“Docket No. 90-0660 SECRETARY OF LABOR,Complainant,v.UNITED TECHNOLOGIES, PRATT & WHITNEY,Respondent.Docket No. 90-0660ORDER This matter is before the Commission on a Direction forReview entered by Chairman Edwin G. Foulke, Jr. on November 25, 1991.\u00a0 The partieshave now filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon therepresentations appearing in the Stipulation and Settlement Agreement, we conclude thatthis case raises no matters warranting further review by the Commission.\u00a0 The termsof the Stipulation and Settlement Agreement do not appear to be contrary to theOccupational Safety and Health Act and are in compliance with the Commission’s Rules ofProcedure.Accordingly, we incorporate the terms of the Stipulationand Settlement Agreement into this order, and we set aside the Administrative Law Judge’sDecision and Order to the extent that it is inconsistent with the Stipulation andSettlement Agreement.\u00a0 This is the final order of the Commission in this case. \u00a0See 29 U.S.C. ?? 659(c), 660(a), and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: November 18, 1992SECRETARY OF LABOR, Complainant,v.UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY,Respondent.OSHRC Docket No. 90-0660APPEARANCESDonald R. McCoy, Esquire, Associate Regional Solicitor,U.S. Department of Labor, Ft. Lauderdale, Florida, on behalf of complainant.W. Scott Railton, Esquire, Reed, Smith, Shaw and McClay,Washington, D.C., on behalf of respondent.DECISION AND ORDERSALYERS, Judge:\u00a0 Pratt & Whitney Aircraft Group(Pratt & Whitney), a division of United Technologies Corporation, was issued acitation on January 18, 1990, charging nine alleged serious violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (Act).\u00a0 The citation was issuedpursuant to an inspection conducted by OSHA Industrial Hygienist Peter Foreman, who wasassigned the inspection following an incident that occurred on August 23, 1989, when twoPratt & Whitney employees were splashed with a cyanide solution from a chemical tank.Item 1 alleges a serious violation of 29 C.F.R. ?1910.94(d)(9)(i) for failing to instruct all employees working in and around open-surfacetank operations as to the hazards of their respective jobs, and in the personal protectionand first aid procedures applicable to those hazards.\u00a0 Item 2 alleges a seriousviolation of 29 C.F.R. ? 1910.132(a) for failing to provide and to require the use ofprotective head equipment where employees were exposed to the hazard of potential headinjuries.\u00a0 Item 3 alleges a serious violation of 29 C.F.R. ? 1910.132(a) for failingto provide and to require the use of protective clothing and equipment where employeeswere exposed to chemical hazards.Item 4 alleges a serious violation of 29 C.F.R. ?1910.133(a)(1) for failing to require the use of protective eye and face equipment wherethere was a reasonable probability of injure that could be prevented by such equipment.\u00a0 Item 5 alleges a serious violation of 29 C.F.R. ? 134(e)(e) for failing to preparewritten procedures covering safe use of respirators in dangerous atmospheres that might beencountered in normal operations or in emergencies.\u00a0 Item 6(a) alleges a seriousviolation of 29 C.F.R. ? 1910.145 (c)(2)(i) for failing to use caution signs to warnemployees entering the plating shop that it was a chemical hazard area.\u00a0 Item 6(b)alleges a serious violation of 29 C.F.R. ? 1910.145(c)(3) for failing to post safetyinstruction signs in the plating shop where there was a need for general instructions andsuggestions relative to safety measures.Item 7 alleges a serious violation of 29 C.F.R. ?1910.145(f)(5) for failing to use danger tags on the energy sources and controls for theprocess solution pump for the tank involved in the splashing incident which gave rise tothis case.\u00a0 Item 8(a), alleging a serious violation of 29 C.F.R. ?1910.1200(f)(5)(i), was withdrawn by the Secretary in her post-hearing brief and will bevacated by the undersigned (Secretary’s brief, pp. 24-25).\u00a0 Item 8(b) alleges aserious violation of 29 C.F.R. ? 1910.1200(f)(5)(i) for failing to have each container inthe workplace labeled, tagged or marked with the appropriate hazard warning.\u00a0 Item8(c) alleges a serious violation of 29 C.F.R. ? 1910.1200(f)(8) by removing or defacingexisting labels on incoming containers of hazardous chemicals.\u00a0 Item 9 alleges aserious violation of 29 C.F.R. ? 1910.1200(h) for failure to provide employees withinformation and training on hazardous chemicals in their work area at the time of theirinitial assignment, and whenever a new hazard was introduced into their work area.The incident which gave rise to the present case occurredat Pratt & Whitney’s plant located in West Palm Beach, Florida.\u00a0 Approximately8,000 employees work at that plant, which is primarily a research and development facilityfor jet and rocket engines (Tr. 1117, 1119).\u00a0 Some manufacturing work goes on there(Tr. 1118).\u00a0 The employees are mostly engineers and technicians; there areapproximately 1,300 hourly positions at the plant (Tr. 1119).The plating shop, which is the focus of this case, islocated in a rectangular room.\u00a0 Two of its sides are approximately 150 feet long.\u00a0 No dimension was given for the other two sides (Tr. 1120).\u00a0 The plating shopat the time of the inspection contained eight rows of open-surface tanks.\u00a0 The eightrows were designated with the letters A through H.\u00a0 Each row contained six to ninetanks.\u00a0 Each tank in a row would be designated by its row letter and the tank’snumber in the row, e.g., A-1, A-2, A-3, etc. (Tr. 1120-1121).\u00a0 Some of the tankscontained chemical solutions and others were rinse tanks (Tr. 1122).In the summer of 1989, Pratt & Whitney began theprocess of relocating the plating lines (Tr. 23, 1141).\u00a0 This involved emptying outthe tanks, moving pipes and relocating the tanks (Tr. 23, 1131-1132).\u00a0 Thisrenovation process was going on when the splashing incident occurred on August 23, 1989.On that day, William Mousseau and Harry Brockett, bothmaintenance pipe fitters for Pratt & Whitney, were in the plating shop, discussingtheir next assignment.\u00a0 Mousseau estimated that they were standing eight to nine feetfrom the tank designated as E-3[[1]] (Tr. 21, 38, 118).\u00a0 The company’s \”SafetyEngineers Investigation Report,\” introduced into evidence as Exhibit C-2, states thatMousseau and Brockett were standing \”approximately three to five feet west of thetank.\”While they were talking, an electrician, Donald Stoffel,was working on the wiring of the tank’s pump.\u00a0 At that time, the pump wasdisconnected from a filter unit adjacent to the tank.\u00a0 Stoffel momentarily energizedthe pump (bumped it) to check its rotation.\u00a0 Because the pump outlet was notconnected to the filter unit, some of the tank’s solution discharged, splashing Mousseauand Brockett.\u00a0 The solution contained potassium silver cyanide and potassium cyanide,known as \”silver strike solution\” (Ex. C-2, Tr. 40-41, 129).Mousseau was wearing blue jeans, a shirt, socks andsneakers.\u00a0 He was splashed on one calf and foot.\u00a0 Mousseau felt a burningsensation on his leg and went to a nearby sink and rinsed off his leg (Tr. 41, 43). \u00a0Dale Seams, a solution technician, happened by and told Mousseau that mere rinsing of hisleg was inadequate and that he needed to take a shower.\u00a0 Mousseau did so and thenreported to the medical station (Tr. 42-43).\u00a0 Mousseau was examined by a nurse, Ida,and the company doctor, Dr. McCurdy.\u00a0 Mousseau was released from the medical stationbut was then called back.