” SECRETARY OF LABOR,Complainant,v.PEAVEY GRAIN COMPANY,Respondent.OSHRC Docket No. 89-3046DECISIONBefore: FOULKE, Chairman: WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:In Hereford, Texas, a town located approximately 40 miles southwest ofAmarillo, Peavey Grain Company (\”Peavey\” or \”the Company\”), a divisionof ConAgra, Inc., operates a grain-handling and merchandising facility. It consists of an office, two grain elevators and various grain storagesheds. After a fatality in a grain storage shed during the month ofJune 1989, the Occupational Safety and Health Administration (\”OSHA\”),of the United States Department of Labor, conducted an inspection andissued a serious citation. One item of the citation allegednoncompliance with OSHA standards regarding emergency action plans. Peavey contested the citation, and the parties presented evidence to anadministrative law judge of the Commission, who thereafter affirmed thecitation item regarding Peavey’s emergency action plan. [[1]]I. The Relevant StandardsA. The Standards Cited in the Pleadings and Tried by the Parties29 C.F.R. ? 1910.272(d) requires employers who operate grain handlingfacilities to \”develop and implement an emergency action plan meetingthe requirements contained in ? 1910.38(a) [of 29 C.F.R. Part 1910].\” Peavey’s citation alleged noncompliance with ? 1910.272(d) and ?1910.38(a), in that:[Peavey had not] developed and implemented an emergency action planwhich meets the requirements contained in 1910.38(a): Elements of theemergency action plan that need to be emphasized are 1910.38(a)(2)(iv)rescue and medical duties for those that are to perform them and1910.38(a)(3)(i) alarm system for use during an emergency situation.Section 1910.38(a)(2)(iv) specifies the following element that–\”at aminimum\”–an employer must include in any emergency action plan: \”Rescueand medical duties for those employees who are to perform them[.]\” Section 1910.38(a)(3)(i) specifies that the employer must \”establish anemployee alarm system which complies with ? 1910.165 [of 29 C.F.R. Part1910].\” At the hearing and in their arguments, the parties referredparticularly to ? 1910.165(b)(5). It states:The employer shall establish procedures for sounding emergency alarms inthe workplace. For those employers with 10 or fewer employees in aparticular workplace, direct voice communication is an acceptableprocedure for sounding the alarm[,] provided [that] all employees canhear the alarm. Such workplaces need not have a back-up system.B. Standards that Explain the Requirement for an Emergency AlarmThe purposes of the emergency alarm that employers must have arestandard in ? 1910.165(b)(1): \”[To] provide warning for necessaryemergency action as called for in the emergency action plan, or forreaction time for safe escape of employees from the workplace or theimmediate work area, or both.\” The purposes are reiterated in ?1910.165(b)(3), which indicates that the alarm shall be \”a signal toevacuate the work area or to perform actions designated under theemergency action plan.\”Section 1910.165(b)(4) indicates that employers’ emergency action plansdo not necessarily have to designate use of the alarm for the purpose ofsummoning the local fire department or rescue squad or alerting theappropriate person to do so; instead, employers may train employees inthe use of the telephone or other devices for accomplishing theseparticular emergency actions:The employer shall explain to each employee the preferred means ofreporting emergencies, such as manual pull box alarms, public addresssystems, radio or telephones. The employer shall post emergencytelephone numbers near telephones, or employee notice boards, and otherconspicuous locations when telephones serve as a means of reportingemergencies. Where a communication system also serves as the employeealarm system, all emergency messages shall have priority over allnon-emergency messages.Also, ? 1910.38(a)(3)(ii) states: \”If the employee alarm system is usedfor alerting fire brigade members, or for other purposes, a distinctivesignal for each purpose shall be used.\” Moreover, one element that ?1910.38(a)(2)(v) includes in an emergency action plan is \”[t]hepreferred means of reporting fires and other emergencies[.]\” In sum, analarm system is not the only \”means\” that the standards permit for\”reporting fires and other emergencies.\”II. The FactsSeven persons comprised the full-time workforce at the plant: the PlantManager, Mark Black; two office secretaries; the plant superintendent,Joseph Neville; a lead man, Jesse Andrade; and two laborers, Lane Warrenand Rodney Eubank. The four temporary employees were Kenneth Hackworth,Pete Gaitan, Tim Goodman, and Harold Sanders. Employee Hackworth wasabout twenty-five years old; the three others were eighteen or nineteen.A. The AccidentPlant Manager Black hired the temporary employees to partly empty a\”flathouse,\” a barn-like grain-storage shed measuring 205 feet long, 78feet wide, and more than 25 feet high. The flathouse was capable ofholding approximately 490,000 bushels of corn, but at the time it heldfewer than 200,000 bushels. Some grain had been drained throughtrapdoors in the floor, below which was a conveyor belt in anunderground tunnel leading to the building’s exterior; there, the grainwas loaded onto trucks. Supervisors positioned the temporary employeesin the flathouse on the concrete floor that had been cleared, near thetwo westernmost trapdoors, about 15 to 20 feet inside the westernentrance. The employees’ assignment was to shovel into the trapdoorsthe grain remaining piled against the walls. While the employees were\”pulling\” the grain down from piles, which were approximately 20 to 25feet high, there may have been up to several feet of grain where theemployees were standing. During this work, employee Sanders got \”stuck\”under a pile of grain. It collapsed around and over him: he becameburied, could not be uncovered quickly enough, and suffocated.The record indicates that the temporary employees were inexperienced ingrain-handling. The two temporary employees who testified, Hackworthand Gaitan, had never before worked in a grain-handling facility, andtwo of the young men, Gaitan and Sanders, had just graduated from highschool. Their supervisors had not specified what they should do in anemergency, or whom they should contact.