“SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 v.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 TRINITYINDUSTRIES, INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Respondent.OSHRC Docket Nos. 88-1545 and 88-1547DECISIONBEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:These consolidated cases arise from an inspection of afacility operated by Trinity Industries in Jacksonville, Florida, where it manufacturesLiquid Propane Gas (LPG) gas cylinders.\u00a0 As a result of that inspection, severalcitations were issued alleging violations of OSHA standards concerning both employeesafety and health.\u00a0 Trinity contested the health citations and safety citationsseparately, and they were assigned different docket numbers.\u00a0 Each docket number washeard separately by Administrative Law Judge James D. Burroughs, with the stipulationthat, for purposes of economy, the evidence adduced in one case could be used in theother.\u00a0 After the judge issued his decision, the cases were consolidated for reviewbefore the Commission.\u00a0 On review, the parties appeared before the Commission in oralargument on November 13, 1991.The primary issues on review are whether the judge erredin (1) refusing to dismiss the citations when the Secretary refused to comply with thejudge’s discovery orders, (2) affirming items alleging a failure to comply with theaudiometric testing and monitoring provisions of the noise standard at 29 C.F.R. ?1910.95, (3) affirming an item alleging a failure to conduct a radiation survey, and (4)affirming several items alleging various machine guarding violations.I.The WarrantThe inspection involved in these cases was based on awarrant issued by a United States Magistrate on May 2, 1983. The magistrate’s finding ofprobable cause for the warrant was based on the Secretary’s administrative inspection planfor scheduled programmed inspections.After obtaining the warrant, the Secretary sought toinspect the Jacksonville facility on May 4 and 5, 1983, but was refused entry by Trinity.\u00a0 On May 10, 1983, the Secretary applied to the United States District Court for theMiddle District of Florida, Jacksonville Division, for an Adjudication in Civil Contempt.\u00a0 In its answer to the charge, Trinity contended that the warrant was invalid becausethe attempted inspection was part of a continuous program ofrepeated,\”vexatious\” inspections which constituted harassment.\u00a0 Trinityalso counterclaimed for a declaratory judgement that the inspections were unreasonable anddiscriminatory, and that the warrant and the Secretary’s inspection procedures wereunconstitutional.\u00a0 In July 1987, the district court issued its order dismissingTrinity’s counterclaim and holding it in civil contempt.The Secretary again tried to inspect the Jacksonvillefacility and was refused entry.\u00a0 The Secretary then initiated civil contemptproceedings in the district court.\u00a0 Holding Trinity in contempt, the court ordered itto permit the inspection and imposed a $10,000 per day fine for each day Trinity refusedto do so.\u00a0 Trinity delayed the inspection for one day, incurred a $10,000 fine andappealed the district court’s order to the United States Court of Appeals for the EleventhCircuit.On appeal the United States Court of Appeals for theEleventh Circuit upheld the district court’s order holding Trinity in contempt.\u00a0 Inre Trinity Indus., 876 F.2d 1485 (11th Cir. 1989).\u00a0 The court held that:\u00a0 (1)the inspection plan was based on \”neutral\” criteria, as required by Marshall v.Barlow Inc., 436 U.S. 307 (1978); and (2) the plan is not discriminatory just because acompany in the \”worst\” industry ranking could escape inspection during itsdesignated cycle if it is located in a county the name of which begins with a letter nearthe end of the alphabet.\u00a0 The court also held that the Secretary was not required toappend to its warrant application documents to demonstrate that the process for selectingcompanies for inspection was fair and nondiscriminatory.\u00a0 It was sufficient, thecourt stated, for the application to contain a sworn affidavit by an OSHA supervisordeclaring that the company was selected pursuant to a programmed inspection and detailinghow the plans were executed, including how the relevant establishment lists and inspectionregisters were developed and how the company was chosen for inspection.\u00a0 The courtstated that such information was sufficient for the magistrate to conclude that Trinitywas selected by application of the plan’s specific, neutral criteria.While the aforementioned warrant enforcement proceedingwas winding its way through the federal courts, the citations resulting from theinspections were being litigated before Judge Burroughs.\u00a0 During the proceedingbefore Judge Burroughs, Trinity did not challenge the warrant on Fourth Amendment grounds.\u00a0 Rather, it argued that the inspection plan, which was used to justify issuance ofthe warrant, discriminated against Trinity and violated its due process rights guaranteedby the Fifth Amendment.\u00a0 Therefore, Trinity argued, all evidence obtained as a resultof the warrant should be suppressed.In pursuit of this argument, Trinity sought a post-searchevidentiary hearing on the design and operation of the inspection plan.\u00a0 At thatpoint in the proceeding, the judge determined that he could rule on whether the plan isdiscriminatory and, on four separate occasions,[[1]] directed the Secretary to respond tofive requests for admissions relating to the plan.\u00a0 The Secretary refused tocomply[[2]] and, during the hearing, instructed her witness not to answer questionsrelated to the request for admissions.\u00a0 Despite the Secretary’s refusal to complywith the judge’s order, the judge neither dismissed the case nor imposed sanctions. \u00a0Rather, the judge made it clear that he was conducting the hearing to comply with theCommission’s preference that judges make a complete record because of the time and expenseof reopening proceedings should the dismissal later be reversed.\u00a0 However, after thehearing, he warned the Secretary that her refusal to comply with his orders would probablyresult in dismissal.In a lengthy order, dated June 16, 1989, Judge Burroughsdenied Trinity’s motion to dismiss the case.\u00a0 In his decision, the judge likewisedenied Trinity’s renewed motion.\u00a0 The judge reversed his earlier determination andheld that the Commission has the authority to look behind a warrant only when the warrantis honored and is challenged in Commission proceedings.\u00a0 He concluded that, becauseTrinity chose to refuse to honor the warrant and to challenge the warrant in a contemptproceeding in district court, jurisdiction over the matter rested with the federal courts;it would be inappropriate for the Commission to intervene.\u00a0 Moreover, the judgenoted, the ultimate review of the warrant issue rested with the Eleventh Circuit,regardless of the forum in which the challenge took place.\u00a0 Therefore, the judgeconcluded, Trinity would not be harmed by the Commission’s refusal to entertain the issue.\u00a0 The judge also found that the Secretary’s refusals to comply with his discoveryorders were based on legal principles that have found support in the courts and were notthe result of a callous disregard of either the constitutional rights of Trinity or theorders of the judge.On review, Trinity does not challenge the validity of thewarrant.\u00a0 Rather, Trinity argues that the judge erred by not imposing sanctions,including dismissal, on the Secretary for her refusal to comply with his discovery orders.\u00a0 Trinity claims that it was prejudiced by the Secretary’s refusal to comply.As Trinity correctly notes, the Secretary’s failure tocomply with Commission orders may result in dismissal when the employer is prejudiced orwhen the Secretary’s conduct is contumacious in character.\u00a0 Samsonite Corp., 10 BNAOSHC 1583, 1587, 1982 CCH OSHD ? 26,054, p. 32,736 (No. 79-5649 1982); Duquesne Light Co.8 BNA OSHC 1218, 1222, 1980 CCH OSHD ? 24,384, p. 29,718 (No. 78-5034 et al, 1980); seealso Pittsburgh Forging Co., 10 BNA OSHC 1512, 1513-1514, 1982 CCH OSHD ? 25,974, p.32,569 (No. 78-1361, 1982).\u00a0 However, under Commission rule of procedure 52(e),[[3]]29 C.F.R. ? 2200.52(e), a judge’s authority to impose sanctions on any party for itsrefusal to comply with a discovery order is discretionary.\u00a0 Pittsburgh Forgings, 10BNA OSHC at 1513, 1982 CCH OSHD at p. 32,569.\u00a0 Accordingly, the standard of review ofa judge’s actions in enforcing his discovery orders is one of \”abuse ofdiscretion\”.\u00a0 Sealtite Corp., 15 BNA OSHC 1130, 1134, 1991 CCH OSHD ? 29,398,p. 39,582 (No. 88-1431, 1991); Samsonite Corp., 10 BNA OSHC at 1587, 1982 CCH OSHD at p.32,737;\u00a0 Pittsburgh Forgings, 10 BNA OSHC at 1514, 1982 CCH OSHD at p. 32,569. \u00a0We find that, under the circumstances of this case, Judge Burroughs did not abuse hisdiscretion in determining that the case should not be dismissed.First, we agree with Judge Burroughs that Trinity was notprejudiced by the Secretary’s refusal to comply with the judge’s discovery orders. \u00a0Generally, the courts have recognized two alternative forums in which employers canchallenge warrants.\u00a0 If the warrant is honored and citations issued, the employer mayseek to have the Commission suppress the evidence obtained in the inspection byestablishing that the warrant was issued without probable cause. This requires that afactual record be made.\u00a0 The courts have recognized that the Commission is the properforum for hearing such a challenge.\u00a0 Donovan v. Sarasota Concrete Co., 693 F.2d 1061,1067 (11th Cir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979).\u00a0 A second option is for the employer to refuse to honor the warrant and challengeits validity in a contempt proceeding before an Article III court.\u00a0 Sarasota, 693F.2d at 1066, Babcock & Wilcox Co., 610 F.2d at 1136.Trinity attempted to use both forums.\u00a0 After beingheld in contempt for refusing to honor the warrant, Trinity relented and allowed thesearch.\u00a0 This allowed it to pursue its challenge of the warrant in its appeal of thecontempt charge at the same time as it challenged the validity of the warrant before theCommission.\u00a0 However, when the validity of a warrant is being challenged in anArticle III court, the Commission cannot provide a forum for a collateral attack. [[4]]Rather, the Commission must defer to the decision of the circuit court of appeals thatultimately will hear any appeal front a Commission order contrary to the decision of thatcourt.\u00a0 Regardless of whether the challenge is heard before the Commission or afederal district court, the ultimate decision (assuming the case is not appealed to theSupreme Court) on the validity of the warrant will be made by the appropriate federalcircuit court of appeals.\u00a0 See Sarasota, 693 F.2d at 1066.While the federal court proceedings are pending, theCommission must process a case such as this one in accordance with its regular proceduresand, consistent with the doctrine of res judicata, must follow the ultimate determinationof the federal courts regarding the validity of the warrant.[[5]]\u00a0 Therefore, JudgeBurroughs’ decision to proceed with the hearing was the correct course of action. \u00a0Had the Eleventh Circuit ultimately found the warrant invalid, the evidence could havebeen excluded.\u00a0 On the other hand, with the warrant having been held valid, theCommission has before it a full record upon which to base a decision.\u00a0 BecauseTrinity was able to litigate the validity of the warrant in the federal courts, it was notprejudiced by its inability to make a factual record before the Commission due to theSecretary’s failure to obey the judge’s discovery orders.\u00a0 See Id. at 1067.We also agree with the judge’s conclusion that theSecretary’s actions did not amount to contumacious conduct. Where a party’s reason forrefusing to comply with a discovery order has a substantial legal basis and its conductdoes not indicate disrespect towards the Commission or the issuing judge, its failure tocomply with a discovery order is not an indication of bad faith or contumacious conduct.\u00a0 See Newport News Shipbuilding & Drydock Co., 9 BNA OSHC 1085, 1090, 1980 CCHOSHC ? 25,003, p. 30,891 (No. 76-171, 1980).[[6]]\u00a0 The Secretary based her refusalto comply on her belief that because the matter was before the federal courts, theCommission was not a proper forum for conducting a collateral attack on the warrant. Asnoted, the Secretary’s position was vindicated.\u00a0 Under these circumstances, we findno error in Judge Burroughs’ holding that the Secretary’s refusal to comply did not amountto contumacious conduct.Finally, we note that counterbalancing the Commission’sobligation to enforce its orders is the principle that the public interest requires thatcases be decided on their merits.\u00a0 Pittsburgh Forgings, 10 BNA OSHC at 1514, 1982 CCHOSHD at p. 32,569; Duquesne Light, 8 BNA OSHC at 1222, 1980 CCH OSHD at p. 29,719. \u00a0Here, Judge Burroughs recognized the impropriety of conducting an evidentiary hearing onthe validity of the warrant while the matter was pending before the United States Court ofAppeals.[[7]]\u00a0 The record also strongly supports his findings that Trinity was notprejudiced by the Secretary’s refusal to comply with his discovery orders and that theSecretary’s refusal did not amount to contumacious conduct.\u00a0 We therefore concludethat Judge Burroughs properly exercised his discretion to refuse to dismiss the case andto decide the matter on the merits.II. DOCKET NO. 88-1545A. BackgroundDocket No. 88-1545 involves two citations allegingviolations of OSHA health standards.\u00a0 Citation no. 1 alleges willful violations ofseveral noise exposure standards promulgated at 29 C.F.R. ? 1910.95.\u00a0 Item 1 ofcitation no. 2 alleges an other-than-serious violation of an ionizing radiation standardpromulgated at 29 C.F.R. ? 1910.96.\u00a0 For reasons that follow, the alleged violationsof the noise standard, set forth in citation no. 1, are affirmed, but not as willful, anditem 1 of citation no. 2 is vacated.B. Audiometric Testing\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 1.The Alleged ViolationDuring the inspection, noise readings taken by thecompliance officer established that two employees were exposed to noise levels in excessof an 8-hour time-weighted average (TWA) of 85 dBA.\u00a0 The compliance officer alsolearned that none of the employees were given annual audiograms.The primary issue to be decided by the Commission, and thefocus of the oral argument heard before it, is whether Trinity’s hearing protectionprogram was sufficient to relieve it of its obligation to comply with the audiometrictesting provisions of the hearing protection standards promulgated at 29 C.F.R. ?1910.95(g)[[8]]. Jerry Riddles, Trinity’s Corporate Environmental and Safety Director, conducted noisemonitoring in 1976.\u00a0 A copy of the results of the monitoring was sent to OSHA, butlater it was apparently discarded because of its age.\u00a0 As a result of thatmonitoring, certain engineering, controls were implemented by Trinity.\u00a0 In 1982,Riddles conducted a spot test of noise levels in the plant using dosimeters and soundlevel meters.\u00a0 He testified that the test revealed peak noise levels exceeding 85dBA.\u00a0 Riddles considered the results to be representative of noise levels in theplant.\u00a0 Because of the extensive 1976 survey, Riddles knew the type of noise involvedand the type of hearing protection it necessitated.As a result of the 1982 spot tests, Riddles established ahearing protection program for Trinity.\u00a0 Under the program, all employees who couldpossibly be exposed to a TWA of 82 dBA for 8 hours were required to wear approved hearingprotection.[[9]]\u00a0 The protection ranged from foam plugs to muffs. Beginning in1986-87, baseline audiograms were required for all new employees.\u00a0 Employees hiredearlier were not given such audiograms.\u00a0 Neither did Trinity provide annualaudiograms for any of its employees.\u00a0 Riddles explained that the purpose of theannual audiograms required by OSHA is to identify those employees who have a hearingattenuation of 10 dBA so that they can be placed in a hearing protection program. \u00a0(See sections 1910.95(g)(10)(1) & (i)(B)).\u00a0 Riddles testified that because everyemployee at Trinity who could be exposed to 82 dBA for 8 hours went into the hearingprotection program, an annual audiogram was not necessary.Although Riddles considered Trinity’s program to besuperior to the OSHA program, he admitted that his program would not detect possibleemployee hearing loss.\u00a0 He testified, however, that, in his opinion, under OSHAstandards, when an annual audiogram reveals a threshold shift in hearing capacity, if theemployee is already required to wear hearing protection, no further action is required bythe employer.Item 2 of the willful citation alleged that Trinityviolated section 1910.95(g)(6) by not providing annual audiograms to employees found to beexposed to noise levels above the 85 decibel 8-hour TWA.\u00a0 At the hearing, the itemwas amended to also allege a violation of section 1910.95(g)(5)(i) for a failure toprovide baseline audiograms within six months of an employee’s first exposure to noise ator above the action level (i.e., an 8-hour TWA of 85 decibels).\u00a0 The Secretaryproposed a $3000 penalty for each of the two noise items.Judge Burroughs affirmed the items as nonserious andassessed no penalty.\u00a0 He held that Trinity’s hearing protection program did notexcuse noncompliance with otherwise applicable hearing conservation standards. \u00a0Quoting from Hackney, Inc. v. Secretary of Labor, 895 F.2d 1298 (10th Cir. 1990), he heldthat without implementation of the hearing conservation standards, the employer could nottell if its own program was effective.Trinity points out that, by itself, audiometric testingdoes not alleviate or prevent hearing loss.\u00a0 Rather, it asserts that the only purposeof audiometric testing is to enable the employer to determine who should wear hearingprotectors and who needs retraining and refitting.\u00a0 Under its program, Trinityargues, these purposes are fully met and exceeded by requiring all employees to wearhearing protectors that provide the maximum possible noise attenuation, and to undergoannual training emphasizing the need for such protectors and their proper use. \u00a0Trinity concedes that one of the purposes of testing is to notify employees of hearinglosses but it argues that because the hearing protectors reduced noise levels enteringemployees’ ears to 70 dBA or less, there was, at most, a remote chance of employees eversuffering a hearing loss that would require employee notification.The Secretary argues that without audiometric testing,Trinity has no way of verifying the propriety and efficacy of its hearing protectionprogram.\u00a0 Without testing, Trinity can only assume that its employees have beenproperly fitted with personal hearing protection, that its training and enforcementprograms are adequate, and that its employees have suffered no hearing loss.\u00a0 TheSecretary further argues that, as Trinity does not know how well its program is working,it must rely solely on the reported attenuation capabilities of its hearing protectionequipment as measured under laboratory conditions.We agree with the Secretary.\u00a0 The record suggests that Trinity has instituted ahearing protection program that, for the most part offers its employees hearing protectionthat is supposed to be equal or superior to that extended by the OSHA standards.[[10]]\u00a0 Nonetheless, Trinity’s contention that the strictness of its program should exemptit from the applicability of OSHA’s audiometric testing requirements is fatally flawed.\u00a0 Trinity has provided no basis for not complying with the terms of the standard.\u00a0 Once the threshold noise levels are reached, the audiometric testing standards aremandatory.\u00a0 It is well-settled that an employer must comply with applicable OSHAstandards even if it has a good faith belief that its own policy is wiser. Hackney Inc.,895 F.2d at 1300; RSR Corp. v.Brock, 764 F.2d 355, 363 (5th Cir. 1985).\u00a0 Even if theCommission were persuaded by Trinity’s argument, the Commission cannot decline to enforcea standard because it believes it imposes an unnecessary requirement.\u00a0 Pace Constr.Co., 13 BNA OSHC 2161, 2162, 1989 CCH OSHD ? 28,522, p. 37,851 (No. 85-1362, 1989).Moreover, adopting Trinity’s position would be tantamountto creating an exception not found in the standard.\u00a0 Before creating such anexception, the Commission requires persuasive evidence that such an exception was mandatedby the standard’s overall purpose and was consistent with the standard’s intent. \u00a0Schuylkill Metals Corp., 13 BNA OSHC 2174, 2178, 1989 CCH OSHD ? 28,520, p. 37,847 (No.81-0856, 1989).\u00a0 Nothing in the record indicates that an exemption is either mandatedby the standard’s overall purpose or would be consistent with the standard’s overallintent.One of the main purposes for requiring baseline and annualaudiometric testing is to enable the employer to determine if any employee is suffering ahearing loss.\u00a0 Even when employees are provided with quality hearing protection, thetesting can reveal if any employee is wearing the protection improperly or whether theprotection is defective.\u00a0 Hackney, 895 F.2d at 1301.\u00a0 Furthermore, the Secretaryhas recognized that certain employees could suffer from a pathological condition thatcould actually result in hearing loss being caused by the wearing of noise protection.\u00a0 See section 1910.95 (g)(8)(ii)(C).[[11]]\u00a0 Trinity’s hearing conservationprogram provides no method of testing for such a circumstance.Trinity argues that, at most, the audiometric testingitems should be deemed de minimis because any violation had no appreciable effect onemployee safety or health.\u00a0 Trinity argues that its program complied with the clearpurpose of the standard, which is to prevent exposure to high noise levels and to protectagainst hearing loss.\u00a0 Trinity contends that the only difference between its programand the measures required by the standard is the notification to employees that havesuffered a hearing loss.\u00a0 Trinity contends that because of the quality of the hearingprotection used at its plant, noise levels entering employee ears do not exceed 70 dBA,which is below the level that can cause hearing loss. Trinity therefore argues that thelikelihood of any hearing loss is remote and that the violations are properly classifiedas de minimis.We find Trinity’s arguments to be without merit.\u00a0 TheCommission generally will find a violation to be de minimis when the infraction has nomore than a negligible relationship to employee safety or health.\u00a0 See ClevelandConsol., Inc., 13 BNA OSHC 1114, 1118, 1987 CCH OSHD ? 27,829, p. 36,429 (No. 84-696,1987).\u00a0 Under the test, the record fully supports the judge’s holdings in both casesthat the violations were not de minimis.\u00a0 Trinity’s hearing protection program fallsshort of the standard’s requirements in several respects, all of which could have animpact on employee safety and health.First, Trinity’s policy of requiring all employees to wear hearing protection lacks ameans of determining whether the employees were properly wearing their hearing protectionor whether the equipment was effective.\u00a0 Trinity’s failure to conduct audiometrictesting also deprives the employer and OSHA of information necessary to determine whetheran employee’s hearing remains undamaged by workplace noise.\u00a0 Finally, and perhaps ofgreatest importance, no matter how effective Trinity’s program may be in protectingemployee hearing under normal circumstances, the failure to conduct audiometric testingleft Trinity with no means of detecting the possible pathological condition, discussedabove, where the required hearing protection was actually causing an employee’s hearingloss.2. Characterization of the ViolationA violation is willful if committed \”withintentional, knowing or voluntary disregard for the requirements of the Act or with plainindifference to employee safety.