“Docket No. 89-2168 89-2169 SECRETARY OF LABOR,Complainant,v. TRINITY INDUSTRIES, INC.,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL 7629,Authorized EmployeeRepresentative.OSHRC Docket Nos. 89-2168& 89-2169 (Consolidated)DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:These consolidated cases are before the Commission on reviewfor resolution of the single issue of whether Review Commission Administrative Law Judge(\”ALJ\”) James D. Burroughs erred in denying a prehearing motion that was filedby Trinity Industries, Inc. (\”Trinity\”), seeking the suppression of allevidence.\u00a0 In so ruling, the judge rejected Trinity’s argument that the evidence inboth of these proceedings was gathered by the Occupational Safety and HealthAdministration (\”OSHA\”) in violation of its Fourth Amendment rights.\u00a0 Thejudge held instead that the evidence was obtained pursuant to a valid administrativesearch warrant.\u00a0 For the reasons stated below, we concur with the judge’s ruling.I. Factual BackgroundTrinity maintains a workplace in Sharonville, Ohio, where it isengaged in manufacturing tanks and pressure vessels of various sizes.\u00a0 While therecord does not provide a comprehensive description of the Sharonville facility’s layout,the evidence that has been introduced strongly suggests that the workplace consists of twobuildings and adjacent operations performed outdoors.\u00a0 It appears that the earlierphases of the manufacturing process are concentrated in plant 2 while the final assemblywork occurs primarily in plant 1.[[1]]On February 23, 1988, a Trinity employee filed a formalcomplaint of unsafe working conditions with OSHA’s Cincinnati, Ohio area office.[[2]]\u00a0 The complaint alleged the presence of the following safety hazards at Trinity’sSharonville facility:1. Portable grinder & rollers operating at 440 volts arebeing used in the production area of Plant #1.\u00a0 The flex cords and attachment plugsinstalled on these units are rated for 208 volts.2. Compressed gas cylinders stored in the plant area areunsecured and some without valve protection caps.3. Aisles and passageways are blocked by materials and stocklimiting employee access in case of emergency. Floors are oil slick.The complaint further identified the location of each of thesealleged hazards as \”Production Area Plant #1.\”Following the procedures set forth in Chapter IX of its FieldOperations Manual (\”FOM\”), OSHA determined that the complaint met the\”formality requirements\” of section 8(f)(1), 29 U.S.C. ? 657(f)(1), of theOccupational Safety and Health Act of 1970, 29 U.S.C ?? 651-678 (\”the Act\”).More specifically, OSHA found that the complaint:\u00a0 (1) was reduced to writing (eitheron an OSHA-7 Form or in a letter), (2) alleged that an imminent danger or a violationthreatening physical harm (i.e., a hazard covered by a standard or by the general dutyclause) existed in the workplace, (3) set forth with reasonable particularity the groundsupon which it was based, and (4) was signed by at least one employee or employeerepresentative.[[3]]OSHA also made the determination, required under section8(f)(1), that there were \”reasonable grounds to believe\” that the\”violation[s] or danger[s]\” alleged in the complaint existed and that it wastherefore mandated to conduct a \”special inspection . . . to determine if suchviolation or danger exists.\” OSHA attempted to inspect on February 24, the day afterits receipt of the employee complaint.\u00a0 Trinity, however, refused to grant itpermission to enter.\u00a0 Accordingly, on February 25, OSHA sought and obtained anadministrative inspection warrant from United States Magistrate Robert A. Steinberg of theUnited States District Court for the Southern District of Ohio, Western Division(hereafter \”the district court\”).OSHA’s warrant application was prepared and presented by theArea Director William M. Murphy in an ex parte proceeding before theaforementioned magistrate.\u00a0 In his sworn affidavit, Murphy informed the magistrate ofOSHA’s receipt of the formal 8(f)(1) complaint, of its determination that a \”specialinspection\” was required under the terms of section 8(f)(1), and of its unsuccessfulattempt to conduct an inspection.\u00a0 The magistrate was provided with OSHA’s summary ofthe complaint, see supra note 2, and with a copy of the relevant provisions of Chapter IXof OSHA’s FOM, which governs the agency’s evaluation of and response to \”formalcomplaints,\” referrals from other federal agencies, and \”nonformalcomplaints,\” which are complaints that do not meet the statutory criteria of section8(f)(1).In addition, the warrant application submitted by Area DirectorMurphy sought conditional authorization to conduct a full-scope (\”comprehensive\”or \”wall-to-wall\”) inspection under the terms of an administrative plan that wewill refer to as \”OSHA Instruction CPL 2.45A.\”\u00a0 This administrative plan isconcisely summarized in the Secretary’s review brief, as follows:OSHA’s then-effective administrative plan for determining wheninspections pursuant to employee complaints should be expanded to include the entireworksite was set out at OSHA Instruction CPL 2.45A-(A)(9)(a).\u00a0 Under this plan, thefacility was subject to a comprehensive inspection if four separate conditions were met:\u00a0 (1) there has been an employee complaint which contains \”reasonablegrounds\” for the Secretary \”to believe that such violation or dangerexists;\”\u00a0 (2) the establishment is in a \”high rate industry;\” \u00a0(3) its safety records show a lost workday injury rate (LWDI) at or above the nationalaverage; and\u00a0 (4) a complete safety inspection has not been carried out in thecurrent or last two fiscal years.In support of its request for conditional authorization toconduct a full-scope inspection, OSHA supplied the magistrate with a copy of most, but notall, of the relevant provisions of its administrative plan.[[5]]\u00a0 It also providedthe magistrate with Area Director Murphy’s sworn statement that three of theadministrative plan’s \”four separate conditions\” had been met with respect toTrinity’s Sharonville facility.\u00a0 Based on this information, OSHA sought authorizationto conduct a review of Trinity’s safety and health records to determine whether theremaining \”condition\” had also been met.\u00a0 If the records review establishedthat this fourth \”condition \”–that the establishment have \”a lost workdayinjury rate (LWDI) at or above the national average\”–also applied to Trinity, thenOSHA would conduct the conditionally-authorized, full-scope inspection.[[6]]More specifically, Murphy’s affidavit included the followingrepresentations with respect to the \”four separate conditions\” set forth inOSHA’s administrative plan:(1) receipt of employee complaint-Murphy informed themagistrate of OSHA’s determinations that the employee complaint filed on February 23,1988, (a) met \”the requirements of Section 8(f)(1)\” and (b) provided OSHA with\”reasonable grounds to believe that such violations exist or have existed during thelast six months, so as to require an inspection under Section 8(f)(1) of the Act.\” Seesupra note 4.(2) \”high rate industry \”–Paragraph 3 ofthe warrant affidavit included the following representations:Trinity Industries, Inc. is engaged in the manufacture ofpressure vessels at the facility … and is classified within the Standard IndustrialClassification (SIC) code 3443, machine tools, metal forming type.\u00a0 According toinformation provided by the Bureau of Labor Statistics (BLS), this industry (SIC 3443) isranked 49th out of 333 industries on the FY-88 High Rate Industry List for the State ofOhio due to an industry lost workdays injury rate (LWDI) of 7.8.Typical injuries related to the manufacture of pressure vesselinclude lacerations and\/or amputations from contact with improperly guarded equipment suchas grinders, lathes and welders, eye injuries from metal chips and dust, electrical shockfrom contact with exposed live parts and bums from improper handling of compressed gases.(3) high establishment LWDI rate–Paragraphs 4 and 5of the warrant affidavit included the following representations:The compliance officer(s) will follow the procedures outlinedin chapter III … of the OSHA Field Operations Manual for determining the establishment’slost workday injury (LWDI) rate.\u00a0 The establishment’s LWDI rate will be compared tothe lowest national average rate for manufacturing attained over the last five years …to determine whether or not a complete inspection will be conducted….. In accordance with OSHA’s administrative plan … thescope of the inspection will extend to the entire establishment with respect to safety ifa review of the OSHA injury and illness records indicate[s] the company has a lost workdayinjury rate (LWDI) at or above the Bureau of Labor Statistics (BLS) National rate of 4.2for manufacturing.(4) previous inspections–Paragraph 3 of the warrantaffidavit included the following representations:According to Cincinnati Area Office records, there has been acomplaint safety inspection at this company on May 9, 1986.\u00a0 According to theserecords, no comprehensive safety inspection has been performed within the previous twoyears.The administrative inspection warrant issued by MagistrateSteinberg granted OSHA the authority it sought, to conduct: a limited \”specialinspection\” of the Sharonville factory, focusing on the allegations of the employeecomplaint; a records review; and a full-scope establishment inspection if the facility’sLWDI rate exceeded 4.2. On May 11, 1989, more than a year after the warrant issued, whenTrinity allowed OSHA to conduct its records review under this warrant, OSHA calculated anLWDI rate for the Sharonville facility of 13.6, more than three times the pertinentnational average of 4.2. Then, after determining that all four of the\”conditions\” of its administrative plan had been met with respect to thisfacility, OSHA began its \”full-scope,\” \”wall-to-wall\” inspection.\u00a0 As discussed more fully below, that inspection led to the proceedings that are nowbefore the Commission on review.II. Procedural BackgroundTrinity was served with the administrative inspection warranton February 25, 1988, the same day it was issued.\u00a0 After requesting, receiving, andusing time to consult with its attorney before responding to the warrant, Trinity informedOSHA that it would not permit the inspection to take place.\u00a0 A few days later, theemployer initiated an action in the district court, by filing a motion to quash thewarrant.\u00a0 In that motion, Trinity argued that: (a) the warrant application wasInsufficient to establish probable cause for a \”special inspection\” undersection 8(f)(1) of the Act, (b) the warrant application was insufficient to establishprobable cause for a full-scope inspection under section 8(a) of the Act,[[7]] (c) thewarrant was overly broad in authorizing a records review that extended beyond \”thoserecords that are directly related to the alleged violations in the complaint,\” and(d) it should be allowed to conduct a \”Franks evidentiary hearing\” inorder to rebut the \”false and misleading\” statements in the warrant applicationconcerning hazards and injuries in the pressure vessel manufacturing industry.More specifically, with respect to the warrant’s conditionalauthorization of a full-scope inspection, Trinity raised in its motion before the courtarguments that it continues to assert on review in these proceedings.\u00a0 Trinitycontended that \”the Secretary could not expand a complaint inspection under Section8(f) of the Act … into a full, wall-to-wall inspection under Section 8(a) … unless theSecretary showed Trinity’s initial selection was based on a reasonableadministrative inspection plan, as required by Marshall v. Barlow’s, Inc., 436U.S. 307 (1978) [\”Barlow’s\”]\”(emphasis in the original).\u00a0 Itclaimed that it was \”targeted\” for inspection based on OSHA’s receipt of theemployee complaint, not on the basis of a reasonable administrative plan.\u00a0 Trinityalso argued that \”a complaint limited to discrete conditions in one plant did notestablish probable cause for an expanded inspection of Trinity’s entire . . .facility.\”After hearing oral argument on both Trinity’s motion and theSecretary’s counter motion to hold Trinity in contempt for refusing to honor the warrant,Magistrate Steinberg issued a lengthy and well-reasoned order or, July 29, 1988.\u00a0 Inthat order, he denied Trinity’s motion to quash as well as the Secretary’s motion for acivil contempt order.\u00a0 The magistrate specifically considered and rejected each ofthe arguments raised in Trinity’s motion and outlined above.\u00a0 In particular,Magistrate Steinberg upheld the warrant’s conditional authorization of a full-scopeinspection, holding that the warrant application and the administrative plan on which itrelied, OSHA Instruction CPL 2.45A, met the Barlow’s test for establishingprobable cause for a full-scope inspection under an administrative plan.In his July 29 order, Magistrate Steinberg also granted in partand denied in part Trinity’s anticipatory request for a stay.\u00a0 Specifically, he: (1)ordered immediate execution of the warrant provision authorizing a limited \”specialinspection\” in response to the employee complaint under section 8(f)(1), but (2)stayed the warrant provisions allowing OSHA to conduct a records review and conditionallyauthorizing OSHA to conduct a full-scope inspection.On August 5 and 8,1988, OSHA conducted a limited complaintinspection of Trinity’s Sharonville facility pursuant to the February 25, 1988 warrant andMagistrate Steinberg’s July 29 order.\u00a0 That inspection resulted in the issuance ofcitations for specific alleged violations of OSHA standards. Trinity’s contest of thosecitations was docketed with the Review Commission as OSHRC Docket No. 88-2691 and assignedto former Administrative Law Judge Joe D. Sparks.\u00a0 Earlier this year, the Commissionissued a decision in that case, modifying the judge’s penalty assessment with respect toone item, but otherwise affirming the judge.\u00a0 Trinity Indus., Inc., 15 BNAOSHC 1481, 1992 CCH OSHD 29,582 (No. 88-2691, 1992).[[8]]While Trinity was maintaining its administrative challenge tothe limited section 8(f)(1) inspection before Judge Sparks, it continued to pursue itsjudicial challenge to the stayed provisions of the February 25, 1988 warrant (the recordsreview and the full-scope inspection provisions) in the federal courts.\u00a0 On October20, 1988, Trinity lost the next round in that proceeding when the district court summarilyaffirmed the July 29, 1988 order of Magistrate Steinberg, after \”consider[ing] denovo all of the filings in this matter.\”\u00a0 Nevertheless, even though this ordergave her the authority to proceed under the warrant, the Secretary still refrained fromexecuting its records review and conditional full-scope inspection provisions, duringTrinity’s efforts to obtain a stay of the district court’s order, first from the courtitself and then from the United States Court of Appeals for the Sixth Circuit. Trinityalso appealed the district court’s decision to the Sixth Circuit.On April 25, 1989, the Sixth Circuit denied Trinity’sapplication for a stay.\u00a0 Shortly thereafter, Trinity agreed to allow OSHA to reviewits safety and health records and to conduct a full-scope inspection if the records reviewrevealed an establishment LWDI rate in excess of the \”cutoff figure\” of 4.2. Asnoted above, OSHA’s records review in fact established that this final condition was alsomet, and based on this finding, OSHA began its \”wall-to-wall\” inspection of theSharonville facility on May 11, 1989. The \”walk-around\” portion of thisinspection was completed on May 19, 1989, and a final closing conference was held bytelephone on June 9, 1989.During its inspection, OSHA divided its investigators into twoteams, one consisting of safety specialists and the other of industrial hygienists. \u00a0These teams conducted two independent, but concurrent, inspections of the facility. \u00a0Their separate recommendations to the area director resulted in the issuance of two setsof citations.\u00a0 Trinity’s contest of the health citations was docketed by theCommission as OSHRC Docket No. 89-2168. Its separate contest of the safety citations wasdocketed by the Commission as OSHRC Docket No. 89-2169. Altogether, OSHA issued. andTrinity contested, five citations (one willful, two serious, and two other than serious),alleging numerous violations of the Act.\u00a0 The proposed penalties totaled almost$33,000.Both cases were assigned to Judge Burroughs, and the partiesthereafter filed their pleadings.\u00a0 At the same time it filed its answers, Trinityfiled identical motions to suppress the evidence in both proceedings.[[9]]\u00a0 Inessence, these motions raised in the Commission proceedings the same, Fourth Amendmentissues Trinity had previously raised in its judicial challenge to the February 25, 1988inspection warrant.\u00a0 Trinity sought the suppression of all evidence obtained by OSHAduring its May 1989 full-scope inspection of the Sharonville facility.On January 29, 1990, Judge Burroughs issued two orders, whichhe entered in both Docket No. 89-2168 and Docket No. 89-2169.\u00a0 The first ordergranted the Secretary’s unopposed motion to consolidate the two cases.\u00a0 The secondorder denied Trinity’s motions to suppress the evidence. In this second order, JudgeBurroughs rejected Trinity’s argument that the February 25, 1988 warrant was overly broadbecause it authorized a wall-to-wall inspection based on a limited employee complaint.\u00a0 The judge concluded, like Magistrate Steinberg had before him that OSHA’s warrantapplication met the Barlow’s test for establishing probable cause for a full-scopeinspection under an administrative plan.Shortly after issuing these orders, Judge Burroughs scheduledthe consolidated cases for a hearing on the merits of the contested citation items. \u00a0Trinity, however, notified the judge of its intention not to appear at the scheduledhewing, outlining the financial and tactical reasons that had led it to reach thisdecision.\u00a0 The judge responded by notifying Trinity that the bearing would proceed asscheduled regardless of whether Trinity appeared.\u00a0 Judge Burroughs expressly issuedthe following warning to Trinity:If Trinity does not appear, the record will be closed after theSecretary’s evidence is received. Based on the evidence of record, a decision will betendered subsequent to the hearing on all issues in dispute.From February 21 through February 23, 1990, a hearing in thetwo consolidated cases was in fact held, as scheduled.\u00a0 The Secretary and theauthorized employee representative, which had previously elected party status, appeared atthe hearing, but Trinity did not.Nevertheless, the Secretary created a substantial evidentiaryrecord, including forty-nine exhibits and a 3-volume transcript of testimony from twelvewitnesses, in support of the allegations of the five citations, as well as her penaltyproposals.\u00a0 Based on this evidence, Judge Burroughs subsequently issued a 73-pagedecision in which he ruled on the merits of each of the contested citation items. \u00a0With the exception of a single vacated subitem and a corresponding $100 penalty reduction,the judge affirmed each of the alleged violations in the two consolidated cases andassessed the proposed penalties. Trinity then sought and obtained Commission review,limited to the single issue of the correctness of the judge’s ruling on Trinity’spre-hearing motion to suppress the evidence.III. DiscussionAt issue is whether Judge Burroughs erred in denying Trinity’smotion to suppress the challenged evidence on the ground that the February 25, 1988warrant under which it had been obtained was invalid, because the Secretary failed toestablish administrative probable cause for a full-scope inspection.