“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2326 STEARNS-ROGER INCORPORATED, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 31, 1979DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Dee Blythe is before the Commission forreview pursuant to ? 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 [hereinafter ?the Act?].??????????? Respondentis a large general construction firm that was in the process of building anaddition to the existing power plant facilities of the Public Service Companyof New Mexico, located in Fruitland, New Mexico. On April 28, 1976, arepresentative of the Department of Labor inspected the worksite to ascertainrespondent?s compliance with the provisions of the Act. Thirteen citations wereissued as a result of the inspection, accompanied by a total proposed penaltyof $7,345. A majority of the items in all of the citations were contested. Atthe hearing, the parties entered into a partial settlement agreement andproceeded to try the remaining items. Judge Blythe issued a decision on January6, 1977, as to the merits of the issues in contest.[2] Respondent subsequentlypetitioned for review of four items that the judge affirmed on the merits andof the judge?s characterization of three items as being repeated violations.IAlleged non-serious violation of 29 C.F.R.? 1926.102(a)(1)[3]??????????? Thecompliance officer observed an employee using a portable hand power saw to cutvarious pieces of lumber. The employee was wearing what the compliance officerdescribed as ?street glasses? and what the employee acknowledged were notindustrial safety glasses. The compliance officer thought this situationexposed the worker to the hazard of an eye injury from flying saw dust, frommetal particles should the saw blade strike and chip a nail, or from pieces ofthe saw blade itself should the blade break during the operation of theequipment.??????????? Respondent?ssafety supervisor testified that a number of operations giving rise to eyehazards existed on the jobsite, and that the employer provided various types ofeye protective equipment to its employees for use during these hazardousoperations. Although he did not consider this particular operation to be highlydangerous, it was his opinion that safety glasses should be worn during theoperation of the saw. The safety supervisor testified that, when an employeegot sawdust in his eye, the irritant was generally washed out in a matter ofminutes and the employee immediately returned to work. The supervisor alsostated that he had never seen a saw blade break, and he did not think it waspossible for the saw blade to contact a nail because the company either usednew lumber or removed any nails from used lumber that it intended to re-use.??????????? JudgeBlythe concluded that respondent violated the standard as alleged. He notedthat the standard was directed at protecting against potential injury, andstated, ?a power-driven saw may present this potential even without evidence thatthe operator was pelted by flying particles.???????????? Onreview, respondent disputes the judge?s finding that the operation of the sawpresented the potential for eye injury. We conclude that the judge properlyresolved this question. The record establishes prior instances in which sawdusthad become lodged in employees? eyes. While on these occasions the sawdust wassuccessfully removed without damage to the employee?s eye, we note that the eyeis an especially delicate organ and that any foreign material in the eyepresents the potential for injury.[4] Indeed, while disclaimingthe danger presented by sawdust in the eye, respondent?s safety supervisor alsostated that most eye injuries on the job resulted from ?blowing dust anddebris due to wind.? (Emphasis added.) Thus, respondent?s own experiencedemonstrates that material similar to sawdust can cause injury to the eye.Moreover, even though it was respondent?s policy to remove all nails from usedlumber, the possibility of a hidden or missed nail cannot be entirelyeliminated, nor can the chance of a saw blade breaking during operation.Finally, the fact that respondent?s own safety supervisor thought that safetyglasses should be worn during the sawing operation is further evidence of thepotential for injury.??????????? Respondentalso contends that the Secretary failed to prove the glasses being worn by theemployee did not meet the requirements of the ANSI Z87.1?1968 standard that isincorporated by reference at 29 C.F.R. ? 1926.102(a)(2)[5] because the Secretary failedto prove the type of eye protection that the ANSI standard requires whenemployees are sawing wood. We reject the argument. Section 6.3.1 of the ANSIstandard provides that all lenses used in protective eyewear must be of theimpact-resisting type. Since the glasses worn by the employee were described bythe compliance officer as ?street glasses,? we infer that the lenses were notimpact-resisting. Moreover, section 6.1.2.1 of the ANSI standard provides asfollows: ?Safety spectacles require frames. Therefore, combinations ofstreet-wear frames with safety lenses meeting this standard are definitelynot in compliance.? (Emphasis in original.) Thus, we conclude that theframes, as well as the lenses, of the glasses worn by the employee failed tocomply with ANSI Z87.1. Finally, we note that 29 C.F.R. ? 1926.102 itselfclearly contemplates that ordinary eyeglasses cannot be considered adequate protection,for ? 1926.102(a)(3)[6] implicitly prohibits theuse of spectacles having only ordinary corrective lenses for eye protection. Weconclude that the judge properly affirmed this item.IIAlleged non-serious violation of 29 C.F.R.? 1926.500(b)(8)[7]??????????? Atthe time of inspection, respondent was in the process of installing thesupports for the floor deck that was to cover the top of the precipitator (apiece of equipment that is an integral part of the energy-producing system inthe power plant). While the testimony of record does not adequately describethe physical structure in question, the photographic evidence clearlyillustrates the worksites. The supports that were in place were flat pieces ofsteel approximately three feet wide and ten to twelve feet long. Every supportpiece contained two holes, each nearly eleven inches in diameter, that weredesigned to accommodate the placement of the posts of a high voltage frame thatwould protrude from underneath the flooring. Four support planks were situatedend-to-end to span the width of the precipitator top and the rows were alignedin a parallel manner approximately fifteen feet apart. Employees walked uponthe supports containing the holes. The citation alleged that these floor holes,into which persons could accidentally walk, were not properly guarded by theuse of guardrails or standard floor hole covers. The judge affirmed the item.He concluded that a hole eleven inches in diameter was sufficiently large toadmit an employee?s foot.[8]??????????? Respondentcontends on review that size alone does not determine whether a floor hold isone into which persons can accidentally walk; the location of the hole mustalso be considered. Respondent contends that the holes in issue were in alocation where employees could not accidentally walk into them. Respondent doesnot dispute that employees walked on the three-foot wide supports containingthe holes, but contends that the relative narrowness of the supports wouldrequire an employee to look precisely where he was going, thereby negating thepossibility that an employee would place a foot in one of the holes. Indeed,respondent contends that covering the holes would present more of a trippinghazard to the employees since they would not ?observe their footsteps ascarefully? if the holes were covered.??????????? Respondent?sarguments amount to the assertion that the floor holes need not be coveredbecause they were in a location where employees should have watched where theyare walking. This argument clearly lacks merit as a defense to noncompliancewith the cited standard. The language of the standard is direct; it requires anemployer to guard floor holes into which persons can accidentally walk. Thereis no doubt that the floor holes existed, and that they were not guarded. TheSecretary has established a prima facie violation. The standard, by its veryterms, contemplates a hazard when its terms are not met. Vecco ConcreteConstruction, Inc., 77 OSAHRC 183\/A2, 5 BNA OSHC 1960, 1976?77 CCH OSHD ? 22,247(No. 15579, 1977). See also Van Raalte Company, 76 OSAHRC 48\/B8, 4 BNAOSHC 1151, 1975?76 CCH OSHD ? 20, 633 (No. 5007, 1976). We also note that thestandard is directed toward accidental situations when employees are notlooking precisely where they are walking. Moreover, this Commission hasrepeatedly recognized that an employer cannot rely upon human behavior toinsure a safe working environment for its employees. Akron Brick and Block Company,76 OSAHRC 2\/E2, 3 BNA OSHC 1876, 1975?76 CCH OSHD ? 20, 302 (No. 4895, 1976).??????????? Wealso reject respondent?s argument that the citation should be vacated because coveringthe holes would present a tripping hazard. Respondent?s assertion that coveringthe floor holes would increase the tripping hazard is pure speculation. Thereis nothing in the record to suggest that employees will be any less carefulwhen walking on a three foot wide structure containing holes that are coveredthan one with holes that are not covered. Finally, we note that respondent hasshown that covers would necessarily present a tripping hazard. Accordingly, weaffirm the judge?s finding of a violation.IIIAlleged Violation of 29 C.F.R. ?1926.350(a)(1)[9]??????????? Thisitem alleged that respondent failed to use valve protection caps on compressedgas cylinders not in use or connected for use. The eight cylinders which werethe subject of the citation were located within the partially-constructedstructure during the inspection. The tanks were positioned throughout thestructure and used intermittently. Employees would hook up and use the tanksduring the workday for various intervals. Hoses, regulators, and torches wereremoved by each welder to protect his own equipment from pilferage. When thegas supply in the tanks was exhausted, the tanks were rotated back to thestorage area and replaced by a full cylinder of gas. Respondent stored both therecently-filled and empty cylinders in a storage rack built expressly for thatpurpose and maintained at least 100 feet from the west end of the plant.??????????? Respondentargues that the cited standard only applies to cylinders that are beingtransported, moved, or stored, and that its cylinders were in intermittent use.Although the judge noted that the issue in the case is whether the cylinderswere stored, he made no finding on this question. Rather he found the violationto exist, stating that there was no practical reason for not replacing thevalve protection caps when the cylinders were disconnected and not in actualuse.??????????? Weagree with respondent that the standard applies only to transporting, moving,and storing compressed gas cylinders. The record clearly reflects that theeight cylinders in question were being neither transported nor moved. Thequestion then becomes whether the cylinders were stored. This issue was firstaddressed in United Engineers & Constructors, Inc., 75 OSAHRC 69\/A2,3 BNA OSHC 1313, 1974?75 CCH OSHD ? 