“SECRETARY OF LABOR,Complainant,v.MONARCH WATER SYSTEMS, INC.,Respondent.OSHRC Docket No. 83-0943_DECISION_BEFORE: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue is whether Administrative Law Judge Paul L. Brady erred invacating two citation items._Citation 1, Item 4: 29 C.F.R. ? 1926.152(f)(3), Flammable Liquids NearIgnition Sources._In Item 4 of citation 1, the Secretary alleged that Monarch violated 29C.F.R. ? 1926.152(f)(3), which provides:? 1926.152 _Flammable and combustible liquids_.* * *(f) _Handling liquids at point of final use_.* * *(3) Flammable liquids may be used only where there are no open flames orother sources of ignition within 50 feet of the operation, unlessconditions warrant greater clearance.It was undisputed that on August 2, 1983, two of Monarch’s employees,Eugene Wright and James Pinney, were involved in spraying flammablepaint onto the inside walls of a tank in a shed. While applying thepaint inside the tank, Wright became affected by the paint fumes. Pinney, who was outside the tank, then began to ventilate the tank usinga suction pump referred to as a \”blower.\” Both the blower and anordinary hand lamp used for illumination were positioned inside the shedwithin 50 feet of the spraying operation. The Secretary asserts thatthe hand lamp and blower were \”sources of ignition\” within the meaningof section 1926.152(f)(3) and that, because they were within 50 feet ofthe flammable paint being sprayed, Monarch violated the standard.Jack Glaser, Monarch’s president, had instructed Wright and Pinney, aswell as their foreman Bobby Estes, to use, instead of the ordinary handlamp, a \”Vapotech\” lamp. Glaser thought at the time that the \”Vapotech\”lamp was not a source of ignition. Glaser had also told Wright andPinney to use a blower for ventilation and place it outside the shed ona small scaffold which he estimated to be 70 feet from the tankopening. Monarch’s work rules also required that the ventilation blowerbe put into use before employees enter a tank. Moreover, employees werenot permitted to turn the blower off while they were in a tank.In his decision, Judge Brady noted that under _Astra PharmaceuticalProducts, Inc_., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ?25,578, p. 31,900 (No. 78-6247, 1981), _aff’d_ _in_ _pertinent_ _part_,681 F.2d 69 (1st Cir. 1982), the Secretary must establish that Monarchknew or could have known of the violative condition with the exercise ofreasonable diligence. The judge stated that \”the ventilation equipmentwas specifically provided to eliminate the accumulation of flammableliquid spray vapors,\” and \”there would have been no source of ignitionfor flammable liquids if the safety rules [on use of that ventilationequipment] had been followed.\” The judge additionally noted that Wrightand Pinney failed to follow Glaser’s instructions to use the Vapotechlamp and place the blower outside the shed. Concluding that theevidence did not prove the alleged violation, Judge Brady vacated the item.We conclude that the judge’s ruling on this item should be set aside andthe item remanded. The judge incorrectly viewed the condition addressedby the standard to be the accumulation of flammable vapors, which hefound could have been eliminated by using the ventilation equipmentprovided by Monarch. Section 1926.152(f)(3) does not mention\”accumulations\” of \”vapors.\” Rather, it prohibits the use of flammable\”liquids\” within 50 feet of an ignition source. It is thereforeirrelevant to this item whether the ventilation equipment could havereduced the amount of flammable vapors had it been used continuouslyduring the spraying operation.As the judge noted, to establish a violation of a standard, theSecretary must prove that Monarch knew or with the exercise ofreasonable diligence could have known of the violative conditions. Inrebutting the Secretary’s evidence on knowledge, the employer may, amongother things, show that it took reasonable precautions to prevent theviolative conduct of its employees. _See_ _Automatic SprinklerCorporation of America_, 80 OSAHRC 47\/E4, 8 BNA OSHC 1384, 1387-88, 1980CCH OSHD ? 24,495, pp. 29,926-27 (No. 76-5089, 1980).Because it was not relevant to Judge Brady’s rationale, the judge madeno finding regarding Monarch’s actual or constructive knowledge that theblower was being used within 50 feet of the paint, nor did he determinewhether Monarch knew or reasonably could have known that the hand lampwas in use. We have examined the record to determine if it compelscertain findings on the knowledge issue. We conclude, however, thatJudge Brady should, based on the present record, make the necessaryfindings because they turn in part on the credibility of witnesses.There is little direct evidence that on August 2, 1983–the day theviolation is alleged to have occurred–Monarch had actual orconstructive knowledge that the blower was located near the tank openingand that the hand lamp was being used instead of the Vapotech lamp. None of Monarch’s supervisors were at the worksite that day, and Glaserhad told Wright and Pinney to place the blower outside the shed on ascaffold 70 feet from the tank opening and to use the Vapotech lamp. However, foreman Estes was at the worksite on August 1, 1983, the daybefore the violation allegedly occurred, when Wright and Pinney wereperforming the same spray-painting operation in the same tank. According to the compliance officer, Pinney told him that on that daythe blower was outside of the shed. However, Pinney gave conflictingtestimony on direct examination that on that day the blower was insidethe shed near the tank opening. Pinney stated that on August 2 theblower was within a few inches of the tank opening, and was in the sameplace on the preceding day, August 1, when Estes was at the worksite. Pinney also stated that the hand lamp was used on both August 1 andAugust 2. The judge could therefore find that on August 1, Estes knew,or with the exercise of reasonable diligence could have known, of theplacement of the blower and the use of the ordinary hand lamp; fromthat, the judge might also find that Monarch could have known, with theexercise of reasonable diligence, of the conditions that prevailed onAugust 2.The judge should therefore make a finding of fact whether on August 1,1983, the day before the alleged violation, the blower was located morethan 50 feet from the paint being sprayed in the tank. To do that, itwill be necessary to resolve the conflict between Pinney’s testimonythat the blower was eight inches from the tank opening,[[1]] and thecompliance officer’s testimony that Pinney told him that the blower wasplaced outside.