[[10]]\u00a0 Ouranalysis of this issue begins with the decision of the United States Supreme Court in Barlow’s,which provides:For purposes of an administrative search such as this, probablycause justifying the issuance of a warrant may be based not only on\u00a0 specificevidence of an existing violation but also on a showing that\”reasonable legislative or administrative standards for conducting an…inspectionare satisfied with respect to a particular [establishment].\” Camara v. MunicipalCourt, 387 U.S., at 538, 87 S.Ct. at 1736.\u00a0 A warrant showing that a specificbusiness has been chosen for an OSHA search on the basis of a general administrative planfor the enforcement of the Act derived from neutral sources such as, for example,dispersion of employees in various type of industries across a given area, and the desiredfrequency of searches in any of the lesser division of the area, would protect anemployer’s Fourth Amendment rights.436 U.S. at 320-21 (emphasis added, ellipsis and brackets inthe original).In Barlow’s, the Court held that the Fourth Amendmentgenerally prohibits warrantless, nonconsensual inspections of business establishmentsconducted under the Act. The Court, however, made clear that OSHA’s burden in obtaining anadministrative inspection warrant is a lesser burden than that which must be met by lawenforcement agents when they apply for a criminal search warrant.\u00a0 The Secretary’sburden is to establish \”administrative probable cause.\” and that burden may besustained by meeting either of the, two alternative tests that are set forth in thepassage quoted above.\u00a0 These tests, which are used in determining the sufficiency ofa warrant application, are commonly referred to as the \”specific evidence [ofexisting violations] test\” and the \”administrative plan test.\”\u00a0 In thecases now before us, Judge Burroughs held that OSHA’s February 23, 1988 warrantapplication met the Secretary’s burden of showing \”administrative probablecause\” under the Barlow’s \”administrative plan test.\”Trinity contends that the Barlow’s administrative plantest was not met because the employer was not, in the words of the Barlow’s Court,\”chosen for an OSHA search on the basis of a general administrative plan for theenforcement of the Act.\”\u00a0 Trinity alternatively claims that, even if it had beenselected for inspection on the basis of the plan set forth in OSHA Instruction CPL 2.45A,the administrative plan test was still not net because CPL 2.45A is not, again in thewords of the Barlow’s Court, \”a general administrative plan for. the enforcement ofthe Act derived from neutral sources.\”‘\u00a0 Finally, Trinity argues that JudgeBurrough’s denial of its motion to suppress must be reversed because his ruling conflictswith Commission precedent and appellate court case law. We will examine each of thesecontentions in the order just stated.A. Whether Trinity Was Chosen for a Search on theBasis of a General Administrative PlanTrinity’s threshold challenge to Judge Burroughs’ ruling is itsclaim that the judge erred in evaluating the warrant application under the\”administrative plan test\” rather than the \”specific evidence test.\”In practical terms. the significance of this distinction is in its effect on thepermissible scope of the inspection authorized by the warrant.\u00a0 A showing ofadministrative probable cause under the administrative plan test \”usually\”entities the Secretary to conduct a comprehensive wall-to-wall inspection.\u00a0 SarasotaConcrete Co., 9 BNA OSHC 1608, 1617, 1981 CCH OSHD ? 25,360, p. 31,536 (No.78-5264,1981), aff’d. 693 F.2d 1061 (11th Cir. 1982)(\”Sarasota Concrete\”).However, a showing under the specific evidence test does not generally entitle theSecretary to conduct a full-scope inspection, unless: (1) the evidence presented by theSecretary indicates that violations and hazards are pervasive throughout the workplace,(2) it is necessary to conduct a full-scope inspection in order to discover or locatealleged hazards and violations, or (3) there are other circumstances justifying theauthorization of a broad-scope inspection.\u00a0 Id. See also Martin v.International Matex Tank Terminals–Bayonne, 928 F.2d 614, 625-26 (3d Cir. 1991)(\”International Matex\”); In re Inspection of Workplace (CarondeletCoke Corp.), 741 F.2d 172, 175-77 (8th Cir. 1984). In the cases now before theCommission, it is undisputed that OSHA’s receipt of the section 8(f)(1) complaint onFebruary 23, 1988, did not, in and of itself, justify a full-scope inspection under thespecific evidence test.In challenging the judge’s application of the administrativeplan test, Trinity asserts that it was not \”initially selected\” for inspectionpursuant to an administrative plan.\u00a0 Instead, Trinity argues, it was\”targeted\” for inspection as a result of OSHA’s receipt of the section 8(f)(1)complaint:The \”plan\” that the Secretary describes in her briefdoes not select anyone for inspection; it does not even come into play until after abusiness has been initially selected for inspection based on a complaint.(Emphasis in the original.) Second, Trinity contends that,because it was \”targeted\” for inspection based on the complaint, the warrantshould have restricted the scope of the inspection.\u00a0 As Trinity argues, \”[W]herean employer is selected for inspection based on a limited scope complaint under section8(f) of the Act, the warrant should be limited to a physical inspection of thecomplained-of conditions and to records relating to the complaint. . . . \” Finally,Trinity concludes that, because the warrant was not limited in this manner, the warrantwas illegal and all evidence gathered from the expanded inspection should be suppressed.Trinity’s entire argument is built on its claim that it wasinitially selected for inspection based on OSHA’s receipt of the employee complaint,rather than under the provisions of OSHA Instruction CPL 2.45A.\u00a0 However, this islargely a debate over semantics. Trinity was selected for a limited section 8(f)(1)inspection based on OSHA’s receipt of the employee complaint.\u00a0 However, it wasselected for a full-scope inspection of the entire Sharonville facility based on OSHA’sdetermination that each of the \”four separate conditions\” of OSHA InstructionCPL 2.45A had been met with respect to the Sharonville facility.This distinction is clearly illustrated by the proceduralhistory of these cases.\u00a0 As a result of Magistrate Steinberg’s ruling on Trinity’sstay request (i.e., granted in part, but denied in part), there were in fact two separateinspections of the Sharonville facility, both under the authority granted by the February25, 1988 warrant.\u00a0 First, there was a limited section 8(f)(1) complaint inspection,which took place in August 1988, that led to the administrative proceedings in OSHRCDocket No. 88-2691; and second, an expanded full-scope. inspection pursuant to OSHA’sadministrative plan took place in May 1989 and led to the consolidated administrativeproceedings that are now on review.We recognize, of course, that under different circumstances,OSHA could have conducted only a single expanded inspection, combining its investigationof the complaint items with the \”wall-to-wall\” walk-around tour of the facility.\u00a0 That the two inspections could have been combined, however, does not affect ourfundamental conclusion that the warrant in fact authorized two concurrent inspections.\u00a0 Indeed, in issuing the February 25, 1988 warrant, the magistrate determined thatOSHA had established administrative probable cause both for a limited scope inspectionunder section 8(f)(1) and, conditionally, for an expanded inspection under the provisionsof OSHA’s administrative plan.\u00a0 Magistrate Steinberg’s order of July 29, 1988, withits separate consideration of these two related but distinct probable cause issues makesthis abundantly clear.As Magistrate Steinberg aptly observed in his July 29 order,the fact that both inspections were authorized in a single warrant was essentially nothingmore than a concession to administrative convenience–a concession that had no effectwhatsoever on the Fourth Amendment rights of the targeted employer.\u00a0 In MagistrateSteinberg’s words:It is in the public interest for OSHA to maximize its limitedresources.\u00a0 Where an employer otherwise qualifies for a general programmedinspection, but has not had a general programmed inspection within the last two years,examining the LWDI rate at [the beginning of a ? 8(f)(i) complaint inspection] to see ifan expanded inspection is warranted is more efficient than waiting to conduct a secondinspection under the administrative plan The burdens [on] the employer are minimized aswell…. We believe CPL 2.45A strikes a reasonable balance between OSHA’s need to carryout inspections on a limited budget to ensure employees are provided with safe workplacesand the employer’s interest in privacy and avoiding disruption in its workplace.For the reasons stated, we find that Trinity was targeted foran expanded, full-scope establishment inspection pursuant to the provisions of anadministrative plan, specifically, OSHA Instruction CPL 2.45A.\u00a0 Judge Burroughstherefore did not err in evaluating the February 1988 warrant application under theBarlow’s administrative plan test rather than its specific evidence test.B. Whether OSHA’s Administrative Plan Was \”DerivedFrom Neutral Sources\” (i)Under Barlow’s, it is not enough to find that Trinitywas initially selected for an inspection under an administrative plan.\u00a0 There must bea determination as to whether Trinity was \”chosen for an OSHA search on the basis ofa general administrative plan for the enforcement of the Act derived from neutralsources.\”\u00a0 436 U.S. at 321 (emphasis added). Trinity alternatively contendsthat OSHA’s warrant application failed to meet this test because the administrative planrelied upon by the Secretary, OSHA Instruction CPL 2.45A, was not \”derived fromneutral sources.\”In essence, Trinity reasons that the neutrality of CPL 2.45A isdestroyed by its reliance on the filing of a section 8(f)(1) complaint as the triggeringdevice that targets a particular employer for inspection.\u00a0 In Trinity’s view,reliance on this factor as one of the four criteria OSHA uses in determining whichemployers will be subjected to full-scope inspections permits the intrusion ofimpermissible subjective elements e.g., a desire to harass the employer or other impropermotivation on the part of the complaining employee into the selection process.In resolving this issue, we look first to the basic purpose ofthe Fourth Amendment, which is \”to safeguard the privacy and security of individualsagainst arbitrary invasions by government officials.\”\u00a0 Barlow’s, 436U.S. at 312. (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967))(emphasis added).\u00a0 \”In the context of administrative searches, this principlerequires that persons not be subject to the unbridled discretion of executive andadministrative officers, particularly those in the field, as to when to search and whom tosearch.\” West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 958 (11th Cir.1982) (quoting Barlow’s, 436 U.S. at 312).Viewing the \”derived from neutral sources\” languageof the Barlow’s decision in the light of these overall objectives, we agree withMagistrate Steinberg’s analysis of the Court’s neutrality requirement:In order for the plan to establish probable cause, it mustprovide for inspection on the basis of neutral criteria, thus ensuring that OSHA officialsdo not have unbridled discretion to target an employer for improper reasons ….Neutrality and discretion are integrally linked; if the evidence submitted in theapplication shows the plan is based on the type of criteria that does not permit anarbitrary decision to conduct the inspection, then we may find the plan is derived fromneutral criteria.We further conclude that the magistrate was correct indetermining that OSHA Instruction CPL 2.45, both as written and as applied, was\”derived from neutral sources.\”\u00a0 Thus, with regard to the administrativeplan as written, Magistrate Steinberg held \”that CPL 2.45A is derived from neutralcriteria because it does not permit OSHA officials to exercise discretion or toarbitrarily decide to conduct the expanded inspection.\”\u00a0 With regard to the planas applied, he added that \”[t]he employee complaint is a neutral [criterion] becausethere is no evidence OSHA used the complaint as a guise to improperly target Trinity foran inspection under CPL 2.45A.\”In his order denying the Respondent’s motion to suppress theevidence, Judge Burroughs reached essentially this same conclusion.\u00a0 Contrasting thewarrant application at issue before him with the warrant application that was at issuebefore the Commission in Sarasota Concrete, he judge emphasized that \”thecomplaint [here] did not automatically result in a full-scope inspection.\” Instead,three other clearly neutral criteria also had to be met.\u00a0 In particular, \”[t]hemechanism for triggering a full-scope inspection,\” i.e., OSHA’s determination ofwhether the LWDI rate for the Sharonville facility was above the national average formanufacturing, \”was not subject to the unbridled discretion of the Secretary.\”We agree with the analysis of Judge Burroughs and MagistrateSteinberg, and would add the following observations.\u00a0 First, as the Secretarycorrectly points out in her review brief, the motivation of the complaining employee infiling a section 8(f)(1) complaint of unsafe working conditions is basically\”irrelevant\” to the magistrate in making a probable cause determination:[E]ven an employee complaint motivated by the desire to harassan employer may furnish probable cause.\u00a0 As the courts have held, where there is areasonable basis to believe that violations exist, it cannot be found that OSHA ismotivated by bad faith in seeking a warrant, regardless of the complainant’s motive.(Emphasis in the original, case citation omitted.) Cf.Quality Stamping Prods., 7 BNA OSHC 1285, 1288, 1979 CCH OSHD ? 23,520, pp.28,504-05 (No. 78-235, 1979) (\”An individual prompted by improper or wrongful motivesnonetheless may supply valid information regarding alleged violations of the Act and theinformer’s wrongful motive does not negate the validity of the informer’sprivilege\”);\u00a0 Aluminum Coil Anodizing Corp., 5 BNA OSHC 1381, 1382,1977-78 CCH OSHD ? 21,789, p. 26,197 (No. 829, 1977) (improper motivation on the part ofthe complainant does not affect the Secretary’s statutory authority to conduct aresponsive complaint inspection).We further observe that the administrative plan at issue hereincludes several provisions that are designed to substantially reduce, if not eliminate,the potential for misuse of the Act’s complaint inspection procedures.\” \u00a0Finally, we emphasize Magistrate Steinberg’s finding that the complaint at issue in thesecases was a legitimate section 8(f)(1) complaint:\u00a0 \”On the record before us, weare entitled to find that an authentic complaint alleging actual violations of OSHAregulations provides administrative probable cause for an inspection and to authorize OSHAto enter Trinity’s premises on that basis.\”\u00a0 In fact, when OSHA conducted itslimited section 8(f)(1) inspection in August 1988 in response to the February 23 employeecomplaint, it confirmed the existence of at least two of the violations that wereidentified by the employee in the complaint.\u00a0 See Trinity Industries Inc.,15 BNA OSHC at 1486-88, 1992 CCH OSHD at pp. 40,036-39 (gas cylinder lacking valve cap,and portable grinder operated at 480 volts even though its plug was rated for only 208volts).(ii)In addition to challenging the neutrality of OSHA’sadministrative plan, Trinity also challenges the adequacy of OSHA’s warrant application,citing several federal court decisions that expand upon and clarify the Secretary’s burdenof proof in establishing administrative probable cause under the Barlow’s administrativeplan test. We find this argument is without merit.Contrary to Trinity’s claims, the warrant application submittedby OSHA to Magistrate Steinberg on February 25, 1988, described in sufficient detail theadministrative plan on which it was based. Indeed, the magistrate was provided with a copyof most, if not all, of the key provisions of the plan. See supra note 5. \u00a0Thus, the magistrate was provided with enough information to make an independentdetermination as to whether the Secretary’s inspection plan is based on neutral criteriaand whether it is \”reasonable.\”\u00a0 Magistrate Steinberg in fact made theseindependent determinations of neutrality and reasonableness, and we agree with hisholdings.The magistrate was also provided with an adequate statement ofthe methodology followed by OSHA in selecting the Sharonville facility for a full-scopeinspection pursuant to the terms of the administrative plan.\u00a0 As we have set forthfully in our statement of facts, supra, the warrant application provided themagistrate with the information OSHA relied upon in making its determination that theSharonville facility met three of the \”four separate conditions\” described inthe administrative plan.\u00a0 In addition, OSHA informed the magistrate in detail of thesteps it would take to determine whether the facility also met the fourth of theseseparate conditions. Finally, OSHA represented to the magistrate that it would onlyconduct a full-scope inspection of the facility if and when it determined that all four ofthe plan’s separate conditions were met.(iii)Under the case law that Trinity itself cites, the showing wehave just described was sufficient to meet the Secretary’s burden of provingadministrative probable cause under the Barlow’s administrative plan test.\u00a0 Wetherefore find and conclude that OSHA met its burden of demonstrating to the magistratethat Trinity’s Sharonville facility was \”chosen\” for a full-scope establishmentinspection \”on the basis of a general administrative plan for the enforcement of theAct derived from neutral sources.\”C. Whether the Judge’s Denial of Trinity’s Motion WasContraryto Commission Precedent and Appellate Court Case LawThroughout these proceedings, Trinity has relied heavily uponCommission precedent and appellate court case law that assertedly supports its position onthe proper scope of the February 25, 1988 administrative inspection warrant. Inparticular, it has emphasized the Commission’s decision in Sarasota Concrete andthe decision of the United States Court of Appeals for the Third Circuit in Marshallv. North American Car Co., 626 F.2d 320 (3d Cir. 1980) (\”North American Car\”).\u00a0 Citing these two decisions, and several other federal court decisions, Trinityclaims that \”[T]he Review Commission … and the majority of the courts that haveconsidered the issue have held that the scope of a complaint inspection must bear anappropriate relation to the complaint itself, in order to keep the invasion of privacy toa minimum.\” This follows, in Trinity’s view, from the \”‘basic principle ofconstitutional law that a warrant … must be limited in scope to the probable cause thattriggers the inspection.\”\u00a0 Accordingly, Trinity concludes. because JudgeBurroughs’ denial of its motion to suppress conflicts with these principles and the casesthat have applied them, the judge’s ruling must be reversed.More specifically Trinity argued as follows before JudgeBurroughs:There is no dispute in this case that Trinity was initiallyselected for inspection based on a limited complaint.