19,780 (No. 2414, 1975). In that case, anemployer was cited for an alleged violation of 29 C.F.R. ?1910.252(a)(2)(iv)(c)[10] for failure to separateoxygen and fuel-gas cylinders that were ?in storage.? Those cylinders werelocated throughout the worksite and the hoses and regulators had been removed.The employer also had a designated area for the storage of full cylinders andregularly returned empty cylinders to that area. The Commission affirmed thejudge?s ruling that the tanks on the jobsite were located in an area whereburning would be done on an intermittent basis and therefore were not ?instorage.? The citation was vacated. The same issue recently arose in GrossmanSteel & Aluminum Corporation, 78 OSAHRC 85\/B5, 6 BNA OSHC 2020, 1978CCH OSHD ?23,097 (No. 76?2834, 1978). The case involved an alleged violation ofthe same standard as was involved in the United Engineers case. Again, thecitation was vacated based upon a finding that the cylinders were not instorage but were available for intermittent use by employees in the locationcited. The facts here are not distinguishable from the facts in the cases citedabove and the citation item is vacated.IVAlleged repeat violation of 29 C.F.R. ?1926.350(f)(7)[11]??????????? Thefinal item in issue alleges that welding cables and hoses were not kept clearof passageways, ladders, and stairs in five separate locations throughout thework area.??????????? Evidencethat the cited condition existed is undisputed, and is confirmed byphotographic evidence. No fewer than ten cables are pictured strewn about ajunction box at one point. In one specific area, a cable is laying on apassageway floor while five or six other cables are clearly intertwined throughthe network of railings that enclose the walkway. The latter-mentioned cablesare neatly placed and apparently conform to good housekeeping practices asrequired by the standard.??????????? Respondentargued before the judge that there was no ?practical alternative? to locatinghoses and cables where they were because the worksite consisted largely ofcatwalks, stairs, and other open steel. The judge rejected this contention,stating: ?From the photographs, however, it is apparent that in most, if notall, instances, the hoses and cables could have been kept off the floor by variousmeans. Instead, they frequently were strung around on the floors likespaghetti.???????????? Onreview, respondent makes the same argument as it made before the judge. Itcontends that it established there was no practical alternative to its mannerof locating the hoses and cables, and that the Secretary failed to presentcontradictory evidence.??????????? TheCommission has sustained the affirmative defense of impossibility of compliancewhere an employer establishes that compliance with the requirements of thecited standard would be functionally impossible and alternative means ofemployee protection are unavailable. M. J. Lee Construction Company, 79OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ?\u00a023,330 (No. 15094, 1979).The record does not establish this defense. The photographic exhibitsdemonstrate some instances in which hoses and cables were arranged so as tocomply with the standard, and, as the judge observed, it is apparent thesetechniques could have been more widely used.VDetermination of violations as ?repeated???????????? Thefinal issue for determination in this case is whether the violations of 29C.F.R. ??\u00a01926.25(a)[12] and 1926.350(f)(7) arerepeated as alleged and subsequently affirmed by the judge.[13] An inspection on February27, 1973, evidenced a violation of ? 1926.25(a). An inspection in March 1972resulted in a citation for violation of ? 1926.350(f)(7). Neither of thesecitations was contested, the orders became final, and proposed penalties werepaid. Subsequent inspections of respondent?s worksite were conducted in January1975 and September 1975. No citations for violation of ?? 1926.25(a) or1926.350(f)(7) were issued as a result of these inspections. The citationsissued in March 1972 and February 1973 were the result of inspections of Unit#2 of the project. The instant citations were the result of an inspection ofUnit #1.??????????? Atthe time this case was tried, the Commission had not yet developed definitiveguidelines for determining under what circumstances a violation was repeated.The parties here have vigorously argued the question.[14] It is not necessary,however, to discuss the matter in detail, for the Commission has recentlyresolved the issue. Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061,1979 CCH OSHD ? 23,294 (No. 16183, 1979). In Potlatch, we held that ?[a]violation is repeated under section 17(a) of the Act if, at the time of thealleged repeated violation, there was a Commission final order against the sameemployer for a substantially similar violation.? Under this analysis, proof thatan employer has committed a prior violation of the same standard constitutes aprima facie showing by the Secretary of substantially similar violations. Theemployer may rebut this showing by offering evidence that the violationsoccurred under disparate conditions or involved different hazards. Factors suchas the employer?s attitude, the commonality of supervisory control over theviolative conditions, the geographic proximity of the violations, the timelapse between violations, and the number of prior violations are relevant onlyto determining an appropriate penalty. FMC Corporation, 79 OSAHRC ??, 7BNA OSHC 1419, 1979 CCH OSHD ? 23,631 (No. 12311, 1979).??????????? Inthis case, respondent argues that the lack of commonality of supervisorycontrol over the conditions presented in the prior violations and theconditions presented here plus the length of time that expired between the twoviolations are an adequate defense to the charge that the violation here isrepeated. As stated above, these factors are relevant only in the Commission?sassessment of penalties, not in the determination of whether a violation isrepeated under the Commission?s Potlatch test.??????????? Theviolations of ?? 1926.25(a) and 1926.350(f)(7) both involved poor housekeeping.It is obvious that the previous violations of these same standards involvedsimilar hazards, and that there are no possible dissimilarities ofcircumstances that the respondent could prove that would rebut the Secretary?sprima facie case.[15] Accordingly, we concludethat the violations were repeated in nature.VIPenalties??????????? Thejudge assessed penalties of $200 for the nonserious violation of ?1926.500(b)(8), and $0 for the nonserious violation of ? 1926.102(a)(1). Heassessed penalties of $85 and $100 for the repeated violations of ?? 1926.25(a)and 1926.350(f)(7) respectively. In light of respondent?s size, good faith,prior history, and the gravity of the violations, we conclude that the judge?spenalty assessments are appropriate.VIIConclusion??????????? Thejudge?s decision is modified to vacate the alleged violation of 29 C.F.R. ?\u00a01926.350(a)(1).As so modified, the judge?s decision is affirmed.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: OCT 31, 1979?BARNAKO, Commissioner, Concurring:??????????? Iagree with my colleagues for the reasons they state that Respondent violatedthe standards at 29 C.F.R. ?? 1926.102(a)(1), 1926.500(b)(8), and1926.350(f)(7) but did not violate ? 1926.350(a)(1). I also conclude that theviolations of ?? 1926.25(a) and 350(f)(7) were repeated in nature, but I do sofor reasons substantially different from those of my colleagues.??????????? Mycolleagues properly conclude that evidence of at least two prior violations ofthe same standard is not a prerequisite to finding a violation to be repeatedbut that a violation, in order to be found repeated, must be substantiallysimilar to a prior violation established by a final order of the Commission.However, as expressed in my separate opinion in Potlatch Corp., 79 OSAHRC6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294 (No. 16183, 1979) (concurring anddissenting opinion), I would not presume that a violation of the same standardfulfills the substantial similarity requirement and shift the burden to theemployer to prove otherwise. Instead I would look to whether the secondviolation is of such a nature that the employer, as a result of the noticeprovided by the first citation, should have taken steps to eliminate from itsworkplace the condition alleged to constitute the repeated violation. Wheresuch notice is not apparent from the face of the citation, I would require theSecretary to prove substantial similarity. Where such a showing has been made,I would permit the employer to defend by proving that it took reasonable, goodfaith steps after entry of a prior final order to prevent the recurrence of asubstantially similar violation.??????????? Inthis case, the Secretary established that the prior citation for violation of29 C.F.R. ?\u00a01926.25(a) alleged poor housekeeping in that a steel chokerwas in a walkway. The citation now in issue alleges a violation of thatstandard in that conduit, metal channel, and ?miscellaneous material? was on afloor in a work area. Similarly, the prior citation for violation of ?1926.350(f)(7) was shown to allege oxygen and acetylene rubber hose lying onthe floor and not kept clear of passageways, ladders, and stairs in threeareas; the citation now before us charges that welding hoses and cables werenot kept clear of passageways, ladders, and stairs in five locations. It isobvious from the face of the previous citations that the prior violations of ??\u00a01926.25(a)and 1926.350(f)(7) involved conditions substantially similar to those on whichthe subsequent violations of the same standards are based. Moreover, the hazardand means of abatement are identical in each instance. See FMC Corp., 79OSAHRC ___, 7 BNA OSHC 1419, 1423, 1979 CCH OSHD ? 23,631 at 28,658 (No. 12311,1979) (concurring and dissenting opinion). For these reasons, I agree with themajority that the Secretary established a substantial similarity between theprevious violations and those now before us.??????????? As mycolleagues note, this case was tried and decided prior to the Commissiondecision in Potlatch. Therefore, Respondent did not know at the hearing that itcould defend by proving it took reasonable good faith steps after the entry ofa prior final order to prevent the recurrence of a substantially similarviolation. As the majority properly indicate, in situations where there has beena significant intervening change in the law between the hearing and ourdecision on review of the case, our usual practice is to allow the parties anopportunity to present additional evidence relevant to any new defense or legaltheory. See Triple ?A? South, Inc., 79 OSAHRC ___, 7 BNA OSHC 1352, 1979CCH OSHD ?23,555 (No. 15908, 1979) (concurring and dissenting opinion). In thecircumstances of this case, however, I would only afford Respondent such anopportunity with respect to the citation for repeated violation of ?1926.25(a).??????????? Withrespect to the violation of ? 1926.25(a), respondent?s safety supervisortestified that the conditions on which the ? 1926.25(a) violation is basedoccurred in an area where employees of the electrical subcontractor werefabricating and using conduit. He further testified that subcontractors wereresponsible for proper housekeeping in their work areas, although Respondentmaintained supervision over subcontractors with respect to safety matters. Ifhe observed a subcontractor in violation of a safety regulation, he wouldinform its supervisors and ask that the violation be corrected. Respondent alsoprovided trash barrels for use by subcontractors.??????????? Thisevidence does not establish the good faith defense I set forth in Potlatch.Rather, Respondent?s evidence regarding the subcontractor?s responsibility forthe conditions as well as Respondent?s own evidence regarding its efforts toinsure compliance by subcontractors with safety regulations tends to establishthat Respondent did not make a good faith effort to obtain compliance with thehousekeeping standard. Nevertheless, Respondent may have additional evidencewith respect to its efforts to obtain subcontractor compliance after issuanceof the first citation for violation of ? 