“Docket No. 89-1559 SECRETARY OF LABOR,\u00a0 Complainant, v. WELL SOLUTIONS, INC., Respondent.OSHRC Docket No. 89-1559DECISIONBEFORE: FOULKE, Chairman; WISEMAN and MONTOYA,Commissioners. BY THE COMMISSION:Well Solutions, Inc. is an oil well servicing company that maintained a worksitedesignated Rig #37, in Corpus Christi,Texas.\u00a0 On February 15, 1989, an OSHAcompliance officer sought to inspect the worksite, but was refused permission because hedid not have a warrant.\u00a0 Although he was not allowed to conduct an inspection, thecompliance officer did observe several allegedly violative conditions while waiting forthe supervisor to be contacted.\u00a0 The compliance officer returned to the worksite onFebruary 18 with a warrant and conducted an inspection.\u00a0 As a result of his twovisits to the worksite, respondent was issued two citations, one characterized as serious,the other as other-than-serious.Item 1 of the serious citation alleges a violation of29 C.F.R. ? 1910.23(c)(1) for failure to guard the perimeter of a rig platform that was60 inches above ground level.\u00a0 A penalty of $150 was proposed.Item 2 of the serious citation alleges thatrespondent violated 29 C.F.R. ? 1910.132(a) because employees without head protectionwere exposed to the hazard of being struck during rig operations.\u00a0 A Penalty of $100was proposed.[[1]]The other-than-serious citation alleged thatrespondent violated 29 C.F.R. ? 1910.242(a) by permitting employees to use a 4-poundsledge hammer that was not in a safe condition.\u00a0 No penalty was proposed for thisviolation.The case was heard by former CommissionAdministrative Law Judge Dee C. Blythe.\u00a0 In his decision, Judge Blythe vacated thecitations.\u00a0 He suppressed most of the evidence relevant to items 1 and 2 of theserious citation, finding that it was obtained as a result of an illegal search.\u00a0Judge Blythe considered the evidence relevant to the other-than-serious citation becauseit was obtained after the warrant was served.\u00a0 However, he vacated the citation onthe merits.For the reasons that follow, we reverse the judge’sdecision and affirm the citations.[[2]]I. The Admissibility of EvidenceiThe threshold issue in this case is whether observations made by the compliance officerduring his initial visit to the worksite on February 15, 1989 are admissible intoevidence.The compliance officer testified that, to reach theworksite, he had to \”go down through a farm road, an unpaved road off of Farm toMarket Road 136, and then travel north on another unpaved road about anothermile.\”[[3]]\u00a0 He then parked his car on the road and walked to the worksite inthe middle of a plowed field.\u00a0 The compliance officer testified that he did not haveto open any gates to get to the site.\u00a0 One of respondent’s employees, Gonzales, a\”toolpusher\” and apparent supervisor, came over to a portable shed and talked tothe compliance officer.\u00a0 The shed was outside the guy wires that were supporting therig. \u00a0 While talking to Gonzales the compliance officer was able to observe the rig,which was approximately 70 feet away. Because the compliance officer did not have awarrant, Gonzales refused to allow the inspection and the compliance officer left thesite.Although he was not allowed to conduct an inspection,the compliance officer observed that the edges of two of the platforms levels on the rigdid not have guardrails and that Gonzales and a second employee were not wearing hardhats. \u00a0 When the compliance officer returned to the site with a proper search warranton February 18, the platforms were guarded and all employees were wearing hard hats.In addition to the evidence gathered as a result ofthe February 18 inspection, the Secretary sought to introduce into evidence the complianceofficer’s testimony regarding the lack of guardrails and hard hats on February 15. \u00a0Judge Blythe, relying on Laclede Gas Co., 7 BNA OSHC 1874, 1979 CCH OSHD ? 24,007 (No.76-3241, 1979), suppressed the evidence obtained by the compliance officer on February 15,holding that the testimony did not establish that the compliance officer was in a publicplace where he had a right to be when he made his observations.\u00a0 In Laclede theCommission held that an employer’s Fourth Amendment right to privacy was not violated whenthe worksite was open to view from a \”public thoroughfare.\” \u00a0 Laclede, 7BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153.