[[2]] There was no alarm in theflathouse or in any other part of the plant. Also, in the flathousethere was no means by which to stop the conveyor that operated in thetunnel below. According to employee Hackworth and OSHA complianceofficer Guadalupe Rodriguez, whose testimony was based on an inspectionthat included interviews with employees and supervisors, the temporaryemployees panicked when employee Sanders became stuck in the grain. Employee Hackworth estimated that approximately 15 to 20 minutes elapsedfrom his first realization that there was an emergency to the arrival offire department personnel. Of this time, 10 minutes or more may havebeen lost while the employees themselves tried to uncover employeeSanders; employee Hackworth estimated that the fire department arrivedapproximately 5 to 10 minutes after he sent one or more of the temporaryemployees to get help.At the time of the accident, superintendent Neville was down in thetunnel below the flathouse, operating the conveyor and blending grain.[[3]] He came outside not because he heard any outcry from thetemporary employees but because he saw a truck outside waiting to beloaded. When he looked toward the flathouse, he noticed a temporaryemployee outside talking to laborer Eubank. Realizing that somethingmust be wrong, Neville went over, learned what had happened and told thetemporary employee to run to the office to tell Plant Manager Black. The plant manager, on learning of the accident, called the firedepartment. Located only several blocks away, it responded promptly. In the meantime, Neville had hurried to the western end of theflathouse. The testimony of several witnesses indicates that, at somepoint, someone returned to the conveyor under the flathouse and shut theconveyor off.B. The InvestigationCompliance officer Rodriguez came to the worksite the day after theaccident. He photographed the area where the body of employee Sanderswas found, approximately 60 feet from the western end of the flathouse. He noticed that Peavey had posted emergency telephone numbers,including the fire department’s, but he did not obtain a copy of anemergency action plan.According to Plant Manager Black, a plan was in effect at the plant whenthe accident occurred, and a copy is in evidence. Also in evidence is aloss prevention report generated by ConAgra’s insurance company, basedon its own inspection shortly after the emergency. Under the heading of\”Important Changes,\” the report notes that \”[a]n adequate EmergencyAction Plan and self-inspection program are being maintained.\” Thisnotation of a change suggests that Peavey only recently beganmaintaining a plan as extensive as the one that is in evidence.Peavey’s emergency action plan does not specifically address the hazardof sliding grain, although a number of other hazards are addressed,including chemical exposures, fire and explosion, severe weather andnuclear attack. The plan does not designate employees to perform rescueor medical duties and does not provide for an alarm. Instead, in eventof emergency, the affected employees are to turn off utilities and shutdown operations before evacuating, report the emergency to thesupervisor or the office, and assemble at the office. [[4]]Compliance officer Rodriguez believed that the Company did not have allof the elements of a prescribed emergency action plan. He testifiedspecifically that Peavey should have had an alarm system equipped tosound different alarms corresponding to the different work areas at thefacility, so that the managers could immediately ascertain where anyemergency was taking place. He believed that an alarm system’s primarypurpose is to alert personnel outside of the immediate area in which anemergency is taking place. Because the Company’s employees worked indifferent buildings or task areas, separated by distance or physicalbarriers, and therefore could not hear shouted outcries of alarm fromone task area to another, the compliance officer believed that Peavey’sfacility needed to have an alarm system. On the basis of his inspectionand interviews with Peavey’s employees and supervisors, the complianceofficer formed the opinion that an employee in the tunnel underneath theconcrete floor of the flathouse \”wouldn’t have been able to hear anybodyhollering\” in the flathouse; in this particular instance, SuperintendentNeville \”didn’t really hear anybody\” while he was inside the tunnel, anddidn’t emerge because he heard anything. Therefore, the complianceofficer believed that the supervisor would not have heard the employees,even \”had they been hollering inside there.\”[[5]]Darrel Neely, ConAgra’s Associate Corporate Safety Director and SeniorRisk Analyst, testified regarding his opinion that Peavey’s emergencyaction plan met all applicable OSHA requirements. He had participatedin the promulgation of OSHA’s grain-handling standards and, based onthat experience and experience as ConAgra’s safety director, he hadunderstood the standards to permit voice communication instead of analarm system in buildings having ten or fewer employees. He believedthat the standards’ purpose is to ensure the swift evacuation of abuilding or work area.He also commented that it is inadvisable to rely on employees to performrescue operations, because fatalities only multiply when employeesinstead of professional rescuers try to intervene. Therefore, safetydirector Neely noted that the industry does not train its own rescuers.III. The Judge’s Decision and the Parties’ ArgumentsAt the hearing, which was conducted by Administrative Law Judge Dee C.Blythe, the parties’ attorneys did not make opening or closingstatements to articulate their positions in detail. The Secretary’sattorney only used his examination of the compliance officer to suggestthe Secretary’s positions regarding the interpretation and applicationof the cited standards. The Secretary’s attorney did not submit a briefafter the hearing. Only Peavey’s attorney filed a brief, arguing thatthe grain-handling facility had a complying emergency action plan andthat an alarm system was not required for the flathouse because it hadcontained fewer than ten employees, who were able to hear each other andalert each other to emergencies. [[6]]In his decision, Judge Blythe noted that Peavey’s emergency action planlacked a provision specifying employee \”rescue and medical duties,\” amatter which ? 