\u00a0 The Secretary contends thatbecause he, internal inspection regulation, CPL 2.45A, authorizes her to expand employeecomplaints into wall-to-wall searches, the broad form warrant obtained here isconstitutionally permissible.\u00a0 The Review Commission rejected this same contention inSarasota Concrete. See, 9 BNA OSHC at 1610. Indeed, Sarasota Concrete is notdistinguishable from the present case.\u00a0 There, the Commission held it could and wouldsuppress evidence where, as here, the warrant authorized an inspection broader thannecessary to investigate the complaint. 9 BNA OSHC at 1614, 1617.Trinity also focuses on the reasoning of the Third Circuit inthe North American Car case.\u00a0 It challenges the Secretary’s position in thecases now before us as an impermissible attempt \”to blur the distinction between ?8(f), which limits the scope of complaint inspections, and the general inspectionprovisions of ? 8(a).\”\u00a0\u00a0 It presents North American Car as a casewhere this same approach \”was thoroughly analyzed and rejected by the ThirdCircuit.\” \u00a0 More specifically, Trinity contends:In North American Car, as here, the Secretary arguedthat OSHA’s internal regulation authorizing expansion of a complaint inspection to awall-to-wall inspection is a \”general administrative plan within the purview of ?8(a).\” 626 F.2d at 323.\u00a0 The Third Circuit held that the Secretary’s internalregulation \”surpasses the boundaries set by Congress\” and that a complaintinspection must be limited to the complaint itself.We reject these arguments.\u00a0 Our holding that JudgeBurroughs did not err in denying Trinity’s motion to suppress the evidence is not inconflict with the Commission’s precedent as established in Sarasota Concrete.\u00a0Nor is it inconsistent with the appellate court case law cited by Trinity.\u00a0 On thecontrary, each of the cases cited by the Respondent is clearly distinguishable from thecases that are now on review.The most critical fact in Sarasota Concrete was thefact that the warrant application at issue there was based solely on OSHA’sreceipt of a complaint of unsafe working conditions.[[12]]\u00a0 The conditions the formeremployee complained about were located within a discrete and limited section of theemployer’s workplace. \u00a0 Yet, OSHA’s warrant application presented no evidence–otherthan its receipt of the complaint–that a wall-to-wall inspection would beappropriate.\u00a0 Not surprisingly, therefore, the Commission concluded, in that case,that the warrant issued by the magistrate, which authorized a full-scope inspection ofSarasota Concrete’s entire workplace, was overly broad.The limited showing made by the Secretary in applying for thewarrant at issue in Sarasota Concrete was emphasized by the Commission in itsholding, as follows: \”We adopt the position that, when probable cause for aninspection is based solely on specific evidence of an existing violation, toaccommodate the fourth amendment the inspection generally should be limited to the allegedviolative condition. 9 BNA OSHC at 1617, 1981 CCH OSHD at pp. 31,535-36 (emphasis added).\u00a0 Here, in sharp contrast, the Secretary did not base her showing of probable causesolely on the specific evidence of existing violations that was Contained in the section8(f)(1) complaint. Instead, as we have discussed fully above, she established that afull-scope inspection of the Sharonville facility was authorized under the terms of theadministrative plan set forth in OSHA Instruction CPL 2.45A.Trinity’s argument that the cases now before us cannot bedistinguished from Sarasota Concrete on this basis is unpersuasive.\u00a0 Trinitycorrectly points out that the Secretary made an administrative plan argument in SarasotaConcrete and that the Commission rejected that argument. However, the reason theCommission rejected the Secretary’s argument was because \”[t]he Secretary did notintroduce the … internal instruction [i e., the administrative plan] in hiswarrant application before the magistrate.\” 9 BNA OSHC at 1615, 1981 CCH OSHD at p.31,534. Thus, the Commission was merely implementing the policy it had announced earlierin that same decision: \”In determining whether probable cause supported theSecretary’s action, the Commission will consider in support of probable cause only theevidence the Secretary presented to the judge or magistrate who issued the warrant.\”9 BNA OSHC at 1611-12, 1981 CCH OSHD at p. 21,530.In any event, to the extent the Commission did, in dicta,consider and reject the substance of the Secretary’s administrative plan, that discussionis largely irrelevant here.\u00a0 The \”plan\” that was at issue in SarasotaConcrete was essentially nothing more than a statement that OSHA would conduct awall-to-wall inspection whenever it received a section 8(f)(1) complaint. Even if wecharacterized this stated enforcement policy as an 6,\”administrative plan\”within the meaning of Barlow’s, we would have little difficulty in distinguishingthat plan from the administrative plan that is at issue before us in these cases.\u00a0 Wefind no inconsistency between the Commission’s rejection of the \”plan\” that wasat issue in Sarasota Concrete and our acceptance of the plan that is at issue inthese proceedings.For essentially the same reasons, we further conclude that eachof the appellate court decisions cited by Trinity is clearly distinguishable from thecases now on review.\u00a0 For example, in the North American Car case, the ThirdCircuit noted that the warrant application at issue before it \”merely recited theemployee complaint.\” 626 F.2d at 322.\u00a0 To the extent the court evaluated thewarrant application in terms of the Barlow’s administrative plan test, it did soin the context of rejecting the Secretary’s contention \”that his rule of having awall-to-wall inspection in every employee-complaint case is a general administrative planwithin the purview of ? 8(a). \” In sum, we find no case cited by Trinity, and indeedno other case at either the Commission or appellate court level, that directly orindirectly, holds that OSHA Instruction CPL 2.45A (or any comparable OSHA inspection plan)does not meet the Barlow’s criteria for establishing administrative probablecause under the administrative plan test.This leaves us with Trinity’s claim that OSHA Instruction CPL2.45A impermissibly blurs the distinction between section 8 (a) and 8 (f)(1) of the Act,contrary to the language of those two statutory provisions, see supra notes 3& 7, and the reasoning of North American Car. We also find this argumentunpersuasive.\u00a0 For the reasons that follow, we agree with the statement in theSecretary’s review brief that \”[n]othing in Barlow’s or any other authorityprohibits the Secretary from using employee complaints as one of the factors in aprogrammed inspection plan.\” \u00a0 In particular, we conclude that the hard and fastline that Trinity would have us draw between section 8(a) and section 8(f)(1) inspectionsis not warranted by the statutory language or the Act’s legislative history.Section 8(a) of the Act is the only provision in the Act thatgrants the Secretary the authority to conduct workplace inspections for the purpose ofdetermining whether an employer is in compliance with the Act. Thus, section 8(a) isalways the source of the Secretary’s authority to inspect, regardless of the event thatmay have triggered the inspection.\u00a0 Such triggering events include: OSHA’s receipt ofa section 8(f)(1) complaint; its receipt of a \”nonformal\” complaint or an agencyreferral; its receipt of information that a workplace accident has occurred (e.g.,through the filing of a formal report by the employer, as required by regulation, orthrough informal means such as news reports on television or the radio), the chanceobservation of a compliance officer driving past a construction site:, or the employer’sappearance on a list of establishments to be inspected (i.e. a so called\”programmatic\” inspection pursuant to a formal administrative plan).Contrary to Trinity’s reasoning. section 8(f)(1) is not aseparate and independent source of authority for OSHA inspections.\u00a0 Nor is It alimitation on the authority granted to the Secretary in section 8(a).\u00a0 Instead, it isa Congressional mandate or directive, requiring OSHA to conduct inspections under thenarrowly-proscribed circumstances set forth in section 8(f)(1).\u00a0 SeeInternational Matex, 928 F.2d at 621-22, and authorities cited therein.\u00a0 Seealso Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1077-78, 1986-87 CCH OSHD ?27,815, pp. 36,402-03 (No. 77- 3804, 1987), and cases cited therein.\u00a0 We concludethat the Act, as properly interpreted by the Secretary in these proceedings, did notpreclude her from expanding the scope of the complaint inspection in this case beyond thematters that were specified in the complaint.Nor do we agree with Trinity that the Barlow’sdecision requires us to invalidate OSHA Instruction CPL 2.45A.\u00a0 In Barlow’s,the Court set forth two alternative routes by which the Secretary could establishadministrative probable cause–under the specific evidence test or under theadministrative plan test.\u00a0 Contrary to Trinity’s reasoning, however, we do notbelieve that the Court thereby intended to create an absolute equation between thespecific evidence test and section 8(f)(1) inspections, on the one hand, and theadministrative plan test and section 8(a) inspections, on the other.Indeed, based on our reading of the Barlow’s decision,we conclude that the source of these two alternative tests was not the Act at all, butrather the Court’s own precedent, most of which predated Congressional passage of thatparticular statute. Thus, the Court’s \”specific evidence test\” is based on thetraditional test for establishing probable cause in support of a criminal search warrant.\u00a0 The \”administrative plan test\” is primarily based on the Court’s earlier,pre-Act decision in Camara v. Municipal Court, as the quotation to that decisionin Barlow’s makes clear. See 436 U.S. at 320-21.In his order denying Trinity’s motion to suppress the evidence,Judge Burroughs held that \”[t]he filing of a complaint by an employee does notpreclude the Secretary from seeking a full-scope inspection under section 8(a) of theAct.\”\u00a0 For the reasons we have stated above, we affirm that holding.D. Whether the Warrant ‘s Records Review Provision WasOverly BroadIn addition to challenging the conditional full-scopeinspection provision of the February 25, 1988 warrant, Trinity also contends that thewarrant’s provision authorizing a review of its safety and health records was overlybroad.\u00a0 That provision has been consistently construed as permitting OSHA to inspectonly those safety and health records that Trinity was required to keep and make availablefor inspection under the Act and OSHA regulations implementing the Act. See supranote 6.Trinity nevertheless takes issue with this provision because itauthorized OSHA to inspect all of its \”required records,\” regardless of whetherthe records bore any relation to the conditions alleged in the section 8(f)(1) complaint.Trinity contends that, because the inspection was triggered by OSHA’s receipt of theemployee complaint. the warrant should have authorized OSHA to review only those recordsthat were \”directly related to the complained-of conditions.\”\u00a0 To theextent the warrant authorized review of \”documents beyond those that related directlyto the complaint,\” Trinity claims that the warrant was \”overbroad\” and thatthis defect in itself is sufficient grounds for the Commission to hold that the warrantwas invalid.We disagree.\u00a0 Once again, we find that the cases cited byTrinity are distinguishable because they did not involve inspections pursuant to anadministrative plan.\u00a0 Here, the Secretary sought and obtained a conditionalfull-scope inspection warrant pursuant to the terms of an administrative plan. The recordsreview authorized under that warrant was for the purpose of implementing the Secretary’splan. These facts clearly distinguish the cases now on review from the cases cited byTrinity in support of its position.Magistrate Steinberg found that Trinity’s LWDI rate could notbe calculated without the data contained in its injury and illness records.\u00a0 Thus,\”[i]f the Secretary were denied access to Trinity’s injury and illness records, shecould not implement CPI 2.45A.\” In effect, he continued, OSHA would thereby beprecluded from seeking an inspection warrant under the Barlow’s administrativeplan test, contrary to the Court’s statement that this was one of the means by which theSecretary could seek and obtain a warrant.\u00a0 Accordingly, the magistrate concluded,\”[b]ecause the data in the injury and illness records is necessary to determinewhether to conduct an expanded inspection under CPL 2.45A . . . the Secretary isauthorized to review those records . . . .\”We adopt this same reasoning and therefore reject Trinity’scontention that the warrant’s records review provision was overly broad.\u00a0 We concludethat the warrant issued on February 25,1988, was valid and that Trinity’s Fourth Amendmentrights were not violated by the May 1989 inspection because the inspection was conductedpursuant to that valid warrant. [[13]]IV. OrderFor the reasons stated in this decision, we affirm JudgeBurroughs Order Denying Motion to Suppress Evidence.\u00a0 Because no other issues arebefore us, the judge’s decision and order in these consolidated cases, docketed with theCommission on December 12, 1990, are also affirmed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 18, 1992SECRETARY 0F LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent.OSHRC Docket Nos.89-2168 and 89-2169(Consolidated)APPEARANCES:Janice Thompson, Esquire, Office of the Solicitor, U. S.Department of Labor, Cleveland, Ohio, on behalf of complainant.Robert E. Rader, Jr., Esquire, Locke, Purnell, Rain andHarrell, Dallas, Texas, on behalf of respondent.Mr. Harry W. Sorgs, President, Local 7629, United Steelworkersof America, Cincinnati, Ohio, on behalf of authorized employee representative.DECISION AND ORDERBurroughs, Judge: Trinity Industries, Inc.(\”Trinity\”), contests serious and \”other\” citations issued to it onJune 28, 1989, for alleged health violations (Docket No. 89-2168) and serious, willful,and \”other\” citations issued to it on June 29, 1989, for alleged safetyviolations (Docket No. 89-2169). The citations resulted from an inspection of Trinity’sfacilities located at 11861 Mosteller Road, Sharonville, Ohio.The Mosteller Road facility includes plant one and plant two.\u00a0 Plant two manufactures tank heads and plant one makes shells and does the finalassembly of the pressure vessels (Tr. 205, 259). There are approximately 300 employees atthe Mosteller Road facility (Tr. 66).BACKGROUNDOn February 23, 1988, an employee at Trinity’s plant filed a complaint with theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 The next day anOSHA compliance officer attempted to inspect the plant, but Trinity refused permission toenter the facility.\u00a0 On February 25, 1988, OSHA applied for a warrant to theMagistrate for the Southern District of Ohio.\u00a0 The warrant was issued on the samedate.\u00a0 Trinity filed a motion to quash.\u00a0 The motion was denied; and, after somefurther legal maneuvering, a limited inspection was conducted.While the parties were litigating that warrant, the union fileda second complaint alleging 43 different items.\u00a0 The Secretary obtained a secondwarrant on April 7, 1989, to investigate the second complaint. On April 10, 1989, OSHACompliance Officer James Sweeney, accompanied by Safety Specialists John Collier and MikeBoatman, went to Trinity’s plant with the warrant. They were met by Robert Essex,Trinity’s manager for industrial relations.\u00a0 Essex denied them access to the plant,stating that his supervisors wished to review the warrant (Tr. 17-18).\u00a0 Sweeneyreturned on May 11, 1989, accompanied by OSHA personnel Dennis Collins and Mike Boatman.The OSHA representatives met with Essex and with Trinity’s production manager, Mark Lang,and plant manager, Geoff Langford.\u00a0 They were permitted to enter the premises inorder to conduct an inspection (Tr. 19, 123).The purpose of the inspection was twofold.\u00a0 The complianceofficers were to conduct a complaint inspection pursuant to the April 7, 1989, warrant; aswell as a comprehensive inspection, pursuant to the February 25, 1988 warrant if the lostwork day injury rate exceeded the national average (Tr. 21, 123-124).\u00a0 ComplianceOfficer Collins calculated the LWDI and it was 13.6, which exceeded the national averageof 4.2 (Tr. 124).\u00a0 Therefore, a comprehensive inspection was conducted by thecompliance officers (Tr. 24).\u00a0 The inspection was completed on May 19, 1989 (Tr. 28).Prior to the hearing, Trinity filed a statement on February 16,1990, explaining that it would not be appearing at the hearing scheduled for February 21,1990.\u00a0 Trinity’s statement provides in pertinent part:1. The inspection in this case was conducted pursuant to aninspection warrant dated February 25, 1988.\u00a0 The inspection was triggered by acomplaint of three alleged hazards in the \”production area\” of Plant No. 1.\u00a0 The warrant, however, was not limited to the complaint items, but authorized areview of all accident and illness records and an expanded inspection of Trinity’s entirethree-plant facility.2. All the citations in this consolidated case stem from theexpanded inspection.\u00a0 Trinity therefore filed a motion to suppress the evidence fromthe expanded inspection and to dismiss the citations . . .3. By order dated January 29, 1990, the Administrative LawJudge denied Trinity’s motion to suppress. . .4. Trinity’s motion to suppress involves a controlling questionof law that is obviously dispositive of the entire case.\u00a0 Trinity is precluded fromseeking an interlocutory appeal of the Administrative Law Judge’s order denying the motionto suppress, however, because the Review Commission has no Commissioners and is unable toact on a petition for interlocutory appeal.* * *7. To that end, Trinity hereby states that it will not appearor present evidence at the trial presently scheduled for February 21, 1990, in Cincinnati,Ohio.\u00a0 By not appearing for the trial Trinity does not admit that the citations inthis case are correct.\u00a0 To the contrary, Trinity denies that such citations are valid. . . Trinity’s motive in not appearing for trial is solely to avoid the unfair expense ofprotracted trial in the process of obtaining judicial review of the validity of thewarrant. (Emphasis in original.)The Secretary desired to present the merits of her case on theissues.\u00a0 On February 16, 1990, the undersigned issued an order stating:That the hearing will be held as presently scheduled onFebruary 21, 1990.\u00a0 Evidence will be received into the record from the Secretary onall issues in dispute.\u00a0 If Trinity does not appear, the record will be closed afterthe Secretary’s evidence is received.\u00a0 Based on the evidence of record, a decisionwill be rendered subsequent to the hearing on all issues in dispute.Counsel for Trinity is to advise any employees of Trinity subpoenaed by the Secretary thatthe hearing will commence as scheduled and that they are expected to appear at thehearing.No one appeared on behalf of Trinity at the hearing.\u00a0 Thesecretary presented her evidence in support of the allegations.While it did not appear at the hearing, Trinity filed a briefstating that it was its position \”that all the citations should be vacated becausethe inspection…was unconstitutional.\”\u00a0 It argues that Review Commissionprecedent requires the evidence be suppressed and the citations dismissed, citing, SarasotaConcrete Co. 