“SECRETARY OF LABOR,Complainant.v.TRINITY INDUSTRIES, INC.Respondent.OSHRC Docket Nos. 89-2316 & 89-2317*DECISION *BEFORE: FOULKE, Chairman; Wiseman and Montoya, Commissioners.BY THE COMMISSION:Trinity Industries, Inc. (\”Trinity\”) manufactures railcars at its plantin Bessemer, Alabama. In response to an employee complaint, OSHACompliance Officers Virginia Simmons and Terry Bailey (\”CO’s\”) inspectedthe plant on February 2, 1989. After their inspection, four citationswere issued, each consisting of multiple items. A CommissionAdministrative Law Judge vacated or affirmed as de minimis all but threecitation items. The direction for review involves two of those threeitems.[[1]]I. Housekeeping ViolationA. BackgroundThe Secretary issued Trinity an other-than-serious citation alleging aviolation of the housekeeping standard at 29 C.F.R. ?1910.22(a)(1).[[2]] No penalty was proposed. The citation alleged that\”elevated walkways were cluttered with materials used for work.\” COBailey testified that employees in the sill weld area worked fromwalkways put up alongside the railcars, and that \”an inordinate amountof housing and banding material\” and \”hand tools, pieces of steel\” lefton the walkway should have been properly stored to prevent a trippinghazard.[[3]] According to the CO’s, employees moved back and forthacross this walkway to get steel to weld onto the cars, as well as toretrieve grinding tools to complete their work. The materials remainedscattered on the walkway even when no one was actively at work.Trinity’s general superintendent of materials, David Goodwin, testifiedthat he had in the past worked from the sill weld area walkways. Hedescribed the materials in the photographic exhibits as side sillenforcements and cross ridge tie plates (components of the car), as wellas grinder hoses, wire feeders, air grinders and a hammer–all toolsused in the process of welding the parts to the car. Goodwin furthertestified, in essence, that an employee doing this job must work from anoverhead walkway and must have continuous access to parts and tools. Healso testified that it would be more hazardous for the parts and toolsstored on the walkway to be brought up as needed.Trinity did not cross-examine the CO’s nor did the Secretarycross-examine the Trinity employee, on this subject. The evidence ofrecord consists, therefore, of (1) two CO’s describing a tripping hazardon the walkway, and (2) Trinity’s superintendent asserting that thecurrent arrangement was safer than having the materials brough up as needed.B. Affirmative DefensesTrinity raised two affirmative defenses before the judge and raises thesame before the Commission.1. Greater HazardTrinity claims that to abate the cited hazard by removing the tools andmaterial from the walkway and have them brought up as needed wouldexpose workers to a greater hazard than would storing them on the walkway.The judge examined Trinity’s \”greater hazard\” defense in terms of eachof the three elements set forth in \/Lauhoff Grain Co., \/13 BNA OSHC1084, 1088, 1986-87 CCH OSHD ? 27,814, pp. 36,397-98 (No. 81-984, 1987).To establish this defense, the employer must demonstrate by apreponderance of the evidence that:(1) the hazards of compliance are greater than the hazards of noncompliance;(2) alternative means of protection are unavailable; and(3) a variance was unavailable or inappropriate.The judge found that Trinity failed to establish any of these threeelements, and we concur.Our reading of this record leads to a conclusion that the only evidenceon point relates to the first element: superintendent Goodwin’s statedopinion that bringing up the metal pieces and tools \”one by one\” wouldbe more hazardous than storing the items up on the walkway. However,Goodwin was not asked, nor did he volunteer, how the materials would bebrought up or \/why \/he believed such an arrangement would be moredangerous than the status quo. Trinity adduced no evidence on the othertwo elements. Finding that Trinity failed to carry its evidentiaryburden, the judge affirmed the violation as other-than-serious,assessing no penalty, as none was proposed.Under \/Lauhoff\/ Grain and a number of appellate court cases,[[4]] weconcur with the judge and find that Trinity has failed to establish theelements of the \”greater hazard\” defense. Trinity bears the burden ofshowing that hazards created by compliance (clearing the walkway andmaking other arrangements to obtain the materials and tools) outweighthe hazards of noncompliance. Based on the limited evidence Trinityintroduced, we are unable to determine exactly what the other hazard is,let alone whether it is \”greater\” than the one that existed.[[5]]Secondly, Trinity bears the burden of showing that no alternative meansexist to protect employees against the tripping hazard that thehousekeeping standard was intended to prevent. Again, insufficienttestimony was elicited for the Commission to know whether some measureshort of totally clearing the walkway could serve to protect employeesfrom the tripping hazard.[[6]] Finally, the record is silent on variances.Therefore, Trinity failed to prove the elements of the \”greater hazard\”defense, and the Secretary’s prima facie case stands.2.*Infeasibility*Trinity also raises the affirmative defense of infeasibility ofcompliance. Because the tools and materials are used continuously in thefabrication process, Trinity argues, it is not feasible to remove themfrom the walkways.[[7]] The abatement methods the Secretary proposes(removal or safer storage) are physically possible, but our inquiryrequires further analysis. The appropriate test is whether compliancewould so interfere with performance of necessary work as to beinfeasible under the circumstances. Dun-Par Engineered Form Co., 12 BNAOSHC 1949, 1956-59, 1986-87 CCH OSHD ? 27,650, pp. 36,024-27 (No.79-2553, 1986) on other grounds, 843 F.2d 1135 (8th Cir.1988) (employerestablished that guardrails were incapable of being used anywhere for asufficient length of time to serve any practical purpose of protectionand would have disrupted the work to such a degree that compliance was\”infeasible\”). Thus, at issue in this case is whether Trinity hasestablished that removing the supplies and attempting to perform thesill weld job without such a collection of tools and a full stockpile ofmaterials continually close at hand would disrupt the work to such adegree that abatement would be infeasible. The judge failed to addressthis defense separately in his decision.Under Commission precedent, any employer seeking to be excused fromimplementing a cited standard’s abatement measure on the basis ofinfeasibility has the burden of establishing either that an alternativeprotective measure was used or that there was no feasible alternativemeasure. \/Seibel Modem Mfg. & Welding Co.\/, 15 BNA OSHC 1218, 1227, 1991CCH OSHD ? 29,442. p. 39,683 (No. 88-821, 1991). In this action, therecord is devoid of evidence demonstrating that there was no othertechnologically or economically feasible way for Trinity to perform thesill weld operations without having an array of tools and supplies onthe walkway, as they were the day of the inspection. The only relevantevidence that Trinity introduced was the testimony of superintendentGoodwin, who agreed that employees on the walkways required continuousaccess to tools and materials. This evidence, on its own, falls short ofestablishing the \”infeasibility\” defense.While \”employers [can] rely on genuinely practical circumstancesrevealing the unreasonableness of an abatement measure,\” the Commissionmay still expect employers like Trinity to \”alter their customary workpractices to the extent that alterations are reasonably necessary, toaccommodate the abatement measures specified by OSHA standards.\” \/Id.\/Trinity failed to show that the only way to guarantee its employees\”continuous access\” to their tools and supplies was to place them on thewalkway.C. ConclusionIn conclusion, Trinity has failed to prove that abatement,\/i.e.,\/clearing or straightening up the walkway would constituted a \”greaterhazard\” or be \”infeasible\” under Commission precedent. We thereforeaffirm the judge and find an other-than-serious violation, and, sincethe Secretary proposed no penalty, none is assessed.*II. First Aid — Eyewash Facilities*At issue is whether Trinity violated the first aid standard at 29 C.F.R.? 1910.151(c)[[8]] that requires eyewash facilities for employeessubject to chemical splashes.It is undisputed that paint shop workers were exposed to corrosivematerials in the paints as they mixed, sprayed, and otherwise handledthe paints. Industrial hygienist Horace McCann (\”IH\”) testified that heunderstood the closest source of water to be 40 to 50 yards away–apedal-operated water fountain supplying a \”trickle\” suitable only forwashing hands. The IH did not make an inventory of water sources and wasunder the mistaken impression that this was the only source of wateravailable for the \”quick drenching or flushing\” contemplated by thestandard. The Secretary issued Trinity a citation for failure to provideappropriate eyewash facilities for workers in the paint area, andproposed a penalty of $630.At the hearing, superintendent Goodwin listed a number of sources ofrunning water in the vicinity, including lavatories, drinking fountains.and water hoses, and testified that based on testing he had done, aworker in the paint area could walk at a normal pace to one of thesesources of fresh running water within 15 to 30 seconds. The judgeaccepted the evidence on the number and location of sources in a lightmost favorable to Trinity[[9]] but still affirmed the violation becausethe sources were not \/suitable \/under the standard.Trinity argues that its facilities were the same as those found\”suitable\” under commission precedent and that nothing in the recordsupports a finding of unsuitability. Citing a series of Commission cases[[10]] and unreviewed judges decisions, Trinity argues that nearlytwenty years of precedent finding that hoses. water fountains, sinks,and showers satisfy section 1910.151(c)–renders the judge’s decision ananomaly. The judge, however, maintains that:These decisions have eroded the intent of the standard to such a degreethat it is difficult to ever find a violation …. [F]ollowing the[se]decisions … means that if there is a source of running water availablein the plant, there can be no violation….Trinity has merely recitedsources of water it has not proven they are suitable for purposes ofthis standard.The Secretary argues that the plain meaning of the standard requiresaccess to water sources \”\/specifically suited\/ to delivering water tothe eyes.\” Like Trinity, she cites a number of Commission cases andunreviewed judges’ decisions to support her position. [[11]] TheSecretary further contends that \”lavatories, ordinary sinks, drinkingfountains and garden hoses do not fit this description,\” and thatnothing in Goodwin’s at even remotely approximates what she considers anappropriate eye drenching facility, such as an eyewash fountain. TheSecretary, however, gives no hint as to what other sort of water source,if any, may be considered suitable, nor does she detail why any of thealternative sources cited by Goodwin are unsuitable.Although under Martin v. \/OSHRC\/ (\/CF&I Steel Corp\/.), 111 S.Ct. 1171(1991), the Commission may be required to defer to the Secretary’sreasonable interpretation of an ambiguous standard, deference as to whata given standard means does not obviate the need for the Secretary todevelop a prima facie case under that standard. Although the Secretarymight have been able to present evidence to show that the sources ofwater Trinity listed were not suitable under the standard, she did noteven try to do that in this case. Because of what seems to have been amisunderstanding on the day the plant was inspected, the IH failed toinspect the premises thoroughly enough to determine first-hand whatsources of water were available to an injured worker in need of firstaid. The Secretary’s evidence was limited to the IH’s description of theonly water source he saw, and her cross-examination of the Trinityemployee who had knowledge of the other water sources produced nothingto cast doubt on the effectiveness of the water at these sources.The judge reveals more readily than the Secretary what factors he wouldtake into account in determining \”suitability.\” Except for testimonydescribing the trickling pedal-operated fountain the IH observed, therecord in this case offers facts only about the number and relativelocation of water sources, not about how practical, safe, or effectivethey would be for getting paint out of a worker’s eyes. SuperintendentGoodwin said only that a worker could get to a source of \”fresh, runningwater\” within 15 to 30 seconds. Granting that \”fresh\” is a relative termand that \”running\” tells little about the water pressure, whenconsidered together with the number and variety of water sourcesavailable, it seems that Trinity has sufficiently rebutted theSecretary’s prima facie case–if indeed one was made–to shift theburden of proving unsuitability back to her. This burden she did not meet.As a final note, we find that in affirming the violation, the judgeseems to have impermissibly shifted the burden of proof from theSecretary to the employer. According to the judge, \”[w]here theSecretary establishes a need for quick drenching or flushing, as in thiscase, the burden is on the employer to prove that he has \/suitablefacilities\/.