“SECRETARY OF LABOR,Complainant,v.PRATT & WHITNEY AIRCRAFT GROUP,DIVISION OF UNITED TECHNOLOGIESCORPORATION,Respondent.INTERNATIONAL ASSOCIATION OFMACHINISTS AND AEROSPACE WORKERS,AFL-CIO, CANEL LODGE NO. 700,Authorized EmployeeRepresentativeOSHRC Docket No. 80-5830_DECISION_Before: BUCKLEY, Chairman, and RADER, Commissioner.[[*]]BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor (\”the Secretary\”) under the Act andhas no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C.? 659(c).The Secretary issued a citation to Pratt & Whitney Aircraft Group (\”P &W\”), a division of United Technologies Corporation, alleging violationsof an employee instruction standard and three personal protectiveequipment standards at its facility in Middletown, Connecticut. Atissue is whether Administrative Law Judge David J. Knight erred inconcluding that P & W committed the four alleged violations. We vacatethe three items in the citation alleging that P & W failed to properlyinstruct employees, provide protective gloves, and provide protectiveaprons. We affirm without precedential value the judge’s conclusionthat P & W failed to require the wearing of goggles or face shields, andwe characterize that violation as other-than-serious.In P & W’s Electro-Chemical Machine (\”ECM\”) Department two principaloperations were performed. First, airplane parts were machined to aspecified size and shape by an electro-chemical process in room-sizedECM’s. Then, parts were moved to the \”pickling line\” where they were\”pickled,\” or cleaned, by dipping them into tanks containing solutionsthat removed residual deposits that had accumulated on the parts duringmachining. The \”pickling line\” consisted of seven open surface tanks,one containing a 35% hydrochloric acid solution, one with a 35% nitricacid solution, one with alkali cleaner, and four with water. Each tankwas 4 feet wide, 6 feet long, and 8 feet deep, and was sunken such thatit stood only 3 feet above the floor. The parts, which were round andgenerally large, were moved vertically and from tank to tank by means ofa motorized hoist which ran along a track above the line of tanks. TheECM operator would control the direction of the hoist by pressing abutton while standing in front of the pickling line. At times, smallerparts were dipped into the tanks by hand. Sometimes employeeshand-dipped small bottles or buckets into the acid solution tanks to getsolution to use in operations at the ECM._Item 1A: 29 C.F.R. ? 1910.94(d)(9)(i), Alleged Failure to GiveInstructions _Item 1A of the citation alleges that P & W violated 29 C.F.R. ?1910.94(d) (9)(i) because employees working at the hydrochloric andnitric acid solution tanks at the pickling line were not instructed inthe hazards of their jobs, in applicable personal protection, and infirst aid procedures. The standard provides:? 1910.94 _Ventilation_.(d) _Open surface tanks_–(9) _Personal protection_. (i) All employees working in and aroundopen-surface tank operations must be instructed as to the hazards oftheir respective jobs, and in the personal protection and first aidprocedures applicable to these hazards.Skin contact with either of the acid solutions can cause pain, burning,redness, and scarring; eye contact with either of them can result inreduced vision or blindness.Judge Knight concluded that P & W had violated all three of therequirements of the standard. We shall consider these requirements in turn._Instruction in job hazards_. The judge’s conclusion that P & W had notinstructed its ECM operators in the hazards of their jobs rests onseveral findings. First, the judge found, \”Foreman Batiste’sinstructions were general and devoid of any specifics concerningsafety.\” P & W argues that this finding is contradicted by the record. We agree. Foreman Batiste testified that as part of the orientationprogram for new employees he told them that the tanks in the picklingline contain hydrochloric and nitric acids and alkalines. Batiste alsowarned them to \”watch out\” for the pickling area, told them that if theyget any acid on their hands it should be washed off, and pointed outthat there is an eyewash or shower for that purpose. Experienced ECMoperator Arnold Chick stated that when training new employees at thepickling line he told them \”[w]hat acid does to you if you come incontact with it.\”Second, the judge noted that ECM operators John Luman, Brian Pinney,Charles Clark, and Paul Schmelke, who were trained by operators otherthan Chick, \”did not know of the dangers of these acids or even of thenames of acids as a result of their training.