“Docket No. 89-3287 SECRETARY OF LABOR,Complainant, v. TRINITY INDUSTRIES, INC., Respondent.Docket No. 89-3287ORDERThis, matter is before the Commission on a Directionfor Review entered by Commissioner Edwin G. Foulke, Jr. on June 24, 1991. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon therepresentations appearing in the Stipulation and Settlement Agreement, we conclude thatthis case raises no matters warranting further review by the Commission. The terms of theStipulation and Settlement Agreement do not appear to be contrary to the OccupationalSafety and Health Act and are in compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of theStipulation and Settlement Agreement into this order. This, is the final order of theCommission in this case. See 29 U.S.C. ?? 659(c), 660(a) and (b).Edwin G.Foulke, Jr. 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\u00a0CommissionerVelma 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated February 10, 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\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0TRINITY INDUSTRIES, 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.Docket No. 89-3287STIPULATION AND SETTLEMENT AGREEMENTIn full settlement and disposition of the issues inthis proceeding, it is hereby stipulated and agreed by and between the Complainant,Secretary of Labor, and the respondent, Trinity Industries, that:1. This case is before the Commission upon thegranting of Respondent’s Petition for Discretionary Review seeking review of theAdministrative law Judge’s decision and Order dated April 26, 1991. Review was granted ofserious Citation 1, Items 6(a), 6(b), 6(c), Items 9(a), 9(b), Item 12, Item 13, Item 14,Item 15, Item 16, and other-than-serious Citation 2, Item 2 and Item 3. (no review wassought and none was granted for the affirmance of serious Citation 1, Item 6(d), and Item11 and other-than-serious Citation 2, Item 4 and Item 5; Items 1, 2, 3, 4, 5, 7, 8, 10 and17 of serious Citation 1 and Item 1 of (\”other-than-serious Citation 2 werevacated\”).2. The Secretary hereby withdraws serious Citation 1,Items 6(a), 6(b), Item 9(b), Item 12, Item 13 and Item 14 and the proposed penaltiesthereto.3.\u00a0 The Secretary hereby withdrawsother-than-serious-citation 2, Items 2 and 3.4. The Secretary hereby amends the classification ofSerious Citation 1, Item 6 (c) to other-than-serious with no proposed penalty.5. The Secretary hereby amends the proposed penaltyfor Serious Citation 1, Item 9 (a) for $150.00.6. The Secretary hereby amends the proposed penaltyfor Serious Citation 1, Item 15 to $250.00 and the proposed penalty for Item 16 for$250.00.7. Respondent hereby withdraws its notice of contestto serious Citation 1, Item 6 (c) and to the notification of proposed penalty as amendedin paragraph 4.8. Respondent hereby withdraws its notice of contestto serious Citation 1, Item 9 (a) and to the notification of proposed penalty as amendedin paragraph 5.9. Respondent hereby withdraws its notice of contestto serious Citation 1, Item 15 and 16 and to the notification of proposed penalty asamended in paragraph 6.10. Respondent agrees to a penalty of $150.00 forSerious Citation 1, Item 6 (d).11. Respondent agrees that the above-mentionedviolations have been abated consistent with the terms of this agreement.12. By entering into this agreement respondent doesnot admit to any violations. \u00a0 Respondent is entering into this agreement strictly toavoid the expense and uncertainty of further litigation.13. Respondent agrees to submit to the OSHA AreaOffice $800.00 in full and complete payment of the penalty within 30 days of thisAgreement.14. Respondent certifies that a copy of thisStipulation and Settlement Agreement was posted at the workplace on the 23rd day of January,1992, in accordance with Rules 7 and 100 of the Commission’s Rules of Procedure. There areno authorized representatives of affected employees.15. Complainant and respondent will bear their ownlitigation costs and expenses.Anthony F. Gil\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Counsel for the Secretary of LaborRobert E. Rader, Jr.Attorney for Respondent\u00a0\u00a0SECRETARY 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant, v. TRINITY INDUSTRIES, INC., Respondent.Docket No. 89-3287\u00a0APPEARANCES: Robert A. Fitz, EsquireDallas, TexasFor the Complainant.Robert E. Rader, Jr., Esquire Bradley C. Weber, EsquireDallas, TexasFor the Respondent. DECISION AND ORDERLAVECCHIA, Judge:This is a proceeding brought before the OccupationalSafety and Health Review Commission (\”the Commission\”) pursuant to ? 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 at seg. (\”theAct\”).From May 11-16, 1989, the Occupational Safety andHealth Administration (\”OSHA\”) conducted an inspection of two Trinity plantslocated at 5101 Maple Avenue in Dallas, Texas, hereinafter referred to as \”No.61\” and \”No. 74.\” The inspection resulted in the issuance of one seriousand one \”other\” citation. Both citations allege a number of violations, whichare discussed below. Respondent timely contested the citations, and a hearing took placeon July 10-11, 1990. Both parties have submitted post-trial briefs regarding this matter.Serious Citation Number 1Item 1 – 29 C.F.R. ? 1910.38(a)(l)William Burke is the compliance officer(\”CO\”) who conducted the inspection. He has been a CO, with OSHA since 1985, hasworked in two state plans, and has eight to nine years of safety experience withconstruction companies. He is also a journeyman electrician with four years of apprenticetraining, during which time he learned the National Electric Code. (Tr. 26-28).Burke testified that he requested informationregarding the facility’s emergency action plan during his opening conference withmanagement officials. He was told there was no such plan and that one was not neededbecause the facility consisted of open shed buildings. Burke said a plan was required toenable employees to get out in case of fires or other disasters, since equipment cansometimes block vision from one end to the other of a building. He noted the plan shouldinclude a central reporting location so that a determination could be made if anyemployees were left in the facility. (Tr. 37-40).Eugene Moore is the plant manager of No. 61, whichfabricates freight cars. No. 61 had about 112 employees at the time of the inspection, andwhile it shared the overall plant location with No. 74, it did not share employees,materials or work areas, other than the office, garage and vending machine areas. Mooretestified that he accompanied Burke during his inspection of No. 61, which he said was abig, open plant; many sides do not have walls, or have large openings or 50-foot doors.(Tr. 21-24; 313; 320; 330; 334).Thomas Evans in the plant manager of No. 74, whichfabricates tank car parts and has about 130 employees. He testified that he accompaniedBurke during his inspection of No. 74. He described the facility as an open plant, withlarge, 40 to 50-foot doors and areas without walls. He said if there were a fire,employees would have more than one way to evacuate the building. He also said the facilityhas a PA system with 25 to 30 phones; it is loud enough to be heard over plant noise andcould be used for evacuation in case of fire. (Tr. 11-13; 235-36; 251-52).The subject standard provides, in pertinent part, asfollows: Emergency action plan – Scope andapplication. This paragraph (a) applies to all emergency action plans required by aparticular OSHA standard. The emergency action plan shall be in writing … and shallcover those designated actions employers and employees must take to ensure employee safetyfrom fire and other emergencies.The citation in regard to this item alleges asfollows: 29 CFR 1910.38(a) (1):The emergency action plan required by 29 CFR1910.157(a) or (b) when the employer has elected to partially or totally evacuate theworkplace in the event of a fire emergency was not in writing: at the establishment.The record demonstrates that Respondent’s facilitiesdid not have written emergency action plans. However, it is the Secretary’s burden to showthat the standard applied to the cited condition. A. P. O’Horo Co., Inc., 14 BNA2004, 2007, 1991 CCH OSHD ? 29,223 (No. 85-369, 1991). In this instance,she has not mether burden, for the following reasons.1910. 38 (a) (1) supra, does mandate that emergencyaction plans be in writing. However, it refers to plans pursuant to \”a particularOSHA standard,\” and does not itself impose a requirement for a plan. The other citedstandards, 1910.157(a) and (b), are subparts of the standard regarding portable fireextinguishers. While both mention 1910.38 and emergency action plans, they do not requireemployers to have such plans. See 1910.157(a) and (b). The Secretary apparentlyinterprets the standards to require emergency action plans. However, deference is to beaccorded the Secretary’s interpretation only when it is reasonable and consistent with thelanguage of the standard. Martin v.. OSHRC, 111 S. Ct. 1171 (1991). It is concludedthe Secretary’s interpretation does not meet this test.Although the citation alleges a violation of1910.157(a) or (b), the Secretary’s complaint refers to 1910.165(a) and her briefreferences 1910.165(b) (1). There is nothing in the record to indicate the Secretarysought to amend this citation item. However, even assuming arguendo that a 15(b)amendment pursuant to the Federal Rules of Civil Procedure might be appropriate, theSecretary would nevertheless fail to establish a violation, for the same reasons noted supra.1910.165 (a) and (b) (1) are subparts of the standard regulating employee alarm systems.Both refer to emergency action plans; however, neither imposes a requirement for such aplan. See 1910.165 (a) and (b) (1) . Since the Secretary has not demonstrated theapplicability of the standards to the cited condition, this citation item is vacated.Items 2 and 3 – 29 C.F.R. ?? 1910.179(e)(3)(ii)and (e)(4)William Burk testified that he observed overheadcranes in Department D of No. 61 with more than one trolley operating on the same bridge.The trolleys were not equipped with bumpers or the equivalent on their adjacent ends. Healso observed two overhead floor-operated cranes in No. 74. Crane C-15 was located in theplate shop, and Crane H-30 was located in Bay 6. The cranes were not equipped with sweepsthat extended below the rail tops and projected in front of the truck wheels. Burke didnot know when any of the cranes were installed or if they had been modified sinceinstallation. (Tr. 42-45; 164).Eugene Moore testified that he began working at theMaple Avenue facility in 1960. He was familiar with the cited overhead cranes inDepartment D. He said they were in place when he started at the plant, and to hisknowledge, had not been substantially modified. Moore was also familiar with Cranes C-15and H-30 in No. 74. He said both were at the facility in 1960, and that neither had beensubstantially modified. (Tr. 321-22; 337-38; Exh. C-4-7). The subject standards provide as follows:1910,179 (e)(3)(ii):\u00a0\u00a0 Trolleybumpers. When more than one trolley is operated on the same bridge, each shall beequipped with bumpers or equivalent on their adjacent ends.1910.179(e)(4):\u00a0 Rail sweeps.Bridge trucks shall be equipped with sweeps which extend below the top of the rail andproject in front of the truck wheels.The foregoing are subparts of the standard regulatingoverhead and gantry cranes, which states, at 1910.179(b)(2):New and existing equipment.