“Docket No. 80-5830 SECRETARY OF LABOR,Complainant, v.PRATT & WHITNEY AIRCRAFT GROUP, DIVISION OF UNITED TECHNOLOGIES CORPORATION,Respondent. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, CANEL LODGE NO. 700,Authorized Employee RepresentativeOSHRC Docket No. 80-5830DECISION Before:\u00a0 BUCKLEY, Chairman, and RADER, Commissioner.[[*]]BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”).\u00a0 It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor (\”the Secretary\”)under the Act and has no regulatory functions.\u00a0 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 violations of anemployee instruction standard and three personal protective equipment standards at itsfacility in Middletown, Connecticut.\u00a0 At issue is whether Administrative Law JudgeDavid J. Knight erred in concluding that P & W committed the four allegedviolations.\u00a0 We vacate the three items in the citation alleging that P & W failedto properly instruct employees, provide protective gloves, and provide protectiveaprons.\u00a0 We affirm without precedential value the judge’s conclusion that P & Wfailed to require the wearing of goggles or face shields, and we characterize thatviolation as other-than-serious.In P & W’s Electro-Chemical Machine (\”ECM\”) Department two principaloperations were performed.\u00a0 First, airplane parts were machined to a specified sizeand shape by an electro-chemical process in room-sized ECM’s.\u00a0 Then, parts were movedto the \”pickling line\” where they were \”pickled,\” or cleaned, bydipping them into tanks containing solutions that removed residual deposits that hadaccumulated on the parts during machining.\u00a0 The \”pickling line\” consistedof seven open surface tanks, one containing a 35% hydrochloric acid solution, one with a35% nitric acid solution, one with alkali cleaner, and four with water. \u00a0Each tankwas 4 feet wide, 6 feet long, and 8 feet deep, and was sunken such that it stood only 3feet above the floor.\u00a0 The parts, which were round and generally large, were movedvertically and from tank to tank by means of a motorized hoist which ran along a trackabove the line of tanks.\u00a0 The ECM operator would control the direction of the hoistby pressing a button while standing in front of the pickling line.\u00a0 At times, smallerparts were dipped into the tanks by hand.\u00a0 Sometimes employees hand-dipped smallbottles or buckets into the acid solution tanks to get solution to use in operations atthe ECM.Item 1A:\u00a0 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 and nitric acid solution tanks at thepickling line were not instructed in the hazards of their jobs, in applicable personalprotection, and in first aid procedures.\u00a0 The standard provides:? 1910.94 Ventilation. (d) Open surface tanks–(9) Personal protection.\u00a0 (i) All employees working in and aroundopen-surface tank operations must be instructed as to the hazards of their respectivejobs, and in the personal protection and first aid procedures 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 in reduced vision or blindness.Judge Knight concluded that P & W had violated all three of the requirementsof the standard.\u00a0 We shall consider these requirements in turn.Instruction in job hazards.\u00a0 The judge’s conclusion that P & W hadnot instructed its ECM operators in the hazards of their jobs rests on severalfindings.\u00a0 First, the judge found, \”Foreman Batiste’s instructions were generaland devoid of any specifics concerning safety.\”\u00a0 P & W argues that thisfinding is contradicted by the record.\u00a0 We agree.\u00a0 Foreman Batiste testifiedthat as part of the orientation program for new employees he told them that the tanks inthe pickling line contain hydrochloric and nitric acids and alkalines.\u00a0 Batiste alsowarned them to \”watch out\” for the pickling area, told them that if they get anyacid on their hands it should be washed off, and pointed out that there is an eyewash orshower for that purpose.\u00a0 Experienced ECM operator Arnold Chick stated that whentraining new employees at the pickling line he told them \”[w]hat acid does to you ifyou come in contact with it.\”Second, the judge noted that ECM operators John Luman, Brian Pinney, CharlesClark, and Paul Schmelke, who were trained by operators other than Chick, \”did notknow of the dangers of these acids or even of the names of acids as a result of theirtraining.