\”\u00a0 Williams Enterp., Inc., 13 BNA OSHC 1249,1256, 1987 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987); Asbestos Textile Co., 12 BNAOSHC 1062, 1063,1984 CCH OSHD ? 27,101, p. 34,948 (No. 79-3831, 1984).\u00a0 A willfulviolation is differentiated from a nonwillful violation by a heightened awareness that canbe considered a conscious disregard or plain indifference to the standard.\u00a0 GeneralMotors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD ? 29,240, p.39,168 (No. 82-630, 1991)(consolidated); Williams, 13 BNA OSHC at 1256-57, 1987 CCH OSHDat p. 36,589.\u00a0 There must be evidence that an employer knew of an applicable standardprohibiting the conduct or condition and consciously disregarded the standard. Williams,13 BNA OSHC at 1257, 1987 CCH OSHD at p. 36,589.\u00a0 However, a violation is not willfulif the employer had a good faith belief that it was not in violation.\u00a0 The test ofgood faith for these purposes is an objective one — whether the employer’s beliefconcerning a factual matter, or concerning the interpretation of a rule, was reasonableunder the circumstances. General Motors, 14 BNA at 2068, 1991 CCH OSHD at p. 39,168.The Secretary argues that the violations of theaudiometric testing standards were willful.\u00a0 She points out that Trinity admittedthat it was aware of the OSHA noise standards at the time of the inspections, but arguesthat its decision to ignore the requirements of the standard was not justified by agood-faith belief that it was providing protection superior to that of the standard.\u00a0 The Secretary contends that an employer does not have the right to substitute itsjudgment for the provisions of the standard.Trinity argues that it believed its own program wassuperior to that mandated by the standard.\u00a0 It argues that its conclusion was basedon its belief that the purpose of the audiometric testing requirement was to determinewhich employees should be required to wear hearing protectors.\u00a0 Since all of itsemployees wore top-of-the-line protectors, Trinity claims that it considered audiometrictesting to be a mere redundancy.\u00a0 The Secretary counters that because the Secretaryhad issued a citation to another Trinity facility prior to the inspection here, Trinityknew that its program was not acceptable to the Secretary.\u00a0 However, that citationwas in litigation at the time of this inspection, with Trinity arguing, as it has here,that its program rendered audiometric testing unnecessary.Judge Burroughs did not characterize the noise violationsas willful.\u00a0 He held that, while there was an obvious difference of opinion as to howto comply with the standards, Trinity did not ignore the safety of its employees. \u00a0Judge Burroughs found that, although Trinity knowingly chose to proceed at variance withthe standard, there was no evidence to dispute Trinity’s assertion that it proceeded onthe belief that its hearing conservation program exceeded the requirements of thestandard.\u00a0 Thus, he concluded that \”Trinity did not disregard employeesafety\”.Considering the record as a whole, we agree with JudgeBurroughs’ conclusion that the evidence fails to establish that Trinity’s failure toinstitute a proper audiometric testing program rose to the level of willfulness. \u00a0Although Trinity knew that its hearing protection program did not comply literally withthe Secretary’s standards, there is nothing in the record to indicate that the failure toinstitute audiometric testing was the result of either a conscious disregard or plainindifference to the hearing protection standards.\u00a0 To the contrary, Trinity had agood-faith, though erroneous, belief that the only purpose of audiometric testing was todetermine which employees had suffered a loss of hearing severe enough to require hearingprotection.\u00a0 Because its program required hearing protection before any lossoccurred, Trinity believed that its program provided protection superior to that requiredby the Secretary, thereby rendering audiometric testing redundant and, therefore,unnecessary.While citations issued to another Trinity facility put the company on notice that theSecretary did not share its interpretation, the matter was in litigation.\u00a0 We cannotbase a finding of willfulness on the mere fact that Trinity did not abandon its good-faithinterpretation of a standard while the validity of that interpretation was beinglitigated.[[12]]\u00a0 See General Motors 14 BNA OSHC at 2069, 1991 CCH OSHD at p. 39,169.Moreover, we must also consider that, even though Trinityfailed to comply with the audiometric testing requirements of the hearing protectionstandards, the interests of the employees have been largely protected.\u00a0 Cf. RSR Corp.v. Brock, 764 F.2d at 363 (whether employer’s alternative to literal compliance protectedemployee interests considered a factor when determining if violation was willful). \u00a0While the evidence establishes that the lack of audiometric testing could have resulted inundetected hearing loss, there is no evidence of any such loss in this record. \u00a0 Theevidence also shows that Trinity’s program provided employees with protective equipmentfor the noise they encountered on the job. Therefore, we find that Trinity’s failure toinstitute an audiometric testing program was not willful.The Secretary does not allege, nor is there evidence tosupport a conclusion, that there was a substantial probability that the failure toinstitute audiometric protection could have resulted in death or serious physical harm.\u00a0 Accordingly, the violation is affirmed as other-than-serious.3. PenaltyThe judge assessed no penalty for the violations based onthe low gravity of the violations.\u00a0 We find, however, that a penalty is appropriate.\u00a0 Despite the extensive nature of its hearing protection program, the failure toconduct audiometric testing prevented Trinity from verifying that its program wasoperating as designed.\u00a0 It also prevented Trinity from learning whether hearingprotectors were actually causing some employee hearing loss.Moreover, Trinity is a large corporation with a history of previous OSHA violations.\u00a0 Considering these factors, we find a penalty of $500 to be appropriate.C. MonitoringI. The Alleged ViolationDuring the OSHA inspection, Trinity failed to providerepresentative monitoring or survey information when requested by the compliance officer.\u00a0 Trinity also failed to provide information as to which employees were exposed tovarious levels of noise or any information regarding evaluation of feasible noise controlmethods.As a result, the Secretary, in item 1 of the willfulcitation, alleged that Trinity violated 29 C.F.R. ? 1910.95(d)(1)[[13]] by failing todevelop and implement a monitoring program for employees found to be exposed to noiselevels exceeding an 8-hour TWA of 85 decibels.Although the compliance officer was told about theextensive 1976 noise monitoring, he found the information provided by Trinity to beinsufficient to establish compliance with the monitoring requirements because he was notable to evaluate various employee exposure levels, i.e, who was exposed, to what levelsthey were exposed, where they were exposed, or what they were doing when exposed. \u00a0Nor was he able to determine whether administrative or engineering controls wereimplemented.\u00a0 Riddles told the compliance officer that Trinity instituted extensiveengineering controls as a result of the 1976 monitoring.\u00a0 Despite being given severalopportunities, he failed to provide any written information about the results of themonitoring.\u00a0 The compliance officer testified, however, that while the informationsought might have been contained in OSHA files, \”it had probably been destroyed along time ago.\u00a0 That was eleven years ago.\”\u00a0 The compliance officer alsotestified that, although information was provided about the 1982 survey, it was just astatement of several spot check readings and did not provide sufficient information tocomply with the monitoring standard.Riddles testified that different types of noise at theplant were analyzed as part of the 1976 noise survey.\u00a0 This analysis formed the basisfor recommending the specific types of hearing protection used at the site.\u00a0 Riddlesfurther testified that, because of the results of the 1976 monitoring, engineeringcontrols were instituted to reduce noise levels.\u00a0 He stated that as a result of the1982 noise survey, all employees who could be exposed to noise levels in excess of 82 dBAwere required to wear hearing protection.\u00a0 Riddles also testified that, with theinformation gained from the 1976 survey, Trinity already knew the type of noise involvedand, therefore, the type of hearing protection required.The judge found that, because of the noise levels at theplant, Trinity was required by the standard to conduct initial monitoring that compliedwith the requirements of 29 C.F.R. ? 1910.95(d)(1).\u00a0 Although he recognized that,under 29 C.F.R. ? 1910.95(m)(3)(i), [[14]] monitoring records are required to be kept foronly two years, he concluded that, once the Secretary establishes noise levels thattrigger the monitoring provisions, the burden shifts to the employer to establishcompliance.\u00a0 The judge found that Riddles’ mere assertion that Trinity conducted asurvey, without any indication of sampling strategies, amounted to little more than aself-serving declaration and was not sufficient to establish compliance with themonitoring standard.Essentially reiterating the argument it made regarding audiometric testing, Trinity firstcontends that the purpose of the monitoring standards is to identify employees forinclusion in a hearing program and to enable the proper selection of hearing protectors.\u00a0 Because it is undisputed that all employees were included in the hearingconservation program and that the hearing protectors were suitable for the noise levelsinvolved, Trinity contends that there was no need to conduct monitoring.Trinity also argues that the judge improperly imposed onit the burden of establishing compliance with the standard by requiring it to producerecords that it was not required to keep.As is the case with the audiometric testing requirements,an employer’s obligation to conduct monitoring is mandatory once a threshold noise levelis reached.\u00a0 As stated above, the Commission cannot decline to enforce a standardbecause it believes it imposes an unnecessary requirement.\u00a0 Pace Constr. Co., 13 BNAOSHC at 2162, 1989 CCH OSHD at p. 37,847.\u00a0 Trinity’s belief that its hearingconservation program made monitoring redundant did not excuse it from compliance with amandatory OSHA requirement.\u00a0 See Sierra Constr. Corp., 6 BNA OSHC 1278, 1282, 1978CCH OSHD ? 22,506, p. 27,159 (No. 13638,1978).\u00a0 If it wanted relief from itsobligation to conduct the requisite noise surveys, it should have applied for a variance.\u00a0\u00a0 Id. at 1282 n.11, 1978 CCH OSHD at p. 27,159 n.11.While the wording used by the judge may give theimpression that he improperly allocated the burden of proof, [[15]] we find that theevidence does establish the violation.\u00a0 The Secretary established that employees atthe plant were exposed to noise levels exceeding an 8-hour TWA of 85 dBA and, therefore,that Trinity was obligated to develop and implement a monitoring program fulfilling therequirements of section 1910.95(d)(1).\u00a0 The standard requires that the monitoringenable the employees to identify employees for inclusion in a hearing protection programand to enable the proper selection of hearing protectors.\u00a0 The record shows that the1976 monitoring occurred before the current standard went into effect.\u00a0 Under theearlier monitoring requirements, although employers were obligated to determine whethertheir employees were exposed to noise levels above permissible levels, there were noexplicit monitoring requirements.\u00a0 The new noise standard created new obligations,threshold levels and computation methods that were not applicable under the old noisestandard.\u00a0 Therefore, any monitoring performed in 1976 could not have been conductedwith the intent of fulfilling the various requirements of the current standard.We find that this evidence is sufficient to establish aprima facie violation of the standard.\u00a0 The burden, therefore, shifted to Trinity torebut the Secretary’s showing.\u00a0 However, Trinity produced no evidence to establishthat the monitoring fulfilled the specific requirements of the current noise standard.\u00a0 See supra note 13.\u00a0 Riddles’ testimony[[16]] failed to establish that eitherTrinity’s 1976 or 1982 monitoring fulfilled the particular requirements of the currentstandard.\u00a0 The 1982 spot check consisted of only four separate dosimeter readings, aswell as several sound level readings, and was not intended to be a representativemonitoring as required by the standard.\u00a0 The documents relating to the 1976monitoring could have rebutted the Secretary’s prima facie case, but they wereunavailable. Moreover, Trinity adduced no testimony and produced no evidence to indicatethat the 1976 monitoring met the requirements of the current monitoring standard.[[17]] 2. Characterization of the ViolationAs with the violations of the audiometric testingrequirements, the Secretary argues that the failure to monitor was willful.\u00a0 Shecontends that Trinity knew of, but made a conscious decision to ignore, the requirement tomonitor.Under the terms of section 1910.95(d)(3), [[18]] anemployer is required to remonitor its worksite whenever a change in production, process,equipment or controls could increase employee noise exposure.\u00a0 The record does notjustify a finding that Trinity’s failure to remonitor was the result of either intentionaldisregard of the standard or indifference to employee safety.\u00a0 Trinity could wellhave believed that because there had been no major changes in production, it was under noobligation to remonitor the worksite.\u00a0 Moreover, its hearing protection programpartially fulfilled the dual purpose of the standard of identifying employees to beincluded in the hearing protection program and determining the proper protection to beprovided to them.\u00a0 Therefore, we conclude that the violation was not willful.As the judge properly found, there is no evidence tosupport a finding that there was a substantial probability that death or serious physicalharm could result from Trinity’s failure to remonitor.\u00a0 Therefore, we classify theviolation as other-than-serious.\u00a0 The judge assessed no penalty for the violation andthere is nothing in the record to indicate that his determination was not appropriate.D. Radiation SurveyTrinity uses an x-ray machine to check the integrity ofthe welding seams of its liquid propane tanks.\u00a0 During the inspection, the complianceofficer asked Safety Director Riddles for a copy of the radiation survey that was requiredto be made under 29 C.F.R. ? 1910.96(d)(1).[[19]]A copy of the report from a state inspection conducted inDecember 1987 was provided, but the compliance officer was not given a copy of a companyradiation survey.\u00a0 The compliance officer did testify, however, that dosimeterreadings and employee radiation badges indicated that employees were exposed to lowradiation levels.\u00a0 However, he stated that, without the survey, it would not bepossible to discern the level of radiation in an area to which an employee may be exposedin the event of an accident.\u00a0 The Secretary subsequently cited Trinity for failing tocomply with section 1910.96(d)(1) on the grounds that it failed to conduct a radiationsurvey as required by the standard.\u00a0 The violation was classified asother-than-serious.\u00a0 No penalty was proposed.Greg McRae, Trinity’s Quality Assurance Manager, testifiedthat he personally conducted a radiation survey when the x-ray machine was installed in1984.\u00a0 He testified that he performed the survey with a survey meter and that theresults indicated a radiation output approximately one-tenth of permissible levels. \u00a0McRae also testified that he performs a radiation survey at least once a year, but that hekeeps no notes or records.Judge Burroughs affirmed the item.\u00a0 He noted thatevidence must be available to show compliance and that a written survey would be the bestmeans of demonstrating compliance even though nothing in the standard requires that thesurvey be in writing.\u00a0 The judge was also concerned that, because McRae did nottestify as to the actual readings taken during the survey, it was not possible toascertain if Trinity was in compliance.\u00a0 In conclusion, the judge held that\”[f]acts regarding actual readings are necessary to establish compliance.\”\u00a0 In the absence of such evidence, the judge was unable to ascertain the accuracy ofMcRae’s opinion that the machine’s radiation output was low.\u00a0 He concluded that,\”Trinity had the burden to show compliance.\u00a0 It has failed to meet thatburden.\”Trinity argues that the standard requires neither that thesurvey be written nor that it be made available to the Secretary.\u00a0 It requires onlythat a survey be made.\u00a0 Trinity contends that the evidence established that itconducted the required survey when the x-ray machine was installed in 1984.\u00a0 Itpoints out that the evidence establishing that employees were exposed to radiation levelsfar below proscribed limits supports McRae’s testimony that, when the machine wasinstalled, he performed a radiation survey that revealed radiation levels far belowpermissible limits.The Secretary argues that, contrary to Trinity’scontentions, the judge did not affirm the item because the survey was not in writing.\u00a0 Rather, the judge found that the lack of a written survey together with Trinity sinability to adduce evidence as to any actual readings rendered Trinity’s proof ofcompliance insufficient.\u00a0 The Secretary argues that the failure to credit McRae’stestimony was a credibility determination that should not be disturbed.We first note that the judge misapplied the burden ofproof.\u00a0 His statement that \”Trinity had the burden to show compliance,\”culminated a discussion in which he clearly seemed to place the burden of establishingprima facie compliance on Trinity.\u00a0 As previously noted, the burden is on theSecretary to establish a prima facie violation.\u00a0 The burden would then switch toTrinity to rebut the prima facie showing.\u00a0 The question, then, is whether theSecretary made the requisite prima facie showing.\u00a0 We find that the Secretary did notmake such a showing.If the standard required that the survey he reduced towriting, Trinity’s inability to produce a written survey would have been sufficient toestablish the violation.\u00a0 The Secretary properly points out, however, that thestandard does not require that the survey be reduced to a written form.\u00a0 Nonetheless,an employer’s inability to produce a written survey when requested by the Secretary isstrong evidence that the requisite survey was not made and may be sufficient to establisha prima facie violation.\u00a0 Of course, the employer can then rebut the prima facieshowing by producing evidence that it conducted the requisite survey.\u00a0 We find thatMcRae’s testimony [[20]] that he conducted a radiation survey was such a rebuttal.When Trinity rebutted the allegation that it failed toconduct any survey, the burden was on the Secretary to show that the survey that wasconducted failed to meet the requirements of the standard.\u00a0 See All Purpose Crane, 13BNA OSHC at 1238, 1987 CCH OSHD at p. 36,549 (Secretary has burden of establishing eachelement of the violation).\u00a0 It is here that the Secretary failed to establish theviolation.Section 1910.96(d)(1) is not a model of clarity.\u00a0 It requires that the surveys beconducted in a manner sufficient to allow compliance with the remainder of section1910.96, the long and complex standard on ionizing radiation.[[21]]\u00a0 In order tocomply, an employer must sift through the standard’s requirements to determine whatinformation is necessary. When the Secretary alleges that a survey is not sufficient, theburden is on the Secretary to show why that survey was not sufficient.\u00a0 See E.I.duPont de Nemours & Co., 10 BNA OSHC 1320, 1325, 1982 CCH OSHD ? 25,883, p. 32,381(No. 76-2400, 1982) (Secretary failed to establish that shower facilities provided byemployer were not \”suitable\” within meaning of the standard).In her complaint, the Secretary alleged that Trinity didnot \”make such surveys as necessary to evaluate the radiation hazards incident to theproduction, use, release, disposal, or presence of radioactive materials or other sourcesof radiation under specific set of conditions….\”The record established, however, that employees wererequired to wear badges and that those badges indicated radiation exposures withinacceptable limits.\u00a0 Moreover, dosimeter readings taken by the compliance officerindicated radiation levels well within acceptable limits, and supported the findings ofthe survey taken by McRae.\u00a0 The Secretary has not alleged the \”specific set ofconditions\” that should have been included in the survey, nor specified why theinformation obtained from the survey and the radiation badges was inadequate to satisfythe requirements of the standard.\u00a0 In short, neither the citation, complaint, norinformation provided at the hearing provided Trinity with sufficient information on howits survey failed to meet the requirements of the standard.\u00a0 See Meadows Indus., 7BNA OSHC 1709, 1710-11, 1979 CCH OSHD ? 23,847, pp. 28,923-24, (No. 76-1463, 1979);Gannett Corp., 4 BNA OSHC 1383, 1384, 1976-77 CCH OSHD ? 20,915, p. 25,114 (No. 6352,1976).\u00a0 This left it unable to defend against the allegation.[[22]]\u00a0 See GoldKist, Inc., 7 BNA OSHC 1855, 1862, 1979 CCH OSHD ? 23,998 (No. 76-2049,1979).\u00a0 Wetherefore reverse the judge and vacate the item.III. DOCKET NO. 88-1547A. Forklift MountingsDuring the safety inspection, the compliance officerobserved a forklift with one of the two metal mounting straps used to secure the liquidpropane cylinder unfastened.\u00a0 When the matter was brought to the attention of SafetyDirector Riddles, it was fastened.\u00a0 The next afternoon, it was loose again. \u00a0Trinity determined that the strap was sprung, and ordered a new strapping system. \u00a0Riddles testified that there was no danger that the tank would come loose with theremaining strap in place.\u00a0 However, Daniel Virgin, Trinity’s plant manager, admittedthat the system was designed for two straps.\u00a0 As a result Trinity was cited for another-than-serious violation of 29 C.F.R. ? 1910.110(e)(4)(iii).[[23]]The judge affirmed the item, but assessed no penalty.\u00a0 He concluded that the systemwas designed with two straps to provide additional restraint to prevent the fuel containerfrom jarring loose, slipping or rotating.\u00a0 He noted that there was no way that anemployee could predict or anticipate when the remaining strap would break loose or becomeloosened to the point of allowing the container to jar loose, rotate, or slip.Trinity argues that the judge erred in affirming the itemon the grounds that \”two straps are better than one.\”\u00a0 It argues that,under the terms of the standard, the test for compliance is whether the tank is\”securely mounted to prevent jarring loose, slipping or rotating.\”\u00a0 Trinitycontends that the evidence that the tank was so mounted was uncontroverted.The Secretary argues that the standard requires thatfastenings be designed and constructed to withstand a static load of twice the weight ofthe filled tank and provide a safety factor of four for the material used.\u00a0 Sheclaims that it is logical to infer that the two straps were considered by the manufacturerto be necessary to comply with the standard.\u00a0 It was, therefore, reasonable for thejudge to conclude that the integrity of the system was compromised and the standardviolated when 50 percent of the holding power of the fastenings was lost through thefailure of one of its two straps.We affirm the judge’s decision.\u00a0 The standardrequires that tanks be \”securely mounted to prevent jarring loose, slipping, orrotating.