\” However, those sameoperators admitted that they had read the \”caution\” signs on the acidtanks which identified the acid and stated that it \”CAUSES BURNS.\” _See_ _Butler Lime & Cement Co. v. OSHRC_, 658 F.2d 544, 551 (7th Cir.1981) (employer may communicate ten-foot clearance rule by sign). Moreover, Pinney and Clark testified that the operators who trained themtold them that the tank acids would \”burn your fingers.\” Clark alsotestified that \”everybody in the department knows that if you stick yourbare hand in the acid, you’re going to get burned.\” Similarly,employees Luman and Schmelke testified that they knew that contact withtank acids could harm them.Finally, the judge suggested that P & W had no \”effective formalizedsafety training program.\”[[1]] We disagree with the judge’s implicationthat the standard requires a \”formalized safety program.\” Rather, wehave construed another standard like the one here as requiring employersto give instructions that are reasonable under the circumstances. _See__Rochester Products Division, General_ _Motors Corp_., 85 OSAHRC 12 BNAOSHC 1324, 1330, 1985 CCH OSHD ? 27,257, pp. 35,221-22 (No. 80-5439,1985) (opinion of Chairman Buckley) (section 1926.21 (b)(2)); _DravoEngineers and Constructors_, 84 OSAHRC 20\/B6, 11 BNA OSHC 2010, 2011-12,1984 CCH OSHD ? 26,930, p. 34,507 (No. 81-748, 1984) (section 1926.21(b)(2)). In determining the reasonableness of instructions, we mustconsider such factors as the obviousness of the hazard, _Butler Lime &Cement Co. v._ _OSHRC_, 658 F.2d at 548 (need not tell adults not tocome into contact with live wires), the experience of the employees, thelikelihood that an accident would occur, and the degree of harm thatwould result from an accident.The burn hazard from the acids was obvious to the ECM operators based ontheir knowledge, common sense, and experience. The corrosive propertyof acids is a matter of common knowledge, and, as part of theirexperience at the pickling line, P & W’s ECM operators saw that the acidsolutions ate away at the deposits on the metal parts being dipped inthe two tanks.As evidence that the likelihood of an accident involving the acids wasnegligible, P & W introduced its OSHA No. 200 forms, which 29 C.F.R. ?1904.2 requires employers to maintain, for the two and one-half yearspreceding the inspection. Those forms show that there was no reportableinjury resulting from acid contact during that time period in the ECMDepartment at the Middletown facility. Injury records are relevantevidence to establish the presence or absence of a hazard. _GeneralMotors Corp_., _GM Parts Division_, 84 OSAHRC 23\/A2, 11 BNA OSHC 2062,2065-66, 1984 CCH OSHD ? 26,961, p. 34,611 (Nos. 78-1443 & 79-4478,1984), _aff’d_, 764 F.2d 32 (1st Cir. 1985).Moreover, Dr. Richard Wilcox, senior physician at the Middletown plant,reviewed the medical records of all the employees who had ever worked inthe ECM Department at that plant. Those records demonstrate that from1969 to the time of the hearing, which was over a year after theinspection, there were eleven incidents of ECM Department employeesbeing splashed with hydrochloric or nitric acid. In all those cases,first aid was applied, and no impairment or lost time on the jobresulted. It is noteworthy that not all of those eleven instances ofsplashing set forth in the medical records necessarily occurred at thepickling line because presumably operations at the ECM itself, some ofwhich involved the use of acid solution taken in bottles or buckets fromthe pickling line, were also included in the ECM Department medical reports.In light of the obviousness of the hazard, the knowledge gained by theemployees from their experience, and the small likelihood of harm to theemployees, we find that the instructions in the dangers of the acids inthe tanks given by foreman Batiste during orientation, by experiencedECM operators during on-the-job training, and by the signs on the tankswere adequate. We therefore do not find any inadequacies of instructionin the hazard which would serve as a basis for citation item 1A._Instruction in personal protection_. Judge Knight stated in hisdecision that P & W had an implied duty under the standard to instructemployees so that they understand what personal protective equipmentthey must use to protect themselves in different situations at thepickling line. He determined that, based on the testimony of the ECMoperators and foreman Batiste, P & W had not fulfilled that duty. ECMoperators Luman, Pinney, and Schmelke stated that they were never toldwhat specific types of personal protective equipment to wear whileworking at the acid tanks. ECM operator Clark stated that the only suchinstruction that he received was an oral warning from an experienced ECMoperator during training to wear rubber gloves. Judge Knight statedthat \”as a matter of course\” ECM operators did not wear gloves, aprons,and face shields or goggles because \”no effective disciplinary programwas in force to assure the use of proper equipment.