“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?4333 \u00a0 WEATHERBY ENGINEERING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 10, 1981DECISIONBEFORE: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Dee C. Blythe is before the Commission forreview pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?).[1] The Respondent, WeatherbyEngineering Co., was cited for, among other things, an alleged seriousviolation of the Act based on a failure to comply with the scaffolding standardat 29 C.F.R. ? 1910.28(a)(3).[2] The judge vacated thatitem because the Commission had previously determined that the cited standardwas invalidly promulgated and unenforceable. Specifically, Judge Blythe citedand followed the Commission?s decision in KennecottCopper Corp., 76 OSAHRC 81\/A2, 4 BNA OSHC 1400, 1976?77 CCH OSHD ?\u00a020,860(No. 5958, 1976), aff?d, 577 F.2d1113 (10th Cir. 1977) (hereafter ?Kennecott?).The secretary petitioned for review, urging the Commission to reverse itsposition. Chairman Cleary directed the case for review to consider whether thejudge erred in vacating the item on the ground that 29 C.F.R. ? 1910.28(a)(3)is unenforceable by reason of invalid promulgation.??????????? Theonly issue on review is essentially whether the Commission should reverse itsdecision in Kennecott. In Kennecott the Commission held that section1910.28(a)(3)?the standard at issue in this case?was invalidly promulgated andunenforceable. Specifically, the Commission noted the Secretary?s substitutionof the word ?shall?, see note 2 supra, for ?should? when he purportedly adoptedan American National Standards Institute (?ANSI?) standard as a nationalconsensus standard pursuant to section 6(a) of the Act, 29 U.S.C. ? 655(a). Asit now reads the standard is mandatory whereas the ANSI source standard wasadvisory. In Kennecott the Commission held that the word change was asubstantive change requiring the Secretary to use section 6(b) notice andcomment procedures. See generally section 6(b) of the Act, 29 U.S.C. ? 655(b).Although the Secretary continues to disagree with the Kennecott holding, heoffers no new arguments in support of his position.[3]??????????? Inaddition to disputing the reasoning of Kennecott, the Secretary argues thatRespondent has merely asserted ?alleged procedural defects? in the promulgationprocess and that the Commission does not have jurisdiction to consider thistype of challenge to a standard?s validity in enforcement proceedings. Thus,the Secretary argues that the Commission should not have entertained theprocedural arguments of the employer in Kennecott, the Commission?s decision inthat case was in error, and the Commission should not consider the proceduralchallenge in this case. For support the Secretary cites National Industrial Constructors, Inc. v. OSHRC & Marshall, 583F.2d 1048 (8th Cir. 1978) (?NIC?).The employer?s challenge in NIC,however, focused on procedural irregularities involved in the promulgation ofthe underlying established federal standard that was subsequently adopted bythe Secretary pursuant to section 6(a) of the Act. The issue in Kennecott, on the other hand, concerneda change in language in the course of the section 6(a) ?adoption.? In Rockwell International Corp., 80 OSAHRC??, 9 BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12740, 1980), we recentlyreconsidered the issue of whether procedural challenges may be raised inCommission enforcement proceedings. We concluded that procedural challenges ofthe type now before us, where the language of a section 6(a) standard isaltered from the language of the source standard purportedly adopted, mayproperly be raised in an enforcement proceeding before the Commission.[4]??????????? Accordingly,we leave the Kennecott decision intact, hold that the standard at 29 C.F.R. ?\u00a01910.28(a)(3)is unenforceable, and affirm the judge?s decision vacating the item of thecitation that alleges a violation of the Act based on noncompliance with thatstandard.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: FEB 10, 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?4333 & 78-0611 \u00a0 WEATHERBY ENGINEERING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 3, 1978DECISION AND ORDERAppearances:Jane A. Matheson, Esq., of Dallas, Texas,for the complainant.Edward M. Morris, of Corpus Christi,Texas, for the respondent.?STATEMENT OF THE CASEBLYTHE, Judge:??????????? Theseconsolidated proceedings were brought before the Occupational Safety and HealthReview Commission (?the Commission?) pursuant to ? 