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5264,1981), aff’d, 693 F.2d 1061 (11th Cir. 1982). An order was issued on January 29, 1990,denying Trinity’s Notion to Suppress Evidence.\u00a0 The order explains the reasons themotion to suppress was denied.\u00a0 No further comment on Trinity’s brief is necessary.DOCKET NO. 89-2168James Sweeney is an industrial hygienist with OSHA’s CincinnatiArea Office.\u00a0 He has been with OSHA since 1977 and has served as the coordinator forenforcement of the hazard communication standard since 1985 (Tr. 10-13).\u00a0 Sweeneytestified regarding the alleged health violations cited in Docket Number 89-2168.CITATION ONE (SERIOUS)Item OneConfined SpacesItem one deals with confined spaces and contains threesubparts: 1a, 1b, and 1c. Sweeney testified that a confined space has threecharacteristics.\u00a0 First, a confined space is not designed or intended for prolongedor continuous human occupancy.\u00a0 Second, an oxygen deficiency or excess level of aircontaminant can develop in a confined space, because there is no effective naturalventilation.\u00a0 Third, a confined space usually has a limited or restricted means ofentry and egress (Tr. 30-31).\u00a0 In general, a confined space includes any area where aworker’s entry and exit are limited and where normal air is in short supply.\u00a0 Sweeneytestified that, if a tank is more than four feet high, it can be a confined space even ifit has an open top (Tr . 32).The work inside the tanks at Trinity is considered to be workin a confined space.\u00a0 The tanks exhibit the following characteristics common toconfined spaces: (1) a space never designed or intended for prolonged or continuous humanoccupancy; (2) a space in which an oxygen deficiency or excessive level of air contaminantcan develop, because there is no effective natural ventilation of the space; (3) a spacein which there is limited or restricted means of entry and egress (Tr. 30-31). \u00a0Standard areas that are normally considered to be confined spaces would include tanks,process vessels, tank cars, bins, silos, pits, vaults, sewer lines, some undergroundstorage space (Ex. C-5; Tr. 31).\u00a0 The American National Standard Institute (ANSI)standard 2117.1-1977 recognizes work in confined spaces can become unsafe as a result ofoxygen deficiency and because the occupants may be isolated from help in case of need (Ex.C-5).\u00a0 The committee that wrote the ANSI standard for confined space was spearheadedby a member of the American Petroleum Institute and a member Mobile Oil Corporation, whichare the kinds of industries in which Trinity’s tanks are used (Tr. 39).\u00a0 In December1979, NIOSH published a criteria document reviewing in detail potential hazards associatedwith employees working in confined spaces (Tr. 39-40). \u00a0 Trinity created its ownwritten tank entry program in April 1989 (Tr. 42). \u00a0 Clearly, the hazards associatedwith work in confined spaces are recognized by the pressure vessel and tank industry andby Trinity in its own written tank entry program.Item 1aAlleged Violation of 5(&)(1)The Secretary charges that Trinity violated 5(a)(1) in thatemployees were exposed to potentially toxic and\/or oxygen-deficient atmosphere duringwelding operations inside tanks and that Trinity’s confined space entry program wasdeficient in several areas.\u00a0 Section 5(a)(1) states:Each employer–(1) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees;In Pelron Corp., 87 OSAHRC 28\/A3, 12 BNA OSHC 1833,1986-87 (7CH OSHD P 27,605 (No. 82-388, 1986), the Commission set forth the followingcriteria for determining a 5(a)(1) violation:To prove that an employer violated section 5(a)(1), the Act’sgeneral duty clause, the Secretary must prove that the cited employer failed to free theworkplace of a hazard that was recognized by the cited employer or its industry, that wascausing or likely to cause death or serious physical harm, and that could have beenmaterially reduced or eliminated by a feasible and useful means of abatement.Randy Glacken has worked as a mechanic at the Mosteller Roadfacility for the past ten years (Tr. 286-287).\u00a0 During a two-week period in lateMarch and early April 1989, he and Dave Shause performed heliarc and pulse arc welding inan open-ended vertical tank that was approximately 15 feet high and 12 feet in diameter(Tr. 289-291).\u00a0 Ventilation was provided by a 20-inch box fan at the bottom of thetank (Tr. 293).\u00a0 The bottom of the tank was smokey and the argon used in welding hadnowhere to go (Tr. 294).\u00a0 There was no ladder in the tank and the employees were notattached to a safety harness or any other safety line (Tr. 290, 292).\u00a0 Glacken andShause were not wearing respirators (Tr. 291).\u00a0 They did not receive writtenauthorization to enter the tank, and no atmospheric testing was done prior to theirentering it.\u00a0 No lookout provided for them (Tr. 293-294).Glacken felt dizzy one time while working in the vertical tank(Tr. 293).\u00a0 In the past, he has become nauseated while working in a horizontal tankand has had to leave the tank to get, some fresh air (Tr. 298-299).\u00a0 He has beeninjured once while working in a horizontal tank, bruising his knee and cutting hisforehead (which required six stitches).\u00a0 He had to be removed from the tank on astretcher (Tr. 293).Between April 10 and April 30, 1989, Trinity developed awritten tank entry program.\u00a0 The program was written by production manager Mark Lang(Tr. 42).\u00a0 The program did not provide for a confined space entry permit, monitoringof air inside tanks, effective ventilation, or effective rescue procedures, all of whichrendered the program deficient (Tr. 45-51).On May 17, 1989, Sweeney observed Glacken welding inside a tankwhich was lying on its side (Exs. C-1, C-2; Tr. 33).\u00a0 A household fan was used todraw air out of the tank.\u00a0 Air entered the tank through a large central hole belowthe fan, traveled a very short distance up to the slightly smaller hole that had the fanin front of it, and was exhausted by the fan.\u00a0 Sweeney described this configurationas a \”short circuiting situation.\”\u00a0 Effective ventilation was not createdfor any portion of the tank except for the extreme front end, because air is entering andexiting the two holes in proximity to each other at the front of the tank (Tr. 34). \u00a0Without effective ventilation, an oxygen deficiency problem can be exacerbated duringwelding; because the argon and carbon dioxide, used as a shielding gas, are heavier thanair (Tr. 48).Abatement can be easily achieved by Trinity.\u00a0 Samples ofconfined space entry permits or written authorizations are published in the NIOSH standardand in the proposed OSHA confined space standard (Tr. 52).\u00a0 A supervisor who isknowledgeable about the potential hazards can inspect the tank or vessel prior to entry(Tr. 52).\u00a0 There are numerous oxygen meters available on the market (Tr. 52). \u00a0There are forced-air blowers that could be used to force clean air into the opposite endof a tank and also atmosphere complying respirators (Tr. 53).\u00a0 There were numeroushoists at plant one in which to attach a safety harness for proper emergency rescue (Tr.53-54). Constant visual contact through a standby employee or audible contact through awalkie-talkie system could be maintained to immediately implement rescue procedures ifnecessary (Tr. 56).\u00a0 The ANSI standard Z117-1-1977 (Ex. C-5) and the NIOSH criteriadocument of 1977 set forth the elements of a good confined space entry program (Tr.57).\u00a0 The Cincinnati OSHA office also distributes a one-page summary of the minimumrequirements for work in a confined space (Ex. C-4).The Secretary has established that working in a confined spaceis a hazard recognized in Trinity’s industry, and that Trinity failed to take adequatesteps to free its workplace of that hazard.\u00a0 There were feasible methods of abatementwhich would have eliminated the hazard.\u00a0 The likely result of employees working inoxygen-deficient atmospheres is serious physical harm or death. Trinity was in violationof ? 5(a)(1).Item 1bAlleged Violation of 29 C.F.R. ? 1910.252(e)(4)(iv)The Secretary alleges that Trinity had no standby person with apreplanned rescue procedure stationed outside a confined space whenever a welder enters sothat he could immediately commence a rescue if such action became necessary.\u00a0 Section1910.252(e)(4)(iv) of 29 C.F.R. provides:Lifelines.\u00a0 Where a welder must enter a confinedspace through a manhole or other small opening, means shall be provided for quicklyremoving him in case of emergency.\u00a0 When safety belts and lifelines are used for thispurpose they shall be so attached to the welder’s body that his body cannot be jammed in asmall exit opening.\u00a0 An attendant with a preplanned rescue procedure shall bestationed outside to observe the welder at all times and be capable of putting rescueoperations into effect.Whenever a welder enters a confined space, the standardrequires a standby person with a preplanned rescue procedure to be stationed outside aconfined space so that he can immediately start a rescue if there is a need to initiateone.\u00a0 The facts support the allegation.During late March to early April 1989, Glacken and Dave Shause performed heliarc and pulsearc welding in a 15-feet high tank that was sitting in a vertical position (Tr. 289, 291).\u00a0 Glacken’s supervisor was aware that work was being performed inside the tank.\u00a0 No standby person was assigned to observe them while they were welding (Tr. 60,288, 294).\u00a0 On a previous occasion, Glacken had been injured while working inside atank and had to be carried out on a stretcher (Tr. 292).\u00a0 Trinity’s written tankentry program did not require that anyone observe the welder.\u00a0 It called for periodictapping on the tank (Tr. 61).\u00a0 The violation has been established.Argon and carbon dioxide are gases that are heavier than airand tend to fall to the bottom of the tank (Tr. 48).\u00a0 If the ventilation is noteffective, an oxygen-deficiency problem can develop (Tr. 48, 59).\u00a0 This oxygendeficiency could lead to death if the ventilation were ineffective enough (Tr. 59). Insuch situations, the lack of a standby person becomes a matter of life or death. \u00a0Trinity was in violation of ? 1910.252(e)(4)(iv).Item 1c Alleged Violation of 29 C.F.R. ? 1910.252(f)(4)(i)The Secretary alleges Trinity violated ? 1910.252(f)(4)(i) byhaving inadequate ventilation inside a tank.\u00a0 Section 1910.252(f)(4)(i) provides:All welding and cutting operations carried on i n confinedspaces shall be adequately ventilated to prevent the accumulation of toxic materials orpossible oxygen deficiency.\u00a0 This applies not only to the welder but also to helpersand other personnel in the immediate vicinity.\u00a0 All air replacing that withdrawnshall be clean and respirable.The standard requires adequate ventilation be provided to makecertain that there is no accumulation of toxic materials and that an oxygen deficiencydoes not develop.Sweeney observed Glacken welding inside a tank that was 27 feetlong and approximately 9 feet in interior diameter.\u00a0 The ventilation system was aspreviously described: two holes in proximity and located at the front of the tank with asingle box fan drawing the air out.\u00a0 Glacken stated that this \”short-circuitingsystem\” was the standard ventilation scheme for horizontal tanks (Exs. C-1, C-2; Tr.62). The position of the fan remains stationary even though Glacken welded in the front,middle, and back of the tank (Tr. 300).\u00a0 Such an arrangement does not provideadequate ventilation, because air is entering and exiting at two holes that are in veryclose proximity to each other on the front end of the tank (Tr. 34, 298).\u00a0 Glackenhas on occasions experienced dizziness and nausea while welding inside tanks (Tr. 298).The tank entry program of April 1989 was written in generallanguage such as, \”ventilation shall be provided\” (Tr. 64). It did not specifyhow to provide effective ventilation (Tr. 64).\u00a0 Sweeney stated that there areforced-air blowers that could be used to force clean air into the opposite end of a tankin which they were drawing out and exhausting contaminated air (Tr. 53).\u00a0 Ininstances where mechanical ventilation might not be adequate, another alternative would beto provide an atmosphere complying respirator to an employee working inside the tank (Tr.53).\u00a0 Trinity was in violation of ? 1910.252(e)(4)(iv).THE VIOLATIONS WERE SERIOUSItems 1a, 1b, and 1c were grouped, because they involvedsimilar or related hazards.\u00a0 The violations were alleged to be serious within themeaning of section 17(k) of the Act.\u00a0 The evidence supports the allegation.\”To establish that a violation is ‘serious’ it must beshown that there is a substantial probability that death or serious physical harm couldresult from the violative condition and that the employer knew or with the exercise ofreasonable diligence could have known of the presence of the violation.\” WisconsinElectric Power Co., 76 OSAHRC 134\/B2, 4 BNA OSHC 1783, 1976-77 CCH OSHD ? 21,234, atp. 25,132 (No. 5209, 1976), aff’d, 567 F.2d 735 (7th Cir. 1977).\u00a0 TheSecretary does not have to establish the likelihood of an accident before a violation canbe classified as serious. She \”need only show that an accident is possible and thatsuch an accident will most likely result in serious injury.\”\u00a0 Communications,Inc., 79 OSAHRC 61\/A2, 7 BNA OSHC 1599, 1979 CCH OSHD ? 23,759, at p. 28,813 (No.76-1924, 1979), aff’d in an unpublished opinion, No. 79-2148 (D.C. Cir.1981).\u00a0 The facts meet the criteria established for a serious violation.\u00a0 Theconditions resulting in the three violations exposed employees to dizziness, nausea, andthe potential for an oxygen-deficient atmosphere, which could result in death.\u00a0 Allthree violations have been established to be serious violations.Item 2Alleged Violation of 29 C.F.R. ? 1910.20(g)(1)The Secretary alleges that Trinity was in violation of ?1910.20(g)(1), which provides:Upon an employee’s first entering into employment, and at leastannually thereafter, each employer shall inform employees covered by this section of thefollowing:(i) The existence, location, and availability of any recordscovered by this section;(ii) The person responsible for maintaining and providingaccess to records; and(iii) Each employee’s rights of access to these records.This standard requires initial and annual training ofemployees, who are exposed to toxic substances or harmful physical agents.\u00a0 Employeesare to be informed of the existence, location, and availability of any records, theidentity of the person responsible for maintaining and providing access to these records,and each employee’s right to gain access to these records.Trinity’s employees had been previously monitored for highnoise levels and nickel exposures above the NIOSH recommended exposure limit of 15micrograms per cubic meter (Tr. 73). Sweeney interviewed 20 employees, as well asmanagement officials, during his inspection regarding this standard.\u00a0 None of themhad been informed of the information as required by ? 1910.20(g)(1) (Tr. 68).Glacken testified that he had been given hearing tests and airsampling; but he was never told the results, the name of the person responsible forkeeping the records, where the information is kept, or that he had a right to access tothat information (Tr. 299, 301).\u00a0 Leotis Whitaker, a flange operator, had worked inthe Mosteller Road facility for 20 years.[[1]] For 15 of those years, Whitaker had beengiven audiograms.\u00a0 He had never been furnished the results of the tests, the name ofthe person in charge of the records, the location of the records, or the fact that he hada right to access to the records (Tr. 241-242).\u00a0 Andy Irick, a mechanic in plant one,and Harry Sorgs, an inspector in plant two, were given audiograms but had been furnishedno information regarding their test results (Tr. 278-279, 504).Nine days after OSHA attempted to conduct an inspection of the43 Complaint items, a Copy of ? 1910.20 and a memo addressing the standard was posted onthe premises near the section of the plant near the office of Robert Essex (Tr. 69).\u00a0 Sweeney was not permitted to make a photocopy of this memo, but he did read andmake notes from the memo.\u00a0 The memo discussed the employees right to access but didnot specify who was responsible for providing access to these records, where they weremaintained or how they should go about getting access (Tr 68).\u00a0 Essex’s office islocated near the front of the plant with the other administrative offices.\u00a0 Employeesgenerally do not go into the area where the posting was made by Trinity (Tr. 69).Noise – induced hearing loss is a likely consequence fromexposure to high noise levels.\u00a0 Nickel is listed as a carcinogen capable of causingdamage to the lungs with symptoms appearing 5 to 20 years after exposure (Tr. 73). \u00a0Employees who are unaware of the requirements of the standard are prevented from knowingthe concentration levels and exposure levels they may have experienced in the past and arecontinuing to experience (Tr. 72).\u00a0 They are less able to recognize the onset ofwork-related illness when it does begin to occur (Tr. 72).Exposure to high levels of noise can lead to hearing loss.\u00a0 Nickel is a carcinogenicsubstance that has been linked to sinus cancer and lung cancer (Tr. 72-73).\u00a0 TheSecretary has established that Trinity was in serious violation of ? 1910.20(g)(1).Item 3Alleged Violation of 29 C.F.R. ? 1910.106(e)(2)(ii) The Secretary asserts that Trinity was in violation of ?1910.106(e)(2)(ii), because Stoddard Solvent was not stored in tanks or closed containers.\u00a0 Section 1910.106(e)(2)(ii) provides:Flammable or combustible liquids shall be stored in tanks orclosed containers.The language of the standard is clear in its wording andintent.Sorgs testified that, prior to OSHA’s April 10, 1989, attemptto inspect Trinity’s facility, Trinity stored Stoddard Solvent in unlabeled five-gallonplastic containers with no lids (Tr. 505).\u00a0 Buckets of the solvent were storedthroughout the plant for a week at a time.\u00a0 The solvent was thrown out when it becametoo dirty to use (Tr. 506).\u00a0 After OSHA’s initial attempt to inspect the plant onApril 10, Trinity brought in Neil Foreman, a corporate safety man, to go through the plantwith a copy of the complaint and make corrections.\u00a0 One of the complaint items wasthe storage of the Stoddard Solvent.\u00a0 After Foreman’s visit, the solvent was In 21\/2-gallon buckets with flip-top lids operated by pedals (Tr. 482, 506).Stoddard Solvent vapors can escape from an open-top Container(Tr. 75).\u00a0 The vapors are heavier than air and will Concentrate down near the floorlevel (Tr. 75).\u00a0 Sparks from welding and grinding operations could ignite the vaporsand cause a fire (Tr. 75). There is also a furnace in one portion of plant two that heatsmetal up to approximately 2000 F. An open-top container of solvent was storedapproximately ten yards away (Tr. 76).\u00a0 Unless a closed container is used, thereexists the possibility that a container could be accidentally knocked over and allow theliquid to encounter an ignition source and start a serious fire (Tr. 76).\u00a0 This couldresult in serious burns.\u00a0\u00a0 A serious violation of the standard has beenestablished.Item 4Alleged violation of 29 C.F.R. ? 1910.134(d)(2)(ii)The Secretary alleges that breathing air was supplied toemployees wearing hot suits from an oil-lubricated compressor without the safeguardsrequired by ? 1910.134(d)(2)(ii).