\” However, those same operators admitted that they had read the\”caution\” signs on the acid tanks which identified the acid and stated that it\”CAUSES BURNS.\”\u00a0 See Butler Lime & Cement Co. v. OSHRC,658 F.2d 544, 551 (7th Cir. 1981) (employer may communicate ten-foot clearance rule bysign).\u00a0 Moreover, Pinney and Clark testified that the operators who trained them toldthem that the tank acids would \”burn your fingers.\”\u00a0 Clark also testifiedthat \”everybody in the department knows that if you stick your bare hand in the acid,you’re going to get burned.\”\u00a0 Similarly, employees Luman and Schmelke testifiedthat they knew that contact with tank acids could harm them.Finally, the judge suggested that P & W had no \”effective formalizedsafety training program.\”[[1]]\u00a0 We disagree with the judge’s implication thatthe standard requires a \”formalized safety program.\”\u00a0 Rather, we haveconstrued another standard like the one here as requiring employers to give instructionsthat are reasonable under the circumstances.\u00a0 See Rochester ProductsDivision, General Motors Corp., 85 OSAHRC 12 BNA OSHC 1324, 1330, 1985 CCH OSHD? 27,257, pp. 35,221-22 (No. 80-5439, 1985) (opinion of Chairman Buckley) (section1926.21 (b)(2)); Dravo Engineers and Constructors, 84 OSAHRC 20\/B6, 11 BNA OSHC2010, 2011-12, 1984 CCH OSHD ? 26,930, p. 34,507 (No. 81-748, 1984) (section 1926.21(b)(2)).\u00a0 In determining the reasonableness of instructions, we must consider suchfactors as the obviousness of the hazard, Butler Lime & Cement Co. v. OSHRC,658 F.2d at 548 (need not tell adults not to come into contact with live wires), theexperience of the employees, the likelihood that an accident would occur, and the degreeof harm that would result from an accident.The burn hazard from the acids was obvious to the ECM operators based on theirknowledge, common sense, and experience.\u00a0 The corrosive property of acids is a matterof common knowledge, and, as part of their experience at the pickling line, P & W’sECM operators saw that the acid solutions ate away at the deposits on the metal partsbeing dipped in the two tanks.As evidence that the likelihood of an accident involving the acids was negligible,P & W introduced its OSHA No. 200 forms, which 29 C.F.R. ? 1904.2 requires employersto maintain, for the two and one-half years preceding the inspection. \u00a0Those formsshow that there was no reportable injury resulting from acid contact during that timeperiod in the ECM Department at the Middletown facility.\u00a0 Injury records are relevantevidence to establish the presence or absence of a hazard.\u00a0 General Motors 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, reviewedthe medical records of all the employees who had ever worked in the ECM Department at thatplant.\u00a0 Those records demonstrate that from 1969 to the time of the hearing, whichwas over a year after the inspection, there were eleven incidents of ECM Departmentemployees being splashed with hydrochloric or nitric acid.\u00a0 In all those cases, firstaid was applied, and no impairment or lost time on the job resulted. \u00a0 It isnoteworthy that not all of those eleven instances of splashing set forth in the medicalrecords necessarily occurred at the pickling line because presumably operations at the ECMitself, some of which 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 the employeesfrom their experience, and the small likelihood of harm to the employees, we find that theinstructions in the dangers of the acids in the tanks given by foreman Batiste duringorientation, by experienced ECM operators during on-the-job training, and by the signs onthe tanks were adequate.\u00a0 We therefore do not find any inadequacies of instruction inthe hazard which would serve as a basis for citation item 1A.Instruction in personal protection.\u00a0 Judge Knight stated in hisdecision that P & W had an implied duty under the standard to instruct employees sothat they understand what personal protective equipment they must use to protectthemselves in different situations at the pickling line.\u00a0 He determined that, basedon the testimony of the ECM operators and foreman Batiste, P & W had not fulfilledthat duty.