10 of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651, et seq. (?the Act?), contestingthree citations issued by the complainant, the Secretary of Labor (?theSecretary?), to the respondent, Weatherby Engineering Co. (?Weatherby?), underauthority vested in the Secretary by ? 9(a) of the Act.??????????? Asthe result of an inspection conducted on September 15, 1977, and November 4,1977, of a workplace at Corpus Christi, Texas, where Weatherby was fabricatingmodules for offshore oil drilling platforms, three citations were issued to it,two on November 23, 1977, and the third on January 24, 1978, alleging that it violated? 5(a)(2) of the Act in that it failed to comply with certain safety standardspromulgated by the Secretary. Weatherby gave timely notice of contest of thefirst two citations on December 10, 1977, and of the third citation on February3, 1978, and thereafter a complaint and an answer were filed with theCommission in each case. The two cases were consolidated for hearing and decision.??????????? Ahearing was convened at Corpus Christi, Texas, on June 1, 1978. No affectedemployee or representative of affected employees participated in thisproceeding. Both of the parties have submitted post-hearing briefs.??????????? Atthe hearing, Weatherby stipulated that it was an employer subject to the Act(Tr. 10). The issues to be determined are:??????????? 1.Whether Weatherby?s defense was prejudiced by complainant?s failure to supplyit with documents and photographs requested under the Freedom of InformationAct.??????????? 2.Whether the complaint should be dismissed on the ground that a search warrantshould have been obtained by the Secretary after Weatherby informed thecompliance officer that ?any information or materials gathered would beconsidered illegal.???????????? 3.Whether Weatherby seriously violated 29 CFR 1910.23(c)(2).??????????? 4.Whether Weatherby seriously violated 29 CFR 1910.28(a)(3).??????????? 5.Whether Weatherby repeatedly violated 29 CFR 1910.23(a)(7).??????????? 6.The appropriate penalties for any violations found.DISCUSSION AND OPINION??????????? Theinspection here involved originated from an anonymous complaint and a referralfrom another compliance officer to Mark S. Wilson, an OSHA industrialhygienist, who was concerned primarily with whether spray painters were exposedto an impermissible amount of disphenol-A. Wilson did not detect enoughdisphenol-A for issuance of a citation, but while at Weatherby?s workplace heobserved other conditions for which citations were issued.??????????? Weatherbywas building modules which were destined to be installed on offshore oildrilling platforms. The one here involved, called a utility module, was ineffect a two-story structure and housed an office, living quarters, andequipment for pumping natural gas. It has a permanent runway around itsexterior at the second-floor level, and all but one of the citations involvethis runway.??????????? First,however, it will be necessary to deal with issues not directly concerningmerits of the alleged violations which Weatherby has raised.??????????? TheFreedom of Information Act issue.??????????? Weatherby?spost-hearing brief (pp. 1?2) contends that the Secretary should have supplieddocuments and photographs requested ?pursuant to the Freedom of Information Act[5] and applicable legalrights,? by letter dated May 10, 1978, addressed to the assistant regionalsolicitor representing the Secretary. It contends that ?[t]he Respondent?srights in this litigation have been sorely tried? by the Secretary?s failure toprovide the requested items but does not say in what respect, if any, itsdefense was prejudiced thereby. Neither does it say what relief it now desiresfrom the Commission.??????????? Byletter dated May 25, 1978, the OSHA Area Director denied Weatherby?s request(except for the citation, notice of proposed penalty and notice of contest),claiming that exemption (7) of 5 U.S.C. ? 552(b) applied to the other itemsrequested, which were:??????????? 1.Copies of each photo taken during the inspections.??????????? 2.Copy of the order assigning Mr. Wilson to conduct said inspections.??????????? 