“Docket No. 89-3046 \u00a0SECRETARY 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 approximately40 miles southwest of Amarillo, Peavey Grain Company (\”Peavey\” or \”theCompany\”), a division of ConAgra, Inc., operates a grain-handling and merchandisingfacility.\u00a0 It consists of an office, two grain elevators and various grain storagesheds.\u00a0 After a fatality in a grain storage shed during the month of June 1989, theOccupational Safety and Health Administration (\”OSHA\”), of the United StatesDepartment of Labor, conducted an inspection and issued a serious citation.\u00a0 One itemof the citation alleged noncompliance with OSHA standards regarding emergency actionplans.\u00a0 Peavey contested the citation, and the parties presented evidence to anadministrative law judge of the Commission, who thereafter affirmed the citation itemregarding Peavey’s emergency action plan. [[1]]I. The Relevant StandardsA. The Standards Cited in the Pleadings andTried by the Parties29 C.F.R. ? 1910.272(d) requires employers whooperate grain handling facilities to \”develop and implement an emergency action planmeeting the requirements contained in ? 1910.38(a) [of 29 C.F.R. Part 1910].\” \u00a0Peavey’s citation alleged noncompliance with ? 1910.272(d) and ? 1910.38(a), in that:[Peavey had not] developed and implemented anemergency action plan which meets the requirements contained in 1910.38(a): Elements ofthe emergency action plan that need to be emphasized are 1910.38(a)(2)(iv) rescue andmedical duties for those that are to perform them and 1910.38(a)(3)(i) alarm system foruse during an emergency situation.Section 1910.38(a)(2)(iv) specifies thefollowing element that–\”at a minimum\”–an employer must include in anyemergency action plan: \”Rescue and medical duties for those employees who are toperform them[.]\”\u00a0 Section 1910.38(a)(3)(i) specifies that the employer must\”establish an employee alarm system which complies with ? 1910.165 [of 29 C.F.R.Part 1910].\”\u00a0 At the hearing and in their arguments, the parties referredparticularly to ? 1910.165(b)(5).\u00a0 It states:The employer shall establish procedures forsounding emergency alarms in the workplace.\u00a0 For those employers with 10 or feweremployees in a particular workplace, direct voice communication is an acceptable procedurefor sounding the alarm[,] provided [that] all employees can hear the alarm.\u00a0 Suchworkplaces need not have a back-up system.B. Standards that Explain the Requirement for anEmergency AlarmThe purposes of the emergency alarm that employers must have are standard in ?1910.165(b)(1): \”[To] provide warning for necessary emergency action as called for inthe emergency action plan, or for reaction time for safe escape of employees from theworkplace or the immediate work area, or both.\”\u00a0 The purposes are reiterated in? 1910.165(b)(3), which indicates that the alarm shall be \”a signal to evacuate thework area or to perform actions designated under the emergency action plan.\”Section 1910.165(b)(4) indicates that employers’emergency action plans do not necessarily have to designate use of the alarm for thepurpose of summoning the local fire department or rescue squad or alerting the appropriateperson to do so; instead, employers may train employees in the use of the telephone orother devices for accomplishing these particular emergency actions:The employer shall explain to each employee thepreferred means of reporting emergencies, such as manual pull box alarms, public addresssystems, radio or telephones.\u00a0 The employer shall post emergency telephone numbersnear telephones, or employee notice boards, and other conspicuous locations whentelephones serve as a means of reporting emergencies.\u00a0 Where a communication systemalso serves as the employee alarm system, all emergency messages shall have priority overall non-emergency messages.Also, ? 1910.38(a)(3)(ii) states: \”If theemployee alarm system is used for alerting fire brigade members, or for other purposes, adistinctive signal for each purpose shall be used.\”\u00a0 Moreover, one element that? 1910.38(a)(2)(v) includes in an emergency action plan is \”[t]he preferred means ofreporting fires and other emergencies[.]\”\u00a0 In sum, an alarm system is not theonly \”means\” that the standards permit for \”reporting fires and otheremergencies.\” II.\u00a0 The FactsSeven persons comprised the full-time workforceat the plant: the Plant Manager, Mark Black; two office secretaries; the plantsuperintendent, Joseph Neville; a lead man, Jesse Andrade; and two laborers, Lane Warrenand Rodney Eubank.\u00a0 The four temporary employees were Kenneth Hackworth, Pete Gaitan,Tim Goodman, and Harold Sanders.\u00a0 Employee Hackworth was about twenty-five years old;the three others were eighteen or nineteen.A.\u00a0 The AccidentPlant Manager Black hired the temporaryemployees to partly empty a \”flathouse,\” a barn-like grain-storage shedmeasuring 205 feet long, 78 feet wide, and more than 25 feet high.\u00a0 The flathouse wascapable of holding approximately 490,000 bushels of corn, but at the time it held fewerthan 200,000 bushels.\u00a0 Some grain had been drained through trapdoors in the floor,below which was a conveyor belt in an underground tunnel leading to the building’sexterior; there, the grain was loaded onto trucks.\u00a0 Supervisors positioned thetemporary employees in the flathouse on the concrete floor that had been cleared, near thetwo westernmost trapdoors, about 15 to 20 feet inside the western entrance.\u00a0 Theemployees’ assignment was to shovel into the trapdoors the grain remaining piled againstthe walls.\u00a0 While the employees were \”pulling\” the grain down from piles,which were approximately 20 to 25 feet high, there may have been up to several feet ofgrain where the employees were standing.\u00a0 During this work, employee Sanders got\”stuck\” under a pile of grain.\u00a0 It collapsed around and over him: he becameburied, could not be uncovered quickly enough, and suffocated.The record indicates that the temporaryemployees were inexperienced in grain-handling.\u00a0 The two temporary employees whotestified, Hackworth and Gaitan, had never before worked in a grain-handling facility, andtwo of the young men, Gaitan and Sanders, had just graduated from high school.\u00a0 Theirsupervisors had not specified what they should do in an emergency, or whom they shouldcontact.[[2]]\u00a0 There was no alarm in the flathouse or in any other part of the plant.