“Docket No. 83-0943 SECRETARY OF LABOR, Complainant, v. MONARCH WATER SYSTEMS, INC., Respondent.OSHRC Docket No. 83-0943DECISIONBEFORE:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).At issue is whether Administrative Law Judge Paul L.Brady erred in vacating two citation items.Citation 1, Item 4:\u00a0 29 C.F.R. ? 1926.152(f)(3), Flammable Liquids NearIgnition Sources.In Item 4 of citation 1, the Secretary alleged thatMonarch violated 29 C.F.R. ? 1926.152(f)(3), which provides:? 1926.152\u00a0 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 or other sources ofignition within 50 feet of the operation, unless conditions warrant greater clearance.It was undisputed that on August 2, 1983, two ofMonarch’s employees, Eugene Wright and James Pinney, were involved in spraying flammablepaint onto the inside walls of a tank in a shed.\u00a0 While applying the paint inside thetank, Wright became affected by the paint fumes.\u00a0 Pinney, who was outside the tank,then began to ventilate the tank using a suction pump referred to as a \”blower.\”\u00a0 Both the blower and an ordinary hand lamp used for illumination were positionedinside the shed within 50 feet of the spraying operation.\u00a0 The Secretary asserts thatthe hand lamp and blower were \”sources of ignition\” within the meaning ofsection 1926.152(f)(3) and that, because they were within 50 feet of the flammable paintbeing sprayed, Monarch violated the standard.Jack Glaser, Monarch’s president, had instructedWright and Pinney, as well as their foreman Bobby Estes, to use, instead of the ordinaryhand lamp, a \”Vapotech\” lamp.\u00a0 Glaser thought at the time that the\”Vapotech\” lamp was not a source of ignition.\u00a0 Glaser had also told Wrightand Pinney to use a blower for ventilation and place it outside the shed on a smallscaffold which he estimated to be 70 feet from the tank opening.\u00a0 Monarch’s workrules also required that the ventilation blower be put into use before employees enter atank.\u00a0 Moreover, employees were not permitted to turn the blower off while they werein a tank.In his decision, Judge Brady noted that under AstraPharmaceutical Products, 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 Monarch knew or could haveknown of the violative condition with the exercise of reasonable diligence.\u00a0 Thejudge stated that \”the ventilation equipment was specifically provided to eliminatethe accumulation of flammable liquid spray vapors,\” and \”there would have beenno source of ignition for flammable liquids if the safety rules [on use of thatventilation equipment] had been followed.\”\u00a0 The judge additionally noted thatWright and Pinney failed to follow Glaser’s instructions to use the Vapotech lamp andplace the blower outside the shed.\u00a0 Concluding that the evidence did not prove thealleged violation, Judge Brady vacated the item.We conclude that the judge’s ruling on this itemshould be set aside and the item remanded.\u00a0 The judge incorrectly viewed thecondition addressed by the standard to be the accumulation of flammable vapors, which hefound could have been eliminated by using the ventilation equipment provided by Monarch.\u00a0 Section 1926.152(f)(3) does not mention \”accumulations\” of\”vapors.\” Rather, it prohibits the use of flammable \”liquids\” within50 feet of an ignition source.\u00a0 It is therefore irrelevant to this item whether theventilation equipment could have reduced the amount of flammable vapors had it been usedcontinuously during the spraying operation.As the judge noted, to establish a violation of astandard, the Secretary must prove that Monarch knew or with the exercise of reasonablediligence could have known of the violative conditions.\u00a0 In rebutting the Secretary’sevidence on knowledge, the employer may, among other things, show that it took reasonableprecautions to prevent the violative conduct of its employees.\u00a0 See AutomaticSprinkler Corporation of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1384, 1387-88, 1980 CCHOSHD ? 24,495, pp. 29,926-27 (No. 76-5089, 1980).Because it was not relevant to Judge Brady’srationale, the judge made no finding regarding Monarch’s actual or constructive knowledgethat the blower was being used within 50 feet of the paint, nor did he determine whetherMonarch knew or reasonably could have known that the hand lamp was in use.\u00a0 We haveexamined the record to determine if it compels certain findings on the knowledge issue.\u00a0 We conclude, however, that Judge Brady should, based on the present record, makethe necessary findings because they turn in part on the credibility of witnesses.There is little direct evidence that on August 2,1983–the day the violation is alleged to have occurred–Monarch had actual orconstructive knowledge that the blower was located near the tank opening and that the handlamp was being used instead of the Vapotech lamp.\u00a0 None of Monarch’s supervisors wereat the worksite that day, and Glaser had told Wright and Pinney to place the bloweroutside the shed on a scaffold 70 feet from the tank opening and to use the Vapotech lamp.\u00a0 However, foreman Estes was at the worksite on August 1, 1983, the day before theviolation allegedly occurred, when Wright and Pinney were performing the samespray-painting operation in the same tank.\u00a0 According to the compliance officer,Pinney told him that on that day the blower was outside of the shed.\u00a0 However, Pinneygave conflicting testimony on direct examination that on that day the blower was insidethe shed near the tank opening.\u00a0 Pinney stated that on August 2 the blower was withina few inches of the tank opening, and was in the same place on the preceding day, August1, when Estes was at the worksite.\u00a0 Pinney also stated that the hand lamp was used onboth August 1 and August 2.