3.Copy of Mr. Wilson?s hand written notes taken during the inspection.??????????? 4.Any additional notes, correspondence to manufacturers, etc., taken by,originated by or received by Mr. Wilson or the Area or District OSHA officewith regards to either of these two cases, with specific reference to contactwith the Solicitor?s Office prior to issuing the Repeat Citation andcorrespondence with the Manufacturers of the Quincy and Chicago Pneumatic AirCompressors cited.??????????? Atthe hearing on June 1, 1978, Weatherby filed a motion to dismiss thisproceeding, one of the grounds being, ?The Secretary had failed to comply withthe Respondent?s request for pertinent investigative materials pertinent tothese cases.? This motion was denied (Tr. 7?8) on the ground that Weatherby?srequest was directed to the Secretary of Labor, not the Commission, and ifdirected to the Commission would entitle it only to information in theCommission?s files.[6]??????????? Inits post-hearing brief, Weatherby concedes that, ?through proceduralignorance,? it may have erred in making its request under the FOIA but pointsout that it is represented by a non-lawyer and claims that the informationwould have been supplied had the request been made by an attorney. Further, itpoints out that, as quoted above, it made the request under ?applicable legalrights? as well as the FOIA and contends that this phrase includes anydiscovery rights it may have under the Commission?s Rules of Procedure.??????????? Thefallacies in Weatherby?s contentions are obvious:??????????? 1.Its request was directed to the Secretary?s counsel and not to the Commissionor its Judge, and under the FOIA it would have to pursue its remedy before theDepartment of Labor and the Courts.??????????? 2.The language ?and applicable legal rights? refers to the FOIA, as stated in theforepart of the sentence and is not specific enough to invoke the Commission?sRules of Procedure. Even if this language may be construed as Weatherby contends,the Commission?s Rules do not entitle a party to such discovery as a matter ofright but are discretionary. KLI, Inc.,77 OSAHRC, 202\/A2, 6 BNA OSHC 1097, 1977?78 CCH OSHD ?22,350 (No. 13490, 1977).??????????? 3. Ithas been the experience of this Judge that the Secretary uniformly resistsrequests of this type for sweeping discovery from its investagatorial files,regardless of whether the respondent is represented by an attorney. See, e.g., T. V. Tower, Inc. v. Marshall,44 F. Supp. 1233 (D.C.D.C., 1978).??????????? 4. Weatherbyhas not shown in what respect, if any, its defense was prejudiced by theSecretary?s refusal to supply the requested items.??????????? 5.Its motion to dismiss, made at the opening of the hearing on the merits,requested no continuance, and Weatherby?s representative announced that he wasready to proceed (Tr. 3). This negates any claim of prejudice to the defensefrom its failure to secure the requested items from the Secretary?s file.??????????? Weatherby?sclaim of prejudice against non-attorney representatives apparently is directedat the Secretary rather than the Commission or its Judge. However, it might benoted that for this very reason (or the reverse thereof, actually) Weatherbywas given a second chance to respond to requests for admission which the Secretarysought to have deemed to be admitted for failure to answer responsively. Theorder thereon, after holding some of Weatherby?s answers (denying requests forlack of knowledge) contained no showing of reasonable inquiry to determine thetruth or falsity thereof, stated: ?Nevertheless, since [respondent] isrepresented by nonattorney counsel, it will be afforded a further opportunity[to make a showing of reasonable inquiry].???????????? Eventhough it might be argued that a representative-for-hire who is not an attorneyshould be held to the same standards of proficiency as a lawyer, such arationale has not been followed in this case.??????????? Theinspection warrant issue.??????????? Weatherby?soral motion to dismiss, argued at the opening of the hearing, and later filedin writing, stated as its first ground that the Supreme Court in Marshall v. Barlow?s, Inc., 436 U.S.307, 98 S. Ct. 1816 (1978), ?ruled that warrantless inspections, conducted byOSHA, are in violation of the Employer?s Constitutional Rights and are renderedinvalid,? and that the compliance officer in