\u00a0 Also, in the flathouse there was no means by which to stop the conveyor thatoperated in the tunnel below.\u00a0 According to employee Hackworth and OSHA complianceofficer Guadalupe Rodriguez, whose testimony was based on an inspection that includedinterviews with employees and supervisors, the temporary employees panicked when employeeSanders became stuck in the grain.\u00a0 Employee Hackworth estimated that approximately15 to 20 minutes elapsed from his first realization that there was an emergency to thearrival of fire department personnel.\u00a0 Of this time, 10 minutes or more may have beenlost while the employees themselves tried to uncover employee Sanders; employee Hackworthestimated that the fire department arrived approximately 5 to 10 minutes after he sent oneor more of the temporary employees to get help.At the time of the accident, superintendentNeville was down in the tunnel below the flathouse, operating the conveyor and blendinggrain. [[3]]\u00a0 He came outside not because he heard any outcry from the temporaryemployees but because he saw a truck outside waiting to be loaded.\u00a0 When he lookedtoward the flathouse, he noticed a temporary employee outside talking to laborer Eubank.Realizing that something must be wrong, Neville went over, learned what had happened andtold the temporary employee to run to the office to tell Plant Manager Black.\u00a0 Theplant manager, on learning of the accident, called the fire department.\u00a0 Located onlyseveral blocks away, it responded promptly.\u00a0 In the meantime, Neville had hurried tothe western end of the flathouse.\u00a0 The testimony of several witnesses indicates that,at some point, someone returned to the conveyor under the flathouse and shut the conveyoroff.B. The InvestigationCompliance officer Rodriguez came to theworksite the day after the accident.\u00a0 He photographed the area where the body ofemployee Sanders was found, approximately 60 feet from the western end of the flathouse.\u00a0 He noticed that Peavey had posted emergency telephone numbers, including the firedepartment’s, but he did not obtain a copy of an emergency action plan.According to Plant Manager Black, a plan was ineffect at the plant when the accident occurred, and a copy is in evidence.\u00a0 Also inevidence is a loss prevention report generated by ConAgra’s insurance company, based onits own inspection shortly after the emergency.\u00a0 Under the heading of \”ImportantChanges,\” the report notes that \”[a]n adequate Emergency Action Plan andself-inspection program are being maintained.\”\u00a0 This notation of a changesuggests that Peavey only recently began maintaining a plan as extensive as the one thatis in evidence.Peavey’s emergency action plan does notspecifically address the hazard of sliding grain, although a number of other hazards areaddressed, including chemical exposures, fire and explosion, severe weather and nuclearattack.\u00a0 The plan does not designate employees to perform rescue or medical dutiesand does not provide for an alarm.\u00a0 Instead, in event of emergency, the affectedemployees are to turn off utilities and shut down operations before evacuating, report theemergency to the supervisor or the office, and assemble at the office. [[4]]Compliance officer Rodriguez believed that theCompany did not have all of the elements of a prescribed emergency action plan. Hetestified specifically that Peavey should have had an alarm system equipped to sounddifferent alarms corresponding to the different work areas at the facility, so that themanagers could immediately ascertain where any emergency was taking place.\u00a0 Hebelieved that an alarm system’s primary purpose is to alert personnel outside of theimmediate area in which an emergency is taking place.\u00a0 Because the Company’semployees worked in different buildings or task areas, separated by distance or physicalbarriers, and therefore could not hear shouted outcries of alarm from one task area toanother, the compliance officer believed that Peavey’s facility needed to have an alarmsystem.\u00a0 On the basis of his inspection and interviews with Peavey’s employees andsupervisors, the compliance officer formed the opinion that an employee in the tunnelunderneath the concrete floor of the flathouse \”wouldn’t have been able to hearanybody hollering\” in the flathouse; in this particular instance, SuperintendentNeville \”didn’t really hear anybody\” while he was inside the tunnel, and didn’temerge because he heard anything.\u00a0 Therefore, the compliance officer believed thatthe supervisor would not have heard the employees, even \”had they been holleringinside there.\”[[5]]Darrel Neely, ConAgra’s Associate CorporateSafety Director and Senior Risk Analyst, testified regarding his opinion that Peavey’semergency action plan met all applicable OSHA requirements.\u00a0 He had participated inthe promulgation of OSHA’s grain-handling standards and, based on that experience andexperience as ConAgra’s safety director, he had understood the standards to permit voicecommunication instead of an alarm system in buildings having ten or fewer employees.\u00a0 He believed that the standards’ purpose is to ensure the swift evacuation of abuilding or work area.He also commented that it is inadvisable to relyon employees to perform rescue operations, because fatalities only multiply when employeesinstead of professional rescuers try to intervene.\u00a0 Therefore, safety director Neelynoted that the industry does not train its own rescuers.III. The Judge’s Decision and the Parties’ArgumentsAt the hearing, which was conducted byAdministrative Law Judge Dee C. Blythe, the parties’ attorneys did not make opening orclosing statements to articulate their positions in detail.\u00a0 The Secretary’s attorneyonly used his examination of the compliance officer to suggest the Secretary’s positionsregarding the interpretation and application of the cited standards.\u00a0 The Secretary’sattorney did not submit a brief after the hearing.\u00a0 Only Peavey’s attorney filed abrief, arguing that the grain-handling facility had a complying emergency action plan andthat an alarm system was not required for the flathouse because it had contained fewerthan ten employees, who were able to hear each other and alert each other to emergencies.[[6]]In his decision, Judge Blythe noted thatPeavey’s emergency action plan lacked a provision specifying employee \”rescue andmedical duties,\” a matter which ? 1910.38(a)(2)(iv) addresses.