\u00a0 ECM operators Luman, Pinney, and Schmelke stated that they were nevertold what specific types of personal protective equipment to wear while working at theacid tanks.\u00a0 ECM operator Clark stated that the only such instruction that hereceived was an oral warning from an experienced ECM operator during training to wearrubber gloves.\u00a0 Judge Knight stated that \”as a matter of course\” ECMoperators did not wear gloves, aprons, and face shields or goggles because \”noeffective disciplinary program was in force to assure the use of proper equipment.\”\u00a0He found that, when they did wear gloves, ECM operators wore ones that were tooshort or cracked to prevent acid contact with skin because they were not properlyinstructed about the need for protection.\u00a0 We note at the outset that section1910.94(d)(9)(i) does not require employers to provide protective equipment or enforce itsuse; other standards elsewhere in section 1910.94(d)(9) may do that, as we note below.\u00a0The standard here requires only that employers give instructions as to personalprotection.\u00a0 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’s hands into an acidtank.\u00a0 Putting that common sense into practice, the ECM operators did wear someprotective equipment while working at the pickling line.\u00a0 Luman wore rubber gloves,an apron, safety glasses, and a face shield.\u00a0 Pinney wore, when they were available,rubber gloves and safety glasses or goggles, and he sometimes wore a face shield. \u00a0Clark wore gloves when dipping small parts into the tanks, and Schmelke wore gloves onoccasion.According to foreman Batiste, when he brings a new employee to an experienced ECMoperator for training for a few days, he tells the new employee to wear certain protectiveequipment, such as rubber gloves and safety glasses, which can be obtained from the cribin the next department.\u00a0 He tries to place a new employee with an operator who isconscientious about wearing protective gear and performing the job properly and canexplain the procedures to the employee.\u00a0 Experienced ECM operator Chick stated thathe had been instructed to wear gloves and safety glasses and, when training new employeesat the pickling line, he had told them where the personal protective equipment waslocated.Judge Knight once again considered Batiste’s instructions to be too general andthose given on the job by experienced ECM operators to be inadequate under section1910.94(d)(9)(i).\u00a0 We do not share that view.\u00a0 Just as the obviousness of ahazard bears on the instructions that need be given, the obviousness of the methods ofprotection from the hazard bears on the detail of instruction in their use.\u00a0 The ECMoperators admitted that it is common sense to use personal protection when working at acidtanks.\u00a0 Because the use of such protection is obvious, P & W need not provideextensive instructions on the matter.\u00a0 Batiste’s orientation and the experienced ECMoperators’ explanations given to new employees, along with the example set by experiencedECM operators, constituted reasonable instructions in the use of personal protectiveequipment under the circumstances of this case.\u00a0 We therefore find no inadequacies inthe personal protection instruction to support the citation item.Instruction in first aid.\u00a0 According to Judge Knight, P & Wemployees must be instructed to flush any area of their skin or eyes that comes intocontact with either of the acids immediately; otherwise permanent harm could result.\u00a0 Based on the testimony of the ECM operators and Batiste, the judge determined thatP & W’s employees were not adequately instructed as to what first aid treatment toapply if they contacted the acid.\u00a0 ECM operator Schmelke testified that he was nevertold what to do if one of the acids got on his skin.\u00a0 However, foreman Batisteinformed employees about the eyewash and shower and told them to wash their hands if theygot acid on them.\u00a0 Pinney and Clark stated that when they got acid on their handswhile wearing gloves, they took off their gloves and rinsed or washed their hands.\u00a0One ECM operator testified that he knew from the signs on the tanks to wash off anycontact area.