1910.38(a)(2)(iv) addresses. The judge also noted thatthe plan did not provide for an alarm system that complied with ?1910.38(a)(3)(i). Because the whole grain-handling facility employedmore than ten persons and the employees \”were scatt[er]ed among severalstructures on the premises[,] including the office, the conveyor tunneland a silo,\” the judge decided that there should have been an alarmsystem. The judge reasoned: \”Obviously, an alarm system could haveshortened th[e] process\” of calling the fire department to theflathouse. The judge did not consider Peavey’s argument that theflathouse itself was a \”particular workplace\” containing fewer thaneleven persons and, as such, did not require an alarm system.Chairman Foulke directed the following issue for review:Whether the Administrative Law Judge erred in finding that Respondentfailed to qualify for the exception permitting use of a direct voicecommunication alarm system under 29 C.F.R. ? 1910.165(b)(5)?On review, Peavey continues to press its trial position on this issue;namely, that a separate structure or work area having ten or feweremployees is a \”particular workplace\” in which direct voicecommunication may be used. T he Secretary, having now filed a brief, acknowledges the essentialvalidity of Peavey’s position, but asserts that there remain sufficientgrounds for affirming the citation item.The Secretary does not rely on Judge Blythe’s view that the exemptionstated in ? 1910.165(b)(5) is limited to entire facilities that have tenor fewer persons. The Secretary also does not rely on compliance officerRodriguez’s view that an alarm’s purpose is to facilitate the summoningof emergency services by alerting personnel throughout a whole plant toan emergency in one area of it. [[7]] Instead, the Secretary refers tocompliance officer Rodriguez’s testimony that Peavey should have had analarm because voice communication from the flathouse could not be heardin the tunnel under the flathouse. The Secretary agrees that a\”particular workplace\” can be a particular work area or operation, butshe argues that the flathouse and the tunnel in this case wouldconstitute one \”particular work-place\” because, for one thing, anemployee in the tunnel could not hear a shouted request from theflathouse to turn off the conveyor and stop the grain flow. TheSecretary further argues that employees in the tunnel will, \”[i]n alllikelihood,\” be exposed to \”the devastating effects of a fire orexplosion occurring in the flathouse.\” The Secretary states that analarm system’s purpose is \”to notify affected employees of emergenciesthat may affect them.\” The Secretary explains:The standard differentiates between small workplaces, where a simpleshout will be sufficient to warn employees of an emergency, and othermulti-story buildings or a single-story building with interiorsub-divisions, where a more traditional type of alarm is necessary….Therefore, the type of employee alarm system that is acceptable underthe standard will vary depending upon the characteristics of theparticular workplace in question. The suitability of the alarm isultimately judged upon whether all affected employees can be timelywarned by the system that is used.Neither party addresses that part of Judge Blythe’s decision that upheldthe item because of Peavey’s failure to designate \”[r]escue and medicalduties for those employees who are to perform them[,]\” as required by ?1910.38(a)(2)(iv). The Company, in its petition and briefs, does notargue that, Judge Blythe erred in upholding the item on the basis of ?1910.38(a)(2)(iv), but the Secretary does not specifically argue thatPeavey infringed ? 1910.38(a)(2)(iv).IV. AnalysisAs we have indicated, the item alleged noncompliance with ? 1910.38(a)(2)(iv) regarding rescue and medical duties and noncompliance with ?1910.38(a)(3) regarding an alarm. We will separately address these charges.A. Rescue and Medical DutiesSection 1910.38(a)(2)(iv) requires that an emergency action plan include\”[r]escue and medical duties for those employees who are to performthem[.]\” Judge Blythe found, accurately, that the Company’s written planlacked any provision for medical and rescue duties. The lack of suchprovision does not, however, automatically establish a violationaccording to the theory under which the parties evidently tried thiscase. All of the relevant testimony assumes that an employer mustdesignate rescue and medical duties only if the employer has assignedemployees to perform such duties. This is the compliance officer’stestimony: \”If [persons] have been trained in rescue, then they have tohave certain procedures that they follow…\” (Emphasis added). Althoughhe testified that Peavey did not have a prescribed emergency actionplan, he did not testify that Peavey had trained employees to performrescue tasks. ConAgra’s safety director explained that the industryconsiders it unsafe to rely on employees as rescuers, and does not doso. The Secretary did not refute the testimony of this witness familiarwith the industry.In short, the parties tried this case as if the cited standard werenonmandatory, and the Secretary has not argued otherwise. We thereforeconclude that the Secretary has abandoned that part of the item thatalleges that Peavey violated ? 1910.38(a)(2)(iv). [[8]]B. The Lack of an Alarm SystemAt issue between the parties is the meaning in this case–the factualapplication–of the phrase \”a particular workplace,\” found in ?1910.165(b)(5), the standard to which the parties referred at thehearing and one of the standards which, as we set forth at the outset ofthis opinion, the cited standards incorporate by reference. Section1910.165(b)(5) establishes a requirement that employers \”establishprocedures for sounding emergency alarms in the workplace,\” but createsan exception for \”employers with 10 or fewer employees in a particularworkplace.\” These employers may use \”direct voice communication\” tosound an alarm, \”provided [that] all employees can hear the alarm.\”At the evidentiary hearing in this case, the Secretary proved withoutdispute that Peavey had not established any procedure for the soundingof an alarm at the workplace. The record reveals that Peavey did nothave an alarm system at the workplace, and that Peavey’s emergencyaction plan did not provide for the sounding of any alarm. Also, theparties did not dispute that the employees had access to the variousparts of the facility to which the cited standard indisputably applies,and the parties did not dispute Peavey’s knowledge of the allegedlyviolative conditions. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072,2074, 1991 CCH OSHD ? 29,239, p. 39,157 (No. 87-1359, 1991) (elements ofthe Secretary’s prima facie case). It therefore became Peavey’s burdento establish that the Company qualified for the exception stated in ?1910.165(b)(5). See StanBest, Inc., 11 BNA OSHC 1222, 1226, 1983-84 CCHOSHD ? 