\u00a0 The judge alsonoted that the plan did not provide for an alarm system that complied with ?1910.38(a)(3)(i).\u00a0 Because the whole grain-handling facility employed more than tenpersons and the employees \”were scatt[er]ed among several structures on thepremises[,] including the office, the conveyor tunnel and a silo,\” the judge decidedthat there should have been an alarm system.\u00a0 The judge reasoned: \”Obviously, analarm system could have shortened th[e] process\” of calling the fire department tothe flathouse.\u00a0 The judge did not consider Peavey’s argument that the flathouseitself was a \”particular workplace\” containing fewer than eleven persons and, assuch, did not require an alarm system.Chairman Foulke directed the following issue forreview: Whether the Administrative Law Judge erred in finding that Respondent failed to qualifyfor the exception permitting use of a direct voice communication alarm system under 29C.F.R. ? 1910.165(b)(5)?On review, Peavey continues to press its trialposition on this issue; namely, that a separate structure or work area having ten or feweremployees is a \”particular workplace\” in which direct voice communication may beused.\u00a0 T he Secretary, having now filed a brief,acknowledges the essential validity of Peavey’s position, but asserts that there remainsufficient grounds for affirming the citation item.The Secretary does not rely on Judge Blythe’sview that the exemption stated in ? 1910.165(b)(5) is limited to entire facilities thathave ten or fewer persons. The Secretary also does not rely on compliance officerRodriguez’s view that an alarm’s purpose is to facilitate the summoning of emergencyservices by alerting personnel throughout a whole plant to an emergency in one area of it.[[7]] Instead, the Secretary refers to compliance officer Rodriguez’s testimony thatPeavey should have had an alarm because voice communication from the flathouse could notbe heard in the tunnel under the flathouse. The Secretary agrees that a \”particularworkplace\” can be a particular work area or operation, but she argues that theflathouse and the tunnel in this case would constitute one \”particularwork-place\” because, for one thing, an employee in the tunnel could not hear ashouted request from the flathouse 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 or explosionoccurring in the flathouse.\” The Secretary states that an alarm system’s purpose is\”to notify affected employees of emergencies that may affect them.\” TheSecretary explains:The standard differentiates between smallworkplaces, where a simple shout will be sufficient to warn employees of an emergency, andother multi-story buildings or a single-story building with interior sub-divisions, wherea more traditional type of alarm is necessary…. Therefore, the type of employee alarmsystem that is acceptable under the standard will vary depending upon the characteristicsof the particular workplace in question. The suitability of the alarm is ultimately judgedupon whether all affected employees can be timely warned by the system that is used.Neither party addresses that part of JudgeBlythe’s decision that upheld the item because of Peavey’s failure to designate\”[r]escue and medical duties for those employees who are to perform them[,]\” asrequired by ? 1910.38(a)(2)(iv). The Company, in its petition and briefs, does not arguethat, Judge Blythe erred in upholding the item on the basis of ? 1910.38(a)(2)(iv), butthe Secretary does not specifically argue that Peavey infringed ? 1910.38(a)(2)(iv).IV. AnalysisAs we have indicated, the item allegednoncompliance with ? 1910.38 (a)(2)(iv) regarding rescue and medical duties andnoncompliance with ? 1910.38(a)(3) regarding an alarm.\u00a0 We will separately addressthese charges.A. Rescue and Medical DutiesSection 1910.38(a)(2)(iv) requires that anemergency action plan include \”[r]escue and medical duties for those employees whoare to perform them[.]\” Judge Blythe found, accurately, that the Company’s writtenplan lacked any provision for medical and rescue duties.\u00a0 The lack of such provisiondoes not, however, automatically establish a violation according to the theory under whichthe parties evidently tried this case. All of the relevant testimony assumes that anemployer must designate rescue and medical duties only if the employer has assignedemployees to perform such duties.\u00a0 This is the compliance officer’s testimony:\”If [persons] have been trained in rescue, then they have to have certain proceduresthat they follow…\” (Emphasis added).\u00a0 Although he testified that Peavey didnot have a prescribed emergency action plan, he did not testify that Peavey had trainedemployees to perform rescue tasks. ConAgra’s safety director explained that the industryconsiders it unsafe to rely on employees as rescuers, and does not do so. The Secretarydid not refute the testimony of this witness familiar with the industry.In short, the parties tried this case as if thecited standard were nonmandatory, and the Secretary has not argued otherwise. We thereforeconclude that the Secretary has abandoned that part of the item that alleges that Peaveyviolated ? 1910.38(a)(2)(iv). [[8]]B. The Lack of an Alarm SystemAt issue between the parties is the meaning inthis case–the factual application–of the phrase \”a particular workplace,\”found in ? 1910.165(b)(5), the standard to which the parties referred at the hearing andone of the standards which, as we set forth at the outset of this opinion, the citedstandards incorporate by reference.\u00a0 Section 1910.165(b)(5) establishes a requirementthat employers \”establish procedures for sounding emergency alarms in theworkplace,\” but creates an exception for \”employers with 10 or fewer employeesin a particular workplace.\”\u00a0 These employers may use \”direct voicecommunication\” to sound an alarm, \”provided [that] all employees can hear thealarm.\”At the evidentiary hearing in this case, theSecretary proved without dispute that Peavey had not established any procedure for thesounding of an alarm at the workplace.\u00a0 The record reveals that Peavey did not havean alarm system at the workplace, and that Peavey’s emergency action plan did not providefor the sounding of any alarm.\u00a0 Also, the parties did not dispute that the employeeshad access to the various parts of the facility to which the cited standard indisputablyapplies, and the parties did not dispute Peavey’s knowledge of the allegedly violativeconditions.