\u00a0 From there Mousseau was taken to the emergency room atPalm Beach Gardens Hospital (Tr. 43-45).Brockett was splashed with the \”silver strikesolution\” from the back of his neck down to his socks (Tr. 129).\u00a0 One of theplaters walked by and told Brockett, \”[T]hat’s silver cyanide….that stuff will killyou, that’s deadly stuff in that, deadly poison…\” (Tr. 130).\u00a0 Upon hearingthis, Brockett \”panicked\” and ran out of the plating area.\u00a0 Brockett got onhis bicycle and rode all the way back to the maintenance shop to shower off.\u00a0 When hearrived there, he discovered that the shower was disconnected.\u00a0 Brockett returned tothe plating area, where he was able to shower (Tr. 131).\u00a0 At that time Brockett felta slight tingling sensation.\u00a0 He reported to the medical station and was released.\u00a0 He was then ordered back to the medical station and was taken from there to thehospital along with Mousseau (Tr. 132-133, 140).ITEM 1: 29 C.F.R. ? 1910.94(d)(9)(i) 29 C.F.R. ? 1910.94(d)(9)(i) provides:All employees working in and around open-surface tankoperations must be instructed as to the hazards of their respective jobs, and in thepersonal protection and first aid procedures applicable to these hazards.A. Res JudicataPratt & Whitney argues that the Secretary is barredfrom bringing this charge by res judicata.\u00a0 Pratt & Whitney bases this defense ona 1986 Review Commission decision, Pratt & Whitney Aircraft Group, Division ofUnited Technologies Corporation, 12 BNA OSHC 1770, 1986 CCH OSHD ? 27,564 (No.80-5830, 1986). \u00a0 In Pratt, the Review Commission reversed the administrative lawjudge’s finding that the company was in violation of ? 1910.94(d)(9)(i) and vacated thecitation item.The Secretary reiterates in her post-hearing brief herargument made at the hearing that Pratt & Whitney failed to plead res judicata as anaffirmative defense in its answer as required by Commission Rule 36(b)(1), 29 C.F.R. ?2200.36(b)(1).[[2]]\u00a0 At the beginning of the hearing, Pratt & Whitney moved toamend its answer to plead res judicata as an affirmative defense (Tr. 15).\u00a0 Theundersigned granted the motion, noting that the Secretary was aware that Pratt &Whitney intended to pursue this defense, and was not surprised or prejudiced by theamendment (Tr. 17-20).\u00a0 That ruling stands.\u00a0 Pratt & Whitney’s res judicatadefense must be addressed.For a prior judgment to bar a subsequent action, it isfirmly established (1) that the prior judgment must have been rendered by a court ofcompetent jurisdiction; (2) that there must have been a final judgment on the merits; (3)that the parties, or those in privity with them, must be identical in both suits; and (4)that the same cause of action must be involved in both suits.Ray v. Tennessee Valley Authority, 677 F.2d 818,821 (11th Cir. 1982).\u00a0 Res judicata bars subsequent litigation in matters that wereactually litigated as well as on every ground of recovery which might have been presented.\u00a0 Id., at 822.The Pratt decision was rendered by the ReviewCommission, a court of competent jurisdiction; the decision was a final judgment on themerits; and the Secretary and Pratt, the parties in the present case, were the sameparties in the previous decision.\u00a0 Thus, the first three elements of the res judicatadefense are met.\u00a0 The fourth element requires that \”the same cause of actionmust be involved in both suits.\”\u00a0 Here, Pratt and Whitney’s defense mustfail.\u00a0 The events that gave rise to the respective causes of action took place almosta decade apart, the first in Connecticut, the present one in Florida.\u00a0 The eventsinvolved different employees engaged in different operations.\u00a0 The cause of actionare not the same and claim preclusion does not apply.B. Collateral EstoppelPratt & Whitney argues that, if the claim preclusionof res judicata does not apply to Item 1, then the issue preclusion of collateral estoppeldoes.Although in a broad general sense the term \”resjudicata\” encompasses the concept of collateral estoppel, strictly speaking they dohave distinct meanings….The doctrine of collateral estoppel precludes relitigation onlyof issues that were actually litigated in the initial suit, whether or not the second suitis based on the same cause of action.Precision Air Parts, Inc. v. Avco Corp., 736 F.2d1499, 1501 (11th Cir. 1984).The formulation of the collateral estoppel standard iswell established:(1) the issue at stake must be identical to the onealleged in the prior litigation; (2) the issue must have been actually litigated in theprior litigation; and (3) the determination of the issue in the prior litigation must havebeen a critical and necessary part of the judgement in that earlier action.McKinnon v. Blue Cross and Blue Shield of Alabama,935 F.2d 1187, 1192 (11th Cir. 1991), quoting Greenblatt v. Drexel Burnham Lambert,Inc., 763 F.2d 1352, 1361 (11th Cir. 1985).It is Pratt & Whitney’s position that the issues inPratt were identical to the issues in the present case: \”(1) whether Pratt &Whitney’s instructions to employees working around open surface tanks comply with ?1910.94(d)(9)(i), (2) whether Pratt & Whitney is required to ensure that employeesworking around open surface tanks use personal protective equipment, and (3) whethergoggles are sufficient eye protection for employees working around open surfacetanks.\”\u00a0 (Pratt & Whitney’s Brief, p. 53).\u00a0 If these were in fact theissues previously litigated, then Pratt & Whitney would have a good argument that theSecretary should be precluded from litigating them in the instant case.\u00a0 Theseissues, however, are too broadly drawn.\u00a0 If every employer could preclude theSecretary from bringing an action in this manner, then the purposes of the Act could beeasily circumvented.Any employer who was charge with the violation of aspecific standard which was subsequently vacated in a Review Commission hearing would befree afterward to violate the same standard with impunity.\u00a0 For example, in Pratt,the Review Commission vacated the citation for the violation of ? 1910.94(d)(9)(i).\u00a0 If, as Pratt & Whitney claims, this precludes the Secretary from litigating theissue of whether its \”instructions to employees working around open surface tankscomply with ? 1910.94(d)(9)(i),\” the Pratt would have license forever after to failto give any instructions whatsoever to its employees working in open tank areas in any ofits facilities.\u00a0 This produces an untenable result.It is necessary to examine the underlying factualsituations in both Pratt and the instant case in order to determine whether the preciseissues litigated in Pratt are the same here.\u00a0 In Pratt, the alleged violationoccurred in the Electro-Chemical Machine Department (\”ECM\”), where airplaneparts were machined to a specified size and shape by an electro-chemical process. \u00a0These parts were then moved to the \”pickling line\” where they were\”pickled\” or cleaned, by dipping them into open surfaced tanks.\u00a0 One of thetanks contained a 35% hydrochloric acid solution, one tank contained a 35% nitric acidsolution, and another tank contained alkali cleaner.\u00a0 Large parts were moved fromtank to tank with a motorized hoist.\u00a0 An operator controlled the hoist by pressing abutton while standing in front of the pickling line.\u00a0 Employees dipped smaller partsby hand.\u00a0 Sometimes employees hand-dipped small bottles or buckets into the acidsolution tanks.The Review Commission held that (Id. at 1772):The burn hazard from the acids was obvious to the ECMoperators based on their knowledge, common sense, and experience.