\” He found that,when they did wear gloves, ECM operators wore ones that were too shortor cracked to prevent acid contact with skin because they were notproperly instructed about the need for protection. We note at theoutset that section 1910.94(d)(9)(i) does not require employers toprovide protective equipment or enforce its use; other standardselsewhere in section 1910.94(d)(9) may do that, as we note below. Thestandard here requires only that employers give instructions as topersonal protection. We find that that requirement of the standard was met.ECM operators admitted that it is \”common sense\” to wear protectiveequipment when exposed to acid and to wear gloves when placing one’shands into an acid tank. Putting that common sense into practice, theECM operators did wear some protective equipment while working at thepickling line. Luman wore rubber gloves, an apron, safety glasses, anda face shield. Pinney wore, when they were available, rubber gloves andsafety glasses or goggles, and he sometimes wore a face shield. Clarkwore gloves when dipping small parts into the tanks, and Schmelke woregloves on occasion.According to foreman Batiste, when he brings a new employee to anexperienced ECM operator for training for a few days, he tells the newemployee to wear certain protective equipment, such as rubber gloves andsafety glasses, which can be obtained from the crib in the nextdepartment. He tries to place a new employee with an operator who isconscientious about wearing protective gear and performing the jobproperly and can explain the procedures to the employee. ExperiencedECM operator Chick stated that he had been instructed to wear gloves andsafety glasses and, when training new employees at the pickling line, hehad told them where the personal protective equipment was located.Judge Knight once again considered Batiste’s instructions to be toogeneral and those given on the job by experienced ECM operators to beinadequate under section 1910.94(d)(9)(i). We do not share that view. Just as the obviousness of a hazard bears on the instructions that needbe given, the obviousness of the methods of protection from the hazardbears on the detail of instruction in their use. The ECM operatorsadmitted that it is common sense to use personal protection when workingat acid tanks. Because the use of such protection is obvious, P & Wneed not provide extensive instructions on the matter. Batiste’sorientation and the experienced ECM operators’ explanations given to newemployees, along with the example set by experienced ECM operators,constituted reasonable instructions in the use of personal protectiveequipment under the circumstances of this case. We therefore find noinadequacies in the personal protection instruction to support thecitation item._Instruction in first aid_. According to Judge Knight, P & W employeesmust be instructed to flush any area of their skin or eyes that comesinto contact with either of the acids immediately; otherwise permanentharm could result. Based on the testimony of the ECM operators andBatiste, the judge determined that P & W’s employees were not adequatelyinstructed as to what first aid treatment to apply if they contacted theacid. ECM operator Schmelke testified that he was never told what to doif one of the acids got on his skin. However, foreman Batiste informedemployees about the eyewash and shower and told them to wash their handsif they got acid on them. Pinney and Clark stated that when they gotacid on their hands while wearing gloves, they took off their gloves andrinsed or washed their hands. One ECM operator testified that he knewfrom the signs on the tanks to wash off any contact area. Those signs,which the ECM operators testified that they had read, stated: \”IN CASEOF CONTACT FLUSH SKIN and\/or EYES WITH WATER FOR 15 MINUTES AND GETMEDICAL ATTENTION.