\u00a0 All nowoverhead and gantry cranes constructed and installed an or after August 31, 1971, shallmeet the design specifications of the American National Standard Safety Code for Overheadand Gantry Cranes, ANSI B30.2.0-1967.According to Commission precedent, cranes constructedand installed before August 31, 1971, are exempt from the design specificationrequirements of 1910.179. United States Steel Corp., 81 OSAHRC 31\/A2, 9 BNA OSHC1527, 1981 CCH OSHD ? 25,283 (No. 78-5940, 1981); General Dynamics Corp., Elec, BoatDiv., 80 OSAHRC 42\/C7, 8 BNA OSHC 1360, 1980 CCH OSHD ? 24,416 (No. 78-3290, 1980).The subject standards are clearly designspecification requirements. Id. Moreover, the only evidence in the record regarding theinstallation dates of the cited cranes was the testimony of Moore. He said the cranes wereat the facility when he arrived there in 1960, and the Secretary did not rebut histestimony. Based on the record, the Secretary has not demonstrated the cranes wererequired to comply with the cited standards. Consequently, both of these citation itemsare vacated.Item 4 – 29 C.F.R. ? 1910.179(k) (1) (ii)William Burke saw a one-ton overhead floor crane inthe robot assembly area of No. 74. He asked Thomas Evans to activate it so he coulddetermine if the actuating mechanism would trip the limit switch to prevent the hook orblock from contacting the trolley. The hook went up without stopping and had to be stoppedmanually. The crane was disconnected after the malfunction was discovered. Burke said thepurpose of the switch is to keep the crane from pulling the hook up into the hoistingmechanism and breaking the block and load loose, which could seriously injure employeesbelow. Evans told his the crane was not used. Burke did not see it used, but said it wasconnected and available for use and that there were two employees and 55-gallon barrels ofequipment in the area. He also said there were over 20 similar cranes in the plant; hechecked some of then and found they wore operating properly. (Tr. 53-57; 164-67).Thomas Evans testified the crane was not in use atthe time of the inspection. It was not used to move the barrels, which, as he told Burke,were moved with a forklift. Evans said he did not know about the switch and was surprisedto find it did not work; he immediately had the crane disconnected and repaired. He saidthere were 15 or 16 similar cranes in the plant, and that the switches on those heoperated for Burke functioned properly. He believed the problem was one that would havebeen discovered during the next require crane inspection, and explained Trinity’sprocedures. The foremen conduct monthly inspections of ovary department in the facility.They fill out a form, Exhibit R-2, after each inspection and us it to report any problems.The maintenance department is responsible for correcting the problems, and he ensures theydo. There is also a separate form for cranes. Evans identified Exhibit R-4 as the form forthe cited crane. He noted it showed it was inspected on April 12, 1989, and that noproblems were found with its electrical apparatus, which would indicate the switch wasworking then. Evans said Burke was provided all of the plant’s inspection forms. (Tr.249-50; 257-61).The subject standard provides, in pertinent part, anfollows: The actuating mechanism of the limit switch shall belocated so that it will trip the switch, under all conditions, in sufficient time toprevent contact of the hook or hook block with any part of the trolley.To establish a violation, the Secretary must show (1)the standard applied to the cited condition, (2) a violation of the standard occurred, (3)employee exposure and (4) employer knowledge of the condition.\u00a0 A. P. O’Horo Co.,supra. The record clearly demonstrates (1) and (2). In regard to (3), although thecrane was not in use at the time of the inspection, the fact that it was connected and hadrecently been inspected would suggest it was available for use. However, the citation mustnonetheless be vacated, since it is found that the fourth criterion, employer knowledge,has not been established.To show knowledge, the Secretary must demonstrationthe employer knew, or with the exercise of reasonable diligence could have known, of theviolative condition. Id. Evans testified he did not know about the switch, and histestimony is supported by the record, which suggests that the crane was functioningproperly on April 12 and had not recently been used. Based on the record, it is logical toconclude the malfunction occurred sometime after the April inspection, and that Evans, infact, did not know about it. Moreover, Evans’ testimony regarding the facility’s monthlysafety inspection procedures supports a finding that Respondent exercised reasonablediligence in attempting to ensure that its cranes had no defects. Accordingly, thiscitation item is vacated.Item 5 – 29 C.F.R. ? 1910.179(n)(2)(ii)William Burke testified he observed a lifting devicein Bay 6. He identified Exhibit C-9 as a photo he took of the device. He talked to ThomasEvans and learned it was used to lift the 240-pound manway covers shown on the floor inC-9. He also learned it was shop made and that no determination had been made that thedevice or its machine screw was sufficient to hold the covers. Evans told him the devicelifted the covers about waist high and that four employees used it. Burke said if thedevice failed while lifting a cover, the cover could fall on an employee’s log or foot andcause a fracture. He said the standard requires loads to be attached by slings or otherapproved devices, and that if an engineer approved the device for lifting the covers, itwould meet the standard. (Tr. 58-62; 168-73).Thomas Evans testified that Ralph Banks, Trinity’ssenior vice-president, made the device shown in C-9. He said Banks had 45 years of heavymetal fabrication experience, and that the device, which is one-inch thick carbon steel,was specially built to lift manway covers. Evans stated he had lift-tested the deviceafter the citations wore issued by picking up two manway covers and suspending then forfive minutes. The load held, and the device had no cracks or other problem after the test.Evans did not test the strength of the machine screw, but said its purpose was to keep thecover level while being lifted. He know of no accidents caused by the device and said thatin his opinion, its lifting capability greatly exceeded 240 pounds. (Tr. 262-63; 287-88).Edward Kersey also testified. He is Trinity’scorporate facilities engineer and is responsible for plant layout and design. He has adegree in mechanical engineering. Prior to testifying, Kersey performed analytical stresscalculations on the device. He said if pushed to its limit, it would hold over 1000pounds, and that 240-pound manway covers were well within its capacity. He said the screw,which tightens the fit between the device and the cover, did not change his conclusionbecause his calculations showed it could handle a great deal more than 250 pounds. Hisopinion, after analyzing the device, was that its designers know exactly what they weredoing when they made it. (Tr. 303-312).The subject standard provides as follows:The load shall be attached to the load block hook bymeans of slings or other approved devices.Although the standard does not define\”approved,\” it is apparent the standard’s intent is to prohibit the utilizationof devices that cannot support the loads they are used to lift. On the basis of theinformation the CO received, it is understandable he questioned the lifting capability ofthe cited device. However, the testimony of Respondent’s witnesses, particularly that ofKersey, demonstrates the device was more than capable of lifting 240-pound manway coversand that it did not represent a hazard. Moreover, the CO himself indicated the devicewould comply with the standard if it were approved by a qualified engineer. I conclude thetestimony of Kersey provides the approval required by the standard. This citation item isvacated.Item 6(A) – 29 C.F.R. ? 1910.212(a)(1)William Burke observed an employee using a Burgmastermilling machine in the machine shop to make holes in a metal part. The machine had someguarding, but not on all sides, which exposed the operator and other employees who mightbe in the area to the flying chips produced. He said employees wore safety glasses, butthat chips can get under glasses and into eyes and can also strike employees in the face.(Tr. 62-65; 207; 234).Burke identified Exhibit C-2 as a photo he took ofthe machine. He draw a red oblong to show where the operator stood, in front of thependant with the red button. Burke did not see the machine setup, but said the operatorwould put the piece to be worked on the table and set the controls, which would be severalfeet away based on machines he had seen. He noted C-2 showed a guard, on one side, andrecalled there was a place for another guard in front of the machine. He said this waswhere an operator would normally be, but that the area behind the machine, where theelectrical panel and fire extinguisher appear in C-2, was accessible to employees. (Tr.63-64; 206-10; 230-34).Thomas Evans testified the machine in C-2 is locatedin No. 74’s machine shop and is used to drill holes in steel plates. He said the platesare loaded and unloaded with a crane, and that C-2 portrayed the unloading phase. Hemarked a red \”X\” on the guard in C-2, and said if the machine had beenoperating, there would have been similar guards on the front and other side, which fit inthe slots around the table’s edge. He stated it would not be possible for someone to gotdirectly behind the machine, where its operating equipment is located, and that theextinguisher in ten to twelve feet from the machine. (Tr. 16-18; 266-71).Evans explained that the guarding is only removedduring setup, or programming, and loading and unloading. The machine is off during loadingand unloading. The guarding is not in place during setup because the operator must see thedrill hitting the plate to program the machine. There is no hazard to the operator duringsetup because he is at a control cabinet seven to eight feet away, which is not shown inC-2. After setup, the guarding is put into place and the operator runs the machine fromthe control cabinet or the pendant control, when the operator is about five feet from thedrill. Evans said that although Exhibits C-37 and 38 shoved employees had been injured inthe machine shop from flying metal particles, no one had ever boon injured from flyingchips from the Burgmaster machine. (Tr. 266-71; 291-302).The subject standard provides as follows:Machine guarding – Types of guarding.One or more methods of machine guarding shall be provided to protect the operator andother employees in the machine area from hazards such as those created by point ofoperation, ingoing nip points, rotating parts, flying chips and sparks. Examples ofguarding methods are – barrier guards, two-hand tripping devices, electronic safetydevices, etc.The record shows the cited machine has guarding onthree sides when it is operating; however, the guarding is removed during setup when thedrill is hitting the steel plate. It is clear from both the record and the fact of thedrill contacting the plate that this activity would produce flying chips, with theoperator no farther away than when the machine is operating and guarded. It is concluded,therefore, that this activity in hazardous to the operator and to other employees whomight be in the area. Evans said the operator could not program the machine with theguarding in place. However, his statement, standing alone, does not establish aninfeasibility defense, particularly since Respondent presented no evidence it attempted toprevent general exposure to the condition. See Walker Towing Corp., Paducah River Serv.,14 BNA OSHC 2072, 2075, 1991 CCH OSHD ? 