\”\u00a0 The restraining system was designed with two straps; one beinglocated on either end of the tank.\u00a0 With one strap gone, the remaining strap onlysecured one end of the tank.\u00a0 Although the remaining strap may have been sufficientto keep the tank on the forklift while it was immobile, any jarring, or sharp movementcould have increased the pressure on the unsecured end and loosened the entire tank.\u00a0 By showing that one of the two straps designed to secure the tank was broken, theSecretary made a prima facie showing that the tank was not securely mounted. \u00a0Although Trinity showed that the tank was secure while the forklift was not moving, it hasadduced no evidence to indicate that the remaining strap was sufficient to restrain thetank should the forklift have encountered any foreseeable bumping, jarring, or sharpmovement.\u00a0 Accordingly, Trinity has failed to rebut the Secretary’s prima facieshowing, and the item is affirmed.We find no error either in the judge’s characterization ofthe item or in his penalty assessment.\u00a0 Therefore, the item is affirmed asother-than-serious and no penalty is assessed. B. Mechanical Power PressDuring the inspection, the compliance officer observedthat a Kling Brothers Engineering Works mechanical power press, located at the northeastend of the plant, did not have a point of operation guard or device as required by 29C.F.R. ? 1910.217(c)(1)(i).[[24]]\u00a0 The press is operated by a foot pedal, and isused to punch holes in tank cylinder heads.\u00a0 The tank heads are large, bowl-shapedcylindrical objects that weigh 35-40 pounds.\u00a0 The operator stands next to the machineand uses both hands to hold the tank head while the hole is being punched.\u00a0 Thecompliance officer testified that there was nothing to prevent an employee from gettinghis hand or fingers caught in the point of operation.The judge affirmed the item.\u00a0 He noted that the onlyexception to the requirement that the press he guarded is when the point of operationopening is one-fourth inch or less.\u00a0 Section 1910.217(c)(1)(ii).\u00a0 Since theopening was greater than one-fourth inch, he concluded that a guard was required. \u00a0The judge rejected Trinity’s argument that it was not feasible to guard the headpunch.\u00a0 The judge observed that, although Riddles testified that guarding wasinfeasible, he gave little or no reason for his conclusion.\u00a0 Moreover, the judgefound no evidence that Trinity explored other methods of abatement.\u00a0 The violationwas affirmed as serious, and a penalty of $240 was assessed.On review, Trinity argues that the evidence establishesthat the punch press is not a hazard.\u00a0 According to Trinity, absent a deliberate act,an employee could not get his finger caught in the point of operation.\u00a0 Trinitypoints out that, because it takes both hands to steady the head while the material isinserted into the point of operation, the employee’s hands do not get close to the pointof operation.\u00a0 Therefore, Trinity argues that the Secretary failed to prove that theoperator was exposed to a hazard.The Secretary argues that the cited standard presumes thatan unguarded mechanical power press constitutes a hazard.\u00a0 Therefore, the employer’sobligation to comply does not depend upon the existence of a hazard.\u00a0 Rather, itrequires every operation on a mechanical power press to be protected by a guard.\u00a0 Sheclaims that the press did not have a point of operation guard and, therefore, was inviolation of the standard.Trinity submitted into evidence a film depicting theoperation of the press.\u00a0 As Trinity claims, the film establishes that, when used inthe cited operation, the operator cannot get any part of his hand into the point ofoperation.\u00a0 The film shows that it takes two hands to hold and steady the concavecylinder head while it is inserted into the machine and punched.\u00a0 The cylinder headis large and blocks the employee from getting any part of his body near the point ofoperation.\u00a0 When the cylinder head is placed into the press, the employee must holdthe concave cylinder head with both hands.\u00a0 For the operator to get his hands in thepoint of operation, he would have to hold the cylinder head with one hand, reach acrossthe cylinder head then move his hand up along the curve of the cylinder head and stick hishand underneath the ram.\u00a0 This would require a deliberate act.The standard requires that the machine be equipped witheither a point of operation guard or device.\u00a0 Under 29 C.F.R. ? 1910.217(3)(i)(b), a\”point of operation device\” is one that prevents the operator \”frominadvertently reaching into the point of operation.\”\u00a0 The cylinder head fulfillsthis requirement.\u00a0 Accordingly, we find that, when used to punch holes in thecylinder heads in the manner shown in Exhibit R-13, the tank heads act as a de facto\”point of operation device,\” thereby fulfilling the requirements of the citedstandard.\u00a0 We therefore reverse the judge and vacate the item. [[25]]C. The PA4 PressTrinity’s PA4 press is used to punch drainage notches outof the base ring that is later welded to the liquid propane tanks.\u00a0 The complianceofficer testified that when the machine was turned on, it cycled twice without the footpedal being activated and continued to cycle when the employee held his foot on the pedal.\u00a0 Based on these circumstances, Trinity was cited for serious violations of 29 C.F.R.?? 1910.217(b)(3)(i) and 1910.217(b)(8)(iii). [[26]]Plant manager Virgin testified that he saw an employeedepress the pedal prior to activation and that was the reason why it cycled whenactivated.\u00a0 He denied that the machine cycled more than once.\u00a0 In itspost-hearing brief, however, Trinity admits that the single-stroke mechanism was broken.Based on this evidence the judge affirmed the violations.\u00a0 Because the hazard was thecrushing or amputation of hands or fingers, he found the violation to be serious andassessed a $240 penalty for the violation of section 1910.217(b)(3)(i) and a $480 penaltyfor the failure to comply with section 1910.217(b)(8)(iii).On review Trinity does not dispute that the press lacked asingle-stroke mechanism, or that the machine could cycle without the foot pedal beingdepressed.\u00a0 However, it contends that these items should be vacated because theSecretary failed to establish that the machines presented a hazard.\u00a0 The argument iswithout merit.\u00a0 If a standard does not incorporate a requirement that a hazard beshown to exist, such a showing is not part of the Secretary’s prima facie case because thehazard is presumed.\u00a0 StanBest, Inc., 11 BNA OSHC 1222, 1231, 1983 CCH OSHD ? 26,455,p. 33,625 (No. 76-4355, 1983).\u00a0 The safety requirements set forth in the twostandards are not predicated on the existence of a hazard. They are mandatory for amachine like the PA4 press, and are not dependent on the existence of a hazard.Trinity further argues that if the standard does notrequire the Secretary to establish the existence of a hazard, the violation was deminimis.\u00a0 Trinity contends that the evidence indicates that it would require adeliberate act for an employee to get any part of his body into the point of operation.\u00a0 It contends that access is impossible from the front of the press and that from thetop, the employee would have to reach over the guard, insert his hand down alongside theram approximately 16 inches, then put his fingers up and under the point of the die.\u00a0 To get in from the rear, the employee would have to crouch down and reach aroundand up.\u00a0 Therefore, it contends that because an employee cannot get his hand in thepoint of operation, the inoperative single stroke mechanism would have no effect onemployee safety.As stated above, a noncomplying condition is deemed to bede minimis when the hazard involved bears such a negligible relationship to employeesafety as to render inappropriate imposition of a penalty or the entry of an abatementorder.\u00a0 Super Excavators, 15 BNA OSHC 1313, 1314, 1991 CCH OSHD ? 29,498, p. 39,803(No. 89-2253, 1991); National Indus. Constructors, Inc., 10 BNA OSHC 1081, 1094, 1981 CCHOSHD ? 25,743, p. 32,135 (No. 76-4507, 1981).\u00a0 We find that, on these facts, theevidence establishes that the violations of the cited standard did have a significantrelationship to employee safety.Trinity stresses that, under normal operations, there wasno likelihood of an accident.\u00a0 Even if Trinity is correct, however, the fact remainsthat accidents generally do not always occur during normal operations.\u00a0 Indeed, thevery term \”accident\” implies that something abnormal has occurred. \u00a0Standards are intended to protect against injury resulting from an instance of inattentionor bad judgment as well as from risks arising from the operation of a machine. Pass &Seymour, Inc., 7 BNA OSHC 1961, 1963, 1979 CCH OSHD ? 24,074, p. 29,238 (No. 76-4520,1979).Moreover, item 10(b), which was affirmed by the judge,alleged a point of operation guarding violation on this press because neither the top northe back of the machine was guarded.\u00a0 Therefore, an employee could reach the point ofoperation by reaching in from the top or behind from the rear.\u00a0 Trinity does notdispute this holding.\u00a0 The lack of a single-stroke mechanism or an improperlyoperating foot pedal significantly increased the risk of injury to employees who mighthave had occasion to have a hand or other part of their body near the point ofoperation.[[27]]\u00a0 This additional hazard precludes a finding that the violations werede minimis.[[28]]We agree with the judge that, because the hazard was thecrushing or amputation of hands or fingers, the violation was properly categorized asserious.\u00a0 We also agree with the penalties assessed by the judge.\u00a0 Therefore, a$240 penalty is assessed for the violation of section 1910.217(b)(3)(i), item 8(b) and apenalty of $480 is assessed for the violation of section 1910.217(b)(8)(iii), item 9.ORDER Accordingly, in Docket No. 88-1545, item 1 of citation no. 1, which alleged noncompliancewith 29 C.F.R. ? 1910.95(g)(5)(i) and (g)(6), is affirmed as other-than- serious; apenalty of $500 is assessed.\u00a0 Item 2 of citation no. 1, which alleged noncompliancewith 29 C.F.R. ? 1910.95(d)(1), is affirmed as other than serious; no penalty isassessed.\u00a0 Item 1 of citation no. 2, which alleged noncompliance with 29 C.F.R. ?1910.96(d)(1), is vacated.In Docket No. 88-1547, items 8(b) and 9 of citation no. 1,which allege noncompliance with 29 C.F.R. ? 1910.217(b)(3)(i) and (b)(8)(iii), areaffirmed as serious.\u00a0 A penalty of $240 is assessed for item 8(b).\u00a0 A penalty of$480 is assessed for item 9.\u00a0 Item 10a of citation no. 1, which alleged a failure tocomply with 29 C.F.R. ? 1910.217(c)(1)(i), is vacated.\u00a0 Item 8 of citation no. 2,which alleged noncompliance with 29 C.F.R. ? 1910.110(e)(4)(iii), is affirmed asother-than-serious; no penalty is assessed.Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ChairmanDonald G. Wiseman\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CommissionerVelma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CommissionerDated: April 22, 1992SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 v.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 TRINITYINDUSTRIES, INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Respondent.OSHRC Docket Nos. 88-1545 and 88-1547APPEARANCES: Curtis L. Gaye, Esquire, and Ken S. Welsch, Esquire, office of the Solicitor,U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.Robert E. Rader, Esquire, Lock, Purnell, Rain, Harrell,Dallas, Texas, on behalf of respondent.DECISION AND ORDERBurroughs, Judge:\u00a0 Trinity Industries, Inc.,(\”Trinity\”) contests a willful citation and \”other\” citation, allegingviolations of health standards, and a serious citation and \”other\” citation,alleging safety violations, issued to it on June 21, 1988, as a result of an inspectionconducted at its Jacksonville, Florida, plant.\u00a0 The inspection was initiallyattempted on May 2, 1983, but Trinity refused consent.\u00a0 Protracted litigation ensuedwhich resulted in Industrial Hygienist Joel Broadaway and Compliance Officer John Deiferinspecting the plant, pursuant to a search warrant, from December 17-23, 1987.Trinity filed separate notices of contest with respect tothe alleged health and safety violations.\u00a0 The citations pertaining to the healthallegations were assigned Docket Number 88-1545.\u00a0 The allegations concerning safetyviolations have been included in Docket Number 88-1547.\u00a0 While the dockets were notofficially consolidated, it was agreed that the evidence developed in one case could beused in the other (Tr. Dkt. 88-1545, pp. 3-5).\u00a0 Since there are several common issuesand common background facts, this decision will cover all issues raised in both cases.MOTIONS TO DISMISS CITATIONS1. Renewed Motion for Sanctions DeniedTrinity has filed three motions which it contendsnecessitate that the allegations be dismissed.\u00a0 The first motion seeks dismissal ofthe citations because of the Secretary’s refusal to comply with discovery orders. \u00a0This issue is related to Trinity’s motion to suppress evidence on the grounds that OSHA’sinspection plan is discriminatory and unfair.\u00a0 The Secretary refused to permit itsemployees to respond to questions directed toward the warrant issue and refused to producedocuments on any matters sought by Trinity in an effort to prove the search warrant wasinvalid.\u00a0 On March 21, 1989, subsequent to the hearing, Trinity filed a motion forsanctions seeking an order vacating the citations. This Judge had previously agreed torule on the motion prior to having the parties file briefs on the merits of theallegations. A 22-page order was issued on June 16, 1989, denying the motion. \u00a0Trinity renews the motion in its brief. For the reasons stated in the order issued on June16, 1989, the renewed motion is denied.2. Delay Not PrejudicialTrinity’s second motion seeks to have the citationsvacated for failure of the Secretary to issue them with \”reasonable promptness\”as required by section 9(a) of the Act.[[1]]\u00a0 The inspection occurred during theperiod December 17-23, 1987. (An opening conference was held on December 16, 1987). \u00a0The closing conference was held by telephone on June 20, 1988.\u00a0 The citations wereissued on June 21, 1988. Trinity states that this delay was prejudicial to its ability todefend against the allegations.In support of its motion, Trinity argues that conditions changed during the delay inissuing the citations and resulted in Trinity being unable to view the same conditionsallegedly observed by the OSHA inspectors.\u00a0 It makes the following representations:During the six month delay conditions in the plant hadchanged.\u00a0 For instance, the 600 ton hydraulic press that was cited had been shut downand dismantled. (Dkt. 1547, Tr. 161-163).\u00a0 Conditions such as welding flash, whetherflammable liquids were being dispensed while the forklift battery was being charged, andwhether there was mud on press foot pedals, had obviously changed.\u00a0 Other items, suchas loose receptacle covers, the residue on paint filters, loose wiring, tears in weldingcurtains, flexible cords attached to building surfaces, or open switch box covers, areitems that are corrected in the normal safety inspection and maintenance process. \u00a0(Dkt. 88-1547, Tr. 73; Dkt. 88-1545, 109-110).\u00a0 It was therefore not possible forTrinity to go back to the plant on June 20, 1988, and determine whether the allegedviolative conditions actually existed on December 16-22, 1987.The test for reasonable promptness is a determination ofwhether the employer has actually been prejudiced by the delay in issuing the citation.\u00a0 Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979).\u00a0 The Commissionstated in Stripe-A-Zone, Inc., 81 OSAHRC 31\/E13, 10 BNA OSHC 1694, 1982 CCH OSHD ? 26,069(No. 79-2380, 1982), that unless an employer establishes prejudice in the preparation orpresentation of his defense, a citation will not be vacated for the Secretary’s allegedfailure to issue it with reasonable promptness.\u00a0 See also National IndustrialContractors, 81 OSAHRC 94\/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ? 25,743 (No. 76-4507,1981).\u00a0 The inquiry is a factual one.\u00a0 The employer has the burden to establishthat it has been prejudiced by the delay in its ability to prepare and present its case.While Trinity alleges certain conditions changed,prejudice in the preparation and presentation of its defense because of the delay has notbeen established.\u00a0 Clearly, the delay made Trinity’s defense more difficult oncertain issues but not impossible.\u00a0 The mere fact that conditions had changed doesnot per se mean that Trinity was prejudiced in the preparation of its defense. \u00a0Reconstruction of events and conditions is a problem in most litigation but is notnormally a cause for dismissal.\u00a0 The evidence indicates that three to four ofTrinity’s management personnel, and on occasion, their local attorney, accompaniedBroadaway and Deifer during their inspection.\u00a0 They made notes and took photographsof conditions observed by Broadaway and Deifer (Tr. 481, 489, 490).\u00a0 They observed orhad the same opportunity to observe the cited conditions.\u00a0 There has been no showingthat the group accompanying Broadaway and Deifer and the employees directly exposed to thehazards had no knowledge of the cited conditions.\u00a0 An employer’s \”unsupportedgeneral allegations do not establish prejudice.\”\u00a0 National IndustrialConstructors, Inc., supra, 10 BNA OSHC at 1084.\u00a0 The motion is denied.3. The Inspection was Conducted in a Reasonable Manner Trinity’s third motion to dismiss is based on its argument that the Secretary, through herduly authorized representatives (Joel Broadaway and John Deifer), violated section 8(a)(2)of the Act by inspecting its plant in a punitive, abusive and unreasonable manner. Undersection 8(a)(2) of the Act, 29 U.S.C. ? 657(a)(2), the Secretary is directed to conducther inspections \”within reasonable limits and in a reasonable manner.\”\”Reasonableness is a question of fact to be rendered by the finder of fact.\”Marshall v. Miller Tube Corporation of America, _ F. _(E.D. N.Y. 1979), 6 BNA OSHC 2042,2044.Trinity states that \”[t]he Jacksonville Area Officewas determined to penalize and make an example of Trinity because Trinity challenged theconstitutional fairness of OSHA’s inspection plan.\”\u00a0 There is no evidence ofrecord to support such a sweeping statement.\u00a0 Trinity may have thought that was thesituation, but its conclusion is unsupported.\u00a0 There is also no support for thestatement that the compliance officers were \”instructed to conduct an extremely’thorough’ inspection.\”\u00a0 One would hope that all OSHA inspections are\”thorough\” and fair since it is OSHA’s task to enforce the law.\u00a0 There isno evidence to indicate Trinity was the subject of an orchestrated effort to harass it.Trinity had been successful by litigation in delaying theinspection from May 2, 1983 (when Trinity first refused a consensual inspection) toDecember 16, 1987 (the date of the opening conference pursuant to the warrant).\u00a0 OnceOSHA was successful in gaining entry to conduct the inspection, Broadaway and Deifer hadno reason to expect they would be allowed another entry if they overlooked some evidence.\u00a0 Under such circumstances, it should be expected that compliance officers, in mostinstances, are going to proceed at a slower pace and insure they are thorough in theirinspection.\u00a0 There is certainly nothing unreasonable, abusive or punitive inproceeding in that manner.\u00a0 Trinity, within its rights, chose to refuse an inspectionunless OSHA had a warrant.\u00a0 It elected to proceed on an adversary rather thancooperative basis.\u00a0 It should not always expect a friendly and cooperative attitudeof compliance officers in such circumstances.\u00a0 The conduct of the compliance officerswas more in the category of demonstrating that they would not be intimidated rather thanone of abuse or punitive action.Trinity asserts the following in support of its argumentthat the inspection was conducted in an unreasonable, abusive and punitive manner:1. That OSHA prolonged the length of the inspection bytaking six days to complete it;2. That the nature and number of the alleged violationsreflect OSHA’s bad faith;3. That an unusually large number of employee interviews were conducted to harass anddisrupt production;4. That the conduct of the compliance officers wasthreatening and overbearing; and5. That the inspection was unnecessarily disruptive andcostly to Trinity.Trinity has placed its own conclusion on the reason forthe length of the inspection, the number of alleged violations cited, the large number ofemployee interviews, that the inspection was disruptive and that Broadaway and Deifer werethreatening and overbearing.\u00a0 A reasonable analysis of the evidence of record doesnot support the conclusions formulated by Trinity.\u00a0 It appears clear that Broadawayand Deifer were determined to do a thorough inspection and were not going to be deterredfrom doing so by management personnel of Trinity.\u00a0 In accomplishing their mission,they may not have proceeded in the manner desired by Trinity but that does not make theinspection unreasonable.An examination of Trinity’s attitude toward the inspectionis necessary to understand the actions of Broadaway and Deifer.\u00a0 Trinity establishedthe tone of the inspection and attempted to control the course to its satisfaction. \u00a0First of all, it had a meeting with employees prior to the inspection. \u00a0 Ostensibly,the meeting was for the purpose of explaining employees’ rights during an OSHA inspection(Tr. 397-399).\u00a0 After the meeting, many of Trinity’s employees refused to beinterviewed by the compliance officers or wear personal monitoring equipment (Dkt.88-1545; Tr. 397-399).\u00a0 The lack of cooperation by employees after the meeting raisesdoubt as to Trinity’s objective in holding the meeting.\u00a0 The lack of employeecooperation contributed to the length of the inspection.Broadaway and Deifer, for the most part, were required toremain together even though they were conducting different types of inspections, i.e.,health versus safety.\u00a0 They were accompanied by management personnel, and onoccasion, Trinity’s local attorney, who made notes and took photographs (Dkt. 88-1545; Tr.481, 489, 490).\u00a0 This raises the question of who was trying to intimidate whom?\u00a0 The compliance’s officers were working in the hostile environment. Under thecircumstances, their conduct can not be deemed to be abusive or punitive.During the course of the inspection, Broadaway supposedlywas overheard to say to Deifer that \”we will show them the finer points of law\”(Dkt. 88-1545; Tr. 477-478).\u00a0 Trinity interprets this remark as indicating that theywere going to \”teach it a lesson.\”\u00a0 The crux of the matter is that theywere inspecting pursuant to a warrant and were legally entitled to proceed under fullauthority of the powers granted in the warrant.\u00a0 The damaging point to Trinity’sargument is that it can not point to any illegal act on the part of Broadaway and Deiferin conducting the inspection.\u00a0 They may not have been as submissive as Trinitydesired, but there is no proof of any illegal act on their part in conducting theinspection.Assuming arguendo that Broadaway and Deifer were abusiveand unreasonable, does such conduct warrant dismissing the citations?\u00a0 Has Trinitybeen harmed by an insistent or surly attitude on the part of the compliance officers?\u00a0 The evidence of record mandates that this question be answered in the negative.\u00a0 There are different degrees of reasonableness.\u00a0 Dismissal should be the remedyin only those instances that shock the public consciousness.\u00a0 The goal of the Act isto protect the worker in his place of employment.\u00a0 Inspections are a means toattaining that goal. Dismissing citations because of the lack of courtesy or a friendlyand cooperative attitude by compliance officers would defeat the purpose of the Act.