26,455, p. 33,619 (No. 76-4355, 1983) (the party claiming anexception has the burden to prove it comes within the exception). [[9]]Peavey had more than ten employees, full-time and temporary, at itsfacility, but the parties now agree that \”a particular workplace\” canrefer to something less than a whole facility. That is, the phrase canrefer to separate work areas in the facility or structures comprisingit. See 29 C.F.R. ? 1910.165(b)(1) (an alarm \”shall providewarning…for safe escape of employees from the workplace or theimmediate work area, or both\” (emphasis added)); 29 C.F.R. Part 1910,Subpart L, Appendix A, ? 1910.165 Employee alarm systems, at 3.Reporting alarms (employers may assure \”that entire plants or high-risebuildings are not evacuated for one small emergency\”). Peavey hasunquestionably established that, in the various work areas or structuresof its facility, there were ten or fewer employees. The remainingquestion raised by this record and actively disputed between the partiesis, then, whether \”all employees can hear the alarm.\”Reasonably construed, this language of ? 1910.165(b)(5)’s exceptionindicates that a \”direct voice communication\” used to sound an alarm in\”a particular workplace\” must be able to reach at least \”all employees\”who need to hear the alarm; otherwise, the employer would not have aneffective alarm system. An employer cannot define \”a particularworkplace\” so limitedly as to exclude those employees who need to hearan alarm. This is the exact proposition stated in the appendix to thestandard, 29 C.F.R. Part 1910, Subpart L, Appendix A, to which theparties refer in their briefs on review. Regarding \”[r]eportingalarms,\” the appendix specifies:[I]n small workplaces, a simple shout throughout the workplace may besufficient to warn employees of a fire or other emergency. In largerworkplaces, more sophisticated equipment is necessary so that entireplants or high-rise buildings are not evacuated for one smallemergency…The goal of this standard is to assure that all employeeswho need to know that an emergency exists can be notified of theemergency. The method of transmitting the alarm should reflect thesituation found at the workplace.As this passage indicates, one purpose of an alarm is to assure promptevacuation in the event of an emergency, such as a fire. In fact, asthe standards set forth at the outset of this opinion indicate,evacuation is the only specific purpose for which the Secretary hasactually required an alarm. Employers, in their emergency action plans,may institute additional purposes, but the Secretary has not actuallyrequired employers to plan any additional purposes. This scheme isprescribed in ? 1910.165(b)(1): \”The employee alarm system shall providewarning for necessary emergency action as called for in the emergencyaction plan, or for reaction time for safe escape of employees from…the immediate work area….\” See also 29 C.F.R. ? 1910.165(b)(3) (\”asignal to evacuate the work area or to perform actions designated underthe emergency action plan\”); 29 C.F.R. ? 1910.38(a)(3)(ii) (\” [i]f theemployee alarm system is used for alerting fire brigade members….\”(emphasis added)). In sum, unless an employer’s emergency action plancalls for an action in addition to evacuation, evacuation is thefunction of an alarm, including a voice alarm to warn ten or feweremployees in \”a particular workplace.\” Peavey’s emergency action plancalls for evacuation (if necessary), turning off the utilities andshutting down operations (if time permits), and the assembling ofemployees at the office in the event of certain emergencies (major fire,tornado, explosions, major chemical releases from any nearby trainderailment, and nuclear attack or bomb threat). Also, in the case ofexplosion or major fire, the plan calls for employees to telephone thefire department, or report the emergency to supervisors, or radio theoffice.We do not consider these reporting duties, including contacting theoffice, to be emergency action for which the Secretary has required analarm. As we have discussed, the Secretary has not specified that analarm is required for reporting an emergency to supervisors or forsummoning the fire department. On the contrary, the Secretary’sstandards affirmatively indicate that for these purposes, employers mayuse other means than alarms and, moreover, must prescribe the particularreporting method in the emergency action plan. See 29 C.F.R. ?1910.165(b)(4) (\” [t]he employer shall explain to each employee thepreferred means of reporting emergencies, such as manual pull boxalarms, public address systems, radio or telephones\”); 29 C.F.R. ?1910.38(a)(3)(ii) (\”[i]f the employee alarm system is used for alertingfire brigade members . . . .\” (emphasis added); ? 1910.38(a)(2)(v) (oneelement of an emergency action plan–in addition to the alarm–is \”[t]hepreferred means of reporting fires and other emergencies\”).Evacuation and shutdown, however, are emergency actions for which analarm is required under ? 1910.165(b)(1) and (3) of the Secretary’sstandards. As Peavey’s plan indicates, evacuation and shutdown areresponses to the hazards of explosion or major fire, among otherthings. The Secretary’s citation in this case was broad and general,not mentioning any particular hazards. Because the fatality in thiscase was caused by sliding grain in the flathouse, the parties focusedtheir evidence on that particular hazard rather than on other applicablehazards, such as explosion or major fire in the flathouse. However, theemergency action plan that Peavey introduced into evidence establishesthe potential for such hazards, and certain testimony given at thehearing tends to confirm that such hazards can exist in the flathouse.Testimony from Peavey’s supervisors reveals that Peavey forbade smokingin the flathouse because of the dry grain and that the employeesshoveling grain in the flathouse wore, and were required to wear, dustmasks because the atmosphere was dusty. Also, according to thecompliance officer’s testimony, he was concerned not to trigger a dustexplosion in the flathouse when he took photographs there. Apreponderance of the evidence establishes that, in the event of a majorfire igniting the grain of the flathouse or an explosion combusting thedust, the tunnel would likely be affected. The dry grain in theflathouse flowed down into the tunnel and, although the flathouse wasseparated from the tunnel by the concrete floor, one or more trapdoorswere open while the conveyor was running and an employee was down in thetunnel.As we have stated, Peavey has the burden to establish that it comeswithin the exception of ? 