this case had no warrant. TheSecretary opposed the motion on the ground that the inspection was consensual.In view of the factual issue thus presented, this motion was taken underadvisement pending the introduction of evidence (Tr. 9).??????????? ComplianceOfficer Mark S. Wilson testified that when he made the first inspection onSeptember 15, 1977, no representative of Weatherby demanded to be shown awarrant or requested him to leave the premises (Tr. 14); that ProductionManager Charles Bradley, Jr., asked him if the Barlow?s case had been decided(Tr. 60); that he told Bradley that it had not been decided but that Bradleyhad every right to not allow him to enter (Tr. 60); that when he returned tocomplete the investigation on November 4, 1977, Bradley never asked him if hehad a warrant or told him he could not continue the inspection without one (Tr.151); and that only at the end of the November 4, 1977, inspection, did Bradleytell him that he did not want Wilson to take photographs of the premises (Tr.57).??????????? Bradleytestified that Weatherby had been inspected by OSHA 10 or 11 times since 1976,and that on every occasion the compliance officer was asked if he had a searchwarrant to come into Weatherby?s place of business and answered in the negative(Tr. 110). Then Bradley said,They asked if we wanted them to leave and we said thatwould not be necessary, but anyinformation or materials that they gathered we would consider them illegal[emphasis added].??????????? It ison the basis of the emphasized testimony that Weatherby contends the inspectionwas not consensual, citing a digest of an opinion of the State of IowaOccupational Safety and Health Review Commission in Commissioner of Labor, Allen J. Meier v. Mitchell Cleaners (No.689, 1978), 1978 CCH OSHD ? 22,835, where the compliance officer was admittedafter saying that the search warrant requirement ?doesn?t apply to us? and theIowa Commission held the inspection not to be consensual.??????????? Herethe situation is considerably different. Production Manager Bradley (testifyinggenerally about 10 or 11 inspections), said, ?They [the compliance officers]asked if we wanted them to leave and we said that would not be necessary . . .?(Tr. 110). This is compatible with Compliance Officer Wilson?s testimony thathe told Bradley the latter had every right to deny him entry but that Bradleydid not do so or even ask to be shown a warrant. Bradley?s inquiry about thestatus of Barlow?s case and his statement that ?any information or materialthat they gathered we would consider them illegal? do not make the inspectionnon-consensual. Since the latter statement was made about all the 10 or 11inspections in general, and not about this inspection in particular, it haslittle probative value. But even if it was made to Wilson it would hardlycountermand the clear consent already given.??????????? Respondent?smotion to dismiss, which was taken under advisement at the conclusion of thehearing (Tr. 153), should be denied.??????????? The?promulgation of standards? issue.??????????? Weatherby?sbrief contends that three of the standards here involved were invalidlypromulgated in that permissive language contained in the ?national consensus?source[7] standards was changed byOSHA to mandatory language without following the necessary rule-makingprocedure. This contention applies to the following citations and standards:Item 1 of citation 1, involving 29 CFR1910.23(c)(2), the source of which is American National Standards Institute(ANSI) A12.1?1967, Safety Requirements for Floor and Wall Openings, Railings,and Toeboards, ? 5.2.?Item 2 of citation 1, involving 29 CFR1910.28(a)(3), the source of which is ANSI A10.8?1969, Safety Requirements forScaffolding.?Item 1 of citation 2, involving 29 CFR1910.23(a)(7), the source of which is ANSI A12.1?1967, supra, ? 4.4.???????????? Weatherbyis correct regarding ? 1910.28(a)(3) but not the other two standards.??????????? TheCommission majority, affirmed recently by the 10th Circuit, has held ?\u00a01910.28(a)(3)[8] unenforceable for thereason stated. Kennecott Copper Corp.,76 OSAHRC 81\/A2, 4 BNA OSHC 1400, 1976?77 CCH OSHD ?20,860 (No. 5958, 1976), aff?d, ?? F. 2d ?? (10th Cir., 1977).Therefore, item 2 of citation 1, which alleges that a scaffold on thesecond-floor runway of a utility module had no guardrails, must be vacated.??????????? Thecontention that the other two standards[9], ?? 