\”[[2]] We conclude that the specific language of thesigns on each tank, which the ECM operators testified that they hadread, and Batiste’s instructions to employees about the use of nearbyeyewash facilities, constitute reasonable instructions under thecircumstances. Finding no inadequacies in the first aid instruction andno other inadequacies as alleged, we vacate the citation item._Items 1C & 1D; 29 C.F.R. ?? 1910.94(d)(9)(iii) & (iv), Alleged Failureto Provide Gloves and Aprons_Items 1C and 1D of the citation allege that P & W violated 29 C.F.R. ??1910.94(d)(9)(iii) and (iv) in that it did not \”provide\” imperviousgloves and aprons for employees working at open surface tanks. Thestandards state:? 1910.94 _Ventilation_.(d) _Open surface tanks_–(9) _Personal protection_.(iii) All persons required to handle work wet with a liquid other thanwater shall be provided with gloves impervious to such a liquid and of alength sufficient to prevent entrance of liquid into the tops of thegloves. The interior of gloves shall be kept free from corrosive orirritating contaminants.(iv) All persons required to work in such a manner that their clothingmay become wet shall be provided with such aprons, . . . made of rubber,or of other materials impervious to liquids other than water, as arerequired to keep their clothing dry. Aprons shall extend well below thetop of boots to prevent liquid splashing into the boots.Provision of dry, clean, cotton clothing along with rubber shoes orshort boots and an apron impervious to liquids other than water shall beconsidered a satisfactory substitute where small parts are cleaned,plated, or acid dipped in open tanks and rapid work is required.At the hearing, the Secretary focused primarily on the complianceofficer’s testimony that P & W employees were not using gloves andaprons. To P & W’s objection that the standards do not mandate that theemployer require the use of gloves and aprons, but instead that theemployer \”provide\” the equipment, the Secretary argued that such aconstruction would be \”wooden\” and out of keeping with the remedialpurpose of the Act.Judge Knight affirmed the two citation items. He evidently agreed withthe Secretary’s position, though his reasoning was somewhat different. The judge characterized the instruction standard, section1910.94(d)(9)(i), as a general, introductory statement that \”binds thespecifics that follow [_i.e_., the standards on personal protection]into a unified whole.\” The judge reasoned that the instruction standardimplicitly requires that employees be made to understand the conditionsunder which protective equipment \”must\” be used. Inasmuch as \”apronswere not worn\” and \”no effective disciplinary program was in force toassure the use of [gloves],\” the judge concluded that P & W had not\”provided\” gloves and aprons within the meaning of section 1910.94(d)(9).P & W argues that the judge’s construction was erroneous because it hadthe effect of interpreting the word \”provide\” in the cited standards asmeaning \”require the use of,\” an interpretation far beyond the literalwords of the standards. We agree. We conclude for the reasons thatfollow that the word \”provide\” ordinarily does not signify a requirementof use and, contrary to the judge’s view, we do not find that section1910.94(d)(9) suggests the word should not be given its ordinary meaning.In _Borton, Inc. v. OSHRC_, 734 F.2d 508 (10th Cir. 1984), the TenthCircuit reversed a Commission decision holding that the requirement in29 C.F.R. ? 1926.451(a)(13) that an access ladder be \”provided\” shouldbe read as implicitly requiring that the ladder be used, in order toeffectuate the broad, remedial purpose of the Act. _Borton, Inc_., 82OSAHRC 17\/E13, 10 BNA OSHC 1462, 1465, 1982 CCH OSHD ? 25,983, p. 32,599(No. 77-2115, 1982), _rev’d_, 734 F.2d 508 (10th Cir. 1984). The TenthCircuit held that the employer had met its obligation of providing aladder by making a ladder available, without requiring its use. Thecourt stated that \”the term ‘provide’ is not ambiguous . . . . Thusthere is no need to look beyond the face of ? 1926.451(a)(13) todiscover the meaning of ‘provide.’\” 734 F.2d at 510, citing the earlierTenth Circuit decision in _Usery v. Kennecott Copper Corp_., 577 F.2d1113, 1118-19 (10th Cir. 1977) (\”We do not agree that the Secretary mayread ‘shall be provided’ to mean ‘shall require use.’\”), _aff’g_ 76OSAHRC 81\/A2, 4 BNA OSHC 1400, 1402, 1976-77 CCH OSHD ? 20,860, p.25,042 (No. 5958, 1976).The Commission has considered a number of cases in which the Secretaryhas argued that the term \”shall provide\” means \”shall require the useof.