1910.165(b)(5) permitting voice alarms if allemployees can hear them. The burden therefore rested on Peavey toestablish, if possible, that any hazard arising in the flathouse wouldbe limited to the flathouse, where a shout of alarm could possibly beheard by all affected employees. On this record, however, we cannotfind that a flathouse fire or explosion would necessarily have beenlimited; in fact, we must find that a fire or an explosion in theflathouse would likely have endangered an employee in the tunnel, aswell as the employees in the flathouse. It is more likely than not, onthis record, that employees in both work areas would have had to bewarned to evacuate if an explosion or a major fire occurred.Peavey’s proof that it qualifies for the exception is even less strongregarding the shutdown of operations. The parties presentedconsiderable evidence at the hearing, including testimony from severalwitnesses showing that it was necessary to shut down the conveyorquickly when temporary employee Sanders was buried in the slidinggrain. This testimony confirms the Secretary’s position that anyemployee in the tunnel must be able to hear an alarm emitted in theflathouse and that the two work areas are one \”particular workplace\”within the meaning of ? 1910.165(b)(5).Peavey presented no evidence to demonstrate that a shout of alarm in theflathouse could be heard in the tunnel below, even though there wastestimony that tends to show the contrary. The compliance officer’stestimony indicated that his inspection and interviews with Peavey’semployees and supervisors led him to conclude that an employee in thetunnel underneath the concrete floor of the flathouse would not havebeen able to hear an alarm shouted in the flathouse. Also, thecompliance officer found and Superintendent Neville’s testimonyindicates that, in this case, the superintendent had not heard thetemporary employees in the flathouse. We therefore conclude thatPeavey has not established that its operations come within the exceptionto ? 1910.165(b)(5). The Secretary having established her case (inparticular, Peavey’s failure to have an alarm between the flathouse andthe tunnel), and Peavey having failed to establish the exception, weaffirm the citation item, as did the judge. [[10]]C. Fair NoticePeavey strenuously argues on review that the Secretary failed to givefair notice of her theory on the issues underlying the exception. Peaveyasserts that the Secretary’s trial theory of these issues was not onlyamorphous but materially different than the theory given in her brief onreview, and that the Secretary’s failure to reveal her present theory atthe trial below prejudiced Peavey’s ability to prove the exception. Forthe following reasons, we reject Peavey’s arguments.As we have discussed, ? 1910.165(b)(5) and the related standards in ?1910.165 and ? 1910.38, as well as the appendix to ? 1910.165, giveexplicit notice as to the scope of the exception. That is, theseprovisions and amplifications, carefully and reasonably read, reveal toemployers that, in OSHA’s view, they must consider the nature of thehazard that might arise and must ascertain which employees need to bealerted to its occurrence. [[11]] Therefore, even though the complianceofficer did not clearly explain the purpose of an alarm system under therelevant OSHA standards or the reasonable meaning of the phrase \”aparticular workplace,\” and the Secretary’s attorney at the hearing didvery little to illuminate these matters, Peavey had an adequateopportunity to bring to light any pertinent facts showing that theCompany did qualify for the exception stated in ? 1910.165(b)(5).Furthermore, the record supports a finding that, contrary to Peavey’sassertions on review, the Secretary did sufficiently raise, at thehearing, the theory that she now asserts on review, i.e., that theflathouse and tunnel are one \”particular workplace\” which must have analarm system, to alert the employees to shut down operations andevacuate. Several witnesses, including the compliance officer, the twotemporary employees, and Superintendent Neville, gave testimonyindicating that, when temporary employee Sanders was buried in thegrain, it was necessary to shut down the conveyor quickly. Thecompliance officer and the two testifying temporary employees alsoaddressed the necessity to communicate with the tunnel so that theconveyor could have been stopped in time to prevent the suffocationdeath. This evidence revealed that the hazard of suffocating in theflathouse was connected with the operation of the conveyor in thetunnel, and gave notice regarding the issue of whether the two areasmust be considered one \”particular workplace.\” In fact, the complianceofficer explicitly propounded the view that the two areas must beconsidered one, when he opined that Peavey did not qualify for theexception permitting a voiced alarm because a shout from the flathousecould not be heard in the tunnel, to summon help from that employee.VI. Serious Classification and PenaltyJudge Blythe affirmed the violation as serious and assessed a penalty of$700. The record affirmatively establishes that the Company’smanagement knew of the lack of an alarm system and that thenoncompliance presented a substantial probability of death or seriousphysical harm. Section 17(k), 29 U.S.C. ? 666(k). Also, the recordreveals that Peavey employs up to 1000 employees at several facilitiesand, although the Company had no history of OSHA violations and thecompliance officer did not raise any question as to the Company’s goodfaith, the gravity of the violation was high in light of the hazardspotentially involved. We therefore affirm the penalty assessment of$700, on the basis of the factors stated in ? 17(j), 29 U.S.C. ? 666(j).VII. OrderAccordingly, for the reasons given in this opinion, we affirm thecitation item insofar as it alleges a serious violation of 29 C.F.R. ?1910.272(d) and ? 