29,239 (No. 87-1359, 1991) and cases citedtherein. Moreover, there is an additional reason for finding a violation, as follows.The record shows the machine’s back side is neverguarded. Evans said it is not possible to get directly behind the machine. However, the COobserved the area and said it was accessible, and his statement is supported by C-2 andthe extinguisher’s location. Although there is no evidence flying chips from the machinehave caused an injury, C-37 and 38 show such injuries have occurred in the machine shopand can be serious. A back guard in this case would protect employees who night be behindthe machine. This citation item is affirmed as a serious violation. [[1]]Item 6(b) – 29 C.F.R. ? 1910.212(a)(l)William Burke saw an employee in the machine shopdrilling a steel plate with a radial drill. He identified Exhibits C-10 and 11 as photosof the scene. He said the operator had a partial guard in front of him; it was about waisthigh and did not completely guard the drill. Burke said the condition exposed the operatorand other employees who night be in the area to flying metal chips, and noted there werechips all along the table. He said that even though the operator wore safety glasses,chips could hit the guard and get in his eyes or strike his face, and, after striking him,could fall to the floor. (Tr. 62; 65-69; 210-12).Thomas Evans identified Exhibits R-5 and 6 as photosof the drill taken at the same time Burke took C-10 and 11. He said if chips flew aroundthe guard and hit the operator, there would be chips on the floor around his feet. Henoted R-6 showed no chips there. Evans has watched the drill operate, and believes theguard is sufficient to protect the operator. He said there have been no injuries caused byflying chips from the drill. (Tr. 271-75).The subject standard, set out supra, requiresguarding on machines which present a hazard of flying chips. The CO believed the drillguarding was inadequate and hazardous to the operator and other employees. Respondentasserts the fact there are no chips around the operator’s feet in R-6 shows the guard issufficient to protect the operator. I disagree. While it undoubtedly provides someprotection, there are what appear to be metal particles around the base on which theoperator is standing in R-6. Their location is such that it is reasonable to conclude theywere created by the drill and flow over or around the guard within striking distance ofthe operator or other employees who night be in the area.Moreover, R-5 shows numerous metal fragments on theground to the right of the drill, which it presumably created since it is completelyunguarded on that side. Although there was no evidence of employees in that area, R-5demonstrates it is accessible, and it is logical to conclude employees would walk throughthe area from time to time and be exposed to flying chips. Although Evans said flyingchips from the drill had caused no injuries, C-37 and 38, discussed supra, show that suchinjuries have occurred in the machine shop and can be serious. This citation item inaffirmed. Item 6(C) – 130 C.F.R. ? 1910.212(a)(1)William Burke saw a 13-inch South Bend lathe in themilling area of the machine shop. Thomas Evans told his employee used it and did notindicate it was guarded. Burke identified Exhibit C-12 as a photo he took of the lathe,and circled what he called the \”chuck unit,\” which has jaws and rotates when thelathe operates. He said guarding in required when the jaws extend beyond the chuck unitbecause employees can be struck by then or got their hair tangled in them, which can causefractures and lacerations. He noted C-12 did not show the jaws fully extended. Burke didnot see the lathe used, and did not know where the operator would stand. He said mostlathes do not require the operator to be there the entire time. (Tr. 62; 70-72; 213).Thomas Evans testified that the lathe is automatic,and that the operator, who stands about three feet away when it is running, has no reasonto get close to the chuck unit. He said no one has been injured by the chuck unit or jaws.(Tr. 275-76).Neil Foreman also testified. He is Trinity’scorporate safety coordinator and is responsible for the Maple Avenue facility. Heparticipated in the subject inspection, and identified Exhibit R-9 as a video he made ofthe lathe’s operation, which he described. The lathe is automatic and used to make facecuts across metal pieces. The operator fastens the metal in place with the chuck jaws,with the machine off. He then turns a lever under the cutting tool which causes thecutting head to move automatically across the material and sake the face cut. Afterengaging the lathe, the operator stands 3.5 to four feet away; he disengages it with thesame lover after the cut is made. Foreman said the operator is not required to be close tothe revolving chuck unit, and did not believe accidental contact could occur. He also saidthe jaws are normally flush with the unit during operation. If contact were to occur, theunit would push the employee away or bump or \”rattle\” his fingers, which couldcause bruising but not a serious injury. (Tr. 340-41; 347-51; 366; 371-72).The subject standard, set out supra, requiresguarding on machines whose rotating parts represent a hazard. Although the CO did not seethe lathe in operation, his opinion was that it could injure the operator when it was runwith the jaws extending beyond the chuck unit. Foreman’s testimony was that the jaws arenormally flush with the unit when it rotates, and that the worst injury contact with theunit could cause under these circumstances would be bruising. However, Foreman’s testimonyindicates the lathe is sometimes run with the jaws extended, which, as the CO testified,could cause serious injury. Foreman’s opinion was that accidental contact would not occur.Regardless, it in not difficult to conceive of situations in which the operator, whilestanding next to the lathe to turn it on or off, might become distracted and contact theextended, rotating jaws and sustain a serious injury. Such injury could be easilyprevented by guarding the lathe. This citation item is therefore affirmed as a seriousviolation.Item 6(d) – 29 C.F.R. ? 1910.212(a)(1)William Burke observed an employee operating anunguarded turret lathe in the machine shop. He identified Exhibit C-13 as a photo he tookof the lathe, and C-14 as another turret lathe in the same area that was properly guarded.He described the lathe as an eight-inch-thick table with a 42-inch diameter that cutsholes in the center of cast iron parts as it rotates. Burke said the unguarded lathe washazardous. If the operator got too close he could be struck by it, or his clothing couldbe caught in it, which could cause bruises, fractures or lacerations. (Tr. 62; 73-77).Thomas Evans testified that at the time of theinspection, the turret lathe in C-13 had been operating at the plant for seven or eightweeks. He said the table has no parts extending beyond its edge, and if someone contactedit, it would just bump the person away. He noted the lathe had caused no injuries. (Tr.276-77).As noted above, the subject standard requiresguarding on machines whose rotating parts represent a hazard. Respondent acknowledges thefact that another turret lathe was guarded demonstrates that guarding was, in fact,required on the cited lathe. It asserts, however, that because the possibility of seriousinjury was remote, the violation should be classified as nonserious. I disagree. AlthoughEvans said there were no parts that extend beyond the table’s edge, C-13 shows what appearto be notches around the top of the table which could presumably catch clothing, as the COtestified. Moreover, while Evans believed contact with the rotating table would not causeserious injury, the CO’s opinion was that it could, and his opinion, as a safetyspecialist with many years of experience, is credited over that of Evans. This citationitem is affirmed.Turning to the assessment of a penalty, citationitems 6(a) through (d), as noted above, have been grouped with a proposed total penalty of$600.00. Since violations have been found for all four items, the proposed penalty of$600.00 is assessed.Items 7(a) — 29 C.F.R. ? 