\u00a0 See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ?29,239, p. 39,157 (No. 87-1359, 1991) (elements of the Secretary’s prima facie case).\u00a0 It therefore became Peavey’s burden to establish that the Company qualified for theexception stated in ? 1910.165(b)(5). See StanBest, Inc., 11 BNA OSHC 1222, 1226, 1983-84CCH OSHD ? 26,455, p. 33,619 (No. 76-4355, 1983) (the party claiming an exception has theburden to prove it comes within the exception). [[9]]Peavey had more than ten employees, full-timeand temporary, at its facility, but the parties now agree that \”a particularworkplace\” can refer to something less than a whole facility.\u00a0 That is, thephrase can refer to separate work areas in the facility or structures comprising it.\u00a0See 29 C.F.R. ? 1910.165(b)(1) (an alarm \”shall provide warning…for safe escape ofemployees from the workplace or the immediate 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-rise buildings arenot evacuated for one small emergency\”).\u00a0 Peavey has unquestionably establishedthat, in the various work areas or structures of its facility, there were ten or feweremployees.\u00a0 The remaining question raised by this record and actively disputedbetween the parties is, then, whether \”all employees can hear the alarm.\”Reasonably construed, this language of ?1910.165(b)(5)’s exception indicates that a \”direct voice communication\” used tosound 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 nothave an effective alarm system.\u00a0 An employer cannot define \”a particularworkplace\” so limitedly as to exclude those employees who need to hear analarm.\u00a0 This is the exact proposition stated in the appendix to the standard, 29C.F.R. Part 1910, Subpart L, Appendix A, to which the parties refer in their briefs onreview.\u00a0 Regarding \”[r]eporting alarms,\” the appendix specifies:[I]n small workplaces, a simple shout throughoutthe workplace may be sufficient to warn employees of a fire or other emergency.\u00a0 Inlarger workplaces, more sophisticated equipment is necessary so that entire plants orhigh-rise buildings are not evacuated for one small emergency…The goal of this standardis to assure that all employees who need to know that an emergency exists can be notifiedof the emergency.\u00a0 The method of transmitting the alarm should reflect the situationfound at the workplace.As this passage indicates, one purpose of analarm is to assure prompt evacuation in the event of an emergency, such as a fire.\u00a0 In fact, as the standards set forth at the outset of this opinion indicate,evacuation is the only specific purpose for which the Secretary has actually required analarm.\u00a0 Employers, in their emergency action plans, may institute additionalpurposes, but the Secretary has not actually required employers to plan any additionalpurposes.\u00a0 This scheme is prescribed in ? 1910.165(b)(1): \”The employee alarmsystem shall provide warning for necessary emergency action as called for in the emergencyaction plan, or for reaction time for safe escape of employees from… the immediate workarea….\” See also 29 C.F.R. ? 1910.165(b)(3) (\”a signal to evacuate the workarea or to perform actions designated under the emergency action plan\”); 29 C.F.R. ?1910.38(a)(3)(ii) (\” [i]f the employee alarm system is used for alerting fire brigademembers….\” (emphasis added)).\u00a0 In sum, unless an employer’s emergency actionplan calls for an action in addition to evacuation, evacuation is the function of analarm, including a voice alarm to warn ten or fewer employees in \”a particularworkplace.\”\u00a0 Peavey’s emergency action plan calls for evacuation (if necessary),turning off the utilities and shutting down operations (if time permits), and theassembling of employees at the office in the event of certain emergencies (major fire,tornado, explosions, major chemical releases from any nearby train derailment, and nuclearattack or bomb threat). Also, in the case of explosion or major fire, the plan calls foremployees to telephone the fire department, or report the emergency to supervisors, orradio the office.We do not consider these reporting duties,including contacting the office, to be emergency action for which the Secretary hasrequired an alarm.\u00a0 As we have discussed, the Secretary has not specified that analarm is required for reporting an emergency to supervisors or for summoning the firedepartment.\u00a0 On the contrary, the Secretary’s standards affirmatively indicate thatfor these purposes, employers may use other means than alarms and, moreover, mustprescribe the particular reporting method in the emergency action plan.\u00a0 See 29C.F.R. ? 1910.165(b)(4) (\” [t]he employer shall explain to each employee thepreferred means of reporting emergencies, such as manual pull box alarms, public addresssystems, radio or telephones\”); 29 C.F.R. ? 1910.38(a)(3)(ii) (\”[i]f theemployee alarm system is used for alerting fire brigade members . . . .\” (emphasisadded); ? 1910.38(a)(2)(v) (one element of an emergency action plan–in addition to thealarm–is \”[t]he preferred means of reporting fires and other emergencies\”).Evacuation and shutdown, however, are emergencyactions for which an alarm is required under ? 1910.165(b)(1) and (3) of the Secretary’sstandards.\u00a0 As Peavey’s plan indicates, evacuation and shutdown are responses to thehazards of explosion or major fire, among other things.\u00a0 The Secretary’s citation inthis case was broad and general, not mentioning any particular hazards.\u00a0 Because thefatality in this case was caused by sliding grain in the flathouse, the parties focusedtheir evidence on that particular hazard rather than on other applicable hazards, such asexplosion or major fire in the flathouse.\u00a0 However, the emergency action plan thatPeavey introduced into evidence establishes the potential for such hazards, and certaintestimony given at the hearing tends to confirm that such hazards can exist in theflathouse. Testimony from Peavey’s supervisors reveals thatPeavey forbade smoking in the flathouse because of the dry grain and that the employeesshoveling grain in the flathouse wore, and were required to wear, dust masks because theatmosphere was dusty.\u00a0 Also, according to the compliance officer’s testimony, he wasconcerned not to trigger a dust explosion in the flathouse when he took photographs there.\u00a0 A preponderance of the evidence establishes that, in the event of a major fireigniting the grain of the flathouse or an explosion combusting the dust, the tunnel wouldlikely be affected.