\” Trinity argues that the burden was on the Secretary toshow that the facilities were unsuitable, not on Trinity to show thatthey were suitable, citing \/DuPont\/. \/Accord Anoplate Corp\/., 12 BNAOSHC 1678, 1684-85 & n.7, 1986-87 CCH OSHD ? 27,519, p. 35,682-3 & n.7(No. 80-4109, 1986) (analyzing a similar standard[[12]], placing burdenon Secretary to show that water was not near, clean, cold, or underproper pressure).Even if some of the facts in the record (presence of a tricklingfountain for hand-washing) might be construed so as to constitute aprima facie violation for failure to provide any suitable facilities,enough other facts (presence of other sources of fresh, running water)rebut the initial allegation to shift the burden back to the Secretary,whose duty it is to show the unsuitability of the facilities Trinity didprovide. The preponderance of the evidence does not support the judge’sfinding of a violation of this standard. We therefore vacate thiscitation item.*Conclusion*Based on the discussion above, item 3 of citation no. 3, No. 89-2316, isaffirmed without penalty, and item 5 of citation no. 1. No. 89-2317, isvacated.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: November 18, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent,UNITED STEELWORKERS UNION and its LOCAL 9226Authorized EmployeeRepresentative.OSHRC Docket Nos.89-2316 & 89-2317(Consolidated)APPEARANCES:L. K. Cooper, Jr., Esquire, Office of the Solicitor, U. S. Department ofLabor, Birmingham, Alabama, on behalf of complainantRobert E. Rader, Jr., and David P. Blanke, Esquires, Dallas, Texas, orbehalf of respondent_DECISION AND ORDER_Burroughs Judge: Trinity Industries, Inc. (\”Trinity\”) contests serious,willful and \”other\” citations for alleged safety violations (Docket No.89-2316), and a serious citation for alleged health violations (DocketNo. 89-2317) which were issued to it on July 18, 1989. The cases wereconsolidated for purposes of trial, briefs and decision. LOCAL 9226 ofthe United Steelworkers Union was granted party status (Tr. 14)._The Allegations__Docket No. 89-2316_The serious citation alleges a violation of section 5(a) failure toeliminate or control sources o(1) of the Act for failure to provide fallprotection for an employee working atop a rail car 15 feet above aconcrete surface. The willful citation allgees violations of ?1904.2(a), for failure to record all recordable illnesses and injuries;and ? 1904.2(a), for failure to complete OSHA Forms No. 200 in themanner provided for in the form and its instructions. The Secretaryalso charges Trinity with \”other\” than serious violations of ?1904.5(c), for failure to crtify the summary page of the OSHA 200 log; ?1904.5(d) (1), for failure to post in a conspicuous place the annualsummary of OSHA Form No. 200; and ? 1910.22(a) (1), for failure to keepplaces of employment clean and orderly.[[1]]_Docket No. 89-2317_The Secretary alleges that Trinity was in serious violation of thefollowing standards: ? 1910.106(b) (6), for failure to eliminate orcontrol sources of ignition where the presence of flammable vapors waspossible; ? 1910.184 (e) (6) (i), for allowing employees to wearrespirators when conditions prevented a good face seal; ? 1910.141 (g)(2), for permitting employees to consume food and beverages in an areaexposed to toxic materials; ? 1910.141 (g) (4), for allowing food andbeverages to be stored in an area exposed to toxic materials; ? 1910.151(c), for failure to provide flushing facilities in a work area whereemployees were exposed to injurious corrosive materials; ? 1910.1200 (f)(4) (i), [[2]] for failure to ensure that each container of hazardouschemicals was labeled, tagged, or marked with the identity of thehazardous chemicals contained therein; and ? 1910.1200 (g) (1), forfailure to have a material safety data sheet (\”MSDS\”) for each hazardouschemical used in the workplace.Trinity asserts several defenses starting with the allegation that theSecretary’s warrant impermissibly exceeded the scope of the originalcomplaint. It claims that any recordkeeping violations were the resultof unpreventable employee misconduct and that OSHA had implemented aconfusing, inconsistent policy regarding the recording of flash burns.Trinity asserts that providing fall protection to employees doingtouch-up work atop rail cars is infeasible and that requiring elevatedwalkways to be kept clear of tools and materials constitutes a greaterhazard to its employees general, Trinity contends that the Secretaryfailed to make out a prima facie case for most of the alleged violations._Background_Trinity Industries, Inc., manufactures rail cars at its plant inBessemer, Alabama. On January 26, 1989, OSHA Compliance Officer VirginiaSimmons arrived at the plant to investigate a six-item complaint filedby two Trinity employees. Simmons was denied entry by Fred Hull,Trinity’s personnel manager, and by Festus Pierce, Trinity’s safetysupervisor at that time (Tr. 26). Simmons returned with a warrant onJanuary 31, 1989, accompanied by OSHA Compliance Officer Terry Bailey(Ex. C-1; Tr. 27, 33). They were again denied entry until Trinity couldconsult with its attorney. Simmons and Bailey were finally permitted toenter the plant on February 2, 1989.On the first day of the inspection, the compliance officers held anopening conference with Hull; Pierce; Ray Bodiford, Trinity’s manager ofhuman resources; and Terry Goodwin, Trinity’s manager of manufacturing(Tr. 34-35). Simmons and Bailey were accompanied by Goodwin, Bodifordand a union representative on their walkaround inspection (Tr. 36)._Trinity’s Motion to Suppress Evidence__Since Marshall v. Barlow’s Inc._, 436 U.S. 307, 98 S. Ct. 1816 (1978),OSHA officials, in the absence of consent by the employer, have obtainedwarrants in aid of their inspection efforts. The standard of probablecause established in _Barlow’s_ is not as strict as criminal probablecause. \”[T]he Secretary need only establish administrative probablecause, which is tested by a standard of reasonableness, requiring themagistrate or jedge to ‘balance the need to search against the invasionin which the search entails.’ \” _West Point Pepperell, Inc. v.Donovan,_ 689 F. 2d 950, 957 (11th Cir. 1982). In _Barlow’s_, the courtobserved that administrative probable cause justifying the issuance ofan OSHA inspection warrant may be based on (1) specific evidence of anexisting violation, which may arise from a complaint or an observationby a compliance officer at the site before he is refused entry and (2) ashowing that reasonable legislative or administrative standards forconducting an inspection are satisfied with respect to the establishmentsought to be inspected, \/i.e.\/, \”a specific business has been chosen foran OSHA search on the basis of a general administrative probable causemust satisfy the basic purpose of the Fourth Amendment, which is \”tosafeguard the privacy and security of individuals against arbitraryinvasions of government officials.\” _Marshall v Barlow’s, Inc._,_supra_, 546 at 312, 98 S. Ct. at 1820. \”In the context ofadministrative searches, this principle requires that persons not besubject to the unbridled discretion of ‘executive and administrativeofficers, particularly those in the field, as to when to search and whomto search.’ \” _West Point Pepperell, Inc. v. Donovan,_ 689 F.2d at 958(_citing Marshall v. Barlow’s, Inc.,_ 436 U.S. at 323, 98 S. Ct. at 1820).The catalyst for the inspection in this case was a formal complaintfiled by two employees of Trinity with the Birmingham, Alabama, AreaOffice of OSHA, alleging that violations of the Act existed at theBessemer, Alabama, facilities. The complaint alleged the followingconditions (Ex. C-2):1. Employees in paint department, shipping department, internal blast,etc., are not being trained or informed regarding chemicals with whichthey work. Toluene, xylene, ketone, catalysts, paints, etc., or [sic]examples of materials used. 1910.1200(h)2. Interior lining department large lights inside cars 50 to 70 poundsand can fall on employees working beneath because they aren’t properlysecured. Three of these have fallen in the last week and one employeehas been hit. Section 5(a)(1)3. The paint department has a heavy buildup of paint residue and fumesare real bad. Painters wear respirators but others in the area don’t.This is where cars are painted in the building. Also paints, thinners,etc., are stored in painting area. 1910.107(d)(2) and 1910.107(e)(1) & 24. Track No. 3 Side sill rollover is broken and won’t secure cars inposition. Cars are being blocked up with 4 x 4’s. A car dropped at leaston one occasion and an employee received a broken arm. Welders weld ontop side of the car while its [sic] in this position. Section 5(a)(1)5. Floor shop arc welding machines are placed so that they stand inwater each time it rains. 1910.252(b)(4)(ix)(b)6. Seal weld area has catwalk that employees work from and where largeamounts of material such as, re-enforcement stiffeners (sic), bellybands, roping irons and horseshoes are placed. This material is placedby crane and is often unstable and could fall on employees [sic] below.Section 5(a)(1)After Simmons was denied the right to conduct a consent inspection onJanuary 26, 1989, safety supervisor John Hall filed an application forwarrant on January 27, 1989, with the U. S. Magistrate for the NorthernDistrict of Alabama. The application, among other things, made thefollowing representations:1. The warrant sought herein is authorized by Section 8 of theOccupational Safety and Health Act of 1970 (the Act), 29 U.S.C. ? 657,OSHA regulations promulgated at 29 C.F.R. 1903.4, and _Marshall v.Barlow’s. Inc.,_ 436 U.S. 307, 321 (1978), where the Supreme Courtapproved the selection of a business for an OSHA inspection either onthe basis of specific evidence of an existing violation or on the basisof a \”general administrative plan . . . derived from neutral sources . . . \”2. The Field Operations Manual (FOM) classifies inspections asprogrammed (those based, pursuant to _Barlow’s_, upon a generaladministrative plan) or unprogrammed (those based upon specific evidenceof an existing violation (e.g., a complaint)). Trinity was designatedfor inspection, without influence of any other factor, according to thecomplaint inspection procedures at Chapter IX, ? A. of the FOM (copyattached as Attachment A) (all paragraph references are to Chapter IX ofthe FOM).3. This Application stems from the receipt on December 29, 1988, by theArea Office of a formal complaint, a typed copy of which is attachedhereto and incorporated herein as Attachment B, from two employees ofTrinity which alleges belief that violations of the Act which constitutejob safety hazards and threaten physical harm exist at the aboveworkplace . . . . (Footnote omitted)6. Trinity is believed to be operating in Standard IndustrialClassification (SIC) 3743, which is \”Railroad Equipment.\” This SIC isclassified \”high hazard\” and ranks 145th of 317 on the Safety High Ratelist. Trinity is believed to employ approximately 600 employees.Trinity’s workplace has been inspected, albeit under another name anddifferent ownership, numerous times during the period 1973 through 1986,with serious violations found on several occasions. A records review isrequired by A.9.a.(1) during this inspection.7. With respect to the items in the complaint, I conclude that there arereasonable grounds to believe that violations of the Act threateningphysical harm exist at Trinity’s workplace and that an inspection isnecessary. Accordingly, this inspection will be limited to theviolations alleged in the complaint and other apparent violations withinthe \”Plain view\” of the inspecting compliance officers (including allpertinent conditions, structures, machines, apparatus, equipment,materials, processes, devices, controls and facilities and all injuryand illness records and papers required to be maintained by the employerpursuant to 29 C.F.R. ? 1904.2 and 1904.4 . . . .A copy of the formal complaint and Chapter IX of the OSHA FieldOperations Manual were attached to the application. The application wasspecific in what was being requested and why the request was being made.The warrant issued by U. S. Magistrate Elizabeth Todd Campbell onJanuary 30, 1989, provided:* * * [T]he addresses are authorized, after showing appropriatecredentials, to ENTER without delay upon the said workplace duringregular working hours and to INSPECT in a reasonable manner [includingtesting, taking photographs and measurements, collecting samples(personal, area, and wipe) for the assessment of air contaminants andphysical agents (utilizing, among other things, sampling pumps anddetector tubes) and privately questioning the employer, or any of itsemployees or agents], the following:The alleged violations of the Act which are the subject of ComplaintNumber 072479538, a copy of which is attached hereto and incorporatedherein, including all pertinent conditions, structures, machines,apparatus, equipment, materials, processes, devices, controls andfacilities, and all injury and illness records and papers required to bemaintained by the employer pursuant to 29 C.F.R. ? 