1910.23(a)(7) and(c)(2) were invalidly promulgated is totally without merit. The language of thesource standards is mandatory and not permissive, as Weatherby asserts.??????????? Thealleged violation of 29 CFR 1910.23(c)(2).??????????? Item1 of citation 1, for which a penalty of $270 is proposed, alleges a seriousviolation of 29 CFR 1910.23(c)(2)[10] in that a standardrailing or the equivalent was not provided on a portion of the second-floorrunway of the utility module, exposing employees to a fall of 21 feet 5 inches.??????????? Weatherbycontends (1) that the guardrail opening was necessary to bring materials to thesecond floor and that this comes within the exception granted by the thirdsentence of the cited standard, (2) that the two employees the complianceofficer said were exposed to the hazard were ironworkers and under ? 1926.750need not be given protection unless they were 25 feet or more above ground, and(3) that the falling hazard was minimal since only two employees were exposed.??????????? Thecompliance officer?s uncontradicted testimony establishes that a section of theguardrail was missing (Tr. 16), that two welders and a painter foreman wereexposed to a fall of 21 feet 5 inches to a ground surface littered with metalscraps and pipe ends (Tr. 20?21, 24), and that serious injuries probably wouldresult from such a fall (Tr. 21).??????????? Withregard to Weatherby?s claim of an exception under ? 1910.23(c)(2), it relies onthe third sentence,Runways used exclusively for specialpurposes (such as oiling, shafting, or filling tank cars) may have the railingon one side omitted where operating conditions necessitate such omissions . . .?It points to testimony of Plant Manager Fred Sanchezthat the railings were down so that ?siding people? and ?wall hangers? couldtake up paneling and other materials (Tr. 128?129). This does not come withinthe quoted exception, for the runway was used for many purposes, none of whichwas exclusively for bringing up building materials. The Commission hasrecognized that in some cases it may be necessary to remove guardrails to bringin or remove materials, but this is an ?impossibility? defense of which therespondent has the burden of proof. ConstructoraMaza, Inc., 77 OSAHRC 213\/B9, 6 BNA OSHC 1208, 1977?78 CCH OSHD ? 22,421(No. 12434, 1977). Weatherby has not proved such a defense. It should be notedalso that the guardrails were down at least 8 hours (Tr. 22), and it seemsunlikely that bringing in materials could have taken that long.??????????? Weatherby?sattempt to bring the two welders within the steel erection standard, ?\u00a01926.750,is misdirected. There is no indication that the welders were engaged in steelerection, and the mere fact that they were welders does not make ? 1926.750applicable. Also, a painter foreman also was exposed.??????????? Thecontention that the number of employees exposed was minimal goes only to thepenalty issue.??????????? Ifind this item proved.??????????? Thealleged repeated violation of 29 CFR 1910.23(a)(7).??????????? Item1 of citation 2, for which a penalty of $540 is proposed, alleges repeated violationsof 29 CFR 1910.23(a)(7)[11] in that the second floorrunway had two temporary openings which were not properly guarded with standardrailings and had nobody in constant attendance: (a) Where a floor grating hadbeen removed and (b) one side of a ladderway in which the ladder was not yet inplace.??????????? Weatherbycontends that (1) only one of its employees was in the area involved and he wasno closer than 20 feet to the openings and (2) the openings were guarded by alower scaffold which was less than 6 feet below them. Its brief concedes theexistence of the floor openings, through which the compliance officer said andemployee could fall 20 feet to a steel grating (Tr. 30).??????????? Thecompliance officer testified that two Weatherby employees were within 5 feet ofthe grate opening and that he saw its painter foreman, Herrada, in thestairwell and walking up and down the runway (Tr. 28). He later identified thetwo employees as Rudy Medina and Rene Ortiz, who told him they were Weatherbyemployees and received their checks from Weatherby (Tr. 65), but he did notcheck respondent?s payroll to verify employment. Plant Manager Sanchezremembered identifying