side. The surfaceoutside the exit door consisted of \”recently excavated or graded soil.\” The exitdoor was located approximately 40 feet from another exit on the same wall and about 60feet from another fire door. The building had two other exits.[[4]] All five of the exitswere accessible to all of Hackney’s employees. There was at least one employee working inthis area who might require use of this exit in the event of an emergency or if one of theother doors was blocked.Plant Manager Rudolph Chiappetta told Compliance Officer Wormerthat the Commonwealth of Pennsylvania’s Department of Labor and Industry had instructedHackney to install an exit door at this location in order to receive an occupancy permit.The door not be installed at ground level because there was a \”heavy\” stone wallbelow the door, visible on the outside of the building. Chiappetta testified that Hackneydid not put a permanent stairway outside the fire door because of a high incidence ofvandalism, robberies, drug activity and street people in that area, and \”if we hadstairs there they would try to force their way into [the] building\” Chiappetta didnot testify why there is no stairway or ramp inside the building. The compliance officertestified that Chiapetta told him that Hackney \”had not gotten around to puttingsteps or a ramp up on either side of this exit door as of the date of theinspection.\”Chiapetta testified that there were two wooden laddersapproximately 20 feet from the exit. The ladders were to be used so that \”in case ofan emergency…we would take the ladder, open the door and put the ladder down\” tofacilitate exiting the building. The compliance officer testified that he did not rememberseeing a ladder during his inspection.When asked about the type of injuries that could occur as aresult of the door being elevated 4 feet above the ground, the compliance officertestified that \”normally, if it were a healthy person in a normal situation, theycould probably go four feet without a problem. But, if it were a panic situation or if aperson had some type of handicap, it may create some physical problems for that person todrop four feet. [[5]] He believed that it was possible for \”broken bones, severebruises with hematomas, or anything of that nature\” to occur from employees jumpingdown 4 feet from the exit door’s sill to the outside. The CO based this on his pastexperience reviewing accident reports that described \”falls with less than four foot,to even soft ground, that have resulted in broken bones, overturned ankles withcomplications, and bruises, and things of that nature that required medicalattention.\” 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 thegrounds that four other available means of access existed at the facility, only elevenemployees worked in the building and there were ladders nearby which would provide safeaccess to the exit door.The judge concluded that the door \”being four feet off thefloor and easily operable does not constitute a hazard or impeded agrees which thisstandard is written to prevent.On review the Secretary argues that the judge ignored thestandard’s \”clear intent to require only stairs or ramps where a egress is notsubstantially level.\” The Secretary asserts that the lack of egress could bepotentially fatal where a tire has blocked the plant’s other exits or where confusioncompels an employee to precipitantly attempt to negotiate the elevated exit\”.In response, Hackney argues that under Spot-Bilt, Inc.,II BNAOSHC 1998, 1984, CCH OSHD ? 26,944 (No. 79-5328, 1984), not every exit of a facility mustcomply with the cited egress standard when there are adequate exits. In Spot-Bilt, theemployer was cited under the emergency egress standards at 29 C.F.R. ?? 1910.36(b)(4).1910.37(k)(2). and 1910.37(q)(1) for failing to maintain a tree and unobstructed means ofegress and to mark it with an exit sign. The cited door. which was locked, had its handleand exit sign removed and was also blocked by a number of objects, including sheets ofplywood. Spot-Bilt locked the door because it was being used for unauthorized egressduring work hours and because of \”break-ins\” The Commission vacated thecitation, finding that 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 direct and immediaterelationship to the safety or health of its workers, based on the unlikelihood of a fire,the compliance officer’s testimony of a \”low probability\” of an injury and thatother exits were available to the employees. For support, Hackney cited National RollingMills, 4 BNA OSHC 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 exposures are brief and briefand precautions are present). [[7]]The Secretary responds to Hackney’s citation of Spot-Bilt byarguing that Spot-Bilt does not apply to the case since in the instant case, Hackney madeno effort to discourage or otherwise prevent employee use of the elevated door.\” TheSecretary argues in the alternative that \”Spot-Bilt is simply bad lawB. DiscussionSection 1910.37(j) requires that a \”means of egress\”be equipped with stairs or ramps when it is not \”substantially level.