\u00a0 Those signs, which the ECM operators testified that they had read,stated:\u00a0 \”IN CASE OF CONTACT FLUSH SKIN and\/or EYES WITH WATER FOR 15 MINUTESAND GET MEDICAL ATTENTION.\”[[2]]\u00a0 We conclude that the specific language of thesigns on each tank, which the ECM operators testified that they had read, and Batiste’sinstructions to employees about the use of nearby eyewash facilities, constitutereasonable instructions under the circumstances.\u00a0 Finding no inadequacies in thefirst aid instruction and no other inadequacies as alleged, we vacate the citation item.Items 1C & 1D; 29 C.F.R. ?? 1910.94(d)(9)(iii) & (iv), AllegedFailure to Provide Gloves and ApronsItems 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\” impervious gloves andaprons for employees working at open surface tanks.\u00a0 The standards state:? 1910.94\u00a0 Ventilation.(d) Open surface tanks–(9) Personal protection.(iii) All persons required to handle work wet with a liquid other than water shall beprovided with gloves impervious to such a liquid and of a length sufficient to prevententrance of liquid into the tops of the gloves.\u00a0 The interior of gloves shall be keptfree from corrosive or irritating contaminants.(iv) All persons required to work in such a manner that their clothing may become wetshall be provided with such aprons, . . . made of rubber, or of other materials imperviousto liquids other than water, as are required to keep their clothing dry.\u00a0 Apronsshall extend well below the top of boots to prevent liquid splashing into the boots.Provision of dry, clean, cotton clothing along with rubber shoes or short boots and anapron impervious to liquids other than water shall be considered a satisfactory substitutewhere small parts are cleaned, plated, or acid dipped in open tanks and rapid work isrequired.At the hearing, the Secretary focused primarily on the compliance officer’stestimony that P & W employees were not using gloves and aprons.\u00a0 To P & W’sobjection that the standards do not mandate that the employer require the use of glovesand aprons, but instead that the employer \”provide\” the equipment, the Secretaryargued that such a construction would be \”wooden\” and out of keeping with theremedial purpose of the Act.Judge Knight affirmed the two citation items.\u00a0 He evidently agreed with theSecretary’s position, though his reasoning was somewhat different.\u00a0 The judgecharacterized the instruction standard, section 1910.94(d)(9)(i), as a general,introductory statement that \”binds the specifics that follow [i.e., thestandards on personal protection] into a unified whole.\”\u00a0 The judge reasonedthat the instruction standard implicitly requires that employees be made to understand theconditions under which protective equipment \”must\” be used.\u00a0 Inasmuch as\”aprons were not worn\” and \”no effective disciplinary program was in forceto assure 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 had the effect ofinterpreting the word \”provide\” in the cited standards as meaning \”requirethe use of,\” an interpretation far beyond the literal words of the standards.\u00a0We agree.\u00a0 We conclude for the reasons that follow that the word\”provide\” ordinarily does not signify a requirement of use and, contrary to thejudge’s view, we do not find that section 1910.94(d)(9) suggests the word should not begiven its ordinary meaning.In Borton, Inc. v. OSHRC, 734 F.2d 508 (10th Cir. 1984), the Tenth Circuitreversed a Commission decision holding that the requirement in 29 C.F.R. ?1926.451(a)(13) that an access ladder be \”provided\” should be read as implicitlyrequiring that the ladder be used, in order to effectuate the broad, remedial purpose ofthe Act.\u00a0 Borton, Inc., 82 OSAHRC 17\/E13, 10 BNA OSHC 1462, 1465, 1982 CCHOSHD ? 25,983, p. 32,599 (No. 77-2115, 1982), rev’d, 734 F.2d 508 (10th Cir.1984).\u00a0 The Tenth Circuit held that the employer had met its obligation of providinga ladder by making a ladder available, without requiring its use.\u00a0 The court statedthat \”the term ‘provide’ is not ambiguous . . . . Thus there is no need to lookbeyond the face of ? 1926.451(a)(13) to discover the meaning of ‘provide.’\”\u00a0734 F.2d at 510, citing the earlier Tenth Circuit decision in Usery v. KennecottCopper Corp., 577 F.2d 1113, 1118-19 (10th Cir. 1977) (\”We do not agree that theSecretary may read ‘shall be provided’ to mean ‘shall require use.’