1910.38(a)(3)(i). We assess penalty of $700.Edwin Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: November 20, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.PEAVEY GRAIN CO., INC.,Respondent.OSHRC DOCKET NO. 89-3046_DECISION AND ORDER_Appearances:Jerome T. Kearney, Esq., of Dallas, Texasfor the Complainant.Dean G. Kratz, Esq., of Omaha, Nebraskafor the Respondent.BLYTHE, Judge:PROCEDURAL HISTORYOn his third day as a temporary laborer scooping grain for therespondent, Peavey Grain Co., Inc. (\”Peavey\”), a grain storage andshipping facility at Hereford, Texas, 18-year-old Harold Sanders wassuffocated when he was covered by moving grain on June 15, 1989. He andthree other young men were hired to move corn to a conveyor runningbeneath a large rectangular storage building called a \”flathouse\” whichis capable of storing 500,000 bushels of corn but then containing about200,000 bushels. Openings in the floor called \”doors\” were opened topermit stored grain to fall on the conveyor. The four temporaryemployees scooped corn and moved it toward these doors. Sanders climbedtoo high on the pile of corn and was covered by it when it moved beneathhim. Efforts by his fellow workers and local firemen to rescue andresuscitate him were unavailing.A compliance officer (\”CO\”) of the Occupational Safety and HealthAdministration (\”OSHA\”) investigated the fatality on June 16 and 20,1989, and as a result one citation was issued September 20, 1989, toPeavey alleging serious violations of ? 5(a)(2) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”) andsafety standards promulgated thereunder. Peavey timely contested thecitation and proposed penalty, thus involving the jurisdiction of theOccupational Safety and Health Review Commission (\”the Commission\”), aseparate and independent tribunal established by Congress under ? 10(c)of the Act to adjudicate contested issues arising thereunder. Acomplaint filed by the Secretary of Labor (\”the Secretary\”) and ananswer thereto from Peavey put this cause at issue, and a hearing on themerits was held at Amarillo, Texas, on March 15, 1990. Only Peavey hasfiled a post-hearing brief. It has also filed proposed findings of factand conclusions of law.THE ISSUESThe jurisdiction and coverage allegations of the complaint were admittedby Peavey’s answer and were stipulated at the hearing. The issuesremaining to be determined are whether Peavey violated 29 C.F.R. ?1910.272 (e)(1)(ii) (training of employees) and ? 1910.272 (d)(emergency action plan) and the appropriate penalty, if any.THE STANDARDSItem la of Citation 1 alleges a serious violation of 29 C.F.R. ?1910.272(e)(1)(ii), which provides:(e) _Training_. (1) The employer shall provide training to employees atleast annually and when changes in job assignment will expose them tonew hazards. Current employees, and new employees prior to startingwork, shall be trained in at least the following:(ii) Specific procedures and safety practices applicable to their jobtasks including, but not limited to, cleaning procedures for grindingequipment, clearing procedures for choked legs, housekeeping procedures,hot work procedures, preventive maintenance procedures andlock-out\/tag-out procedures.Item 1b of Citation 1 alleges a serious violation of 29 C.F.R. ?1910.272(d), which states:(d) _Emergency action plan_. The employer shall develop and implementan emergency action plan meeting the requirements contained in ? 1910.38(a).In turn, ? 1910.38(a) provides, in pertinent part as alleged in thecitation:(2) _Elements_. The following elements, at a minimum, shall be includedin the plan:(iv) Rescue and medical duties for those employees who are to perform them;(3) _Alarm system_. The employer shall establish an employee alarmsystem which complies with ? 1910.165.BACKGROUND FACTSThe flathouse where the fatality occurred is so called to distinguish itfrom other grain storage facilities such as bins, silos and tanks (Tr.14). Its width is greater than its height (Tr. 119). As stated above,the flathouse has a storage capacity of about 500,000 bushels and at thetime here involved it contained 200,000 bushels of corn (Tr. 18, 20, 119).The flathouse is used to blend different grades of corn (Tr. 14, 22,118), and for this purpose a conveyor belt running through a tunnelconnected it with other storage facilities on the premises (Tr. 22). Toallow the grain to flow by gravity onto the conveyor belt, there weresliding \”doors\” in the floor of the flathouse (Tr. 22). However, it wasnecessary to move the grain toward the doors with shovels or scoops. Four young men, three of them 18-year-olds recently graduated from highschool, were hired as temporary employees (Tr. 11). They worked lessthan three days when Sanders was killed (Tr. 12).DISCUSSION AND OPINIONThe parties disagreed at the hearing (Tr. 47) on whether item 1(a) ofthe citation was limited to the final sentence thereof or whether allemployee training mentioned in the cited standard was at issue. Despitea ruling in favor of the first concept, both parties introducedextensive evidence on all aspects of Peavey’s training of new employees.Therefore, the issue was waived.There are numerous conflicts in the testimony about this training. Ingeneral, the surviving temporary employees testified that the trainingwas minimal, while Peavey’s permanent employees testified otherwise.Probably the truth lies somewhere in between. Some of the temporaryemployees changed their testimony on cross-examination. Peavey’sposthearing brief used over 16 pages analyzing this testimony, but I donot deem it necessary to go into such detail. Peavey’s five witnessesagreed that the temporary employees were told by Manager Mark Black thatthey must not climb up on the piles of corn above their boot tops; thatcorn tended to roll and was dangerous; that they should work from thewest side where the grain was shallow and scoop it toward the \”doors\” inthe floor to the conveyor; that they must not smoke and must wear dustmasks; that they should avoid becoming overheated and that they shouldtake frequent drinks of water. Exhibit R-1 contains notes made byManager Black to remind himself, before the employee interviews, of thesafety points to be covered. It seems logical to me that these essentialpoints were covered and I so find.There is one gap in the testimony about safety instructions, however. The four temporary employees worked part of the second day in the tunnelunder the storage buildings (Tr. 148, 183-184), yet there is nothing inthe record about training the employees for this work. However, theSecretary had the burden of proof, and Peavey had no obligation tointroduce such evidence since the Secretary did not.Of course, everybody was concerned with the fatality, although thepurpose of this proceeding is not to establish blame for the accident. _Dye Const. Co. v. O.S.H.R.C_., 698 F.2d 423 (10th Cir. 1983).As previously mentioned, the citation and complaint specify the allegedlack of training as employees were \”permitted to work, walk and\/or standon grain more than waist height\”. Technically, this does not spell outa lack of training, but the parties litigated this point as if it did. Under either interpretation, Peavey would prevail. There was ampleproof that the temporary employees were sufficiently instructed on thispoint.Item 1b of citation 1 alleges a serious violation of 29 C.F.R. ?1910.272(d), which is set out above. Specifically this subitem alleges:1b29 C.F.R. 1910.272(d): Employer has not developed and implemented anemergency action plan which meets the requirements, contained in 1910.38(a):Establishment at 101 S. Lee, Hereford, Texas: Elements of theemergency action plan that need to be emphasized are 1910.38(a)(2)(iv)rescue and medical duties for those that are to perform [sic] them and1910.38(a)(3)(i) alarm system for use during an emergency situation.The cited standard adopts by reference 29 C.F.R. ? 