Medina to the compliance officer as a Weatherby employee(Tr. 131). He said that about a third of the 100 peaople on the job wereemployed by subcontractors (Tr. 128). However, it is clear that at least 2 ofthe 3 employees exposed to the floor opening hazards were Weatherby?s.??????????? Afterlooking at a photograph Sanchez recalled that there was a scaffold beneath thefloor holes (Tr. 128), but the exact distance it was below them was notestablished. In any event, a scaffold 6 feet below the openings would not havesatisfied the standard?s requirement of a standard railing (or someone inconstant attendance). I find this item proved.??????????? Thereremains the issue of whether the violation was ?repeated? under ? 17(a) of theAct,[12] on the basis of one priorviolation of the same standard June 7, 1976 (exhibit C?1). The Commission hasrefused to make such a determination where, as here, the proposed penalty isbelow the $1,000 maximum for a serious or nonserious violation. Williams Construction Co., 77 OSAHRC201\/A2, 6 BNA OSHC 1093, 1977?78 CCH OSHD ?22,325 (No. 11526, 1977).??????????? Sincethe violation was not alleged to be ?serious? as well as ?repeated?, only anonserious violation can be found if it is not held to be ?repeated.? Todd Shipyards Corp., 77 OSAHRC 74\/F14,5 BNA OSHC 1012, 1976?77 CCH OSHD ? 21,509 (No. 8500, 1977). Therefore, anonserious violation is found here.??????????? Thealleged violation of 29 CFR 1910.134(d)(2)(ii).??????????? Item1 of citation 3, for which no penalty is proposed, alleges two nonseriousviolations of 29 CFR 1910.134(d)(2)(ii)[13] in that twooil-lubricated compressors used to supply breathing air were equipped only withhigh-temperature alarms and were not tested frequently for carbon monoxide(CO).??????????? Sinceit is conceded that the compressors had only high-temperature alarms (and didnot have CO alarms), the central question is whether they were ?frequently?tested for CO. Weatherby contends that it tested the air supplied by thesecompressors for CO once a week and that this is frequent enough to satisfy thestandard. The Secretary contends that such tests were not made during the monthbefore the inspection and that this is not ?frequent.???????????? ComplianceOfficer Mark S. Wilson testified that Weatherby?s production manager, CharlesBradley, Jr., said that no testing for CO had been done since Ed Mycock, asafety engineer, had left Weatherby?s employ approximately a month earlier (Tr.38). Bradley, who was called as a witness by Weatherby, was not askedspecifically whether he had so informed Wilson, but he testified that thecompressors were tested for CO at least once a week (Tr. 111, 116) and thatthis is frequent enough (Tr. 121). Wilson, on the other hand, testified that COTests should be made twice a day?an hour or so after start-up and an hour or soafter the lunch break (Tr. 42, 50).??????????? ?Frequently?is not defined by the standards, so the ?reasonable man? test must be appliedto determine its meaning in the context in which it is here employed. Ryder Truck Lines v. Brennan, 497 F. 2d230 (5th Cir. 1974), aff?g RyderTruck Lines, 73 OSAHRC 36\/E9, 1 BNA OSHC 1290, 1973?74, CCH OSHD ? 16,451, (No.391, 1973); McLean Trucking Co. v. OSHRC,503 F. 2d 8 (4th Cir., 1974), aff?gMcLean Trucking Co., 73 OSAHRC 49\/F14, 1 BNA OSHC 214, 1973?74 CCH OSHD ? 16,697(No. 2847, 1973).??????????? Nothingshort of continuous monitoring for CO (for which equipment is available; Tr.42) would completely protect employees against the insidious hazard of thisodorless, tasteless gas. One of the two compressors here involved was poweredby an electric motor, but both were oil-lubricated. When a compressor becomesoverheated, lubricating oil of the type used by Weatherby can break down, andCO is a product of this decomposition (TR. 39?41; exhibit C?5). Ahigh-temperature alarm or cut-off will not give complete protection due to thepossibility of malfunction (Tr. 43), and, in any event, the standard requiresredundant Protection because of the hazard involved. Testimony that Weatherbyhad never had such a mishap (Tr. 111) is unavailing, in view of theserequirements, which are obviously intended to prevent a first accident.??????????? ??Frequently? cannot be defined precisely. Whatis ?frequent? depends on the circumstances, and it is easier to say what it isnot rather