[[2]] If the judge finds that the blower was within 50feet of the paint on August 1, he should make an additional findingregarding whether foreman Estes knew or reasonably could have known ofthat fact, in light of the testimony that Estes was \”in that vicinityinside the building.\”[[3]] Similarly, the judge should make a findingas to whether this evidence is sufficient to establish that Estes wasaware or reasonably could have been aware that the hand lamp was being used.If the judge finds that the blower was placed within 50 feet of thespray-painting operation on August 1 and that Estes knew or reasonablycould have known of that fact or of the fact that the hand lamp was inuse, the judge should make a finding as to whether Monarch rebutted thatevidence of knowledge by establishing that it took reasonable measuresto prevent the proscribed conduct by implementing an adequate safetyprogram.The judge should also make findings on whether the blower or the handlamp was proven to be a \”source of ignition\” within the meaning ofsection 1926.152(f)(3). The judge stated in his decision at page 10only that the blower and hand lamp were \”not approved for use inexplosive atmospheres.\” If the judge finds that a source of ignitionexisted, he should make further findings on whether Monarch knew or withthe exercise of reasonable diligence could have known that.[[4]]_Citation 2, Item 1: 29 C.F.R. ? 1910.134(b)(1), Respirator Procedures._The question here is whether Monarch contested item 1 of citation 2. The item alleges that Monarch had violated 29 C.F.R. ? 1910.134(b)(1),which provides that \”[w]ritten standard operating procedures governingthe selection and use of respirators shall be established.\” In itsnotice of contest, Monarch specifically contested every item in thecitations issued to it except for item 1 of citation 2. Yet, in itspost-hearing brief Monarch argued that, although it had technicallyviolated section 1910.134(b)(1) because it had no written respiratorprocedures, no violation should be found because of the safety trainingprovided by Monarch to its employees. In his decision, Judge Bradyvacated the item because he found it to lack merit. He did not make aspecific finding that the item had been contested.Section 10(a) of the Act, 29 U.S.C. ? 659(a), provides in part:If, within fifteen working days from the receipt of the notice issued bythe Secretary the employer fails to notify the Secretary that he intendsto contest the citation or proposed assessment of penalty, . . . thecitation and the assessment, as proposed, shall be deemed a final orderof the Commission and not subject to review by any court or agency.The Commission has construed notices of contest liberally in order todetermine the intent of the contesting party. _E.g_., _Gil_ _Haugan_,77 OSAHRC 182\/G3, 5 BNA OSHC 1956, 1957, 1977-78 CCH OSHD ? 22,248, p.26,779 (No. 14675, 1977), _aff’d_, 586 F.2d 1263 (8th Cir. 1978). Forexample, the Commission has construed a notice of contest faciallylimited to the penalty as also contesting the underlying citation whenthe employer subsequently pleaded that such was its intent during thecontest period. _Turnbull Millwork Co_., 75 OSAHRC 16\/A13, 3 BNA OSHC1781, 1782-83, 1975-76 CCH OSHD ? 20,221, pp. 24,085-86 (No. 7413,1975). However, the intent to contest may not be an afterthought. _Gil Haugan_, 586 F.2d at 1266.In this case Monarch admits in its brief on review that it did notchallenge this item in its notice of contest but may have\”inadvertently\” contested it in its post-hearing brief. However,nothing in its pleadings or in the record suggests that Monarch had anintent to challenge item 1 of citation 2 during the contest period. Under section 10(a) of the Act, that item then became a final order ofthe Commission at the close of the contest period and is not subject toreview. We therefore conclude that the judge lacked jurisdiction overthis item, and we reverse his decision to vacate it.Accordingly, we set aside the judge’s decision regarding the allegedviolations of sections 1910.134(b)(1) and 1926.152(f)(3). Item 1 ofcitation 2 is declared to be a final order of the Commission undersection 10(a) of the Act. Item 4 of citation 1 is remanded to the judgefor a decision including specific findings of fact based on the presentrecord regarding the alleged violation of section 1926.152(f)(3).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: July 7, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] See Tr. 109, 112.[[2]] See Tr. 254, 257-58.[[3]] See Tr. 110.[[4]] It could be argued that a finding that Monarch knew or could haveknown that the hand lamp was a source of ignition would be unnecessaryif Glaser knew or reasonably would have known that the lamp he hadinstructed the employees to use–the Vapotech lamp–was a source ofignition. The record does not support such a finding as to the Vapotechlamp, however. Glaser reasonably thought at the time that the Vapotechlamp was not an ignition source. Glaser testified that the name of theVapotech lamp gave him the impression that it was not an ignitionsource. He also testified that it was only when compliance officerMedlock pointed out during the closing conference that the Vapotech lampwas not approved for use near flammable vapors and that the literaturefor the lamp was misleading, that he realized his error.”