\” Generally, the Commission has read the term to impose a supplyrequirement rather than a use requirement.[[3]] In no case has theCommission implied a use requirement from a provision requirement exceptwhen related standards contained an explicit use requirement.[[4]] Weneed not reach the question of whether these latter cases should befollowed and standards requiring provision should be construed togetherwith closely-related standards explicitly requiring use. As we shalldiscuss below, there is no provision in section 1910.94(d) that suggestsa use requirement. Instead, all this case presents is whether a singlestandard that uses the term \”provide\” should be construed to require theuse of provided equipment.The word \”provide\” is not ambiguous. Dictionaries define the word asmeaning \”supply,\” \”furnish,\” and \”equip,\” and give no connotation ofmandating use.[[5]] Moreover, other standards in section 1910.94(d)(9),the section concerning personal protection at open surface tanks, showthat terms other than \”provide\” were employed when their draftersintended to impose upon employers an obligation to ensure the use ofprotective equipment. Section 1910.94(d)(9)(v) states that employees\”shall be required to wear\” goggles or face shields, and section1910.94(d)(9)(vi) declares that employees \”shall be required to wear\”adequate respirators in certain emergencies. By contrast, the standardscited in this case, as well as sections 1910.94(d)(9)(ii) (footprotection), (ix) (washing facilities), and (X) (locker space), allcontain the words \”shall be provided.\” The Secretary could havepromulgated a standard imposing a use requirement as suggested by theSecond Circuit in a case involving a similar standard,[[6]] but he hasnot. Instead he has chosen to rely solely on a consensus standard of theAmerican National Standards Institute (\”ANSI\”) (see 29 C.F.R.? 1910.99 (source of standards), which distinguishes between equipmentthe employer need only provide and equipment which the employer mustboth provide and require to be used. The Commission, as an adjudicatorybody, lacks authority to rewrite the standards and may not impose onthem a meaning that would deprive employers of fair notice of theconduct required or prohibited. _See_ _Diamond Roofing Co. v. OSHRC_,528 F.2d 645, 650 (5th Cir. 1976); _Cape and Vineyard Division v.OSHRC,_ 512 F.2d 1148, 1152-53 (1st Cir. 1975); _Lisbon Contractors,Inc_., 84 OSAHRC 19\/A2, 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD ?26,924, p. 34,500 (No. 80-97, 1984).[[7]] Finally, we disagree with thejudge’s heavy reliance on section 1910.94 (d)(9)(i), the generalinstruction standard. The language of that standard offers no basis forholding that the word \”provide\” was not used in its ordinary sense. Instating that employees \”must\” be \”instructed\” in \”personal protection .. . applicable to [open surface tank] hazards,\” the standard does notsuggest that employers must require the wearing of the personalprotection about which employees are instructed.We therefore conclude that sections 1910.94 (d)(9)(iii) and (iv), thatstate that employers shall \”provide\” gloves and aprons, require onlythat that protective equipment must be made available.Having concluded that the cited standards require no more than thatgloves and aprons be provided, we must consider whether P & W satisfiedthat requirement. Gloves and aprons were kept in cribs at differentlocations in the building. The Secretary put forth no evidence thatgloves and aprons were not available at the cribs other than the onenearest the ECM Department. Indeed, the Secretary’s counsel focused hisquestioning more on the use of the gloves and aprons than on theiravailability. This accorded with the testimony of the Supervisor ofIndustrial Hygiene at OSHA that the citation would not have been issuedif P & W had required the use of gloves and aprons. Moreover, it was P& W’s counsel who elicited the only testimony regarding the availabilityof gloves and aprons at the other cribs.It was established that employees could obtain gloves and aprons fromthe crib by completing a voucher and presenting it to the cribattendant. Gloves and aprons were usually available at the crib nearestthe ECM Department, except at very busy times. One ECM operatortestified that if he ever would have problems getting the equipment fromthe crib nearest the ECM Department, he would report it to his foremanand go to another crib for the items. Moreover, another ECM operatortestified that a pair of gloves usually could be found lying near thepickling line. Although there was some testimony by ECM operators thatgloves and aprons of insufficient size or thickness to protect employeeshad been distributed at the crib, it was not established that suchdistribution was a frequent occurrence or that at those times the cribcontained no fully protective gloves and aprons for which theinsufficient gear could have been exchanged. We therefore conclude thatthe Secretary failed to prove that P & W did not provide gloves andaprons to its employees working at the pickling line, and we vacateitems 1C and 1D._Item 1E: 29 C.F.R. ? 