1910.38(a), which inturn adopts by reference 29 C.F.R. ? 1910.165. Section 1910.38(a),provides that the plan shall include \”rescue and medical duties forthose employees who are to perform them.\” Peavey’s plan contains nosuch provision. Section ? 1910.38(a)(3) requires \”an employee alarmsystem which complies with Section ? 1910.165,\” which is lengthy andwill not be set forth in full. It requires an auditory or visual alarmsystem, which Peavey did not provide. Peavy relies on an exception in? 1910.165(b)(5), which provides:(5) The employer shall establish procedures for sounding emergencyalarms in the workplace. For those employers with 10 or fewer employeesin a particular workplace, direct voice communication is an acceptableprocedure for sounding the alarm provided all employees can hear thealarm. Such workplaces need not have a back-up system.Peavey claims that it qualifies for this exemption because it had onlynine employees, and that they were close enough together for voicecommunication. Peavey has the burden of proving that it comes withinthis exemption. _Finnegan Construction Co. Inc_., 78 OSAHRC 31\/B3, 6BNA OSHC 1496, 1978 CCH OSHD ? 22,675 (No. 14536, 1978). It failed tobear this burden in one and perhaps two respects. First, its employeeswere scatted among several structures on the premises including theoffice, the conveyor tunnel and a silo. Second, it apparently had 11employees, and not the 9 it claims. The names of 9 appear in thetranscript, and in addition there were \”secretaries\” (plural) in theoffice, according to Black’s testimony (Tr. 140, 1 .25).When the fatal accident occurred, there were four temporary employees inthe flathouse. While two attempted to dig out the doomed employee, thefourth Pete Gaitan, ran outside but seemed at a loss as to what to do. Joe Neville, a permanent employee had been working in the tunnel but hadcame out and was loading a truck when he saw two other permanentemployees standing near a corner of the flathouse. One of them, TimGoodman, was waving his arms so Neville ran to him, learned that a manwas buried in the corn, and sent him to the office to alert Black. Black called the Hereford fire department and an ambulance, and thefiremen took over the rescue effort. Obviously, an alarm system couldhave shortened this process. I find that Peavey’s emergency action planfailed to meet the requirement of ? 1910.272(d).The final issue is the appropriate penalty. The citation proposes andaggregate penalty of $800 of a possible $1,000 for the two items. Ifone assumes that the two items are of equal seriousness, the penaltymight be equally divided. However, in my view the ? 1910.272(d) item isthe more serious. I find that there was a substantial probability thatdeath or serious physical harm could result from this violation, so itis serious under ? 17(k) in the Act.Section 17(j) of the Act requires the Commission, in assessingpenalties, to consider the gravity of the violation and the employerssize, good faith and history of previous violations. These factors neednot be accorded equal weight, but the gravity is usually of greatersignificance than the others. _Colonial Craft Reproductions_, 72 OSAHRC11\/B10, 1 BNA OSHA 1063, 1971-73 CCH OSHD ? 15,277 (No. 881, 1972). Elements to be considered in determining gravity include the number ofemployees exposed to risk of injury, duration of the exposure,precautions taken against injury, and the degree of probability ofoccurrence of an injury. _National Realty & Construction Co., Inc._, 72OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85. 1972)_rev’d on other grounds_, 489 F.2d 1257 (D.C. Cir. 1973).Peavey is a large corporation with numerous facilities for handlinggrain. It has about 1,000 employees. It is a subsidiary of ConAgra, Inc.No history of previous violations as proved. Its good faith was notquestioned. The gravity of the violation was high. On balance, I finda penalty of $700 to be appropriate.FINDINGS OF FACT1. Peavey’s answer admits the jurisdiction and coverage allegations ofthe complaint.2. Peavey, a subsidiary of ConAgra Inc., is a large employer withapproximately 1,000 employees. It operates a grain handling and storagefacility at Hereford, Texas, which was the site of a fatal accident onJune 15, 1989.3. An OSHA compliance officer investigates the fatality on June 16 and20, 1989. As a result, one citation was issued to Peavey alleging twoserious violations of OSHA safety standards.4. On June 13, 1989, Peavey hired four temporary employees to shovelgrain (corn) in a large rectangular storage building called aflathouse. On the third day of their employment, one of the temporaryemployees, Harold Sanders, was suffocated when the grain covered him. On June 13, the four new employees were instructed by Manager Mark Blackon safety matters, including not getting into grain over their boottops. These instructions were adequate for the work to be performed.5. Peavey had an emergency action plan, but it was deficient in that itdid not provide for designation of employees to perform rescue andmedical and duties and it did not provide for an alarm system to summonaid in an emergency.6. Peavey had at least ten and perhaps eleven employees who werescattered in various facilities on the premises so that voicecommunication among all of them was not possible. Peavey does notqualify for the exemption from the requirement for an alarm system.7. There was a substantial probability that death or serious physicalinjury could result from this violation.8. The appropriate penalty is $700.CONCLUSIONS OF LAW1. The Commission has jurisdiction of the parties and of the subjectmatter of this proceeding.2. On June 16 and 20, 1990, Peavey was not in violation of 29 C.F.R. ?1910.272(e)(1)(ii).3. On said date, Peavey was in serious violation of 29 C.F.R. ?1910.272(d)._ORDER_1. Subitem 1a of citation 1, alleging a serious violation of 29 C.F.R.? 1910.272 (e)(1)(ii) is VACATED.2. Subitem 1b of citation 1, alleging a serious violation of 29 C.F.R.? 1910.272(d) is AFFIRMED and a penalty of $700 is ASSESSED.3. All proposed findings of facts and conclusions of law inconsistentwith this decision are DENIED.So ORDERED.DEE C. BLYTHEAdministrative Law JudgeDate: June 4, 1990FOOTNOTES:[[1]] The judge vacated another citation item, of which the Secretarydoes not seek review, that alleged noncompliance with a standardpertaining to employee training.