\u00a0 The corrosiveproperty of acids is a matter of common knowledge, and as part of their experience at thepickling line, P & W’s ECM operators saw that the acid solutions ate away at thedeposits on the metal parts being dipped in the two tanks.The present case is distinguishable from Pratt.\u00a0In Pratt, the company’s instructions were deemed adequate under specificcircumstances. \u00a0 The exposed employees were experienced ECM operators who worked on adaily basis with acid.\u00a0 The company could rely on the operator’s experience and thecommon knowledge that acid can cause serious burns.In contrast, the exposed employees in the present casewere pipefitters and an electrician.\u00a0 The hazardous substance was a solutioncontaining cyanide, not acid.\u00a0 The exposed employees did not work in the platingdepartment on a daily basis.\u00a0 While it is common knowledge that ingesting cyanide canbe deadly, it is perhaps less well known that cyanide poses a threat as a result of skincontact.The issue confronted in Pratt was: whether instructions injob hazards, personal protection, and first aid given to experienced operators working ona daily basis with tanks of acid were adequate under the circumstances.\u00a0 The issue inthe present case is: whether instructions in job hazards, personal protection, and firstaid given to maintenance personnel unfamiliar with plating operations who were workingaround tanks containing cyanide solutions were adequate under the circumstances.\u00a0 Theissue in the present case is not identical to the issue litigated in Pratt and collateralestoppel does not apply.C. Instructions as to HazardsHaving concluded that the litigation of Item 1 is notprecluded by res judicata or collateral estoppel, it must now be determined whether Pratt& Whitney violated ? 1910.94(d)(9)(i) in the instant case.\u00a0 The Pratt decisionheld that the cited standard requires \”employers to give instructions that arereasonable under the circumstances.\” Pratt, 12 BNA OSHC at 1722.William Mousseau’s duties at the West Palm Beachfacilities were the installation and maintenance of plumbing fixtures.\u00a0 At the timeof the hearing, Mousseau was working on the plumbing in the plant’s cafeteria (Tr. 22).\u00a0 In August of 1989, Mousseau was working in the plating department helping with itsrenovation.\u00a0 The job involved \”getting rid of tanks, taking tanks out, movingpipes so they can remove the tanks.\u00a0 It’s basically tearing down one complete sectionso it can be redone, rebuilt, and getting another section operational and ready togo.\”\u00a0 (Tr. 23).\u00a0 Before he was assigned to the renovation work in theplating department, Mousseau had no experience working with the open surface tanks. \u00a0Mousseau was given information regarding the contents of specific tanks as he moved them(Tr. 25-26).Mousseau usually asked Dale Seams, a solution technician,about the contents of the tanks as he got around to them (Tr. 27): \”Well, it’s likeif we were getting ready to move something or work around something, you know, he–youknow, immediately I’d either ask him or, you know, somebody would say something about it,or I’d find out what’s in that.\”The word \”cyanide\” was stenciled on tank D-1,but Mousseau did not notice it until after he was splashed with the tank’s contents (Tr.29).\u00a0 No one informed Mousseau about the contents of tank D-1 until after theincident because, Mousseau stated, \”basically, I wasn’t working on the tank itself,so I wasn’t really, you know, concerned with, you know, having to get anything on me,’cause I wasn’t working on that tank.\” (Tr. 30-31).Pratt & Whitney had a labeling system that it used onthe tanks to inform employees of the nature and hazards of their contents.\u00a0 Mousseau\”really didn’t know how to read the labels on the tanks.\”\u00a0 (Tr. 33).Brockett testified that he was given no safetyinstructions regarding working around the tanks at the time he was assigned to the platingdepartment (Tr. 122-123).\u00a0 Brockett was not aware that tank D-1 contained cyanideuntil after he was splashed with its contents.\u00a0 He stated that \”the onlyknowledge that I had received was if I asked.\”\u00a0 (Tr. 124).\u00a0 Brockettreceived general training as to protective clothing but nothing specific as to what isrequired around the tanks of chemicals in the plating department (Tr. 149-150).In its brief, Pratt & Whitney argues that theemployees were provided with protective equipment, that there were signs in the platingdepartment warning employees to wear goggles in marked areas, and that both employees hadattended hazard communication training sessions (Tr. 84-88, 206-207, 1332-1333).\u00a0 Thehazardous communication training took place in 1987 (Tr. 1333).\u00a0 Pratt & Whitneycontends that these steps were sufficient to meet compliance with ? 1910.94(d)(9)(i).In determining the reasonableness of instructions, we mustconsider such factors as the obviousness of the hazard…., the experience of theemployees, the likelihood that an accident would occur, and the degree of harm that wouldresult from an accident.Id., 12 BNA OSHC at 1722 (citation omitted).\u00a0 Each ofthese factors will be considered in turn.(i) THE OBVIOUSNESS OF THE HAZARDNeither Mousseau nor Brockett were aware that tank D-1contained cyanide until after they were splashed with its contents.\u00a0 Pratt &Whitney claims that the tank was labeled, but Mousseau did not know how to read thelabels.\u00a0 Brockett was not familiar with the labeling system (Tr. 147). \u00a0Furthermore, Brockett testified that tank D-1’s label was \”very faded anddiscolored\” (Tr. 149).Not only was the hazard not obvious to Mousseau andBrockett before they were splashed, the seriousness of the accident was not clear to theemployees even after learning that they were splashed with a cyanide solution. \u00a0Mousseau thought it was sufficient to rinse off his leg in a sink.\u00a0 He had to be toldto take a shower.\u00a0 The record establishes that the hazard of being splashed with acyanide solution was not obvious to Brockett and Mousseau.(ii) THE EXPERIENCE OF THE EMPLOYEESMousseau and Brockett were pipefitters who worked in allareas of the West Palm Beach facility.\u00a0 They had no specialized knowledge of theplating department and had not experience in working with the open surface tanks. \u00a0The employees received information about the tanks on a tank-by-tank basis, and then onlyif they asked.(iii) THE LIKELIHOOD THAT AN ACCIDENT WOULD OCCURBesides the actual incident that gave rise to this case,Brockett testified that he accidentally dropped screwdrivers in tanks on two separateoccasions.\u00a0 On one occasion he was wearing protective gear and on the other he wasn’t(Tr. 195).It is clear that a room containing over fifty open surfacetanks (many of which contain hazardous chemicals) which employees must work aroundpresents the possibility of an accident occurring.\u00a0 In this case, an accident didoccur.(iv) DEGREE OF HARM RESULTING FROM ACCIDENTMousseau and Brockett were fortunate in that theysustained no lasting harm from the splashing incident.\u00a0 Dr. Thomas Wilcox testifiedthat cyanide is a toxic substance that will kill a person if it is absorbed into his orher body.\u00a0 The record discloses that cyanide can be absorbed into a person’s bodythrough the skin (Tr. 1456).\u00a0 A person does not have to be totally immersed in a vatof cyanide in order to sustain a toxic exposure (Tr. 1452-1453).\u00a0 Cyanide is anextremely poisonous substance, \”[A]s little as fifteen milligrams can provefatal.\”\u00a0 (Tr. 1457).\u00a0 The Secretary has established that serious physicalharm or death can result from an employees’ exposure to cyanide.The hazard to the employees was not obvious to them, theemployees were not experienced in working in the plating shop, an accident was likely tooccur in the shop, and serious physical harm or death could have resulted from anaccident.