\” Hackneyargues that under Spot-Bilt, the door here would not be considered a means of egress. InSpot-Bilt, however, in addition to the presence of numerous other exits, the cited doorwas not intended for use as a door, it had no handle or exit sign, and access to it waslimited by a number of objects placed in front of it. Here, despite the lack of of asubstantially level access to, the door. the door could be opened from the inside, and itwas intended to be a means of egress. Because the door was intended to provide a means toexit the building in an emergency, we find that the door is a \”means of egress.\”Since it is clear that an exit 4 feet above the ground cannot be considered substantiallylevel,\”.we therefore find that Hackney violated the standard.For a violation to he deemed serious under section 17(k) of theAct. 29 U.S.C. ? 666(k), there must be \”a substantial probability that death orserious physical harm could result if an accident occurred. In determining whether aviolation is serious, the issue is not whether an accident Is likely to occur, but whetherthe result of an accident would likely be death or serious injury. Spancrete Northeast,Inc., 15 BNA OSHC 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 panicsituation, but he also testified that the probability of a serious injury occurring waslow. Based on this testimony, we find that the evidence does not establish a substantialprobability that death or serious physical harm, could result from Hackney’s failure toprovide a substantially level means of egress. We therefore find that the Secretary failedto meet her burden of proving a serious violation of this standard.However, we find no basis for finding the violation de minimis, as argued by Hackney. Aviolation properly characterized as de minimis when it has no direct or immediaterelationship to employee safety, and is normally limited to situations in which the hazardis so trifling that an abatement order would not significantly promote the objectives ofthe Act 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 BNA OSHC 1313, 1991 CCH OSHD ?29,498 No. 89-2253, 1991 Pratt & Whitney Aircraft, 9 BNA OSHC 1653, 1981 CCH OSHD ?25,359 (No. 13401, 1981). Here, Hackney has provided no basis for a finding that theviolation lacks a direct or immediate relationship to employee safety. It is clear that ifan accident had occurred, it would be neither \”trifling\” nor likely to result indeath or serious injury. We therefore conclude that the violation was other-than-serious.Based on the penalty factors enumerated in 17(j) of the Act, 29U.S.C. ? 666(j), we assess a penalty of $75 for the other-than-serious violation of 29C.F.R. ? 1910.37(j).II. Whether the Administrative Law Judge erred in vacating thealleged serious violation of 29 C.F.R. ? 1910.252(a) (2) (iv) (c).A. Background The Secretary alleged that Hackney failed to comply withsection 1910.252 (g) (2) (iv) (c)[[8]] by storing an acetylene cylinder in a compressedgas storage area with ten oxygen cylinders. She proposed a penalty of $150.The compliance officer testified that he observed a storage area located in the middle ofHackney’s facility which contained one acetylene fuel-gas cylinder among several oxygentanks without the requisite distance or noncombustible barrier between them. The areacontaining the gas cylinders was demarcated by yellow painted partitions and erected steelbars. It was the compliance officer’s understanding that this was the primary storage areafor these tanks, and he did not recall any other areas being shown to him. The cited gascylinders were capped and not in use. Approximately 15 feet from the storage area, anemployee operated a radiograph burner machine that emitted two sources of ignition: openflames and electrical sparking.Chiappetta testified that he told the compliance officer thatthe cylinders in question were delivered up to a half-hour before closing time theThursday before the inspection on Friday[[9]] Chiappetta testified that the cylindersreferred to in the citation were \”temporarily place(d) there pending theirmovement.\” He testified that the acetylene cylinders are normally stored 40 feet awayfrom the oxygen cylinders. 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 a separategas storage area. If the acetylene had been delivered \”early enough,\” it wouldhave been moved immediately, but the acetylene cylinder in question was not moved becauseit was \”the end of the shift.\” Chiappetta testified that if the complianceofficer \”hadn’t come in that morning, it would have been moved at that time, early inthe morning.\” At around 9:30 a.m. Friday, the cylinders were placed in their storageareas. There was only one employee exposed to the alleged hazard, and the complianceofficer opined that the condition was of a low gravity.The judge vacated the section 1910.25(a)(2)(iv)(c) violation onthe grounds that the 2 1\/2 hour delay between the plant opening at 7:00 a.m. and the 9:30a.m. inspection was not tantamount to storage.The Secretary argues that the judge erred in vacating thisalleged violation because the cylinders were, in fact, in storage overnight. The Secretaryclaims that the issue is not whether the cylinders were stored but whether short-termstorage falls within the standard’s coverage. The Secretary claims that the term storage\”encompasses even a short-term placement of oxygen cylinders with acetylenetanks,\” and claims that her interpretation is entitled to deference.Hackney argues that the cylinder was not in storage within themeaning of the standard. Hackney notes that the standard refers to cylinders in storage,and stresses that the word \”in\” before \”storage\” \”denotes theplacement of cylinders in a particular area with some degree of permanency.