[[2]]\u00a0 In such circumstances, the standard requiresthe employer to provide a high-temperature or carbon monoxide alarm, or both and frequenttesting for carbon monoxide if only a high-temperature alarm is used.Ronald Noel is a class \”A\” flange operator whooperates flange number ten (Tr. 250, 252).\u00a0 When the metal head is running hot, itcould reach temperatures between 1,600 and 2,000 F. Noel would wear a \”hotsuit,\” which consisted of a hood, jacket, pair of gloves, pants, and shoe covers.\u00a0 The purpose of the hot suit was to protect the employee from the intense heatcoming off the head. During the first four months of 1989, air to the hot suit wassupplied from a compressor.\u00a0 No alarm system for either carbon monoxide or hightemperature was used.\u00a0 No monitoring of carbon monoxide was done while the flange wasoperating.\u00a0 A supervisor would generally be present to watch the operator (Ex. C-7;Tr. 253-257).The compressor that supplied the breathing air was aWorthington Model 25D compressor.\u00a0 The compressor was lubricated with regular 20weight oil (Tr. 81-82).\u00a0 There was no carbon monoxide monitor or alarm on the hotsuit (Tr. 84).\u00a0 Management personnel conceded that there had never been any testingor sampling of air delivered to the hot suit to check for carbon monoxide concentrations.\u00a0 Trinity was aware of the standard’s requirements.\u00a0 Page ten of its respiratorprogram states, \”when using shop air compressor to supply air to air line face masksor hoods, the air must be checked or monitored for carbon monoxide\” (Ex. C-3; Tr.84).A hot spot can develop inside an oil-lubricated compressor.\u00a0 If that occurs, thermal decomposition of the oil will produce carbon monoxide.\u00a0 High levels of carbon monoxide can be produced and then delivered through the hoseto the employee wearing the hot suit.\u00a0 There is the potential for seriousoverexposure to carbon monoxide or even death if a high dose of carbon monoxide weredelivered to the employee (Tr. 82).\u00a0 A serious violation under 17(k) of the Act hasbeen established.Item 5aAlleged Violation of 29 C.F.R. ? 1910.1200(f)(5)(i)The Secretary alleges that Trinity was in violation of ?1910.1200(f)(5)(i),[[3]] because Stoddard Solvent was stored in plastic buckets with noidentity label affixed.Prior to April 10, 1989, Trinity stored Stoddard Solvent inopen-topped five-gallon buckets throughout plant two (Tr. 482, 506). Sorgs and LeamanCalhoun, a flange machine operator in plant two, both testified that the buckets ofsolvent were unlabeled. They also stated that nitric acid was stored in identicalunlabeled open-topped five-gallon buckets. Employees used the solvent to clean the surfaceof the heads and to clean the grease off their hands (Tr. 235-236, 505, 507-508). Thesolvent and nitric acid in the buckets looked the same (Tr. 507).The primary concern of ? 1910.1200(f)(5)(i) is to make surethat no confusion develops among employees concerning which chemicals are present in whichcontainer (Tr. 90). In this situation of nitric acid and Stoddard Solvent being stored inidentical unlabeled buckets, injuries that could result are serious burns from either anacid or a combustible liquid (Tr. 91).Sweeney observed a red \”Justrite Self Closing RinseTank\” that contained approximately 2 1\/2 gallons of Stoddard Solvent. It wasunlabeled (Ex. C-8; Tr. 93-94). The material safety data sheet (\”MSDS\”) forStoddard Solvent states that the flash point is 100 F., one degree from the flammablecategory (Ex. C-3; Tr. 94). An employee could reasonably assume that the solvent waswater-based or a noncombustible cleaning solution and fail to take precautions against itsflammability. The rinse tank was located near an area where welding and grinding tookplace. The hazard is third-degree burns (Tr. 93-95).Trinity was in serious violation of ? 1910.1200(f)(5)(i). Item 5bAlleged Violation of 29 C.F.R. ? 1910.1200(f)(5)(ii)The Secretary alleges that the conditions set forth in item 5awere also in violation of ? 1910.1200(f)(5)(ii), which states:[T]he employer shall ensure that each container of hazardouschemicals in the workplace is labeled, tagged or marked with the following information:(ii) Appropriate hazard warnings.Sorgs and Calhoun testified that there were no warning labelson the open-topped buckets containing solvent or nitric acid (Tr. 236, 508). Sweeneyobserved no hazard information label of any kind attached to the tank containing StoddardSolvent–a combustible liquid (Ex. C-8; Tr. 96, 98). It is an irritant to the eyes andinhalation of high concentrations of the vapor can cause central nervous system depressioneffects and damage to the kidneys (Tr. 97).Trinity was in serious violation of ? 1910.1200(f)(5)(ii).Items 6a and 6b:Alleged Violations of29 C.F.R. ?? 1910.1200(h) and 1910.1200(h)(2)(ii)Two, alleged violations of the hazardous communication standardhave been grouped as subparts (a) and (b), because they involve similar or relatedhazards.Subpart (a) The Secretary alleges that Trinity violated ? 1910.1200(h) dueto the fact hazard communication training was not provided to employees at the time oftheir initial assignment. It is alleged that some, employees were not trained until 18months after exposure. Section 1910.1200 (h) requires the employer to provide informationand training as specified in 29 C.F.R. ? 1910.1200(h)(1) and (2) on hazardous chemicalsin their work area at the time of their initial assignment and whenever a new hazard isintroduced into their work area. Sweeney determined that four employees had received no hazardcommunication information and training until more than one year after they were firsthired and assigned to work as welders. Twenty-two other employees received no hazardcommunication training until more than six months after they were hired (Tr. 100). At thetime of the inspection, Trinity was not providing hazard communication training to nowemployees (Tr. 101). Trinity initiated the showing of videotapes on the hazardouscommunication standard after the inspection.Many of the employees perform welding or grinding or both,which exposes then to metal fumes and metal dust (Tr. 101, 280). Sweeney made a list of 35employee’s names job titles, dates hired and dates trained, showing that they did notreceive training at the time of their initial assignment (Ex. C-3: Tr. 101). Chemicalsthat the employees were exposed to included Stoddard Solvent, copper fume, manganese fume,nickel, chromium, nitric acid, and silica sand (Tr. 104). The violation has beenestablished.Subpart (b)The Secretary alleges that Trinity violated ? 1910.1200(h)(2)(ii) [[5]] by failing toinclude in its hazardous communication training the physical and health hazards of the Ichemicals in the work area The cited standard requires that such training includes thephysical and health hazards of the Sweeney interviewed more than 20 employees and attachedair sampling equipment to many of them. He learned that they had received no trainingabout the specific potential health hazards, potential physical hazards, or the signs andsymptoms of exposure that were related to chemicals such as Stoddard Solvent, nitric acid,and welding fumes from metals including copper, manganese, nickel. chromium (Tr. 104).Trinity’s written hazard communication program recognized requirements for trainingemployees about physical and health hazards of chemicals to which they are exposed in thecourse of their employment (Ex. C-3, pp. 39, 41; Tr. 105). Despite this awareness,employees were not trained as required by the standard (Tr. 302, 509). The violation hasbeen established. Employees untrained as required by the cited standards will not be aware of the potentialhealth and physical hazards, signs and symptoms of exposure, precautions to be taken, andable to recognize the onset of symptoms which are, in fact, job related (Tr. 106-107).Employees at Trinity were exposed to silica dust which can cause a debilitating lungdisease called \”silicosis.\” Nitric acid exposure can cause permanent tissuedamage. Employees were exposed to nickel, chromium, and methylene chloride which arecarcinogens. Sweeney recorded high employee exposures to copper fumes and manganese, whichpresent a number of different health hazards (Tr. 107- 110).Items 6a and 6b were grouped for purposes of classification andpenalty. The violations were serious. \”OTHER\” CITATIONItem 1Alleged violation of 29 C.F.R. ? 1910.151(c) The Secretary alleges Trinity was in violation of ?1910.1511(c) for failure to have suitable facilities for quick drenching or flushing ofthe eyes and body. This standard provides:Where the eyes or body of any person may be exposed toinjurious corrosive materials, suitable facilities for quick drenching or flushing of theeyes and body shall be provided within the work area for immediate emergency use.Sweeney, through interviews with management, the union and employees, determined that theeye wash fountains in both the packing room of plant two and the electroplating area ofplant one were shut off in January 1988, because there was a concern that an organicsolvent might be contaminating the water (Tr. 112). Beginning in February 1988, and upuntil May 1, 1989, there were temporary eye wash stations installed, but they were onlycapable of providing an eye flush for only two minutes (Tr. 111-112, 510-512).Trinity was aware the temporary eye wash stations wereinadequate. The material safety data sheet for nitric acid maintained by Trinity statesthat, if nitric acid does got into the eyes, an absolute minimum of 30 minutes of flushshould be provided to the eyes (Ex. C-2; Tr. 112). Nitric acid was used in both theelectropolishing area and in the pickling area (Tr. 113). The violation has beenestablished.The violation was classified as other than serious since Trinity did have an eye washfountain which could provide some flushing for a couple of minutes. Having at least twominutes of flushing might prevent permanent, irreversible damage to the eyes; but theremight be a reversible and temporary but painful irritation to the eyes (Tr. 113).Item 2Alleged Violation of 29 C.F.R. ? 1910.1200(g)(1) The Secretary asserts that Trinity was in violation of ? 1910.1200(g)(1) for failure tohave a material safety data sheet for insulation from Owens-Corning FiberglassCorporation. Section 1910.1200(g)(1) provides:Chemical manufacturers and importers shall obtain or develop a material safety data sheetfor each hazardous chemical they produce or import. Employers shall have a material safetydata sheet for each hazardous chemical which they use.An employee was exposed to irritating fumes when he performed welding on metal which wasin contact with #703 insulation manufactured by Owens- Corning Fiberglass Corporation.When Sweeney asked Robert Essex, the personnel manager, for the MSDS for this product,Essex stated that Trinity did not have one. Owens-Corning faxed the MSDS to Trinity on May17, 1989 (Ex. C-3; Tr. 115). The violation has been established.The violation was classified as other than serious, because theheat from welding causes some materials such as hydrogen chloride and carbon monoxide tobe released, resulting in irritation to the employee but no serious adverse effect (Tr.116).DOCKET NO. 89-2169Dennis Collins has been a safety compliance officer with OSHAsince 1972 (Tr. 119). He conducted inspections of Trinity in 1988 and 1989 (Tr. 122). Whenhe arrived at Trinity on May 11, 1989, he calculated Trinity’s LWDI to be 13.6. Thenational average is 4.2 (Tr. 124).SERIOUS CITATIONItem 1Alleged Violation of 29 C.F.R. ? 1910.22(c)The Secretary contends Trinity was in violation of ? 1910.22(c), because the guardrailaround a machine pit was missing a midrail on one section. The standard provides:Covers and\/or guardrails shall be provided to protect personnel from the hazards of openpits, tanks, vats, ditches, etc.There is a pit beneath the rear of flanger nine in plant two.At the time of the inspection, there was a guardrail around it, but there was no midrailon one section (Ex. C-11; Tr. 132). The pit was in excess of six feet in depth and thearea around the pit was slick (Ex. C-10; Tr. 133-135).Leaman Calhoun operated flanger nine. He verified that therewas no midrail at the time of the inspection (Tr. 214-215). He further stated that thearea around the pit was slippery because of the grease that was pumped onto the slide atthe back of flanger nine (Tr. 216). A notice posted on the machine directed the operatorto pump grease onto the slide at least once a day. The notice was posted by maintenanceman Bob Otle, at the direction of Geoff Langford, the plant superintendent (Ex. C-9; Tr.214-215). Due to the grease pump’s location, Calhoun could only lubricate the machine bycrawling inside the guardrail (Tr. 214). When inside the railing, he was not tied off orprovided with any other form of fall. protection (Tr. 217).Employees were exposed to a fall hazard because of the lack ofa midrail around the slippery area of the pit of flanger nine (Tr. 135). The standardguardrail should have a 42-inch top rail and a midrail in between the rail and the floor(Tr. 132). Employees could suffer bone fractures if they fell Into the pit (Tr. 135).Trinity was in serious violation of ? 1910.22(c).Item 2AlIeged Violation of 29 C.F.R. ? 1910.157(g)(1)The Secretary alleges Trinity was in violation of ?1910.157(g)(1) for failure to instruct employees in the general principles of fireextinguisher use.Section 1910.157(g)(1) provides:Where the employer has provided portable fire extinguishers foremployee use in the workplace, the employer shall also provide an educational program tofamiliarize employees with the general principles of fire extinguisher use and the hazardsinvolved with incipient stage fire fighting.Fire extinguishers were available for use throughout the facility (Tr. 137-138).Production Manager Mark Lang and Manager Geoff Langford informed Collins that Trinityexpected employees to be able to fight minor fires using fire extinguishers. Lang andLangford both admitted that Trinity employees were given no training in the use of fireextinguishers (Tr. 138).Sorgs, Calhoun, and Andy Irick all testified that there hadbeen minor fires in plants one and two and that employees were expected to use fireextinguishers (Tr. 217, 267, 489). All three employees stated that they had not receivedany training in the use of fire extinguishers (Tr. 216, 267, 489).There were three types of fire extinguishers in plant two: drychemical, halon, and carbon dioxide. The lack of training in general principles of usecould result in misuse of equipment, misjudgment of a hazardous situation, misapplicationof equipment, and lack of awareness of the potential of the materials being exposed toheat. Potential injuries from this lack of training are serious burns (Tr.140-142).Trinity was in serious violation of ? 1910.157(g)(1). Item 3Alleged Violation of 29 C.F.R. ? 1910.178(a)(4) Section 1910.178(a)(4) of 29 C.F.P. provides:Modifications additions which affect capacity and safe operation shall not be performed bythe customer or user without manufacturers prior written approval. Capacity, operation,and maintenance instruction plates, tags, or decals shall be changed accordingly.Trinity was using a diesel Clark lift truck with an auxiliarycounterweight on the back end (Ex. C-13; Tr. 143). The weight was added on the back end tokeep it from raising up. Collins explained that the added counterweight created ateeter-totter effect on the truck’s capacity. According to Collins, an added counterweightcan affect the safe operation in a number of ways, including truck design, truck capacity,and the vehicle’s mast (Tr. 145-146).Felan Roaden, a forklift operator in plant two used the lifttruck to pick up the largest heads from flanger ten (Tr. 334-305. 308). Even with theadded counterweight the back wheels of the truck occasionally went off the ground (Tr.318).The truck had a posted capacity of 10,000 pounds at a 24-inchload center (Tr. 146). Collins contacted Portman Equipment, the local Clark dealer,concerning this particular vehicle and the counterweight (Tr. 147). He received verbalconfirmation and a May 25, 1989, letter, which Portman had sent to Geoff Langford, theplant manager, that it was not an approved counterweight and that the vehicle in questioncould not be upgraded without changing the steer axle (Ex. C-14, Tr. 147). Trinity wasaware that the counterweight had been added in order to increase the load capacity.Trinity’s failure to obtain prior written approval is evidenced by the May 25, 1989,letter (Ex. C-14).Injuries which could result from the violation are fractures,serious crushing injuries and death (Tr. 149). Trinity was in serious violation of ?1910.178(a)(4).Item 4Alleged Violation of 29 C.F.R. ? 1910.178(1) The Secretary alleges that Trinity violated ? 1910.178(1) by failing to properly trainoperators of powered industrial trucks. Section 1910.178(1) provides:Only trained and authorized operators shall be permitted to operate a powered industrialtruck. Methods shall be devised to train operators in the safe operation of poweredindustrial trucks.According to Collins, while truck operators did receive some training, it was inconsistentand \”badly ineffective\” (Tr. 151, 157). Training consisted of giving employees abook issued by Clark Equipment, which contains rules for operating the truck. Employeeswere then given a test that had a combination of multiple choice and true\/false questionsand had to get a grade of 70% or higher on the test (Tr. 152).None of the employees Collins interviewed knew how to calculatewhether or not the load to be lifted would be within the load capacity of the vehicle (Tr.153). Lift truck drivers Felan Roaden, Robby Smiddy, Richard Davidson, and Randall Gulley,all testified that they determined a truck’s capacity by whether the rear wheels came offthe ground when making a lift (Tr. 309, 328, 336, 343). By the time the rear wheels arelifted, the truck’s capacity is far exceeded (Tr. 154). Collins observed severalviolations of safe truck procedures, including approaching persons with a load, loadselevated into the air, and modified vehicles (Tr. 154-155). Operators were unaware of therequirement of safety platforms when lifting personnel (Tr. 156). Trinity’s trainingprocedures in practice did not conform to Trinity’s corporate safety training manual (Tr.157-158). An adequate training in lift trucks would include safety operating rules, basiclift truck principles, and specific hands-on training (Tr. 159-160).Accidents which could result from the failure to trainemployees in the safe operation of lift trucks include loss of control of the vehicle andtipping over the lift truck. Serious injuries and death could result from such accidents(Tr. 160-161). The Secretary has established that Trinity was in serious violation of ?1910.178(1).Item 5Alleged Violation of 29 C.F.R. ? 1910.178(m)(1) Section 1910.178(m)(1) provides:Trucks shall not be driven up to anyone standing in front of a bench or other fixedobject.While Collins was inspecting the weld bay of plant two, he observed Clark lift truck Y1191carrying a large flat plate up to the Pandjiris seamer. The operator of the seamer waspositioned at the machine while the lift truck operator approached (Exs. C-15, C-16; Tr.162). The operator of the was driving the truck at an angle to the unit. As he approachedthe unit, the operator cut the truck to the right which made the large steel plate swingaround. The truck and large steel plate were driven toward the operator of the seamer (Tr.163). The operator told Collins that he had never been instructed to do otherwise (Tr.164).Employees standing in front of a fixed object while a lifttruck approaches are exposed to significant impact hazard, which could result in severecrushing injuries or death (Tr. 165). Trinity was in serious violation of ?1910.178(m)(1).Item 6Alleged Violation of 29 C.F.R. ? 