\u00a0 The Commission in Electrocast Steel Foundry, Inc., 79 OSAHRC 1\/F14, 6 BNA OSHC1562, 1978 CCH OSHD ? 22,702 (No. 77-3170, 1978), in remanding the case for a section8(a)(2) hearing to determine if, as alleged by Electrocast, the inspection was conductedin a punitive and unreasonable manner stated (6 BNA OSHC at 1564):Electrocast should produce any evidence bearing on itsclaim, including but not limited to any evidence which would tend to establish that thealleged violation of ? 8(a)(2) resulted in actual prejudice to the preparation orpresentation of its defenses to the merits of the citation [sic].\u00a0 See Marshall v.Western Waterproofing Co., 560 F. 2d 947 [5 OSHC 1732] (8th Cir. 1977); Todd ShipyardsCorp. v. Secretary of Labor, 566 F.2d 1327 [6 OSHC 1227] (9th Cir. 1977);The quoted language suggests that the employer must showprejudice in the preparation and presentation of its defense prior to definitive actionbeing taken against the Secretary.\u00a0 No prejudice has been demonstrated in this casewhich warrants the extreme sanction of dismissal.\u00a0 The motion is denied.BACKGROUND FACTSTrinity’s Jacksonville plant, an old plant acquired in1967, makes LPG gas cylinders built to Department of Transportation specifications (Tr.73, 77).[[2]]\u00a0 The plant structure is a single enclosed area of floor spaceapproximately 100 feet by 240 feet with a cement floor, metal walls and roof (Tr. 198,323).\u00a0 It contains approximately 22,000 square feet of production area (Tr. 323).\u00a0 At the time of the inspection, the Jacksonville Trinity plant had 30-31 employees(Tr. 324).Jerry L. Riddles, Corporate Environmental and SafetyDirector for Trinity (Tr. 71), visits the Jacksonville plant once every 8 to 12 months tosee how the safety and environmental programs are functioning (Tr. 73-74).\u00a0 Hisoffice prepares and implements the safety program for all of Trinity’s plants (Tr.74).\u00a0 The enforcement of the safety program is the responsibility of the plant manager(Tr.74, 145).\u00a0 Riddles assists the plant manager in developing training programs andany written program that the plant is required to have by any regulation or standard(Tr.90).\u00a0 Daniel Virgin is the plant manager for the Jacksonville plant (Tr.74, 144).\u00a0 He tries to conduct safety training sessions every four to six weeks (Tr. 146).\u00a0 The sessions last from 15 to 30 minutes (Tr. 146).\u00a0 The topics for discussionare selected by Riddles and Virgin (Tr. 147).DOCKET NO. 88-1545Trinity contests alleged willful violations of 29 C.F.R.? 1910.95(d)(1), for failure to develop and implement a representative monitoringprogram; and 29 C.F.R. ? 1910.95(g)(5) [[3]] and (g)(6), for failure to obtain baselineand annual audiograms. Trinity also contests alleged \”other\” violations of 29C.F.R. ? 1910.96(d)(1), for failure to conduct a survey to evaluate any radiation hazardsassociated with its x-ray unit; 29 C.F.R. ? 1910.252(e)(2)(iii), for the failure toprovide appropriate screens, shields or goggles for the protection of workers adjacent towelding areas; 29 C.F.R. ? 1910.1200(g)(8), for failure to maintain copies of materialsafety data sheets (\”MSDS\”) for each hazardous chemical in the work area; 29C.F.R. ? 1910.1200(h)(2)(ii), for failure to train employees in the physical and healthhazards of chemicals in the work area; and 29 C.F.R. ? 1910.1200(h)(2)(iv), for failureto train employees in the details of the MSDS.IWILLFUL CITATIONItem 1Alleged Violation of 29 C.F.R. ? 1910.95(d)(1)The Secretary alleges that Trinity violated ?1910.95(d)(1) by failing to develop and implement a monitoring program. Section 1910.95(c)requires an employer to \”administer a continuing effective conservationprogram,…wherever employee noise exposures equal or exceed an 8-hour time-weightedaverage sound level (TWA) of 85 decibels,\” referred to as the action level. \u00a0Under section 1910.95(d)(1),[[4]] an employer is required to develop and implement amonitoring program when any employee’s exposure may equal or exceed an 8-hourtime-weighted average of 85 decibels.Appendix G to the noise standard states that in order to determine if a hearingconservation program is needed, it may be necessary to measure or monitor the actual noiselevels in the workplace.\u00a0 The employer is not required to \”develop and implementa monitoring program\” until information indicates that an employee’s exposure may beat or above 85 decibels.\u00a0 Once noise tests are undertaken, the sampling strategy mustbe \”designed to identify employees for inclusion in the hearing conservation programand to enable the proper selection of hearing protectors.\” ? 1910.95(d)(l)(i).\u00a0 The standard specifies personal sampling rather than area sampling where there is\”high worker mobility, significant variations in sound level, or a significantcomponent of impulse noise make area monitoring generally inappropriate.\” ?1910.95(d)(l)(ii).\u00a0 In addition, \”[a]ll continuous, intermittent and impulsivesound levels from 80 decibels to 130 decibels shall be integrated into the noisemeasurements.\”\u00a0 ? 1910.95(d)(2)(i).During the inspection, Broadaway was informed by Riddlesthat he took some noise samples in 1976 and again in 1983 (Tr. 270-271, 272).[[5]] \u00a0No information was furnished to support the representation nor did Riddles elaborate onthe findings.\u00a0 There was no evaluation shown of the various exposure levels as to whowas exposed, where they were exposed, or the level at which they were exposed (Tr.271).\u00a0 Repeated requests for test information developed by Riddles were not furnished(Tr. 274, 1-82).\u00a0 Riddles stated that he had no documents to support his noisesurveys (Tr. 399).Broadaway performed noise sampling at various locations inthe plant.\u00a0 He used sound level meters and dosimeters to approximate noise levels atvarious work stations in order to identify areas which might be in excess of the actionlevel (85 dBA) of the OSH standard (Tr. 202).\u00a0 Personal monitoring was also performedon transient employees (Tr. 202).\u00a0 In some instances, employees refused to wearsampling devices.\u00a0 In those cases, area sampling was performed, i.e., an area wassampled as close to the employee’s work position as possible (Tr. 203).\u00a0 Allemployees sampled were wearing hearing protection (Tr. 210, 214).Broadaway prepared noise survey reports which detailed theresults of his sampling (Ex. C- 2; Tr. 240-208).\u00a0 He determined that there were eightareas of the plant which his sampling indicated that employees working in that vicinitymight equal or exceed an 8-hour time-weighted average of 85 dBA (Tr. 212).\u00a0 Theprimary employees identified as exposed to noise in excess of 85 decibels were as follows(Ex. 2):(a) The \”long seam\” welding operators(b) The double round seam operators(c) The \”ram seam\” operators(d) The gauze pad, head welder and spot welders (e) The \”bottom coater\” or \”hole man\”(f) The press operator and his helper(g) The \”head welder\” forward position (h) The crimping machine operatorRiddles testified that he conducted a spot test of noise in the Jacksonville plant in1983. He utilized two dosimeters in the center core of the plant. He also conducted somesound level meter readings (Tr. 78). Four readings were made during four half-days (Tr.77). Based on these readings, he found that the time-weighted average of employee exposurewas over 85 dBA (Tr. 77, 78). All of the peak readings were above 85 dBA (Tr. 78). Heagreed with Broadaway’s determination that employees worked in areas of the plant wherethe noise level was in excess of 85 dBA. Riddles did not consider the employees exposed tonoise levels of 85 dBA, because they were wearing hearing protection (Tr. 79-82).[[6]]Based on the testimony of Riddles, Trinity argues that itconducted initial noise monitoring in 1976 and did additional sampling in 1983 after thehearing conservation standard went into effect. It states that the 1983 sampling byRiddles \”determined the noise was the same as in his earlier, more extensive tests.\” Trinity further argues that the 1976 and 1983 tests \”fully complied with boththe form and intent of 1910.95(d)(1).\” Broadaway gave Trinity ample opportunity toprovide information concerning the noise testing. He was not able to evaluate what Trinityhad previously done since Trinity failed to provide any relevant information as to thetype of sampling and who was sampled and at what locations (Tr. 284). Riddles merely toldhim that he had sent the information to the OSHA Jacksonville, Florida, area office in1976 (Tr. 285).The noise survey completed by Riddles in 1976 was done inresponse to a citation issued to Trinity for exposure of employees to levels above 90dBA’s and the failure to protect employees against such high levels of noise (Tr.400-401). The survey was done in part to establish engineering controls for the citedareas (Tr.400). The extent of that survey, which was done prior to the requirement of ?1910.95(d)(1) being promulgated, is unknown. The 1983 spot reading by Riddles consisted ofusing two dosimeters to obtain four separate readings in the center core of the plant (Tr.77, 78), and some sound level readings, the number of which Riddles could not recall (Tr.78). According to Riddles, the survey was not intended to be a representative monitoringfor the plant although he believed it complied with ? 1910-95 Tr. 79).Trinity points out that ? 1910.95(m)(3)(i) requiresrecords of employee exposure measurements to be retained for only two years. It contendsthat it is not required to have records of the 1976 and 1983 testing, because it has beenmore than two years since the survey was taken. It then states: \”If Trinity is onlyrequired to maintain the records a period of two years, then 1988 noise survey for Trinitycannot be cited for failure to make those records available in 1988, of., Erie BottlingCorp. v. Donovan, 539 F. Supp. 600, 606-607 (W.D. Pa., 1982).\” While Trinity may notbe required to have a written record of employee exposure measurements to supportcompliance with ? 1910.95(d)(l), the noise determinations by Broadaway shifted the burdento Trinity to show that it had complied with the requirements of ? 1910.95(d). It hasfailed to satisfy its burden of establishing compliance with ? 1910.95(d)(l). The mereassertion by Riddles that he made a noise survey in 1976, before the requirements of ?1910.95(d) were part of the standard, and a spot check in 1983 does not satisfy Trinity’sburden. Riddles does not indicate the sampling strategy used to identify employees forinclusion in the hearing conservation program and to enable the proper selection ofhearing protectors, as required by ? 1910.95(d)(i). His testimony is little more than aself-serving declaration.Riddles testified that he did an initial noise surveywhich analyzed the type of noise in the plant (Tr. 116). This survey served as the basisfor recommending specific types of hearing protection (Tr. 116). The testimony referred tohis 1976 survey. No specific evidence was offered in support of these assertions. There isno way to evaluate the testing conducted by Riddles, who acknowledges that he is not acertified industrial hygienist (Tr. 72-73). The spot check conducted in 1983 did notsatisfy the requirements of ? 1910.95(d)(1). The sampling was too limited to identifyspecific noise levels and sources of noise throughout the plant. Only one area of theplant was sampled and four readings taken. A monitoring program clearly requires moredetailed sampling if the purpose of the monitoring is to identify employees for inclusionin the hearing conservation program and to enable the proper selection of hearingprotectors as required by ? 1910.95 (d)(1)(i). The 1976 noise sampling was performedseveral years before compliance with the provisions of ? 1910.95(c) and (d) was required.Even if the 1976 noise sampling could be utilized to satisfy the requirements of ?1910.95(d), there is no detailed evidence to support a finding that it satisfied therequirements of ? 1910-95(d). The violation is affirmed.Item 2Alleged Violation of 29 C.F.R. ? 1910.95(g)(5)(i) and(g)(6) Item two of the willful citation issued to respondent onJune 21, 1988, charged Trinity with a violation of 29 C.F.R. ? 1910.95(g)(6) [[7]] forfailure to conduct annual audiograms for each employee exposed to noise at or above the8-hour time weighted average of 85 dBA. The Secretary amended item two at trial to includea violation of 29 C.F.R. ? 1910.95(g)(5)(i) [[8]] for failure to conduct baselineaudiograms (Tr. 69-70).During the inspection, Broadaway requested that Trinityprovide all employee annual and baseline audiograms. He was informed that Trinity had notobtained employee audiograms since 1983 or 1984 (Tr. 215-216). Riddles conceded thatTrinity conducted no annual audiograms of any of the employees listed in item two of thecitation (Tr. 82, 117, 141). Trinity does not do baseline audiograms but commenced apolicy of giving pre-employment audiograms to employees in 1986. Pre-employment audiogramswere commenced at the Jacksonville plant sometime in 1987 (Tr. 82-85, 141). Riddles wasunaware of how many employees at the Jacksonville plant had been given pre-employmentaudiograms (Tr. 85). Employees hired prior to the commencement of the pre-employmentaudiograms program were never given a pre-employment audiogram (Tr. 84). While employeesafter 1987 are suppose to have received a pre-employment audiogram, they are not givenannual audiograms (Tr. 85). Broadaway was not furnished any pre-employment audiograms (Tr.216).While Trinity concedes that it has not done baseline orannual audiometric testing of its employees (Tr. 82, 84, 366), it takes the position thatits hearing conservation program, whereby all exposed employees are required to wearprotection at all times, affords its employees better protection than the standard. Itshearing conservation program has been enforced since 1983 (Tr. 361, 410-411). Broadawayacknowledged that all employees of the plant were wearing hearing protection at the timeof the inspection and that the requirement was mandatory under Trinity’s program (Tr. 214,273). In addition to the mandatory requirement for wearing hearing protection, allemployees are required to undergo annual training in the need for and proper use ofhearing protection (Tr. 135-136). Under the circumstances presented by Trinity’s hearingconservation program, Trinity argues that there is no need to conduct audiometric testing.The argument advanced by Trinity was considered and rejected by the court in Hackney, Inc.v. Secretary of Labor, 895 F.2d 1298 (10th Cir. 1990), 14 BNA OSHC 1442. The court statedthat \”the basic rule in these regulatory cases is that the regulated business must’follow the law even if it has a good faith belief that its own policy is wise.’\” Thedecision of the court makes it clear that audiograms are an essential component of ahearing conservation program. The court then addresses itself to the specific argumentadvanced by Trinity in this case. The court concludes:Although Hackney has a policy that requires its employeesto wear ear protectors, we must reject Hackney’s claim that its policy is superior to therequirements under the regulations. Hackney’s policy lacks the means of determiningwhether, in fact, the employees are complying with its mandatory protector policy orwhether the protector equipment is effective. Even with its employee training and itsrequired hearing protectors, Hackney’s failure to conduct audiometric testing deprives theemployer, as well as OSHA, of information necessary to determine whether the employee’shearing has remained undamaged by workplace noise. Substantial evidence in the record alsosupports the Commission’s conclusion that Hackney may not rely on the attenuationcapability of its hearing protection equipment reportedly measured under laboratoryconditions. The Commission concluded that the attenuation achieved by hearing protectorsin the field is only one-third that achieved in the laboratory.Based on the rationale of Hackney, Trinity’s argument isrejected. The violations are affirmed.NATURE OF VIOLATIONSThe Secretary classified the violations of 29 C.F.R. ?1910.95(d)(1) and 29 C.F.R. ? 1910.95(g)(5) and (g)(6) as being willful. The standard ofconduct to be utilized in finding a willful violation is well established. In C.N. FlaggCo., 74 OSAHRC 66\/A2, 2 BNA OSHC 1195, 1196, 1974-75 CCH OSHD ? 18, 686 (No. 1734, 1974),the Commission stated \”that when used in the civil sense ‘willful’ means intentional,knowing, or voluntary as distinguished from accidental conduct and may be characterized asconduct marked by careless disregard.\” This standard of conduct has been applieduniformly by most of the circuit courts. The evidentiary burden to establish a willfulstandard of conduct rests with the Secretary. The burden of proof necessitates that theSecretary establish a state of mind that fits the criteria of what constitutes a willfulviolation.In Williams Enterprises, Inc., 87 OSAHRC 33\/A3, 13 BNA OSHC 1249, 1987 CCH OSHD ? 27,893,p. 36,589 (No. 85-355, 1987), the Commission stated:It is therefore not enough for the Secretary simply toshow carelessness or lack of diligence in discovering or eliminating a violation; nor is awillful charge justified if an employer has made a good faith effort to comply with astandard or eliminate a hazard, even though the employer’s efforts are not entirelyeffective or complete.The Secretary argues that Trinity was aware of the citedstandards since 1983 and knowingly disregarded complying with their requirements. Employeeknowledge of the standard is insufficient to prove willfulness. \”It is not enough forthe Secretary to show that an employer was aware of conduct or conditions constituting aviolation.\” Williams Enterprises, Inc., supra, at 1987 CCH OSHD ? 27,893, p. 36,589.The Secretary ignores the fact that alternative measures were taken by Trinity to protectits employees. Trinity proceeded on the basis that its hearing conservation program wassuperior to the requirements of the standards. All employees were required to wearprotection. The requirement was enforced and all employees were observed wearing hearingprotection.Trinity assumed it had eliminated the hazard to the employees.While there is an of opinion as to how an ?1910.95(d)(1), 1910.95(g)(5) and (g)(6), it is undisputed that Trinity did not ignore theSafety of its employees. It furnished and required all employees to wear hearingprotection. Trinity knowingly chose to Proceed at variance with the standards, but thereis no evidence to dispute its assertion that it proceeded on the belief that its hearingconservation program exceeded the requirements of the standards. Trinity did not disregardemployee safety. The violations were not willful.Trinity argues that any violations determined of 29 C.F.R.? 1910.95(d)(1) and 29 C.F.R. ? 1910.95(g)(5) and (g)(6) Must be classified as deminimis. It points out that, where the chance of injury to employees was remote, theCommission has classified such violations as de minimis, citing Keco Industries, Inc., 84OSAHRC 7\/A2, 11 BNA OSHC 1832, 1835, 1984 CCH OSHD ? 26,810 (No. 81-1976, 1984); andFabricraft,Inc., 79 OSAHRC 49\/A2, 7 BNA OSHC 1541, 1979 CCH OSHD ? 23,691 (No. 76-14101979). In such circumstances, the technical noncompliance with the standard does notappreciably diminish the safety or health of employees.Donovan v. Daniel Construction Co., 692 F.2d 813, 821 (1st Cir. 1982).In Hackney, Inc. v. Secretary of Labor, 895 F.2d 1298 (10th Cir. 1990) 14 BNA OSHC 1442,the same arguments for classifying the violation as de minimis were rejected by the court.Hackney, like Trinity, had a policy that required all employees to wear ear protectors.The court specifically rejected Hackney’s claim that its policy was superior to therequirements imposed by the standards. Following the rationale of Hackney, the argumentthat the violation must be classified as de minimis is rejected.The violations were classified as willful. Since there isno evidence to support serious violations of the standards, the violations are determinedto be nonserious. PENALTY DETERMINATIONPenalties were proposed for the violations of 29 C.F.R. ?1910.95(d)(1) and 29 C.F.R. ? 1910.955(g)(5) and (g)(6) on the basis that the violationswere willful. The violations have been reclassified as nonserious. The gravity of theoffense is the principal factor to be considered in assessing a penalty. NaciremaOperating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Since employees were required to wear hearing protection, the gravity of the offense doesnot warrant the assessment of a penalty for the violations and none is assessed.\”OTHER\” CITATIONItem 1Alleged Violation of 29 C.F.R. ? 1910.96(d)(l) The Secretary alleges that Trinity violated 29 C.F.R. ?1910.96(d)(l) [[9]] by failing to make such surveys as necessary to evaluate the radiationhazards incident to the operation of the x-ray unit located behind the \”longseam\” welder and at the center area of the building. The cited standard requires anemployer to make a survey to evaluate \”the radiation hazards incident to theproduction, use, release, disposal, or presence of radioactive materials or other sourcesof radiation under a specific set of conditions.\”Trinity has been using an industrial x-ray unit since 1983to take x-rays of the long seam of the shell (Tr. 153). Broadaway requested a copy of theradiation survey of the unit (Tr. 153). A copy of the state inspection of the x-ray unitwas provided, but no radiation survey of the work area was furnished (Tr. 153, 154, 219,246). Broadaway acknowledged that Riddles and Virgin told him that they understood that asurvey had been done in-house at the time the x-ray was installed (Tr. 247). However, theydid not provide him with any written survey made on the x-ray unit (Tr. 247). Broadawaystated that Virgin could not recall any of the readings that had been taken. There wasnothing to indicate what the levels of radiation were to the employees in the work area inthe event they were exposed (Tr. 249).Frederick Pullen, a health physicist for the State ofFlorida, testified that he visited the Trinity facilities in Jacksonville in December,1987, to survey the x-ray machine which was registered with the State of Florida (Tr.176-177). He described the x-ray machine as a fluoroscopic imaging x-ray similar to abaggage-type unit. He requested a copy of any surveys done of the x-ray unit but was notprovided with any survey (Tr. 177). Pullen further stated that Florida requires thatTrinity have the survey available (Tr. 178).The OSHA standard refers to surveys but does not specifythat they have to be in writing. While there appears to be no requirement that the surveybe in writing, an employer is required to comply with the requirement. Evidence must beavailable to show compliance and one of the best means of demonstrating this fact is toreduce the survey to writing. During the inspection, Trinity produced no competentevidence to show compliance with the standard. Broadaway was seeking tangible proof of asurvey. In his view, Trinity should have recorded and maintained a written record of anysurvey performed on the x-ray machine (Tr. 246).In order to prove compliance with the standard, Trinityoffered the testimony of Greg McCrae, its quality assurance manager. He testified that heinstalled the x-ray machine in 1984 and conducted a physical survey of the location of themachine to determine whether impermissible high levels of radiation were emitted. Hesupposedly used a survey meter and concluded that the machine was providing extremely lowradiation. He did not testify as to his actual readings.There is no testimony to refute McCrae’s statements, butit is noted that the results of his survey were not disclosed to the State of Florida in1987. Trinity also failed to offer any proof of a survey to Broadaway. The failure tooffer proof of the survey on the two previous occasions casts a shadow on the testimony ofMcCrae. The standard requires every employer \”to make such surveys as may benecessary for him to comply with the provisions in this section ? 1910.961.\” McCraemerely testified that the machine was \”providing extremely low radiation.\” Thesurvey meter readings were not disclosed. In view of his failure to disclose his readings,it is not possible to ascertain if Trinity was in compliance with ? 