\u00a0 The dry grain in the flathouse flowed down into the tunnel and,although the flathouse was separated from the tunnel by the concrete floor, one or moretrapdoors were open while the conveyor was running and an employee was down in the tunnel.As we have stated, Peavey has the burden toestablish that it comes within the exception of ? 1910.165(b)(5) permitting voice alarmsif all employees can hear them.\u00a0 The burden therefore rested on Peavey to establish,if possible, that any hazard arising in the flathouse would be limited to the flathouse,where a shout of alarm could possibly be heard by all affected employees.\u00a0 On thisrecord, however, we cannot find that a flathouse fire or explosion would necessarily havebeen limited; in fact, we must find that a fire or an explosion in the flathouse wouldlikely have endangered an employee in the tunnel, as well as the employees in theflathouse.\u00a0 It is more likely than not, on this record, that employees in both workareas would have had to be warned to evacuate if an explosion or a major fire occurred.Peavey’s proof that it qualifies for theexception is even less strong regarding the shutdown of operations.\u00a0 The partiespresented considerable evidence at the hearing, including testimony from several witnessesshowing that it was necessary to shut down the conveyor quickly when temporary employeeSanders was buried in the sliding grain.\u00a0 This testimony confirms the Secretary’sposition that any employee in the tunnel must be able to hear an alarm emitted in theflathouse and that the two work areas are one \”particular workplace\” within themeaning of ? 1910.165(b)(5).Peavey presented no evidence to demonstrate thata shout of alarm in the flathouse could be heard in the tunnel below, even though therewas testimony that tends to show the contrary.\u00a0 The compliance officer’s testimonyindicated that his inspection and interviews with Peavey’s employees and supervisors ledhim to conclude that an employee in the tunnel underneath the concrete floor of theflathouse would not have been able to hear an alarm shouted in the flathouse.\u00a0 Also,the compliance officer found and Superintendent Neville’s testimony indicates that, inthis case, the superintendent had not heard the temporary employees in the flathouse.\u00a0 We therefore conclude that Peavey has not established that its operations comewithin the exception to ? 1910.165(b)(5). The Secretary having established her case (inparticular, Peavey’s failure to have an alarm between the flathouse and the tunnel), andPeavey having failed to establish the exception, we affirm the citation item, as did thejudge. [[10]]C. Fair NoticePeavey strenuously argues on review that theSecretary failed to give fair notice of her theory on the issues underlying the exception.Peavey asserts that the Secretary’s trial theory of these issues was not only amorphousbut materially different than the theory given in her brief on review, and that theSecretary’s failure to reveal her present theory at the trial below prejudiced Peavey’sability to prove the exception.\u00a0 For the following reasons, we reject Peavey’sarguments.As we have discussed, ? 1910.165(b)(5) and therelated standards in ? 1910.165 and ? 1910.38, as well as the appendix to ? 1910.165,give explicit notice as to the scope of the exception.\u00a0 That is, these provisions andamplifications, carefully and reasonably read, reveal to employers that, in OSHA’s view,they must consider the nature of the hazard that might arise and must ascertain whichemployees need to be alerted to its occurrence. [[11]]\u00a0 Therefore, even though thecompliance officer did not clearly explain the purpose of an alarm system under therelevant OSHA standards or the reasonable meaning of the phrase \”a particularworkplace,\” and the Secretary’s attorney at the hearing did very little to illuminatethese matters, Peavey had an adequate opportunity to bring to light any pertinent factsshowing that the Company did qualify for the exception stated in ? 1910.165(b)(5).Furthermore, the record supports a finding that,contrary to Peavey’s assertions on review, the Secretary did sufficiently raise, at thehearing, the theory that she now asserts on review, i.e., that the flathouse and tunnelare one \”particular workplace\” which must have an alarm system, to alert theemployees to shut down operations and evacuate.\u00a0 Several witnesses, including thecompliance officer, the two temporary employees, and Superintendent Neville, gavetestimony indicating that, when temporary employee Sanders was buried in the grain, it wasnecessary to shut down the conveyor quickly.\u00a0 The compliance officer and the twotestifying temporary employees also addressed the necessity to communicate with the tunnelso that the conveyor could have been stopped in time to prevent the suffocation death.\u00a0 This evidence revealed that the hazard of suffocating in the flathouse wasconnected with the operation of the conveyor in the tunnel, and gave notice regarding theissue of whether the two areas must be considered one \”particular workplace.\”\u00a0 In fact, the compliance officer explicitly propounded the view that the two areasmust be considered one, when he opined that Peavey did not qualify for the exceptionpermitting a voiced alarm because a shout from the flathouse could not be heard in thetunnel, to summon help from that employee.VI. Serious Classification and PenaltyJudge Blythe affirmed the violation as seriousand assessed a penalty of $700.\u00a0 The record affirmatively establishes that theCompany’s management knew of the lack of an alarm system and that the noncompliancepresented a substantial probability of death or serious physical harm.\u00a0 Section17(k), 29 U.S.C. ? 666(k).\u00a0 Also, the record reveals that Peavey employs up to 1000employees at several facilities and, although the Company had no history of OSHAviolations and the compliance officer did not raise any question as to the Company’s goodfaith, the gravity of the violation was high in light of the hazards potentially 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 thisopinion, we affirm the citation item insofar as it alleges a serious violation of 29C.F.R. ? 1910.272(d) and ? 1910.38(a)(3)(i).