\u00a0 Under these circumstances, Pratt & Whitney failed to give adequateinstructions to its maintenance personnel.\u00a0 Mousseau and Brockett were not given anyorientation instructions at the time of their initial assignment, and it was left up tothe employees to inquire as to the contents of the individual tanks.Pratt & Whitney was in serious violation of ?1910.94(d)(9)(i).ITEM 2: 29 C.F.R. ? 1910.132(a)29 C.F.R. ? 1910.132(a), in pertinent part, provides:Protective equipment, including personal protectiveequipment for…….head……shall be provided, used and maintained…….wherever it isnecessary by reason of hazards……encountered in a manner capable of causing injury….OSHA industrial hygienist Peter Foreman observed twomillwrights in the plating shop removing the tank and duct work for tank H-3 (Tr. 344,659-660).\u00a0 The tank and duct work were slightly suspended several inches by cranehoist (Tr. 659, 963).\u00a0 The millwrights were not wearing any form of head protection.\u00a0 Foreman stated that the millwrights were exposed to hazards from working beneaththe tank and duct work, and also from sharp edges and projections of the steel floorgrating (Tr. 323).Donald Cooper was one of the millwrights who Foremanobserved working.\u00a0 Cooper testified that Pratt & Whitney had provided him and hiscrew with hard hats, and that the company had a policy requiring them to wear hard hatswhenever there was an overhead hazard.\u00a0 Cooper and the other millwright had theirhard hats with them that day, but were not wearing them because they perceived no hazardsof head injury in the work they were doing (Tr. 962, 984).It was not possible for anyone to get underneath thesuspended tank.\u00a0 The tank was only six inches off the ground.\u00a0 The purpose oflifting the tank was to move it; there was no reason for anyone to get under it (Tr. 659,959).\u00a0 Cooper explained, \”We were only moving it laterally.\u00a0 We werebringing it out of one corner, twisting it and sitting it over.\”\u00a0 (Tr. 983).Neither was anyone working beneath the suspended duct work(Tr. 964-965).\u00a0 Cooper stated that no one was working directly under the grating.\u00a0 The millwrights were working below the level of the grating, but off to the sidewhere they were not exposed to the sharp edges of the grating (Tr. 965, 967, 979).The Secretary has failed to prove that Pratt &Whitney’s employees were exposed to the hazard of head injuries.\u00a0 No overhead hazardswere presented in the operations they were performing.\u00a0 Pratt & Whitney was notin violation of ? 1910.132(a) for failure to require its employees to use protective headequipment.ITEM 3: 29 C.F.R. ? 1910.132(a)29 C.F.R. ? 1910.132(a) also provides, in pertinent part:Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, [and] protective clothing….shall beprovided, used and maintained….whenever it is necessary by reason of….chemicalhazards…encountered in a manner capable of causing injury or impairment in the functionof any part of the body through absorption, inhalation or physical contact.The Secretary charges that Pratt & Whitney millwrightsin the plating shop were not using chemically impervious suits, aprons, gloves, sleevesand boots during equipment installation work on and around open surface tanks and pipescontaining hazardous chemicals.Foreman observed several solution control employeesemptying a tank containing nitric acid.\u00a0 The solution control employees were wearing\”aprons, boots, respirators, face shields, gloves, and extensive protectiveequipment…\” (Tr. 344, Exs. C-16, C-17).\u00a0 At the same time, millwrights wereworking around the same tank.\u00a0 They were disconnecting the ventilation system fromthe tank and connecting it to a hoist to lift it and hold it while the tank was beingmoved and turned.\u00a0 The millwrights were wearing tyvek suits and goggles (Tr. 344).Millwright Donald Cooper testified that Pratt &Whitney made available protective equipment.\u00a0 \”They always had coveralls and thegloves, goggles, face shields–anything you needed.\” (Tr. 971).Pratt & Whitney argues that the Secretary iscollaterally estopped from litigating whether it was in violation of ? 1910.132(a)because the Review Commission vacated a citation for the violation of ? 1910.94(d)(9) in Pratt,12 BNA OSHC 1770.\u00a0 In Pratt, the company was charged with a violation of?1910.94(d)(9)(iii) and (iv) in that it did not \”provide\” impervious gloves andaprons for employees working at open surface tanks.The cited standards provide:(iii)\u00a0 All persons required to handle work wet with aliquid other than water shall be provided with gloves impervious to such a liquidand of a length sufficient to prevent entrance of liquid into the tops of thegloves.\u00a0 The interior of gloves shall be kept free from corrosive or irritatingcontaminants.(iv)\u00a0 All persons required to work in such a mannerthat their clothing may become wet shall be provided with such aprons, coats,jackets, sleeves, or other garments made of rubber, or of other materials impervious toliquids other than water, as are required to keep their clothing dry.\u00a0 Aprons shallextend well below the top of boots to prevent liquid splashing into the boots.\u00a0Provision of dry, clean, cotton along with rubber shoes or short boots and an apronimpervious to liquids other than water shall be considered a satisfactory substitute whensmall parts are cleaned, plated, or acid dripped in open tanks and rapid work isrequired.\u00a0 (Emphasis added).Sections (iii) and (iv) both mandate that protectiveequipment \”shall be provided\” to employees.\u00a0 The Secretary argued in Prattthat ?? 1910.94(d)(9)(iii) and (iv) should be construed to require the use of protectiveequipment.\u00a0 The Review Commission rejected this argument, holding that the word\”provide\” is not ambiguous and could not be strained to mean \”use\”.\u00a0 \”The Commission, as an adjudicatory body, lacks authority to rewrite thestandards and may not impose on them a meaning that would deprive employers of fair noticeof the conduct required or prohibited.\”\u00a0 Id., 12 BNA OSHC at 1776.\u00a0Because the evidence was undisputed in Pratt, as in the present case, thatprotective equipment was available to the employees, the citation for failure to provideprotective equipment was vacated.In the present case, Pratt & Whitney was cited under? 1910.132(a), which requires that protective equipment be \”provided, used, andmaintained.\”\u00a0 Because this standard explicitly mandates that protectiveequipment be used as well as provided, it is not the identical issue as was litigated in Pratt.\u00a0Absent identical issues, a collateral estoppel claim must fail.Pratt & Whitney raises a further argument that hasmore merit.\u00a0 The company argues that ?? 1910.94(d)(9)(iii) and (iv) are specificstandards that address protective equipment repaired for employees working around opensurface tanks.\u00a0 Section 1910.94(d) is captioned \”Open surface tanks\” and ?1910.94(d)(9) is captioned \”Personal protection.\”\u00a0 Section 1910.132(a) is ageneral standard which is contained within Subpart I, \”Personal ProtectiveEquipment,\” and is captioned \”General requirements.\”29 C.F.R. ? 1910.5(c)(1) provides in pertinent part:If a particular standard is specifically applicable to acondition, practice, means, method, operation, or process, it shall prevail over anydifferent general standard which might otherwise be applicable to the same condition,practice, means, method, operation or process.29 C.F.R. ? 