1910.96.Facts regarding actual readings are necessary to establishcompliance. McCrae testified by giving his opinion rather than the facts as to the meterreadings. It is not possible to ascertain if his opinion of \”extremely lowradiation\” is an accurate opinion of the meter readings. The Commission must base itsdecision on facts. Trinity had the burden to show compliance. It has failed to meet thatburden.The violation is affirmed.Item 2Alleged Violation of 29 C.F.R. ? 1910.252(e)(2)(iii)The Secretary alleged that Trinity was in violation of 29C.F.R ? 1910.252(e)(2)(iii)[[10]] for failure to protect employees adjacent to weldingareas from the welding rays by noncombustible or flameproof screens or shields. Thealleged violation was raised as to employees working in and around the followinglocations:(a) The \”gauge pad\” or \”spud\” weldingposition on the north wall.(b) The \”collar\” welding position in the northeast corner of the plant.[[10]] Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:(iii) Protection from arc welding rays. Where the work permits, the welder should beenclosed in an individual booth painted with a finish of low reflectivity such as zincoxide (an important factor for absorbing ultraviolet radiations) and lamp black, or shallbe enclosed with noncombustible screens similarly painted. Booths and screens shall permitcirculation of air at floor level. Workers or other person; adjacent to the welding areasshall be protected from the rays by noncombustible or flameproof screens or shields orshall be required to wear appropriated goggles.(c) The \”breaking\/rolling\” station on the south wall of the plant.(d) The \”head\” welding positions located behind round seam welders.(e) The \”repair\” welding position located in the southwest corner of the plant.Trinity concedes that the welders at the above locations were doing either stick or migwelding which gives off welding flash or rays (Tr. 156, 157, 230, 235). Virgin recognizedthat there was hazard to the eyes from welding flare or rays to the welder as well asemployees adjacent to the welding area (Tr. 157). Trinity acknowledged that the safetyglasses worn by employee in the welding areas would not be considered appropriate goggleswithin the meaning of the standard (Tr. 159).(a) Spud Welding PositionThe spud welding position was located immediately adjacentto the right of the head welder (Exs. C-1, C-4 (A, B); Tr. 222). A small screen,approximately four foot square, was erected between the two welders. It was located aboutsix feet from the head welder (Tr. 222- 223). The spud welder’s work required him to comeaway from the protection of the small screen on a regular basis. When he moved away fromthe screen, he was exposed to welding flare. He was not protected by shields, goggles orother screens (Tr. 223). The spud welder was exposed to welding rays on several occasionsduring the inspection, approximately seven to nine feet from the head welder (Tr. 225). (b) Collar Welding PositionA helper works ten feet behind the collar welder. He was exposed to the welding rays fromthe collar welder, because no screens or shields were in place to protect him (Ex. C-1;Tr. 227-228). The helper would on occasion move to a position about six feet from thecollar welder (Tr. 228). The only screens provided the welder were located on each side ofhis welding table and were approximately three square feet (Ex. R-17; Tr. 227).(c) \”Breaking\/rolling\” StationThis station was located against the south wall where theflat steel was rolled to make the center portion of the container (Exs. C-1, C-4 (C, D);Tr. 229-230). Welding was being performed ten feet away from the rolling operation (Tr.231). The welder had only a small 3′ x 3′ screen on either side of the table (Tr. 231).Broadaway observed the operator and other employees within five feet of the welder whowere not protected from the welding rays by the screens (Tr. 231).(d) \”Head\” Welding PositionThis position was located behind the round seam welder(Exs. C-1, C-4 (E); Tr. 231). During welding, Broadaway observed an employee within sixfeet of the seam welder. He was not protected by the screen or shield. The screen was tornand drooped. It did not provide any protection except possibly to the grinder on thewelder’s immediate right (Ex. C-4 (F); Tr. 235, 236.)(e) \”Repair\” Welding PositionThis position had no screens or shields or shieldsprotecting employees (Ex. C-4 (G); Tr. 237). Employees were observed within six feetduring the welding process (Tr. 237)The standard, ? 1910.252(e)(2)(iii), requires protectionof employees from arc welding rays. It states, in part, that it \”[w]orkers or otherpersons adjacent to the welding areas shall be protected from the rays by noncombustibleor flameproof screens or shields or shall be required to wear appropriate goggles.\”While the evidence shows that Trinity provided welding curtains and screens, they were notof sufficient size or located properly to offer full protection to employees moving in thelisted areas. Employees were not wearing appropriate goggles. The violation has beenestablished.Item 3Alleged Violation of 29 C.F.R. ? 1910.1200(g)(8)The Secretary alleges Trinity violated 29 C.F.R. ?1910.1200(g)(8)[[11]] by failing to maintain copies of the chemical safety data sheets forhazardous chemicals in the workplace which were identified as \”King of the Roof\”and a battery electrolyte.Broadaway testified that Trinity did not have the MSDS for\”King of the Roof\” on the battery electrolyte. The \”King of the Roof\”is a substance used by Trinity to coat the base of cylinders to prevent them from rusting.It contains mineral spirits (Tr. 148, 239-240). The substance has been used by Trinity forapproximately one year (Tr. 240-241, 258). The battery electrolyte contains sulfuric acid(Tr. 149, 241). The electrolyte was not being used at the time of the inspection, butBroadaway stated that Virgin informed him that it had been recently acquired for use in abattery (Tr. 241, 256). Virgin acknowledged that there was no MSDS at the plant for\”King of the Roof\” (Tr. 149).The necessity to maintain a copy of the MSDS for thebattery electrolyte is disputed. Virgin testified that the battery electrolyte (sulfuricacid) was never opened by Trinity and was returned to the seller (Tr. 168-169). The plantnever used or intended to use the battery electrolyte (Tr. 168-169). The Secretaryconceded that Broadaway did not see the electrolyte in use. Broadaway understood that thebattery electrolyte was going to be used (Tr. 149-150, 168, 241, 255). The evidence doesnot support the determination that the electrolyte was or intended to be used by Trinity.Therefore, Trinity was not required to have MSDS for the battery electrolyte and thatallegation is vacated.Trinity maintains that an MSDS was not necessary for the\”King of the Roof\” coating, because it was similar to another chemicalpreviously used by it prior to switching to \”King of the Roof\”. This defense isrejected. While Broadaway was informed that \”King of the Roof\” was a substitutebrand, no showing of similarity was made to Broadaway or presented at the hearing.Furthermore, the plant manager could not remember if he even had an MSDS on the otherchemical (Tr. 174). A copy of the other MSDS was not presented to Broadaway or offered atthe hearing. Finally, there is no standard which permits the use of another MSDS in thissituation. See General Motors Corp., 88 OSAHRC 7\/A3, 13 BNA OSHC 1645, 1988 CCH OSHD ?28,156 (No. 87-526, 1988). Trinity was in violation of 29 C.F.R. ? 1910.1200 (g)(8) forits use of the \”King of the Roof\” coating for one year without an MSDS at theworkplace.Item 4Alleged Violation of 29 C.F.R. ? 1910.1200(h)(2)(ii)The Secretary alleges Trinity violated 29 C.F.R. ?1910.1200(h)(2)(ii) [[12]] because welding employees had not been informed of the hazardsof the decomposition products in their welding processes such as iron, oxides, fluorides,silica and manganese oxide.Broadaway testified that they asked employees about thevarious health hazards present in the workplace. None of the employees interviewed wereaware of any health hazards from the welding processes (Tr. 243). A review of Trinity’ssafety meeting reports did not disclose that the hazards associated with the weldingprocess posed any threat (Tr. 243-244). Broadaway concluded that Trinity’s employees werenot aware of the health effects and hazards associated with welding, such as the fumescontaining manganese oxide which can cause, among other things, central nervous systemdamage (Tr. 243-244). A former welder, Danny Cahan, testified that he received no trainingon the hazards associated with welding fumes (Tr. 181). A review of the safety meetingreports indicated that respondent had not trained its employees in these health hazards(Tr. 244).The lack of training as to health effects associated withwelding can be attributed to Trinity’s plant manager who, according to the corporatesafety director, is responsible to provide such training (Tr. 75, 77). Virgin stated thathe gave safety training to welders as to any kind of health hazard associated with thewelding process. Yet, he admitted that he could not tell the hazards of fumes from awelding rod (Tr. 160-163), although he believed there were health hazards (Tr. 160-161).If he wanted to find out the chemical hazards from welding fumes, he stated that he wouldlook at the MSDS (Tr. 168). He only trained employees about welding burns (Tr. 161). Hedid advise the welders to try not to breath the fumes (Tr. 163).A welder employed by Trinity, David Butcher, testifiedthat safety programs concerning the hazard communications standard had been held.According to him, all employees were required to attend. He stated that he was aware ofthe hazards of welding. He was familiar with the location of the MSDS’s and how to findinformation on them. While he stated he was aware of the hazards of welding, he did notstate when or where he became aware of the hazards (Tr. 410-415). Butcher’s testimony doesnot directly support the assertion by Virgin that he had explained the chemical hazards ofwelding to the welders (Tr. 167-168).Cahan’s testimony that he received no training on thehazards associated with welding fumes, and Broadaway’s finding that none of the employeesinterviewed were aware of any health hazards from the welding processes, strongly suggestsno such training was given. A review of the safety meeting reports fails to supportVirgin’s claim that he discussed the hazards of the welding process. If Virgin did make aneffort to discuss the hazards, he was unable to adequately convey the hazards to thewelders. The violation has been established.Item 5Alleged Violation of 29 C.F.R. ? 1910.1200(h)(2)(iv)The Secretary alleges that Trinity was in violation of 29C.F.R. ? 1910.1200(h)(2)(iv) because employee training did not include details of thehazardous communication program developed by Trinity. It was alleged that employeetraining did not include details of the MSDS as to how to interpret and use informationsuch as PEL, PPM, and TLV. The standard provides:(2) Training. Employee training shall include at least:(iv) The details of the hazard communication program developed by the employer, includingan explanation of the labeling system and the material safety data sheet, and howemployees can obtain and use the appropriate hazard information.Riddles purchased a series of VHS training tapes on the hazard communication standard inorder to make the training uniform throughout Trinity (Tr. 90-91). According to Riddles,he relied on two training tapes: one explaining about the standard and how to read theMSDS; the other program was put together by the National Safety Council and pertains toflash points (Tr. 90-91). Employees were also trained on how chemicals enter the body (Tr.91). In addition, Riddles testified that Trinity tries to have a refresher course once ayear in all plants (Tr. 91). Employee Danny Cahan testified that there was no training onwhat is contained in a MSDS and how to read it. He stated that Virgin merely told themthey were welcome to come and read the MSDS if they would like to (Tr. 182).Based on his inspection, Broadaway concluded thatTrinity’s employees were not familiar with abbreviations such as TLV, PPM and PEL used inthe numerous material safety data sheets at the plant (Tr. 172, 244-245). Knowledge ofthese abbreviations and other information is important in order for an employee toproperly interpret the information contained in a material safety data sheet. Dan Virgin,who was responsible to give such employee training, did not know the meaning of thosesymbols (Tr. 150, 152-153). He apparently only knew where the material safety data sheetswere located at the plant. He testified that, if someone had a question Concerning PPM orPEL, he would have to look at the MSDS and see if it defined the term.Trinity offered testimony that, at a safety meeting on May23, 1986, it showed a videotape to employees which provided information on interpretingsafety data sheets (Ex. R-19; Tr. 461, 463, 464). A copy of the videotape was placed intoevidence. The tape contains a good general discussion of what type of information iscontained in a MSDS. The tape also refers to the labeling system. Both topics arediscussed in an informative manner.Section 1910.1200(h)(2) specifies that employee trainingshall include at least the information set forth in subsections (i), (ii), (iii) and (iv).Under (iv) the training is to include \”details of the hazard communication programdeveloped by the employer.\” Included in the program must be an explanation of thelabeling system and the material safety data sheet. However, the standard requires morethan simply a discussion of what is a MSDS and a label. Details of the program shouldadequately address each of the required components in the program. The hazardcommunication program developed by the employer is required to conform with ?1910.1200(e). Details of the employer’s hazard communication program should also includediscussion of the items set forth at ? 1910.1200(e).Virgin was not well informed as to the components andrequirements of the MSDS or labeling system. The furnishing of safety manuals andinformation on the hazardous communication program to the plant manager does not mean thathe adequately absorbed them and was properly trained to explain the various provisions ofthe standard to plant employees (Tr. 148, 348, 355, 356). There is no credible evidencethat Virgin had the training or knowledge to adequately train employees as to the detailsof the hazard communication program. Along with other jobs, the plant manager’s primaryjob was to keep up production (Tr. 145). Not much training can be given during a period of15 to 30 minutes every four to six weeks (Tr. 146).While Cahan had no recollection of seeing the videotape,Butcher testified that he had seen it. Virgin stated on several occasions that he hadshown the videotape. A safety meeting report was offered into evidence reflecting that itwas shown on May 23, 1986 (Ex. R-19). Cahan executed the sheet indicating his attendancebut had no recollection of the meeting. His signature on the sheet is considered anadmission that he was present. Butcher’s signature also appears on the sheet and supportshis testimony that training was held on interpreting MSDS’s. The tape is self-explanatoryand does not depend on Virgin to explain the labeling system or MSDS. As pointed out byTrinity, the allegation pertained only to the lack of training on the MSDS. While theremay have been other deficiencies under ? 1910.1200(h)(2)(ii), Trinity was not chargedwith them. Since the videotape did an adequate job of explaining the MSDS, the allegationis vacated.DOCKET NO. 88-1547Several of the safety items included in the serious and\”other\” citations issued to Trinity on June 21, 1988, have been resolved by theparties prior to and during the hearing (Tr. 4-7, 226-227). In addition, the Secretary’sbrief withdrew item 12 of the serious citation and items 5 and 6 of the \”other\”citation (Brief, p. 2). The following summary, included by counsel for Secretary in hisbrief, accurately sets forth the status of all issues originally contested by Trinity(Brief, p. 3): Standard Citation Item Disposition [[13]] 1910.2)3(c)(1) 1 WD-S ‘L.910-107(bIt5)(i) 1 2a at issue 1910.107(b)(6) 1 2b at issue 1910.107(i)(8) 1 2c WD-R 1910.107(g)(2) 1 2d WD-S 1910.107ic)(2) 1 3 at issue 1910.132(a) 1 4a WD-S 1910.132(a) 1 4b, c, d WD-R 1910.133(a)(3) 1 5 WD-S 1910.151(c) 1 6 at issue 1910-212(a)(3)(ii) 1 7 at issue 1910-217(b)(3)(i) 1 8a WD-R 1910.217(b)(3)!1) 1 8b at issue 1910.217(b)(8)(iii) 1 9 at issue 1910.217(c)(1)(i) I 10a at issue 1910.217(c)(2)(i)(a) 1 10b at issue 1910.217(d)(9)(iv) 1 11 at issue 1910.303(g)(2)(i) 1 12 14D-S 1910.305(b)(2) 1 13 at issue 1904.2(a) 2 1 at issue 1904.4 2 2 at issue 1910-22(b)(1) 2 3 WD-S 1910.23(c)(1) 2 4 WD-S 1910.106(d)(7)(.L 2 5 WD-s 1910-106(e)(6)(i) 2 6 WD-S 1910.107(i)(6) 2 7 at issue 1910.110(e) 1)(iii) 2 8 at issue 1910.157(gh2) 2 9 WD-R 1910.178(q)(7) 2 10 at issue 1910-217(b)(4)(ii) 2 11 at issue 1910-305(b)(2) 2 12 WD-S 1910.305(g)(1)(iii) 2 13 at issue 1910.305(g)(2)(ii) 2 14a, b WD-S 1910-305(g)(2)(iii) 2 15 at issue Item 2aAlleged Violation of 29 C.F.R. ? 1910.107(b)(5)(i)The Secretary alleges that there was no gauge, alarm ordevice on the electrostatic paint spray booth to indicate or insure that the required airvelocity was maintained. Section 1910.107(b)(5)(i), in pertinent part, provides:Visible gauges or audible alarm or pressure activateddevices shall be installed to indicate or insure that the required air velocity ismaintained. Deifer observed the paint spray booth where anelectrostatic spray gun was being used. In walking around the booth, he did not observeany gauges, alarms or devices to indicate whether the required air velocity was beingmaintained (Tr. 136-137). Deifer’s testimony is supported by the plant manager, DanVirgin, who conceded that the spray paint booth was not equipped with gauges, alarms ordevices which indicate or insure that the required air velocity is maintained as requiredby the standard (Tr. 10). Deifer testified that measurements were taken which showed anair flow reading of zero to fifty (Tr. 137), which is below the air velocity required bythe standard.[[14]]Trinity argues that the Secretary has the burden to establish that the spray booth was aspraying area as defined by 29 C.F.R. ? 1910.107(a)(2).[[15]] This position is based onthe false assumption that measurements are required in the spray booth to establish thepresence of \”dangerous quantities of flammable vapors or mists or combustibleresidues, dusts or deposits.\” Trinity superimposes the definition of a spraying areaupon the definition of a booth. This argument is without merit.Trinity correctly points out that when a subsection of ?1910.107 specifically uses the term \”spraying area,\” the Secretary is requiredto demonstrate the presence of dangerous quantities of flammable vapors or mists orcombustible residues before the standard applies. In StanBest, Inc., 83 OSAHRC 10\/D6, 11BNA OSHC 1222, 1983-84 CCH OSHD ? 26,455 (No. 76-4355, 1983), the Commission expresslystates that those provisions of section 1910.107 that refer to spraying areas require theSecretary to demonstrate the presence of dangerous quantities of flammable vapors ormists. The Commission stated (11 BNA OSHC at 1230):Section 1910.107(a)(2) is not a scope provision for all ofsection 1910.107. It is instead a definition of a single term, \”spraying area,\”that is used in only some provisions of section 1910.107. The Secretary is therefore notrequired to demonstrate the presence of \”dangerous quantities of flammable vapors ormists, or combustible residues, dust, or deposits\” if the cited standard does notspecifically address \”spraying areas\”. See Fusibles Westinghouse de Puerto Ricov. OSHRC, 658 F.2d 21, 24 (1st Cir. 1981).There is no evidence to establish that there weredangerous quantities of flammable vapors or mists or that any testing was undertaken todetermine vapor concentrations.Trinity acknowledges that the cited standard does notspecifically use the term \”spraying area.\” It makes reference to spray boothsand not \”spraying area.\” Under the rationale of the decision in StanBest, Inc.,supra, the Secretary is not required to demonstrate the presence of dangerous quantitiesof flammable vapors or mists or combustible residues before the standard applies. Trinityargues that the Secretary should have the same burden of proof under all subsections of ?1910.107 \”where paint spraying is done, whether that place is called a spray ‘booth’or a spraying ‘area.’\” It then states (brief p. 7):There was previously no doubt the Secretary had thisburden of proof. In Allis-Chalmers Corporation, 10 BNA OSHC 1301, 1303 (Rev. Comm. 1982)the Commission held the Secretary had the burden of proving \”that Allis-Chalmers’spray painting booth is a ‘spraying area’ within the meaning of section1910.107(a)(2).\” (emphasis added). The subsequent holding in Stanbest, Inc. is not asclear on this point. Trinity therefore submits the review Commission should clarify theSecretary’s burden, and should dismiss serious No.2a and Serious No. 2b because theSecretary failed to establish dangerous quantities of flammable vapors or mists orcombustible residues.Trinity misconstrues the facts in Allis-Chalmers Corp., 82OSAHRC 2\/R1, 10 BNA OSHC 1301, 1982 CCH OSHD ? 25,831 (No. 77-3285, 1982). The burden wason the Secretary, because the standard in issue, ? 1910.107(c)(2), made reference tospraying area. The company used a spray booth. The question was whether a spray boothconstituted a spraying area. Since the standard referred to spraying area, the Secretaryhad to establish that the spraying booth met the definition of spraying area as defined by? 1910.107(a)(2). The Commission in Allis-Chalmers Corp., supra, 10 BNA OSHC at 1303,stated:We find that the Secretary has not established thatAllis-Chalmers’ spray painting booth is a \”spraying area\” within the meaning ofsection 1910.107(a)(2). The Commission has held that to prove that a cited area is a\”spraying area,\” the Secretary must show that either dangerous quantities offlammable vapors or mists were present, or that combustible residues, dusts, or depositswere present. Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26\/D14,8 BNA OSHC 1211, 1215, 1980CCH OSHD ? 24,351, p. 29,681 (no. 76-20, 1980). We find insufficient evidence on boththese points. (Underlining added.)The Commission’s decision in StanBest, Inc supra, isconsistent with the rationale of Allis-Chalmers Corp., supra. Trinity’s argument that theburden should be the same whether the place is called a spray \”booth\” or aspraying \”area\” fails to take into account the fact that different physicaldimensions may have an effect on the concentration levels of flammable vapors or mists orcombustible residues. A confined area, such as a booth, is likely to have more dangerousconcentrations than an open area where painting is accomplished. Vapors would certainlydissipate faster in an open area than in a booth without proper ventilation. For thisreason, the requirements for spray booths should be somewhat different than those for aspraying area. The burden of proof for the Secretary should be greater for a sprayingarea, because in the usual case vapors or mists will dissipate faster in an open area andare unlikely to present as great of a hazard. Since the cited standard makes no reference to sprayingarea as defined by ? 1910.107(c)(2), the Secretary’s burden of proof was satisfied byestablishing the absence of any gauge, alarm or device on the electrostatic paint spraybooth There is no dispute over that fact. The booth was in use during the inspection andwas used on a regular basis (Tr. 137). The violation has been established.Item 2bAlleged Violation of 29 C.F.R. ? 1910.107(b)(6)The Secretary alleges that a metal deflector or curtainwas not installed at the upper edge of the electrostatic spray booth over the opening asrequired by ? 