\”), aff’g76 OSAHRC 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 Secretary has arguedthat the term \”shall provide\” means \”shall require the use of.\”\u00a0Generally, the Commission has read the term to impose a supply requirement ratherthan a use requirement.[[3]]\u00a0 In no case has the Commission implied a use requirementfrom a provision requirement except when related standards contained an explicit userequirement.[[4]]\u00a0 We need not reach the question of whether these latter casesshould be followed and standards requiring provision should be construed together withclosely-related standards explicitly requiring use.\u00a0 As we shall discuss below, thereis no provision in section 1910.94(d) that suggests a use requirement.\u00a0 Instead, allthis case presents is whether a single standard that uses the term \”provide\”should be construed to require the use of provided equipment.The word \”provide\” is not ambiguous.\u00a0 Dictionaries define the word asmeaning \”supply,\” \”furnish,\” and \”equip,\” and give noconnotation of mandating use.[[5]]\u00a0 Moreover, other standards in section1910.94(d)(9), the section concerning personal protection at open surface tanks, show thatterms other than \”provide\” were employed when their drafters intended to imposeupon employers an obligation to ensure the use of protective equipment.\u00a0 Section1910.94(d)(9)(v) states that employees \”shall be required to wear\” goggles orface shields, and section 1910.94(d)(9)(vi) declares that employees \”shall berequired to wear\” adequate respirators in certain emergencies.\u00a0 By contrast, thestandards cited in this case, as well as sections 1910.94(d)(9)(ii) (foot protection),(ix) (washing facilities), and (X) (locker space), all contain the words \”shall beprovided.\”\u00a0 The Secretary could have promulgated a standard imposing a userequirement as suggested by the Second Circuit in a case involving a similarstandard,[[6]] but he has not. Instead he has chosen to rely solely on a consensusstandard of the American National Standards Institute (\”ANSI\”) (see 29 C.F.R.? 1910.99 (source of standards), which distinguishes between equipment the employer needonly provide and equipment which the employer must both provide and require to be used.\u00a0The Commission, as an adjudicatory body, lacks authority to rewrite the standardsand may not impose on them a meaning that would deprive employers of fair notice of theconduct required or prohibited.\u00a0 See Diamond Roofing Co. v. OSHRC, 528F.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 OSHC1971, 1973-74, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97, 1984).[[7]]\u00a0 Finally,we disagree with the judge’s heavy reliance on section 1910.94 (d)(9)(i), the generalinstruction standard.\u00a0 The language of that standard offers no basis for holding thatthe word \”provide\” was not used in its ordinary sense.\u00a0 In stating thatemployees \”must\” be \”instructed\” in \”personal protection . . .applicable to [open surface tank] hazards,\” the standard does not suggest thatemployers must require the wearing of the personal protection about which employees areinstructed.We therefore conclude that sections 1910.94 (d)(9)(iii) and (iv), that state thatemployers shall \”provide\” gloves and aprons, require only that that protectiveequipment must be made available.Having concluded that the cited standards require no more than that gloves and aprons beprovided, we must consider whether P & W satisfied that requirement.\u00a0 Gloves andaprons were kept in cribs at different locations in the building.\u00a0 The Secretary putforth no evidence that gloves and aprons were not available at the cribs other than theone nearest the ECM Department.\u00a0 Indeed, the Secretary’s counsel focused hisquestioning more on the use of the gloves and aprons than on their availability.\u00a0This accorded with the testimony of the Supervisor of Industrial Hygiene at OSHAthat the citation would not have been issued if P & W had required the use of glovesand aprons.\u00a0 Moreover, it was P & W’s counsel who elicited the only testimonyregarding the availability of gloves and aprons at the other cribs.It was established that employees could obtain gloves and aprons from the crib bycompleting a voucher and presenting it to the crib attendant.