1910.212(a)(3)(ii)William Burke testified he saw an unguarded Whitneyangle shear in No. 61. He identified Exhibit C-15 as a photo he took of it. He did not seeit operate, but Eugene Moore told his it was used to cut eight by eight three-quarterangles. Burke said the shear could cause an amputation if an employee got his hand, arm orfingers into its point of operation. He noted a two-hand control would be an alternativeto guarding. He said the unit did have buttons which had to be pushed to start theoperating cycle, but that they were not an adequate control. They did not have to bepushed at the same time and could be released before the cycle was over, which wouldenable the operator to get his hands into the point of operation. (Tr. 78-82; 213).Eugene Moore testified that he was familiar with theangle shear. It was working properly the day before the inspection, when he operated ithimself, but did not work properly when he showed it to Burke. Moore had it checked bymaintenance and learned it had malfunctioned because it had a bad switch. He said theshear moves very slowly, and that when it is functioning normally an operator could notaccidentally got caught in it because of its two control buttons. The buttons are notshown in C-15, but are about two feet from the shear and 18 inches apart. The operatormust keep both hands on the buttons for the unit to work, and if he removes either hand itwill stop before he can got his hand in the point of operation. (Tr. 322-24; 338-39).Neil Foreman testified that he has seen the angleshear in operation before and after the inspection, and that he was present when Burke sawit. He said it had not been modified since the inspection other than the control buttonrepair. He made a video of the shear’s operation, which he described. The unit ishydraulic and runs very slowly. The operator has to push both buttons to actuate the shearhead, which stops immediately if either button is released. Foreman did not believe theshear’s normal operation was hazardous or that an employee could get into the point ofoperation, either accidentally or deliberately, because of the control buttons. (Tr.351-54; Exh. R-9).The subject standard provides, in pertinent part, asfollows:The point of operation of machines whose operationexposes an employee to injury, shall be guarded. The guarding device shall be … nodesigned and constructed as to prevent the operator from having any part of his body inthe danger zone during the operating cycle.The record shows that the Whitney angle shear was notguarded. However, as the CO testified, a two-hand control which keeps the operator’s handsout of the point of operation would also comply with the standard. Based on how theshear’s tripping device functioned on the day of the inspection, it is understandable theCO believed it did not meet the standard requirements. However, both Moore and Foremantestified regarding the normal operation of the lathe and the tripping device. Theirtestimony demonstrates that if the device had been working properly it would have compliedwith the standard.As has been previously noted, one of the necessaryelements in establishing a violation is employer knowledge of the condition. The Secretarymust show the employer know, or in the exercise of reasonable diligence could have known,of the violative condition. In this case, Moore testified he operated the shear the daybefore the inspection, when it was operating properly. He also testified the shear’smalfunction was due to a bad switch, which, as Foreman indicated, was repaired. Based onthe record, it is concluded the requisite knowledge of the violative condition has notboon shown. This citation item is accordingly vacated.Item 7(b) – 1910.212(a)(3)(ii)William Burke testified he observed a cold form rollban line in No. 61. He did not see it operate, but Eugene Moore told his it was a new unitused to form metal plate into rail car sides. Burke thought the line was approximately 50feet long, with about 10 feet between its four roller assemblies. He identified ExhibitC-16 as a photo he took showing metal in one of the assemblies. The metal would feedcontinuously through the rollers and be cut off at the end of the unit, where there was ashear. The rollers and shear were unguarded and Moore told him the operator walked up anddown the line as it operated. Burke said the line was hazardous to the operator; the shearcould cause an amputation, and the rollers could cause a crushing injury or catch hisclothing and pull him into the machine. Burke noted there was an operator station eightfeet from the nearest roller. He said there would be no hazard to the operator if hestayed behind the station when the unit was running. (Tr. 83-88; 213-14).Eugene Moore testified that the operator’s station iseight to ten feet from the line, and that the operator stands behind it when the lineoperates. When Burke asked if the operator walked by the line, Moore replied that he did,but not when it was running. Moore said the operator needs to be at the station when theline is running so he can shut it down if a problem develops, and that no one besides theoperator has a reason to be in the area. He noted the rollers turn very slowly. He did notbelieve anyone could be caught in then unless the act was deliberate. (Tr. 325-26).The subject standard, set out supra, requiresguarding on machines whose operation exposes an employee to injury. The recorddemonstrates that the shear and rollers an the cold form roll ban line were unguarded, andthat the line was cited because the CO believed the operator walked along it as itoperated. Moore, however, testified the operator stayed behind the station when the lineoperated. I observed the demeanor of both witnesses, and have no reason to disbelieve thetestimony of either. Based on the record, it would appear the CO misunderstood what Mooresaid, and that the operator does, in fact, stand behind the station while the line isrunning. The CO acknowledged there would be no hazard to the operator if this were thecase, and there was no evidence other employees were exposed to the unguarded line. Thiscitation item is vacated.Item 8 – 29 C.F.R. ? 1910.221(a)(4)William Burke saw an unguarded parts tumbler outsidethe plate shop building of No. 74. He described it as a large revolving barrel or drum onrollers that was electronically operated. It was near a walkway, and behind it was a sawand a stack of cut lumber three to four feet away. Burke identified Exhibits C-17 throughC-20 as photos he took of the tumbler. He said it was hazardous because the operator oremployees sawing lumber could get hands or other body parts caught in the rollers and beinjured; the operator could also be struck if the door in C-17 and C-19 were to open.Burke did not see the tumbler operate or know how fast it turned, but Thomas Evans toldhim it was used about twice a week to remove burrs from parts and assemblies and thatemployees used the stand shown in C-19 to put parts in it. Evans also told his theoperator turned the tumbler on at its control buttons, left, and then returned to turn itoff. Burke noted the control buttons are shown in C-18. (Tr. 90-95; 173-75; 230).Thomas Evans testified that the operator puts parts in the tumbler, goes to a station fivefeet away to turn on the start button, and then leaves it running for 15 to 20 minuteswhile he works inside the building. He said the tumbler rotates very slowly, about fourRPM’s, and that no one is exposed to its nip points. He stated there is no walkway aroundthe tumbler and that no one works there when it is operating, but that employeesoccasionally saw wood in the area shown in C-20. That area is twelve or thirteen feet fromthe tumbler, and employees access it from the opposite direction. (Tr. 277-78).Neil Foreman testified that he is familiar with theparts tumbler and has soon it operate. He did not believe the nip points between thebarrel and the rollers present a hazard because the barrel rotates very slowly, about fourRPM’s. (Tr. 354-55).The subject standard provides as follows:Barrels, containers, and drums. Revolving drum’s,barrels, and containers shall be guarded by an enclosure which is interlocked with thedrive mechanism, so that the barrel, drum, or container cannot revolve unless the guardenclosure is in place.The record clearly shows the parts tumbler was notguarded. However, as noted previously, there must be evidence of employee exposure to thecondition to establish a violation. The CO believed the operator could be caught in thetumbler’s rollers or struck by its door. However, he did not see the tumbler operate, andEvans’ testimony demonstrates that the only occasions the operator is in the area of themachine when it in running is when he turns it on and off from a control button five footaway. After turning the tumbler on, the operator leaves the area and works inside thebuilding. Based on the record, the operator is not exposed to the hazards described by theCO.The same conclusion is reached in regard to theemployees who saw lumber behind the tumbler. Evans testified the area is twelve tothirteen feet from the tumbler and accessed from the opposite side. Although the CO saidthere was wood stacked three to four feet from the tumbler, C-20 demonstrates the stack isconsiderably farther from the rollers themselves. C-19 and 20 show the wood-cutting areacould be accessed from the direction of the tumbler; however, the rollers’ location issuch that it appears a deliberate act would be required to contact them. Even if contactwere to occur, it would seen the machine’s slow rotation would allow an employee towithdraw before any injury ensued. While guarding would prevent contact with the rollers,instructions to keep away from the tumbler when it is operating would also protectemployees. Respondent presumably provides such instructions, based on Evans, testimonyabout the operator and how employees access the lumber-cutting area. In any case,Respondent was not cited for failure to instruct, and it is concluded that the facts ofthis case do not demonstrate a violation. This citation item is therefore vacated. Items 9(a) and (b) – 29 C.F.R. ?1910.217(c)(2)(i)(b) and (d)William Burke testified he saw a Danly 200 mechanicalpower in operation in the plate shop. Its point of operation was guarded, but there was a9 3\/4-inch by 14 1\/2-inch opening in the guard and the distance from the opening to thepoint of operation was approximately 24 inches. Burke said the maximum allowable openingwidth was 2 1\/8 inches, and that the condition was hazardous because an employee could gethis hand into the point of operation and sustain an amputation injury. He identifiedExhibit C-21 as a photo he took of the press which showed the opening. (Tr. 96-98; 101-03;215).Burke further testified that another point ofoperation guard on the press was not fastened securely and had been left open. Heidentified Exhibit C-22 as a photo he took of the guard. He said it should have beenfastened in place with nuts or screws or some other device so it could not be swung open.Burke said an employee could receive an amputation injury if he opened the guard andreached into the point of operation. He noted the operator did not work on that side andwould not accidentally got into the point of operation from there. (Tr. 96; 98-101;104-05; 214-15).Thomas Evans testified that the Danly press has beenin the facility since 1985; it runs all day and makes 200 to 250 stamps per hour, and hasnever caused any injuries. He said the guarding is always in place and closed when thepress operates. He noted the guard on the front of the press, shown on the right side ofC-21, has to be opened for the die to be changed, but that it is always closed when thepress is operating. He did not believe an employee could accidentally got caught in thepoint of operation. (Tr. 278-79).Neil Foreman also testified. He has seen the pressoperate several times, and the guarding has always been on and closed. He marked a red\”X\” an C-21 to show the machine’s point of operation. He then discussed R-9, avideo he made of the operating cycle. The operator supports the material, which is longbar stock, with both hands and feeds it into the side of the press. He could notaccidentally get into the point of operation because it is 24 inches from the guard and hewould have to insert his arm into the opening up to some point between his elbow andshoulder to do go. If he fell, the four-foot base of the machine would keep his tramgetting into the operation. Foreman said C-22 shows the guard an the side away from wherematerial foods in. He has never seen the press running with it