1926.25(a). Accordingly, I would entera conditional order, finding Respondent in repeated violation of ? 1926.25(a)unless within 10 days from the issuance of this decision Respondent notifiesthe Executive Secretary of the Commission that it wishes to adduce additionalevidence with respect to any efforts it took after entry of the prior finalorder to prevent the recurrence of the housekeeping violation.??????????? As tothe violation of ? 1926.350(f)(7), Respondent presented evidence in support ofits contention that the hoses and cables could not have been positioned in anydifferent manner. In its brief before us on review, Respondent specificallyargues that no practical alternative existed for the location of the hoses andcables. Since Respondent freely chose, in effect, to defend on the basis thatit could not have taken any further measures to comply with the standard, aremand to allow Respondent the opportunity to show precisely the contrary, thatit could and did attempt to prevent the recurrence of the violation, would beinappropriate.[16]I would therefore conclude that Respondent?s violation of ? 1926.350(f)(7) wasrepeated in nature.??????????? Accordingly,I would enter a conditional order affirming the citation for repeated violationof ? 1926.25(a) unless within 10 days Respondent requests the opportunity topresent additional evidence as to the repeated nature of that violation. Iwould unconditionally affirm the citation for repeated violation of ?1926.350(f)(7).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2326 STEARNS-ROGER INCORPORATED, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 6, 1977DECISIONAND ORDERAppearances:James F. Gruben, Esq., of Dallas, Texas,for Complainant.\u00a0John L. Reiter, Esq., of Glendale,Colorado, for Respondent.?STATEMENT OF THE CASEBLYTHE, Judge.??????????? Thisis a proceeding brought before the Occupational Safety and Health ReviewCommission (?the Commission?) pursuant to ? 10 of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651 et seq. (?the Act?) contesting citationsissued by the complainant, the Secretary of Labor (?the Secretary?) to therespondent, Stearns-Roger, Inc., under the authority vested in the Secretary by? 9(a) of the Act.??????????? Asthe result of an inspection conducted from March 22 through March 26, 1976, bythe Secretary?s compliance officer of the San Juan Power Plant at Fruitland,New Mexico, on which respondent was the general contractor, 13 citations wereissued to respondent April 28, 1976, alleging nonserious, serious, and repeatedviolations of ? 5(a)(2) of the Act by respondent?s failing to comply with thevarious construction standards promulgated by the Secretary. Notification ofproposed penalty was issued April 28, 1976, proposing penalties aggregating$7,345.00. By letter dated May 18, 1976, respondent contested most of the itemsof the citations, although in some instances only the proposed penalty wascontested. A complaint and answer subsequently were filed with the Commission.A hearing was convened September 30 and October 1, 1976, in Farmington, NewMexico. Both parties have filed post hearing briefs, and respondent hassubmitted proposed findings of fact and conclusions of law. No affectedemployee or representative of an affected employee has participated as a partyin this proceeding although a union representative for the boiler maker craft,Willie Gene Graham, testified at the hearing for respondent. The matter is nowripe for decision.JURISDICTION AND ISSUES??????????? Thejurisdictional allegations of the complaint were not answered by respondent andare deemed admitted under Rule 33(b)(2) of the Commission?s Rules of Procedure.??????????? Atthe hearing the parties stipulated to a partial settlement of the issues. Thisstipulation, with some modifications, was reduced to writing after the hearing.This partial settlement is approved.[17]??????????? Theissues remaining to be determined are:??????????? (a)Whether respondent on March 22 26, 1976, was in nonserious violation of thefollowing standards, and, if so, the appropriate penalty therefor:29 CFR Part 1926:? ? 25(b) [Item 1, citations 1[18]? 102(a)(1) [Item 3, citation 12? 150(a)(1) [Item 4A, citation 12? 250(a)(3) [Item 12, citation 12? 350(f)(6) [Item 18, citation 1]? 350(j) [Item 20, citation 1] ? 500(b)(8)[Item 31, citation 12??????????? (b)The appropriate penalty for respondent?s admitted nonserious violations of 29CFR 1926.303(c)(3) [Items 16, citation 1].??????????? (c)Whether on said dates respondent was in serious violation of 29 CFR 1926.28(a),and, if so, the appropriate penalty therefor [citation].??????????? (d)Whether on said dates respondent was in repeated violation of the followingstandards, and, if so, the appropriate penalties therefor:29 CFR Part 1926? 25(a) [Citation 6]? 150(c)(1)(viii) [Citation 7]? 350(a)(1) [Citation 8]? 350(f)(7) [Citation 10]? 500(b)(1) [Citation 12]??????????? Abatementdates were stipulated by the parties to be issues, but no evidence wasintroduced on them and the parties do not mention them in their briefs.Therefore, these issues are deemed abandoned.DISCUSSION AND OPINION??????????? 1.General??????????? Therespondent, Stearns-Roger, Incorporated, at the time of the inspection wasconstructing an addition to an existing facility, known as the San Juan PowerPlant, for the Public Service Company of New Mexico. Power generated in thesefacilities is transmitted by high voltage lines to industrial and commercialcustomers. Respondent has offices in Farmington, New Mexico, and Denver,Colorado.??????????? Theunit involved in this inspection was No. 1, but Unit No. 2 was constructedearlier by another corporate entity, Stearns-Roger Corporation. The citationsupon which the Secretary relies to establish repeated violations were issued tothe latter corporation. The exact relationship of Stearns-Roger Corporation andStearns-Roger, Incorporated, was not established. Roger A. Dalke, Respondent?ssafety supervisor on Unit No. 1, testified that they were affiliated, and thatone is the parent of the other, although he was not certain of therelationship:Q. [By Mr. Gruben] Mr. Dalke, isn?t it afact that Stearns-Roger Corporation reorganized and changed its name toStearns-Roger, Inc. about 1973??A. That?s not totally my understanding ofthe situation.As I understand, Stearns-Roger Corporationdoes still exist as an affiliate or maybe a parent corporation, andStearns-Roger, Inc., is an affiliate.?(Tr. 267). The two corporations had the sameFarmington and Denver addresses, and sometimes the stationery of onecorporation was used to correspond with the Secretary about citations issued tothe other (Tr. 267 276). They had different separate supervisory staffs,including safety supervisors, on the two units of the power plant. Anotheraffiliated corporation, Stearns-Roger Electrical Contractors, Inc., was asubcontractor on Unit No. 1 (Tr. 276). ??????????? Althoughthe interlocking corporate relationships were not established as well as theymight have been, it appears to me that they were under common control andshould be treated as one entity for purposes of determining whether any of theviolations were repeated, insofar as they involved separate units of the samepower plant. To hold otherwise would be to allow form to triumph over substanceand to invite thwarting the provisions of ? 17(a) of the Act regarding repeatedviolations by frequent changes in corporate entities.??????????? Thecriteria for assessing civil penalties, under ? 17(j) of the Act, include thesize of the employer?s business, its good faith and its history of previousviolations. Gravity of the violation, another criterion, will be discussedunder each item where a violation is found.??????????? Respondent?ssize, although not fully established, obviously is large; it had 800 employeeson this job. Its history of previous violations is not extensive, consideringthe magnitude of its operations. Its good faith is not questioned. An elementof good faith is its safety program, which was very good. At San Juan Unit No.1 respondent employed two safety engineers and two nurses, provided a safetyand first aid trailer, and had two ambulances available. Its safety programprovided regular instruction of supervisory personnel and workers.??????????? 2.The 29 CFR 1926.25(b) citation.??????????? Item1 of citation 1 alleges nonserious violation of 29 CFR 1926.25(b), for which nopenalty is proposed, as follows:A large amount of combustible scrap hadaccumulated on the roof of the tripper building.???????????? Thecited regulation provides, in pertinent part:Combustible scrap and debris shall beremoved at regular intervals during the course of construction. . . .???????????? Respondentdoes not contend that there was not an accumulation of combustible scrap at thelocation alleged. Rather, it contends that there was no construction activityin that vicinity.??????????? Thecompliance officer, Rodney G. Prows, testified that a large amount of cardboardboxes and plastic sheeting was accumulated on the roof of the tripper building,which was part of the access route of three employees working on the roof ofthe deaerator building (Tr. 23 26; Exhibit C 8).??????????? Respondent?ssafety supervisor, Roger A. Dalke, testified that the debris had been left by aroofing subcontractor, that the nearest construction work was 50 feet south ofand 10 or 12 feet higher than the trash accumulation, and that the three menworking there needed not come closer than 30 feet to the trash in gainingaccess to their workplace (Tr. 152).??????????? Respondent,it its supervisory capacity as general contractor, was as responsible as theroofing subcontractor for the accumulation of combustible scrap and debris. Secretaryv. Grossman Steel & Aluminum Corp., No. 12,775, May 12, 1976, 1975 1976CCH OSHD ?\u00a020,691.??????????? Employeeaccess to a zone of danger, such as going through it in ?their normal means ofingress-egress to their assigned workplaces,? is sufficient proof of exposure. Secretaryv. Gilles & Cotting, Inc., No. 504, February 20, 1976, 1975 1976 CCHOSHD ? 