\u00a0 We assess penalty of $700.Edwin Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: November 20, 1991SECRETARY OF LABOR, Complainant, v. PEAVEY GRAIN CO., INC., Respondent.OSHRC DOCKET NO. 89-3046DECISION AND ORDER Appearances:Jerome T. Kearney, Esq., of Dallas, Texas for the Complainant.Dean G. Kratz, Esq., of Omaha, Nebraska for the Respondent.BLYTHE, Judge:PROCEDURAL HISTORYOn his third day as a temporary laborer scoopinggrain for the respondent, Peavey Grain Co., Inc. (\”Peavey\”), a grain storage andshipping facility at Hereford, Texas, 18-year-old Harold Sanders was suffocated when hewas covered by moving grain on June 15, 1989.\u00a0 He and three other young men werehired to move corn to a conveyor running beneath a large rectangular storage buildingcalled a \”flathouse\” which is capable of storing 500,000 bushels of corn butthen containing about 200,000 bushels.\u00a0 Openings in the floor called\”doors\” were opened to permit stored grain to fall on the conveyor.\u00a0 Thefour temporary employees scooped corn and moved it toward these doors.\u00a0 Sandersclimbed too high on the pile of corn and was covered by it when it moved beneath him.Efforts by his fellow workers and local firemen to rescue and resuscitate him wereunavailing.A compliance officer (\”CO\”) of theOccupational Safety and Health Administration (\”OSHA\”) investigated the fatalityon 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 Occupational Safety and Health Actof 1970, 29 U.S.C. ? 651-678 (\”the Act\”) and safety standards promulgatedthereunder. Peavey timely contested the citation and proposed penalty, thus involving thejurisdiction of the Occupational Safety and Health Review Commission (\”theCommission\”), a separate and independent tribunal established by Congress under ?10(c) of the Act to adjudicate contested issues arising thereunder.\u00a0 A complaintfiled by the Secretary of Labor (\”the Secretary\”) and an answer thereto fromPeavey put this cause at issue, and a hearing on the merits was held at Amarillo, Texas,on March 15, 1990.\u00a0 Only Peavey has filed a post-hearing brief.\u00a0 It has alsofiled proposed findings of fact and conclusions of law.THE ISSUESThe jurisdiction and coverage allegations of thecomplaint were admitted by 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 appropriatepenalty, if any.THE STANDARDSItem la of Citation 1 alleges a seriousviolation of 29 C.F.R. ? 1910.272(e)(1)(ii), which provides:(e) Training.\u00a0 (1) The employershall provide training to employees at least annually and when changes in job assignmentwill expose them to new hazards.\u00a0 Current employees, and new employees prior tostarting work, shall be trained in at least the following:(ii) Specific procedures and safety practicesapplicable to their job tasks including, but not limited to, cleaning procedures forgrinding equipment, clearing procedures for choked legs, housekeeping procedures, hot workprocedures, preventive maintenance procedures and lock-out\/tag-out procedures.Item 1b of Citation 1 alleges a seriousviolation of 29 C.F.R. ? 1910.272(d), which states:(d) Emergency action plan.\u00a0 Theemployer shall develop and implement an emergency action plan meeting the requirementscontained in ? 1910.38(a).In turn, ? 1910.38(a) provides, in pertinentpart as alleged in the citation:(2) Elements.\u00a0 The followingelements, at a minimum, shall be included in the plan:(iv) Rescue and medical duties for thoseemployees who are to perform them;(3) Alarm system.\u00a0 The employershall establish an employee alarm system which complies with ? 1910.165.BACKGROUND FACTSThe flathouse where the fatality occurred is socalled to distinguish it from other grain storage facilities such as bins, silos and tanks(Tr. 14).\u00a0 Its width is greater than its height (Tr. 119).\u00a0 As stated above, theflathouse has a storage capacity of about 500,000 bushels and at the time here involved itcontained 200,000 bushels of corn (Tr. 18, 20, 119).The flathouse is used to blend different gradesof 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).\u00a0 To allow thegrain to flow by gravity onto the conveyor belt, there were sliding \”doors\” inthe floor of the flathouse (Tr. 22).\u00a0 However, it was necessary to move the graintoward the doors with shovels or scoops.\u00a0 Four young men, three of them 18-year-oldsrecently graduated from high school, were hired as temporary employees (Tr. 11).\u00a0 They worked less than three days when Sanders was killed (Tr. 12).DISCUSSION AND OPINIONThe parties disagreed at the hearing (Tr. 47) onwhether item 1(a) of the citation was limited to the final sentence thereof or whether allemployee training mentioned in the cited standard was at issue.\u00a0 Despite a ruling infavor of the first concept, both parties introduced extensive evidence on all aspects ofPeavey’s training of new employees.Therefore, the issue was waived.There are numerous conflicts in the testimonyabout this training.\u00a0 In general, the surviving temporary employees testified thatthe training was minimal, while Peavey’s permanent employees testified otherwise. Probablythe truth lies somewhere in between.\u00a0 Some of the temporary employees changed theirtestimony on cross-examination.\u00a0 Peavey’s posthearing brief used over 16 pagesanalyzing this testimony, but I do not deem it necessary to go into such detail.\u00a0 Peavey’s five witnesses agreed that the temporary employees were told by ManagerMark Black that they 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 the west side where thegrain was shallow and scoop it toward the \”doors\” in the floor to the conveyor;that they must not smoke and must wear dust masks; that they should avoid becomingoverheated and that they should take frequent drinks of water.\u00a0 Exhibit R-1 containsnotes made by Manager Black to remind himself, before the employee interviews, of thesafety points to be covered. It seems logical to me that these essential points werecovered and I so find.There is one gap in the testimony about safetyinstructions, however.\u00a0 The four temporary employees worked part of the second day inthe tunnel under the storage buildings (Tr. 148, 183-184), yet there is nothing in therecord about training the employees for this work.\u00a0 However, the Secretary had theburden of proof, and Peavey had no obligation to introduce such evidence since theSecretary did not.Of course, everybody was concerned with thefatality, although the purpose of this proceeding is not to establish blame for theaccident.\u00a0 Dye Const. Co. v. O.S.H.R.C., 698 F.2d 423 (10th Cir. 1983).As previously mentioned, the citation andcomplaint specify the alleged lack of training as employees were \”permitted to work,walk and\/or stand on grain more than waist height\”.