open. (Tr. 355-58).1910.217(c)(2)(i)(b) provides as follows:Point of operation guards. Every point ofoperation guard shall meet the following design, construction, application, and adjustmentrequirements: It shall conform to the maximum permissible openings of Table 0-10.The record clearly demonstrates that the opening inthe Danly power press guard did not conform to the requirements got out in the standard inTable 0-10. Respondent urges the opening was not hazardous because it would require adeliberate act to get into the point of operation. I disagree. C-21 shown an operatorfeeding long bar stock into the opening with ore hand which appears to be about a footfrom the opening. The operator’s hand, as it feeds the stock, would necessarily approachthe point of operation. Moreover, the size of the opening would enable the operator toinsert his hand or even his arm into it as the press cycles, and Respondent presented noevidence that this does not occur.Foreman did not believe the operator could got intothe point of operation because of its 24-inch distance from the opening. Regardless, itseems entirely possible to this judge that the operator, with his hand or arm partiallyinserted into the opening, could fall or be accidentally shoved from behind, which couldcause his fingers or hand to enter the point of operation and be amputated. It isconcluded that the record demonstrates employee exposure to the hazards of the violativecondition. This citation item is affirmed as a serious violation.1910.217 (c) (2) (i) (d) provides as follows:Point of operation guards. Every point ofoperation guard shall meet the following design, construction, application, and adjustmentrequirements: It shall utilize fasteners not readily removable by operator, so as tominimize the possibility of misuse or removal of essential parts.The record shows the cited guard was not fastened as required by the standard. Respondentasserts the condition was not a hazard because an employee would have to deliberately openthe guard with the press running to get into the point of operation. However, while Evanstestified the press is always operated with the guard closed, it was not closed when theCO observed it and Evans did not state it had been opened to change the die. In any case,the fact remains that the guard was not fastened, and the operator or other employeescould swing it open and got into the point of operation. It might be that doing so wouldrequire a deliberate act, as Respondent urges. Notwithstanding, the Commission hasindicated that some standards, including the subject standard, may reasonably beinterpreted to require employers to forestall deliberate misbehavior. See Ornet Corp., 81OSAHRC 35\/C3, 9 BNA OSHC 1828, 1831 n.3, 1981 CCH OSHD ? 25,322 (No. 76-4398, 1981). Iconclude the facts of this case mandate such an interpretation, based on the seriousnessof the hazard and the ease with which it could be prevented. Accordingly, this citationitem is affirmed.Turning to the assessment of a penalty, citationitems 9(a) and (b) have been grouped, with a total proposed penalty of $700.00. Sinceviolations have been found for both items, the proposed penalty of $700.00 is assessed.Item 10 – 29 C.F.R. ? 1910.243(g)(1)William Burke observed a hand-held abrasive grindingwheel that was unguarded. He did not see it used, but an employee told him it was used togrind out defects on welded metal, and Eugene Moore was present at the time. Burkeidentified Exhibit C-23 an a photo he took of the wheel. He said it was hazardous becauseit could fall apart during use and create shrapnel which could strike an employee andcause a puncture wound. Burke did not recall being told the wheel was used without aguard. He also did not recall that the guard for the wheel was in the area and wasproduced, but said it could have boon. He did remember there were a number of grindingwheels in the facility, and that he did not note any others that were unguarded. (Tr.105-08; 216-17; 225-28).Eugene Moore testified he was present when Burke sawthe wheel. Moore called an employee over and asked his why it was unguarded. The employeetold his he took it off to replace the wheel and then produced the guard, which was in theimmediate area. Moore said the employee was disciplined for not putting the guard back onthe wheel. He noted the facility has a rule requiring wheels to be guarded at all times;the rule is in the employee safety manual, and is discussed with now hires and at safetymeetings. He also noted the facility enforces Trinity’s corporate safety program throughemployee training and use of personal protective equipment, safety meetings, audits andinspections, incentive programs and disciplinary procedures for violations of safetyrules. (Tr. 314-20; 326-28; 336-37; Exh. R-8).The subject standard states, in pertinent part, asfollows: Portable abrasive wheels – General requirements. Abrasive wheels shall beused only on machine provided with safety guards.It is undisputed the cited wheel was unguarded at thetime of the inspection. However, Respondent asserts the condition was the result ofunpreventable employee misconduct. To demonstrate this affirmative defense, Respondentmust show that it both established and adequately communicated work rules designed toprevent the violation, and that it made efforts to detect violations and enforced therules when violations were discovered. Jensen Constr. CO., 79 OSAHRC 49\/D3, 7 BNA OSHC1477, 1479, 1979 CCH OSHD ? 23,664 (No. 76-1538, 1979).Although there is no specific rule about abrasivewheel guarding, R-8 does advise employees that machinery guards should not be removed andthat rotating parts on tools should be guarded. (Exh. R-8, pgs. 2, 4). Moore testifiedthis rule was discussed with employees, and that the employee who removed the guard wasdisciplined. Moore also testified about the facility’s procedures for training anddisciplining employees and for detecting violations. Based on the record, it is concludedthe unguarded wheel was the result of unpreventable employee misconduct, which isconsistent with the fact the CO found no other unguarded wheel in the facility. Thiscitation item in vacated.Item 11 – 29 C.F.R. ? 1910.244(a)(1)(ii)William Burke saw a Walker hand jack in the garage area. He identified Exhibit C-24 asa photo he took of the jack. Hilton Price, the maintenance foreman, told him it was usedin the maintenance shop, and a mechanic told his it was used about once a month to changeforklift tires. He and Price looked for the load capacity on the Jack and could not findit, and no one at the facility know its rating. Burke said the Jack was required to havethe load capacity legibly and permanently marked on it to prevent overload and failure,which could cause a crashing injury. He know of several cases where equipment not known tobe inadequate had failed after being used a number of years. He indicated that if the Jackhad previously had a load capacity plate, had a rating sufficient to lift the forklifts,and was only used for that purpose, it would not be a hazard. (Tr. 109-11; 217-21).Eugene Moore testified that the Jack shown in C-24was located in the garage area shared by No. 61 and No. 74. He said it was only used forlifting forklifts, that it was used about once a month, and that it had had a load ratingplate an it at one time. Although he could not remember the date, he recalled the jack hadbeen sent out for repairs sometime prior to the inspection. His explanation for theplate’s absence was that it must have been knocked off when the Jack was being repaired.(Tr. 328-34).The subject standard provides as follows:Jacks – Loading and marking. The rated load shall belegibly and permanently marked in a prominent location on the jack by casting, stamping,or other suitable means.The purpose of the standard, as the CO testified, isto ensure that a jack’s capacity is sufficient to sustain the loads it lifts. See also1910.244 (a)(1)(i). Respondent does not deny a violation occurred, but asserts it shouldbe classified as de minimis, based on the CO’s testimony. I disagree. The CO’s testimonythat the jack would not be a hazard was clearly conditioned on its capacity beingsufficient for the purpose for which it was used. Although the jack was used to liftforklifts, Respondent presented no evidence in regard to its capacity. As the CO noted,,equipment unrecognized as inadequate can fail after a number of years. In this case, suchfailure could cause serious injury. This citation item is affirmed as a seriousviolation,, and the Secretary’s proposed penalty of $500.00 in assessed.Item 12 – 29 C.F.R. ? 1910.303(b)(2)William Burke testified that the cold drink machineand the snack machine in the vending area of the shop had straight-blade male plugs whichwere connected to twist-lock female receptacles. He said straight-blade plugs art not madeto fit twist-lock receptacles, and, according to OSHA regulations and the NationalElectric Code, cannot be interchanged. Burke identified Exhibits C-25 and C-26 as photoshe took. C-26 shows the receptacles, and C-25 shows one of the plugs with its bladestwisted to make it fit in the receptacle. Before he disconnected the plug, it was hangingout of the receptacle with part of the blade exposed, which created an electrocutionhazard if someone plugged or unplugged it. Burke recalled being told that Trinity did notown the machines or have anything to do with then, and that they had been installed andwere maintained by a vending machine company. (Tr. 112-17; 182-83).Thomas Evans and Eugene Moore were familiar with thevending machines, and testified that they were installed, owned and maintained by acompany named Automated Food. They said all of the receptacles in the facility are thetwist-lock type, and neither know if anyone advised Automated of this. Neither had anyreason to believe the machines were installed incorrectly, and both said their employeesused the machines but had nothing to do with plugging or unplugging them. (Tr. 252-53;28b-87; 334-35; 336-39).Neil Foreman testified that Trinity facilitiesconduct in-house safety inspections that include identifying and correcting electricalproblems. The inspections are recorded on Exhibit R-20, which has an electrical portion,and facilities have maintenance personnel whose sole responsibility is to repairequipment. When Foreman conducts safety audits of Trinity facilities, one of the things hechecks is to ensure that straight plugs are not used in twist-lock receptacles. He hasaudited the Maple Avenue facility more than once, which has several hundred receptacles;he said that if he saw a plug like the one in C-25, he would have it replaced. He statedhe had never seen the cited plugs before the inspection and never considered checking thenbecause the machines are owned and operated by a vending company and Trinity has nothingto do with them. He also stated the machines are in a small alcove off one of theproduction bays, and that the plugs are back in a darkened area between the machines. (Tr.341; 345; 363; 366; 372-73; 375-76).The subject standard provides as follows:Installation and use. Listed or labeled equipmentshall be used or installed in accordance with any instructions included in the listing orlabeling.The record shows the vending machine plugs did notcomply with the standard. Respondent contends there can be no violation because it did notcreate the condition, or have any reason to know about the condition, which was notobvious. Commission precedent is well established that an employer in a multiemployerworksite who did not create or control the condition may defend against the citation onthe ground that it did not know, and could not know in the exercise of reasonablediligence, about the condition. See 4G Plumbing & Heating, Inc., 78 OSAHRC 29\/B8 6 BNAOSHC 1528, 1978 CCH OSHD ? 