20,448, on remand from 504 F.2d 1255 (4th Cir. 1974). Thecompliance officer did not say how close to the trash the normal access routewas; the safety supervisor said it was 30 feet, which testimony isuncontradicted and in fact is supported by Exhibit C 8, a photograph whichshows the trash off to one side of the roof. Since there was no extreme firedanger, an open-air route 30 feet from the trash accumulation posed nosubstantial threat to employees passing by. The secretary has failed toshoulder his burden of proof of this item.??????????? 3.The 29 CFR 1926.102(a)(1) citation.??????????? Item3 of citation 1 alleges a non-serious violation of 29 CFR 1926.102(a)(1), forwhich no penalty was proposed, as follows:Carpenter using portable handsaw on eastside of saw shed was not wearing eye or face protective equipment meeting ANSI287.1[19] requirements.???????????? Thecited regulation provides:Employees shall be provided with eye andface protection equipment when machines or operations present potential eye orface injury from physical, chemical, or radiation agents.???????????? Subparagraph(2) of this standard further provides:Eye and face protection equipment requiredby this Part shall meet the requirements specified in American NationalStandards Institute, Z87.1 1968, Practice for Occupational and Educational Eyeand Face Protection.???????????? Complainanthas not specified, either in the citation or at the hearing, the precise ANSIstandards respondent is accused of violating.??????????? TheANSI standard contains detailed specifications for goggles and safetyspectacles, but it is unnecessary to pinpoint the applicable provisionsbecause, the evidence shows, no protective eye equipment was worn by theemployee.??????????? ComplianceOfficer Prows testified that the employee was sawing wood with a portableelectric saw with a circular blade, and that there was a hazard to his eyesfrom sawdust and possibly metallic particles if he should saw into a nail. Theemployee was wearing glasses which he admitted were not industrial safetyglasses and which Prows characterized as street glasses (Tr. 27, 28, 55, 56.).??????????? Respondentcontends that the evidence is insufficient to establish (1) that the glassesdid not meet ANSI standards or (2) that the operation of the saw presented apotential eye or face injury, citing Secretary v. Tobacco River Lumber Co.,17 OSAHRC 235 (1975). On the first point, it notes that Prows relied on theemployee?s statement that his glasses were not industrial safety glasses andthat there is nothing in the record to show that he knew what industrial safetyglasses were. However, safety Supervisor Dalke supplied this proof when hetestified about respondent?s eye safety program, including indoctrination ofnew employees and the supplying of a wide range of eye protection equipment[20], which he estimated wasworn by half the 800 employees in the course of a day (Tr. 153, 154). He alsoadmitted that a few employees got sawdust in their eyes but said it had neverbeen necessary to send one to a doctor because of sawdust, which generallycould be washed out of the eye at the jobsite (Tr. 155). Further, he conceded,?I would say that as a general rule they [safety glasses] should be worn inthat particular situation? (which, however, he didn?t consider highlyhazardous) (Tr. 180).??????????? In TobaccoRiver, supra, the Secretary first advanced, and then retreated from, aposition that the very fact that power-driven saws were used established a?reasonable probability? of injury from sawdust. Apparently approving thelatter position, the Commission vacated a citation under ? 1910.133(a)(1), thegeneral industry counterpart of ? 1926.102(a)(1). However, the former requiresprotective equipment where there is ?reasonable probability of injury? whereasthe latter requires it ?where machines or operations present potential eyeinjury.? ?Reasonable probability,? it seems to me, requires a higher degree ofproof than ?potential? injury. Additionally, ? 1926.102(a)(1) requiresprotective equipment when a potential injury is presented by a ?machine oroperation,? hence a power-driven saw may present this potential even withoutevidence that the operator was pelted by flying particles.??????????? I findthe item proved. No penalty was proposed, and none is assessed.??????????? 4.The 29 CFR 1926.150(a)(1) citation.??????????? Item4A of citation 1 alleges a non-serious violation of 29 CFR 1926.150(a)(1), forwhich no penalty is proposed, as follows:Fire extinguishers adequate for the hazardwere not provided in the cars on #24 and #3 personnel hoists where LPG gascontainers were located.???????????? Thecited regulation providesThe employer shall be responsible for thedevelopment of a fire protection program to be followed throughout all phasesof the construction and demolition work, and he shall provide for thefirefighting equipment as specified in this subpart. As fire hazards occur,there shall be no delay in providing the necessary equipment.???????????? SubpartF further provides, in 29 CFR 1926.150(c)(1)(vi):A fire extinguisher, rated not less than10B, shall be provided within 50 feet of wherever more than 5 gallons offlammable or combustible liquids or 5 pounds of flammable gas are being used onthe jobsite. This requirement does not apply to the integral fuel tanks ofmotor vehicles.???????????? Thereis no dispute about the evidence. Personnel hoists Nos. 2[21] and 3 carried LPG (liquidpropane gas) containers in addition to personnel. There were fire extinguisherson the landings at which the hoists stopped, but not on the hoist cars. Thecompliance officer considered the fire protection inadequate to meet the dangerof a fire which might occur on the hoist cars when they were between landinglevels, especially if the electrical system should be disabled and the hoistcars stranded between floors (Tr. 28, 29.) This seems to be a rather remotepossibility (Tr. 155, 156). More importantly for present purposes, there is nospecific requirement in the cited standard (or elsewhere in Subpart F)requiring fire extinguishers under such circumstances. The applicable standardappears to be ? 150(c)(1)(vi), supra, which requires a fire extinguisher to beprovided within 50 feet of where 5 pounds of flammable gas is being used. Thereis no evidence in this case that the requirements of this standard were not metsince there was a fire extinguisher on each landing.??????????? Itshould be noted that ? 150(a)(1) requires the employer to ?provide for thefirefighting equipment as specified in this subpart.? (Emphasis supplied).Since respondent did provide the fire extinguishers so specified, it was not inviolation. The general language about ?development of a fire protectionprogram? cannot be construed to impose equipment requirements more stringentthan the specific requirements of the standards simply because the complianceofficer considered the specific requirements inadequate to meet a particularhazard as he perceived it.??????????? 5.The 29 CFR 1926.250(a)(3) citation.??????????? Item12 of citation 1 alleges a non-serious violation of 29 CFR 1926.250(a)(3), forwhich no penalty is proposed, as follows:Scaffold planks and other material werestored in the passageway used for access to the toilet facility on the southside of the 191 level of the precipitator.???????????? Thecited standard provides:Aisles and passageways shall be kept clearto provide for the free and safe movement of material handling equipment oremployees. Such areas shall be kept in good repair.???????????? Thecompliance officer testified that the passageway to toilet facilities on thesouth side of the 191 level of the precipitator was restricted to ?a foot orso? by stacks of lumber and angle iron (Tr. 33). However, there was anotherroute to the toilet facilities, and the width of that passageway was about twofeet (Tr. 159).??????????? Respondentcontends that (1) the cited standard applies to storage areas, whereas thematerials here involved were in transit; (2) the free and safe movement of itsemployees was not substantially impaired; and (3) the materials could notpractically have been placed elsewhere.??????????? Thearea served as a landing for building materials hoisted by a crane. Twochemical toilets were located on the same landing because they had to belowered by crane for cleaning (Tr. 159).??????????? Whilethe lumber and angle iron may have been intended for use in the near future,they obviously were not in use at the time, nor were they actually in transit.How long they had been there and when they were to be used was not established.Therefore, they must be considered in temporary storage, and the cited standardapplies. It is the apparent object of the standard to require all suchconstruction materials to be kept in orderly array. However, on a landing wheresuch materials are being unloaded by crane there is bound to be some disarray.In this instance the compliance officer contended that employees? access to thetoilet facilities was restricted. One passageway was restricted to ?a foot orso? at one point, but there was another passageway two feet wide. Thecompliance officer was able to get through without difficulty, according to thesafety supervisor (Tr. 159). This is confirmed by photographs (Exhibits C 11, R5, R 6). I find the item not proved.??????????? 6.The 29 CFR 1926.303(c)(3) citation.??????????? Item16 of citation 1 alleges 13 violations of 29 CFR 1926.303(c)(3), for which apenalty of $85 is proposed, and only the penalty is contested. Therefore, it isunnecessary to set forth the violation or the cited regulation in full.??????????? Thisviolation involves 13 portable grinding wheels, used to grind pipes, which hadno point-of-operation guards. The 13 operators were exposed to the possibledisintegration of the composition stone grinding wheels, fragments from whichmight cause injuries requiring hospitalization (Tr. 35 37, 115; Exhibits C 7through C 20). The method of penalty computation (Tr. 130) took intoconsideration the probability of injury (rated as ?fairly low?); the severityof injuries which might result (possible hospitalization); and the extent ofthe violation (100% of the portable grinders observed). These factors reducedthe ?unadjusted? penalty of $175 to an adjusted proposed penalty of $85.??????????? Themethod employed did not take into consideration three of the criteriaprescribed by ?\u00a017(k) of the Act: Size of the employer?s business, itsgood faith, and its history of previous violations, which have been discussedsupra, p. 6. After considering these criteria, I find the $85 penalty to bequite reasonable?probably too low, in fact. However, it will not be disturbed.??????????? 7.The 29 CFR 1926.350(f)(6) citation.??????????? Item18 of citation 1 alleges non-serious violations of 29 CFR 1926.350(f)(6), forwhich a penalty of $50 is proposed, as follows:Welding torches and hoses were stored inunventilated toolboxes in the following locations:a. Electricians? shack on 265 level of theboiler;?b. Toolbox PF 69 on feeder floor,generator building;?c. Toolbox PF 16 on D 2 line, turbinefloor, generator building.???????????? Thecited standard provides:Boxes used for the storage of gas hoseshall be ventilated.???????????? Respondentpleaded affirmatively that this standard is unconstitutionally vague andunenforceable. However, the stipulation of the parties does not list this asone of the issues to be tried, and respondent does not mention it on brief.Therefore, this issue is deemed abandoned.??????????? Theevidence is essentially undisputed. The toolboxes in question were metal, withhinged metal lids fastened by hasps which sometimes were padlocked. Slots werecut in the top edges of the toolboxes so that welding torches, with hosesattached, could be stored in the toolboxes with all but a few inches of thehoses remaining outside (extending through the slots). The hoses were leftattached to sources of oxygen and acetylene gas, and sometimes the pressure wasleft on the hoses. No ventilation to the boxes was provided other than thatprovided by the hose slots or the crevices around the overlapping lids. (Tr. 3741, 56, 115 117, 130, 161; Exhibits C 14, C 21, R 8.)??????????? Respondentcontends that the cited standard does not apply to the situation presented,since the toolboxes were used primarily for the storage of torches, not hoses,and that the Secretary has failed to prove that the toolboxes were notventilated.??????????? Consideringthese arguments in inverse order, I have no difficulty in finding that thetoolboxes were ?unventilated? within the meaning of the standard. The lids wererather tight-fitting and had edges turned down over thE sides. The slots cut toaccommodate the trailing hoses were not large enough to be considered adequateventilation, especially when partially filled with hoses and partially coveredby the lid edges.??????????? Thehazard presented, with the possibility of explosive gases, under pressure,leaking into the confined spaces of the closed toolboxes, is even moredangerous than the residual gases that might be present in hoses stored withouttheir being attached to sources of gas supply and to welding torches. However,it is not realistic to say that the toolboxes were used to store gas hosesimply because a few inches of hose, attached to welding torches, extended intothe boxes. This simply is not a situation covered by the regulation, and it isnot the Commission?s function to stretch regulations to fit unforseensituations.??????????? 