\u00a0 Gloves and aprons wereusually available at the crib nearest the ECM Department, except at very busy times.\u00a0One ECM operator testified that if he ever would have problems getting the equipment fromthe crib nearest the ECM Department, he would report it to his foreman and go to anothercrib for the items.\u00a0 Moreover, another ECM operator testified that a pair of glovesusually could be found lying near the pickling line.\u00a0 Although there was sometestimony by ECM operators that gloves and aprons of insufficient size or thickness toprotect employees had been distributed at the crib, it was not established that suchdistribution was a frequent occurrence or that at those times the crib contained no fullyprotective gloves and aprons for which the insufficient gear could have beenexchanged.\u00a0 We therefore conclude that the Secretary failed to prove that P & Wdid not provide gloves and aprons to its employees working at the pickling line, and wevacate items 1C and 1D.Item 1E:\u00a0 29 C.F.R. ? 1910.94(d)(9)(v), Alleged Failure to Require the Wearing ofGogglesThe Secretary contends in citation item 1E that P & W committed a violation of29 C.F.R. ? 1910.94(d)(9)(v) because it did not require employees to wear goggles or faceshields at the pickling line.\u00a0 The standard provides:? 1910.94\u00a0 Ventilation. (d) Open surface tanks–(9) Personal protection.(v) Whenever there is a danger of splashing, for example, when additions are mademanually to the tanks, or when acids and chemicals are removed from the tanks, theemployees so engaged shall be required to wear either tightfitting chemical goggles or aneffective face shield.\u00a0 See ? 1910.133.Some ECM operators and a foreman did not generally wear goggles or faceshields.\u00a0 However, the standard requires that employees be required to wear gogglesor face shields only when there is a \”danger of splashing.\”\u00a0 ECM operatorLuman testified that he had seen acid splash out from open surface tanks due to the forceexerted by parts swinging down into the tanks.\u00a0 He also stated that he had never hadacid splash in his eyes.\u00a0 However, he testified, \”A lot of times you’d lift [apart] up and you thought you had it right. That you had judged the part.\u00a0 And yet itwould come down.\”\u00a0 As a result, acid splashed on Luman’s \”upper arm\”while he was wearing the longest gloves that P & W provided, which were 18 inches longand covered about three quarters of Luman’s arm. ECM operator Schmelke testified that hehad seen acid splash out of the tanks \”on occasion\” as a result of partsswinging as they were lowered into the tanks.\u00a0 Pinney stated that even though he hadnot gotten splashed with acid from the tanks, acid splashing \”can happen\”particularly when parts with pockets, or depressions in their sides, are being lifted fromthe dip tank because the acid remaining in the pockets splashes out.Based on that evidence, Judge Knight found in his decision that splashesendangering the head area had occurred due to parts being dipped and acid pouring from thepockets in parts being lifted out of the tanks.\u00a0 P & W contends that no violationwas proven because the Secretary did not show that any employee working at the tanks wasengaged in a procedure that 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 such a dangerexisted in order to establish a violation.\u00a0 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 prove that there was a \”danger ofsplashing\” under section 1910.94(d)(9)(v) the Secretary must establish that\”there is more than a theoretical possibility that an employee could be splashed witha chemical solution.\”\u00a0 Because the standard uses the term \”danger,\”the Secretary must show that the cited condition presents a significant risk of harm.\u00a0Anoplate Corp., No. 80-4109 (March 4, 1986).\u00a0 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. \u00a0Henotes that the nature of the pickling operation is such that there is more than atheoretical possibility that employees would be splashed with acid from parts hitting thesurface of the tanks, or from acid that had collected in pockets in the parts when theypoured out into the tanks below.