than what it is. Since frequent CO tests are the alternative to a COalarm which would give continuous, protection, it is apparent that ?frequently?must mean more often than the once-a-week testing Weatherby claims andcertainly more often than once-a-month testing as the Secretary contends.??????????? Ifind this item proved.??????????? Theappropriate penalties.??????????? Section17(j) of the Act requires the Commission, in assessing penalties, to considerthe gravity of the violation and the employee?s size, good faith and history ofprevious violations. These factors need not be accorded equal weight, but thegravity is usually of greater significance than the others. Colonial Craft Reproductions, 72 OSAHRC11\/B10, 1 BNA OSHC 1063, 1971?73 CCH OSHD ?15,277 (No. 881, 1972). Elements tobe considered in determining gravity include the number of employees exposed tothe risk of injury, duration of the exposure, precautions taken against injury,and the degree of probability of occurrence of an injury. National Realty & Construction Co., Inc., 72 OSAHRC 9\/A2, 1 BNAOSHC 1049, 1971?73 CCH OSHD ?15,188 (No. 85, 1972) rev?d on other grounds, 489 F.2d 1257 (D.C. Cir., 1973).??????????? Weatherbyis a moderately large employer with some history of previous violations (which,however, was not developed in this proceeding). There was very little evidenceof good faith on its part. The gravity of the violation was low in eachinstance.??????????? Ifind the following penalties appropriate:??????????? Item1, citation 1?$200??????????? Item1, citation 2?$200??????????? Item1, citation 3?$0CONCLUSIONS OF LAW??????????? 1.The Commission has jurisdiction of the parties and of the subject matter ofthis proceeding.??????????? 2. OnNovember 4, 1977, respondent was in serious violation of 29 CFR 1910.23(c)(2)as alleged in item 1 of citation 1.??????????? 3.Item 2 of citation 1, alleging a serious violation of 29 CFR 1910.28(a)(3),should be vacated on the ground that the standard was invalidly promulgated.??????????? 4. OnNovember 4, 1977, respondent was in nonserious violation of 29 CFR1910.23(a)(7), and item 1 of citation 2 should be amended to allege anonserious rather than a repeated violation.??????????? 5. OnNovember 4, 1977, respondent was in nonserious violation of 29 CFR 1910.134(d)(2)as alleged in item 1 of citation 3.??????????? 6.Respondent?s motion to dismiss the complaint should be denied.ORDER??????????? Onthe basis of the foregoing conclusions of law and the findings of factcontained in the discussion and opinion, it is ORDERED that:??????????? 1.Item 1 of citation 1, for serious violation of 29 CFR 1910.23(c)(2), be and ithereby is AFFIRMED and that a penalty of $200 be and it hereby is ASSESSED.??????????? 2.Item 2 of citation 1, for serious violation of 29 CFR 1910.28(a)(3), be and ithereby is VACATED.??????????? 3.Item 1 of citation 2, alleging a repeated violation of 29 CFR 1910.23(a)(7), beand it hereby is amended to allege a nonserious violation and, as so amended,that it be and it hereby is AFFIRMED and that a penalty of $200 be and ithereby is ASSESSED.??????????? 4.Item 1 of citation 3, alleging a nonserious violation of 29 CFR 1910.134(d)(2),be and it hereby is AFFIRMED.??????????? 5.Respondent?s motion to dismiss the complaint be and it hereby is denied in allrespects.?DEE C. BLYTHEAdministrative Law JudgeDate: October 3, 1978[1] The case nowbefore us was consolidated by the judge?s own motion with Docket No. 78?0611,pursuant to Rule 9 of the Commission?s Rules of Procedure, 29 C.F.R. ? 2200.9.The two cases arose from the same inspection and involved the same Respondent.The judge held a unified hearing and issued a single decision. After the caseswere directed for review, the Commission, noting that the only issue on reviewconcerned Docket No. 77?4333, entered an order upon its own motion, severingthe cases pursuant to Commission Rule 10, 29 C.F.R. ? 2200.10. The Commission?sorder affirmed the judge?s decision in Docket No. 78?0611, according it theprecedential value of an unreviewed judge?s decision. Weatherby Engineering Co., 80 OSAHRC ??, 8 BNA OSHC 2013, 1980 CCHOSHD ? 24,701 (No. 78?0611, 1980).[2] 29 C.F.R. ?1910.28(a)(3), in pertinent part, provides that:Guardrailsand toeboards shall be installed onall open sides and ends of platforms more than 10 feet above the ground orfloor . . . (emphasis added).