1910.5(c)(2) provides:On the other hand, any standard shall apply according toits terms to any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in Subpart B or Subpart R ofthis part, to the extent that none of such particular standards apply.It must be determined whether ? 1910.94(d)(9) is\”specifically applicable\” to the cited condition.\u00a0 The hazard at issue isexposure to hazardous chemicals in and around open surface tanks.\u00a0 The Secretaryspecifically cited Pratt & Whitney for failure of its employees to use\”chemically impervious suits, aprons, gloves, sleeves, and boots.\”\u00a0 Section1910.132(a) requires the use of \”personal protective equipment for eyes, face, head,and extremities…whenever it is necessary by reason of…chemical hazards…\” \u00a0Section 1910.94(d)(9)(iii) and (iv) specifically require the employer to provide employeesworking around open surface tanks with gloves, aprons, coats, jackets, sleeves, andboots.\u00a0 Sections 1910.94(d)(9)(iii) and (iv) are clearly more specific to the citedcondition than ? 1910.132(a).The Secretary cites Bratton Corp., 14 BNA OSHC1893, 1990 CCH OSHD ? 29,152 (No. 83-132, 1990), for the proposition that, where the\”more specific\” standard fails to prevent certain hazards, the\”general\” standard applies if it provides the protection that the \”morespecific\” standard omits. \u00a0 In Bratton, the employer was a steel erectioncontractor.\u00a0 It was charged with a violation of ? 1926.28(a),[[3]] a generalstandard requiring the wearing of personal protective equipment.\u00a0 Brattonargued that ? 1926.28(a) did not apply because it was preempted by ?1926.750(b)(2)(i),[[4]] a specific steel erection standard.\u00a0 The Review Commissionruled that the general standard was applicable in that case because ? 1926.750(b)(2)(i)addressed only interior fall hazards, affording no protection against exterior fallhazards.The Review Commission held:We agree with the various appellate court decisions thathave drawn a distinction between interior and exterior fall hazards and hold that thesteel erection standards in Subpart R do not preempt application of the generalconstruction standards to steel erection work \”where general standards providemeaningful protection to employees beyond the protection afforded by the steel erectionstandards… Williams Enterprises, Inc., 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD? 26,542, p. 33,877 (No. 79-843, 1983), aff’d in pertinent part, 744 F.2d 170(D.C. Cir. 1984).Bratton, 1990 CCH OSHD at p. 38,992.The Secretary argues that there is a distinction betweenthe hazards addressed by ? 1910.132(a) and ? 1910.94(d)(9)(iii) and (iv).\u00a0 TheSecretary states that item 3 \”is not confined to work around open surface tanks inplating operations and the attendant dripping and splashing hazard.\u00a0 It pertains to’employees during equipment installation on and around open surfaces, tanks andpipes containing hazardous chemicals.’\u00a0 (Secretary’s brief, p. 14, emphasis inoriginal). \u00a0 Apparently the Secretary considers the addition of the words\”equipment installation work\” and \”pipes\” in the citation tosignificantly alter the meaning of in and around open surface tank operations contained in? 1910.94(d). \u00a0 The undersigned disagrees.\u00a0 The hazard presented in both casesis contact with hazardous chemicals.\u00a0 The phrase \”equipment installation work onand around open surface tanks and pipes\” encompasses \”in and around open surfacetank operations.\”The general personal protection equipment standard, ?1910.132(a) is preempted by the more specific standard, ? 1910.94(d)(9)(iii) and (iv), asprovided for in ? 1910.5(c)(1).\u00a0 Item 3 is vacated.Even if the cited standard was not preempted by ?1910.94(iii) and (iv), item 3 would still be vacated because Pratt & Whitney wasdenied fair notice.\u00a0 \”An employer lacking fair notice of a standard cannot befound in violation of the act for failure to comply with that standard.\” \u00a0 Bratton,1990 CCH OSHD at p. 38, 992.\u00a0 In Pratt, the company was charged with thefailure to require its employees to use gloves and aprons, just at Pratt & Whitney wascharged in the present case.\u00a0 The standards cited were ?? 1910.94(d)(9)(iii) and(iv).\u00a0 The Review Commission vacated the items, holding that the standards\”require only that….protective equipment must be made available.\”\u00a0 Pratt,12 BNA OSHC at 1776.It was entirely reasonable for Pratt & Whitney toassume, based on the Pratt decision, that it was not required by the Act to ensurethat its employees actually used protective equipment, but was only required to make suchequipment available.\u00a0 To charge Pratt & Whitney with the same violation using adifferent standard violates its right to fair notice.The purpose of OSHA is to obtain safe and healthfulworking conditions through promulgation of occupational safety and health standards whichtell employers what they must do to avoid hazardous conditions.\u00a0 To strain the plainand natural meaning of words for the purpose of alleviating a perceived safety hazard isto delay the day when the occupational safety and health regulations will be written inclear and concise language so that employers will be better able to understand and observethem.Diamond Roofing, 528 F.2d 645, 650 (5th Cir. 1976).In Pratt, the Review Commission noted that theSecretary \”could have promulgated a standard imposing a use requirement as suggestedby the Second Circuit in a case involving a similar standard…\”Pratt, 12 BNAOSHC at 1775. \u00a0 Her failure to do so cannot be remedied by substituting a generalstandard requiring use of a more specific standard that requires only availability.\u00a0Pratt & Whitney was not in violation of ? 1910.132(a).ITEM 4: 29 C.F.R. ? 1910.133(a)(1)29 C.F.R. ? 1910.133(a)(1) provides:Protective eye and face equipment shall be required wherethere is a reasonable probability of injury that can be prevented by such equipment.\u00a0 In such cases, employers shall make conveniently available a type of protectorsuitable for the work to be performed, and employers shall use such protectors.\u00a0 Nounprotected person shall knowingly be subjected to a hazardous environmental condition.\u00a0 Suitable eye protectors shall be provided where machines or operations present thehazard of flying objects, glare, liquids, injurious radiation, or a combination of thesehazards.The Secretary alleges that protective face shields werenot use by employees during equipment installation work on and around open surface tanksand pipes containing hazardous chemicals.\u00a0 The solution control employees who wereemptying the tank containing nitric acid were wearing full-face piece respirators with aface protection on them (Ex. C-16, Tr. 361).\u00a0 Millwrights working around the sametank were wearing only goggles (Ex. C-11, Tr. 363-364).In dealing with open surface tanks, reference must be madeto ? 1910.94(d)(9)(v), which provides:Whenever there is a danger of splashing, for example, whenadditions are made manually to the tanks, or when acids and chemicals are removed from thetank, the employees so engaged shall be required to wear either tight-fitting chemicalgoggles or an effective face shield.\u00a0 See ? 1910.133.Section 1910.94(d)(9)(v) requires that either goggles orface shields be worn by employees working around open surface tanks.\u00a0 The Secretaryargues that \”this provision should not be interpreted as giving the employer theoption of requiring the use of one or the other.\”\u00a0 (Secretary’s brief, p. 17).\u00a0 Pratt & Whitney takes issue with the Secretary’s interpretation of thestandard.As with item 3, supra, the question of fair noticeis raised regarding this item.