1910.178(o)(2)The citation describes the alleged violation of ? 1910.128(o)(2) as follows:(a) In plant #2, the diesel Clark lift truck 667 (SN.Y2030-52-3077) had a rated capacity of 20000# at 24\” load center and a maximumcounterweighted capacity of 30000# at 24\” center. The maximum lifts performed were18000 # at 120\” which exceeded the trucks present capacity and maximum capacity.The cited standard provides:Only loads within the rated capacity of the truck shall behandled.The largest lift truck in plant two was the diesel Clark truckmodified with an added counterweight, which was discussed in item three of this citation(Tr. 165-166). The largest lift that the truck would have to make was a head weighingapproximately 18,000 pounds with a load center of 120 inches (Tr. 167). Prior to May 1989,there were no markings on the heads to indicate what their weight was, but the headsvaried in size from one foot up to twenty feet Tr. 310-311). Roaden used the forklift withthe unapproved counterweight to lift the heavier heads from flanger ten (Tr. 308).In support of the allegation, the Secretary points out that onMay 25, 1989, Portman Equipment informed Geoff Langford that the counterweight presentlyon the Clark C500-Y200, S\/N:Y2030-52-3077, was unacceptable, and that an approvedadditional counterweight would give the truck a capacity of 8,000 pounds at 120-inch loadcenter (Ex. C-14). She then states that the capacity was 10,000 pounds less than theheaviest head that Roaden was expected to lift using the truck with the unacceptablecounterweight. The letter’s reference to a capacity of 8,000 pounds has reference toincreasing the rated capacity by that amount by changing the steer angle and adding 2,200pounds of counterweight. In any that modifications is of no relevance since it had notbeen accomplished.The posted capacity for the diesel Clark truck was 20,000pounds at a 24-inch lead center (Tr. 146). The added counterweight, which was notacceptable to the manufacturer (Ex. C-14), would have affected the truck’s actual liftingcapacity. Collins testified (Tr. 145-146):Then, the second problem you create by putting thatcounterweight on is if you don’t know how much that weight is, and you don’t do anycalculations as to where you’re placing that counterweight on that vehicle, then youreally don’t have any idea what your capacity is on the truck any longer.You are required to have a chart on the vehicle which gives youthe capacity of the vehicle. Once you’ve done that, the capacity chart is no longer valid.The actual lifting capacity of the Clark truck is unknown as aresult of the unacceptable modification. Roaden testified that, even when thecounterweight was added, the back wheels of the truck would on occasions rise off thefloor when lifting the larger heads (Tr. 318). This is a clear indication that the ratedcapacity of the truck was being exceeded. The violation has been established.Overloading a vehicle results in a loss of good contact withthe wheels on the back end of the truck, which steer the vehicle. This could cause thetruck to strike a person or to lose a load which could strike a person. The stability ofthe vehicle is damaged because, if the operator has to stop or manuever or hits chuckholes or any other uneven surface, he may lose control of the vehicle or the load. Thiscould result in death or serious injury if accident occurred (Tr. 172-173). Trinity was inserious violation of ? 1910.178(o)(2).Item 7Alleged Violation of 29 C.F.R. ? 1910.179(e)(4)The Secretary alleges that the 7 1\/2-ton Northern crane at thewest end of plant two was not equipped with rail sweeps on its bridge. Section1910.179(e)(4) provides:Bridge trucks shall be equipped with sweeps which extend belowthe top of the rail and project in front of the truck wheels.The 7 1\/2-ton Northern crane located in the shear bay of planttwo did not have a rail sweep extending below the top of the railing and in front of thetruck wheels (Ex. C-18; Tr. 177). The sweep is intended to prevent the crane from ridingover any material and jolting the crane and losing the load (Tr. 177). A violation hasbeen established since ? 1910.179(e)(4) requires that bridge trucks shall be equippedwith sweeps which extend below the top of the rail and project in front of the truckwheels.The lack of a sweep could cause cranes to jolt and dislodge theload. In the event the load dislodged, any person struck by the load would sustain seriousfractures, crushing injuries, and possibly death (Tr. 180-181). Trinity was in seriousviolation of 29 C.F.R. ? 1910.179(e)(4).Item 8Alleged Violation of 29 C.F.R. ? 1910.179(j)(3)Trinity is charged with a violation of ? 1910.179(j)(3)[[7]] for failure to have acomplete periodic inspection performed on the overhead cranes in plant two. Section1919.179(j)(ii)(b) provides for \”periodic inspection–1 to 12-month intervals.\”Collins reviewed the inspection records for plants one and twoand discovered that in plant two, only monthly inspections of the running rope and hookwere being performed. Langford admitted to Collins that Trinity was performing monthlyinspections of high use items and was not conducting complete annual inspections (Tr.182). The cranes were used by employees to change the chucks on the spin lathe, change therolls on flangers, line up heads, and flip heads over (Tr. 216-219, 492).A complete periodic inspection includes checking for loose or damaged parts, that boltsare tight, that contacts and controls are not pitted, and that brakes are in goodcondition. It requires a thorough examination and recheck and a functional test of theunit. (Tr. 183-184).Failure to make complete periodic checks could result inproblems with the crane not being discovered until there is a failure, exposing employeesto being struck by a part of the crane if it fell or being struck by the load if the loadfell. Results would be serious fractures, crushing injuries, and possibly death (Tr. 184).Trinity was in serious violation of ? 1910.179(j)(3).Item 9Alleged Violation of 29 C.F.R. ? 1910.179(n)(4)(i)Section 1910.179(n)(4)(i)[[8]] requires that, at the beginningof each operator’s shift, the upper limit switch of each hoist shall be tried out under noload. The Secretary alleges that Trinity was in violation of the standard, because Trinityhad no procedures established to check the upper limit switch.An upper limit switch is a shut-down device that prevents the hook from running up intothe drum of the crane. If the hook is run into the drum, the load could be displaced outof the hook. Lang and Langford admitted that they had no procedure requiring employees tocheck the switch (Tr. 187).\u00a0 Calhoun testified he had never been instructed to checkthe switch at the beginning of his shift (Tr. 219). The violation has been established.If the load fell on anyone, the results would be severefractures, crushing injuries, or death (Tr. 188). Trinity was in serious violation of ?1910.179(n)(4)(i). Item 10Alleged violation of 29 C.F.R. ? 1910.184(c)(9)Section 1910.184(c)(9)[[9]] requires that, whenever any slingis used, all employees shall be kept clear of loads about to be lifted and of suspendedloads. The Secretary alleges that Trinity was in violation of the standard during theprocess of moving and repositioning a welder in plant one, north bay.During his inspection, Collins observed and photographed acrane operator walk beneath the Lincoln subarc welder a number of times while removing theextender from it in plant one (Exs. C-19, C-21; Tr. 190-192). The equipment was attachedto the hook of an overhead crane using a single chain (Ex. C-20; Tr. 191).Because of theheight of the equipment for virtually the entire time the employee was moving it,he was ina position where he could be struck by it if it fell (Tr. 191).Andy Irick, a mechanic at plant one, testified that theemployee shown Positioning the subarc welder in complainant’s exhibits 19 and 21 wasGeorge Kitchen, who operates the welder, and it was common for employees to be under itwhile lining it into position (Ex. C-19, C-21; Tr. 269-270). Irick identified the man withthe clipboard shown in the photograph as Bob Sexton, the foreman (Ex. C-19; Tr. 269).Collins testified that Mark Lang, production manager, agreed the condition was a hazard;but Lang did not think Trinity could position the welder without having a man under it(Tr. 194). Collins indicated that tag lines could be used to keep it from swaying whilemoving it into position (Tr. 194). Trinity was aware of the hazard, because the corporatesafety manual had a rule that employees are to be kept clear of suspended loads (Tr. 195).The violation has been established.The employee was exposed to the potential of having theequipment fall on him. This could have resulted in very serious crushing injuries with avery high likelihood of death. The violation was serious.Item 11Alleged volition of 29 C.F.R. ? 1910.212(a)(1) Section 1910.212(a)(1) [[10]] requires that one or more methodsof machine guarding shall be provided to protect the operator and other employees in themachine area from hazards such as those created by point of operation, ingoing nip points,rotating parts, fl ying chips and sparks. Collins discovered 12conditions which it isalleged were in violation of ? 1910.212(a)(1). The 12 conditions were designated as (a)through (1).Instance (a)Collins observed an employee operating Southwork press 1421, amechanical power press in plant one (Ex. C-38; Tr. 349-350). An ingoing nip point wascreated when the ram was moving back. The ram moves in a vertical direction into contactwith a piece of material to form it and then retracts back up toward the frame of themachine. A nip point was created between the moving ram and the stationary frame of themachine during the upstroke of the machine (Tr. 350). The operator’s hands would generallybe within 10 to 12 inches of the nip point; but, on occasions, they would be closer (Tr.400). The operator would be constantly turning the piece of metal on the press andsticking his hands within the part to feel how it was being pressed (Tr. 400). The hazardto which the operator was exposed was getting his fingers caught in the nip point. In suchan event, the operator could severely crush or fracture his fingers. The operator could beprotected by the use of barrier guards, pull-backs or some type of restraint device tohold the operator’s hands away (Tr. 351-353, 404).Instance (b)Collins observed a San Angelo Foundry and Machine company rollformer in the Hamilton Bay of plant one. The roll former did not have guarding to preventthe operator from being pulled into the inrunning nip points created by the rolls (Ex.C-30; Tr. 353-354). Andy Irick and another operator both told Collins that the machine hadbeen operating without a panic bar and with no other guarding until a week before theinspection (Tr. 354-355). The panic bar was not adequate to prevent an employee from beingexposed to the inrunning nip points created by the rolls (Tr. 355-356). The panic barwould not prevent an injury from happening. It would allow the machine to shut down shouldthe employee get caught in the nip points (Tr. 356).In the event of in accident, employees would likely experience finger fractures and severecrushing injuries. Collins stated that barrier guards and restraints were methods ofguarding (Tr. 356-357).Instance (c)A belt sander was located on the blue seamer in the weld bay of plant two (Ex. C-22; Tr.358). Leaman Calhoun told Collins during the inspection that an operator was grinding theedge of a piece of metal by sticking it down into the belt. The employee confirmed this toCollins and said that he had done it on other occasions as well (Tr. 359).The belt and pulley were inadequately guarded. A nip point wascreated where the belt was riding over the pulley. Injuries that can occur from nip pointaccidents are lacerations, severe abrasions and fractures (Tr. 360).Instance (d)Collins observed a Webb roll former in the north bay of plantone. The roll former was equipped with a panic bar but did not have any protection toprevent access to the nip point created between the inrunning rolls (Ex. C-31; Tr. 363).Irick stated that he and other employees had used the roll Former in the five months priorto the inspection (Tr. 272).Instance (e)Trinity had Century Shear #1473 in plant one (Ex. C-32; Tr.366). Collins observed an employee with his left hand under the awareness barrier on theshear (Tr. 367). The operator was exposed to two hazards: the actual blade of the shearand the \”holddowns\” [[11]] or clamps that come down and hold the metal in place(Tr. 366). Collins was told that an employee had been injured using the Century Shear (Tr.369). On July 26, 1985, an employee had his left middle finger tip crushed by the\”holddown\” clamp on the metal shear in plant one (Ex. C-39). Collins stated thata full barrier guard would prevent contact with the blade and the \”holddowns\”(Tr. 371).Instance (f)Leotis Whitaker was operating flanger ten in plant two duringthe inspection. The flanger generated long jagged pieces of metal (Exs. C-28, C-29; Tr.371).Whitaker stated that he had been cut an burned by curls and chips from the cutting tool onflanger ten (Tr. 373). He had received lacerations in the hands and right temple area ofthe head (Tr. 246). His positioning was restricted because of a nearby wall (Tr. 247).Langford told Collins that he was aware of the problem and wanted to redesign the tooling(Tr. 373)Instance (g)Flanger ten, which was in use at the time of the inspection,had no guarding for the inrunning nip point between the side between the side roll and thehead (Tr. 382-383). Calhoun and Whitaker testified that, when using a grease stick orbrush to grease the side rolls while the flanger was running, they had had the brushes orsticks caught and pulled through the roller (Tr. 224-225, 248). Employees could receivecrushing injuries from being drawn into the nip points (Tr. 376-377).Instance (h)Flanger two also did not have guarding for the inrunning nippoints between the side roll and the head, and the back roll and the head from theflanging side. The operator was exposed to severe crushing injuries (Tr. 382-383).Instance (i)Collins observed a Bullard edge trimmer #42 in plant two inoperation by an employee using a hand grinder. The employee was exposed to metal shavingsthat were spinning out of the middle of the machine (Ex. C-26; Tr. 384-385). The operatorcould have been struck by the metal shavings, resulting in severe lacerations (Tr. 384).Langford told Collins that Trinity and a unit to contain the shavings. the operatorCollins observed was not the regular operator and he had not been informed that he was touse the unit (Tr. 387).Instance (j)The #65 polisher had no guarding for the unused portion of the sanding belt, including theincoming nip points created at each pulley (Ex. C-25; Tr. 387). Calhoun stated that theoperator does not stay in one place when operating the polisher but would go to the frontto get equipment or go to the right to run the other machine (Tr. 227). The operator wouldbe exposed to the contact with the inrunning nip point should he trip and fall within twoor three feet of the belt. In such an event, the employees would likely suffer brokenfingers and severe lacerations (Tr. 388-389).Instance (k)Flanger three in plant two had no guarding for the inrunning nip points created betweenthe side roll and the head between the back roll and the head from the flangingside of themachine. The operator was exposed to contact with the inrunning nip points. The operatorhas to lubricate the side rolls on a routine basis while the unit is operating.Inadvertent contact could result in fractured fingers and lacerations (Ex. C-23; Tr.375-379).Instance (1)Flanger one in plant two had no guarding on the inrunning nippoints. Flanger one in plant two was different from flanger three but operated the same asflanger three (Tr. 376). The same nip points were created and were unguarded. The operatorwas exposed to contact with the inrunning nip points. As in the case of flanger three,inadvertent contact could have resulted in fractured fingers and lacerations (Ex. C-24;Tr. 375-379)Section 1910.212(a)(1)[[12]] is a general, introductorystandard setting forth guarding requirements to \”all machines.\” FaultlessDiv., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, 674 F.2d 1177 (7thCir. 1981). In order to establish a violation of ? 1910.212(a)(1), the Secretary mustfirst prove the existence of a hazard which is revealed \”by how the machine functionsand how it is operated by the employees.\” Stacy Mfg. Co., 82 OSAHRC 14\/B1, 10BNA OSHC 1534, 1982 CCH OSHD ? 25,965 (No. 76-1656, 1982). The Secretary has proven ineach instance that machine guarding was either not provided or was inadequate and that theabsence of the guarding created a hazard for employees. A serious violation of ?1910.212(a)(1) has been established.Item 12Alleged violation of 29 C.F.R. ? 1910.217(b)(3)(i)The Secretary alleges that the Southwork press #1421 had nosingle stroke mechanism and was in violation of ? 1910.217(b)(3)(i), which provides:Machines using full revolution clutches shall incorporate asingle stroke mechanism.Collins observed the Southwork press and interviewed itsoperator, who showed Collins how the press would cycle over and over again. The press wasa continuous mechanism but did not have a single stroke (Ex. C-38; Tr. 391-393). TheSouthwork press is a hand-fed operation, which exposes employees to having their fingersand hands crushed (Tr. 395). Trinity was in serious violation of ? 1910.217(b)(3)(i).Item 13Alleged Violation of 29 C.F.R. ? 1910.217(c)(1)(ii)The Secretary asserts that the Southwork press #1421 had nopoint of operation guarding as required by ? 1910.217(c)(1)(i). This standard provides:It shall be the responsibility of the employer to provide and insure the usage of\”point of operation guards\” or properly applied and adjusted point of operationdevices on every operation performed on a mechanical power press. See Table O-10.The standard requires the employer to provide and ensure the usage of \”point ofoperation guards\” or properly applied point of operation devices on every operationperformed on mechanical power presses.This item involves the same Southwork press discussedpreviously. The operator places the piece of metal between forming dies. The upper die ison a ram. As it comes down, it strikes the metal and presses it against the lower dieforming the metal into a shape (Ex. C-38; Tr. 398). The part size Collins observed was 23by 23 by 23 inches in a triangular shape. The operator’s hands were held within 10 to 12inches from the pinch point and within 20 inches of the die. On occasion, his hands wouldbe closer. At times the operator would stick his hand within the part that he was formingto feel how it was being pressed. (Tr. 400). Collins stated that a pullback or restraintdevice could be used to prevent exposure to the point of operation. The operator wasexposed to severe crushing injuries (Tr. 401). Trinity was in serious violation of ?1910.217(c)(1)(i).Item 14Alleged Violation of 29 C.F.R. ? 1910.219(e)(3)(i)The Secretary alleges that the inspection revealed threeinstances where belts were not enclosed by guards. The standard in issue, ?1910.219(e)(3)(i), provides:Vertical and inclined belts shall be enclosed by a guardconforming to standards in paragraphs (m) and (o) of this section.The Secretary cited three instances of conditions that sheasserts are violative of this standard. Instance (a) involves the Bullard edge trimmer #42previously cited in item 11 as instance (i) The main drive of the trimmer is located toits left of the trimmer as shown in Exhibit C-26. The drive belts have a three-sidedguard, covering the outside of the belt at the top and bottom along the edge. The belt wasopen between the existing guard and the machine frame. Collins stated that theconfiguration of the guard and belt created a false sense of security, because the belt isnot readily visible to anyone looking at the guard (Tr. 403-404).