[3] Following thedirection for review in this case, the Secretary, in lieu of filing a brief onreview, submitted a copy of his brief to the United States Court of Appeals forthe Ninth Circuit in Marshall v. UnionOil Co. of California & OSHRC, No. 78?2002. We note that the courtrejected the Secretary?s arguments in its decision in that case. Marshall v. Union Oil Co. of California& OSHRC, 616 F.2d 1113 (9th Cir. 1980).The essence of the Secretary?sposition is that, because section 6(a) gave him authority to adopt non-bindingnational consensus standards as enforceable occupational safety and healthstandards under the Act, the distinction drawn by ANSI between mandatory andadvisory ANSI standards is meaningless. Accordingly, the Secretary?s changefrom ?should? to ?shall? was pro forma and not a substantive change. We haveheld, however, that standards adopted under section 6(a) of the Act that arederived from advisory source standards are advisory and unenforceable under theAct. General Electric Company, OSHRCDocket No. 76?2982 (Dec. 30, 1980); Brown& Root, Power Plant Div., 80 OSAHRC ??, 9 BNA OSHC 1027, 1980 CCH OSHD?24,958 (No. 76?2938, 1980). It follows therefore that the language change atissue, which created a mandatory and enforceable duty, was a substantive changethat could only be accomplished under section 6(b) of the Act.[4] We also notedthat the United States Courts of Appeals for the Fifth and Ninth Circuits haveexpressly upheld the Commission?s jurisdiction to review procedural challengesin enforcement proceedings. RockwellInt?l Corp., supra, 9 BNA OSHC at 1094?5, 1980 CCH OSHD at p. 30,843.[5] Public Law93?502, 5 U.S.C. ? 552, hereinafter called the FOIA.[6] This portion of athree-part motion to dismiss was denied at the hearing, although the transcript(Tr. 8, 1. 6) says it would be ?extended? rather than ?denied.? In any event,it is now denied.[7] The sources ofthese standards are listed in 29 CFR 1910.31.[8] 29 CFR1910.28(a)(3) provides in part:Guardrailsand toeboards shall be installed on all open sides and ends of platforms morethan 10 feet above the ground or floor .. .[9] Set forth infootnotes 7 and 6, respectively.[10] This standardprovides:Everyrunway shall be guarded by a standard railing (or the equivalent as specifiedin paragraph (e)(3) of this section) on all open sides 4 feet or more abovefloor or ground level. Wherever tools, machine parts, or materials are likelyto be used on the runway, a toeboard shall also be provided on each exposedside.Runwaysused exclusively for special purposes (such as oiling, shafting, or fillingtank cars) may have the railing on one side omitted where operating conditionsnecessitate such omission, providing the falling hazard is minimized by using arunway of not less than 18 inches wide. Where persons entering upon runwaysbecome thereby exposed to machinery, electrical equipment, or other danger nota falling hazard, additional guarding than is here specified may be essentialfor protection.[11] This standardprovides:Everytemporary floor opening shall have standard railings, or shall be constantlyattended by someone.[12] Sec. 17. (a)Any employer who willfully or repeatedly violates the requirements of section 5of this Act, any standard, rule, or order promulgated pursuant to section 6 ofthis Act, or regulations prescribed pursuant to this Act, may be assessed acivil penalty of not more than $10,000 for each violation.[13] This standardprovides:?134(d)(2) Breathing air may be supplied to respirators from cylinders or aircompressors.(II)The compressor for supplying air shall be equipped with necessary safety andstandby devices. A breathing air-type compressor shall be used. Compressorsshall be constructed and situated so as to avoid entry of contaminated air intothe system and suitable in-line air purifying sorbent beds and filtersinstalled to further assure breathing air quality. A receiver of sufficientcapacity to enable the respirator wearer to escape from a contaminatedatmosphere in event of compressor failure, and alarms to indicate compressorfailure and overheating shall be installed in the system. If only a high-temperature alarm is used, the air from the compressorshall be frequently tested for carbon monoxide to insure that it meets thespecifications in subparagraph (1) of this paragraph. [Emphasis supplied.]”