1904.2 and 1904.4 butnot including \”personally identifiable employee medical information\”within the meaning of 29 C.F.R. ? 1913.10, and all records and papersrequired to be maintained by the employer pursuant to 29 C.F.R. ? 1200,to determine whether the employer at its workplace is complying with theAct and with the pertinent occupational safety and health standards andregulations promulgated under the Act.The warrant authorized an inspection of the complaint items, as well as\”all injury and illness records and papers required o be maintained bythe employer pursuant to 29 C.F.R. ? 1904.2 and 1904.4.\” Trinity arguesthat the warrant impermissibly expanded the search beyond the complaintitems and moves to suppress all evidence relating to recordkeepingviolations which are allegations unrelated to the original complaint._Was a Warrant Needed to Gain Access __to Injury And Illness Records?_Trinity’s position in this matter is based on two principal points: (1)it has a primary interest in the accident and illness records that isprotected by the Fourth Amendment, and (2) the warrant authorizing theinspection was impermissibly overbroad in that the application did notcontain sufficient probable cause for allowing a search of the accidentand illness records. Trinity takes the view that the application wasbased solely on probable cause as established by the complaint and thatthe ensuing inspection should have been limited in scope to the itemsset forth in the complaint. Trinity is correct in its first point but inerror on the second point. It is ignoring the facts specifically recitedin the application as to why the request was made to view the illnessand injury records.In support of its position that it has a privacy interest in its OSHA200’s, Trinity cites_Taft Broadcasting Co., Kings Island Division(\”Kings Island\”)_ 87 OSAHRC 21\/D14, 13 BNA OSHC 1137. 1986-87 CCH OSHD ?27,861 (No. 82-1016, 1487), _Aff’d_, 849 F.2d 990 (6th Cir. 1988). Theissue in _Taft,_ _supra,_ was whether a warrant was needed by an OSHAcompliance officer who requested an inspection of OSHA 200’s, pursuantto ? 1904.7(a). [[3]] The Review Commission concluded that a warrant wasrequired, holding that \”the information recorded on injury records isnot of interest only to OSHA, but to both OSHA and employers. Therecords serve multiple purposes, and employers have some reasonableexpectation of privacy in the information recorded on them.\” Id., 13 BNAOSHC at 1141.The Review Commission reaffirmed this ruling in _Emerson Electric Co_.,87 OSAHRC 22\/A5, 13 BNA OSHC 1171, 1986-87 CCH OSHD ? 27,864 (No.84-985, 1987), aff’d, 834 F.2d 994 (11th Cir. 1987), and _A. B. ChanceCo_., OSAHRC _, 13 BNA OSHC 1172, 1986-87 CCH OSHD ? 27,863 (No. 85-519, 1987), \/_rev’d,_ \/842 F.2d 724 (4th Cir. 1988). In both of thosecases, the Commission quoted from its _Kings Island,_ _supra_, decision,stating that \”section 1904.7(a) violates the Fourth Amendment to theextent that it purports to authorize an inspection of required recordswithout a warrant or its ‘equivalent’….\” _Kings Island_, 13 BNA OSHCat 1_146._The Fourth Circuit reversed the Commission’s decision in_A. B. Chance_,finding that an OSHA compliance officer who is lawfully upon theemployer’s premise as a result of an employee’s health or safetycomplaint may examine and copy OSHA Forms 200 and 101 without firstobtaining an inspection warrant. The court observed that the employer isrequired to post the OSHA 200 annual summary at its workplace andreasoned that there can be little expectation of privacy in a documentthat must be posted upon the employees bulletin board. _McLaughlin v. A.B. Chance Co._, 842 F.2d 724 (4th Cir. 1988).The latest pronouncement on this issue comes from the Review Commissionin _Monfort of Colorado, Inc. _OSAHRC 14 BNA OSHC 20550 CCH OSHD ?28,296 (No. 87-1220, 1991). In that decision, the Commission refined itsview of the privacy expectation in the OSHA forms.In _Monfort_, _supra_, a former employee of the company requested copiesof Monfort’s OSHA 200’s for the years 1982 through 1986. She latertestified that she requested the OSHA 200’s to learn more about a backand neck injury she had sustained while working for Monfort. At the timeof her request, the former employee was employed with the United Foodand Commercial Workers International Union. Monfort, believing that therequest came from the union, refused to provide the former employee withthe requested records. The former employee complained to OSHA, who askedMonfort several times to turn over the records. Monfort refused eachtime and OSHA then issued a citation alleging that Monfort was inwillful violation of 1904.7(b)(1). The administrative law judge affirmedthe citation but concluded (erroneously) that he did not have theauthority to decide whether the regulation violated the Fourth Amendment.In its analysis of the case, the Review Commission concluded that thesearch authorized by the regulation is governmental and that thereasonable reporting requirement exception does not apply. Id., 14 BNAOSHC at 2058-2059. The Commission then turned to the question of theemployer’s reasonable expectation of privacy in the OSHA 200’s.The Commission distinguished Monfort from Kings Island, Emerson Electricand A. B. Chance , supra, in two respects: \”The degree of the intrusion;and the party seeking the records.\” Id. at 2059. The other cases dealtwith 1904.7 (a) , which requires employers to provide access to OSHA101’s as well as OSHA 200’s. The access must be provided to anyauthorized representative of the Secretary.The Commission found that \”the additional requirement of disclosure ofOSHA 101’s is significant when that form is compared with OSHA 200’s.\”Id. The Commission noted that the OSHA 101 is much more detailed andprobing in the information it seeks than the relatively cursoryinformation required by the OSHA 200’s. The commission also noted thatunder 1904.7(a), the requesting parties are private individuals and notOSHA representatives. The Commission concluded:[T]he OSHA 101, rather than the OSHA 200, constituted the basis for theCommission’s statement in King’s Island that \”[i]njury recordsmaintained in accordance with OSHA regulations contain important detailsabout the employer’s operations and manufacturing processes that evenconscientious executives might not freely reveal to outsiders.\” 13 BNAOSHC at 1141, 1988 CCH OSHD at p. 36,485. Because the Secretary requiredthe disclosure of OSHA 101’s, as well as OSHA 200’s in King’s Island,the intrusion into the employer’s privacy interests in that case was fargreater than the minimal intrusion here._Id_. at 2060.The significance this quotation has for the present case is the factthat Trinity is only objecting to the inspection of the OSHA 200’s; OSHA101’s are not mentioned in this case. The Commission clearly considersthe privacy expectation in the OSHA 200’s to be of a limited nature.There is also little doubt that when an employer posts each annualsummary of occupational injuries and illnesses from the OSHA 200’s,whatever expectation of privacy the employer had in its OSHA 200’s isconsiderably diminished. \”There can be little expectation of privacy ininformation that is available to anyone observing the employer’sbulletin board.\” _McLaughlin v. A. B. Chance Co.,_ 842 F.2d at 728._Monfort,_ _Id._ at 2060._Monfort_, _supra_, however, differs from the present case in that itwas a former employee and not an OSHA representative who requestedaccess to the records. _Monfort_ is expressly limited to situationswhere an employee, former employee or their representatives request therecords.We therefore conclude that Monfort has no reasonable expectation ofprivacy in its OSHA 200’s when access is sought under section1904.7(b)(1). Because a reasonable expectation of privacy must bepresent in order to invoke the protections of the Fourth Amendment, itis clear that the Fourth Amendment does not apply to the searchauthorized by section 1904.7(b)(1) . . . Accordingly, we find thatsection 1904.151 (b) (i) does not violate the Fourth Amendment byauthorizing former employees to have address to OSHA 200’s without awarrant or subpoena._Id_. at 2061.How significant is the fact that the OSHA 200’s in the present sensewere requested by OSHA compliance officers and not employees. TheCommission states that it was the request of the OSHA 101’s thattriggered the Fourth Amendment protections in Kings Island and itsprogeny; yet, it specifically limited its holding to request made under? 1904.7 (b) (1), a section to which OSHA representatives cannot availthemselves. Some guidance is provided in the Commission’s discussion ofthe posting requirement. It is noted that, besides having access to theposted annual summary, employees would have the opportunity to observeconditions in the workplace which gave rise to illnesses and injuries.The Commission observes that \”[t] here is also no reason to concludethat an employer’s privacy expectation in its OSHA 200’s is greater whenan employee, former employee, or their representative requests them thanit is when the annual summary is posted.\” Id. at 2060.This discussion establishes that the Review Commission’s focus is onknowledge that the _employees_ already have from observations made intheir daily work or have access to from the posted annual summary.Following the precedent established in _King’s Island_, _EmersonElectric,_ _A. B. Chance _and _Monfort_, it must be concluded thatrequests made by compliance officers to inspect OSHA 200’s pursuant to ?1904.2 infringe upon the the documents and that the Fourth Amendment isapplicable under these circumstances. Accordingly, OSHA properly soughta warrant to View the records._There Was Probable Causefor Viewing the Records_The Supreme Court in _Barlow’s_, _supra_, states that a showing ofadministrative probable cause must satisfy the basic purpose of thefourth Amendment by safeguarding the privacy and security of individualsagainst the arbitrary invasion of government officials. The Court wasparticularly concerned about individuals being subject to the \”unbridleddiscretion\” of executive and administrative officers concerningdecisions as to when and whom to search. It seems clear that any generaladministrative plan for enforcement of the Act that achieves this goalwill pass constitutional muster.The Secretary proceeded in this case according to guidelines publishedin its _Field Operational Manual _Chapter IX, A.9.a.1. of the FOM states:9. _Scope of Inspection_. The scope of complaint inspections shall bedetermined in accordance with the guidelines given in this section. Anydeparture from these guidelines shall be supported by adequatedocumentation.a. _Safety Complaint inspections_. The inspection of a safety complaintshall normally be a comprehensive inspection of the entire workplaceexcept for low-hazard areas, such as office areas). The followingguidelines shall be followed in determining exceptions:(l) _Records Review_. In an establishment listed on the Area Office HighRate SIC List (or the Low Rate SIC List when used for schedulingprogrammed inspections under the procedures given in chapter II,E.2.b.(1) (e) 4a) or the Low Rate or the Nonmanufacturing EstablishmentLists, an injury records review, as outlined in Chapter III, D.4, shallbe performed. If such a records review would not result in acomprehensive safety inspection under the guidelines for programmedinspections, or if one of the deletion criteria applies, the proceduresgiven in d. of this section shall be followed.Chapter III, D.4, referenced in the preceding chapter, provides as follows:4. _Records Review_ A records review for the purpose of calculating theestablishment’s lost workday injury (LWDI) rate shall be conducted forall inspections (safety or health), including those for which anadministrative subpoena and\/or warrant is being served, whether theinspection is programmed or unprogrammed. T_his procedure applies if theestablishment is within an industry whose SIC code is on the safety SICList currently used for scheduling General Industry inspections or ifthe establishment is listed on the Low Rate Establishment List or theNonmanufacturing Establishment List for the current fiscal year._ AnLWDI rate need not be calculated for an establishment if one has alreadybeen calculated during the current calendar year or if the establishmentmeets one of the deletion criteria for a safety inspection listed inChapter II, K.2.b.(1)(b) 5b. (_Emphasis added_)It is clear that the secretary has established and published anadministrative plan for inspecting the illness and injury records of anemployer. The above language underlined in the quote from Chapter IIIremoves the \”unbridled discretion\” from the OSHA official seeking thewarrantThe application was specific in stating that records review was requiredby chapter TX, 4.9.a.1 of the FOM, and authority was sought to conductsuch an inspection. Paragraph of the application set forth the followinginformation in support of the request for a records review. It stated inpart:Trinity is believed to be operating in Standard IndustrialClassification (SIC) 3743, which is \”Railroad Equipment.