\u00a0 Judge Blythe distinguished this caseby the lack of evidence establishing that the roads the compliance officer traveled to getto the worksite were public, as opposed to private, roads. iiGenerally, an observation by a compliance officer of that which is open to public viewdoes not constitute a search that might infringe on an employer’s Fourth Amendment rights.\u00a0 See v. City of Seattle, 387 U.S. 541 (1967).\u00a0 The government’s obligation toobtain a search warrant prior to a nonconsensual search extends only to those areas wherethe party being searched has a reasonable expectation of privacy. Laclede Gas Co., 7 BNAOSHC at 1877, 1979 CCH OSHD at p. 29,153.\u00a0 Where there is no reasonable expectationof privacy, there can be no Fourth Amendment violation. Id.\u00a0 The Commission has heldthat an employer cannot claim a reasonable expectation of privacy where the worksite isobserved from a public thoroughfare, open to public view.\u00a0 Ackermann Enterps., Inc.,10 BNA OSHC 1709, 1712, 1982 CCH OSHD ? 26,090, p. 32,839 (No. 80-4971, 1982); Laclede, 7BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153; Minnotte Contrac. & Erection Corp., 6BNA OSHC 1369, 1371-2, 1978 CCH OSHD ? 22,551, p. 27,215 (No. 15919,1978); EnvironmentalUtilities Corp., 5 BNA OSHC 1195, 1197, 1977-78 CCH OSHD ? 21,709, p. 26,074 (No.5324,1977).\u00a0 This exception from the requirements of the Fourth Amendment has beenreferred to as the \”open fields\” doctrine. The \”open fields\” doctrinemay apply even when the government agent technically trespasses on private property tomake his observations.\u00a0 Ackermann, 10 BNA OSHC at 1712, 1982 CCH OSHD at p. 32,839.\u00a0 The critical factor in finding the exception is whether the government agent is onland from which the general public is excluded.\u00a0 If the observations are made from anarea easily accessible and visible to the general public, Fourth Amendment protections donot apply.\u00a0 Ehlers v. Bogue, 626 F.2d 1314, 1315 (5th Cir. 1980).iiiThe question before the Commission in this case is whether the judge erred in rejectingthe application of the \”open-fields\” doctrine to the aforementionedcircumstances.\u00a0 Having reviewed the circumstances, we must conclude that the judgedid err.\u00a0 Regardless of whether the roads were public or private, the recordestablishes that the roads leading to respondent’s worksite were open to the public andthat the rig was located in a plowed field not set off by a gate or other obstacle. \u00a0Thus, as in Ackermann, the employer could have no reasonable expectation of privacy withrespect to the view of its drilling operation.II. VALIDITY OF THE CITATIONS A. Failure to Guard PlatformsItem 1 of the serious citation alleges a violation of 29 C.F.R. ? 1910.23(c)(1)[[4]] forfailure to guard a rig platform 60 inches above the ground.\u00a0 A penalty of $150 wasproposed. The compliance officer testified that, during hisvisit to the site on February 15, he observed that the edges of two of the levels of therig platform were not equipped with railings.\u00a0 He also testified that, although theywere not installed, the railings were at the site.\u00a0 The compliance officer was notable to measure the height of the platforms until February 18 when he found them to be 45and 60 inches [[5]] above the ground.\u00a0 Although the height of the platforms wasadjustable and he was approximately 70 feet from the rig on February 15, the complianceofficer testified that the platform levels were at the same height on both February 15 and18.Since the judge suppressed the evidence obtained bythe compliance officer on February 15, he vacated this citation item because there was noother evidence that the platform was unguarded.\u00a0 However, the judge also found that,even if the February 15 observations were admitted in evidence, a question remained as towhether the compliance officer’s observations made from a distance of over 70 feet weresufficient to establish that the platform height was the same on February 15 and 18.\u00a0 We disagree.The judge’s concern regarding the accuracy ofobservations made from a distance of over 70 feet is understandable.\u00a0 However, theevidence at issue is not directed at a height estimate made from great distance.\u00a0Rather, the testimony focuses on an observation that the height of the platform appearedto have been identical on both days.\u00a0 Estimations of distance based on observationsare admissible and may be dispositive in the absence of proof to the contrary.\u00a0\u00a0See Fed. R. Evid. 701: Stephenson Enterps., 4 BNA OSHC 1702, 1703,1976-7 CCH OSHD ?21,120, p. 25,428 (No. 5873, 1976), aff’d, 578 F.2d 1021(5th Cir.1978).