\u00a0 In two previous cases to which Pratt & Whitneywas a party, it was found in violation of ? 1910.94(d)(9)(v) for failing to require itsemployees to wear either goggles or face shields.\u00a0 In Pratt & Whitney Aircraft,9 BNA OSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401, 1981), the company was found inviolation for failing to require the use of either goggles or face shields by itsemployees who were working around open surface tanks in the plating department. Havingbeen issued a Review Commission decision explicitly stating that employees working aroundopen surface tanks in the plating department must wear either goggles or face shields, itwas only reasonable for Pratt & Whitney to assume that it was on safe ground requiringits employees to wear one or the other of these protective devices as such circumstances.\u00a0 Employers should be able to place some reliance on Review Commission decisions,especially when they involve the same employer in similar circumstances.To hold Pratt & Whitney in violation of ?1910.133(a)(1) in this instance would be to work an injustice on the company.\u00a0 Theundersigned declines to do so.\u00a0 Pratt & Whitney was not in violation of ?1910.133(a)(1).ITEM 5: 29 C.F.R. ? 1910.134(e)(3)29 C.F.R. ? 1910.134(e)(3) provides:Written procedures shall be prepared covering safe use ofrespirators in dangerous atmospheres that might be encountered in normal operations or inemergencies.\u00a0 Personnel shall be familiar with these procedures and the availablerespirators.During his inspections, Foreman observed two empty boxesoutside the wall to the plating department.\u00a0 At one time the boxes had containedself-contained breathing apparatuses (SCBAs) (Ex. C-18, Tr. 387).\u00a0 The SCBAs had beenremoved from the plating department sometime in 1988 and given to the fire department (Tr.1287).\u00a0 A sign on the cabinets informed employees the SCBAs were removed and to callthe fire department in the event of an emergency (Ex. C-18, Tr. 390).\u00a0 The SCBAs hadbeen removed because the company determined that it preferred to use emergency personnel(Tr. 1287-1289).The fire department is a separate department within thefacility.\u00a0 Foreman did not inspect or try to determine what procedures were availablein the fire department regarding the SCBAs (Tr. 543, 1199).The Secretary has failed to establish a violation of thisstandard.\u00a0 If no SCBAs are available for use, no written procedures are required.\u00a0 The Secretary failed to prove that the fire department, which did have SCBAs, didnot have the written procedures covering their use.\u00a0 Pratt & Whitney was not inviolation of ? 1910.134(e)(3).ITEM 6a: 29 C.F.R. ? 1910.145(c)(2)(i)29 C.F.R. ? 1910.145(c)(2)(i) provides:Caution signs shall be used only to warn against potentialhazards or to caution against unsafe practices.Pratt & Whitney had caution signs posted at bothentrances to the plating shop (Exs. C-21, R-7, R-8, Tr. 582).\u00a0 At one entrance of theplating shop, the caution sign reads, \”Caution, safety glasses required in thisarea.\”\u00a0 (Ex. R-7, Tr. 580-581).\u00a0 At the other entrance to the plating shopare a caution sign and a notice that reads, \”Safety control area, see foreman beforeentering.\”\u00a0 (Ex. R-8, Tr. 582).\u00a0 Foreman testified, and the Secretaryargues, that an adequate warning should at least have said \”caution, chemical hazardarea.\”\u00a0 (Tr. 414).The cited standard does not mandate specific language tobe used on the warning signs.\u00a0 Pratt & Whitney cannot be held in violation of ?1910.145(c)(2)(i) merely because it did not foresee the exact wording that Foreman woulddeem appropriate.\u00a0 Whether Pratt & Whitney violated the standard must bedetermined by looking at the adequacy of the signs it actually did post.The standard provides that caution signs shall be used to\”warn against potential hazards\” or \”to caution against unsafepractices.\”\u00a0 Pratt & Whitney’s sign warning, \”Caution, safety glassesrequired in this area,\” is a sign warning against an unsafe practice, i.e., notwearing safety glasses.\u00a0 The sign stating, \”Safety control area, see foremanbefore entering,\” falls into the first category as a warning against potentialhazards.Is \”Caution, safety control area\” adequate tomeet the requirements of ? 1910.145(c)(2)(i)?\u00a0 The Secretary would have accepted\”Caution, chemical hazard area.\”\u00a0 The difference then, is between the words\”safety control\” and \”chemical hazard.\”\u00a0 While the latter is morespecific as to the nature of the potential hazard, \”Caution, safety controlarea\” puts any employee reading the sign on notice.\u00a0 \”Safety controlarea\” implies that there is a reason for safety control, namely a hazardouscondition.\u00a0 Combined with the word \”caution,\” a reasonable person would bewarned that some potential hazard was present.\u00a0 Perhaps the warning is not asdetailed as the Secretary wants, but the standard is worded in very broad terms.\u00a0 Ifthe Secretary wants to require signs stating \”chemical hazard area\” in areaswhere chemical hazards exist, she must make the standard more explicit.\u00a0 \”Theresponsibility to promulgate clear and unambiguous standards is upon the Secretary. \u00a0The test is not what he might possibly have intended, but what he said.\u00a0 If thelanguage is faulty, the Secretary has the means and the obligation to amend.\” \u00a0General Electric Co. v. OSHRC, 583 F.2d 61, 67 (2nd Cir. 1978) (quoting Bethlehem SteelCorp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978).Pratt & Whitney was not in violation of ?1910.145(c)(2)(i).ITEM 6b: 29 C.F.R. ? 1910.145(c)(3)29 C.F.R. ? 1910.145(c)(3) provides:Safety instruction signs shall be used where there is aneed for general instructions and suggestions relative to safety measures.Pratt & Whitney had labels posted on each tank,identifying the tank’s contents.\u00a0 As noted in the discussion of item 1, supra, themaintenance employee did not understand how to read the labeling system.\u00a0 Themaintenance personnel were the very employees who most need general instructions as tosafety measures, because they were the ones most unfamiliar with the chemical hazards.\u00a0 As was made evident by Mousseau’s and Brockett’s reaction to being splashed withthe cyanide solution, suggestions relative to safety measures were needed.Pratt & Whitney was in serious violation of ?1910.145(c)(3).ITEM 7: 29 C.F.R. ? 1910.145(f)(5)29 C.F.R. ? 1910.145(f)(5) provides:Danger tags shall be used in major hazard situations wherean immediate hazard presents a threat of death or serious injury to employees. \u00a0Danger tags shall be used only in these situations.No danger tag was placed on the pump for tank D-1 after itwas disconnected.\u00a0 On August 23, 1989, the electrician Stoeffel activated the pump,resulting in Mosseau and Brockett getting splashed with the cyanide solution.Pratt & Whitney argues that the standard isinapplicable to the situation at issue because it was not a \”major hazard\”situation where \”an immediate hazard presents a threat of death or serious injury toemployees.\”\u00a0 This Court concludes that no \”immediate hazard\” waspresented.As long as the pump was not activated, there was no hazardto anyone of being splashed by the cyanide solution.\u00a0 \”Immediate\” connotesa sudden event with no lapse of time.\u00a0 It took the intervening force of theelectrician to cause the hazard to the employee.Support of this interpretation can be found elsewhere inthe standard.\u00a0 Section 1910.145(f)(6) provides:Caution tags shall be used in minor hazard situationswhere a non-immediate or potential hazard or unsafe practice presents a lesser threat ofemployee injury.