\” This SIC isclassified \”high hazard\” and ranks 145th of 317 on the Safety High datelist. Trinity is believed to employ approximately 600 employees.Trinity’s workplace has been inspected, albeit under another name anddifferent ownership, numerous times during the period 1973 through 1986,with serious violations found on several occasions.The representation is made that Trinity is on the High Rate SIC List.It is true, as Trinity contends, that the complaint filed by the twoemployees does not refer to any records violations. If the the warrantwas based solely on the complaint, it would be impermissibly overbroad.However, the application makes it clear that where a complaintinspection is conducted, the Secretary has established neutral criteriathat is automatically triggered to determine if a records review isappropriate. The application describes the procedure followed inconducting a records review and sets forth sufficient facts thatcriteria. The warrant was valid in all respects._The \”Good Faith\” Exception is Applicable_In _Sarasota Concrete Co._, 81 OSAHRC 48\/A6, 9 BNA OSHC 1608, 1981 CCHOSHD ? 25,360 (No. 78-5264, 1981), _aff’d, _693 F.2d 1061 (11th Cir.1981), the Commission held that it would suppress evidence gatheredpursuant to a warrant if the warrant was not supported by probably causeand that suppression was an appropriate remedy even if the Secretaryacted in good faith in executing the warrant. Subsequent development ofthe law has superseded _Sarasota_ by restricting the grounds on whichevidence obtained through a warrant may be suppressed. See _PennsylvaniaSteel Foundry & Machine Co.,_ 86 OSAHRC 45\/A3, 12 BNA OSHC 1027, 1986CCH OSHD ? 27,671 (No. 78-638, 1986); _Smith Steel Casting Co_., 85OSAHRC 20\/B9, 12 BNA OSHC 1277, 1985 CCH OSHD ? 27,263 (Nos. 80-2069 &80-2322, 1985), aff’d, 800 F.2d 1329 (5th Cir. 1986); _Davis MetalStamping, Inc_., 85 OSAHRC 14\/A3, 12 BNA OSHC 1259, 1985 CCH OSHD ?27,236 (No. 78-5775, 1985), _aff’d,_ 800 F.2d 1351 (5th Cir. 1986). Thedecision of the Supreme Court in _United States v. Leon_, 468 U.S. 897,104 S. Ct. 3405 (1984), holding that evidence fathered in objectivereasonable reliance on a search warrant should not be suppressed, shapedthe development of the law subsequent to Sarasota. Suppression ofevidence is not an automatic remedy for a violation of a constitutional,statutory or regulatory requirement.Even if there were not probable cause for a review of the records inthis matter, the \”good faith\” exception of _U. S. v, Leon,_ _supra_, isdeemed to be applicable. The evidence as a whole supports a finding thatthe Secretary proceeded in good faith and reviewed the records inreasonable reliance on the warrant._Trinity Consented tothe Review_An inspection that infringes upon a reasonable expectation of privacyviolates the Fourth Amendment if it is conducted without a warrant orits \”equivalent\”. _King’s Island_, _supra_. It is well-established thatconsent to an inspection vitiates the need for a warrant. Where consentcan be established, it is the \”equivalent\” of a warrant._King’s Island_, _Emerson Electric,_ _A. B. Chance_ and _Monfort_ allinvolved situations where requests to inspect the employers’ injury andillness records were refused by the employers. No warrant was obtainedin any of these cases, and the requested records were never provided.Instead, the Secretary issued citations alleging violations of thestandards under which the records had been requested.The factual situation in the present case differs in two significantaspects from the fact pattern as it existed in thee above-mentionedcases. First, upon Trinity’s refusal to the request to provide therecords for inspection, the Secretary obtained a warrant. Second,Trinity provided the records to the OSHA compliance officers duringtheir inspection of the facility. The compliance officers were permittedto review the records and to make photocopies of them (Tr. 42, 53).Trinity argues that its representatives repeatedly stated to ComplianceOfficers Simmons and Bailey that it was providing the records to themunder protest and that it was not waiving its rights to contest thevalidity of the warrant. James Hall, Trinity’s personnel manager, wasinstructed to \”as best we could, make it clear that we were going tohonor the warrant, did not intend to expand it, follow the warrant andto–and to be sure that we stated that we were not giving up any of ourrights or protests that we may have\” (Tr. 516-517).Jerry Riddles, Trinity’s corporate safety environmental director, talkedwith all of the Trinity representatives who took part in the inspectionbefore the inspection began, instructing them that \”we were honoring thesearch warrant, but we were not giving up our rights to challenge thevalidity of the search warrant or challenge any citations deriving outof the inspection with the OSHA Review Commission\” (Tr. 699-700).Ray Bodiford, Trinity’s human resources coordinator, told the complianceofficers that Trinity would comply with the letter of the warrant butthat anything beyond that would have to be cleared by Trinity’s attorney(Tr. 869).The statements of Trinity’s representatives do not establish thatTrinity actually reserved its right to protest the inspection orotherwise indicate to the compliance officers anything but full consentto the inspection. The Trinity representatives’ statements establishwhat was discussed before the inspection began, but they do not provideany basis for concluding that consent to the inspection was withheld.Rather, Bodiford informed Simmons that Trinity \”would comply with theletter of the warrant,\” a statement that implies that the company wasacknowledging, not protesting, the validity of the warrant. Simmons’testimony was unequivocal with regard to the consensual nature of theinspection.The detail of Simmons’ testimony, the certitude of her manner, and thesincerity of her demeanor qualify her as an eminently credible witness.It is found that whatever protests Trinity may have had, it nevercommunicated them to Simmons in any objectively determinable manner.Simmons asked to inspect the injury and illness records and on February3, 1989, she and Bailey were taken to a room in Trinity’s facility wherethe records were laid out on a table (Tr. 42). It is concluded thatTrinity gave its consent to the inspection of the records and that noFourth Amendment protections were violated._Docket No. 89-2316__Citation No. 1__Item 1: ? 5(a)(1)_Trinity is charged with the serious violation of ? 5 (a) (1) of the Actfor permitting employees to work atop rail cars without fall protection,exposing them to a fall of 15 feet onto a concrete surface. Section5(a)(1) provides:(1) Each employer shall furnish to each of his employees employment anda place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees.Simmons and Bailey observed an employee, Shirley Kinard, working atop arail car in the shipping area. Kinard was not tied off, nor was sheprovided with any other form of fall protection. She was exposed to afall of 15 feet onto a concrete surface (Ex. C-9; Tr. 71).The Secretary has the burden to prove the violation. in order to prove aviolation of section 5(a)(1), the Secretary must show:(1) [T]hat a condition or activity in the employer’s workplace presenteda hazard to employees, (2) that the cited employer or the employer’sindustry recognized the hazard, (3) that the hazard was likely to causedeath or serious physical harm, and (4) that feasible means existed toeliminate or materially reduce the hazard. _United States SteelCorp._,12 BNA OSHC 1692, 1997-98, 1986-87 CCH OSHD ? 27,517, p. 35,669(No. 79-1998, 1986)._Coleco Industries, Inc._, _ OSAHRC ___, 14 BNA OSHC 1961, 1963, 1991CCH OSHD ? 27,748 (No. 84-546, 1991).At the time of the inspection, Kinard was assigned to touch up the painton the tops of the rail cars. This job required Kinard and one otheremployee to work atop the rail cars for eight hours a day, five days aweek. Kinard worked in this position for seven or eight months (Tr.101-103). Welders working further away in the shipping area were tiedoff and were also protected by platforms built up beside the cars (Tr.109-110).a. _Hazardous Condition_Working without fall protection while exposed to a 15-foot fall onto aconcrete surface presented a hazard to Kinard and the other employeeassigned to work with her.b. _Recognized Hazard_Actual knowledge of the hazard by the employer satisfies the recognitionrequirement of the general duty clause. _Brennan v. Vy LactosLaboratories. Inc._, 494 F.2d 460 (8th Cir 1979). It is difficult for anemployer to prevail on the defense that he had no knowledge of theviolation since he has an obligation to inspect the work area, toanticipate hazards to which employees may be exposed, and to takemeasures to prevent their occurrence. _Frank Swidzinski Co_., 81 OSAHRC4\/E14, 9 BNA OS_HC 1230, 1981 CCH OSHD ? 25,129 (No. 76-4627, 1981);_Automatic Sprinkler Corp. of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1385,1980 CCH OSHD ? 24,495 (No. 76-5089, 1980).Kinard was working in plain view atop a rail car without fallprotection. She had done so every day for several months. Trinity knewof the working conditions and recognized the hazard. It admits thatother employees working on top of th_e cars are protected._c. _Death or Serious Physical Harm_A fall from a height of 15 feet onto a concrete surface is recognized asa hazard with potential of resulting in death or serious physical harm.d. _Feasible Means of Abatement_The Secretary suggested two means of abatement: the use of sidescaffolds next to the rail cars and the use of lifelines to which theemployees could tie off. Both of these methods were observed in use bythe welders working in the same department.Trinity does not dispute that the hazardous condition exists but arguesthat there is no feasible means of abatement. \”An employer may defendagainst a cited violation of a standard by demonstrating that compliancewith the standard was not feasible.\”_Dun-Par Engineered Form Co_., 86OSAHRC 40\/A8, 12 BNA OSHC 1962, 1966, 1986 CCH OSHD ? 27,651 (No.82-928, 1986). In support of this argument, Trinity states, \”The reasonthere are no side scaffolds is because the cars do not always stop atthe same point on the track\” (Respondent’s Brief, pg. 27).Terry Goodwin testified that sometimes cars would stop for a touch-up inan area where there are side scaffolds and sometimes they did not (Tr.715-716).Trinity presented no credible evidence that it was impractical orunreasonable to provide fall protection to its employees. On thecontrary, it is unreasonable not to provide some form of fall protectionto employees exposed on a full time basis to a 15 foot fall. As forpracticality, Trinity does not explain why the rail cars to be touchedup cannot be stopped next to a side scaffold or why it is impractical tomove a side scaffold next to any rail car that an employee must ascend.Trinity claims that the employees cannot tie off because the height andconfigurations of the coiling do not permit for the suspension of alifeline (Tr. 716-718). Bailey, however, gave undisputed testimony thatthe welders he observed atop the cars in the same department were tiedoff. (They were also protected by side scaffolds) (Tr. 109).Trinity’s brief (pg. 28) states that \”the evidence shows that Trinityprovides scaffolding or safety lines for all workers on top of carsexcept for the two touch-up painters.\” The conclusion \”that there is nofeasible way to provide scaffolds or safety lines for these two\” isbased on bare assertions that are not supported by objective facts.There is no distinction made by Trinity to indicate why theconfiguration of the ceiling allows welders on the same cars to be tiedoff but is unsuitable for purposes of the suspension of a lifeline forthe touch-up painters.Trinity’s argument contains more smoke than substance. The abatementrecommended by Simmons is already being provided for other workers ontop of the cars in the same department. There has been no reasonableexplanation as to why the same protection could not be offered totouch-up painters. The Secretary established a prima facie case that wasnot rebutted by any credible and objective evidence.Trinity has failed to establish that alternative means of abatement wereinfeasible. Practical and reasonable means of abatement existed. TheSecretary has established a serious violation of ? 5(a)(1) of the Act._Citation No. 2__Item 1a; 29 C.F.R. ? 1904.2(a)_The Secretary alleges that Trinity violated ? 1904.2(a) by failing torecord all recordable illnesses and injuries on the OSHA 200 log in1986, 1987, and 1988. Section 1904.2(a) provides:(a) Each employer shall, except as provided in paragraph (b) of thissection, (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The logand summary shall be completed in the detail provided in the form andinstructions on form OSHA No. 200.Trinity concedes that it had a problem at its Bessemer plant. It doesnot dispute the fact that recordable illnesses and injuries were omittedfrom the OSHA 200’s. The Secretary introduced into evidence Trinity’sOSHA 200’s for 1986 (Ex. C-6), 1987 (Ex. C-5). 