1910.107(b)(6). This standard requires that:Frontal area. Each spray booth having a frontal area larger than 9 square feet shall havea metal deflector or curtain not less than 2 1\/2 inches deep installed at the upper outeredge of the booth over the opening.The purpose of the deflector or curtain is, in the eventof a fire in the spray booth, to confine the fire within the booth. It acts as a deterrentto the flames spreading outside the booth (Tr. 140-141). The absence of such a deflectorexposes employees to potential burns should a fire occur in the booth.Deifer testified that the front area of the paint spraybooth is more than nine square feet and that employees were working in the area (Tr. 141).Virgin conceded that the paint spray booth did not have a deflector or curtain as requiredby the standard (Tr. 10-11). The violation has been established.Trinity advocates the same rationale as discussed underitem 2a for vacating the allegation. For the reasons stated under item 2a, Trinity’sargument is rejected. Section 1910-107(b)(6) makes reference to a spray booth. It makes noreference to a spraying area. The Secretary does not have the additional burden ofestablishing factors to prove that a spray booth is a spraying area as defined by ?1910.107(a)(2). Item 3Alleged Violation of 29 C.F.R. ? 1910.107(c)(2)The Secretary alleges that unapproved electrical equipmentwas located within 20 feet of the spray area in violation of ? 1910.107(c)(2), whichprovides:Minimum separation. There shall be no open flame or spark producing equipment in anyspraying area nor within 20 feet thereof, unless separated by a partition.Unapproved electric equipment, including receptacles, switches, flexible cord and waterfountain, were located within 20 feet of a spray booth (Exs. C-19, C-20; Tr. 150-155).Virgin admitted that the cited items were \”in the area\” of the spray boothalthough he was not sure of the exact distance (Tr. 12). These electrical items arecapable of producing sparks which could ignite flammable vapors.Section 1910.107(c)(2) refers to \”any sprayingarea.\” Since the words \”any spraying area\” are used in the standard, theSecretary is required to establish the presence of dangerous quantities of flammablevapors, mists or combustible residues. StanBest, Inc., supra, 11 BNA OSHC at 1230. No suchevidence was presented by the Secretary. The Secretary has failed to meet her burden onthe issue. The alleged violation is vacated.Item 6Alleged Violation of 29 C.F.R. ? 1910.151(c)Maintenance shop employees used chemicals, including sulfuric acid and 111trichloromethane, in dip tank and battery recharging operations. The Secretary allegesthat there were no suitable facilities for quick drenching or flushing of the eyes andbody in the work area. The standard allegedly violated, ? 1910.151(c), states:Where the eyes body of any person may be exposed toinjurious corrosive materials, suitable facilities for quick drenching or flushing of theeyes and body shall be provided within the work area for immediate emergency use.Compliance Officer Deifer observed a battery charging unitand a small parts cleaning tank in the paint area. Chemicals were used in the area andincluded 111 trichloromethane and sulfuric acid. He did not observe an emergency eye washor shower in the work area (Tr. 156). A maintenance worker informed Deifer that he workedin the area and handled the chemicals (Tr. 156).The closest water available for possible drenching orflushing the eyes or body was from a sink and water cooler. Virgin estimated the sink tobe approximately 15 to 20 feet from the parts washer which used 111 trichloromethane. Heestimated a distance of 10 to 15 feet from the battery charger to the sources of availablewater. These sources of water have never been used to flush out a person’s eyes. The needto use them has never arisen (Tr. 12-17). The route to both sources of water wasobstructed by machinery. The water cooler was located around a corner (Exs. R-2, R-3; Tr.15-17, 156-159).Trinity argues that the sink and water fountain located inthe area were sufficient to satisfy the requirements of ? 1910.151(c). This conclusion isbased on Riddles’ opinion that there would be no damage to the eye if the battery acidwere washed out within one minute, and that it would take a maximum of ten seconds to getto the sink or water fountain (Tr. 386-288). Trinity points out that in Gibson DiscountCenter, Store No. 15, 78 OSAHRC 30\/01, 6 BNA OSHC 1526, 1527, 1978 CCH OSHD ? 22,669 (No.46757, 1978), the Commission approved water facilities located 29 to 30 seconds at anormal walk from a work area where battery acid was being used. The Commission decisionconfirms Riddles’ testimony that \”battery acid is not injurious if washed out withina short period of time,\” 6 BNA OSHC at 1527. In that case, the compliance officeralso testified that an exposure time of possibly a minute is permissible.Unlike Gibson Discount Center, Store No. 15, supra, thepivotal question in this case concerns the type of available facilities rather than theactual location of those facilities. The primary purpose of ? 1910.151(c) is to assurethat employees who work with corrosive chemicals have facilities readily available to washsuch chemicals from their eyes or body before they suffer injury. Bridgeport Brass Co., 84OSAHRC 42\/E8, 11 BNA OSHC 2255, 1984-85 CCH OSHD ? 27,054 (No. 82-899, 1984). Thestandard, by express wording, indicates that \”suitable facilities\” are thosethat provide for quick drenching or flushing of the eyes and body. The location of thesink and faucet, as shown by the photograph entered into evidence as C-1, reflects that itwould be difficult for an individual to get a quick source of would be difficult for anindividual to get a quick source of sufficient water to flush the eyes and body (Tr. 19).The faucet is in the corner and would be difficult for one to get his body close enough totake full advantage of the facility. The water cooler is operated by a knob. Since Virgintestified it was a conventional water cooler, it would not have the capacity to dispense alarge amount of water in a short period of time. Virgin and Deifer were unaware of thewater pressure and how far the water would be elevated when the knob was turned (Tr. 18,157). A conventional water cooler is not normally designed to furnish water for quickdrenching of the eyes and body.The sink and water cooler are clearly inadequate tosatisfy the requirements of ? 1910.151(c). The standard requires that the facilitiesprovided must be such that they will enable the person in distress to quickly flush ordrench the eyes or body. The flow of a conventional water cooler is not capable of quicksaturation of the body. In addition, the configuration of the water cooler and the sink issuch that it would be virtually impossible to expose certain extreme parts of the body totheir flow. The violation has been established.Item 7Alleged Violation of 29 C.F.R. ? 1910.212(a)(3)(ii)A Southmark 600-ton hydraulic press and a smaller hydraulic press used to punch DOTnumbers on a plate were located in the back of the shop. The Secretary alleges that thepresses did not have a guard or device to prevent the hands or fingers from entering thepoint of operation in violation of ? 1910.212(a)(3)ii), which provides:The point of operation of machines whose operation exposesan employee to injury, shall be guarded. The guarding device shall be in conformity withany appropriate standards therefore, or, in the absence of applicable specific standards,shall be so designed and constructed as to prevent the operator from having any part ofhis body in the danger zone during the operating cycle.Virgin agreed that the two presses were without a guard ordevice to prevent hands or fingers from entering the point of operation (Tr. 20). Trinityargues that neither of the presses presents a hazard because the ram descends too slowlyon the presses to create a realistic hazard.\”In order to prove a violation of ?1910.212(a)(3)(ii), the Secretary must establish that (1) the points of operation wereunguarded, and (2) the operation of the presses exposed employees to injury. Skydyne,Inc., 84 OSAHRC 1\/B2, 11 BNA OSHC 1753, 1983-84 CCH OSHD ? 26,761 (No. 80-5422, 1984);Rockwell International Corp., OSAHRC, 9 BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12740,1980). There is no dispute that the presses were unguarded. Trinity submits that theSecretary failed to prove that operation of the presses exposed employees to injury. Indetermining whether an employee was exposed to injury, the Commission in RockwellInternational Corp., supra, stated (9 BNA OSHC at 1097-1098): The mere fact that it was not impossible for an employee to insert his hands under the ramof a machine does not itself prove that the point of operation exposes him to injury.Whether the point of operation exposes an employee to injury must be determined based onthe manner in which the machine functions and how it is operated by the employees. Riddles testified that the hydraulic press used to punchDOT numbers operates at an extremely slow speed and, for this reason, he does not considerit to present a hazard to employees (Tr. 389, 391). Both hands are busy during theoperating cycle. The operator has to hold onto a piece of material with his left hand sothe dies can mark the serial number of the tank. The right hand has to maintain pressureon the control switch to keep the press cycling (Tr. 391). The press stops when theoperator takes his finger off the switch.The video introduced as Exhibit R-13 reflects that thepress descends slowly and that it stops immediately when the operator releases the switch.The slowness with which the ram descends affords the employee ample time to withdraw ahand or finger in the event the operator inadvertently placed it within the point ofoperation. The Commission has recognized that the speed that a ram descends can present aviable defense in establishing that no hazard exists. In Rockwell International Corp.,supra, (9 BNA OSHC at 1098), the Commission stated:The rams descended so slowly that an operator whonevertheless placed his hands into the point of operation would be able to withdraw it orreverse the descent of the ram before it contacted the hand by simply pressing down on thefoot pedal.In this case, the slow descent of the ram and the fact thepress stops when the operator takes his finger off the switch mitigates againstdetermining the operator or any other employee was exposed to injury.The small hydraulic press stamps DOT numbers sequentially,which necessitates the dies being changed after each punching operation. The change isaccomplished by inserting the hand directly into the point of operation. The Secretaryargues that this creates a serious hazard in the event of machine failure. This argumentoverlooks the slow speed of the machine which acts as a protection against inadvertenterror (Tr. 127). Complainant has failed to prove that the operation of the press in itsunguarded condition presented a hazard to employees. The alleged violation is vacated.The 600-ton press is used to form cylinder heads fromsheet metal. The operator, who has a helper or assistant in performing the operation,controls the machine with a single set of controls. The helper, who works to the left ofthe operator, swabs the metal with a lubricant before it goes into the machine and cutsany excess metal from the cylinder head when it is ejected from the machine. There arelubricating fluids on the floor in the area of the machine which could result in slips orfalls during the time when the press is performing its operation (Tr. 164-167).Riddles testified that the 600-ton press was a hydraulicpress that moved slowly–similar to the DOT press (Tr. 392). He expressed the opinion thatthere was no hazard to employees. He further testified that there was no way the helper oranyone else who slipped and fell would fall into the point of operation (Tr. 395-396).Riddles’ testimony is not directly contradicted. The Secretary has failed to meet herburden of proof in establishing a hazard to employees. The alleged violation is vacated.Item 8bAlleged Violation of 29 C.F.R. ? 1910.217(b)(3)(i)The Secretary submits that the PA4 press, referred to asthe foot ring punch, did not have a functioning single-stroke mechanism as required by ?1910.217(b)(3)(i), which states:Machines using full revolution clutches shall incorporatea single-stroke mechanism.When the switch, of the PA4 press was activated during thewalkaround, Virgin testified that the machine cycled one time (Tr. 21). Deifer testifiedthat, when the machine was turned on, it cycled twice without being activated (Tr. 173).Compliance Officer Deifer testified that, when the employee held his foot on the pedal,the press continued to cycle (Tr. 172) In its brief, Trinity acknowledges that thesingle-stroke mechanism was broken at the time of inspection.Trinity argues that even if the single-stroke mechanismwas inoperative, the press is so well guarded that there is no hazard. The fact that apress might be adequately guarded does not relieve an employer of complying with thestandard. The standard uses the word \”shall\” which makes the requirementmandatory. It is not necessary for the Secretary to establish a hazard. Since Trinityacknowledges that the single-stroke mechanism was broken, the violation has beenestablished.Item 9Alleged Violation of 29 C.F.R. ? 1910.217(b)(8)(iii) The Secretary alleges a violation of ?1910.217(b)(8)(iii) because the PA4 press (the foot ring press) would cycle when the powerwas turned on without the foot pedal being activated.The standard states:All mechanical power press controls shall incorporate atype of drive motor starter that will disconnect the drive motor from the power source inevent of control voltage or power source failure, and require operation of the motor startbutton to restart the motor when voltage conditions are restored to normal.Deifer testified that when the power was turned on to the press, it cycled twice withoutbeing activated. According to him, the employee tripped the pedal prior to turning on themachine and that this act caused it to cycle when it was activated (Tr. 21-23)There is no dispute concerning the fact that the machinecycled at least once when the power to the press was activated. Even if this only occurredbecause the pedal to the machine was tripped prior to it being activated, Virgin concededthat the machine was not performing in a normal operation (Tr. 174-175). The purpose ofthe standard is to prevent the machine from cycling when power is activated to themachine. While Trinity argues there was no hazard, the Secretary need not establish ahazard since the standard stated that \”[a]ll mechanical power press controls shallincorporate a type of drive motor starter.\” The violation has been established.Item 10aAlleged Violation of 29 C.F.R. ? 1910.217(c)(1)(i)The Secretary alleges that there was a Kling BrothersEngineering Works mechanical power press #15, also referred to as the head press, locatedat the northeast end of the plant that did not have a point of operation guard or deviceas required by ? 1910.217(c)(l)(i). The standard states:(c) Safeguarding the point of operation–(1) GeneralRequirements. (i) It shall be the responsibility of the employer to provide and insure theusage of \”point of operation guards\” or properly applied and adjusted point ofoperation devices on every operation performed on a mechanical power press See Table O-10Deifer testified that the mechanical power press did nothave any type of point of operation guard or device to prevent an employee from gettinghis hand or fingers in the point of operation (Ex. C-24; Tr. 177-179).The press was operated by a foot pedal and is used topunch holes in the cylinder head. The operator stands next to the machine and uses bothhands to hold the cylinder head while the hole is being punched (Ex. R-13; Tr. 178-179).The operator has to use two hands to steady the cylinder head as it is inserted. Trinitycontends that the size of the cylinder head prevents the operator’s hands from gettingclose to the point of operation. Riddles testified that it would take a deliberate act bythe operator for him to get his hand in the point of operation (Exs. R-1, R-13; Tr. 398-400, 424-425).In support of the violation, the Secretary argues: In order to make out a prima facie case of noncompliancewith respect to 29 C.F.R. 1910.217(c)(1), the Secretary need only show that the point ofoperation on a press is unguarded. F. H. Lawson Co, 8 BNA OSHC 1063, 1066 (No. 12883,1980). \”The standard assumes that it is hazardous to operate a mechanical power presswithout a point of operation guard or other safety devise.\” Id. at 1069 (view ofCommission Barnako, dissenting in part but concurring with the majority as to violation of29 C.F.R. 1910.2117(c)(1)).Trinity asserts that of operation guarding is onlynecessary when there is a hazard and that the press does not present a hazard duringnormal operations.The standard makes it mandatory that the employer \”provide and insure the usage of’point of operation guards’ or properly applied and adjusted point of operation devices onevery operation performed on a mechanical power press.\” Section 1910.17(c)(l)(ii)gives the only exception to the rule requiring guards or devices. It states:The requirement of subdivision (i) of this subparagraphshall not apply when the point of operation opening is one-fourth inch or less.Since the opening is greater than one-fourth inch, a guardis required. As the Commission stated in F. H. Lawson Co., 80 OSAHRC 19\/A14, 8 BNA OSHC1063, 1066, 1980 CCH OSHD ? 24,277 (No. 12883, 1980):The judge also correctly held that the Secretary made outa prima facie case of noncompliance with respect to 29 C.F.R. ? 1910.217(c)(l)(i) byshowing that the point of operation on a press is not guarded.The violation has been established.Trinity further contends that, if a guard is required, itis not feasible to guard the head punch. Riddles testified that it was not feasible toguard the press (Tr. 399-400) but offered little reason for his conclusion. There has beenno showing Trinity has made any attempt to use a guard on the press or pursue alternativemeans of protection. In order to prove the defense of impossibility of performance,Trinity must show that (1) compliance with the standard would preclude performance of therequired work and (2) alternative means of employee protection are unavailable. M.J. LeeConstruction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ? 23,224 (No. 15094,1979). Trinity has failed to show that alternative means of employee protection areunavailable. As stated in F.H. Lawson Co., supra, 8 BNA OSHC at 1067:Thus, a respondent faced with a guarding problem isexpected to use the skills and resources at its disposal to develop an acceptable methodof guarding.The defense is rejected.Item 10bAlleged Violation of 29 C.F.R. ? 1910.217(c)(2)(i)(a)The Secretary alleges that the point of operation guardsTrinity had installed on the Long and Allstatler Company hinge press (press #3) and thefoot ring press (press PA4) failed to satisfy the requirements of ? 1910.217(c)(2)(i)(a).The Secretary asserts that the fixed barrier guards on the presses were inadequate toprevent entry of hands or fingers into the point of operation by reaching through, over oraround the guard. Section 1910.217(c)(2)(i)(a) requires point of operation guards asfollows:It shall prevent entry of hands or fingers into the point of operation by reachingthrough, over, under or around the guard;Trinity argues that there was no hazard presented by theoperation of either of the presses. It contends that the guards on the presses preventaccidental entry of hands or fingers into the point of operation during normal use.The Secretary does not have to establish that a hazardexists. Section 1910.217(c)(l)(i) is a general introduction and statement of requirementsas to guarding the points of operation of mechanical power presses. It assumes that it ishazardous to operate a mechanical power press without a point of operation guard or othersafety device. The lack of point of operation guarding on the press is a prima facie caseof noncompliance. F. H. Lawson, supra, 8 BNA OSHC at 1066 and 1069.Since 1910.217(c)(2)(i)(a) is a more specific statement of the general requirements ofsubsection (c)(1)(i), it must be construed in light of and consistent with subsection(c)(1)(i). Where point of operation guards are used which do not comply with ?1910.217(c)(2)(i)(a), no proof of a hazard is required. A point of operation guard ordevice which does not comply with the standard will not shift the burden to the Secretaryto establish a hazard. The Secretary’s degree of proof is not raised to a higher level byvirtue of an employer’s failure to install an adequate guard or device.The Long and Allstatler Company #3 press had a fixed barrier guard which did not prevententry of hands or fingers from the front and sides (Ex. C-4; Tr. 182-183, 186). The guardon the PA4 press did not prevent entry of hands or fingers from the top and rear (Exs.C-5; C-7; Tr. 187-188). Since the guards, in the words of the standard, do not prevententry of fingers or hands into the point of operation by reaching through, over or aroundthe guards, a violation has been established.Item 11Alleged Violation of 29 C.F.R. ? 1910.217(d)(9)(iv) The Secretary alleges Trinity was in violation of ?1910.217(d)(9)(iv) because safety blocks were not used when dies were changed on the hingepress (press #3), the head press (press #15), and the foot ring press (PA4 press). Deiferdid not see the dies changed. The allegation was included in the citation as a result ofinterviews with some of the operators and one maintenance employee (Tr. 190). Thestandard, ? 1910.217(d)(9)(iv), provides:The employer shall provide and enforce the use of safetyblocks for use whenever dies are being adjusted or repaired in the press.Virgin testified that the dies on the PA4 press were neverchanged (Tr. 45-47, 88). Since dies are not changed on the PA4 press, Trinity states thereis no need for safety blocks. Safety blocks are to be used whenever dies are beingadjusted or repaired. The fact that dies were never changed does not mean the dies neverhave to be adjusted or repaired; however there is no evidence of record to show anyadjustment or repairing of the dies.Riddles testified that the die is not changed on the hingepress while it is on the machine. The guards and dies are one unit. The whole unit isremoved from the press to change the dies. The standard only applies when dies are beingchanged or repaired in the press (Tr. 409-410).There is no credible evidence that the die on the headpress is ever changed. The Secretary argues that Virgin admitted that safety blocks wereused during repair or die chances on the hinge press and head press (Tr. 45-47). Virginindicated on cross- examination that he was not sure that safety blocks were used on thehead press (Tr. 89). He indicated no safety blocks were used on the hinge press becausethere was no room to place the blocks (Tr. 85). Virgin’s testimony reflects some confusion(Tr. 43-47, 84-89). He is clear in his statements that dies are not changed on the PA4press. He is not sure what is done on the head press and believes none are used on thehinge press because there is no room to place them. His testimony on the hinge press isinconsistent with Riddles’ testimony that the die is not changed while in the press.Riddles’ testimony is deemed more credible since he displayed a greater knowledge of thepresses.Deifer did not see the dies changed, adjusted or repaired on any of the presses. He citedthe alleged violation as a result of interviews with operators and one maintenanceemployee (Tr.190, 195). His testimony was not specific as to what was said to him or whosaid it. The standard requires safety blocks \”whenever dies are being adjusted orrepaired in the press. \” There is no credible evidence to support the determinationthat dies were being adjusted or repaired in the press. The Secretary has failed to meether burden of proof on the issue. The alleged violation is vacated.Item 13Alleged Violation of 29 C.F.R. ? 1910.305(b)(2)Deifer testified that there was an electrical box on thesouth side of the stress relieving furnace where the electrical wires were sticking out ofthe conduit and that an electrical box contained energized wire which was not covered (Tr.198-199). This condition is clearly reflected in Exhibits C-8 and C-9 (photographs).Deifer also testified that there was a junction box on the Niagara coil sheer that did nothave a cover, exposing energized parts (Tr. 199-200). The condition is reflected inExhibit C-10 (photograph). As a result of the conditions observed by Deifer, the Secretaryalleges Trinity was in violation of ? 