\u00a0 The judge could therefore find that on August 1, Estesknew, or with the exercise of reasonable diligence could have known, of the placement ofthe blower and the use of the ordinary hand lamp; from that, the judge might also findthat Monarch could have known, with the exercise of reasonable diligence, of theconditions that prevailed on August 2.The judge should therefore make a finding of factwhether on August 1, 1983, the day before the alleged violation, the blower was locatedmore than 50 feet from the paint being sprayed in the tank.\u00a0 To do that, it will benecessary to resolve the conflict between Pinney’s testimony that the blower was eightinches from the tank opening,[[1]] and the compliance officer’s testimony that Pinney toldhim that the blower was placed outside.[[2]]\u00a0 If the judge finds that the blower waswithin 50 feet of the paint on August 1, he should make an additional finding regardingwhether foreman Estes knew or reasonably could have known of that fact, in light of thetestimony that Estes was \”in that vicinity inside the building.\”[[3]] \u00a0Similarly, the judge should make a finding as to whether this evidence is sufficient toestablish that Estes was aware or reasonably could have been aware that the hand lamp wasbeing used.If the judge finds that the blower was placed within50 feet of the spray-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 in use, the judgeshould make a finding as to whether Monarch rebutted that evidence of knowledge byestablishing that it took reasonable measures to prevent the proscribed conduct byimplementing an adequate safety program.The judge should also make findings on whether theblower or the hand lamp was proven to be a \”source of ignition\” within themeaning of section 1926.152(f)(3).\u00a0 The judge stated in his decision at page 10 onlythat the blower and hand lamp were \”not approved for use in explosiveatmospheres.\”\u00a0 If the judge finds that a source of ignition existed, he shouldmake further findings on whether Monarch knew or with the exercise of reasonable diligencecould have known that.[[4]]Citation 2, Item 1:\u00a0 29 C.F.R. ?1910.134(b)(1), Respirator Procedures.The question here is whether Monarch contested item 1 of citation 2.\u00a0 The itemalleges that Monarch had violated 29 C.F.R. ? 1910.134(b)(1), which provides that\”[w]ritten standard operating procedures governing the selection and use ofrespirators shall be established.\”\u00a0 In its notice of contest, Monarchspecifically contested every item in the citations issued to it except for item 1 ofcitation 2.\u00a0 Yet, in its post-hearing brief Monarch argued that, although it hadtechnically violated section 1910.134(b)(1) because it had no written respiratorprocedures, no violation should be found because of the safety training provided byMonarch to its employees.\u00a0 In his decision, Judge Brady vacated the item because hefound it to lack merit.\u00a0 He did not make a specific finding that the item had beencontested.Section 10(a) of the Act, 29 U.S.C. ? 659(a),provides in part:If, within fifteen working days from the receipt ofthe notice issued by the Secretary the employer fails to notify the Secretary that heintends to contest the citation or proposed assessment of penalty, . . . the citation andthe assessment, as proposed, shall be deemed a final order of the Commission and notsubject to review by any court or agency.The Commission has construed notices of contestliberally in order to determine the intent of the contesting party.\u00a0 E.g., GilHaugan, 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).\u00a0 For example,the Commission has construed a notice of contest facially limited to the penalty as alsocontesting the underlying citation when the employer subsequently pleaded that such wasits intent during the contest period. Turnbull Millwork Co., 75 OSAHRC 16\/A13, 3BNA OSHC 1781, 1782-83, 1975-76 CCH OSHD ? 20,221, pp. 24,085-86 (No. 7413, 1975). \u00a0However, the intent to contest may not be an afterthought.\u00a0 Gil Haugan, 586F.2d at 1266.In this case Monarch admits in its brief on reviewthat it did not challenge this item in its notice of contest but may have\”inadvertently\” contested it in its post-hearing brief.\u00a0 However, nothingin its pleadings or in the record suggests that Monarch had an intent to challenge item 1of citation 2 during the contest period.\u00a0 Under section 10(a) of the Act, that itemthen became a final order of the Commission at the close of the contest period and is notsubject to review.\u00a0 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 decisionregarding the alleged violations of sections 1910.134(b)(1) and 1926.152(f)(3).\u00a0 Item1 of citation 2 is declared to be a final order of the Commission under section 10(a) ofthe Act.\u00a0 Item 4 of citation 1 is remanded to the judge for a decision includingspecific findings of fact based on the present record regarding the alleged violation ofsection 1926.152(f)(3).FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 July 7, 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0\u00a0\u00a0FOOTNOTES: [[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 have known that thehand lamp was a source of ignition would be unnecessary if Glaser knew or reasonably wouldhave known that the lamp he had instructed the employees to use–the Vapotech lamp–was asource of ignition.\u00a0 The record does not support such a finding as to the Vapotechlamp, however.\u00a0 Glaser reasonably thought at the time that the Vapotech lamp was notan ignition source.\u00a0 Glaser testified that the name of the Vapotech lamp gave him theimpression that it was not an ignition source.\u00a0 He also testified that it was onlywhen compliance officer Medlock pointed out during the closing conference that theVapotech lamp was not approved for use near flammable vapors and that the literature forthe lamp was misleading, that he realized his error.”