22,658 (No. 12892, 1978), and cases cited therein. However, itis clear from these decisions that the employer has the burden of showing the violationwas outside its area of expertise. In this case, Respondent has not met its burden, sincethe record demonstrates that detecting and correcting electrical problems is a routinepart of its maintenance procedures.Alternatively, Respondent contends there was noviolation because there was no evidence of employee exposure. The record does indicatethat Respondent’s employees, in the course of their regular duties would have no reason tocontact the cited plugs. However, since the machines are at the worksite, it is reasonablyforeseeable that Respondent’s employees could contact the plugs, if for example, one ofthe machines developed a short and required unplugging, or if the plug hanging out of thesocket fell out and needed to be replugged. Since the consequences of such contact couldbe serious or fatal, this citation item is affirmed, and the secretary’s proposed penaltyof $800.00 is assessed.Item 13 – 29 C.F.R. ? 1910.304(f)(4)William Burke saw three instances in which the pathto ground from surface equipment enclosures was not continuous. One of the items was ametal light fixture lose than eight feet from the floor located between metal racks in theNo. 74 warehouse on the second floor It was plugged into an extension cord that had itsground prong missing, which caused it to be ungrounded. Burke identified Exhibit C-27 as aphoto he took of the fixture. He said it could cause an electrocution if it was defectiveand someone contacted it and the racks. The other two items were the plugs to the colddrink and snack vending machines, which had had their ground prongs removed. Burke notedExhibit C-25 showed the condition, and said employees could be electrocuted when using theungrounded machines, which were on concrete, in the event of a short circuit. (Tr. 117-21;187-88).Thomas Evans and Eugene Moore both testified thatthere is a facility rule about cutting ground prongs off of plugs. Evans said employeesare told not to do so, and that the facility did not have a problem with it. Moore saidthe rule is to not tamper with grounding devices at all, and that employees are subject todiscipline or dismissal for doing so. Both stated that Trinity’s employee safety manual isdiscussed with employees when they are hired. (Tr. 241; 253-54; 335-36; Exh. R-8).The subject standard provides as follows:Grounding path. The path to ground from circuits,equipment and enclosures shall be permanent and continuous.The record demonstrates that the vending machines, which were also the subject of theprevious citation item, did not comply with the standard. Respondent’s assertion that itdid not create or know about the condition was dismissed supra and need not be addressedagain. It is found, therefore, that Respondent was in violation of the standard in regardto the vending machines.In regard to the light fixture, which also did notcomply with the standard, Respondent asserts the condition was the result of unpreventableemployee misconduct. To establish this affirmative defense, Respondent must prove it bothestablished and adequately communicated work rules which would prevent the violation, andthat it made efforts to detect violations and enforced the rules when violations werediscovered. Jensen, supra. The record shows the facility does, in fact, have a rule which prohibits the use of cordswithout proper grounding devices. See Exh. R-8 pg. 15. The record also shows that facilityinspections are to include checking equipment for proper grounding. See Exh. R-2, items 25and 28. However, the fact that there were three instances of ungrounded equipmentindicates that Respondent’s rules and procedures regarding grounding were not as effectiveas they should have been, and it is found that unpreventable employee misconduct has notbeen demonstrated. Accordingly, this citation item is affirmed an a serious violation, andthe Secretary’s proposed penalty of $800.00 is assessed.Item 14 – 29 C.F.R. ? 1910.305(b)(2)William Burke testified he saw a duplex receptacleoutside of the No. 74 warehouse. It did not have a face plate cover, and he learned theplug in it was connected and disconnected daily. Burke said Exhibit R-10 appeared to be aphoto of the receptacle, and explained that the purpose of a cover is to protect againstcontact with exposed electrical parts. He said that although R-10 did not depict thecondition, there was about a quarter-inch opening around the edge of the box that exposedthe receptacle’s terminal screw, which have live parts. He stated this was hazardous; anemployee plugging something into the receptacle could get a finger tip into the opening orcould hit the screws with the plug and receive a shock. Burke noted he observed a numberof receptacles in the facility during his inspection, and that this was the only one hesaw without a cover. (Tr. 122; 189-90; 377-81).Neil Foreman identified Exhibit R-10 an a photo he took of the receptacle, and said itaccurately reflected the receptacle’s condition at the time of the inspection. He said thereceptacle box had no exposed electrical parts other than the two places where connectionis made. He also said if he saw a receptacle like the one in R-10 he would put a cover onit, not necessarily because it was hazardous, but because that is the appropriatepractice. He noted this was one of the purposes of Trinity’s in-house audits, and thatTrinity had maintenance people whose sole responsibility was to repair equipment. (Tr.360-62).The subject standard provides, in pertinent part, asfollows: Covers and canopies. In completed installations eachoutlet box shall have a cover, faceplate, or fixture canopy.It is undisputed the cited receptacle did not have a cover as required by the standard.Respondent contends, the condition was not hazardous because, according to Foreman’stestimony, there were no exposed live parts. However, the CO testified that the terminalscrews were exposed, and his opinion was that employees using the receptacle could receivean electrical shock. The CO’s electrical experience has been noted supra. Based an thatexperience, his opinion is credited over that of Foreman, and it is found that theuncovered receptacle represented a hazard.Respondent also contends it had no knowledge of the condition, based on the evidence ofTrinity’s safety inspections, and the fact the CO saw no other receptacles in the facilitywithout covers. As has already been noted, knowledge may be demonstrated by showing theemployer could have discovered the condition in the exercise at reasonable diligence. Inthis case, the condition was apparently open and obvious, since employees used thereceptacle daily to connect and disconnect the plug. It is logical to conclude, therefore,that Respondent could have known about the condition had it exercised reasonablediligence. This citation item is affirmed as a serious violation, and the Secretary’sproposed penalty of $700.00 is assessed.Item 15 – 22 C.F.R. ? 1910.305(g)(2)(iii)William Burke observed a pigtail adapter connected toa cooler containing juice in the mill bolster area. The adapter had tape on it, which wasloose and not fastened in any way, and its cord hung down from the receptacle into whichit was plugged. Burke identified Exhibits C-28, 29 and 30 as photos he took of the cord.He said a flexible cord’s normal configuration would be almost a 90-degree angle out ofthe plug, rather than hanging down. He did not remove the tape, but inspected the cord andtested it with him hand. He said the metal plug was not clasped to the insulation, andthat this caused the conducting wires in the cord to put tension an the receptaclesterminal screws. He noted the photographs did not depict the tension on the screws, butthat C-30 showed the individual conductors hanging loose from the back of the plug. Hesaid the condition was hazardous because the tension could cause the conductors to breakor come loose, which could transfer voltage to the metal plug and cause a shock orelectrocution. (Tr. 123-27; 190-91).Neil Foreman testified that he removed the tape and inspected the cord in his office afterthe inspection. He said that while there was insulation damage to the top of the cord, thebottom of the cord was still attached to the plug. He said this could not have been seenwithout removing the tape. He stated that it he came across a plug like the one in C-28during one of his periodic audits, he would have it repaired. (Tr. 362; 373).The subject standard provides as follows:Flexible cords shall be connected to devices andfittings so that strain relief in provided which will prevent pull from being directlytransmitted to joints or terminal screws.Respondent asserts Foreman’s testimony about hisinspection of the cord demonstrates there was no violation of the standard. I do notagree. Although Foreman’s testimony indicates the insulation on the cord was notcompletely severed from the plug, he admitted it was damaged and that he would haverepaired the cord had he discovered it. Moreover, the fact the insulation was notcompletely severed does not establish a violation did not occur. Although the COapparently believed the plug was not attached to the insulation, his testimony about thecord’s condition was sufficient to convince the undersigned that it more likely than notcaused tension to be transmitted to the terminal screws in violation of the standard. TheCO’s testimony about the hazards of the condition was equally convincing, and Respondent,based an Foreman’s testimony, apparently does not deny those hazards. This citation itemis accordingly affirmed as a serious violation, and the Secretary’s proposed penalty of$700.00 is assessed.Item 16 – 29 C.F.R. ? 