8.The 29 CFR 1926.350(j) citation.??????????? Item20 of citation 1 alleges a non-serious violation of 29 CFR 1926.350(j), forwhich a penalty of $50 is proposed, as follows:Welding and cutting operations in thefollowing areas did not conform to the requirements of American NationalStandards Institute Z49.1 1967, Safety in Welding and Cutting:a. Compressed gas cylinders containingoxygen were not separated from acetylene cylinders or other combustiblematerial in storage by a minimum distance of 20 feet or by a noncombustiblebarrier at least five feet high having a fire-resistance rating of at least 1\/2hour as required by Paragraph 3.2.4.3:1. One acetylene and one oxygen cylinderstored at base of stairs leading to fly ash hoppers;?2. One LP gas container, one acetylenecylinder, and one oxygen cylinder, stored at line six, first floor of generatorbuilding;?3. Two acetylene and two oxygen cylindersstored in middle of first floor of precipitator;?4. One acetylene cylinder and four oxygencylinders stored in southwest corner of first floor precipitator;?5. Two acetylene cylinders, adjacent tooxygen cylinders in use on south side of 191 level precipitator;?6. Three acetylene cylinders and twooxygen cylinders stored on south side, first level of air preheater;?7. One acetylene cylinder and one oxygencylinder stored adjacent to a can of oil, near south door to electricalwarehouse.?b. Acetylene was being used or piped inexcess of 15 psi in the following locations (Paragraph 3.1.2):1. Manifold on 247 level, northwest cornerof boiler, one acetylene gauge over 15 psi;?2. Manifold on west side 157 level ofboiler, two gauges over 15 psi.???????????? Thecited standard provides:For additional details not covered in thissubpart, applicable technical portions of American National StandardsInstitute, Z49.1 1967, Safety in Welding and Cutting, shall apply.???????????? Paragraphs3.1.2 and 3.2.4.3 of the incorporated ANSI standard provide, in pertinent part:3.1.2 Under no condition shall acetylenebe generated, piped (except in approved cylinder manifolds) or utilized at apressure in excess of 15 psi gauge pressure . . .?3.2.4.3 Oxygen cylinders in storage shallbe separated from fuel-gas cylinders or combustible materials (especially oilor grease), a minimum distance of 20 feet or by a noncombustible barrier atleast 5 feet high having a fire-resistance rating of at least 1\/2 hour.???????????? Testimonyof Compliance Officer Prows supports items 20(a) and (b) in detail (Tr. 43 50118, 119, 127, 131; Exhibits C 10, 22 29), and is essentially uncontradicted.??????????? Thedefense to item 20(a) is that the gas cylinders were not ?in storage?. In eachinstance they were secured in an upright position to structural supports withropes or wires. None was in use or connected to hoses or regulators, and all ofthem had valve protection caps in place (others, which did not, were cited incitation 8).??????????? SafetySupervisor Dalke testified that respondent had a storage area from whichcylinders were brought to the jobsite when needed, that there was a substantialdemand for oxygen and acetylene on this job by various crafts, that thecylinders were used intermittently, that they were normally expended in a periodof a few days (not more than two weeks), that about 100 cylinders were in useat all times, and that about half of the 800 employees would have occasion touse a welding torch each day (Tr. 162 165, 196 208, 214 216).??????????? Paragraph2.6 of the 1973 revision of ANSI Z49.1 1967 definition of cylinder storage as?cylinders of compressed gas standing by on the site, not those in use orattached ready for use? (Tr. 204). The 1973 revision has not been adopted bythe OSHA standard, so it is not binding. It is necessary, then, to refer tomore general definitions.??????????? ??Storage? is defined by Webster?s New WorldDictionary, College Ed. (1972) as ?a place or space for storing goods.? Thisdefinition is not helpful, being in terms of itself. Many definitions appear inWords and Phrases, Permanent Ed., Vol. 40, pp. 336 338 and pocket part, p. 46,including:Term ?storage? connotes permanency and nottransient situation. State v. Gargiulo, 246 A.2d 738, 740, 103 N.J.Super. 140.???????????? As apractical matter, it would be extremely difficult to apply the ANSI standardstrictly to the present situation. Since erection of noncombustible barriersall over the structure would be out of the question, the alternative would beto separate the oxygen and acetylene cylinders 20 feet after each use. Thismight be practical in some instances, but not when the cylinders are usedseveral times a day.??????????? Apparentlythe compliance officer?s tacitly recognized the practicalities of thesituation, for he did not cite respondent for gas cylinders which were kept inportable racks for the same purpose as those here involved. Item 20(a) shouldbe vacated.??????????? Respondent?sdefense to item 20(b) is that ? 3.1.2 of ANSI 249.1 (1967) is not applicablewhere an approved manifold system is employed, and that the incidents ofexcessive pressure were the result of unavoidable fluctuations due to thenature of the manifold system.??????????? Prowstestified that one pressure gauge on one manifold and two on another showedpressure in excess of 15 psi, and that a hose was attached to one and regulatorwas in the ?on? position (Tr. 48 50; Exhibits C 28, 29). Dalke testified thatrespondent had 12 to 15 manifolds (bulk gas distribution systems) on this job,and each had about 8 gauges. An employee sets the pressure at the regulator,but there is some fluctuation due to variations in the amount of gas beingdrawn from the manifold by other welders, he said (Tr. 166 168).??????????? Therewas, however, no proof that the excessive pressures for which the citationswere issued were caused by such fluctuations, and the ANSI standard says that?[u]nder no conditions shall acetylene be . . . utilized at a pressure inexcess of 15 psi gauge pressure? (emphasis added). Thus there is a violation.??????????? Theproposed penalty of $50 covers both portions of this item, and the majorportion (a) is being vacated. No penalty will be assessed for (b).??????????? 9.The 29 CFR 1926.500(b)(8) citation.??????????? Item31 of citation 1 alleges non-serious violations of 29 CFR 1926.500(b)(8), forwhich no penalty is proposed, as follows:Floor holes in the walkway on top of theprecipitator were not covered by a floor hole cover.???????????? Thecited regulation provides:Floor holes, into which persons canaccidentally walk, shall be guarded by either a standard railing with standardtoeboard on all exposed sides, or a floor hole cover of standard strength andconstruction that is secured against accidental displacement. . . .???????????? Theholes which prompted the citation were 11 inches in diameter. Their number wasnot established by the testimony, but photographs Exhibits C 30, C 31, and C32) show that there may have been 16 of them, in two rows of eight each,several feet apart, in long, narrow steel plates forming part of a structuredesigned to support the top of the precipitator. High voltage frames were to beinstalled in the holes. Three to five employees were working in the area, andat times they walked on the surfaces where the holes were located. Employeesworked in this area about a month. There were no guardrails or toeboardsaround, or covers over, these holes (Tr. 50 53, 57, 120, 170, 172, 209 211).??????????? Respondentcontends that the holes were not in a ?floor? and that persons could notaccidentally walk into them.??????????? Asfor the first point, the power plant structure is difficult to describe in termscommon to ordinary buildings. The precipitator is a large, box-like structurecontaining partitions and steel ?curtains? for collecting fly ash. The surfacescontaining the holes were to become part of the top of the precipitator, butrespondent?s safety supervisor alternately called it a roof, a floor, a supportfor the floor deck, and a roof support (Tr. 170, 209).??????????? Thedefinition of ?floor-hole? in ? 1926.502(a)[22] makes it clear that theseregulations apply to ?any floor, roof, or platform?. However, this definitionraises more questions than it answers. It seems to be concerned with materialsfalling onto persons beneath the holes rather than with injuries to personsstepping into them. Indeed, whether persons may fall through them is theprimary distinction between a ?floor hole? and a ?floor opening? as defined in? 1926.502(b)[23].Thus the language of ? 1926.500(b)(8), supra, ?into which persons canaccidentally walk,? seems more consistent with a floor opening than with afloor hole. This inconsistency was noted, but not resolved, by the Commissionin Secretary v. W. C. Sivers Company, 8 OSAHRC 480 (1974). The sameinconsistency is found in the comparable General Industry standards, 29 CFR1910.21(a)(1) and 23(a)(8), and the Commission held in Secretary v. Buhlslaundry & Dry Cleaning, Inc., 5 OSAHRC 1 (1973),?The language of the standard controls,and the definition cannot be used to enlarge the standard so as to bring floorholes into which persons cannot accidentally walk [in this case 3? x 7?] withinits scope.? (Id. at p. 3).?Buhls Laundrystill does not answer the question of what constitutes ?walking into? a floorhole, except to the limited extent that it holds that a person cannot walk intoa 3? x 7? hole. If any effect is to be given to the difference between ?floorholes? and ?floor openings,? ?\u00a01926.500(b)(8) must be construed to applyto a floor hole that is large enough to admit an employee?s foot (which easilycould cause a bone fracture). If it is construed to mean a hole large enoughfor an employee to fall through, the distinction between a floor hole and afloor opening vanishes. Buhl?s Laundry, on the other hand, indicatesthat the hole must be more than a stumbling hazard to make ? 1926.500(b)(8)applicable.??????????? Onthe other hand (or foot), the size of the employee?s foot may be determinativeif ?\u00a01926.500(b)(8) applies only to holes into which an employee couldinsert his foot. This would be the modern counterpart of the ?chancellor?sfoot?[24] as a unit of measurement.??????????? Thereis no evidence in the record as to whether the employees could or could notwalk into, or put their feet through, the holes in question. In some cases suchtestimony might be indispensable. However, it seems obvious to me, and I sohold, that a hole 11 inches in diameter is large enough to make ? 1926.500(b)(8)applicable.??????????? Nopenalty was proposed for this violation, but this is not binding on theCommission or its judges. Secretary v. Winzinger, Inc., Docket No. 6790,July 22, 1976, 1976 1977 CCH OSHD ? 20,959. The statutory criteria, except thegravity of the violation, have been discussed, supra, p. 6. The gravity ismoderate to high, considering the number of floor holes, the number ofemployees exposed, and the duration of the hazard. I find a penalty of $200 tobe appropriate.??????????? 10.The 29 CFR 1926.28(a) citation.??????????? Citation2 alleges several serious violations of 29 CFR 1926.28(a), for which a penaltyof $1,000 is proposed, as follows:Employees in the following locations werenot wearing, or not utilizing, appropriate personal protective equipment suchas safety belts and lanyards, or the equivalent, when working in area wherethey were exposed to potential falls:\u00a0a. Employee working on plenum on west sideof electronic precipitator;?b. Laborer walking beam, 211 level onsouth side of boiler;?c. Employee sitting and walking on beam,167 level on west side of boiler;?d. Electrician working on conduit onfeeder floor of generator building;?e. Two employees working on main steamchest in generator building;?f. Employee working on cable tray,mezzanine floor, D 6 grid, generator building;?g. Two employees working on maintransformer;?h. Employee working above second level onwest side of south air preheater;?i. Two employees working above secondlevel of north air preheater, on east side;?j. Three employees working on roof ofde-aerator.