1988 (Ex. C-4), and 1989(Ex. C-3). Exhibit C-7 is Trinity’s First Report of Injury forms. Theseexhibits establish that Trinity failed to record 27 instances ofrecordable illnesses or injuries.[[4]]Trinity contends that its failure to record the missing illnesses andinjuries was the result of unpreventable employee misconduct. \”To provethat defense, an employer must establish that it had work rules thatwere intended to prevent the violation, that those rules were adequatelycommunicated to its employees, and that the rules were effectivelyenforced.\”_Ormet Corporation,_ _ OSAHRC _, 14 DNA OSHC 2134, 2138, 1991CCH OSHD ? 29,254 (No. 85-531, 1991). The employees in question are JimDaniel and his successor, Festus Pierce. Daniel and Pierce each held theposition of safety supervisor. \”[W]here a supervisory employee isinvolved in the violation, the proof of unpreventable employeemisconduct is more rigorous and the defense is more difficult toestablish since it is the supervisor’s duty to protect the safety ofemployees under his supervision.\” _Daniel Construction Co._, 82 OSAHRC23\/A2, 10 BNA OSHC 1549, 1982 CCH OSHD ? 26,027, p. 32,672 (No. 16265,1982). In the present case, not only were the employees in questionsupervisory personnel, but they were also safety supervisors.Trinity requires its plants to record all lost time injuries on the OSHA200 log. Trinity’s corporate safety department monitors the plants andchecks their records to confirm that all lost time injuries are beingrecorded (Tr. 367, 602-605).When Trinity discovered safety director Jim Daniel was not properlymaintaining accident and injury records in accordance with its policy,it terminated him (Tr. 537, 594-595, 599, 605). The personnel managerfor the Bessemer plant, Fred Hull, then interviewed and hired FestusPierce as plant safety director (Tr. 537). The background check onPierce reflected that he had worked in the safety department for adivision of DuPont and was an experienced safety man (Tr. 537-538). Hullspecifically asked Pierce about his knowledge of OSHA recordkeepingrequirements and told Pierce one of his first responsibilities would beto go back and correct the records, including the OSHA 200 log (Tr.538-539).Jerry Riddles, Trinity’s corporate safety environmental director, heldextensive discussions with Pierce regarding Trinity’s safety program.Riddles informed Pierce of what was expected of him (Tr. 596-597):[W]e discussed the reason why the person that was there before wasterminated. That I expected him to get the past records up to date. Heimplied that he had looked at them already because Fred Hull hadmentioned then to him and he found some problems.We discussed the corporate procedure on logging of injuriesWe discussed, you know, what’s recordable, what’s not recordable. In theconversation, I thought it was clear that he was to got on with gettingthe records cleaned up and keeping the records straight.Pierce was provided with copies of Trinity’s corporate safety manual onrecordkeeping and the OSHA guidelines for recording occupationalinjuries and illnesses (Exs. R-7, R-8, R-9; Tr. 596-597, 601). Piercelater told Hull that the old Iogs were \”up to snuff.\” Prior to theFebruary inspection, Hull questioned Pierce closely regarding the statusof the recordkeeping. Pierce assured Hull that everything was correct.Hull had no reason to doubt Pierce (Tr. 539-540). After the inspection,when Trinity learned that the records had not been updated, Pierce wasfired for his failure to maintain accurate records (Tr. 540-541, 609).Trinity had written rules intended to prevent the violation of failingto record all recordable illnesses and injuries. These rules werecommunicated to the person in charge of maintaining the records. WhenPierce was hired, he was given copies of Trinity’s safety manual and theOSHA guidelines. Hull and Riddles discussed in detail with Pierce whatPierce’s duties were as safety supervisor.Trinity also effectively enforced its rules regarding recordkeeping.When Daniel failed to maintain the OSHA records according to Trinity’spolicy (and OSHA law), he was summarily dismissed. Pierce was on noticewhen he was hired that noncompliance with the recordkeeping regulationswould not be tolerated. The fact that Pierce failed to heed thisunmistakable warning does not detract from the efficacy of Trinity’sprogram. When it was discovered that Pierce had lied and had failed toupdate Trinity’s records he, too, was dismissed.Trinity’s enforcement of the rules by dismissal of Daniel and Piercereflects that it is serious about its compliance with the recordkeepingstandards. Trinity has established its defense of unpreventable employeemisconduct. It was not in violation of 29 C.F.R. ? 1904.2(a) for failingto record all recordable illnesses and injuries._Item 1b: 29 C.F.R. ? 1904.2(a)_Item 1b sets forth four separate and distinct instances which allegedlyconstitute willful violations of 29 C.F.R. ? 1904.2(a)._Item 1b(a)_Item 1b(a) alleges that Trinity recorded welding flash burns on the OSHA200 log as injuries rather than illnesses. Trinity’s classification wascontrary to the instructions on the back of the OSHA 200’s. Trinityconcedes that the flash burns were recorded as injuries. It does notdispute the fact that the instructions on the back of the OSHA 200 logdefine \”welding flash\” as an occupational illness.Trinity contends that it failed to comply with the standard because ofthe confusing and contradictory history of OSHA’s policy on how torecord flash burns. Riddles was the safety director of another steelcompany in Texas when he first encountered the flash burn issue. Duringthat company’s first OSHA inspection on June 16, 1976, ComplianceOfficer William Rogers from the Dallas Area OSHA Office told Riddlesthat he was incorrectly citing flash burns as illnesses rather thaninjuries. Rogers explained to Riddles the procedure for recording flashburns (Tr. 611):Well, they’re exposure type injuries . . . Well, it all depends onwhether it’s acute or chronic. Acute being a [sic] instantaneous flashthat caused the flashburn . . . If it’s chronic exposure, long term,then you log them as–possibly you’d log then as an illness.Riddles was instructed to record flash burns as injuries by OSHACompliance Officer Ronald Sarnachi, also from Dallas, on January 26,1977 (Tr. 612). Riddles was working for Trinity at its West Memphisfacility on September 27, 1977, when OSHA Compliance Officer HowardWatkins conducted an inspection of the plant. Watkins questioned thecorrectness of listing some flash burns as illnesses. On October 27,1978, OSHA Compliance Officer Niles Stromat told Riddles that flashburns should be recorded as injuries (Tr. 614). Trinity was advised byvarious state labor statistics departments to record all flash burns asinjuries (Tr. 615).After Trinity had implemented the policy of recording flash burns asinjuries, it was inspected by OSHA on numerous occasions and the issueof improper recordkeeping was never raised, even when the complianceofficers reviewed the OSHA 200’s (Tr. 369-370, 391-392, 408-409, 414,616-619). The first indication that Trinity had that its new policy wasincorrect was when Simmons inspected Trinity’s Bessemer, Alabama,facility in 1988 and told Trinity’s Neil Foreman that she thought thatflash burns should be recorded as illnesses rather than injuries. Nocitations were issued for improper recordkeeping as a result of thatinspection. Riddles assumed that Simmons had consulted with hersupervisor and determined that the flash burns were logged properly (Tr.460-461, 620).After Trinity received the citations which gave rise to the presentcase, Riddles sent a memo on April 25, 1989, to all Trinity plantsdirecting them to change their logs to show flash burns as illnessesrather than injuries (Ex. R-10; Tr. 621). The following month,Compliance Officer William Burke reviewed the OSHA 200’s at one ofTrinity’s Dallas plants and advised Trinity that flash burns were beingrecorded incorrectly as illnesses. Trinity informed Burke that it hadjust been cited for incorrectly recording flash burns as injuries. Burkereplied, \”I’ve never seen it that way\” (Tr. 654).Trinity concedes that it was reporting flash burns inconsistent with theinstructions on the back of the OSHA 200 log. It asserts that itsfailure to properly report emanates from inconsistent policy by OSHA inits various offices. It submits that its conduct was not willful sinceit was simply following OSHA’s previous instructions.Willfulness is a state of mind. The Commission has defined andelucidated on the word \”willful\” in the following manner:A violation of the Act is willful if \”it was committed voluntarily witheither an intentional disregard for the requirements of the Act or plainindifference to employee safety._\”Simplex Time Recorder Co_., 12 BNAOSHC 1591, 1595, 1984-85 CCH OSHD ? 27,456, p. 35,571 (No. 82-12, 1985).Trial of the issue of willfulness focuses on the employer’s state ofmind and general attitude toward employee safety to a greater extentthan would trial of a non-willful violation. _Seward Motor Freight_, 13BNA OSHC 2230, 2234, 1989 CCH OSHD ? 28,509, p. 37,787 (No. 86-1691,1989). In _Williams Enterprises, Inc., _13 BNA OSHC 1249, 1986-87 CCHOSHD ? 27,893 (No. 85-355, 1987), the Commission held:It is not enough to show that an employer was aware of conduct orconditions constituting a violation; such evidence is necessary toestablish any violation, serious or nonserious . . . A willful violationis differentiated by a heightened awareness–of the illegality of theconduct or condition and by a state of mind–conscious disregard orplain indifferenceIt is therefore not enough for the Secretary simply to show carelessnessor lack of diligence in discovering or eliminating a violation._Williams,_ 13 DNA OSHC at 1256-1257, 1986-87 CCH OSHD at p. 36,589_E. L. Jones and Son. Inc.,_ _ OSAHRC _ 14 BNA OSHC 2129, 2133, 1991 CCHOSHD ? 29,264 (No. 87-8, 1991).Trinity’s violation of ? 1904.2(a) was committed with neither anintentional disregard of the Act, nor with plain indifference toemployee safety. On the contrary, Trinity was attempting withconsiderable diligence to comply with what it thought was OSHA’s policy.The record establishes that Trinity’s attitude was cooperative andattentive to OSHA’s instructions. Trinity was faced with diametricallyopposed instructions, each coming from different OSHA representatives.It was doing the best it could under difficult circumstances.It did not have the \”heightened awareness\” of illegality of its conductthat is required for a finding of willfulness.Trinity was not in willful violation of ? 1904.2(a). The Company’sadmitted failure to record the flash burns as illnesses rather thaninjuries is a technical violation of the standard with little or noimpact on the employees’ health and safety. \”A violation is properlycharacterized as _de minimis_ here it has only a negligible relationshipto safety and health and where it is thus inappropriate to require thatthe violation be abated or to assess a penalty.\”_National Rolling MillsCompany_, 76 OSAHRC 121\/D7, 4 BNA OSHC 1719, 1720, 1976 CCH OSHD ?19,280 (No. 7987, 1976). Trinity’s violation of ? 1904.2(a) forrecording flash burns as injuries is classified as _de minimis_._Item 1b(b)_Item 1b(b) alleges a willful violation of ? 1904.2(a) for failure toassign case or file numbers to entries on the OSHA 200’s and the FirstReport of Injury forms, as required by the instructions for column \”(A)\”of the OSHA 200. Only the first 46 of the 156 entries on the 1987 loghad a case or file number and none of the 1986 entries had numbersassigned. None of the 1987 or 1988 First Report of Injury forms wereassigned a case or file number.Trinity asserts the unpreventable employee misconduct defense, chargingthat Festus Pierce failed in his duties as safety supervisor. There ismerit to this defense.Trinity’s corporate safety manual, which was provided to Pierce, directsthat each entry be given a case number (Ex. R7). Pierce had knowledge ofthe requirement since Riddles specifically referred him to this sectionof the manual (Tr. 597). The OSHA guidelines, which were also providedto Pierce, explained the requirement for a case number for each entry(Ex. R-9). Pierce was experienced in safety matters and knew how tomaintain OSHA records (Tr. 600, 603). In view of his experience andtraining, Trinity was justified in its belief that he would followapplicable guidelines. Pierce later informed Hull that he had gotten therecords \”up to snuff\” (Tr. 539-540).Trinity has established that its written safety rules were effectivelycommunicated to Pierce, who was dismissed for his failure to maintainproper records. The employee misconduct defense has beenestablished.[[5]] Trinity was not in violation of ? 1904.2(a) forfailure to assign case or file numbers to all entries on its OSHA 200’sand First Report of Injury forms._Items 1b(c) and 1b(d)_Item 1b(c) alleges the willful violation of ? 