\” Hackneyclaims that the acetylene cylinder was temporarily kept with the oxygen cylinders until itcould later be moved to its own designated storage facility. Hackney also argues that\”but for interruption in [Hackney’s] normal procedure, which was caused by [thecompliance officer’s] early morning inspection, the subject cylinder would have been putin its respective storage area shortly after the facility opened, rather than atapproximately 9:30 a.m., as happened on the morning of the inspection.\”In response, the Secretary argues that Hackney’s argument wouldpermit an employer to avoid complying with the standard \”simply by formallydesignating an area as a storage area [so that] a cylinder not in this special are willnot be ‘in storage’ even if it has been negligently left unused in a production area fordays at a time.\”B. DiscussionIt is undisputed that the acetylene cylinder was left with theoxygen cylinders in the oxygen cylinder storage area between 3:00 p.m. and 3:30 p.m. onthe day before the inspection, and was not moved to its own storage area until 9:30 a.m.the next day. The acetylene cylinder was not to be used. but rather was to be relocated toits proper storage area \”early in the morning.\” We have held that under section1910.252(a)(2)(iv)(c) cylinders are in storage if they are either not in use or soon to bein use. See MCC of Florida, Inc. 9 BNA OSHC 1895, 1897, 1981 CCH OSHD ? 25,420, p. 31,681(No. 15757, 1981) (cylinders are not \”in storage\” where they are \”availablefor immediate use in the area where they were located\”): Pratt & WhitneyAircraft, 9 BNA OSHC at 1672, 1981 CCH OSHD at p. 31,519 (cylinders tied together in acorner covered with dust and not used for \”quite awhile\” were not available forimmediate use and were in storage); Grossman Steel & Aluminum Corp. 6 BNA OSHC 2020,2023-24, 1978,CCH OSHD ? 23.097.(No. 76- 2834.1978)(oxygen tank and acetylene tank werenot in storage but were available for use in an area where welding was to be performed ona intermittent basis). See also Armour Food Co. 14 BNA OSHC 1817,1827,1987-1990 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 the location where they will be used within fifteen minutes are inused and not in storage). Given the fact that the acetylene cylinder was stored overnightwith the oxygen cylinders, we find that the cylinders were in storage within the meaningof the standard and that Hackney violated that standard.Testimony as to the seriousness of the violation was given bythe compliance officer. He testified that the presence of the acetylene near the oxygenwould tend to enhance any ongoing fire that occurred near the cylinders. Nevertheless, healso opined that violation was one of \”low gravity,\” and that \”the severityfactor is also considered in that low gravity.\”If we were to substitute our judgement for that of thecompliance officer, we might find the violation to be serious. However, we are constrainedby the evidence presented in this case to find that the Secretary failed to establish thata substantial probability that death or serious physical harm could result if an accidentoccurred. We therefore find the violation to be other-than-serious.Although we find that the Secretary failed to establish thatthe violation was serious, Hackney has provided no support for it claim that the violationshould be characterized as de minimus. It is clear that if an accident did occur, theresult would not be trifling. Nor is there any suggestion that oxygen and acetylenecylinders should not be separated 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, 29U.S.C. ? 666(j), we assess a penalty of $75 for the other-than-serious violation of 29C.F.R. ? 1910.252 (a) (2) (iv) (c).III.OrderAccordingly, we find that the violation of 29 C.F.R. ?1910.37(j) was other-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 assess a penalty of $75,for a total penalty of $150.Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ChairmanDonald G. Wiseman\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerVelma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated August 28, 1992SECRETARY OF LABOR.Complainant.v.HACKNEY BRIGHTON CORPORATION. Respondent.OSHRC Docket No. 88-610Decision and OrderAppearances: For the complainant::Marshall H. Harris, Regional Solicitor U.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 OccupationalSafety and Health Administration of the U.S. Department of Labor (complainant) allegesthat Hackney\/Brighton Corporation, a fabricator of steel for pressure vessels inLancaster, Pennsylvania, (respondent), seriously violated (that is, a substantialprobability of serious physical harm or death existed, 29 U.S.C. ? 