[[13]] Collins testifiedthat an employee near the belt drive is exposed to possible fractures, crushing injuriesof the fingers, and possible amputation. The belt drive could be guarded by addingguarding to the inside section.Instance (b) involves a flux vacuum in the weld bay of plant two. One side of the vacuumwas guarded and the edges were guarded, but the other side was open (Ex. C-40; Tr. 406).The start switch is on the motor, which is directly in front of the belts. An employeecould inadvertently stick his fingers or hands into the belt while reaching in for theswitch (Tr. 408-409).Although not in use when observed by Collins, Langford admittedthat the flux vacuum was used (Tr. 409). The injuries to employees if their hands werecaught in the belt drive would be fractures and crushing injuries (Tr. 410). The beltdrive could be guarded by bringing the guard around to cover the inside section (Tr. 410).Instance (c) involves the air compressor in plant two. Its beltdrive was guarded with an expanded metal guard. The guard had one-inch openings in themesh which were large enough that an employee’s fingers could accidentally stick through.The guard was not supported along the bottom. The guard was close to the belt and pulley.It could be pushed into the belt and pulley if one fell against it (Ex. C-41; Tr. 410).Collins stated that the hazard in each of these instances wasthat employees could get their hands and fingers caught in the unguarded belts, resultingin fractures and crushing injuries (Tr. 409, 410, 412).The Secretary has failed to show sufficient employee exposure to the air compression toreflect a hazard. Nothing in the testimony indicates that the method of operation of theair compressor exposes employees to the unguarded belts. Collins observed maintenance menwithin a few feet of the compressor. The Review Commission has stated, in addressing pointof operation guarding, the following [Rockwell International Corp., 80 OSAHRC118\/A2, 9 BNA OSHC 1092, 1097-1098, 1980 CCH OSHD ? 24,979 (No. 12470, 1980)]:The mere fact that it was not impossible for an employee toinsert his hands under the ram of a machine does not itself prove that the point ofoperation exposes him to injury. Whether the point of operation exposes an employee toinjury must be determined based on the manner in which the machine functions and how it isoperated by employees.In the present case, employee exposure would most likely resultfrom an employee deliberately sticking his hands or fingers into the belts. The Secretaryhas failed to establish that Trinity violated ? 1910.219(e)(3)(i) with respect to the aircompressor. The two violations of ? 1910.219(e)(3)(i) were serious.Item 15Alleged Violation of 29 C.F.R. ? 1910.219(f)(1)Section 1910.219(f)(1)[[14]] requires gears to be guarded by acomplete enclosure or by one of the methods specified in 29 C.F.R. ? 1910.210(f)(1)(ii)and (f)(1)(iii). The Secretary alleges that the guard for the cross feed drive gears onthe spin lathe was not secured in place. The evidence supports the Secretary’sdetermination.There was a set of drive gears for the cross feed on the spinlathe located in plant two which had a plate lying on top of the drive gears. It was notsecured in position. The guard had holes to permanently attach it, but it was not attached(Ex. C-27; Tr. 413). Calhoun, who operated the spin lathe, testified that, when theequipment was in operation, the guard was subject to slip off or slide. He was never toldby his supervisor to be sure the guard was secure (Tr. 233).The unsecured guard created a false sense of security by simply lying in position ratherthan being held in an appropriate manner (Tr. 414-416). The violation exposed employees tothe hazard of severe crushing injuries.Item 16Alleged Violation of 29 C.F.R. ? 1910.303(b)(1)Section 1910.303(b)(1) requires that electrical equipment shall be free from recognizedhazards that are likely to cause death or serious physical harm to employees. TheSecretary alleges a violation of the standard, because there was evidence of arcing at theconnection between the grinder’s cord and the extension cord in the polish room.In the polish room behind polisher #65, there was a wallreceptacle, an extension cord, and a hand grinder covered with conductive metal dustgenerated by the polishing operations. At the connection between the grinder cord and theextension cord, there was observable electrical arcing going from the hot lead to theground. It was shorting out due to having conductive metal dust in that area. Whendisconnected, there were observable burn marks in the connection between the two cords(Exs. C-41, C-43; Tr. 417-419). Exhibit C-42 (photograph) shows the accumulation of metalfilings on top of the receptacle box and cord. Exhibit C-43 (photograph) shows the burnmarks oft the three-prong plug on the ground connection.An accident had occurred in plant one in February 1988. Theaccident involved metal dust from polishing operations getting into 480-volt plugs, whichwere not appropriate for use (Tr. 421). Employees reported that the plugs were smoking andshorting out (Tr. 421). Despite this, some 15 months later in May 1989, Collins observedvisible arcing due to conductive metal dust. The violation has been established.Employees were exposed to the hazard of having the electrical equipment shorting out andreceiving serious burns and shock. The violation was serious.Item 17Alleged Violation of 29 C.F.R. ? 1910.303(b)(2)Section 1910.303(b)(2)[[15]] requires that listed or labeledequipment shall be used or installed in accordance with any instructions included in thelisting or labeling. The Secretary alleges that a trouble light rated for no more than a75-watt bulb was used with a 200-watt bulb. The evidence supports the violation.In plant one, north bay at column D6, a trouble light or droplight, which was marked as rated for no more than a 75-watt bulb, was being used with a200-watt bulb. Collins did not observe the light in use, but the unit was still warm andthe time he came into the area was the end of the shift (Tr. 422-423). Irick, whoaccompanied Collins as the union representative, testified that the drop lights were usedregularly in the cylinders so that one can see how to weld. At the time of the inspection,75-watt bulbs were not provided. It had previously been brought to Trinity’s attention insafety walk-throughs that the bulbs were higher than the wattage for which the lights wererated. The violation has been established.The base of the light looked as if it had gotten hot andmelted. (Tr. 277, 424). The trouble light in use was not designed to have a 200-watt bulb.The metal shield, as a result of using a 200-watt bulb, is hotter than one would expectand could result in employees receiving burns. In addition, the use of the large bulb wasdeteriorating the equipment and, over an extended period of time, could cause the unit tomalfunction or short out (Tr. 425).The violation was serious. Item 18Alleged Violation of 29 C.F.R. ? 1910.304(a)(2)Section 1910.304(a)(2)[[16]] requires that no groundedconductor may be attached to any terminal or lead so as to reverse designated polarity.The Secretary alleges two instances where extension cords had reversed polarity. Theevidence supports the violation.Collins found two conditions in which extension cords hadreversed polarity. The first condition was an extension cord in plant on, Hamilton bay atcolumn B12, and second condition was an extension cord in plant two used to charge thescissor lift (Tr. 428, 431). Collins tested the cording Plant one, Hamilton bay, becauseits appearance showed it to be somewhat older (Tr. 429-430). He determined reversedpolarity by the use of a circuit tester (Tr. 428).The extension cord in plant two was also tested with a circuittester. The extension cord had been used in the maintenance area of plant two to chargethe scissor lift and was plugged in (Tr. 431).In reversed polarity situations, the hot potential is placed onthe case of the equipment rather than on the switch loop. If there is no effective ground,an employee could receive a serious shock or electrocution (Tr. 432). The violation wasserious.Item 19Alleged violation of 29 C.F.R. ? 1910.304(f)(4)Section 1910.304(f)(41) [[17]] requires that the path to groundfrom circuits, equipment, and enclosures shall be permanent and continuous. The Secretaryalleges two instances where the extension cord had its ground prong removed or broken off.The evidence supports the violation.Collins found two conditions in plant one in violation of ? 1910.304(f)(4). In theHamilton bay at column B11, there was an extension cord in use which had the ground plugbroken off, In the north bay, west end, there was an extension cord which ran out to therail cars that had its ground plug broken off. Although the cord in the north bay was notin use, it was plugged in and available for use. The violation has been established.Due to this condition, any current leakage to the external caseof the unit could result in serious shock and electrocution.The violation was serious. WILLFUL CITATIONItem 1 Alleged Violation of 29 C.F.R. ? 1910.176(a)The Secretary charged Trinity with a willful violation of 29C.F.R. ? 1910.176(a), which provides:Where mechanical handling equipment is used, sufficient safeclearances shall be allowed for aisles, at loading docks, through doorways and whereverturns or passage must be made. Aisles and passageways must be kept clear and in goodrepair, with no obstruction across or in aisles that could create a hazard. Permanentaisles and passages shall be appropriately marked.It was alleged that lift trucks in the back pad area wereoperated on a rough surface containing many potholes. The evidence supports the violation.Collins inspected the back pad area, which is located to the rear of plant two (Tr. 436).The condition of the back pad was extremely poor, with ruts and chuck holes (Tr. 437).Collins measured one chuck hole as being 32 by 64 inches and 10 inches deep (Tr. 439).Several lift trucks were in the area. The back pad was used as a storage area and thematerials were located in such a manner so as to define the operational aisles for thearea (Exs. C-34, C-35, C-36; Tr. 439). Section 1910.176(a) applies even though the area isoutdoors, because the \”aisles\” or \”passageways\” were permanent over aperiod of years and material was handled by mechanical equipment. Titanium Metals Corp.of America, 77 OSAHRC 21\/A12, 5 BNA OSHC 1164, 1976-77 CCH OSHD ? 20,762 (No. 15051,1976).The back pad conditions had existed for approximately two years(Tr. 337). Forklift Operator Felan Roaden had complained often about the conditions. Aftercomplaining, Trinity would fill a couple of the holes with gravel. Roaden would usuallyhave to complain again in about a week (Tr. 313). Robby Smiddy was a shipper and receiverin plant two. He complained to Dale Bishop, supervisor Ira Brockman’s boss, about theconditions (Tr. 326-327). Richard Davidson, another shipper and receiver, complained toBrockman about the potholes and ruts that had been present in the back pad area for twoyears. Davidson stated that the \”answer I got was that Trinity didn’t like to spendmoney\” (Tr. 337-338). Harry Sorgs stated that he had heard employees complainingabout the back bad area for the past several years, and that management had no response toemployee complaints (Tr. 494-495).Roaden drove lift trucks in the back pad area with the Loadelevated to avoid potholes. He never had a truck tip over but has lost a load afterhitting a pothole. On several occasions, whenever he hit a hole, the back end of the truckwould come up, tipping the truck forward (Tr. 315). Davidson experienced the samecondition of having his truck tip forward and losing a load after hitting a hole (Tr.338).Collins questioned Langford about the back pad area. Langfordresponded by stating that he was not going to make any repairs until sometime in thesummer. Langford conceded that no interim measures had been taken to protect the area bygrading it out or by restricting it to only the rough terrain lift trucks. The lift trucksoperating in the area were typical narrow-type trucks that operate in a plant on aconcrete floor (Tr. 442-443). Langford’s only positive response to the complaint was toinstruct employees to be careful (Tr. 442-443).Lift trucks operating in the back pad were overloaded.Overloaded lift trucks present serious hazards to the operators and people nearby. Theoverloading affects stability and gives less of a safety factor if the driver has to stop.The hazards are increased when the lift truck operates with numerous holes located on thesurface on which the truck runs. The truck is more likely to overturn. When load iselevated to avoid the holes, some stability is lost and the likelihood of having a problemor losing the truck or losing the load increases (Tr. 447). The violation has beenestablished.The remaining question involves how the violation is to beclassified. The Secretary argues that the violations should be classified as willful. Theterm \”willful\” is not defined by the Act. The Commission has held that \”[a]violation is willful if it is committed voluntarily with either an intentional disregardfor the requirements of the Act or with plain indifference to employee safety.\” A.C. Dellovade, Inc., 87 OSAHRC 2\/A3, 13 BNA OSHC 1017, 1987 CCH OSHD ? 27,786, p.36,341 (No. 83-1189, 1987). Willfulness is conduct that results from a conscious,intentional or voluntary decision. Stone & Webster Engineering Corp., 80 OSAHRC72\/D11, 8 BNA OSHC 1753, 1980 CCH OSHD ? 24,646 (No. 15314, 1980). It is a state of mindthat must be established by the Secretary.The evidence shows a clear pattern of voluntary or intentionaldisregard for the requirements of the Act and plain indifference to employee safety. Thisdetermination is based on the overall condition of the back pad area over an extendedperiod of time, the number of hazards created by the condition, the manner in whichemployees drove the trucks to avoid holes, the fact that employees had complained tomanagement of personnel on a number of occasions, and the fact that the plant managerhimself admitted his awareness of the condition yet chose to allow it to continue (Tr.448-449). Trinity’s actions must be considered as intentional neglect of the conditions.The Secretary has established that Trinity chose consciouslyand intentionally to disregard the requirement of the standard, and acted with plainindifference to the safety of its employees. It is especially deplorable because of thenumerous employee complaints made to the supervisory personnel. Trinity was in willfulviolation of ? 1910.176(a). Item 2Alleged violation of 29 C.P.R. ? 1910.178(m)(12)The Secretary charged a willful violation of 29 C.F.R. ?1910.178(m)(12), which provides:Whenever a truck is equipped with vertical only, or verticaland horizontal controls elevatable with the lifting carriage or forks for liftingpersonnel, the following additional precautions shall be taken for the protection ofpersonnel being elevated:(i) Use of a safety platform firmly secured to the liftingcarriage and\/or forks.(ii) Means shall be provided whereby personnel on the platformcan shut off power to the truck.(iii) Such protection from falling objects as indicatednecessary by the operating conditions shall be provided.Section 1910.178(m)(12) requires that industrial trucks used to lift personnel be providedwith a firmly secured safety platform and a means whereby personnel on the platform couldshut off power to the truck.Prior to OSHA commencing the inspection, the lifting ofpersonnel on either the forks or the Kelly jib, which is a lifting attachment and not asafety platform, was a routine general practice in the shipping and receiving departmentfor many years. Employees were instructed by supervisors to engage in such procedure. Itwas the only method they knew to elevate employees to secure the chains on the heads to beshipped. The standard requires a safety platform with standard guardrail so as to protectan individual being lifted to prevent falling off the forks or falling back into the mastand becoming caught in it (Tr. 450-451).On April 28, 1989, the company posted a notice to the effectthat employees were not to be lifted on the forks of lift trucks (Tr. 451). This procedurewas not changed until the warrant for inspection was issued which was based on the union’s43 complaints. The change cannot be construed as voluntary. It was done as a result ofTrinity’s realization that an inspection was going to be made of its facilities.When Collins observed the employees during his inspection, henoted that they were loading \”in kind of a confused manner and there were severalcomments to the effect that the reason they were having problems doing it was that theyhad never done it without riding up on the forks of a truck, and so they weren’t reallysure what they were doing\” (Tr. 455). There was no safety platform at Trinity (Tr.325, 334).Windows of the lunch room and of Langford’s office looked outupon the loading area (Ex. C-37; Tr. 500). Smiddy stated that it was not uncommon to havemanagement personnel, including Brockman, Bishop, and Langford to watch the loading fromthe lunch room (Tr. 325-326).Employees in maintenance were also lifted up on the forks oftrucks (Tr. 454). Sorgs stated that, \”Many times the maintenance man would have aforklift operator lift him up to the crane in the shop to do a minor adjustment orsomething\” (Tr. 501). Sorgs observed an employee straddle the two forks and leanagainst a hook attachment on the front while he was lifted by the forklift operator (Tr.501).Employees elevated by lift trucks without a firmly securedsafety platform are exposed to falling off. They are also exposed to getting caught in themast of the truck and being pulled into the chains which raise the mast. Possible injuriesinclude fractures, concussion, and crushing injuries (Tr. 45).Trinity was in willful violation of ? 1910.178(m)(12). Trinityshowed intentional disregard for the requirement of the Act and plain indifference toemployee safety in allowing, even instructing, employees to be elevated on forkliftswithout safety platforms. This practice had continued for a number of years under theobservation of management personnel. \”OTHER\” CITATIONItem 1Alleged Violation of 29 C.F.R. ? 1910.304(e)(1)(iv)The Secretary charged Trinity with a violation of ?1910.304(e)(1)(iv) which provides:Overcurrent devices shall be readily accessible to eachemployee or authorized building management personnel. These overcurrent devices may not belocated where they will be exposed to physical damage nor in the vicinity of easilyignitable material.This section requires overcurrent devices for circuits rated600 volts, nominal, or less be readily accessible to each employee or authorized buildingmanagement personnel.The disconnect box for the flanging bay crane in the plant twomaintenance department was in an area cluttered with pipe, machinery parts, boxes, andcartons (Tr. 461-462). The overcurrent devices were not readily accessible to employees.Trinity was in other-than-serious violation of ? 1910.304(e)(1)(iv).Item 2Alleged Violation of 29 C.F.R. ? 