1910.94(d)(9)(v), Alleged Failure to Require theWearing of Goggles_The Secretary contends in citation item 1E that P & W committed aviolation of 29 C.F.R. ? 1910.94(d)(9)(v) because it did not requireemployees to wear goggles or face shields at the pickling line. Thestandard provides:? 1910.94 _Ventilation._(d) _Open surface tanks_–(9) _Personal protection_.(v) Whenever there is a danger of splashing, for example, when additionsare made manually to the tanks, or when acids and chemicals are removedfrom the tanks, the employees so engaged shall be required to weareither tightfitting chemical goggles or an effective face shield. See ?1910.133.Some ECM operators and a foreman did not generally wear goggles or faceshields. However, the standard requires that employees be required towear goggles or face shields only when there is a \”danger ofsplashing.\” ECM operator Luman testified that he had seen acid splashout from open surface tanks due to the force exerted by parts swingingdown into the tanks. He also stated that he had never had acid splashin his eyes. However, he testified, \”A lot of times you’d lift [a part]up and you thought you had it right. That you had judged the part. Andyet it would come down.\” As a result, acid splashed on Luman’s \”upperarm\” while he was wearing the longest gloves that P & W provided, whichwere 18 inches long and covered about three quarters of Luman’s arm. ECMoperator Schmelke testified that he had seen acid splash out of thetanks \”on occasion\” as a result of parts swinging as they were loweredinto the tanks. Pinney stated that even though he had not gottensplashed with acid from the tanks, acid splashing \”can happen\”particularly when parts with pockets, or depressions in their sides, arebeing lifted from the dip tank because the acid remaining in the pocketssplashes out.Based on that evidence, Judge Knight found in his decision that splashesendangering the head area had occurred due to parts being dipped andacid pouring from the pockets in parts being lifted out of the tanks. P& W contends that no violation was proven because the Secretary did notshow that any employee working at the tanks was engaged in a procedurethat had resulted or could result in acid splashing onto the face.Because section 1910.94(d)(9)(v) requires that there be a \”danger ofsplashing\” for the standard to apply, the Secretary must show that sucha danger existed in order to establish a violation. In _Schulte Corp_.,85 OSAHRC ___\/___, 12 BNA OSHC 1222, 1225, 1985 CCH OSHD ? 27,210, p.35,127 (No. 80-2666, 1985), the Commission stated that in order to provethat there was a \”danger of splashing\” under section 1910.94(d)(9)(v)the Secretary must establish that \”there is more than a theoreticalpossibility that an employee could be splashed with a chemicalsolution.\” Because the standard uses the term \”danger,\” the Secretarymust show that the cited condition presents a significant risk of harm. _Anoplate Corp_., No. 80-4109 (March 4, 1986). _See_ _Pratt & Whitney__Aircraft v. Donovan_, 715 F.2d 57, 63-64 (2d Cir. 1983); _Pratt &Whitney Aircraft v. Secretary of Labor_, 649 F.2d 96, 104 (2d Cir. 1981).Chairman Buckley would conclude that a danger of splashing was proven. He notes that the nature of the pickling operation is such that thereis more than a theoretical possibility that employees would be splashedwith acid from parts hitting the surface of the tanks, or from acid thathad collected in pockets in the parts when they poured out into thetanks below. Although there was no evidence of an employee beingsplashed in the face at the pickling line, ECM operator Luman testifiedthat \”[a] lot of times\” acid splashes from parts rapidly descending intotanks had occurred as high as his upper arm above his long gloves, whichis not that far from his face. It is apparent that the height anddirection of splashes are unpredictable. Whether a splash could reachan employee’s face, or eyes, depends on such factors as the speed atwhich the part is travelling down into the tank and the distance fromthe employee. _Cf_. _Vanco Construction, Inc_., 82 OSAHRC 71\/A2, 11 BNAOSHC 1058, 1060-61, 1983-84 CCH OSHD ? 