\u00a0 Caution tags shall be used only in these situations.Section 1910.145(f)(7) provides:Warning tags may be used to represent a hazard levelbetween \”Caution\” and \”Danger,\” instead of the required\”Caution\” tag, provided that they have a signal word of \”Warning,\” anappropriate major message, and otherwise meet the general tag criteria of paragraph (f)(4)of this section.A warning tag, rather than a danger tag, would have beenthe more appropriate tag in this instance.\u00a0 The warning tag standard requires\”an appropriate major message.\”\u00a0 Reference to the definition section of thestandard at ? 1910.145(f)(2) reveals that \”major message\” is defined as\”that portion of a tag’s inscription that is more specific than the signal word andthat indicates the specific hazardous condition or the instruction to be communicated tothe employee.\u00a0 Examples include:….\”Do Not Start,\” or \”Do NotUse\”…..A warning tag containing the major message \”Do NotActivate\” was clearly more appropriate to the disconnected pump on tank D-1 than wasa danger tag.\u00a0 Use of a danger tag would have constituted a violation of ?1910.145(f)(5), which states that danger tags shall be used only in major hazardsituations where an immediate hazard exists.Pratt & Whitney was not in violation of ?1910.145(f)(5).ITEM 8b: 29 C.F.R. ? 1910.1200(f)(5)(i)29 C.F.R. 1910.1200(f)(5)(i) provides:Except as provided in paragraphs (f)(6) and (f)(7) theemployer shall ensure that each container of hazardous chemicals in the workplace islabeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s) containedtherein…….In item 8b(a), the Secretary alleged that Pratt andWhitney had several containers which were not labeled with appropriate hazard warningsidentifying hazardous chemicals contained therein.\u00a0 The citation specified thefollowing containers as lacking adequate labels: Niposit NL-62R, ExMac 64 Reducer,Plastisol, Cupric Sulfate, Edwal Hardener Fixer, Picard Acid Wetting Agent, PMC 1609-2,Edwal Quick Fix, PMC 1632-1, Barrett Snac, and 9 PMC-1622-1.Foreman observed containers of Niposit NL-62R and Ex Mac64 Reducer (Ex. C-21).\u00a0 After looking at the Material Safety Data Sheets (MSDSs),Foreman determined that the two containers lacked adequate warning labels (Tr. 436-438).\u00a0 These containers were labeled with the manufacturer’s labels (Tr. 438, 594).As Pratt & Whitney points out, ? 1910.1200(d)(1)provides:(emphasis added):Chemical manufacturers and importers shall evaluatechemicals produced in their workplaces or imported by them to determine if they arehazardous.\u00a0 Employers are not required to evaluate chemicals unless they choosenot to rely on the evaluation performed by the chemical manufacturer or importer for thechemical to satisfy this requirement.Because it is undisputed that it was the manufacturer’slabels on the containers of Niposit NL-62R and Ex Mac 64 Reducer, Pratt & Whitneycannot be held liable for the inadequate labels.Exhibit C-22 shows a five-gallon jug labeled plastisolPMC-1671, and \”in house\” container that had no hazard warning label at all.\u00a0 The Secretary failed to prove that the plastisol container contained a hazardouschemical (Tr. 446-451).\u00a0 Therefore, Pratt & Whitney cannot be held in violationfor failure to label this container.Exhibit 23 shows a container of cupric sulfate PMC-1322.\u00a0 The Manufacturer’s label did not contain warnings of hazards listed in thechemical’s MSDS (Tr. 452).\u00a0 As it was labeled by the manufacturer, Pratt &Whitney is not responsible for any of the label’s defects.The MSDS for Edwal Hardener Fixer indicates that itcontains sulfuric acid, acetic acid, and aluminum sulfate, which can cause severeirritation to the nose, mouth, skin, and respiratory system.\u00a0 There was no warninglabel whatsoever on the container (Tr. 455).\u00a0 Pratt & Whitney is responsible forthe failure to label this container.The Picard Acid Wetting Agent was labeled with aninadequate manufacturer’s label, for which Pratt & Whitney was not responsible (Tr.456).Exhibit C-25 shows two five-gallon plastic pails labeledPMC-1632 (Tr. 464).\u00a0 PMC-1632 contains non-ionic polyoxyethylated detergent, which isa skin and eye irritant.\u00a0 There were no warning labels on the container (Tr. 465).Exhibit C-24 shows a container of Edwal Quick Fix. \u00a0The manufacturer’s label is covered over with a Pratt & Whitney label (Tr. 461).\u00a0Because this container is one of the containers at issue in item 8c, it will not beconsidered here.Exhibit C-26 shows a container of Barrett Snac with amanufacturer’s label on it (Tr. 465-467).\u00a0 Any defects in the label are theresponsibility of the manufacturer.Exhibit C-27 shows a container marked 9 PMC-1622-1. \u00a0It is labeled with a Pratt & Whitney label and contains no hazard warning. \u00a0 Thesubstance is Agent\/Wetting – for acid cleaners.\u00a0 The Secretary did not have an MSDSfor the substance.\u00a0 Any hazards that the substance may present were not brought outat the hearing (Tr. 467-468).Of the substances listed in the citation, only two, EdwalHardener Fixant and PMC 1632-1, had defective labels which were Pratt & Whitney’sresponsibility.\u00a0 These two substances posed threats of respiratory, skin, and eyeirritation.Item 8b(b) alleges that certain tanks and a bottle in theplating shop were not identified with appropriate hazard warnings.Pratt & Whitney conceded that the bottle labeled PS607 was labeled incorrectly (Ex. C-35).\u00a0 The bottle contained chromic acid and shouldhave been labeled with an asterisk and a reactivity rating of 1 or 2 instead of a 0 (Tr.511-512, 1050-1051).Foreman testified that tank F-2, which containedhydrochloric acid, should have been marked with a reactivity rating of 2 instead of 0 (Ex.C-28, Tr. 471), and tank H-3, containing nitric acid solution, should have a reactivityrating of 1 or 2 instead of 0 (Ex. C-9, Tr. 475-477).Tank H-5 contained electroless nickel plating solution(Ex. C-30, Tr. 480).\u00a0 It should have been marked with a higher reactivity rating than0 (Tr. 481).Lynn Hamel is an industrial hygienist for Pratt &Whitney (Tr. 993-994).\u00a0 She is in charge of the company’s hazardous materialsidentification system (HMIS) (Ex. R-14, Tr. 1004).\u00a0 Pratt & Whitney usesnumerical ratings for reactivity which are set by the National Fire Protection Association(NFPA).\u00a0 Hamel testified that she used no independent judgment in assigning theratings; they are taken directly from NFPA standard 704 (Ex. R-14, Tr. 1013).The Secretary offered no evidence other than Foreman’stestimony that the reactivity ratings were inaccurate.\u00a0 His testimony alone, whencountered by Hamel’s testimony and Exhibit R-14, does not meet the Secretary’s burden ofproof.\u00a0 It cannot be determined from the record whether or not the reactivity ratingswere too low.The Secretary has established with regard to item 8b thatPratt & Whitney failed to have adequate hazard warnings for two chemical substances,both of which had the potential to cause skin, eye, and respiratory irritation. \u00a0Pratt & Whitney is in serious violation for those substances only.ITEM 8c: 29 C.F.R. ? 1910.1200(f)(8)29 C.F.R. 1910.1200(f)(8) provides:The employer shall not remove or deface existing labels onincoming containers of hazardous chemicals, unless the container is immediately markedwith the required information.The Secretary charges that Pratt and Whitney hadcontainers of hydrochloric acid, hydrofluoric acid, and Edwal Quick Fix on which thelabels were defaced.Exhibit C-24 shows a container of Edwal Quick, whichcontains acetic acid, sodium thiosulfate, ammonium thiosulfate, and boric acid.\u00a0 ThePratt & Whitney label covered the back of the manufacturer’s label (Tr. 461-463).