1904.2(a) for failure toenter on the OSHA 200’s the number of days missed from work by severalemployees. The Secretary provided the following list which indicates thedates employees missed and the pages of Exhibits C-3 through C-6 wherethe lost work days should appear:7\/27\/86 \tHowell, Thomas \t44810\/30\/86 \tMeadows, David \t45512\/5\/86 \tChristiansen, Ricky \t4561\/8\/87 \tBlack, Bruce \t4572\/20\/87 \tIvie, Bill \t4594\/2\/87 \tMarchant, Michael \t4605\/27\/87 \tPayne, Ronald \t46212\/14\/87 \tMarshall, R. \t469Item 1b(d) alleges a willful violation of ? 1904.2(a) for recording 12instances of injuries involving days away from work as injuries withoutlost work days. The Secretary provided the following lists identifyingthe page of Exhibit C-7 that shows the lost work day injury and thepages of Exhibits C-3 through C-6 where the injury was recorded on theOSHA 200 as an injury without lost work days:Date \tNames \tC-7 \tLog5\/4\/87 \tGrimes, Curtis \t124 \t4616\/11\/87 \tWeathers, Douglas \t125 \t4637\/22\/87 \tTerry, David \t127 \t4657\/27\/07 \tTiller, Don \t129 \t4657\/29\/87 \tCarter, Joseph \t131 \t4657\/30\/87 \tCrawford, James \t133 \t4658\/3\/87 \tFranklin, William \t135 \t4663\/28\/88 \tJohnson, Howard D. \t137 \t471Date \tHAM \tC-7 \tLog6\/30\/88 \tPostell, William T. \t139 \t4738\/4\/88 \tNickless, Gary \t116 \t47411\/23\/88 \tRogers, Johnny \t141 \t47510\/31\/88 \tCarnes, Johnny \t143 \t474The unpreventable employee misconduct defense asserted by Trinity issupported by the evidence of record and entities Trinity to prevail (seeprevious comments on defense). Trinity relied on Pierce to update andcorrect its records, and Pierce assured Trinity that this had been done.When the noncompliance was discovered, Pierce was fired. Trinity was netin violation of ? 1904.2(a) for items (c) and (d) of item 1b._Citation No. 3__Item 29 C.F.R. ? 1904.5(c)_The Secretary alleges that the summary page of the 1986 OSHA 200, Log ofIllness and Injuries, was not certified or signed in violation of ?1904.5(c) (Ex. C-6; Tr. 84-85).Section 1904.5(c) provides:(c) Each employer, or the officer or employee of the employer whosupervises the preparation of the log and summary of occupationalinjuries and illnesses, shall certify that the annual summary ofoccupational injuries and illnesses is true and complete. Thecertification shall be accomplished by affixing the signature of theemployer, or the officer or employer who supervises the preparation ofthe annual summary or by appending a separate statement to the log andsummary certifying that the summary is true and complete.Simmons looked through the records and noted that the last page for 1986(page 456 of Exhibit C-6) was not signed.Trinity introduced into evidence Riddles’ file copy of the 1986 summary(Ex. R-12). Every year Riddles requires each safety supervisor in eachTrinity facility to forward to him a copy of that facility’s OSHA 200’s.Riddles’ copy is signed by Jim Daniel (Tr. 693-695).Trinity argues that only the copy of the summary that is posted inaccordance with ? 1904.5(d)(1)[[6]] must be certified. The plain meaningof ? 1904.5(c) does not support this interpretation. That standardrequires that the summary be certified, and ? 1904.5(d)(1) requires thata copy of the summary be posted. Copies of the OSHA 200’s are to bemaintained for five years. Therefore, Trinity’s 1986 OSHA 200’s shouldhave contained a certified summary page.Riddles’ signed copy of the summary page is of little probative value.Exhibit C-6, the copy of the 1986 OSHA 200’s provided to the Secretary,contains 19 pages, the last page of which is unsigned. Riddles’ copy(Ex. R-12) is not a copy of the last page of Exhibit C-6, even thoughthe totals are the same. Exhibit R-12 is identified as \”page 1 of 18\” atthe top. Riddles could not explain the significance of that notation.The records kept at the Bessemer plant contained an uncertified summarypage for 1986. Riddles’ signed copy of the purported annual summary doesnot bring Trinity into compliance with the cited standard. The Secretaryhas established that Trinity was not in compliance with 1904.5(c).Although the 1986 summary had not been signed, the lack of signatureshad only a negligible relationship to safety and health. The violationis classified as _de minimis_._Item 2; 29 C.F.R. ? 1904.5(d)(1)_The Secretary alleges Trinity was in violation of ? 1904.5(d) (1) basedupon the claim that \”the OSHA Form 200 summary for calendar year 1988was not posted an bulletin boards in the plant where notices arenormally posted,\” but instead \” was posted in the safety office.\”Section 1904.5(d)(1), in pertinent part, provides:Each employer shall post a copy of the establishment’s summary in eachestablishment in the same manner that notices are required to be postedunder ? 1903.2(a)(1) of this chapter. The summary covering the previouscalendar year shall be posted no later than February 1 and shall remainin place until March 1.Section 1903.2(a)(1), in turn, provides:Each employer shall post and keep posted a notice or notices, to befurnished by Occupational Safety and Health Administration, U.S.Department of Labor, informing employees of the protections andobligations and obligations provided for in the Act, and that forassistance and information, including copies of the Act and of specificsafety and health standards, employees should contact the employer orthe nearest office of the Department of Labor. Such notice or noticesshall be posted by the employer in each establishment in a conspicuousplace or places where notices to employees are customarily posted. Eachemployer shall take steps to insure that such notices are not altered,defaced or covered by other material.The Secretary alleges that the posting in the safety\/personnel officewas in violation of the standard because not all employees routinelywent into the office. Safety glasses and ear plugs were provided at theoffice, but ear plugs were also provided in the plant. According toSimmons, \”They wouldn’t necessarily have to go in there. And there werebulletin boards out in the plant that had posters and time clocks thatwould have been a more appropriate place\” (Tr. 85). Exhibit C-12 showsthe time clock and bulletin board located in the painting area (Tr. 87).Testimony regarding the location of the OSHA Form 200 summary forcalendar year 1988 was presented by Simmons, Hull and Goodwin. Simmonstestified that it would have been \”more appropriate\” to have posted theOSHA 200 summary an the \”bulletin boards out in the plant that hadposters and time clocks\” (Tr. 85). She contended that thepersonnel\/safety office was a less appropriate location for posting theOSHA 200 summary because, while \”employees could come into the safetyoffice . . . it was conceivable that maybe not all would come in\” (Tr.85). Further, she maintains that the paint area is \”the location wherenotices to employees are customarily posted. . . because there’s a lotof notices posted here\” (Tr. 97). Finally, she stated that Hull andBodiford acknowledged that employee notices are customarily posted inthis area (Tr. 87-88).There are approximately ten time clocks located throughout the plant andnot all of the clocks are in areas suitable for posting notices. Trinityposts notices of a temporary nature at the time clocks. Notices of amore permanent nature are posted in the safety office (Tr. 518, 720-721).Trinity contends that the personnel\/safety office is a conspicuouscentral point in the plant (Tr. 518-521, 720-721). Whether for safetyequipment or a personnel matter, \”everyone would . . . very likely comein there in a week’s time (Tr. 521). Trinity also contends that theposting of the OSHA 200 summary in the personnel\/safety office ensuredagainst its removal and defacement (Tr. 519-210). Hull and Goodwintestified that the personnel\/safety office, as compared to the timeclocks, was the superior location for the OSHA 200 summary to \”make sureit would stay up the whole month,\” to \”make sure that at some pointduring the month it would be seen by all employees,\” and to \”make sureit would not be altered, defaced or covered by other materials,\” asrequired by ? 1903.2(a)(1) (Tr. 521-522, 720-721).The cited standard does not require that the summary be posted in themost conspicuous place, or at each place where notices are posted, or ata place where employees will view it on a daily basis. The standardrequired that the summary be posted \”in a conspicuous place wherenotices are customarily posted.\” The undisputed evidence was that\”permanent notices\” such as immigration act notices, wage and hourmaterials, and nondiscriminatory policy announcements were posted in thesafety\/personnel office (Tr. 518). Any employee wishing to review thesummary would know where to find it and would have ready access to it.Trinity was not in violation of ? 1904.5 (d) (1) ._Item 3; 29 C.F.R. ? 1910.22(a)(1)_The Secretary alleges that \”elevated walkways were cluttered withmaterials used for work\” and, therefore, Trinity violated 29 C.F.R. ?1910.22(a)(1), which provides:(a) _Housekeeping._ (1) All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in asanitary condition.Compliance Officer Bailey observed the sill welding area where platformswere built up beside the rail cars. He noted that several items,including hand tools, pieces of steel, hosing, and banding material werestrewn on the walkways (catwalks) of the platforms. Employees wereworking in the area (Ex. C-13; Tr. 110-112). Employees work from theplatforms to install side sill enforcements and cross ridge tie plateson the rail cars (Tr. 724).Trinity asserts the greater hazard defense, claiming that it would bemore hazardous to its employees if they were required to keep thewalkways clear of tools and materials. \”To prove a greater hazarddefense, an employer must show that (1) the hazards of compliance with astandard are greater than the hazards of noncompliance, (2) alternativemeans of protection are unavailable, and (3) a variance was unavailableor inappropriate.\” _Lauhoff Grain Co_., 89 OSAHRC 15\/A3, 13 BNA OSHC1084, 1088, 1987 CCH OSHD ? 27,814 (No. 81-984, 1987). Trinity failed toestablish any of these three elements of the defense.Trinity offered no proof regarding the unavailability orinappropriateness of a variance. Its only evidence touching uponalternative means of protection was provided by its generalsuperintendent of materials, Terry Goodwin, who stated that he know ofno alternative means of _installing_ the side sill enforcements andcross ridge tie plates other than from the catwalks (Tr. 725).The only evidence adduced regarding the greater hazard of compliance wasGoodwin’s testimony (Tr. 725-726).Q. Now, in your opinion and having done the work up there, would it bemore or lose hazardous for these materials that are going to beinstalled to be brought up one by one or to be stored up here on thecatwalk?A. The one by one.Q. Same question with regard to the tools. Having done this job whichwould be more hazardous, to lay the tool on the catwalk or otherwisehave it accessible to you or have the tool brought up only when you’regoing to use it and then return it to the floor?A. I’d say on the one by one–bring it up on an individual basis.No explanation is offered as to why bringing the tools and materials upon an as needed basis is more hazardous than having those items strewnabout on an elevated walkway where employees had to work. It is notintuitively perceived as a greater hazard. Trinity has failed to rebutthe Secretary’s _prima_ _facie_ case of an \”other\” than seriousviolation of ? 1910.22 (a) (1) ._Docket No. 89-2317 __Citation No. 1__Item 1; 29 C.F.R. ? 1910,106(b)(6)_The Secretary alleges Trinity was in violation of ? 1910.106(b)(6)because \”[s]ources of ignition were not eliminated or controlled wherethe presence of flammable vapors was possible.\” The standard states:(6) _Sources of ignition_. In locations where flammable vapors may bepresent, precautions shall be taken to prevent ignition by eliminatingor controlling sources of ignition. Sources of ignition may include openflames, lightning, smoking, cutting and welding, hot surfaces,frictional heat, sparks (static, electrical, and mechanical),spontaneous ignition, chemical and physical chemical reactions, andradiant heat.On February 8 and 9, 1989, Compliance Officer Horace McCann observedemployees spray painting in the primer area with trailer train low vac,a yellow paint (Ex. C-8) . An open flame heater was located 35 to 40feet from where the yellow paint was being sprayed (Ex. C-15; Tr.170-172). The heater was operating during the entire shift (Tr. 146).Employees also sprayed within 20 to 30 feet of the heater using red orrust colored primer (Tr. 146, 162-163, 795).Section 1910.106(a)(19) defines \”flammable liquid\” as a liquid having aflash point below 100 degrees Fahrenheit. The material safety data sheetfor the yellow paint gives the flash point as 60 degrees Fahrenheit andstates that \”vapors from flammable\/explosive mixtures in air\” (Ex. C-8).Trinity contends that the standard is inapplicable to the conditions asthey existed at the time of the inspection. It submits that ?1910.106(b)(6) is a standard that applies to \”Tank Storage.