\u00a0??????????? Thecited standard provides:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions or where this part indicatesthe need for using such equipment to reduce the hazards to the employees.???????????? Respondenthas pleaded the affirmative defenses of isolated occurrence and contends onbrief that the standard is impractical or impossible to enforce in view ofemployee resistance to the use of safety belts. There is also a question ofwhether some of the exposed employees were respondent?s.??????????? Thecompliance officer testified to each of the 10 situations alleged in thecitation in which employees were exposed to hazards of falls of varyingdistances (7 to 110 feet) which probably would have resulted in death orserious physical harm (Tr. 59 77; Exhibits C 7, C 33 through C 40). None of theemployees was using a safety belt, although some were wearing safety beltswhich were not tied off. There were no standard guardrails, although in someinstances manila ropes provided some protection (Tr. 79).??????????? Thecompliance officer was accompanied by Safety Supervisor Dalke when he noted,photographed and commented on these apparent violations. In some instances heascertained that the employees were respondent?s by asking Dalke, but in othershe assumed they were because he thought only respondent?s employees were in thearea involved and because Dalke did not tell him otherwise. Dalke, however,testified that subcontractors? employees were in the area and that theemployees involved in subitems (d), (f) and (g) were not respondent?s (Tr. 221,222). While Dalke may have been under some duty to speak up during theinspection, his direct testimony at the hearing is more convincing than hissilence during the inspection. Sub-items (d), (f), and (g) are found notproved, in that respondent?s employees were not exposed to the hazard.??????????? Otherwise,the compliance officer?s testimony is essentially undisputed. He furthertestified that it was feasible in each instance to tie off safety belts to thestructure, and that these would have provided the needed fall protection (Tr.79, 80). Since the citation specifically pleaded that safety belts and lanyardswere appropriate personal protective equipment, the proof meets therequirements of Secretary v. Frank Briscoe Company, Inc., Docket No.7792, October 4, 1976, 1976 1977 CCH OSHD ? 21,162.??????????? Respondent?sdefenses of ?isolated incident? and impossibility or impracticability ofenforcement of the standard due to employee resistance are inconsistent, butinconsistent defenses are permissible under Rule 8(e)(2), F.R.C.P.[25] Therefore, they will beconsidered independently.??????????? Withregard to the ?isolated incident? defense, Dalke testified that respondent?ssafety program included a policy, which it regularly communicated to itsemployees, of requiring use of safety belts where employees were more than 10feet above the ground or other surface when guard rails were not provided, andthat two employees had been discharged for disobeying this rule (Tr. 216, 217).He said that safety belts and lanyards were provided at the general tool room(Tr. 217).??????????? However,Dalke testified that the power plant, with a top elevation of 324 feet, was toa large degree an open steel structure, with numerous catwalks, and that everyday about half of the 800 employees were necessarily exposed to falls for verybrief periods of time, up to a few minutes (Tr. 218 220). In Secretary v.Weatherhead Co., Docket No. 8862, June 10, 1976, 1976 1977 CCH OSHD ? 20,784at p. 24,922, the Commission said,The existence of an ?isolated incident,?or perhaps more accurately an unpreventable occurrence, is an affirmativedefense wherein the employer bears the burden of proving that the actionsconstituting non-compliance with the standard were: (a) unknown to the employerand (b) contrary to both the employer?s instructions and a company work rulewhich the employer had uniformly enforced. [Citation omitted].???????????? Therespondent has not shouldered this burden of proof. It certainly was aware ofnumerous violations of its safety belt work rule, and its enforcement effortsare far from convincing.??????????? Respondentcontends on brief that many of its employees resisted the use of safety belts,that it was not possible for foremen to observe them at all times, and that?Since constant supervision is not possible, it is not possible or practical toenforce the standard.???????????? Tosupport this argument, it points to the rather remarkable testimony of WillieGene Graham, union representative on the job of the boilermaker craft (Tr. 236250). Graham, a journeyman boilermaker, called as a witness by respondent,testified in effect that whether an employee should use a safety belt andlanyard should be determined by each employee for himself and that strictenforcement of the standard was ?a frightening monster? and contrary to the Actand to his constitutional right to the pursuit of happiness (Tr. 245).Respondent argues, ?The testimony of a man who is a leader of employees in hiscraft and attitude toward compliance must not be discarded lightly.? Whether ornot Graham?s attitude was typical of the employees, the introduction of histestimony by respondent, when considered in the light of Dalke?s testimony thatperhaps 400 employees were exposed each day to fall hazards, is very revealing.Granted that 800 employees cannot be watched constantly without requiring aninordinate number of foremen, it seems odd that so many employees would exposethemselves to fall hazards in the presence or view of the compliance officerand the safety supervisor.??????????? Grahamhimself testified that ?a number of times? Dalke had told him to tie off hissafety belt when he wasn?t tied off (Tr. 243), but there is no indication thatany sanctions were imposed.??????????? Itis, of course, impossible to leave it up to employees whether or not theyshould wear, or tie off, their safety belts. This case is to be distinguishedfrom those in which it has been held that the facts proved that it would bemore hazardous to tie off than to not tie off the safety belts, e.g., Secretaryv. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). While that may bethe general tenor of Dalke?s and Graham?s testimony, specific facts were notproved to justify application of this exception.??????????? Apenalty of $1,000 is proposed for these violations. This, of course, is themaximum penalty for a single serious violation under ? 17(b) of the Act. Thegravity of these violations is high, in view of the likelihood of an accidentalfall and the substantial probability that death or serious physical harm couldresult therefrom. after considering all the statutory criteria of ? 17(j),including those discussed on p. 6, I find the proposed penalty appropriate.??????????? 11.The 29 CFR 1926.25(a) citation.??????????? Item1 of citation 6 alleges repeated violations of 29 CFR 1926. 25(a), for which apenalty of $85 is proposed, as follows:Housekeeping was not maintained in thefollowing locations:a. Inside boiler at 216 level, weldinghoses, electrical cable and miscellaneous material in the work area;?b. Mezzanine floor, generator building,conduit, metal channel and miscellaneous material on the floor in theelectricians? work area;?c. D 5 grid mezzanine floor, generatorbuilding, electrical box, angle iron, hangers and miscellaneous material on thefloor in a passageway.???????????? Thecited standard provides:During the course of construction,alteration, or repairs, form and scrap lumber with protruding nails, and allother debris, shall be kept cleared from work areas, passageways, and stairs,in and around buildings or other structures.???????????? Thereis no great dispute about the evidence, although respondent contends some ofthe items complained of were not ?debris?, that debris was removed on a regularbasis, and that in one cited instance there was no exposure of employees to ahazard because passageways and work areas were not blocked.??????????? ComplianceOfficer Prows testified in line with the citation (Tr. 81 84). With regard tosub-item (a), the only materials on the floor of the boiler which Prowsspecifically identified were welding hoses and electrical cables, which safetySuprevisor Dalke testified (Tr. 256) were used by boilermakers who were workingin the boiler. A photograph, Exhibit C 47, shows a welter of hoses and cableson the floor. Respondent contends these items do not constitute ?debris? so asto come within the ban of ? 1926.25(a), since they obviously were not scraplumber with protruding nails.??????????? ?Debris?is defined by Webster?s New World Dictionary, 2d College ed., as?1. rough, broken bits and pieces ofstone, wood, glass, etc., as after destruction; rubble 2. bits and pieces ofrubbish; litter 3. a heap of rock fragments, as that deposited by a glacier.????????????? In Secretaryv. Shea-Ball, a Joint Venture, Docket No. 4892, October 15, 1976, 1976 1977CCH OSHD ? 21,206, the Commission majority eschewed strict adherence todictionary definitions in favor of interpretations which will effectuate thepurpose of the statute and the safety standards.??????????? However,under the ejusdem generis rule general words, following an enumeration ofspecific things, are not construed to their widest extent but are limited tothings of the same general class as those specifically mentioned. Black?s LawDictionary Rev. 4th Ed. (1968).??????????? Thus? 1926.25(a) should be construed as applying to ?form and scrap lumber withprotruding nails, and all other [similar] debris.? As so construed, it does notinclude welding hose and cables which are attached to equipment in use.??????????? Suchitems, incidentally, are required by ? 1926.350(f)(7) to be kept clear of?passageways, ladders, and stairs?. Presumably item 1(a) was not cited underthat standard because the inside of a boiler was not a passageway, ladder, orstair. This leaves us without a standard forbidding welding hoses and cables onthe floors of work areas, but that does not justify stretching the existingstandards out of shape.??????????? Withregard to sub-item (b), Prows described ?metal channel, conduit, pieces ofconduit, and miscellaneous material scattered around the horizontal band sawand in the general work area where the electricians were working? on themezzanine floor of the generator building (Tr. 82; Exhibits C 48, 49). Dalketestified that the area was actually the feeder floor, that the materials onthe floor ?consisted primarily of pieces of conduit and unistrut? which ?wasfor installation of the electrical in the feeder floor area,? that he didn?tknow how long it had been lying there, that trash barrels were generallyprovided so that the area could be cleaned up periodically as the workprogressed (Tr. 256, 257). Respondent contends that this proves a systematichousekeeping effort, such as was found sufficient in Secretary v. Wilmorite,Inc., 17 OSAHRC 223 (1975). It does not. At most, it proves a generalpolicy. Item 1(b) is found proved.??????????? Withregard to sub-item (c), Prows described ?a large electrical box, some angle iron,a can that held welding rods, other material adjacent to and extending into theaisleway? of D 5 grid to the mezzanine floor of the generator building (Tr. 84;Exhibit C 50). Dalke testified that most of the materials were there to beinstalled, that the area was 20 feet wide, and that there was plenty of room towalk through it (Tr. 258). Dalke?s testimony appears to be borne out by thephotograph, C 50. This sub-item is found of proved.??????????? Respondentcontends that one prior, uncontested citation for a violation of ? 