26,372, pp. 33,453-54 (No.79-4945, 1982), _aff’d_, 723 F.2d 410 (5th Cir. 1984) (section1926.102(a)(1)–potential eye and face injury from concrete chips). Therecord is silent as to how tall ECM operator Luman is, so we assume heis a man of average height. Had the parts descended more quickly and ashorter employee been in Luman’s place when he was splashed on his upperarm, splashing into the face would have been likely to have occurred. Moreover, P & W’s medical records show that eleven instances of acidsplashing had occurred in the ECM Department, albeit not all may havebeen at the tanks. Chairman Buckley concludes that, given theunpredictable height of splashes and the hazardousness of the acids, therecord as a whole demonstrates a significant risk, and hence a danger,of splashing within the meaning of the standard. Because goggles orface shields were not generally worn, he finds a violation of thestandard. However, in light of the relatively close proximity offlushing facilities, the testimony that prompt washing would preventpermanent damage, and P & W’s low injury rate, Chairman Buckleyconcludes that there was not a substantial probability of serious injuryand would affirm this citation item as other-than-serious.In Commissioner Rader’s view, the evidence does not show a significantrisk of chemical solution splashing into an employee’s eyes, and thusdoes not show that a violation of section 1910.94(d)(9)(v) wascommitted. There was no evidence that any employee working at thepickling line had ever been splashed in the eyes with the hydrochloricor nitric acid solution, or that such a splash had ever occurred at headlevel. In addition, as noted earlier, P & W’s OSHA No. 200 forms forthe two and one-half years preceding the inspection showed no reportableinjury from acid contact in the ECM Department. Commissioner Radertherefore concludes that no significant risk of acid splashing into theemployees’ eyes was shown, and he would vacate the citation item. Inany event, Commissioner Rader would agree with the Chairman that anyviolation of section 1910.94 (d)(9)(v) in this case would be other-than-serious because of the low injury rate and nearness of flushingfacilities.Section 12(f) of the Act, 29 U.S.C. ? 661(e), states that officialaction can be taken by the Commission with the affirmative votes of twomembers. Accordingly, Chairman Buckley and Commissioner Rader agree toreverse Judge Knight’s decision on this item insofar as he characterizedit as serious. They agree that any violation would beother-than-serious. They also agree that, taking into consideration thefactors in section 17(j) of the Act, 29 U.S.C. ? 666(i), especially thelow gravity of the violation, no penalty should be assessed. To resolvetheir impasse on the item itself and to permit this case to proceed to afinal resolution, the members have agreed to affirm the judge’s decisionas to the item itself but accord it the precedential value of anunreviewed judge’s decision. _See_ _Life Science Products Co._, 77OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910,1977), _aff’d sub nom_. _Moore v. OSHRC_, 591 F.2d 991 (4th Cir. 1979).We therefore vacate items 1A, 1C, and ID, which respectively allegeviolations of sections 1910.94(d)(9)(i), (iii), and (iv). We alsoconclude that item 1E should be characterized as other-than-serious andthat no penalty should be assessed. Because of an impasse, JudgeKnight’s decision affirming item 1E itself becomes a final order of theCommission.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 18 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[*]] Commissioner Wall did not participate in this decision.[[1]] We note that P & W offered a 20-hour course on the ECM Departmentin which employees were told what acids were in the tanks at thepickling line and what precautions to take when working at the\”hazardous\” line. The ECM course was given only when P & W had enoughemployees to constitute a class; therefore, there were some P & Wemployees who had not yet taken the course when the OSHA inspectionoccurred.[[2]] P& W was also cited for failure to comply with 29 C.F.R. ?1910.145(c)(3), which provides: \”Safety instruction signs shall be usedwhere there is a need for general instructions and suggestions relativeto safety measures.