\” It statesthat the drums of paint observed in the area were for immediate use andwere not being stored in the area. McCann stated that he observed 10 to12 drums stored in the finishing area (Tr. 242). Goodwin testified thatTrinity has no storage tanks for combustible liquids in the primer area.Paint is used as it is brought in, and it is not stored in the area (Tr.713).Trinity also argues that even if it had been cited under the applicablestandard, ? 1910.107(c)(2). it would still prevail. Section1910.107(c)(2) provides:(2) _Minimum separation._ There shall be no open flame or sparkproducing equipment in any spraying area nor within 20 feet thereof,unless separated by a partition.McCann estimated the distance from the heater to the area where paintwas being sprayed to be at least 35 feet from the heater (Tr. 243).Furthermore, the Secretary offered no evidence that the primer area wasa \”spraying area\” within the meaning of ? 1910.107 (a) (2), whichprovides that a spraying area is:Any area in which dangerous quantities of flammable vapors or mists, orcombustible residues, dusts, or deposits are present due to theoperation of spraying processes.The Secretary offered no proof that \”dangerous quantities\” of flammablevapors were present. The Secretary has failed to establish a violationof the cited standard at ? 1910.106(b)(6), or the more appropriatestandard, 1910.107(c)(2)._Item 2: 29 C.F.R. ? 1910.134(e)(5)(i)_The Secretary alleges that Trinity violated ? 1910.134(e)(5)(i) basedupon two alleged instances in which \”(r)espirators were worn whenconditions . . . prevented a good face seal.\” The citation described theconditions as follows:(a) Primer and Interior painting areas – where employees painting wereobserved wearing respirators with full beards. One employee was requiredto enter a confined space and paint wearing a respirator over a full beard.(b) One employee was observed wearing a disposable respirator under anairline respirator wearing a beard.In pertinent part, ? 1910.134(e)(5)(i) provides:(i) Respirators shall not be worn when conditions prevent a good faceseal. Such conditions may be a growth of beard, sideburns, a skull capthat projects under the facepiece, or temple pieces of glasses.McCann observed some employees with full beards in areas where spraypainting was being conducted (Tr. 172). The growth of beard on some ofthe employees was greater than a quarter inch long (Tr. 173). McCannobserved an employee, Ernest Watford, in the finishing area who waswearing a disposable respirator under an air line respirator (Tr. 174,176). Watford wore the disposable respirator in the winter time to keepthe cold air off his face (Tr. 177). McCann believed that the beards andthe disposable respirators prevented a good face seal (Tr. 173-174).Sanders Melton, one of the employees who wore a disposable respirator,received 3M respirator training prior to the OSHA inspection (Ex. R-4;Tr. 482). Melton believed that as a result of his training, he was ableto determined whether he had a good face seal (Tr. 485). Employees whowore respirators were not allowed to have more than one or two days’growth of beard (Tr. 464, 486).McCann’s opinion that the employees were not getting a good face seal isnot supported by any tests or questioning of the employees. The standardstates that conditions that prevent, a good face seal \”may\” include \”agrowth of beard.\” Wearing a beard with a respirator is not a_per se_violation of the standard. Some evidence must be adduced to establishthat the beards of the employees and the disposable respiratorsprevented a good face seal. The Secretary failed to present any suchevidence. Trinity was not in violation of ? 1910.134(e)(5)(i)._Item 3: 29 C.F.R. ? 1910.141(g) (2)_The Secretary alleges that \”[e]mployees were permitted to consume foodor beverages in area(s) exposed to toxic materials\” in violation of ?1910.141(g) (2). This standard provides that:No employee shall be allowed to consume food or beverages in a toiletroom nor in any area exposed to toxic material.\”Toxic material\” is defined as ? 1910.141(a) (2):* * * [M]aterial in concentration or amount which exceeds the applicablelimit established by a standard, such as ? 1910.1000 and ? 1910.1001 or,in the absence of an applicable standard, which is of such toxicity soas to constitute a recognized hazard that is causing or is likely tocause death or serious physical harm.McCann observed employees eating and drinking around an open flameheater. The employees did not wash their hands before beginning lunch.During lunch, the employees wore their work overalls (Ex. C-15, PhotoR1-F13; Tr. 145-147, 179-180). McCann stated that he observed oversprayon the employees work overalls and on their lunch sacks (Tr. 180). Oncross-examination McCann conceded that no overspray was visible in thephotographic exhibits (Tr. 312). The toxic materials to which the eatingarea was exposed were the paints and their contents, such as MEK,toluene, butyl alcohol, xylene, titanium dioxide, lead and arsenic (Tr.309-314). The area in which paint was sprayed, the primer area and thefinishing area, were each approximately 50 feet away from the eatingarea (Tr. 181).Although McCann acknowledged that \”there [are] standards that govern orestablish permissible exposure limits\” (Tr. 308) for the substances atissue, he essentially assumed a violation of the standard because theemployees had paint on their coveralls and did not change clothes whilethey were eating (Tr. 180).The Secretary failed to demonstrate that the materials in the area wherethe employees were eating lunch were at a level which would pose a riskto their health. This was part of her burden of proof. _Lone Star SteelCompany_, 81 OSAHRC 105\/E7, 10 BNA OSHC 1228, 1235, 1981 CCH OSHD ?25,825 (Nos. 77-3893 & 77-3894, 1981). This burden is discharged by theSecretary’s demonstration that the material in question is in such a\”concentration or amount which exceeds the applicable limit, such as ?1910.1000 and ? 1910.1001, or, in the absence of an applicable standard,which is … a recognized hazard that is causing or likely to causedeath or serious physical harm.\” ? 1910.141 (a) (2) The Secretary hasfailed to prove a violation of the cited standard. The allegation isvacated._Item 4: 29 C.F.R. ? 1910.141(g)(4)_The Secretary alleges that Trinity violated ? 1910.141(g)4) by allowingemployees to store their sack lunches along the walls in the area whichwas the subject of the prior allegation (item 3). The cited standardprovides that:No food or beverages shall be stored in toilet rooms or in an areaexposed to a _toxic material._ (Emphasis added)The Secretary had the burden to demonstrate the presence of a \”toxicmaterial,\” as that term is defined in ? 1910-141(a)(2). _Lone Star SteelCompany,_ _supra_, 10 BNA OSHC at 1235. The lack of evidence in supportof the Secretary’s position such a finding. The citation must be vacated._Item 5: 29 C.F.R. ? 1910 151(c)_The Secretary alleges that Trinity failed to provide suitable facilitiesfor quick drenching or flushing of the eyes and body for employeesexposed to chemicals in the painting department. The standard Trinityallegedly violated, ? 1910.151(c) provides:(c) Where the eyes or body of any person may be exposed to injuriouscorrosive materials, suitable facilities for quick drenching or flushingof the eyes and body shall be provided within the work area forimmediate emergency use.McCann observed employees in the paint area mixing, spraying, andgenerally handling paints (Tr. 164, 182, 188). These paints containedinjurious corrosive materials (Exs. C-8, C-17, C-18). McCann testifiedthat the closest source of water was 40 to 50 yards away and consistedof pedal-operated water fountain suitable only for washing hands (Tr.199). McCann stated that Bodiford cold him that this was the only sourceof water available (Tr. 810-311). McCann himself did not take aninventory of water sources (Tr. 822).Bodiford denied that he ever told McCann that the water fountain was theonly source of water in the area (Tr. 870-871). Terry Goodwin conductedan inventory of the sources of running water in the painting and primerareas and came up with the following inventory: \”two restrooms with onelavatory each in it. One restroom with three lavatories. A restroom withtwo. The paint office had one lavatory in it. There was one restroomwith eight lavatories. Two inspector’s offices with one lavatory each.Three water coolers or–or drinking fountain and three water hoses\” (Tr.721). Goodwin conducted a test to gauge the amount of time needed toreach running water if flushing or drenching was required. \”I determinedthat from any place in the paint shop that you could be within [sic] thefresh running water within 30 seconds, and typically, it was 15 to 20seconds to any of them\” (Tr. 722).In _Gibson Discount Center, Store No. 15_, 78 OSAHRC 30\/C1, 6 BNA OSHC1526, 1527, 1977-78 CCH OSHD ? 22,669 (No. 14657, 1978), the Commissionstated:We agree with respondent that this standard does not require waterfacilities to be within any specific linear distance. Rather, thedistance permitted depends on the particular circumstances; for example,the strength of the corrosive material and the configuration of the workarea. See Plessy, Inc., 74 OSAHRC 77\/C1, 2 BNA OSHC 1302, 1974-75 CCHOSHD para. 18,907 (No. 946, 1974). (Footnote omitted)Under Commission rationale, the sources of water referred to by Trinitywould be close enough to satisfy the requirement that facilities beprovided in the work area.[[7]] The question for determination iswhether the sources of water were \”suitable\” facilities.Trinity cites several cases which reflect that the Commission and itsAdministrative Law Judges have held that garden hoses, water fountains,sinks, showers and dip tanks are sufficient to comply with the standard.These decisions have eroded the intent of the standard to such a degreethat it is difficult to ever find a violation of its provisions. Everyplant has sources of water. The standard, however, requires that thewater source be _within _the employee’s work area and be _suitable_ forquick _drenching_ or _flushing_ of the eyes. In essence, following thedecisions cited by Trinity means that if there is a source of runningwater available in the plant, there can be no violation.The word \”suitable\” is not without some meaning. Compliance OfficerMcCann testified that a source of fresh running water, under constantpressure, that you can get in the eyes is sufficient to comply with thestandard (Tr. 316-317). Restroom lavatories are often dirty and wouldpresent a source of contaminated water when filled so that an employeecan place his head in the sink to quick flush. Drinking fountains thisJudge is familiar with have very low water pressure and have no way theeyes could be submerged for a quick flush. The same detriment arises inthe use of a water hose.The standard’s purpose is to render aid to the employee at the earliesttime. Where the Secretary establishes a need for quick drenching orflushing, as in this case, the burden is on the employer to prove thathe has _suitable_ facilities.[[8]] A need has been established by theSecretary. Sources of fresh running water referred to by Trinity are notdeemed suitable for quick drenching or flushing of the eyes. Trinity hasmerely recited sources of water–it has not proven they are suitable forpurposes of this standard. Since the sources of water are not within theimmediate work area, Trinity must also establish that the location ofthe facilities have been communicated to the employees. They must knowwhere to go in the event of an emergency. A few seconds’ delay indetermining where to go could be crucial. Trinity has not indicatedwhere employees were directed to go to in case of an emergency. It hassimply shown sources of water.Trinity was in \”other\” violation of ? 1910.151(c)._Item 6: 29 C.F.R. ? 1200(fl(4)(i)_The citation and complaint allege a violation of 29 C.F.R. ?1910.1200(f)(4)(i). There is no such standard. Curiously, the Secretarydid not amend this error and even cites that nonexistent standard againin her posthearing brief (Secretary’s Brief, pg. 11). Since the standarddoes not exist, there can be no violation.The Secretary alleges that Trinity stored hazardous chemicals, in theform of paints, in containers which were not properly labeled toidentify the associated hazards. Apparently, the Secretary meant to cite? 1910.1200(f)(1) which provides:(f) _Labels and other forms of warning_.(1) The chemical manufacturer, importer, or distributor shall ensurethat each container of hazardous chemicals leaving the workplace islabeled, tagged or marked with the following information….The basis of the allegation is McCann’s observation that some of thepaints the employees were using were coming out of containers that werenot labeled (Tr. 120). Trinity established that the unlabeled containerswere used for mixing paint that was to be used that day (Tr. 527-528).Trinity correctly asserts that containers used for temporary, somedayuse of chemicals are exempt from the labeling requirement. Section1910.1200(f)(7) provides:(7) The employer is not required to label portable containers into whichhazardous chemicals are transferred from labeled containers, and whichare intended only for the immediate use of the employee who performs thetransfer.Trinity was not in violation of ? 