\u00a0 Technically, this does notspell out a lack of training, but the parties litigated this point as if it did.\u00a0 Under either interpretation, Peavey would prevail.\u00a0 There was ample proof thatthe temporary employees were sufficiently instructed on this point.Item 1b of citation 1 alleges a seriousviolation of 29 C.F.R. ? 1910.272(d), which is set out above.\u00a0 Specifically thissubitem alleges:1b 29 C.F.R. 1910.272(d):\u00a0 Employer has notdeveloped and implemented an emergency action plan which meets the requirements, containedin 1910.38(a):Establishment at 101 S. Lee, Hereford, Texas:\u00a0 Elements of the emergency action plan that need to be emphasized are1910.38(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 in turn adopts by reference 29 C.F.R. ? 1910.165.\u00a0 Section1910.38(a), provides that the plan shall include \”rescue and medical duties for thoseemployees who are to perform them.\”\u00a0 Peavey’s plan contains no such provision.\u00a0 Section ? 1910.38(a)(3) requires \”an employee alarm system which complieswith Section ? 1910.165,\” which is lengthy and will not be set forth in full.\u00a0 It requires an auditory or visual alarm system, which Peavey did not provide.\u00a0 Peavy relies on an exception in ? 1910.165(b)(5), which provides:(5)\u00a0 The employer shall establishprocedures for sounding emergency alarms in the workplace.\u00a0 For those employers with10 or fewer employees in a particular workplace, direct voice communication is anacceptable procedure for sounding the alarm provided all employees can hear the alarm.\u00a0 Such workplaces need not have a back-up system.Peavey claims that it qualifies for thisexemption because it had only nine employees, and that they were close enough together forvoice communication.\u00a0 Peavey has the burden of proving that it comes within thisexemption.\u00a0 Finnegan Construction Co. Inc., 78 OSAHRC 31\/B3, 6 BNA OSHC 1496,1978 CCH OSHD ? 22,675 (No. 14536, 1978).\u00a0 It failed to bear this burden in one andperhaps two respects.\u00a0 First, its employees were scatted among several structures onthe premises including the office, the conveyor tunnel and a silo.\u00a0 Second, itapparently had 11 employees, and not the 9 it claims.\u00a0 The names of 9 appear in thetranscript, and in addition there were \”secretaries\” (plural) in the office,according to Black’s testimony (Tr. 140, 1 .25).When the fatal accident occurred, there werefour temporary employees in the flathouse.\u00a0 While two attempted to dig out the doomedemployee, the fourth Pete Gaitan, ran outside but seemed at a loss as to what to do.\u00a0 Joe Neville, a permanent employee had been working in the tunnel but had came outand was loading a truck when he saw two other permanent employees standing near a cornerof the flathouse.\u00a0 One of them, Tim Goodman, was waving his arms so Neville ran tohim, learned that a man was buried in the corn, and sent him to the office to alert Black.\u00a0 Black called the Hereford fire department and an ambulance, and the firemen tookover the rescue effort.\u00a0 Obviously, an alarm system could have shortened thisprocess.\u00a0 I find that Peavey’s emergency action plan failed to meet the requirementof ? 1910.272(d).The final issue is the appropriate penalty.\u00a0 The citation proposes and aggregate penalty of $800 of a possible $1,000 for thetwo items.\u00a0 If one assumes that the two items are of equal seriousness, the penaltymight be equally divided.\u00a0 However, in my view the ? 1910.272(d) item is the moreserious.\u00a0 I find that there was a substantial probability that death or seriousphysical harm could result from this violation, so it is serious under ? 17(k) in theAct.Section 17(j) of the Act requires theCommission, in assessing penalties, to consider the gravity of the violation and theemployers size, good faith and history of previous violations.\u00a0 These factors neednot be accorded equal weight, but the gravity is usually of greater significance than theothers.\u00a0 Colonial Craft Reproductions, 72 OSAHRC 11\/B10, 1 BNA OSHA 1063,1971-73 CCH OSHD ? 15,277 (No. 881, 1972).\u00a0 Elements to be considered in determininggravity include the number of employees exposed to risk of injury, duration of theexposure, precautions taken against injury, and the degree of probability of occurrence ofan injury. National Realty & Construction Co., Inc., 72 OSAHRC 9\/A2, 1 BNA OSHC1049, 1971-73 CCH OSHD ? 15,188 (No. 85. 1972) rev’d on other grounds, 489 F.2d1257 (D.C. Cir. 1973).Peavey is a large corporation with numerousfacilities for handling grain.\u00a0 It has about 1,000 employees.\u00a0 It is asubsidiary of ConAgra, Inc.No history of previous violations as proved.\u00a0 Its good faith was not questioned.\u00a0 The gravity of the violation was high.\u00a0 On balance, I find a penalty of $700 to be appropriate.FINDINGS OF FACT1.\u00a0 Peavey’s answer admits the jurisdictionand coverage allegations of the complaint.2.\u00a0 Peavey, a subsidiary of ConAgra Inc.,is a large employer with approximately 1,000 employees.\u00a0 It operates a grain handlingand storage facility at Hereford, Texas, which was the site of a fatal accident on June15, 1989.3.\u00a0 An OSHA compliance officer investigates the fatality on June 16 and 20, 1989.\u00a0 As a result, one citation was issued to Peavey alleging two serious violations ofOSHA safety standards.4.\u00a0 On June 13, 1989, Peavey hired fourtemporary employees to shovel grain (corn) in a large rectangular storage building calleda flathouse.\u00a0 On the third day of their employment, one of the temporary employees,Harold Sanders, was suffocated when the grain covered him.\u00a0 On June 13, the four newemployees were instructed by Manager Mark Black on safety matters, including not gettinginto grain over their boot tops.\u00a0 These instructions were adequate for the work to beperformed.5.\u00a0 Peavey had an emergency action plan,but it was deficient in that it did not provide for designation of employees to performrescue and medical and duties and it did not provide for an alarm system to summon aid inan emergency.6.\u00a0 Peavey had at least ten and perhapseleven employees who were scattered in various facilities on the premises so that voicecommunication among all of them was not possible.\u00a0 Peavey does not qualify for theexemption from the requirement for an alarm system.7.\u00a0 There was a substantial probabilitythat death or serious physical injury could result from this violation.8.