\u00a0 Although there was no evidence of an employee beingsplashed in the face at the pickling line, ECM operator Luman testified that \”[a] lotof times\” acid splashes from parts rapidly descending into tanks had occurred as highas his upper arm above his long gloves, which is not that far from his face.\u00a0 It isapparent that the height and direction of splashes are unpredictable. \u00a0Whether asplash could reach an employee’s face, or eyes, depends on such factors as the speed atwhich the part is travelling down into the tank and the distance from the employee.\u00a0 Cf.Vanco Construction, Inc., 82 OSAHRC 71\/A2, 11 BNA OSHC 1058, 1060-61, 1983-84 CCHOSHD ? 26,372, pp. 33,453-54 (No. 79-4945, 1982), aff’d, 723 F.2d 410 (5th Cir.1984) (section 1926.102(a)(1)–potential eye and face injury from concrete chips).\u00a0The record is silent as to how tall ECM operator Luman is, so we assume he is a man ofaverage height.\u00a0 Had the parts descended more quickly and a shorter employee been inLuman’s place when he was splashed on his upper arm, splashing into the face would havebeen likely to have occurred.\u00a0 Moreover, P & W’s medical records show that eleveninstances of acid splashing had occurred in the ECM Department, albeit not all may havebeen at the tanks.\u00a0 Chairman Buckley concludes that, given the unpredictable heightof splashes and the hazardousness of the acids, the record as a whole demonstrates asignificant risk, and hence a danger, of splashing within the meaning of thestandard.\u00a0 Because goggles or face shields were not generally worn, he finds aviolation of the standard.\u00a0 However, in light of the relatively close proximity offlushing facilities, the testimony that prompt washing would prevent permanent damage, andP & W’s low injury rate, Chairman Buckley concludes that there was not a substantialprobability of serious injury and would affirm this citation item as other-than-serious.In Commissioner Rader’s view, the evidence does not show a significant risk ofchemical solution splashing into an employee’s eyes, and thus does not show that aviolation of section 1910.94(d)(9)(v) was committed.\u00a0 There was no evidence that anyemployee working at the pickling line had ever been splashed in the eyes with thehydrochloric or nitric acid solution, or that such a splash had ever occurred at headlevel.\u00a0 In addition, as noted earlier, P & W’s OSHA No. 200 forms for the two andone-half years preceding the inspection showed no reportable injury from acid contact inthe ECM Department.\u00a0 Commissioner Rader therefore concludes that no significant riskof acid splashing into the employees’ eyes was shown, and he would vacate the citationitem.\u00a0 In any 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 becauseof the low injury rate and nearness of flushing facilities.Section 12(f) of the Act, 29 U.S.C. ? 661(e), states that official action can betaken by the Commission with the affirmative votes of two members. \u00a0Accordingly,Chairman Buckley and Commissioner Rader agree to reverse Judge Knight’s decision on thisitem insofar as he characterized it as serious.\u00a0 They agree that any violation wouldbe other-than-serious.\u00a0 They also agree that, taking into consideration the factorsin section 17(j) of the Act, 29 U.S.C. ? 666(i), especially the low gravity of theviolation, no penalty should be assessed.\u00a0 To resolve their impasse on the itemitself and to permit this case to proceed to a final resolution, the members have agreedto affirm the judge’s decision as to the item itself but accord it the precedential valueof an unreviewed judge’s decision. See Life Science Products Co., 77 OSAHRC200\/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 allege violations ofsections 1910.94(d)(9)(i), (iii), and (iv).\u00a0 We also conclude that item 1E should becharacterized as other-than-serious and that no penalty should be assessed. \u00a0 Becauseof an impasse, Judge Knight’s decision affirming item 1E itself becomes a final order ofthe Commission.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APR 18 1986 The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[*]] Commissioner Wall did not participate in this decision.[[1]] We note that P & W offered a 20-hour course on the ECM Department inwhich employees were told what acids were in the tanks at the pickling line and whatprecautions to take when working at the \”hazardous\” line.