[[2]] Plant Manager Black testified:They were aware of who was in charge and who[m] to report [to] in casethey had any problems whatsoever. Again, they have no need to knowwho[m] to call and who[m] to contact or to use the phone. Our full-timeemployees would take care of that as long as they are alerted to a problem.[[3]] There were two tunnels at the plant, one under the flathouse andthe other connected to the elevator. Lead man Andrade was in theelevator tunnel on the day of the accident. Superintendent Neville mayhave been with him on the two preceding days, but the superintendent’stestimony implies that he was in the flathouse tunnel on the day of theaccident. He stated, in the context of questions about the temporaryemployees’ position in the flathouse on the third day: \”I didn’t see[laborer] Lane [Warren] place the [temporary] employees that morning…. I proceeded to go underneath the concrete and blend grain.\”(Emphasis added).[[4]] Plant Manager Black gave his opinion that an alarm system wouldhave caused further delay in this case because, on hearing a signal,someone would have had to find out what was the matter, then hurry tothe office to request that a telephone call be put through to the firedepartment. He posited that the existing system had been satisfactoryin that the temporary employees were working near each other, knew theirsupervisors, and could send someone to the office for help.[[5]] Superintendent Neville did not state specifically that he had beenunable to hear any voice communication from the flathouse while he wasin the tunnel below, but his testimony gives rise to that inference. Moreover, Plant Manager Black did not make any claim in his testimonythat employees down in the tunnel could have heard shouts from theflathouse; nor did any other witness provide such testimony.[[6]] Peavey also argued that an alarm system was not required for thewhole facility because it had fewer than ten employees. As we have setforth, however, the number of employees on the worksite became elevenwhen the four temporary employees arrived for work. Judge Blythe sofound and, on review, Peavey explicitly accepts this finding.[[7]] Although not arguing that employers must use alarms to reportemergencies, the Secretary notes that ? 1910.165(b)(4) requires allemployers, regardless of number of employees, to inform employees of\”the preferred means of reporting emergencies\” and argues that Peaveyhad not established any \”preferred means.\” In the citation, however,the Secretary did not cite this standard, nor did the parties address itat the hearing; they litigated only the lack of an alarm. Therefore, wewill not consider the Secretary’s arguments alleging a need for improvedinstructions to the employees. Compare Power Fuels, Inc., 14 BNA OSHC2209, 2210 n.3, 1991 CCH OSHD ? 29,304, p. 39,343 n.3 (No. 85-166, 1991)(affirmative defenses neither pleaded nor tried by consent); StaceyManufacturing Co., 10 BNA OSHC 1534, 1537-38, 1982 CCH OSHD ? 25,965, p.32,560 (No. 76-1656, 1982) (\”[t]he Commission will not generallyconsider nonjurisdictional issues that have not been raised before theadministrative law judge\”).[[8]] Review necessarily includes any matter essential to accepting orrejecting a judge’s resolution of a citation item, see Donovan v. A.Amorello & Sons, Inc., 761 F.2d 61 (1st Cir. 1985); Seward MotorFreight, Inc., 13 BNA OSHC 2230, 2233, 1987-89 CCH OSHD ? 28,506, pp.37,785-86 (No. 86-1691, 1989), but in this case we will not reach anyissues of the merits of the alleged violation of ? 1910.38(a)(2)(iv),including any issues of interpretation posed by the standard.[[9]] The exception that ? 1910.165(b)(5) creates is similar to anaffirmative defense in that, if established, it eliminates an employer’sduty to comply with the more particularized requirements of thestandard. Compare Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC1218, 1223-24 (No. 88-8821, 1991) (employer’s burden of proof regardingaffirmative defense justifying relief from compliance); Stone ContainerCorp., 14 BNA OSHC 1757, 1751, 1987-90 CCH OSHD ? 29,064, p. 38,817(No.88-310, 1990) (circumstances constituting legal excuse for noncompliance).[[10]] Peavey’s emergency action plan was insufficient in that it madeno provision for an alarm and Peavey’s facility was inadequatelyequipped in that it did not have an alarm system between the flathouseand the tunnel. The Company must train the employees in the operationof the alarm and the hazards that may require its use. See A.P. O’HoroCo., 14 BNA OSHC 2004, 2008, 1991 CCH OSHD ? 29,223, pp. 39,129-30 (No.85-369, 1991) (indicating that an employer’s safety rules ought to bemore than \”a paper program\”).[[11]] See Armour Food Co., 14 BNA OSHC 1817, 1825, 1987-90 CCH OSHD ?29,088, p. 38,887 (No. 86-247, 1990) (reference to other standards orcodes to give meaning to broad terms found in OSHA standards); VancoConst, Inc., 11 BNA OSHC 1058, 1061, 1983-84 CCH OSHD ? 26,372, pp.33,453-54 (No.79-4945, 1982), aff’d, 723 F.2d 410 (5th Cir. 1984)(same). See also Brennan v OSHRC (Santa Fe Trail Transport Co.), 505F.2d 869, 872 (10th Cir. 1974) (broad terms may be given specificmeaning by reference to the evident purpose of the standard and areasonable consideration of the facts to which it is to be applied);Ormet Corp., 14 BNA OSHC 2134, 2135-36, 1991 CCH OSHD ? 29,254, p.39,200 (No. 85-531, 1991) (\”[g]iven the purpose of the standard… theword ‘near’ means close enough… that it is reasonably foreseeable that[employees] could be hit\”); Cleveland Consol., 13 BNA OSHC 1114,1116-17, 1986-87 CCH OSHD ? 27,829 p. 36,428 (No. 84-696, 1987)(\”‘proximity’ is an imprecise word\” that must be \”examined in context,\”taking into account the \”evident purpose of the standard\”); L.E. MyersCo., 12 BNA OSHC 1609, 1617, 1986-87 CCH OSHD ? 27,476, p. 35,607 (No.82-1137, 1986), rev’d only as to another item, 818 F.2d 1270 (\”impreciseand relative terminology,\” such as the term \”area,\” must be applied inlight of the factual circumstances relevant to the hazard against whichthe standard is directed).”