1902.305(j)(l)(i)William Burke testified that the receptacle depictedin Exhibits C-28 and 30 had a bent and broken face plate. He said C-28 showed the bentcondition, which created a one-quarter to one-half-inch opening in the box, and that theterminal screws, while not shown in C-28, were close to the receptacle’s front. He alsosaid that one of the blade entrances to the receptacle was right behind the broken cornerof the face plate as shown in C-30. Burke stated the face plate was hazardous because ofthe exposed live parts; an employee contacting the box could touch the terminal screws andbe electrocuted. (Tr. 127-29).Neil Foreman testified that when he inspected thereceptacle box to do, determine if there were any exposed live parts, he saw none. He didnot consider the condition to be a realistic hazard to employees, but said if he haddiscovered it, he would have had it repaired. He believed the condition would have beendetected and corrected during the next plant inspection. (Tr. 362-64; 373).The subject standard provides, in pertinent part, asfollows: Lighting fixtures, lampholders, lamps and receptacles.Fixtures, lampholders, lamps rosettes, andreceptacles may have no live parts normally exposed to employee contact.Respondent contends there was no violation of the standard, based on Foreman’s testimonythat he saw no exposed parts and did not consider the condition a \”realistichazard.\” Foreman’s opinion about the condition is contradicted by his admission thathe would have had it repaired had he discovered it. It is also contradicted by the CO’stestimony, which was that the terminal screws were exposed and that employees contactingthe box could touch then and be electrocuted. The CO’s electrical experience has beennoted supra. Based on that experience, more weight in given to his testimony and opinion,and it is found that the cited condition presented a serious hazard to employees.Respondent further contends that it had no knowledge of the condition. However the recordshows the cited receptacle was in plain view in an area that, due to the presence of adrink cooler, was apparently frequented by employees. Because the condition was open andobvious, it should have been discovered in the exercise of reasonable diligence. Thiscitation item is therefore affirmed an a serious violation, and the Secretary’s proposedpenalty of $700.00 is assessed.Item 17 – 29 C.F.R. ? 1910.1200(h)(1)William Burke saw an employee, Charles Montgomery,using a coolant in the machine shop. After talking to Montgomery, Burke determined he hadnot been trained about the coolant’s hazards. Thomas Evans was there and said the machineshop was Montgomery’s normal work area, but did not indicate whether his statements wereaccurate. Burke did not ascertain the hazards of the coolant; he did not receive thematerial safety data sheet (\”MSDS\”) for it, even though he requested it, and hedid not take a sample of the coolant for testing. Burke said he had seen the facility’sHaz-Com program at the opening conference, and that he had soon one of the facility’s MSDSbooks. He also said he had interviewed several other employees, who indicated they hadreceived Haz-Com training.(Tr. 129-33; 191-94; 198).Thomas Evans testified that the corporate safetydepartment provides a written Haz-Com program which is part of the facility’s employeesafety training. Although it is an annual requirement, the facility gives Haz-Com and MSDStraining more often than once a year. Haz-Com is also discussed with now employees, andthey are told about the facility’s four MSDS books. (Tr. 240-43).Evans further testified he was present when Burketalked to Montgomery, and that he tried to remind his he had had Haz-Com training. Evansidentified Exhibit R-3 as the report of a plant wide meeting he conducted in April, 1989,when a video about Haz-Com and MSDS was shown. He noted Montgomery was at the meeting, andput a check by his name on the list of attendees. Evans said Montgomery would also havereceived specific instructions about any hazardous substances in his area, and that heconfirmed Montgomery had had that training. He said Burke talked to other employees whoindicated they had had Haz-Com training. (Tr. 254-57; 284-85).Neil Foreman testified that Trinity’s corporatesafety department provides written materials to help its facilities implement specificprograms like Haz-Com. The programs are updated as needed, and updates are sent to thefacilities. Each plant is required to conduct yearly Haz-Com training, and is monitored toensure the training takes place. Foreman has seen the Haz-Com video Evans discussed. It isa 3M Corporation video which addresses the hazard communication standard, MSDS, flashpoints and chemical handling. (Tr. 341-44; 366-68).The subject standard provides, in pertinent part, asfollows: Employee information and training. Employers shall provide employees withinformation and training on hazardous chemicals in their work area at the time of theirinitial assignment, and whenever a new hazard is introduced into their work area.The citation was issued because the CO believedCharles Montgomery had not been instructed about the hazards of the coolant. The recordshows Respondent’s facility provides Haz-Com and MSDS training, and that Montgomeryattended a safety meeting that addressed those topics less than a month before theinspection. There was no evidence regarding the hazards of the coolant, or that Montgomeryreceived specific instructions about the coolant. However, Evans’ testimony indicatedMontgomery was trained about all of the hazardous substances in his work area. Therefore,assuming arguendo that Respondent was required to provide training about the coolant, itwould appear Montgomery did, in fact, receive the training, and that he either did notrecall it or misunderstood the CO. It is concluded the record does not establish aviolation. This citation item is vacated.Penalty DeterminationPenalties have been assessed for a number of seriousviolations, supra. In assessing the penalties, due consideration has been given to thesize of Respondent’s business and the gravity of the violations, as well as toRespondent’s good faith and its history of previous violations.\”Other\” Citation Number 2Item 1 – 29 C.F.R. ? 1910.157(c)(4)William Burke testified he observed an ABC fireextinguisher on the north wall, column K-32, of the sill bolster bay. Its tag showed ithad last been inspected on April 4, 1989, and its gauge needle was in the rechargeposition. He identified Exhibit C-31 as a photo he took of the extinguisher. He said thecondition was a hazard. Although the plant had a number of extinguishers and there mayhave been one on a nearby column, welders who worked in the area indicated theextinguisher was one that would be used if a fire started. Burke said the fact the pin wasin the extinguisher was an indication it had probably leaked, and noted the extinguisherwas immediately replaced. (Tr. 134-37; 162-64).Thomas Evans testified that he was there when Burkesaw the extinguisher, and that he did not know about its condition. He noted thefacility’s extinguishers are inspected monthly, and said the fact the pin’s clip was notbroken indicated the extinguisher had not been used and had leaked. (Tr. 279-80).Neil Foreman, identified Exhibit R-11 as a photo he took of the extinguisher. He noted itshowed that the seal around the pin was intact; if the extinguisher had been used the sealwould have been broken. He said the condition indicated what he called a\”leaker,\” which can occur when seals age, and that this was the reason Trinityinspected its extinguishers monthly. (Tr. 364-65).The subject standard provides, in pertinent part, asfollows: The employer shall assure that portable fire extinguishers are maintained in a fullycharged and operable condition.It is undisputed the cited extinguisher was not fully charged. However, as noted supra, toestablish a violation it must be shown the employer knew or could have known in theexercise of reasonable diligence that the condition existed. It is concluded the facts ofthis case do not demonstrate the requisite knowledge. Although the extinguisher wasapparently in plain view, Evans said he did not know about it, and that he would not issupported by the fact it had not been used. Moreover, the evidence regarding monthlyinspections, along with the fact the cited extinguisher had been inspected approximately amonth earlier, supports a finding that Respondent exercised reasonable diligence inattempting to ensure its extinguishers remained fully charged. This conclusion is notinconsistent with the extinguisher condition, since the record suggests it was caused byleakage. This citation item is vacated. Item 2 – 29 C.F.R. ? 1910.179(b)(5)William Burke saw a P&H overhead bridge-typefloor-operated crane in the warehouse of No. 74. The block was marked to show its loadcapacity, but the unit itself was not. Burke said this was hazardous. The block’s capacitysay have been different from that of the unit, as blocks are sometimes changed orreplaced, and the crane could be overloaded and fail, resulting in a load falling on anemployee. Burke did not see the crane used, but an employee told his he had used it tomove shelves in the warehouse four to five months earlier, and Thomas Evans did notindicate it was not used. Burke said probable injuries would be bruises rather thanfractures, as he did not know the shelves’ weight or see any overly heavy items in thearea. (Tr. 137-41; 159-62).Burke identified Exhibit C-12 as a photo he took ofthe crane. He said the blue motorized hoisting mechanism ran along the gray beam, orbridge, on which it was mounted. He stated the beam would have to move for the unit to bean overhead crane, and noted this could not be determined from C-32. He thought the beammoved, as he recalled it being 10 to 15 feet away from the shelving that had been moved.After reviewing his notes, he said he did not know why he would have written it down as abridge crane if it did not move as one unit. (Tr. 138; 222-24).Thomas Evans testified that the crane shown in C-32in not used, and that the warehouse worker has no reason to use it in his normal duties.(Tr. 281).The subject standard, which pertains to overhead andgantry cranes, provides, in pertinent part, as follows:Rated load marking. The rated load of the crane shallbe plainly marked on each side of the crane.Respondent does not dispute the rated load was notmarked on the sides of the cited unit. It asserts, rather, that the standard does notapply because the evidence does not establish the unit is an overhead crane. Theapplicable definition appears at 1910.179(a)(8), and states as follows:\”Overhead crane\” means a crane with asavable bridge carrying a movable or fixed hoisting mechanism and traveling on an overheadfixed runway structure.Careful consideration has been given to the CO’stestimony in regard to the cited crane’s characteristics, and to C-32. It is concludedthat this evidence, which was not refuted by Respondent, is sufficient to find that thecrane’s beam, or bridge, is movable and that the unit meets the above definition.Parenthetically, I note that Exhibit C-8 shows a similar hoisting device which was alsocited as an overhead crane.Respondent next asserts the citation is time barredbecause more than six months expired between the time the alleged improper use occurredand the date the citation was issued. Section 9(c) of the Act does, in fact, state that\”[n]o citation may be issued under this section after the expiration of six monthsfollowing the occurrence of any violation.