\u00a0 The ECM coursewas given only when P & W had enough employees to constitute a class; therefore, therewere some P & W employees 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:\u00a0 \”Safety instruction signs shall be used wherethere is a need for general instructions and suggestions relative to safetymeasures.\”\u00a0 The judge vacated that item, concluding that the caution signs onthe acid tanks satisfied that requirement.\u00a0 The Secretary suggests that the warningsign erected in compliance with section 1910.145(c)(3) should not be considered compliancewith section 1910.94(d)(9)(i), lest a redundancy in the standards be created.\u00a0 We donot need to consider that suggestion because we do not rely solely on the first-aidportions of the signs to find that first-aid instructions were 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 at 1401-02, 1976-77 CCH OSHD at p.25,042 (? 1910.28(a)(12) \”only requires that a ladder be provided … If theSecretary had intended to require the use of a ladder, he should have so stated in thestandard.\”); Cam Industries, Inc., 74 OSAHRC 10\/C4, 1 BNA OSHC 1564, 1565 n.2, 1973-74 CCH 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 inlight of ? 1926.28(a)); Truax & Hovey Drywall Corp., 78 OSAHRC 47\/A14, 6 BNAOSHC 1654, 1656 & n. 4, 1978 CCH OSHD ? 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 OSHC 1648,1652-53 & n. 6, 1978 CCH OSHD ? 22,794, p. 27,520 & n. 6 (No. 76-814, 1978) (?1926.451(a)(13) construed as above); Turnbull Millwork Co., 77 OSAHRC 205\/C8, 6 BNAOSHC 1148, 1149, 1977-78 CCH OSHD ? 22,388, p. 26,990 (No. 15047, 1977) (?1910.213(a)(15) requires use of combs or jigs since it requires their provision when sawguards required by 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 light of ? 1926.106(b)’srequirement that life jackets be inspected before and after use).\u00a0 See alsoBorton, Inc., 10 BNA OSHC at 1465 n. 3, 1982 CCH OSHD at p. 32,598 n. 3 (majoritymember relying in addition on related standards requiring \”use\”).[[5]] See Random House Dictionary 1157 (1971); Webster’s Third New InternationalDictionary 1827 (1971).\u00a0 See also Asbestos Textile Co.,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 CCHOSHD at pp. 32,600-03 (Rowland, dissenting).[[6]] In General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976), thecourt stated:If the employer were a guarantor of the employee’s use, a serious question wouldarise as to whether such an interpretation [of ? 1910.133(a)(1)] would exceed thelegislative requirements.\u00a0 See Brennan v. OSHRC and Hendrix, d\/b\/a Alsea Lumber Co.,511 F.2d 1139, 1144-45 (9th Cir. 1975).\u00a0 We do note, however, that if employers areto be held to an obligation requiring something more than instructing employees to useprotective equipment but something less than guaranteeing use, the promulgation of astandard fleshing out the employer’s obligation would provide useful guidance toemployers, the Commission, and reviewing courts.[[7]] Indeed, the Secretary has shown in his own rulemaking that he understandsthere to be a distinction between \”provide\” and \”use.\” \u00a0 Oneprovision of the asbestos standard, section 1910.1001(d)(3), requires the employer to\”provide, and require the use of, special clothing,\” while other provisions,sections 1910.1001(d)(4)(i) and (ii), require only that the employer \”provide\”change rooms and lockers.\u00a0 Provisions of the relatively recent ethylene oxidestandard, section 1910.1047(g)(1) and (4), require the employer to \”provide\”respirators and protective clothing and \”ensure\” that they are used, whilesubsections (i)(1)(i)(B) and (i)(2)(i) require that the employer only \”make availablemedical examinations.\”\u00a0 One provision of the relatively new hearing conservationstandard, section 1910.95(i)(1), states that employers \”shall make hearing protectorsavailable\” when noise is 85 or more decibels, while another provision, subsection(i)(2), states that the employer \”shall ensure that hearing protectors are worn\”in specific circumstances.\u00a0 The Secretary also discussed the reasons for thedifference in language.\u00a0 See 46 Fed. Reg. 42622, 42629 (1981) and 46 Fed. Reg. 4078,4111, 4151-2 (1981).”