666(j); three safetystandards.The first concerning the adequacy of an emergency exit, in twoparts, is as follows as this is governed by the safety standard at 29 ? 1910.27:(h) Discharge from exits. (1) All exits shall dischargedirectly to the street, or to a yard, court, or other open space that gives safe access toa public way. The streets to adequate to accommodate all persons leaving the building.Yards courts or other open spaces to which exits discharge shall also be of adequate widthand size to provide all persons leaving the building with ready access to the street.(j) Changes in elevation. Where a means of egress is notsubstantially level, such differences in elevation shall be negotiated by stairs or ramps.A total of 11 non-handicapped employees are engaged at thisfacility (Tr. 58, 86). The plant floor (a trapezoid) measures approximately 140 by 540 by80 by 140 feet (Ex. R-3) with five doors. The door in question, shown as the \”firedoor\” on a sketch, exhibit R-3, is located near a corner of the building about 40feet 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. 17-18and photo C-2); and the panic bar three more feet or seven feet from the floor (Tr. 21).Respondent’s plant manager testified, however, that two ladders were located 20 feet fromthis door; all employees can reach the panic bar from floor level and handily open it; andall doors are easily accessible to all employees (Tr. 92-103, 135-196). He pointed out theladder to the inspecting officer (Tr. 107) but the officer did not remember either thatstatement being made or seeing a ladder (Tr. 114, 121).The area of the plant’s location has a high vandalism rate andis populated by \”kids\” and drug users. Street people find accommodations alongthe wall, settling there with mattresses and even a refrigerator. Respondent fears thatthey might force their way into the building if they could reach this door. Therefore, itwas installed in 1986 above floor level without a ramp or any ready access (Tr. 90-92,113).This door accesses to an open and graded area (not paved) with no obstructions whatsoeverimpeding a safe exit to the street by any number of people as required by 29 C.F.R. ?1910.87 (h), cited above. Complainant’s brief does not mention this alleged violation atall and I find that no fact supports it. This item is vacated in the order below.However, a jump of four feet to ground could cause bodily harmas testified to by the officer, but with a low probability of injury (Tr. 57-59, 74) if apanic situation existed. But given 1) four other readily available means of access; 2)only 11 employees in the building; and 3) ladders nearby (and I accept the plant manager’stestimony over the officer’s here since the latter did not remember) which would providesafe access to and from the door, I find that this door being four feet from the prior andeasily openable (Tr. 93-94),does not constitute a harzard of impeded egress which thisstandard is written to prevent and I conclude that no violation of 29 C.F.R ?1910.37(j)exists under these circumstances. This item is violation in the order below.The second alleged violation concerns the placement ofcompressed gas cylinders specifically encompassed by 29 C.F.R. ? 1910.212(a)(2)(iv)(c):oxygen cylinders in storage shall be separated from fuel-gascylinders or combustible materials (especially oil or grease) ,a minimum distance of 20feet or by a noncombustible barrier at lease 5 feet high having a fire-resistance ratingof at least one-half hour.The officer testified that an open area enclosed by yellowsteel bars (photo exhibit C-2) was a storage area for compressed gases and within it wasone acetylene cylinder among several oxygen tanks. A source of ignition was within 15 feetof this area (Tr. 26-30, 75). Any leak could result in a fire or explosion (Tr. 31).The officer did not recall being shown any other storage areafor cylinders, or being told when these particular bottles were delivered to the plant(Tr.65-69).Respondent disputes this allegation on the basis that thesemixed cylinders were not in \”storage\” as the standard requires before aviolation may be affirmed. Its plant manager testified that the cylinders on the right ofphoto exhibit C-3 were delivered between 3:00 and 3:30 p.m. the night before when theplantwas closing.\u00a0 At around 9:30 the next morning, they are separated and placed intheir storage areas, the oxygen and acetylene being 40 feet apart from each other (Tr.94-98 and exhibit sketch R-3).\u00a0 This is normal procedure when gases are deliveredlate in the day (Tr. 114).While the plant opens at 7:00 a.m, I do not find that thistwo-and-half hour delay tantamount to storage. [[2]]\u00a0 In fact, the acetylene bottlewas moved to its storage place while the officer was at the plant according to the plantmanager (Tr.114).\u00a0 The normal safety operation of the plant requires storage of thesetanks apart, and the standard does not forbid placing these tanks together but rathertheir storage. Cf., Secretary v. MCC of Flordia, Inc., 9 OSCH 1895.\u00a0 Iconclude this standard has not been violated as alleged in that the time between deliveryand the final storage is not unreasonable; and this item is vacated in the order below.