1910.305(b)(2) Section 1910.305(b)(2) of 29 C.F.R. provides:All pull boxes, junction boxes, and fittings shall be providedwith covers approved for the purpose. If metal covers are used they shall be grounded. Incompleted installations each outlet box shall have a cover, faceplate, or fixture canopy.Covers of outlet boxes having holes through which flexible cord pendants pass shall beprovided with bushings designed for the purpose or shall have smooth, well-roundedsurfaces on which the cords may bear.The standard requires that each outlet box in completedinstallations have a cover, faceplate or fixture canopy.In the North Bay at the west end of plant one, an electricalbox on the back side of the polishing roll transformer did not have a cover on it. Theinterior wiring was exposed (Tr. 464-465). The wiring was hot. An employee worked in thearea. The missing cover had previously been reported by Irick (Tr. 467). Trinity was inother-than-serious violation of ? 1910.305(b)(2).PENALTY DETERMINATIONThe Commission is the final arbiter of penalties in allcontested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.23 438 (8thCir. 1973). Under 17(j) of the Act, the Commission is required to find and give \”dueconsideration\” to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of the previous violations in determiningthe assessment of an appropriate penalty. The gravity of the offense is the principalfactor to be considered. Nacirema Operating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001,1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Trinity employed approximately 300 employees at its facility(Tr. 66). There is a history of previous inspections. Seven citations have been issued tothis facility (Tr. 66). Trinity’s actions showed a lack of good faith. The gravity of theserious and willful violations is high.Upon due consideration of the foregoing factors, the followingpenalties are determined to be appropriate:DOCKET NO. 89-2168Citation One (Serious) Item 1 $ 800 Item 2 $ 800 Item 3 $ 700 Item 4 $ 800 Item 5 $ 700 Item 6 $ 800 No penalties are assessed for items one and two of citation two.DOCKET NO. 89-2169Citation One (Serious) Item 1 $500 Item 2 $ 400 Item 3 $ 800 Item 4 $1,000 Item 5 S 600 Item 6 $ 800 Item 7 $ 600 Item 8 $ 800 Item 9 $ 800 Item 10 $ 700 Item 11 $ 800 Item 12 $ 600 Item 13 $ 600 Item 14 S 300 Item 15 $ 500 Item 16 $ 500 Item 17 $ 500 Item 18 $ 700 Item 19 $ 700 Citation Two (willful) Item 1 $8,000 Item 2 $8,000 No penalties are assessed for items one and two of citation three.FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained in thisopinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules ofCivil Procedure.ORDERIn view of the foregoing and good cause appearing in support ofthe determinations, it isORDERED: That the issues and penalties in dispute in docketnumbers 89-2168 and 89-2169 are affirmed, modified and vacated in the following manner:DOCKET NO. 89-2168Citation One (Serious) Item No. Disposition Assessed Penalty I Affirmed $ 800 2 Affirmed $ 800 3 Affirmed $ 700 4 Affirmed $ 800 5 Affirmed $ 700 6 Affirmed $ 800 Citation Two (\”Other\”) Item No. Disposition Assessed Penalty 1 Affirmed None 2 Affirmed None DOCKET NO. 89-2169Citation One (Serious) Item No. Disposition Assessed Penalty 1 Affirmed $ 500 2 Affirmed S 400 3 Affirmed S 800 4 Affirmed $1,000 5 Affirmed S 600 6 Affirmed $ 800 7 Affirmed $ 600 8 Affirmed $ 800 9 Affirmed $ 800 10 Affirmed $ 700 11 Affirmed $ 800 12 Affirmed S 600 13 Affirmed $ 600 14 Vacated – 1 Affirmed – 2 $ 300 15 Affirmed $ 500 16 Affirmed $ 500 17 Affirmed $ 500 18 Affirmed $ 700 19 Affirmed $ 700 Citation Two (Willful) Item No. Disposition Assessed Penalty 1 Affirmed $8,000 2 Affirmed $80000 Citation Three (\”Other\”) Item No. Disposition Assessed Penalty 1 Affirmed None 2 Affirmed None Dated this 6th day of December, 1990.JAMES D. BURROUGHSJudgeFOOTNOTES: [[1]] Throughout these proceedings, Trinity has repeatedlyasserted that there are \”three separate plants\” at the workplace in question.All of the record evidence, however, is consistent in indicating that the facility wasdivided administratively into only two plants. Moreover, there is no indication in theevidentiary record that there was a third building at the site.[[2]] The complaint itself is not in the record although therecord does include a summary of the complaint that was prepared by OSHA and attached toits warrant application, which we discuss infra. The complaint summary and the record as awhole are silent as to the identity of the person who filed the complaint. Nevertheless,we conclude that the record does establish that the person was an employee of Trinity atthe time the complaint was filed. In support, we note that OSHA’s warrant applicationcontains a sworn statement by the OSHA Area Director that the complaint was filed by anemployee of Trinity. We also note that OSHA’s published procedural guidelines required itto determine whether the person filing the complaint was either a past or present Trinityemployee. There is no allegation by Trinity and no reason to believe on this record. thatOSHA failed to comply with its published procedures in its handling of this complaint.[[3]] These \”formality requirements,\” which are setforth in Chapter IX of the FOM are derived from the Act itself. Thus, section 8(f)(1)provides, in pertinent part, as follows:(1) Any employees or representative of employees who believethat a violation of a safety or health standard exists that threatens physical harm orthat an imminent danger exists, may request an inspection by giving notice to theSecretary or his authorized representative of such violation or danger. Any such noticeshall be reduced to writing, shall set forth with reasonable particularitythe grounds for the notice. and shall be signed by the employees orrepresentative of employees, and a copy shall be provided the employer or his agentno later than at the time of inspection, except that, upon the request of the persongiving such notice, his name and the names of individual employees referred to thereinshall not appear in such copy …. If upon receipt of such notification the Secretarydetermines there are reasonable grounds to believe that such violation or danger exists,he shall make a special inspection in accordance with the provisions of this section assoon as practicable to determine if such violation or danger exists.(Emphasis added).[[4]] Specifically, the OSHA area director stated in hiswarrant affidavit: \”In my opinion as an experienced safety and health investigator,the complaint alleges serious conditions that are covered by OSHA Standards 29 CFR ??1910.37, 1910.101, 1910.304, and other parts.\” He also averred that OSHA had\”determined that there are reasonable grounds to believe that such violations existor have existed during the last six months, so as to require an inspection under Section8(f)(1) of the Act.[[5]] OSHA attached to its warrant application pertinentprovisions of Chapter III and IX of its FOM. As indicated previously, Chapter IX governsOSHA’s evaluation and response to section 8(f)(1) complaints. Chapter III contains theprincipal guidelines governing OSHA’s determination as to whether a resulting inspectionwill be a limited inspection or a full-scope inspection.\u00a0 However, other relevantprovisions are found in Chapter II of the FOM, which was not attached to the warrantapplication. In particular, Chapter II contains the exemption for workplaces that, priorto OSHA’s receipt of the 8(f)(1) complaint, have already been subjected to a comprehensivesafety inspection, during the same fiscal year or the two preceding fiscal years. We notethat, while Chapter II was not attached to the warrant application, the Chapter IIexemptions are incorporated by reference into Chapter III, which are provided to themagistrate.[[6]] In his July 29,1988 order, which we discuss fully herein,Magistrate Steinberg stated the following concerning OSHA’s request for access toTrinity’s records:Trinity’s LWDI Rate cannot be calculated without the datacontained in its injury and illness records. OSHA is not seeking access to all ofTrinity’s files in order to obtain the data. The records OSHA seeks to inspect are thosethat Trinity, like every other employer, is required to keep and make available forinspection under the Act. See 29 U.S.C. ? 657(c)(2); 29 CFR ?? 1904.1-4; id., ?1904.7(a).Both the Secretary and Trinity, as well as Judge Burroughs,have proceeded to analyze the issues in these cases on the basis of the same premise thatwas expressly stated by the magistrate. We therefore will likewise proceed under thepremise that the authorization sought and obtained by the Secretary for access toTrinity’s records was an authorization limited to so-called \”required records.\”[[7]] Section 8(a) of the Act, 29 U.S.C. 657(a), provides, as follows:(a) Authority of Secretary to enter, inspect, andinvestigate places of employment; time and mannerIn order to carry out the purposes of this Act, the Secretary,upon presenting appropriate credentials to the owner, operator, or agent in charge isauthorized-(1) to enter without delay and at reasonable times any factory, plant, establishment,construction site. or other area, workplace or environment where work is performed by anemployee of an ernployer; and(2) to inspect and investigate during regular working hours and at other reasonable times,and within reasonable limits and in a reasonable manner, any such place of employment andall pertinent conditions, structures, machines, apparatus, devices, equipment, andmaterials therein, and to question privately any such employer, owner, operator agent oremployee.[[8]] As a result of the separation of the OSHA inspection intotwo distinct parts, one limited to the 8(f)(1) complaint and the other a full-scopeinspection of the entire facility, the issue that was raised before Magistrate Steinbergand renewed before Judge Sparks in Docket No. 88-2691, of whether the warrant applicationprovided sufficient probable cause a to conduct a \”special inspection\” under ?8(f)(1), is not before us in these proceedings.[[9]] filed these motions with Judge Burroughs the day afterthe United States Court of Appeals for the Sixth Circuit issued a decision terminatingTrinity’s judicial challenge to the validity of the February 25, 1988 inspection warrant.In its order, the Sixth Circuit dismissed Trinity’s appeal from the district court’sdecision upholding the validity of the warrant. The appellate court, however, did notdetermine the correctness of the district court’s ruling. Instead, it dismissed the caseon procedural grounds. Noting that inspection had been conducted under the warrant, thatcitations had been issue 1, and that administrative proceedings had been initiated beforethe Commission, it held in effect that Trinity was required to exhaust its administrativeremedies in the Commission proceedings before it could continue to pursue its judicialchallenge. The court expressly stated that its ruling \”should not be construed toforeclose Trinity from pursuing any of its contentions pertaining to the validity of thewarrant\” in either proceedings.[[10]] The Secretary attempts to frame the issue before usdifferently. She argues that Trinity’s Fourth Amendment rights were not violated becausethe evidence she introduced in this consolidated proceeding was gathered by OSHA pursuantto two valid inspection warrants. The first of these warrants, the Secretary asserts, wasthe one issued by Magistrate Steinberg in February 1988, and the second administrativeinspection warrant was obtained by OSHA, on the basis of two additional section 8(f)(1)employee complaints, on April 7, 1989, approximately five weeks before Trinity allowedOSHA into its workplace to conduct the full-scope inspection that led to theseproceedings. However, while the Secretary has repeatedly made the factual assertionthat the inspection was conducted pursuant to both warrants, she has made no effortwhatsoever to incorporate the second warrant into her legal arguments. On the contrary,the legal arguments presented by the Secretary on review do not in any way relyon the existence of the second warrant. Instead, the Secretary’s review brief is directedto precisely the same issue that was addressed by Magistrate Steinberg, by JudgeBurroughs, and by Trinity in its review briefs. i.e., the question of whether theSecretary’s February 25, 1988 warrant application established administrative probablecause to support a full-scope inspection of the Sharonville facility. Accordingly, sinceboth parties have focused on the same legal issue in their review briefs, it is that issueand that issue alone that we will address in our decision.[[11]] In this regard, it is significant that the full-scopeinspection is not triggered under the administrative plan by OSHA’s receipt of any and allcomplaints of unsafe working conditions. Instead, the full-scope inspection can only betriggered by OSHA’s receipt of a complaint that meets the \”formalityrequirements\” of section 8(f)(1), as set forth supra in our statement of facts. Theapplication of these \”formality requirements\” has the effect of weeding out, forexample, anonymous complaints. unsigned complaints, nonspecific complaints. and complaintsof conditions that are not in violation of the Act. This results in significant protectionfor employers against employees who seek to abuse the statutory complaint inspectionprocedures. In addition, section 8(f)(1) expressly requires OSHA to make a determination that thereare \”reasonable grounds to believe\” that the violations and hazards alleged inthe complaint in fact \”exist\” before undertaking an inspection of the employer’sworkplace. Chapter IX of the FOM, which is part of the administrative plan at issue inthese cases, contains several provisions implementing this statutory requirement. Forexample, the person evaluating the complaint is instructed to comply with the followingguidelines:[The complainant will normally have to be contacted, whenpossible, either for additional facts or to verify facts supplied. The evaluator mustexercise professional judgment on the basis of the information available to decide whetheror not there are reasonable grounds to believe that a violation exists and, if so, how itshould be classified.This instruction is followed by a lengthy list of suggestedquestions for the evaluator to ask the complaining employee, which provides the evaluatorwith more detailed and specific information about the complaining employee’s allegationsso that the evaluator is better able to exercise his or her \”professionaljudgment\” in determining whether \”there are reasonable grounds to believe that aviolation exists.\”[[12]] Another, less important, distinction is the fact thatthe complaining party in Sarasota Concrete was a recently-discharged formeremployee who \”very well may have been motivated by revenge.\” 693 F.2d at 1070.[[13]] In view of our conclusion. that Trinity Fourth Amendmentrights were not violated. we need not address the Secretary’s alternative argumentsconcerning the application of the exclusionary rule and the good faith exception to theexclusionary rule in the context of this consolidated Commission proceeding.\u00a0\u00a0[[1]] Trinity took over the Mosteller Road facility on January1, 1987. Prior to that time, the facility was owned and operated by Brighton Corporation.Brighton Corporation apparently also manufactured tanks and pressure vessels, and manyemployees of Brighton Corporation stayed on to work for Trinity (Tr. 206, 477).[[2]] Section 1910.134(d)(2)(ii) provides:The compressor for supplying air shall be equipped withnecessary safety and standby devices. A breathing air-type compressor shall be used.Compressors shall be constructed and situated so as to avoid entry of contaminated airinto the system and suitable in-line air purifying sorbent beds and filters installed tofurther assure breathing air quality. A receiver of sufficient capacity to enable therespirator wearer to escape from a contaminated atmosphere in event of compressor failure,and alarms to indicate compressor failure and overheating shall be installed in thesystem. If an oil-lubricated compressor is used, it shall have a high-temperature orcarbon monoxide alarm, or both. If only a high-temperature alarm is used, the air from thecompressor shall be frequently tested for carbon monoxide to insure that it meets thespecifications in paragraph (d)(1) of this section.[[3]] Section 1910.1200(f)(5)(i) provides:[T]he employer shall ensure that each container of hazardouschemicals in the workplace is labeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s) contained therein;and[[4]] Section 1910.1200(h) states:(h) Employers shall provide employees with information andtraining on hazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard is introduced into their work area.[[5]] Section 1910.1200(h)(2)(ii) provides:(2) Employee training shall include at least: (ii) The physical and health hazards of the chemicals in the work area.[[6]] Sorgs testified that in December 1987, while he waswashing up at work, he noticed that the water felt very filmy; and that by the time he gothome, his face was swollen (Tr. 510). Trinity had the water tested and discovered that itwas contaminated with chemicals. January 1988, Trinity shut the water off and instructedemployees not to use it.[[7]] Section 1910.179(j)(3) provides:Periodic Inspection. Complete inspections of the craneshall be performed at intervals as generally defined in paragraph (j)(1)(ii)(b) of thissection, depending upon its activity, severity of service, and environment, or asspecifically indicated below. These inspections shall include the requirements ofparagraph (j)(2) of this section and in addition, the following items. Any deficienciessuch as listed shall be carefully examined and determination made as to whether theyconstitute a safety hazard:[[8]] Section 1910.179(n)(4)(i) provides:Hoist limit switch. (i) At the beginning of eachoperator’s shift, the upper limit switch of each hoist shall be tried out under no load.Extreme care shall be exercised; the block shall be \”inched\” into the limit orrun in at slow speed. If the switch does not operate properly, the appointed person shallbe immediately notified.[[9]] Section 1910.4184(c)(9) provides:All employees shall be kept clear of loads about to be liftedand of suspended loads.[[10]] Section 1910.212(a)(1) states:One or more methods of machine guarding shall be provided toprotect the operator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are barrier guards, two-hand tripping devices,electronic safety devices, etc.[[11]] The holddown is a clamping mechanism that comes downfirst and holds the metal in position so that it does not move before the shear bladecomes down and cuts the metal (Tr. 366-367).[[12]] Section 1910.212(a)(1) of 29 C.F.R. provides:(a) Machine guarding–(1) Types of guarding. Oneor more methods of machine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created by point of operation,ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methodsare–barrier guards, two-hand tripping devices, electronic safety devices, etc.[[13]] Collins noted that OSHA had had cases where employeesrested their hands or leaned into that type of location and had their fingers caught onthe drive belt (Tr. 403-404).[[14]] Section 1910.219(f)(1) provides:Gears shall be guarded in accordance with one of the followingmethods:(i) By a complete enclosure;[[15]] Section 1910.303(b)(2) of 29 C.F.R. provides:Listed or labeled equipment shall be used or installed inaccordance with any instructions included in the listing or labeling.[[16]] Section 1910.304(a)(2) of 29 C.F.R. provides:No grounded conductor may be attached to any terminal or leadso as to reverse designated polarity.[[17]] Section 1910.304(f)(4) of 29 C.F.R. provides:The path to ground from circuits, equipment, and enclosuresshall be permanent and continuous.\u00a0″