1926.25(a)does not make the present one ?repeated,? and that ?repeatedly? as used in ?17(a) of the Act means more than twice and a ?flouting? of the standard?srequirements, citing Bethlehem Steel Corporation v. OSHRC, 540 F. 2d 157(3rd Cir. 1976), reversing in part Secretary v. Bethlehem Steel Corp, 20OSAHRC 227 (1975). However, the latter, which holds that ?repeatedly? meanstwice, is still Commission precedent and is binding on its judges. Secretaryv. Grossman Steel & Aluminum Corp., Docket No. 12,755, May 21, 1976,1975 1976 CCH OSHD ?20,611. Therefore, since respondent?s affiliatedcorporation was cited for, and did not contest, a ?\u00a01926.25(a) violationat the same location in 1973, as shown by Exhibit C 63, the present violationwas repeated.??????????? Apenalty of $85 is proposed. This appears appropriate under the statutorycriteria, previously discussed, and the low gravity of this violation.??????????? 12.The 29 CFR 1926.150(c)(1)(viii) citation.??????????? Citation7 alleges repeated violations of 29 CFR 1926.150(c)(1)(viii), for which apenalty of $100 is proposed, as follows:Fire extinguishers in the followinglocations had not been maintained as required by NFPA 10A: Maintenance and Useof Portable Fire Extinguishers, Paragraphs 2231 and 3510:a. Kidde fire extinguisher on Pettibonehydraulic crane C 12, no maintenance tag, no tamper seal;?b. Triplex fire extinguisher on 211 levelof boiler, no maintenance tag;?c. Triplex fire extinguisher, sheet metaland insulator shop, no maintenance tag, no tamper seal;?d. Three Triplex fire extinguishers, ontop level of precipitator, no maintenance tags.???????????? Thecited standard provides:Portable fire extinguishers shall beinspected periodically and maintained in accordance with Maintenance and Use ofPortable Fire Extinguishers, NFPA No. 10A 1970.???????????? Paragraphs2231 and 3510 of the incorporated NFPA standard provide:2231. Tampering or extinguisher operationis usually indicated by broken seals or tamper indicators. These may consist ofwire and lead seals, plastic indicators, paper strips, and the like, thatindicate operation of the extinguisher or its movement from its hanger,bracket, or wall cabinet. Tamper indicators which seal an extinguisher to itsmounting may be fairly loosely affixed so that it is possible for an inspectorto ?heft? (lift slightly) the extinguisher to determine if it is full or emptywithout breaking the seal.\u00a03510. The date (month and year) of themaintenance check and the initials or special mark of the examiner should be recorded.The marking can be put on a tag which is tied or clipped to the extinguisher,on a pressure-sensitive label affixed to the extinguisher, or on a spaceprovided on the permanent name-plate. They should not be metal-stamped on theshell. This record should be capable of remaining legible for at least oneyear.???????????? Allof the fire extinguishers here involved were the stored-pressure type, withpressure gauges (Tr. 89). These are specifically exempt from the maintenancerequirements by paragraph 1320 of NFPA No. 10A 1970, which contains a note:Note: Stored-pressure extinguishersequipped with pressure indicators or gauges are not required to be maintainedat annual intervals in accordance with the provisions of paragraphs 1320 and3110.?See Secretary v. Robert E. McKee, Inc., DocketNo. 12130, 19 OSAHRC 550, 556 (1975), (1974 1975) CCH OSHD ? 19,807 (Kennedy,J.)??????????? Whilethe quoted note pertains to paragraphs of the NFPA standards not mentioned inthe citation, they are the ones requiring annual maintenance of fireextinguishers, whereas ? 3510 is concerned with records of maintenance checks.Obviously, if a stored-pressure, gauge-equipped extinguisher is exempt from theannual maintenance check, the record requirement is likewise inapplicable.??????????? Respondentpoints out that all of the incorporated NFPA standard is couched innon-mandatory language. Does the mandatory ?shall? in ? 1926.150(c)(1)(viii)convert the non-mandatory NFPA language to the mandatory? I think not. But itreally is unnecessary to rule on this point in this case. As already decided,the extinguishers here involved were exempted from the provisions of ? 3510.Paragraph 2231, pertaining to temper seals, does not even contain the precatory?should.? It says, ?Tampering or extinguisher operation is usuallyindicated by broken seals or tamper indicators.? (Emphasis supplied.) Thusthere is no requirement in this paragraph that tamper seals be provided.??????????? Thecitation should be vacated.??????????? 13.The 29 CFR 1926.350(a)(1) citation.??????????? Citation8 alleges repeated violation of 29 CFR 1926.350(a)(1), for which a penalty of$100 is proposed, as follows:Valve protection caps were not in place onthe following compressed gas cylinders when they were not in use or connectedfor use:a. Argon cylinder on south side of boileron 187 level;?b. Argon cylinder on west side of boileron 157 level;?c. Two oxygen cylinders, located in thecenter, on the first floor of the precipitator;?d. One oxygen cylinder in southwest corneron first floor of the precipitator.?The cited standard provides:? ? 350(a) Transporting, moving, and storingcompressed gas cylinders?(1) Valve protection caps shall be inplace and secured.???????????? ComplianceOfficer Prows? testimony (Tr. 85 92) and photographs (Exhibits C 24, C 25, C52, C 53) paralleled the citation. Respondent?s defense is that the cylinderswere not being transported, moved, or stored, but were in intermittent use.[26] A similar argument wasmade under item 20(a) of citation 1, involving ? 1926.350(j). Since the cylindersobviously were not being transported or moved, the question is narrowed towhether they were stored.??????????? Thefirst definition of the verb ?store? in Webster?s New World Dictionary, 2dCollege Ed. (1972), is ?to put aside, or accumulate, for use when needed.? Thisseems to fit the present situation. However, the third definition is ?to put ina warehouse, etc., for safekeeping,? which is more in line with respondent?sargument.??????????? Consistencymight dictate the same result as in the ? 1926.350(j) citation. However, thelatter was decided on a practical basis, that is, in view of the frequent useof the cylinders it was not practical to require the oxygen and acetylenecylinders to be separated 20 feet or by noncombustible barriers between uses.??????????? However,there appears to be no practical reason for not replacing the valve protectioncaps when the cylinders are disconnected and not in actual use, and this isconsistent with the obvious purpose of the regulation.??????????? OnMarch 29, 1972, respondent?s affiliate was issued a citation for 20 violationsof ?\u00a01926.350(a)(1), and the citation was not contested (C 63; Tr. 92).Therefore, this is a repeated violation. The gravity is low, but aconsideration of the other statutory criteria, previously discussed, leads tothe conclusion that the proposed penalty of $100 is reasonable.??????????? 14.The 29 CFR 1926.350(f)(7) citation.??????????? Citation10 alleges repeated violations of 29 CFR 1926.350(f)(7), for which a penalty of$100 is proposed, as follows:Welding hoses and cables were not keptclear of passageways, ladders and stairs in the following locations:a. Welding cable and hoses on the catwalkleading to the bottom of the fly ash hopper;?b. Welding cables in passageway, on southside of boiler on 219 level;?c. Welding cable and hose in passagewayand at bottom of stairway on south side of boiler at 165 level;?d. Welding cables and hoses in passagewayon south side and west side of boiler on 211 level;?e. Hoses in passageway, south side ofboiler on 177 level.?The cited standard provides:Hoses, cables, and other equipment shallbe kept clear of passageways, ladders, and stairs.???????????? Thetestimony of Compliance Officer Prows supports the citation (Tr. 93 97;Exhibits C 54 through 60). The defense is that respondent?s construction siteconsists basically of catwalks, stairs and other open steel and that there isno practical alternative to locating welding hoses and cables in passageways,ladders, and stairs, and Safety Supervisor Dalke testified to this effect (Tr.261, 262). From the photographs, however, it is apparent that in most, if notall, instances the hoses and cables could have been kept off the floors byvarious means. Instead, they frequently were strung around on the floors likespaghetti. This presented a tripping hazard to which many employees wereexposed.??????????? Respondent?saffiliate was cited on March 29, 1972, on this same location for violating thissame standard, and did not contest the citation (Exhibit C 63; Tr. 92). Aspreviously discussed, this is a repeated violation. The gravity is low. Underthe statutory criteria, the proposed penalty of $100 is appropriate.??????????? 15.The 29 CFR 1926.500(b)(1) citation.??????????? Citation12 alleges a repeated violation of 29 CFR 1926.500(b)(1), for which a penaltyof $125 is proposed, as follows:The floor hole in the platform around theturbine on the turbine floor of the generator building was not provided with acover or standard railing.?The cited standard provides:Floor openings shall be guarded by astandard railing and toe boards or cover, as specified in paragraph (f) of thissection. In general, the railing shall be provided on all exposed sides, exceptat entrances to stairways.???????????? Thecitation speaks of a ?floor hole,? while the cited standard is for ?[f]looropenings.? Compliance Officer Prows gave the measurements as 2 x 3 ??, whichmakes it a ?floor hole? under the definition in ? 1926.502(a), supra, p. 21.Thus this item should have been cited under ?\u00a01926.500(b)(8).??????????? Asnoted at p. 23, the Commission held in Secretary v. Buhls Laundry & DryCleaning, Inc., 5 OSAHRC 1 (1973) that persons could not accidentally walkinto a 3? x 7? hole, and the same should be true of the 3? wide hole hereinvolved, though it was 2 long. Thus ?\u00a01926.500(b)(8) was not violated.??????????? Thecitation will be vacated.CONCLUSIONS OF LAW??????????? 1.The respondent, Stearns-Roger, Inc., is an employer engaged in a businessaffecting commerce who has employees. The Commission has jurisdiction of theparties and of the subject matter of this proceeding.??????????? 2.Between the dates of March 22 and March 26, 1976, inclusive, the respondent wasin nonserious violation of the following standards: Citation Item Standard 1 3 29 CFR 1926.102(a)(1) \u00a0 1 5B 29 CFR 1926.152(f)(1) \u00a0 1 10[27] 29 CFR 1926.153(j) \u00a0 1 15A11 29 CFR 1926.303(b) \u00a0 1 16A11 29 CFR 1926.303(c)(3) \u00a0 1 17 29 CFR 1926.304(f) \u00a0 1 20b 29 CFR 1926.350(j) \u00a0 1 26c 29 CFR 1926.402(a)(11) \u00a0 1 31 29 CFR 1926.500(b)(8) \u00a0 1 32 29 CFR 1926.550(a)(2) \u00a0 9 1 29 CFR 1926.350(a)(9) \u00a0 11 1 29 CFR 1926.451(a)(4) \u00a0 13 1b, 1c 29 CFR 1926.500(d)(1) \u00a0 \u00a0??????????? 3. Onsaid dates the respondent was in serious violation of the following standards: Citation Item Standard 2 1 29 CFR 1926.28(a) \u00a0 311 1 29 CFR 1926.451(d)(10) \u00a0 411 1 29 CFR 1926.500(d)(2) \u00a0 511 1 29 CFR 1926.500(f)(1)(vi)(b) \u00a0 13 1 29 CFR 1926.500(d)(1) \u00a0 \u00a0??????????? 4. Onsaid dates the respondent was in repeated violation of the following standards: Citation Item Standard 6 1b 29 CFR 1926.25(a) \u00a0 8 1 29 CFR 1926.350(a)(1) \u00a0 10 1 29 CFR 1926.350(f)(7) \u00a0 \u00a0??????????? 