1910.1200(f) (1) (which it was notcited for)._Item 7: 29 C.F.R. ? 1910.1200(g)(1)_Item 7 alleges that Trinity did not have a material safety data sheet(\”MSDS\”) for yellow paint, as required by ? 1910.1200 (g(1). Section1910.1200(g)(1) provides:(1) Chemical manufacturers and importers shall obtain or develop amaterial safety data sheet for each hazardous chemical they produce orimport. Employers shall have a material safety data sheet for eachhazardous chemical which they use.When McCann asked for the MSDS for that paint, Hull gave McCann atechnical data sheet for the paint but not the MSDS (Ex. C-16; Tr. 136-138).During his walkaround inspection on February 9, 1989, McCann requested acopy of the MSDS for the yellow paint Trinity was using on rail cars(Tr. 136, 345). Hull and Bodiford told McCann they would look up theMSDS when they returned to the office (Tr. 137). When they returned tothe office at the end of the day on February 9, Hull and Pierce went tolook for the MSDS on the yellow paint. They spent ten to fifteen minuteslooking for the MSDS under the name \”Koppers\” because they thought thatwas the brand name of the paint (Tr. 531-532). When they could notquickly find the MSDS, they provided the compliance officers with a copyof the technical data sheet on the paint and promised to locate the MSDSand send it to OSHA (Tr. 138-139, 532).After McCann left the plant, Hull discovered that he had been lookingfor the MSDS under the brand name \”Koppers\” when actually the brand namethe MSDS was listed under was \”Kop-Coat.\” The same day of the inspectionHull located the MSDS and forwarded it to the OSHA office (Ex. C-8; Tr.533-535). It is undisputed that the MSDS was on the premises the day ofthe inspection. The standard only requires that \”Employees shall have amaterial safety data sheet for each hazardous chemical which they use.\”Trinity has shown that it had the MSDS and that it was not in violationof ? 1910.1200(g)(1)._Penalties_The Commission is the final arbiter of penalties in all contested cases._Secretary v. OSAHRC And Interstate Glass Co.,_ 487 F.2d 438 (8th Cir.1973). Under section 17(j) of the Act, the Commission is required tofind and give \”due consideration\” to the size of the employer’sbusiness, the gravity of the violation, the good faith of the employer,and the history of previous violations in determining the appropriatepenalty. The gravity of the offense is the principal factor to beconsidered. _Nacirema Operating Co_., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001,1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Trinity employs more than 740 employees at its Bessemer plant (Tr.206-207). The Bessemer plant had no previous history of citations (Tr.207-208). There was no evidence that, once the compliance officersobtained a warrant, Trinity was anything less than cooperative.The likely result of a fall of 15 feet onto a concrete surface would bedeath or serious physical injury, including a concussion and brokenbones. Upon consideration of this and other relevant factors, a penaltyof $600 is deemed appropriate for the violation of section 5(a)(1) (Item1 of Citation No. 1, Docket No. 89-2316).No penalty is assessed for the _de minimis_ violation of ? 1904.2(a)(Item 1b(a) of Citation No. 2, Docket No. 89-2316). No penalty isassessed for the \”other\” than serious violation of ? 1904.5(c) (Item 1of Citation No. 3, Docket No. 69-2316).No penalty is assessed for the \”other\” than serious violation of ?1910.22(a)(1) (Item 3 of Citation No. 3, Docket No. 89-2316).A penalty of $630 is considered appropriate for item 5 of the seriouscitation (29 C.F.R. ? 1910-151(c)) issued in Docket No. 89-2317._FINDINGS OF FACTS ANDCONCLUSIONS OF LAW_The foregoing decision constitutes the findings of facts and conclusionsof law in accordance with Rule 52(a) of the Federal Rules of CivilProcedure._ORDER _Based upon the foregoing decision, it is herebyORDERED: (1) That Citation No. 1 of Docket No. 89-2316, alleging aserious violation of 5(a)(1) of the Act, is affirmed and a penalty of$600 is assessed;(2) That item 1a of Citation No. 2 of Docket No. 89-2316, alleging awillful violation of 29 C.F.R. ? 1904.2(a), is vacated;(3) That item 1b(a) of Citation No. 2 of Docket No. 89-2316, alleging awillful violation of 29 C.F.R. ? 1904.2(a), is affirmed as _de minimis_and no penalty is assessed;(4) That items 1b(b), 1b(c) and 1b(d) of Citation No. 2 of Docket No.89-2316, alleging violations of 29 C.F.R. ? 1904.2(a), are vacated:(5) That item 1 of Citation No. 3 of Docket No. 89-2316, alleging aviolation of 29 C.F.R. ? 1904.5(c), is affirmed as _de minimis_ and nopenalty is assessed;(6) That item 2 of Citation No. 3 of Docket No. 89-2316, alleging aviolation of 29 C.F.R. ? 1904.5(d)(1), is vacated;(7) That item 3 of Citation No. 3 of Docket No. 89-2316, alleging aviolation of 29 C.F.R. ? 1910.22(a)(1), is affirmed and no penalty isassessed;(8) That item 4 of Citation No. 3 of Docket No. 89-2316 is vacated;(9) That items 1, 2, 3, 4, 6 and 7 and proposed penalties of CitationNo. 1 of Docket No. 89-2317 are vacated; and(10) That item 5 of Citation No. 1 of Docket No. 89-2317 is affirmed anda penalty of $630 is assessed.JAMES D. BURROUGHS JudgeFOOTNOTES:[[1]] Citation no. 3, item 3. No. 89-2316 (the housekeeping violation)and Citation no. 1, item 5, No. 89-2317 (the first aid eyewash facilityviolation).[[2]] The cited standard, found in Subpart D– Walking-Working Surfaces,provides:? 1910.22 General requirements.(a)\/Housekeeping\/ All places of employment, passageways, storerooms, andservice rooms shall be kept clean and orderly and in a sanitary condition.[[3]] The employee complaint that prompted the inspection stated. \”6.[Sill] weld area has catwalk that employees work from and where largeamounts of material such as []re-enforcement stiff[e]ners, belly bands,roping irons and horseshoes are placed. This material is placed by craneand is often unstable and could fall on employ[]ees below.\” Whileemployees seemed more concerned with the hazard overhead than thatunderfoot, the parities addressed only the tripping hazard.[[4]]\/RSR Corp. v Donovan, \/747 F.2d 294, 303 (5th Cir. 1984); \/QualityStamping Prods., v. OSHRC,\/ 709 F.2d 1093, 1099 (6th Cir. 1983);\/BPR,Inc. v. Secretary of Labor\/, 643 F.2d 890, 895 (1st Cir. 1981);\/Cleveland Consol., v OSHRC, \/648 F.2d 1160, 1165 (5th Cir 1981);[[5]] Some of Trinity’s lawyer’s questioning in the transcript and someof his argument in the brief leave the impression that an employee wouldbe forced to make multiple trips between the walkway and the floor, butno one testified to that effect. The employee complaint suggests thatmaterials were lifted by crane, and at one point, Trinity’s brief seemsto envision the same thing, but the record contains no direct testimonyon this either.[[6]] Goodwin testified that he knew of no way to go about installingthe railcar parts other than working from the raised walkway, but thisstatement does not relate to the real issue: the existence of anyalternative means to protect employees from tripping on the walkwaywhile still allowing them to do their job.[[7]] Trinity further contends that it was infeasible for the employeesto perform their work from anywhere other than the walkway. But that isnot at issue.The Secretary does not claim that Trinity violated the Actby requiring its employees to work from the walkway, or that the onlyway to abate the hazard is to have employees work from some otherlocation. The Secretary does contend that Trinity has a duty to make thewalkway a safe place to work.[[8]] Found in Subpart K-Medical and Firm Aid, the cited standard provides:? 1910.151 Medical services and first aid.(c) Where the eyes or body of any person may he exposed to injuriouscorrosive materials, suitable facilities for quick drenching or flushingof the eyes and body shall be provided within the work area forimmediate emergency use.[[9]] Based on Goodwin’s testimony, judge found that these sources ofwater if \”suitable\” under the standard, would be considered \”within thework area for immediate\” emergency use\” under Commission precedent.[[10]] \/E.I du Pont de Nemours & Co.\/, 10 BNA OSHC 1320,1982 CCH OSHD ?25,888 (No. 76-2400, 1982) (standard safety shower found to besuitable); \/Gibson Discount Center,\/ Store No. 15, 6 BNA OSHC 1526, 1978CCH OSHD ? 22,669 (No. 14657, 1978) (citation vacated for failure toprove that water source 35 feet away violated standard); and \/IdahoTravertine Corp\/, 5 BNA OSHC 1504, 1976-77 CCH OSHD ? 21,090 (No. 1134,1976) (specifically accorded the precedential value of an unreviewedjudge’s decision).[[11]] \/E.g., Bridgeport Brass Co\/., 11 BNA OSHC 2255, 1984-85 CCH OSHD? 27,054 (No. 82-4399, 1984) (citation vacated because employer had anactual eyewash fountain).[[12]] That standard, found in Subpart G-Occupational Health andEnvironmental Control, provides:*? 1910.94 Ventilation.*…..(d) \/Open surface tanks\/- -… (9) \/Personal protection.\/… (vii) Neareach tank containing a liquid which may burn, irritate, or otherwise beharmful to the skin if splashed upon the worker’s body. there shall be asupply of clean cold water. The water pipe (carrying a pressure notexceeding 25 pounds) shall be provided with a quick opening valve and atleast 48 inches of hose not smaller than three-fourths inch, so that notime may be lost in washing off liquids from the skin or clothing.Alternatively, deluge showers and eye flushes shall be provided in caseswhere harmful chemicals may be splashed on parts of the body.[[1]] The Secretary withdrew item 4 of the \”other\” citation in DocketNo. 89-2316 (Tr. 9).[[2]] Even though the Secretary repeatedly alleged a violation of ?1910.1200 (f) (4) (i), it is a nonexistent standard.[[3]]Section 1904.7(a) provides:(a) Each employer shall provide upon request, records provided for in ?1904.2, 1904.4, and 1904.5 [OSHA Forms 200 (and annual summary) and101], for inspection and copying by any representative of the Secretaryof Labor for the purpose of carrying out the provisions of the [A]ct . . . .[[4]] The Secretary provided the following helpful chart as a digest ofthe unrecorded illnesses and injuries. The number under \”C-7\” indicatesthe page number of the First Report of Injury on which the recordableinjury appears. The number under \”Log\” indicates the page number of thelog on which the illness or injury should have been recorded but was not.Date \tName \tC-7 \tLog8\/31\/87 \tPilot, Willie \t160 \t4677\/27\/87 \tHurst, Betty \t161 \t4656\/l\/87 \tHayes, Robert \t163 \t4625\/27\/87 \tLockhart, Lonzo \t165 \t4625\/21\/87 \tFraser, James \t168 \t461-4625\/20\/87 \tHarrison, Terry \t170 \t4615\/20\/87 \tPierson, Jeffrey \t171 \t4615\/19\/87 \tSmith, Danny \t100 \t4615\/11\/87 \tPitts, Willis K. \t172 \t4614\/20\/87 \tBohannon, Mitchell \t176 \t4604\/14\/87 \tBrown, Jesse L. \t178 \t4604\/6\/87 \tDonaldson, Leottamus \t174 \t4603\/12\/87 \tFlorence, Sandra G. \t111 \t4592\/6\/07 \tMahand, Leonard \t179 \t4582\/12\/87 \tCotton, Darryl \t113 \t45811\/28\/88 \tFletcher, Thomas \t148 \t47510\/3\/86 \tMatthews, Elmer \t150 \t4747\/29\/88 \tDarden, Alvin \t119 \t4737\/28\/88 \tLacey, Dwayne \t109 \t4736\/18\/8C \tCastle, Nina \t105 \t4736\/20\/88 \tCole, Johnny R. \t152 \t4736\/7\/88 \tWatley, Donald \t154 \t47331\/31\/88 \tBrasher, Bonnie \t156 \t4713\/5\/88 \tBarker, Eugene \t157 \t4713\/27\/87 \tWhite, Donald \t158 \t4713\/22\/86 \tReese, Joseph \t102 \t471[[5]] The previous comments on Pierce and unpreventable employeemisconduct made under item 1, Citation No. 2, are equally applicable tothis issue.[[6]] Section 1904.5(d)(1), in pertinent part, provides:(d) (1) Each employer shall post a copy of the establishment’s summaryin each establishment in the same manner that notices are required to beposted under ? 1903.2(a)(1) of this chapter . . . .[[7]] What constitutes an employee’s work area? The commission’srationale takes a liberal view in interpreting the work area. Ifemployees are working in a specific area of a plant, is his work areathe whole plant? Under Commission case law, the work area isinsignificant. The importance is placed on the time to reach the waterfacilities; however, section 1910.151(c) makes no reference to anyspecific time frame. The facilities are to be _within the work area_ for_immediate use_. The intent of the standard is clear that the facilitiesshould be in the vicinity of the worker. He should not have to stop andthink where sources of water are located in the plant.[[8]] The Secretary has the burden to prove the applicability of thestandard. In this case, the burden is met by establishing that \”the eyesor body\” of an employee \”may be exposed to injurious corrosivematerials.\” The burden is on the employer to show he has suitablefacilities. Even if the Secretary has this additional burden, Trinityhas failed to show that the sources of water are fresh, under constantpressure (Tr. 316-317), and sufficient to provide ample quantities ofwater to comply with the _quick_ drenching or flushing requirement. “