\u00a0 The appropriate penalty is $700.CONCLUSIONS OF LAW1.\u00a0 The Commission has jurisdiction of theparties and of the subject matter of this proceeding.2.\u00a0 On June 16 and 20, 1990, Peavey was notin violation of 29 C.F.R. ? 1910.272(e)(1)(ii).3.\u00a0 On said date, Peavey was in seriousviolation of 29 C.F.R. ? 1910.272(d).ORDER1.\u00a0 Subitem 1a of citation 1, alleging aserious violation of 29 C.F.R. ? 1910.272 (e)(1)(ii) is VACATED.2.\u00a0 Subitem 1b of citation 1, alleging aserious violation of 29 C.F.R. ? 1910.272(d) is AFFIRMED and a penalty of $700 isASSESSED.3.\u00a0 All proposed findings of facts andconclusions of law inconsistent with this decision are DENIED.So ORDERED.DEE C. BLYTHEAdministrative Law JudgeDate: June 4, 1990FOOTNOTES: [[1]] The judge vacated another citation item, of which the Secretary does not seekreview, that alleged noncompliance with a standard pertaining to employee training.[[2]] Plant Manager Black testified:They were aware of who was in charge and who[m]to report [to] in case they had any problems whatsoever.\u00a0 Again, they have no need toknow who[m] to call and who[m] to contact or to use the phone. Our full-time employeeswould take care of that as long as they are alerted to a problem.[[3]] There were two tunnels at the plant, oneunder the flathouse and the other connected to the elevator.\u00a0 Lead man Andrade was inthe elevator tunnel on the day of the accident.\u00a0 Superintendent Neville may have beenwith him on the two preceding days, but the superintendent’s testimony implies that he wasin the flathouse tunnel on the day of the accident.\u00a0 He stated, in the context ofquestions about the temporary employees’ position in the flathouse on the third day:\u00a0 \”I didn’t see [laborer] Lane [Warren] place the [temporary] employees thatmorning …. I proceeded to go underneath the concrete and blend grain.\” (Emphasisadded).[[4]] Plant Manager Black gave his opinion thatan alarm system would have caused further delay in this case because, on hearing a signal,someone would have had to find out what was the matter, then hurry to the office torequest that a telephone call be put through to the fire department.\u00a0 He posited thatthe existing system had been satisfactory in that the temporary employees were workingnear each other, knew their supervisors, and could send someone to the office for help.[[5]] Superintendent Neville did not statespecifically that he had been unable to hear any voice communication from the flathousewhile he was in the tunnel below, but his testimony gives rise to that inference.\u00a0 Moreover, Plant Manager Black did not make any claim in his testimony thatemployees down in the tunnel could have heard shouts from the flathouse; nor did any otherwitness provide such testimony.[[6]] Peavey also argued that an alarm systemwas not required for the whole facility because it had fewer than ten employees.\u00a0 Aswe have set forth, however, the number of employees on the worksite became eleven when thefour temporary employees arrived for work.\u00a0 Judge Blythe so found and, on review,Peavey explicitly accepts this finding.[[7]] Although not arguing that employers mustuse alarms to report emergencies, the Secretary notes that ? 1910.165(b)(4) requires allemployers, regardless of number of employees, to inform employees of \”the preferredmeans of reporting emergencies\” and argues that Peavey had not established any\”preferred means.\”\u00a0 In the citation, however, the Secretary did not citethis standard, nor did the parties address it at the hearing; they litigated only the lackof an alarm.\u00a0 Therefore, we will not consider the Secretary’s arguments alleging aneed for improved instructions to the employees.\u00a0 Compare Power Fuels, Inc., 14 BNAOSHC 2209, 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); Stacey Manufacturing Co., 10BNA OSHC 1534, 1537-38, 1982 CCH OSHD ? 25,965, p. 32,560 (No. 76-1656, 1982)(\”[t]he Commission will not generally consider nonjurisdictional issues that have notbeen raised before the administrative law judge\”).[[8]] Review necessarily includes any matteressential to accepting or rejecting a judge’s resolution of a citation item, see Donovanv. A. Amorello & Sons, Inc., 761 F.2d 61 (1st Cir. 1985); Seward Motor Freight, Inc.,13 BNA OSHC 2230, 2233, 1987-89 CCH OSHD ? 28,506, pp. 37,785-86 (No. 86-1691, 1989), butin this case we will not reach any issues 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 an affirmative defense in that, if established, it eliminates anemployer’s duty to comply with the more particularized requirements of the standard.\u00a0 Compare Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1223-24 (No.88-8821, 1991) (employer’s burden of proof regarding affirmative defense justifying relieffrom compliance); Stone Container Corp., 14 BNA OSHC 1757, 1751, 1987-90 CCH OSHD ?29,064, p. 38,817(No. 88-310, 1990) (circumstances constituting legal excuse fornoncompliance).[[10]] Peavey’s emergency action plan wasinsufficient in that it made no provision for an alarm and Peavey’s facility wasinadequately equipped in that it did not have an alarm system between the flathouse andthe tunnel.\u00a0 The Company must train the employees in the operation of the alarm andthe hazards that may require its use.\u00a0 See A.P. O’Horo Co., 14 BNA OSHC 2004, 2008,1991 CCH OSHD ? 29,223, pp. 39,129-30 (No. 85-369, 1991) (indicating that an employer’ssafety rules ought to be more 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 otherstandards or codes to give meaning to broad terms found in OSHA standards); Vanco Const,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).\u00a0 See also Brennan v OSHRC (SantaFe Trail Transport Co.), 505 F.2d 869, 872 (10th Cir. 1974) (broad terms may be givenspecific meaning by reference to the evident purpose of the standard and a reasonableconsideration 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 purposeof the standard… the word ‘near’ means close enough… that it is reasonably foreseeablethat [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 impreciseword\” that must be \”examined in context,\” taking into account the\”evident purpose of the standard\”); L.E. Myers Co., 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 (\”imprecise and relative terminology,\” such as the term\”area,\” must be applied in light of the factual circumstances relevant to thehazard against which the standard is directed).”