5. Onsaid dates the respondent was not in violation of the following standards: Citation Item Standard 1 1 29 CFR 1926.25(b) \u00a0 1 2 29 CFR 1926.51(a)(5) \u00a0 1 4A 29 CFR 1926.150(a)(1) \u00a0 1 4B 29 CFR 1926.150(a)(2) \u00a0 1 4C 29 CFR 1926.150(a)(4) \u00a0 1 5A 29 CFR 1926.152(a)(1) \u00a0 1 7 29 CFR 1926.152(g)(4) \u00a0 1 9 29 CFR 1926.153(h)(11) \u00a0 1 12 29 CFR 1926.250(a)(3) \u00a0 1 13 29 CFR 1926.300(b)(1) \u00a0 1 14 29 CFR 1926.301(d) \u00a0 1 18 29 CFR 1926.350(f)(6) \u00a0 1 20a 29 CFR 1926.350(i) \u00a0 1 21 29 CFR 1926.352(g) \u00a0 1 22b 29 CFR 1926.400(a) \u00a0 1 23 29 CFR 1926.401(a)(1) \u00a0 1 24 29 CFR 1926.401(c) \u00a0 1 25A 29 CFR 1926.401(j)(1) \u00a0 1 27 29 CFR 1926.402(a)(10) \u00a0 1 28a 29 CFR 1926.402(a)(12) \u00a0 1 33 29 CFR 1926.550(a)(12) \u00a0 6 1a, 1c 29 CFR 1926.25(a) \u00a0 7 1 29 CFR 1926.150(c)(1)(viii) \u00a0 12 1 29 CFR 1926.500(b)(1) \u00a0 \u00a0ORDER??????????? Onthe basis of the findings of fact contained in the foregoing Discussion andOpinion and the foregoing Conclusions of Law, it is ORDERED that:??????????? 1.The following citations for non-serious violations be and they hereby areaffirmed and that the penalties shown be and they hereby are assessed: Citation Item Standard Penalty 1 3 29 CFR 1926.102(a)(1) $ 0 \u00a0 1 5B 29 CFR 1926.152(f)(1) \u00a0 25 1 10 29 CFR 1926.153(j) 25 \u00a0 1 15a 29 CFR 1926.303(b) 0 \u00a0 1 16 29 CFR 1926.303(c)(3) 85 \u00a0 1 17 29 CFR 1926.304(f) 25 \u00a0 1 20b 29 CFR 1926.350(j) 0 \u00a0 1 26c 29 CFR 1926.402(a)(11) 25 \u00a0 1 31 29 CFR 1926.500(b)(8) 200 \u00a0 1 32 29 CFR 1926.550(a)(2) 25 \u00a0 9 1 29 CFR 1926.350(a)(9) 0 \u00a0 11 1 29 CFR 1926.451(a)(4) 0 \u00a0 13 1b, 1c 29 CFR 1926.500(d)(1) \u00a0 0 \u00a02. The following citations for serious violations beand they hereby are affirmed and that the penalties shown be and they herebyare assessed: Citation Item Standard Penalty 2 1 29 CFR 1926.28(a) $1000 \u00a0 3 1 29 CFR 1926.451(d)(10) 500 \u00a0 4 1 29 CFR 1926.500(d)(2) 500 \u00a0 5 1 29 CFR 1926.500(f)(1)(vi)(b) 500 \u00a0 13 1 29 CFR 1926.500(d)(1) 750 \u00a0 ??????????? 3.The following citations for repeated violations be and they hereby areaffirmed, and that the penalties shown be and they hereby are assessed:\u00a0 Citation Item Standard Penalty 6 1b 29 CFR 1926.25(a) $85 \u00a0 8 1 29 CFR 1926.350(a)(1) 100 \u00a0 10 29 CFR 1926.350(f)(7) \u00a0 100 \u00a0??????????? 4.The following citations be and they hereby are vacated: Citation Item Standard 1 1 29 CFR 1926.25(b) \u00a0 1 2 29 CFR 1926.51(a)(5) \u00a0 1 4A 29 CFR 1926.150(a)(1) \u00a0 1 4B 29 CFR 1926.150(a)(2) \u00a0 1 4C 29 CFR 1926.150(a)(4) \u00a0 1 5A 29 CFR 1926.152(a)(1) \u00a0 1 7 29 CFR 1926.152(g)(4) \u00a0 1 9 29 CFR 1926.153(h)(1) \u00a0 1 12 29 CFR 1926.500(b)(1) \u00a0 1 13 29 CFR 1926.300(b)(1) \u00a0 1 14 29 CFR 1926.301(d) \u00a0 1 18 29 CFR 1926.350(f)(6) \u00a0 1 20a 29 CFR 1926.350(j) \u00a0 1 21 29 CFR 1926.352(g) \u00a0 1 22b 29 CFR 1926.400(a) \u00a0 1 23 29 CFR 1926.401(a)(1) \u00a0 1 24 29 CFR 1926.401(c) \u00a0 1 25A 29 CFR 1926.401(j)(1) \u00a0 1 27 29 CFR 1926.402(a)(10) \u00a0 1 28a 29 CFR 1926.402(a)(12) \u00a0 1 33 29 CFR 1926.550(a)(12) \u00a0 6 1a, 1c 29 CFR 1926.25(a) \u00a0 7 1 29 CFR 1926.150(c)(1)(viii) \u00a0 12 1 29 CFR 1926.500(b)(1) \u00a0 \u00a0??????????? 5.Respondent?s requested findings of fact and conclusions of law, to the extentthat they are inconsistent with this decision, be and they hereby are denied.??????????? 6.This proceeding be and it hereby is terminated.?DEE C. BLYTHE,Administrative Law JudgeDate: January 6, 1977[1] 29 U.S.C. ?661(i).[2] CommissionerBarnako granted respondent?s petition for review, and former Commissioner Moranissued a general direction for review. As neither party has taken exception tothe judge?s disposition of any items except those listed in respondent?spetition for review, and in the absence of a compelling public interest in ourreview of any other aspect of the judge?s decision, we will review only thoseitems encompassed within respondent?s petition for review. Water WorksInstallation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC 1339, 1976?77 CCH OSHD?\u00a020,780 (No 4136, 1976); Abbott-Sommer Inc., 76 OSAHRC 21\/A2, 3BNA OSHC 2032, 1976?77 CCH OSHD ? 20,428 (No. 9507, 1976).[3] 29 C.F.R. ?1926.102(a)(1) provides:Employeesshall be provided with eye and face protection equipment when machines oroperations present potential eye or face injury from physical, chemical, orradiation agents.[4] The absence ofinjuries is not controlling in determining whether a potential for injuryexists. A hazard requiring abatement may exist in the absence of recordedinjuries. The Act is designed to prevent the first injury. Arkansas-BestFreight, Inc. v. OSHRC, 529 F.2d 649, 654 (8th Cir. 1978).[5] 29 C.F.R.1926.102(a)(2) provides:Eyeand face protection equipment required by this Part shall meet the requirementsspecified in American National Standards Institute, Z87.1?1968, Practice forOccupational and Educational Eye and Face Protection.[6] 29 C.F.R.1926.102(a)(3) provides:Employeeswhose vision requires the use of corrective lenses in spectacles, when requiredby this regulation to wear eye protection, shall be protected by goggles orspectacles of one of the following types:(i)Spectacles whose protective lenses provide optical correction;(ii)Goggles that can be worn over corrective spectacles without disturbing theadjustment of the spectacles;(iii)Goggles that incorporate corrective lenses mounted behind the protectivelenses.[7] 29 C.F.R. ?1926.500(b)(8) provides:Floorholes, into which persons can accidentally walk, shall be guarded by either astandard railing with standard toeboard on all exposed sides, or a floor holecover of standard strength and construction that is secured against accidentaldisplacement. While the cover is not in place, the floor hole shall be protectedby a standard railing.?Floorhole? is defined at 29 C.F.R. ? 1926.502(a) as:Anopening measuring less than 12 inches but more than 1 inch it its leastdimension in any floor, roof, or platform through which materials but notpersons may fall, such as a belt hold, pipe opening, or slot opening.[8] We note that thisconclusion by the judge is not challenged by respondent on review and isconsistent with our recent decision in Bechtel Power Company, 79 OSAHRC$03R, 7 BNA OSHC 1361, 1979 CCH OSHD ?___ (No. 13832, 1979).[9] 29 C.F.R. ?1926.350(a)(1) provides:(a)Transporting, moving, and storing compressed gas cylinders.(1)Valve protection caps shall be in place and secured.[10] This standardprovides:(c)Oxygen cylinders in storage shall be separated from fuel-gas cylinders orcombustible materials (especially oil or grease), a minimum distance of 20 feetor by a non-combustible barrier at least 5 feet high having a fire resistancerating of at least one-half hour.[11] 29 C.F.R. ?1926.350(f)(7) provides:Hoses,cables, and other equipment shall be kept clear of passageways, ladders andstairs.[12] 29 C.F.R. ?1926.25(a) provides:Duringthe course of construction, alteration, or repairs, form and scrap lumber withprotruding nails, and all other debris, shall be kept cleared from work areas,passageways, and stairs, in and around buildings or other structures.[13] Respondent alsodisputed the repeated characterization of the alleged violation of 29 C.F.R.?\u00a01926.350(a)(1). Since we vacate that item, however, the repeated issueneed not be addressed.[14] The NationalConstructors Association also submitted an amicus curiae brief on the issue.[15] This case wastried and decided prior to our decision in Potlatch. Usually the Commission hasallowed parties an opportunity to present additional evidence relevant to anewly-established defense or legal theory where there has been a significantchange or development in the law during the period between the hearing and ourdecision on review of the case. See Truland-Elliot, 77 OSAHRC 163\/A7, 4BNA OSHC 1455, 1976?77 CCH OSHD ?20, 908 (No. 11259, 1976). However, in view ofwhat we have said above, we need not offer respondent an opportunity for aremand. Cf. Belger Cartage Service, Inc., 79 OSAHRC 16\/B14, 7 BNA OSHC1233, 1973 CCH OSHD ? 23,440 (No. 76?1480, 1979).[16] Respondent alsoargues generally that the violations cannot be found repeated in nature in viewof the lapse of several years between the previous and present violations(approximately three years with respect to the ? 1926.25(a) violation and fouryears with respect to the ? 1926.350(f)(7) violation) and because interveninginspections did not result in citations for violation of either ? 1926.25(a) or? 1926.350(f)(7). In Respondent?s view, it could not reasonably haveanticipated that violations would recur several years later, and it contendsthat the absence of citations following the intervening inspectionsdemonstrates the effectiveness of its safety program.Although it may be appropriate toestablish a per se rule that a repeated violation cannot be found because ofthe lapse of years between the previous and present violations, I would not doso at this time, preferring instead that the Secretary consider this issue andformulate a policy with respect to a time period after which it would not beappropriate to issue repeated citations. Accordingly in this case, absentevidence that the employer took steps after occurrence of a violation toprevent the recurrence of substantially similar violations, I would concludethat the violations are repeated in nature. However, the period of time betweenviolations may be a relevant consideration in judging the adequacy of anymeasures implemented by the employer to prevent the recurrence of similarviolations. Potlatch, supra, 79 OSAHRC 6\/A2, p. 29, 7 BNA OSHC at 1068,1979 CCH OSHD ?23,294 at 28,177.Similarly, since there may be anynumber of reasons for the Secretary?s failure to issue citations after aninspection, I would not presume simply from the absence of citations followingthe intervening inspections that Respondent had in fact taken steps to preventthe recurrence of the prior violations. Rather, if there were in fact evidencethat Respondent had adopted such measures, in considering the adequacy of thosemeasures I would take into account the fact that the Secretary did not allegesubstantially similar violations as a result of intervening inspections.[17] By stipulation,the Secretary moved to withdraw items 2, 4B, 4C, 5A, 7, 9, 13, 14, 21, 22b, 23,24, 25a, 27, 28a, and 33 of citation 1, and respondent moved to withdraw itsnotice of contest to items 5B, 10, 15A, 17, 26C, and 32 of citation 1 and tocitations 3, 4, 5, 9, 11, and 13, as amended (only the penalties proposed forcitations 3, 4, and 5 having been contested). This stipulation is approved, andthe motions are granted.[18] No penalty wasproposed for these items.[19] This is atypographical error; the ANSI standard involved is Z87.1.[20] It should benoted that, although respondent pleaded the affirmative defense of ?isolatedoccurrence? to this item, it does not argue it on brief.[21] Not 24, as statedin the citation, a typographical error; Tr. 28.[22] ?Floor hole??Anopening measuring less than 12 inches but more than 1 inch in its leastdimension in any floor, roof, or platform through which materials but notpersons may fall, such as a belt hold, pipe opening, or slot opening.[23] ?Flooropening??An opening measuring 12 inches or more in its least dimension in anyfloor, roof, or platform through which persons may fall.[24] Cox v. Burgess,139 Ky. 699, 96 S.W. 577, 579, quoting from Table Talk, tit. Equity:Equityis according to the conscience of him that is chancellor; and, as that islarger or narrower, so is equity. ?Tis all one as if they should make his footthe standard for the measure we call a chancellor?s foot. What an uncertainmeasure would this be! One chancellor has a long foot, another a short foot, athird an indifferent foot. ?Tis the same thing as the chancellor?s conscience.[25] Made applicablehere by Rule 2(b) of the Commission?s Rules of Procedure.[26] Safety SupervisorDalke testified (Tr. 260) that they were positioned as they were for use bycrafts in cutting and welding operations and were not hooked up to regulators.[27] Penalty onlycontested.”