\” The judge vacated that item, concluding that thecaution signs on the acid tanks satisfied that requirement. TheSecretary suggests that the warning sign erected in compliance withsection 1910.145(c)(3) should not be considered compliance with section1910.94(d)(9)(i), lest a redundancy in the standards be created. We donot need to consider that suggestion because we do not rely solely onthe first-aid portions of the signs to find that first-aid instructionswere given.[[3]] _Hillsdale Lumber & Manufacturing, Inc_., 77 OSAHRC 54\/D2, 5 BNAOSHC 1281, 1282, 1977-78 CCH OSHD ? 21,766, p. 26,154 (No. 5815, 1977)(construing ? 1910.213(b)(5)); _Kennecott Copper_, 4 BNA OSHC at1401-02, 1976-77 CCH OSHD at p. 25,042 (? 1910.28(a)(12) \”only requiresthat a ladder be provided … If the Secretary had intended to requirethe use of a ladder, he should have so stated in the standard.\”); _CamIndustries, Inc_., 74 OSAHRC 10\/C4, 1 BNA OSHC 1564, 1565 n. 2, 1973-74CCH OSHD ? 17,373, p. 21,903 n. 2 (No. 258, 1974) (construing ?1910.133(a)(1)).[[4]] _See_ _Clarence M. Jones_, 83 OSAHRC 23\/A27, 11 BNA 1529, 1531-32,1983-84 CCH OSHD ? 26,516, p. 33,750 (No. 77-3676, 1983) (?1926.102(a)(1) construed in light of ? 1926.28(a)); _Truax & HoveyDrywall Corp_., 78 OSAHRC 47\/A14, 6 BNA OSHC 1654, 1656 & n. 4, 1978 CCHOSHD ? 22,799, p. 27,532 & n. 4 (No. 14516, 1978) (? 1926.451(a)(13)construed in light of ? 1926.450 (a)(1)’s requirement of use ofladders); _Ray Boyd Plaster & Tile, Inc_., 78 OSAHRC 47\/D8, 6 BNA OSHC1648, 1652-53 & n. 6, 1978 CCH OSHD ? 22,794, p. 27,520 & n. 6 (No.76-814, 1978) (? 1926.451(a)(13) construed as above); _Turnbull MillworkCo_., 77 OSAHRC 205\/C8, 6 BNA OSHC 1148, 1149, 1977-78 CCH OSHD ?22,388, p. 26,990 (No. 15047, 1977) (? 1910.213(a)(15) requires use ofcombs or jigs since it requires their provision when saw guards requiredby various standards in ? 1910.213 cannot be used); _G.A. & F.C. Wagman,Inc_., 74 OSAHRC 78\/B10, 2 BNA OSHC 1297, 1298, 1974-75 CCH OSHD ?18,882, pp. 22,702-03 (No. 1284, 1974) (? 1926.106(a) construed in lightof ? 1926.106(b)’s requirement that life jackets be inspected before andafter use). _See_ _also_ _Borton, Inc_., 10 BNA OSHC at 1465 n. 3, 1982CCH OSHD at p. 32,598 n. 3 (majority member relying in addition onrelated standards requiring \”use\”).[[5]] See Random House Dictionary 1157 (1971); Webster’s Third NewInternational Dictionary 1827 (1971). _See_ _also_ _Asbestos_ _TextileCo_., 84 OSAHRC, 12 BNA OSHC 1062, 1066, 1984 CCH OSHD ? 27,101, pp.34,950-51 (No. 79-3831, 1984) (views of Chairman Buckley); _Borton,Inc._, 10 BNA OSHC at 1467-69, 1982 CCH OSHD at pp. 32,600-03 (Rowland,dissenting).[[6]] In _General Electric Co. v. OSHRC_, 540 F.2d 67, 69 (2d Cir.1976), the court stated:If the employer were a guarantor of the employee’s use, a seriousquestion would arise as to whether such an interpretation [of ?1910.133(a)(1)] would exceed the legislative requirements. See _Brennanv. OSHRC and Hendrix, d\/b\/a Alsea Lumber Co_., 511 F.2d 1139, 1144-45(9th Cir. 1975). We do note, however, that if employers are to be heldto an obligation requiring something more than instructing employees touse protective equipment but something less than guaranteeing use, thepromulgation of a standard fleshing out the employer’s obligation wouldprovide useful guidance to employers, the Commission, and reviewing courts.[[7]] Indeed, the Secretary has shown in his own rulemaking that heunderstands there to be a distinction between \”provide\” and \”use.\” Oneprovision of the asbestos standard, section 1910.1001(d)(3), requiresthe employer to \”provide, and require the use of, special clothing,\”while other provisions, sections 1910.1001(d)(4)(i) and (ii), requireonly that the employer \”provide\” change rooms and lockers. Provisionsof the relatively recent ethylene oxide standard, section1910.1047(g)(1) and (4), require the employer to \”provide\” respiratorsand protective clothing and \”ensure\” that they are used, whilesubsections (i)(1)(i)(B) and (i)(2)(i) require that the employer only\”make available medical examinations.\” One provision of the relativelynew hearing conservation standard, section 1910.95(i)(1), states thatemployers \”shall make hearing protectors available\” when noise is 85 ormore decibels, while another provision, subsection (i)(2), states thatthe employer \”shall ensure that hearing protectors are worn\” in specificcircumstances. The Secretary also discussed the reasons for thedifference in language. See 46 Fed. Reg. 42622, 42629 (1981) and 46Fed. Reg. 4078, 4111, 4151-2 (1981).”