1910.305(b)(2), which provides:Covers and canopies. All pull boxes, junction boxes, andfittings shall be provided with covers approved for the purpose. If metal covers are usedthey shall be grounded In completed installations each outlet box shall have a cover,faceplate, or fixture canopy. Covers of outlet boxes having holes through which flexiblecord pendants pass shall be provided with bushings designed for the purpose or shall havesmooth, well-rounded surfaces on which the cords may bear.It is undisputed that two electrical boxes with energizedwires were not provided with approved covers (Exs. C-8, C-9, C-10; Tr. 198-199). Employeesworked in the areas of the boxes. The Secretary asserts that Trinity had knowledge of theviolative conditions \”in that items 26 and 27 on its supervisors safety inspectionreport (Ex. C-23) provide for the inspection of panel covers and cover plates.\”Trinity argues that ‘subsection 1910.305(b)(2) iscontrolled by subsection 1910.303(g)(2)(i) and only requires guarding or enclosure wherethere is exposure to more than 50 volts.\” It perceives the determining fact to bewhether the exposed live parts were operating at more than 50 volts. There is no evidenceto indicate what voltage the wires carried. Deifer testified that he tested to determineif the wires were energized but did not test for the voltage (Tr. 236). He was alsounaware of where all the wire connected. He was aware that some of them went to thetemperature units Tr. 235-236). Virgin was also unable to tell him what voltage the wirescarried (Tr. 236). Finally, Deifer concedes that it was possible the wires carried lessthan 50 volts (Tr. 238).Subpart S of 29 C.F.R. 1910 \”addresses electrical safety requirements that arenecessary for the practical safeguarding of employees in their workplaces.\” Section1910.303 is entitled \”General Requirements.\” Subsection (g)(2)(i) of 1910.303states as follows:(2) Guarding of live parts. (i) Except as required orpermitted elsewhere in this subpart, live parts of electric equipment operating at 50volts or more shall be guarded against accidental contact by approved cabinets or otherforms of approved enclosures, or by any of the following means:It seems clear that Subpart S concerns itself withoffering protection against 50 volts or more. The applicable \”generalrequirements\” set forth and ?\u00a0 1910.303 must be established prior toestablishing specific requirements of other provisions of Subpart S. Since the evidencefails to establish the voltage of the wires, the Secretary is missing an important elementof her proof. The alleged violation is vacated.NATURE OF VIOLATIONSThe Secretary contends that the violations of ?1910.107(b)(5)(i) [item 2a]; ? 1910.107(b)(6) [item 2b); ? 1910.151(c) [item 6]; ?1910.217(b)(3)(i) [item 8, subpart b]; ? 1910.217(b)(8)(iii) [item 9]; ?1910.217(c)(1)(i) [item 10a]; and ? 1910.217(c)(2)(i)(a) [item l0b] should be classifiedas serious violations. In order to establish a serious violation, the Secretary must showthat there is a substantial probability that death or serous physical harm could resultfrom the violative condition and that the employer knew or with the exercise of reasonablediligence could have known of the presence of the violation. Wisconsin Electric Power Co.,76 OSAHRC 134\/B2, 4 BNA OSHC 1783, 1797, 1976-77 CCH OSHD ? 21,234 at p. 25,532 (No.5209, 1976), aff’d, 567 F.2d 735 (7th Cir. 1977).The violations of ? 1910.107(c)(5)(i) and ?1910.107(b)(6) exposed employees to potential burns or death in the event a fire occurred.The violation of ? 1910.151(c) exposed employees to serious chemical burns and eyeinjuries. The violations of ? 1910.217(b)(3)(i), ? 1910.217(b)(8)(iii), ?1910.217(c)(1)(i), and ? 1910.217(c)(2)(i)(a) exposed employees to possible crushing ofhands or fingers and possibly amputation (Tr. 200-205). The types of injuries theemployees were exposed to by the violations require that they be classified as serious.\”OTHER\” CITATION Item 1Alleged Violation of 29 C.F.R. ? 1904.2(a)The Secretary alleges that Trinity was in violation of ?1904.2(a) for recording one lost workday injury in 1986 as an injury without lostworkdays. Section 1904.2(a) provides:Each employer shall, except as provided in paragraph (b)of this section, (1) maintain in each establishment a log and summary of all recordableoccupational injuries and * illnesses for that establishment; and (2) enter eachrecordable injury and illness on the log and summary as early as practicable but no laterthan 6 working days after receiving information that a recordable injury or illness hasoccurred. For this purpose form OSHA No.200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The log and summary shallbe completed in the detail provided in the form and instructions on form OSHA No. 200.Trinity does not dispute the failure to properly recordthe injury that resulted in lost workdays but maintains it was an isolated incident andthat the violation should be vacated. If its defense is rejected, Trinity submits that theviolation should be classified as de minimis.Virgin testified that his secretary keeps the injuryrecords and that he reviews them periodically for accuracy (Tr. 89). His past reviewsdisclosed to him that she usually has filled rut the records correctly (Tr. 90). Thedefense of unpreventable employee misconduct has often been made a-d upheld by theCommission in situations where compliance with a standard requires positive employeeaction. The defense has been directed toward work rules which are designed to achievecompliance with the OSHA standards. The work rules, in turn, anticipate hazards to whichemployees may be exposed in the course of their scheduled work. The situation presented inthis instance does not fit the normal defense of unpreventable employee misconduct sinceit does not involve a safety or health standard and did not affect the safety or health ofany employee.[[16]] In this Judge’s opinion, it would be an illogical extension of thedefense to cover the situation presented by this case. The defense is held inapplicable toregulations that do not affect the safety and health of employees.The omission occurred as a result of an inadvertent erroron the part of the person responsible for keeping the records. There has been noallegation or any evidence that the omission was deliberate or done to mislead anyone. Ithad no relationship to the safety and health of Trinity’s employees. Accordingly, theviolation is affirmed as de minimis. Cf. Anoplate Corp., OSAHRC 12 BNA OSHC 1678, 1688,1986-87 CCH OSHD ? 27,681 No. 80-4109, 1986).Item 2Alleged Violation of 29 C.F.R. ? 1904.4The Secretary alleges Trinity violated ? 1904.4 becausesome of the supplemental reports of injury (Florida worker’s Compensation Injury Form)were not completely filled out. various information, such as case file number, name ofdepartment, name, address, and phone number of physician, description of injury, diseaseand part of the body affected, and date of birth or age (Tr. 207-208). The standardrequires:In addition to the log of occupational injuries andillnesses provided for under ? 1904.2 each employer shall have available for inspectionat each establishment within 6 working days after receiving information that a recordablecase has occurred, a supplementary record for each occupational injury or illness for thatestablishment. The record shall be completed in the detail prescribed in the instructionsaccompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen’scompensation, insurance, or other reports are acceptable alternative records if theycontain the information required by Form OSHA No. 101. If no acceptable alternative recordis maintained for other purposes, Form OSHA No. 101 shall be used or the necessaryinformation shall be otherwise maintained.There is no real dispute over whether various informationwas left off the forms.Virgin stated that he was unaware if the items mentionedby Deifer (Tr. 208) were left off the forms[[17]] and that his secretary was responsiblefor completing the forms. He reviews the forms periodically (Tr. 52-53). Trinity arguesthat since there is no documentary evidence, the Secretary has failed to carry her burdenof proof. There is no evidence to refute or contradict the oral. testimony of Deifer,which, in the circumstances of this case, is sufficient to establish the violation. Virgindoes not directly contradict Deifer. He doesn’t deny the omission of certain information.He testified: \”I can’t recall\” (Tr. 53). Virgin seems to have had a lapse ofmemory. His nebulous testimony is insufficient to negate the direct and conclusivetestimony of Deifer on the omission of facts. The violation has been established.Trinity next argues that, if a violation is determined, itis clearly de minimis. There has been no showing that any of the omissions affected thesafety and heath of employees. Deifer conceded that the omissions had no impact on thesafety and health of employees (Tr. 307-308). The omissions appear to have beeninadvertent. The violation was de minimis. Anoplate Corp., supra.Item 7Alleged Violation of 29 C.F.R. ? 1910.107(i)(6)Deifer testified that Trinity employees were usingelectrostatic hand spraying equipment to paint the cylinders as they came through on aconveyor line. There was no warning sign to indicate that all electrically conductiveobjects in the spraying area had to be adequately grounded (Tr. 211- 212). Virgin agreedthat there were no warning signs (Tr. 61). The Secretary contends that this conditionviolates ? 1910.107(i)(6), which states:Grounding-general. All electrically conductive objects inthe spraying area shall be adequately grounded. This requirement shall apply to paintcontainers, wash cans, and any other objects or devices in the area. The equipment shallcarry a prominent permanently installed warning regarding the necessity for this groundingfeature.Trinity argues that the warning sign is unnecessarybecause it uses an electrostatic painting system whereby all objects are automaticallygrounded.\” It implies no grounding warning is necessary because of the fact it is anelectrostatic painting system. Trinity also argues that the Secretary failed to establishthat the cited area was a spray area as defined by ? 1910.107(a)(2).Subsection (i) of ? 1910.107 is entitled:\”Electrostatic hand spraying equipment.\” Subsection (i)(1) states: Application.This paragraph shall apply to any equipment using electrostatically charged elements forthe atomization and\/or, precipitation of materials for coatings on articles, or for othersimilar purposes in which the atomizing device is hand held and manipulated during thespraying operation.The standard applies to the very type of equipment thatTrinity argues is automatically grounded, i.e., electrostatic hand-spraying equipment.Since the standard deals with the same type of equipment being used by Trinity, it must beassumed that there is a necessity for the warning sign. Where such equipment is beingused, the Secretary does not have to place in evidence facts justifying the reason therequirement or a warning sign is essential. The promulgation of the standard assumed thatthere was a need for such a sign. Section 1910.107(i)(6) refers to conductive objects in the spraying area. Trinity arguesthat the Secretary must establish that the cited operation falls within the definition ofa spraying area as defined by ? 1910.107(a)(2), which states:Spraying area. Any area in which dangerous quantities offlammable vapors or mists, or combustible residues, dusts, or deposits are present due tothe operation of spraying processes.In StanBest, Inc., 83 OSAHRC 10\/D6, 11 BNA OSHC 1222,1983-84 CCH OSHD ? 26,455 (No. 76-4355, 1983), the Commission expressly stated that thoseprovisions of section 1910.107 that refer to spraying areas require the Secretary todemonstrate the presence of dangerous quantities of flammable vapors or mists. Trinitycorrectly points out that there is no evidence to establish that there were dangerousquantities of flammable vapors or mists.The Secretary also makes reference to paint residuesaccumulating at certain points. There is, however, no evidence that they were\”combustible residues\” within the meaning of ? 1910.107(a)(2). The Secretaryhas the burden to demonstrate that the residues are combustible. In Allis Chalmers Corp.,82 OSAHRC 2\/E1, 10 BNA OSHC 1301, 1982 CCH OSHD ? 25,881 (No. 77-3285, 1982), theCommission was confronted with the same argument. In finding for the company on the issue,the Commission states (10 BNA OSHC at 1303):We also cannot find that there were \”combustible residues\” in the spray boothwithin the meaning of section 1910.107(a)(2). When compliance officer Scott was asked howhe could have alleged that a spraying area existed where he took no tests to determine theconcentration of vapors, he replied that he \”could see the excess residue\” inthe booth. The compliance officer also testified that the residues are \”anaccumulation of other sprays from the spraying that had been done in the course oftime\” and that the paint and the solvent being sprayed were both flammable. This doesnot show, however, that the residues were combustible. Although Mr. Scott also testifiedthat the residues give off flammable fumes, this goes to whether there were dangerousquantities of vapors or mists in the booth rather than to the combustibility of theresidues. In sum, we find insufficient evidence that the residues were combustible.(Footnote omitted.)Similarly, there is insufficient evidence to establishthat any residues observed by Deifer were combustible. The alleged violation is vacated.Item 8Alleged Violation of 29 C.F.R. ? 1910.110(e)(4)(iii) During the inspection, Deifer observed a forklift with oneof the two metal mounting straps used to secure the LP cylinder unfastened (Tr. 212). TheSecretary alleged that this condition was a violation of ? 1910.110(e)(4)(iii), whichstates:Permanent and removable fuel containers shall be securelymounted to prevent jarring loose, slipping, or rotating, and the fastenings shall bedesigned and constructed to withstand static loading in any direction equal to twice theweight of the tank and attachments when filled with fuel using a safety factor of not lessthan four based on the ultimate strength of the material to be used. Field welding, whennecessary, shall be made only on saddle plates, lugs or brackets, originally attached tothe container by the tank manufacturer.Trinity does not dispute the fact that one of the strapswas unfastened. When It was brought to the attention of Riddles, it was fastened. It wasobserved to be loose again the next afternoon (Tr. 412-414). Trinity determined the strapwas sprung and ordered a new strapping system (Tr. 413-414).Trinity states that the standard requires fuel containersto be securely mounted to prevent them from jarring loose, slipping, or rotating. Trinityplaces the emphasis on the words \”securely mounted\” and argues that the cylinderwas still securely mounted although one of the straps was loose. Virgin testified that onestrap would hold the cylinder but conceded that the system is designed for two straps (Tr.110-111). Riddles testified that he pulled on the tank and that the one strap was holdingit securely. Deifer issued the citation on the basis that one strap was loose and thesystem was composed of two straps.The standard requires fuel containers to be securelymounted to prevent jarring loose, slipping, or rotating. The fastening system in issue wasprovided with two straps. The two straps provide an additional safety factor that is notpresent with one strap. While one strap may secure the fuel container, there is noadditional safety support in the event it becomes unfastened. The system in use wasdesigned with two straps in order to provide additional restraint on the fuel containerfrom jarring loose, slipping or rotating. There is no way an employee can p;edict oranticipate when a strap will break or become loosened to the point of allowing thecontainer to jar loose, rotate or slip.[[18]] The system, as designed, securely mounts thefuel container. The fact one strap was loosened undermined the integrity of the strappingsystem. Exhibit C-13 (photograph) shows the cylinder on the rear of the forklift. Thestraps are at each end of the cylinder. When one of the straps is not performing itsfunction, the cylinder is secured by only one strap at one end of the cylinder. The factthat the one remaining strap is at one end of the cylinder makes it easier for thecylinder to jar loose or slip. The violation has been established.Item 10Alleged Violation of 29 C.F.R. ? 1910.178(g)(7)The Secretary alleges Trinity was in violation of ?1910.178(q)(7) due to the fact one of the two straps securing the fuel container to theforklift was unfastened on successive days (Tr. 214-217). There is no dispute over thefacts regarding the forklift strapping system. One of the straps was observed unfastenedon one day of the inspection, was fastened by Riddles and on the afternoon of the next daywas again observed in a loosened condition.The cited standard states as follows:Industrial trucks shall be examined before being placed inservice, and shall not be placed in service if the examination shows any conditionadversely affecting the safety of the vehicle. Such examination shall be made at leastdaily. Where industrial trucks are used on a round-the-clock basis, the they shall beexamined after each shift. Defects when found shall be immediately reported and corrected.The standard requires that industrial trucks be examinedbefore being placed in service. The Secretary assumes no examination was made of the truckon the day after the strap was observed in a loosened condition simply because it wasobserved in a loosened condition on the afternoon of the second day. There is no evidenceto show that some Trinity employee did not examine the truck on the second day. TheSecretary makes an assumption that is unsupportable by the evidence of record. Virgin’stestimony that each forklift is inspected for defects prior to use at the beginning ofeach shift is uncontradicted (Tr. 68).The Secretary’s assumption regarding the alleged violationis flawed by the fact there is no evidence as to when the strap became loose on the secondoccasion. The condition was not observed until the afternoon. There is no evidence to showthe condition existed at the beginning of the shift when the forklift was placed inservice. Riddles tightened the strap on the first occasion It was observed in a loosenedcondition. How long it took to loosen or what condition it was in at the beginning of theshift when it was placed in service is unknown. In any event, there is no evidence to showthat it was not secured at the beginning of the shift. The alleged violation is vacated.Item 11Alleged Violation of 29 C.F.R. ? 1910.217(b)(4)(ii) Deifer testified that the foot pedals of the #3 Long and Alstatler press, the KlingBrothers Press (#15) and the PA4 Press were caked with dirt and grease and in some casesthe rubber surface was ripped, exposing bare metal (Tr. 218-219). The Secretary allegesthat these conditions were in violation of ? 1910.217(b)(4)(ii), which states:A pad with a nonslip contact area shall be firmly attachedto the pedal.Trinity argues that the conditions, as cited, did notexist and that it was in compliance with the standard. It further contends that the longdelay in issuing the citations worked to its disadvantage since it was unaware of anyallegation concerning the foot pedals and had no reason to inspect them in support of itscase.The standard addresses itself toward insuring that a padwith a nonslip area is attached to the pedal. It does address itself to situations wherethe nonslip contact area may be caked with dirt and grease. There is no evidence toindicate that any of the foot pedals did not’ have rubber pads. Deifer, admitting thepresence of a rubber pad on one press, testified that the pad was ripped (Tr. 218-219). Hedid not specify which pedals did not have nonslip contact areas attached. Two photographs(Exs. C-15, C-17) were entered into evidence regarding this issue. They show the samepress and clearly reflect- a foot pedal with a rubber pad on it. It is worn around theedges, but there is no evidence to indicate it is worn to the point that it failed to actas a nonslip contact surface. The fact that a pad may be worn around the edges does notmean that it cannot perform its function. Virgin stated that he was not aware of anyproblem with the foot pads on the press pedals. According to him, all the pedals hadrubber pads.The evidence as a whole indicates the pedal of the threepresses had nonslip contact areas. There is no credible evidence to contradict Virgin’sassertion that all the pedals had rubber pads. while the pads may have been worn, there isno indication that they were so badly worn that they could be declared inoperative. Thestandard is not violated by mud or grease accumulating on the pedals. The allegedviolation is vacated.Item 12Alleged Violation of 29 C.F.R. ? 1910.305(b)(2)The faceplate on a receptacle in the tensile test room wasloose, allowing a small opening around the edges (Exs. C-25; R-16; Tr. 220). Thereceptacle contained energized wires (Tr. 220). The Secretary submits that this conditionviolated ? 1910.305(b)(2), which provides:Covers and canopies. All pull boxes, junction boxes, andfittings shall be provided with covers approved for the purpose. If metal covers are usedthey shall be grounded. In completed installations each outlet box shall have a cover,faceplate, or fixture canopy. Covers of outlet boxes having holes through which flexiblecord pendants pass shall be provided with bushings designed for the purpose or shall havesmooth, well-rounded surfaces on which the cords may bear.The problem, if any, was that the receptacle cover wasloose. Although the Secretary argues that the opening exposed employees to energizedwires, the opening was too small to present any realistic hazard. It was too small for anyperson to get his fingers into the box and there were no energized wires protrudingoutside the box (Exs. C-25, R-16; Tr. 450-451). Since the receptacle had a faceplate, theburden was on the Secretary to establish that the faceplate was not performing itsfunction and that a hazard was created by the condition. The evidence shows no exposure toenergized parts. The Secretary has failed to meet her burden on the issue. The allegedviolation is vacated.Item 13Alleged Violation of 29 C.F.R. ? 1910.305(g)(1)(iii) Deifer testified that he observed a flexible cord from anoverhead fluorescent lamp and another cord plugged into an electrical receptacle. Thecords were wrapped around a water pipe which was connected to the building surface (Ex.C-16; Tr. 222). Virgin conceded that the conditions observed by Deifer were true (Tr. 71).The Secretary contends that this condition violated ? 1910.305(g)(1)(iii), which states:unless specifically permitted in paragraph (g)(1)(i) ofthis section, flexible cords and cables may not be used:(D) Where attached to building surfaces;Deifer testified that the hazard results from brokeninsulation or exposed bare conductors or any condition that may result in energized wirestouching the metal pipe. The result could energize the entire metal building (Tr.222-223).Trinity argues that the use of the flexible cords in thismatter is not prohibited since the cited provision of ? 