\u00a0 Exhibit C-31 shows a hydrochloric acid container with a label written over in magicmarker.\u00a0 Exhibit C-32 shows plastic jugs of hydrofluoric acid with white stickersover the labels of two of them (Tr. 482).\u00a0 The Secretary has established that theforegoing labels were obscured and did not convey an adequate warning.Pratt & Whitney was in serious violation of ?1910.1200(f)(8).ITEM 9: 29 C.F.R. 1910.1200(h)29 C.F.R. 1910.1200(h) provides: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.(1) Information.\u00a0 Employees shall be informedof:(i) The requirements of this section;(ii) Any operations in their work area where hazardouschemicals are present; and,(iii) The location and availability of the written hazardcommunication program, including the required list(s) of hazardous chemicals, and materialsafety data sheets required by this section.(2) Training.\u00a0 Employee training shall includeat least:(i) Methods and observations that may be used to detectthe presence or release of a hazardous chemical in the work area (such as monitoringconducted by the employer, continuous monitoring devices, visual appearance or odor ofhazardous chemicals when being released, etc.);(ii) The physical and health hazards of the chemicals inthe work area;(iii) The measures employees can take to protectthemselves from these hazards, including specific procedures the employer has implementedto protect employees from exposure to hazardous chemicals, such as appropriate workpractices, emergency procedures, and personal protective equipment to be used; and,(iv) The details of the hazard communication programdeveloped by the employer, including an explanation of the labeling system and thematerial safety data sheet, and how employees can obtain and use the appropriate hazardinformation.Pratt & Whitney had a very good written hazardcommunication training program.\u00a0 Dr. Isabel Perry put together and implemented theprogram, which included a booklet of MSDSs (Exhibit R-1) and training sessions conductedby Dr. Perry (Tr. 1271).\u00a0 The course was approximately two hours long and was offeredevery thirty days.\u00a0 Dr. Perry used slides in the course and administered aquestionnaire afterwards (Exs. R-25, R-26, Tr. 1271, 1273, 1275, 1277).Despite the quality of the written hazard communicationprogram, there was an apparent problem with its communication to Pratt and Whitney’semployees.\u00a0 Foreman questioned platers, plumbers, electricians, and the electrical,pipefitting, and plating shop supervisors (Tr. 287).\u00a0 Foreman found that there were anumber of inadequacies in the employees’ training.\u00a0 Most employees were aware of thehazard communication program but many did not know where to find it.\u00a0 Many were notaware of the MSDS system.\u00a0 Some were unsure of the numerical hazard rating system.\u00a0 Many did not understand what an \”S\” meant (\”Refer tosupervisor\”) or what protective equipment they should wear in specific situations.\u00a0 They were unaware of the carcinogens they were working with (Tr. 289-291). \u00a0Platers told of sticking their bare hands into tanks containing nickel to neutralizechemicals they got on their hands.\u00a0 Skin lesions can develop from such a practice(Tr. 493-495).Most of the employees did not understand the labelingsystem.\u00a0 They were unaware of the meaning of an asterisk on a warning label(indicating a chronic health hazard) (Tr. 295).The Secretary has established that Pratt & Whitney wasin serious violation of ? 1910.1200(h).PENALTY DETERMINATIONThe Commission is the final arbiter of penalties in allcontested cases.\u00a0 Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438(8th Cir. 1973).\u00a0 Under 17(j) of the Act, the Commission is required to fined andgive \”due consideration\” to the size of the employer’s business, the gravity ofthe violation, the good faith of the employer, and the history of previous violations indetermining the appropriate penalty.Pratt & Whitney employed approximately 8,000employees.\u00a0 No history of previous violations at that particular facility was shownand no basis was given for doubting Pratt & Whitney’s good faith.\u00a0 All of theviolations that the Secretary established posed potential hazards of death or seriousphysical harm.\u00a0 After due consideration, the following penalties are deemedappropriate:Item\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Penalty1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$1,0006b\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a05008b\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01008c\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01009\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01,000FINDINGS OF FACT AND CONCLUSIONS OF LAWThe foregoing decision constitutes the findings of factsand conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).ORDERBased upon the foregoing decision, it is hereby ORDEREDthat the items contained in Citation No. 1 shall be disposed of as follows:ITEM\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0DISPOSITION\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0PENALTY1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Affirmed\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$1,0002\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-6a\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-6b\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Affirmed\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a05007\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-8a\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Vacated\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0-0-8b\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Affirmed as to\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0100\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Edwal Hardene\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Fixant, PMC-1632,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0and PS 6078c\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Affirmed\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01009\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Affirmed\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01,000Dated this 24th day of October, 1991.EDWIN G. SALYERSJudgeFOOTNOTES:[[1]]\u00a0 At the time of the splashing incident, thetank was designated as E-3.\u00a0 Due to its relocation during the renovation, it wassubsequently designated as D-1.\u00a0 The tank was referred to as D-1 throughout much ofthe testimony.\u00a0 For the purposes of this decision, it shall be understood that E-3and D-1 refer to the same tank.[[2]] Rule 36(b)(1) provides in pertinent part:The employer shall state in its answer in separatenumbered paragraphs any matter that may constitute…an affirmative defense…..Suchmatters include, but are not limited to, the following: …..res judicata……..[[3]] 29 C.F.R. ? 1926.28(a) provides:The employer is responsible for requiring the wearing ofappropriate personal protective equipment in all operations where there is an exposure tohazardous conditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[[4]] 29 C.F.R. ? 1926.750(b)(2)(i) provides:Where skeleton steel erection is being done, a tightlyplanked and substantial floor shall be maintained within two stories or 30 feet, whicheveris less, below and directly under that portion of each tier of beams on which any work isbeing performed, except when gathering and stacking temporary floor planks on a lowerfloor, in preparation for transferring such planks for use on an upper floor.\u00a0 Wheresuch a floor is not practicable, paragraph (b)(1)(ii) of this section applies.`”