\u00a0\u00a0\u00a0 Finally, respondent is alleged to have violated 29 C.F.R.?1910.304(f)(5)(v) requiring Equipment connected by cord and plug.\u00a0 Under any of theconditions described in paragraphs (f)(5)(v)(a) through (f)(5)(v)(c) of this section,exposed non-current-carrying metal parts of cord and plug-connected equipment which maybecome energized shall be grouped.in that a radiograph machine (which cuts circular patterns insteel plates, see photo exhibit C-3) in operation was missing the ground prong form itsplug (Tr. 33)\u00a0 Thus, according to the officer, if the machine’s operator (the onlyemployee exposed) came into any metal contact when the machine experienced any type ofshort circuit , he could suffer an electrical shock (Tr. 34-38).\u00a0 The plant managercould not explain how the ground prong came to be missing (Tr. 37).\u00a0 The officertestified that these three-prong plugs may be at any hardware store and installed inminutes (Tr. 68).This alleged violation may not be sustained.\u00a0 Themachine’s cord was plugged into an extension cord which in turn ran to the source of power(Tr. 76).\u00a0 The plant manager testified that the extension cord had a ground plug andwas properly grounded in accordance with the company’s safety manual and practices (Tr.112).\u00a0 The officer’s testify, during the case-in-chief or when called for rebuttal,concerning the fact that the machine was grounded as required by cited standard andconcluded through the extension cord.\u00a0 As a matter of fact, I find that the machinewas grounded as required by cited standard and conclude that no violation of that has beenshown.\u00a0 Additionally, this three-pronged plug is not of a common variety but isdifficult to obtain and was on order before the inspection, being finally installed by anelectrical contractor on March 31, 1988 (Tr. 99, 100-101 and exhibit R-4).\u00a0 This itemis vacated in the order below.ORDER: Based on the finding of fact and conclusion of the law reachedafter considering the evidence and the parties’ arguments and proposals, which to extentshown are adopted or rejected as having insufficient support in the preponderance of theevidence or precedent, it is ORDERED that the citation issued February 23, 1988, allegingserious 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, vacated together with thecivil 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 to discharge directlyinto a street or other open space. 1(b) 29 C.F.R. ? 1910.37(j) – one of the exit doors atthe facility was four feet above the 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 gasstorage area with 10 oxygen cylinders; and 3: 29 C.F.R. ? 1910.304(f)(5)(v) – the groundprong was missing on a radiograph machine power cord.[[2]] The Secretary did not petition for review of the judge’svacation of serious citation no. 1 Item 1(a), which alleged a serious violation of 29C.F.R. ? 1910.37(h)(1). On December 21, 1990, the Secretary filed a notice of withdrawalof serious citation no. 1, Item 3, which alleged a serious violation of 29 C.F.R. ?1910.304 (f)(5)(v). On January 25, 1991, the Commission struck this item from thedirection for review.[[3]] Section 1910.37(j) provides as follows:Changes in elevation. Where a means of egress is not substantially level, such differencesin elevation shall be negotiated by stairs or ramps.[[4]] The compliance officer testified that Hackney’s facilityhad a total of three exits. However, it appears that the compliance officer was referringto the total number of fire exits. Plant Manager Rudolph Chiappetta testified that therewere a total of five doors in this facility.[[5]]Chiapetta testified that none of Hackney’s employees areincapable of climbing up the 4-foot ledge in order to reach the door.[[6]] There was no testimony regarding injuries which couldoccur while reaching the elevated fire door.[[7]] To support this and other arguments in his briefs.Hackney cities several 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 cylinders or combustiblematerials except oil or grease, a minimum distance of 20 feet or by a noncombustible atleast 6 feet high having a fire resistance of at least one-half hour.In 1990, 29 CFR ? 1910.252(a)(2)(iv)(c) was recodified without any substantive changes as29 C.F.R. ?1910.253(b)(4)(iii)[[9]] The facility closes at 3:30 pm and the bottles were dropped off between 3:00 pm and3:30 pm.\u00a0[[1]] Under the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651, et seq., citations were issued after inspection (here on February 12, 1988)and may be contested within a 15- working day period (here March 1, 1988) Both partieswere represented by counsel at the hearing (August 10, 1988). Briefs were filed by bothparties by October 19, 1988. Jurisdiction is admitted (Tr. 6) and respondent does notassert (apparently withdraws) it’s motion concerning the number of employees necessary tojustify the issuance of a citation (Tr. 7 and respondent’s letter dated October 12, 1988).[[2]] In Secretary v. Ormet Corp., 9 OSHC 1055, cited bycomplainant the Commission found the cylinders in question were in \”storage\” Seefoot note 12 at page 1060.”