1910.305 states that flexiblecords and cables may not be used where attached to a building surface unless specificallypermitted in paragraph (g)(1)(i) of section 1910.305. This paragraph states:Flexible cords and cables shall be approved and suitable for conditions of use andlocation. Flexible cords and cables shall be used only for:(B) Wiring of fixtures;Trinity construes paragraph (g)(1)(i) in a manner thatmakes permissible to attach flexible cords to building surfaces if the cords are used towire fixtures. Since the cords were used to wire fluorescent light fixtures, Trinityargues that it complied with the standard.While it is true that paragraph (g)(1)(i) permits flexiblecords and cables for use in wiring of fixtures, Trinity misconstrues the interrelationshipbetween (g)(1)(i) and (g)(1)(iii). Paragraph (g)(1)(i) says only that flexible cords canbe used to wire fixtures. It does not expressly permit those cords to attach to buildingsurfaces. Paragraph (g)(1)(iii) says attaching to building surfaces is prohibited unlessspecifically permitted by paragraph (g)(1)(i). Since paragraph (g)(1)(i) does notspecifically permit flexible cords to attach to building surfaces, the clear implicationis that it is not allowable. There are two separate and independent conditions, i.e., useof flexible cords to wire fixtures and that attachment of those cords to the buildingsurface. Trinity’s argument assumes the conditions are interdependent on one another andthat you can’t wire a fixture with a flexible cord without attaching it to a buildingsurface. There was no functional necessity for the flexible cords to be wrapped around thewater pipe. The standard seeks to obviate an electrical hazard rather than enhance theopportunity for such a hazard. Trinity’s interpretation of the standard places the stampof approval on the very hazard the standard seeks to avoid. The alleged violation isaffirmed.Item 15Alleged Violation of 29 C.F.R. ? 1910.305(a)(2)(iii)Deifer testified that the flexible cord which ran to a switch box in the tensile test roomwas not connected to a strain relief device (Exs. C-28, C-29; Tr. 228). The absence of astrain relief device resulted in the insulation on the wire being peeled back (Ex. C-29;Tr. 28). The same condition existed in the paint area. Flexible cable was disconnectedfrom the strain relief device (Ex. C-20; Tr. 229230). Virgin testified that he was unawareof the conditions.The Secretary alleges that the conditions observed byDeifer were in violation of ? 1910.305(g)(2)(iii), which states:Flexible cords shall be connected to devices and fittingsso that strain relief is provided which will prevent pull from being directly transmittedto joints or terminal screws.Trinity does not deny that the conditions existed. Theconditions are clearly reflected in exhibits C-20, C-28 and C-29. The violation has beenestablished.Trinity argues that the item should be dismissed as an isolated occurrence on the basisthat Virgin was unaware of the condition. The fact that the plant manager was unaware ofthe condition is an insufficient basis to dismiss the allegation. Trinity must show thatit had a work rule governing the condition which had been uniformly and effectivelycommunicated and enforced to avail it of the isolated occurrence defense. Merritt ElectricCo., 81 OSAHRC 75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 (No. 77-3772, 1981). It hasfailed to meets its burden on the issue. The conditions were observable and could have orshould have been detected by anyone making a safety check within the plant.Trinity next argues that the violation should beclassified as de minimis. The de minimis classification is pertinent to Commissionproceedings since the Commission has authority to reclassify violations. By reclassifyinga violation as de minimis, the Commission is able to remove the abatement requirement andany proposed penalty where noncompliance with a standard creates no hazard to employeeseven though the Commission lacks the power to question the wisdom of the standard. VanRaalte Co., 76 OSAHRC 48\/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD ? 20,633 (No. 5007, 1976).Noncompliance with a standard will be classified as de minimis when the hazard is triflingor bears a negligible relationship to employee safety or health. Alton Box Board Co., 81OSAHRC 54\/D1, 9 BNA OSHC 1846, 1981 CCH OSHD ? 25,396 (No. 78-187, 1981): Continental oilCo., 79 OSAHRC 42\/C3, 7 BNA OSHC 1432, 1979 CCH OSHD ? 23,626 (No. 13750, 1979).By classifying the violation as de minimis, the Commissionwould obviate the need for abatement. This would undercut the standard which waspromulgated to correct this very type of condition existing in this case. The conditionneeds correction. It bears more than a negligible relationship to employee safety. Thecondition is properly classified.PENALTY DETERMINATIONThe parties stipulated in Docket Number 88-1547 that thepenalty assessed for all items affirmed would be 80% of the penalty proposed in thecitation with the exception of item nine of citation two which was fixed at $150.00 (Tr.147-149). The following penalties are assessed for the violations in accordance with thestipulation of the parties:Citation Number 1 Standard Item No. Penalty 1910.107(b)(5)(i) 2a $80 1910.107(b)(6) 2b $80 1910.07(i)(8) 2c $125 1910.132(a) 4b,c,d S450 1910.151(c) 6 $320 1910.217(b)(3)(i) 8a $300 1910.217(b)(3)(i) 8b $240 1910.217(b)(8)(iii) 9 $480 1910.217(c)(1)(i) 10a $240 1910.217(c)(2)(i)(a’. 10b $240 Citation Number 2 Standard Item No. Penalty 1904.2(a) I S Fko 1904.4 2 $ 80 1910-110(e)(4)(iii) 8 $ 0 1910-157(g)(2) 9 $150 1910.305(a-)(1)(iii) 13 $ 0 1910-305(g)(21(4i;) L ~ f 5 0 FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained inthis opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules ofCivil Procedure.ORDER In view of the foregoing and good cause appearing in support of the determinations, it isORDERED: That the allegations and proposed penalties arevacated, modified and affirmed as detailed hereinafter in summary form in accordance withthe agreement of the parties and the determinations made in this decision:DOCKET NUMBER 88-1545Citation No. 1 (Willful) Item No. Disposition Assessed Penalty I Affirmed as nonserious None 2 Affirmed as norserious None Citation No. 2 (Other) Item No. Disposit-irin Assessed Penalty I Affirmed None 2 Affirmed None 3 Affirmed lione 4 Affirmed None 5 Vacated None DOCKET NUMBER 88-1547 Citation No. 1 (Serious) Item No. Disposition Assessed Penalty 1 Vacated None 2a Affirmed s 80 Zb Affirmed $ 80 2c Affirmed $125 2d Vacated None 3 Vacated None 4a Vacated None 4b, c, d Affirmed $450 5 Vacated None 6 Affirmed $320 7 Vacated None Sa Affirmed $300 8b Affirmed $240 9 Affirmed $480 10a Affirmed $240 10b Affirmed $240 11 Vacated None 12 Vacated None 13 Vacated None Citation No. 2 (\”Other\”) Item No. Disposition Assessed Penalty 1 Affirmed as de minimis $ 80 2 Affirmed as de minimis $ 80 3 Vacated None 4 Vacated None 5 Vacated None 6 Vacated None 7 Vacated None 8 Affirmed None 9 Affirmed $150 10 Vacated None 11 Vacated None 12 Vacated None 13 Affirmed None 14a & b Vacated None 15 Affirmed None Dated this 26th day of June, 1990JAMES D. BURROUGHS JudgeFOOTNOTES: [[1]] The judge sent orders dated October 14, 1988, December 7, 1988 and January 23, 1989,and he issued an order from the bench on January 24, 1989.[[2]] The Secretary justified its refusal to comply primarily on the grounds that:(1) The Constitutional proprietary of the search is governed by the Fourth, not FifthAmendment. Where the Fourth Amendment provides a right that governs the protectedinterest, due process rights under the due process clause do not afford additionalprotections.(2) Under Frank v. Delaware. 438 US 154 (1978), to mandate an evidentiary hearing whenchallenging a warrant under the Fourth Amendment, the challenger’s attack must be morethan conclusory and must be supported by more than a mere desire to cross-examine. Theremust be allegations of deliberate falsehood or reckless disregard for the truth, and thoseallegations must he accompanied by an offer of proof Trinity failed to meet the Frankstest and its attempt to obtain an evidentiary hearing constituted a fishing expedition[[3]] 29 C.F.R. ? 2200.52(c) states in pertinent part.If a Judge enters an order compelling discovery and there is a failure to comply with thatorder, the Judge may make,such order with regard to the failure as are just…. The ordersmay include any sanction stated in Fed. R. Civ.P. 37, including the following: (4) An order dismissing the action or proceeding or any part thereof, or rendering ajudgement by default against the disobedient party.[[4]] The Commission recognizes, that under section 11(a)of the Act, 29 U.S.C. ? 660(a), the appellate courts may not entertain any issue notraised before the Commission. Therefore, while the Commission will not entertain acollateral attack on a challenge to a warrant pending in the federal courts, properpractice would require the party to raise the issue before the Commission for the record.[[5]] We note that, had commission proceedings concludedbefore the federal courts reached a final decision on the validity of the warrant. Trinitycould have appealed this decision to the circuit court hearing the challenge of thewarrant.[[6]] We would stress, however, that the Commission has astrong interest in preserving the integrity of its orders as well as in deterring futuremisconduct. See Pittsburgh Forging, 10 BNA OSHC at 1514, 1982 CCH OSHD at p. 32,569.Therefore, a party who fails to comply with a Commission order, even when based on asincere belief that its position is legally justified, must be prepared to accept theconsequences of noncompliance if its arguments do not ultimately prevail. To put itdirectly, any party who fails to comply with a Commission order does so at its peril. CfNL Indus. 11 BNA OSHC 2156, 2167 n.15, 1984 CCH OSHD ? 26.997 p. 34,734 n. 15 (No.78,5204, 1984)(Cleary dissenting).[[7]] When ruling on a discovery request, one of thefactors the judge should consider is the need for the information sought. NL Indus. 11 BNAOSHC 2156, 2159, 1984 CCH OSHD ? 26,997, p. 34,728 (No.78-5204, 1984). Having decidedthat the Commission should not hear the challenge to the warrant, the judge properlyconcluded that the information sought by Trinity was not necessary.[[8]] The standard provides:? 1910-95 Occupational noise exposure.(g) Audiometric testing program(5), Baseline audiogram (i) Within 6 months of an employee’s first exposure at or abovethe action level, the employer shall establish a valid baseline audiogram against whichsubsequent audiograms can be compared.Annual audiogram. At least annually after obtaining thebaseline audiogram. the employer shall obtain a new audiogram for each employee exposed ator above an 8-hour lime weighted average of 85 decibels.[[9]] The Secretary does not dispute that the hearingprotection Trinity’s employees were required to wear was appropriate for the noise towhich they were exposed.[[10]] At oral argument, the Secretary conceded that hadTrinity instituted an audiometric testing program, its hearing conversation program wouldhave then satisfied OSHA requirements.[[11]]The standard provides:? 1910.95 Occupational noise exposure …(g) Audiometric testing program(8) Follow up procedures procedure,(ii) Unless, a physician determines, that the standard threshold shift is not work relatedor aggravated by occupational noise exposure the employer shall ensure that the followingsteps ate taken when a standard threshold shift occurs.The employee shall be referred for a clinical audiologicalevaluation or an otological examination as appropriate. If additional testing is necessaryor if the employer suspects that a pathology of the ear is caused or aggravated by thewearing of hearing protectors.[[12]] We note that Trinity’s failure to implementaudiometric testing did not grow out of a belief that the audiometric testing standardwere invalid. Had this been the case, its failure to comply during litigation of thematter might well have risen to the level of willfulness. See RSR Corp. v. Brock. 764 F-2d355, 363 (5th Cir. 1985)[[13]] The standard provides:? 1910.95 Occupational noise exposure.(d) Monitoring. (1) When information indicates that any employee’s exposure may equal orexceed an 8-hour time-weighted average of 85 decibels, the employer shall develop andimplement a monitoring program.(i) The sampling strategy shall be designed to identify employees for inclusion in thehearing conservation program and to enable the proper selection of hearing protectors.(ii) Where circumstances such as high worker mobility, significant variations in soundlevel, or a significant component of impulse noise make area monitoring generallyinappropriate, the employee shall use representative personal sampling to comply with themonitoring requirements of this paragraph unless the employer can show that area samplingproducts equivalent results[[14]] The standard provides:? 1910.95 Occupational noise exposure. (m) Recordkeeping(3) Record Retention. The employer shall retain records required in this paragraph (m) forat least the following periods. (1) Noise exposure measurement records shall be retained for two years.[[15]] Reading his decision literally, it appears that thejudge held that a violation is established when the Secretary shows that a standard isapplicable and that the employer failed to present evidence of compliance. Such aconclusion would improperly place the burden of proof on the employer. The Secretary hasthe burden of proving each element of her case by a preponderance of the evidence. AllPurpose Crane, Inc., 13 BNA OSHC, 1236, 1238, 1987, CCH OSHD ? 27,877 p.36.549 (No.82-284, 1987). Only after the Secretary establishes a prima facie violation does theburden shift to the employer to rebut the Secretary’s showing.[[16]] We note that the judge dismissed Riddles’ testimonyas self-serving. This conclusion is, in essence, a credibility determination.\u00a0 TheCommission normally will not disturb a judge’s credibility finding because it is the judgewho has lived with the case, heard the witnesses, and observed their demeanor. Kent NowlinConstr. Co. 8 BNA OSHC 1286, 1980 CCH OSHD ? 24,459 (Nos. 76-191, 1980)(consolidated);Otis Elevator Co., 8 BNA OSHC 1019, 1980 CCH OSHD ? 24,236 (No. 14899, 1980); C. Kaufman,Inc., 6 BNA OSHC 1295, 1977-78 CCH OSHC ? 22,481 (No. 14249, 1978). However, because wefind that Riddles’ testimony did not rebut the Secretary’s showing of noncompliance withthe standard, we find it unnecessary to determine whether to defer to the judge’scredibility determination. [[17]] We stress that Trinity is not being penalized for failing to have documents it wasnot required to retain. It simply did not have documentation that could have rebutted theSecretary’s prima facie showing of a violation[[18]] the standard provides? 1910-95 Occupational noise exposure. (d) Monitoring.(3) Monitoring shall be repeated whenever a change in production, process, equipment, orcontrols increases noise exposures to the extent that:(i) Additional employees may be exposed at or above the action level; or(ii)The attenuation provided by hearing protectors being used by employees may be renderedinadequate to meet the requirements of paragraph (j) of this section.[[19]] ? 1910.96 Ionizing radiation.(d) Precautionary procedures and personal monitoring. (1) Every employer shall make suchsurveys as may be necessary for him to comply with the provisions in this section. Surveymeans an evaluation of the radiation hazards incident to the production, use, release,disposal, or presence of radioactive materials or other sources of radiation under aspecific set of conditions. When appropriate, such evaluation includes a physical surveyof the location of materials and equipment,and measurements of levels of radiation orconcentrations of radioactive material present.[[20]] We do not agree with the Secretary that the judge’sfailure to accept McRae’s testimony was a credibility determination. Rather, the judge,having placed the burden on Trinity to establish compliance, found that McRae’s testimonyfailed to establish that the survey he conducted conformed to the requirements of thestandard.[[21]] Among the many requirements of the ionizingradiation standard are section 1910.96(b), which sets forth various exposure limits fordifferent body parts and section 1910.96(l) which, based on exposure levels, sets forthvarious notification requirements.[[22]] The standard also imposes certain otherrequirements that must be met \”when appropriate.\” Neither the Secretary nor thestandard set forth when it is \”appropriate\” to meet these additionalrequirements.[[23]] The standard states in pertinent part.? 1910.110 Storage and handling of liquefied petroleum gases. (c) liquefied petroleum gas as a motor fuel(4) Installation of fuel containers(iii) Permanent and removable fuel containers shall he securely mounted to prevent jarringloose, slipping, or rotating. and the fastenings shall be designed and constructed towithstand static loading in any direction equal to twice the weight of the tank andattachments when filled with fuel using a safety factor of not less than four based on theultimate strength of the material to be used[[24]] The standard states:? 1910.217 Mechanical power presses.(c) Safeguarding the point of operation. –(I) general requirements. (i) It shall be theresponsibility of the employer to provide and insure the usage of \”point operationguards\” or properly applied and adjusted point of operation devices on everyoperation performed on a mechanical power press See Table O-10.[[25]] Trinity makes several additional arguments. Itcontends, for example, that compliance was infeasible and that, if there was a violationit was, at most, de minimis. In view of our disposition, however, we need not addressthese additional issues. Also, in vacating the item, we are not unmindful that, as theSecretary points out, the obligations of the standard are not predicated on the existenceof a hazard. Rather, to make out a prima facie showing of a violation of section1910.217(c)(1)(i), all the Secretary need show is that the point of operation on a pressis unguarded F.H. Lawson Co., 8 BNA OSHC 1063, 1066, 1980 CCH OSHD ? 24,277, p. 29,574(No. 12883, 1980). However, the item is not being vacated on the grounds that the pressdoes not present a hazard. We are not finding, for example, that the unguarded point ofoperation did not present a hazard due to the method of operation. Rather, we find that,on this particular machine, in this particular operation, the material being placed intothe press is so configured as to prevent an operator having any part of his body enter thepoint of operation, thereby constituting a de facto \”point of operation device.\”[[26]] The standards state:? 1910.217 Mechanical power presses.(b) Mechanical power press guarding and construction, general–(3) Machines using full revolution positive clutches. (i) Machines using full revolutionclutches shall incorporate a single-stroke mechanism.(8) Electrical(iii) All mechanical power press controls shall incorporate a type of drive motor starterthat will disconnect the drive motor from the power source in event of control voltage orsource failure. and require operation of the motor start button to restart the motor whenvoltage condition, are restored to normal.[[27]] Even assuming that, during proper operation theoperator would have no occasion to have any part of his body near the point of operation,the fact remains that there are reasons why an employee may deliberately place a hand orfinger into the point of operation. For example, the operator may need to clear the pointof operation of some extraneous material or conduct some other maintenance work.[[28]] The Secretary asserts that when a standard assumesthat a condition constitutes a hazard, a finding that a violation is de minimis wouldconstitute a challenge to the wisdom of the standard. Because we find that the violationswere not de minimis we need not address the argument.\u00a0[[1]] Section 9(a) provides in part:If, upon inspection or investigation, the Secretary or his authorized representativebelieves that an employer has violated a requirement of section 5 of this Act, or anystandard, rule or order promulgated pursuant to section 6 of this Act, he shall withreasonable promptness issue a citation to the employer.[[2]] All references to background facts are fromtranscript in Dkt. 88-1545.[[3]] The citation was amended at the hearing to, includea violation of 29 C.F.R. ? 1910.95(g)(5).[[4]] Section 1910.95(d)(1) of 29 C.F.R. provides:(d) Monitoring. (1) When information indicates that any employee’s exposure may equal orexceed an 8-hour time-weighted average of 85 decibels, the employer shall develop andimplement a monitoring program. (i) The sampling strategy shall be designed to identifyemployees for inclusion in the hearing conservation program and to enable the properselection of hearing protectors.[[5]] All references to transcript pages on the healthallegations are from Docket Number 88-1545.[[6]] Riddles testified that the employees worked in anarea above 85 dBA’s. He did not agree that they were exposed to noise above 85 dBA (Tr.79, 80). His opinion was based on the fact that the employees were wearing hearingprotectors (Tr. 80-81). [[7]] Section 1910.95(g)(6) of 29 C.F.R. states:Annual Audiogram. At least annually after obtaining the baseline audiogram, the employershall obtain a new audiogram for each employee exposed at or above an 8-hour time weightedaverage of 85 decibels.[[8]] Section 1910.95(g)(5)(i) of 29 C.F.R. states:Baseline audiogram. (i) Within 6 months of an employee’s first exposure at or above theaction level, the employer shall establish a valid baseline audiogram against whichsubsequent audiograms can be compared[[9]] Section 1910.96(d)(l) of 29 C.F.R. provides:(d) Precautionary procedures and personal monitoring. (l) Every employer shall make suchsurveys as may be necessary for him to comply with the provisions In this section.\”Survey\” means an evaluation of the radiation hazards incident to theproduction, use, release, disposal, or presence of radioactive materials or other sourcesof radiation under a specific set of conditions. When appropriate, such evaluationincludes a physical the location of materials and equipment, and measurements of levels ofradiation or concentrations of radioactive material present.[[10]] Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:(iii) Protection from arc welding rays. Where the work permits, the welder should beenclosed in an individual booth painted with a finish of low reflectivity such as zincoxide (an important factor for absorbing ultraviolet radiations) and lamp black, or shallbe enclosed with noncombustible screens similarly painted. Booths and screens shall permitcirculation of air at floor level. Workers or other persons adjacent to the welding areasshall be protected from the rays by noncombustible or flameproof screens or shields orshall be required to wear appropriate goggles. [[11]] Section 1910.1200(g)(8) of 29 C.F.R. provides:The employer shall maintain copies of the required material safety data sheets for eachhazardous chemical in the workplace, and shall ensure that they area readily accessibleduring each work shift to employees when they are in their work area(s).[[12]] Section 1910.1200(h) (2) (ii) of 29 C.F.R. providesthat employee training shall include:The physical and health hazards of the chemicals in the work area;[[13]] \”WD-S\” refers to those items withdrawn bythe Secretary; \”WD-R\” refers to those items withdrawn by the respondent.[[14]] The standard, ? 1910.107(b)(5)(i), requires thefollowing for electrostatic spraying operations: Electrostatic spraying operations may be conducted with an air velocity over the open faceof the booth of not less than 60 linear feet per minute, or more, depending on the volumeof the finishing material being applied and its flammability and explosioncharacteristics. . . .[[15]] Section 1910.107(a)(2) of 29 C.F.R. provides:Spraying area. Any area in which dangerous quantities of flammable vapors or mists, orcombustible residues, dusts or deposits are present due to the operation of sprayingprocesses.[[16]] In order to establish the defense, the employermust show it established work rules designed to prevent the violation, adequatelycommunicated these rules to its employees, and effectively enforced the rules. Wander IronWorks, Inc., 80 OSAHRC 40\/A2, 8 BNA OSHC 1354, 1980 CCH OSHD ? 24,457 (No. 76-3105,1980).[[17]] Deifer testified that he asked Virgin manyquestions concerning the forms and that Virgin tried to provide the answers (Tr. 208).Virgin couldn’t recall if he found some of the information missing (Tr. 53).[[18]] Riddles testified that the tank was secure with onestrap. That examination was made with the forklift in a stationary position and does notinsure that it is securely mounted against constant vibration or jarring which is likelyto occur while the forklift is in motion. The system must secure the cylinder while theforklift is in motion. “