\” However, Commission precedent is wellsettled that the limitation period does not begin to run until OSHA discovers, orreasonably should have discovered, a violation. Kaspar Wire Works, Inc., 87 OSAHRC 24\/C5,13 BNA OSHC 1261, 1987 CCH OSHD ? 27,882 (No. 85-1060, 1987); Sun Ship, Inc., 85 OSAHRC3\/B4, 12 BNA OSHC 1185, 1985 CCH OSHD ? 27,175 (No. 80-3192, 1985); Yelvington WeldingServ. 78 OSAHRC 84\/E11, 6 BNA OSHC 2013, 1978 CCH OSHD ? 23,092 (No. 15958, 1978).In this case, the CO discovered the condition on May15, 1989 (Tr. 138), and the citation was issued November 6, 1989. OSHA could not havediscovered the condition any earlier than it did because Respondent would not allow theinspection until ordered to do so. See in re Trinity Indus., Inc., 898 F.2d 1049 (5th Cir.1990). Accordingly, the citation is not time barred.Finally, Respondent asserts there was no violationbecause there was no evidence the crane was available for use. However, even though thecrane may not have been used at the tine of the inspection, the record shows it was usedfour to five months earlier, and Respondent did not refute this activity. This citationitem is affirmed as a nonserious violation. No penalty was proposed, and none is assessed.Item 3 – 29 C.F.R. ? 1910.184(i)(9)(iii)William Burke saw a synthetic web sling with tearsand cuts in the robot assembly area of No. 74. Thomas Evans was surprised when he saw it.He indicated they had moved into the area a short time before, and that he did not knowwhere the sling had come from. Burke identified Exhibit C-33 as a photo he took of thesling. It was in a rack with chains and other lifting devices in an area where he sawemployees working and 55-gallon drums with metal parts in them. Burke believed the slingcould have been used to lift the drums, although he did not see it used and no oneindicated it had been. He said the sling was hazardous; if used, it could tear and causebruises or a crushing injury. (Tr. 141-44; 158-59).Thomas Evans testified the sling was in an area thathad only recently been used for fabrication. It had been a storage area for about a year,and when it was cleaned out the sling must have been missed. He did not know how the slinggot there, or that it was there before the inspection. He said there was no use for thesling in that particular fabrication area. (Tr. 281-82).The subject standard provides as follows:Removal from service. Synthetic web slings shall beimmediately removed from service if any of the following conditions are present: Snags,punctures, tears or cuts.The record demonstrates the presence or a directivesling in an employee work area. Although there was no evidence it was used, the fact itwas in a work area and located in a rack with other lifting devices indicates it wasavailable for use. Even if employees in the immediate vicinity had no use for the sling,as Evans testified, employees from adjacent areas could conceivably use it. Evans alsotestified he did not know about the sling. However, I conclude Respondent should haveknown about it in the exercise of reasonable diligence. The sling was apparently in plainview. Moreover, it was in an area that had recently been cleaned out for employee use,which should have been inspected for unsafe conditions. This citation item is affirmed. Nopenalty was proposed, and none is assessed.Item 4 – 29 C.F.R. ? 1910.215(d)(1)William Burke observed a six to seven-inch abrasivewheel on a cutter-grinder unit in the tool room of No. 74. He asked Thomas Evans who usedit, and Evans presented Wayne Mitchell did not know what a ring test was, but said, afterBurke gave his a demonstration, he had not ring tested the wheel. He said he looked at thewheels before he installed then. Burke stated the failure to ring test for cracks ishazardous. Wheels can be cracked in shipment and the unit’s centrifugal force can causethen to fall apart and turn into shrapnel, which can result in puncture wounds. He saidthe violation was classified as non-serious because there were guards on the unit whichwould catch most or any flying parts. He also said most cracks on the wheels would not bevisible, and that a magnifying glass would not detect internal cracks. (Tr. 145-47;156-58).Thomas Evans testified that the facility’s toolroomattendant inspects grinding wheels with a jeweler’s magnifying glass to ensure they haveno cracks. In talking to the attendant, he learned that in the past six years the glasshad detected three defective wheels, which were not used. Evans said in the nine years hehad been at the facility, to his knowledge there had not boon a defect the attendant hadnot caught or a wheel that had flown apart. (Tr. 282-83).The subject standard pertains to abrasive wheelmachinery and provides, in pertinent part, as follows:Mounting – Inspection. Immediately before mounting,all wheels shall be closely inspected and sounded by the user (ring test) to make surethey have not been damaged in transit, storage, or otherwise …. Wheels should be tappedgently with a light nonmetallic implement, such an the handle of a screwdriver for lightwheels, or a wooden mallet for heavier wheels. If they sound cracked (dead), they shallnot be used. This is known as the \”Ring Test\”.The standard requires a ring test to be performed onabrasive wheels before they are used. The record establishes that Trinity’s employee didnot ring test the wheels he installed, and Respondent presented no evidence it requiredemployees to do so. It asserts, however, that because its inspections provide as muchprotection as technical compliance with the standard, the violation should be classifiedas de minimis. I disagree. Evans’ testimony does not constitute an expert opinion and itfurnishes no scientific basis for concluding that a magnifying glass inspection providesas much protection as a ring test, which, pursuant to the standard, is mandatory. Thiscitation item is affirmed. No penalty was proposed for this item, and none is assessed.Item 5 – 29 C.F.R. ? 1910. 304(a)(1)William Burke saw white wires utilized an groundingConductors on two disconnect switches which were used for welding equipment. He identifiedExhibits C-34 and C-35 as photos he took of the switches, which wore in the same generalarea; C-34 was in the Bay 6 manway area and C-35 was in the detail shop area. Burke didnot know if the wires were necessary, since the welding equipment was separately grounded,but said the standard requires conductors to be identifiable and distinguishable. Based onhis OSHA and electrical training, this means grounding conductors are to be green or bareand grounded conductors are to be white. Burke had no trouble identifying the conductorsas neutral, but said using incorrect color coding can be hazardous. If the wrong color ofwires are used and someone unaware of the situation uses the equipment or performsrewiring work, the person could be exposed to an energized conductor and receive a shock.(Tr. 147-56).Neil Foreman testified he was present when Burke sawthe conductors. Foreman said it was apparent they wore grounding wires and that heimmediately recognized then as such. He also said they were identifiable anddistinguishable from other conductors. He referred to then as \”machine grounds,\”and noted that one and of the wire was attached to the machine casing and the other andran over to a shop column. He stated the wires were secondary grounds which were not evenrequired for the equipment, since they had a grounding wire running to the power cableitself. (Tr. 368-69).The subject standard provides as follows: Identification of conductors. A conductor used as agrounded conductor shall be identifiable and distinguishable from all other conductors. Aconductor used as an equipment grounding conductor shall be identifiable anddistinguishable from all other conductors.It is clear that both Foreman and the CO, identifiedthe cited wires as grounding conductors. However, the CO interpreted the standard torequire color coding to ensure that conductors will be identifiable and distinguishable.He based his interpretation on his OSHA and electrical experience which is set out supra.I conclude the CO’s interpretation is reasonable and consistent with the language of thestandard, and, having so concluded, deference must be given to it. Martin v. OSHRC, supra.The record demonstrates the cited wires did notcomply with the color coding described by the CO. A violation is therefore established.However, the record also demonstrates that because the welding equipment was separatelygrounded, the wires were not necessary for the equipment. Moreover, as grounding wires,they were neutral and did not represent a hazard. Accordingly, the violation is classifiedas de minimis.Conclusion of Law1. Respondent, Trinity Industries, Inc., is engagedin a business affecting commerce and has employees within the meaning of Sec. 3(5) of theAct. The Commission has jurisdiction of the parties and of the subject matter of theproceeding.2. Respondent was in serious violation of 29 C.F.R.?? 1910.212(a)(1), 1910.217(c)(2)(i)(b), 1910.217(c)(2)(i)(d), 1910.244 (a)(1)(ii),1910.303(b)(2), 1910.304(f) (4), 1910.305(b) 1910.305(g)(2)(iii) and 1910.305(j)(1)(i).3. Respondent was in nonserious violation of 29C.F.R. ?? 1910.179(b)(5), 1910.184(i)(9)(iii) and 1910.215(d)(1).4. Respondent was in de minimis violation of 29C.F.R. ? 1910.304(a)(1).5. Respondent was not in violation of 29 C.F.R. ?1910.38(a)(1), 1910.157(c)(4), 1910.179(e)(3)(ii), 1910.179(e)(4), 1910.179(k)(1)(ii),1910.179(n)(2)(ii), 1910.212(a)(3)(ii), 1910.212(a)(4), 1910.243(c)(1) and1910.1200(h)(1).Order On the basis of the foregoing Findings of Fact andConclusions of Law, it is ORDERED that:1. Items 1, 2, 3, 4, 5, 7, 8, 10 and 17 of seriouscitation number 1 are VACATED.2. Items 6(a) through (d) of serious citation number1 are AFFIRMED, and a total penalty of $600.00 is assessed.3. Items 9(a) and (b) of serious citation number 1are AFFIRMED, and a total penalty of $700.00 is assessed.4. Item 11 of serious citation number 1 is AFFIRMED,and a penalty of $500.00 is assessed.5. Item 12 of serious citation number 1 is AFFIRMED,and a penalty of $800.00 is assessed.6. Items 13(a) through (c) of serious citation number1 are AFFIRMED, and a total penalty of $800.00 is assessed.7. Item 14 of serious citation number 1 is AFFIRMED,and a penalty of $700.00 is assessed.8. Item 15 of serious citation number 1 is AFFIRMED,and a penalty of $700.00 is assessed.9. Item 16 of serious citation number 1 in AFFIRMED,and a penalty of $700.00 is assessed.10. Item 1 of \”other\” citation number 2 isVACATED.11. Items 2, 3 and 4 of \”other\” citationnumber 2 are AFFIRMED, and no penalties are assessed.12. Item 5 of \”other\” citation number 2 isAFFIRMED as de minimis, and no penalty is assessed.Louis G. LaVecchiaAdministrative Law JudgeDATE: May 17, 1991FOOTNOTES:[[1]] Citation item 6(a) through (d).have beengrouped, with a total proposed penalty of $600.00. The penalty assessment for these itemsis therefore addressed in the 6(d) discussion, infra.”