\u00a0 Thistestimony was unrebutted.\u00a0 We therefore find that the compliance officer’s testimony,that the height of the platforms did not change between February 15 and February 18 andthat on February 18 the height of one of the platform levels was 60 inches, is sufficientto establish that the platform was more than four feet in height on February 15.Although respondent did introduce evidence that theheight of the platforms was adjustable, it never attempted to establish that any heightadjustments were made between February 15 and 18.\u00a0 The only testimony regarding anypossible change in height came from respondent’s safety director who testified that, whileit was possible to change the height of the platform, he did not know whether any suchadjustment had been made.\u00a0 Because Well Solutions failed to rebut the Secretary’sshowing that the edge of a platform 60 inches high was unguarded, we find that theSecretary established a violation of section 1910.23(c)(1).Section 17(k) of the Act, 29 U.S.C. ? 666(k),provides that a violation is serious if there is a substantial probability that death orserious physical harm could result from the violation.\u00a0 Here, the complianceofficer’s testimony, that there was a possibility of broken bones or paralysis if anemployee fell, was not rebutted.\u00a0 This is sufficient to establish that a fall fromthe platform could have resulted in death or serious physical harm.\u00a0 We thereforefind that this violation was serious.The Commission must give due consideration to thesize of respondent’s business, the gravity of the violation, respondent’s good faith andits history of previous violations in assessing a penalty under section 17(j) of the Act,29 U.S.C. ? 666(j).\u00a0 Having considered the evidence relating to those factors as itis set out in the record, we find the proposed penalty of $150 to be appropriate.B. Failure to Wear Hard Hats.Item 2 of the serious citation alleges that respondent violated 29 C.F.R. ?1910.132(a)[[6]] because employees without head protection were exposed to the hazard ofbeing struck during rig operations.\u00a0 A penalty of $100 was proposed.The compliance officer testified that, during hisFebruary 15 visit to the site, two employees were wearing soft baseball caps instead ofappropriate head protection.\u00a0 When he got to the site, the compliance officer noticedthese two employees standing adjacent to the rig, within the area where the guy wires camedown. \u00a0 One of the employees, Gonzales, met the compliance officer shortly after hisarrival at the job site.\u00a0 The other employee was not identified.\u00a0 The complianceofficer testified that, at the time, respondent was picking up 30- to 32-foot sections ofpipe and that the two employees were exposed to the hazard of having something fall onthem from the rig.The compliance officer testified that, beforeGonzales approached him, Gonzales was standing adjacent to the rig.[[7]]\u00a0 However,respondent’s safety director testified that Gonzales told him that he was not wearing hishard hat because he was always in a safe area.\u00a0 When the compliance officer returnedto the site on February 18, all employees were wearing appropriate head protection.The judge vacated the item because he suppressed thecompliance officer’s testimony that employees were not wearing hard hats during thecompliance officer’s visit of February 15.In light of our having found admissible thecompliance officer’s testimony regarding his observations of February 15, we conclude thatthe evidence is sufficient to establish the violation.\u00a0 The compliance officertestified that two employees, one of whom was a supervisory employee, were not wearinghard hats while exposed to the hazard of falling objects.\u00a0 The testimony ofrespondent’s safety director that disputes this testimony as to Gonzales is hearsay in itspurest sense. \u00a0 Gonzales’ \”statement\” that he was in a safe area wasintroduced to establish the truth of that proposition, yet Gonzales was not called totestify. \u00a0 Fed. R. Evid. 801(c)[[8]].\u00a0 The Secretary was, therefore, deprived ofthe opportunity to cross-examine Gonzales.\u00a0 Moreover, the declaration does not fitinto any of the accepted exceptions to the hearsay rule.\u00a0 Furthermore, the statementattributed to Gonzales was completely self-serving and, without subjecting Gonzales tocross-examination, there is no basis for evaluating the inherent trustworthiness of thestatement.\u00a0 We therefore conclude that there is nothing in the record to justify theadmissibility of the statement.\u00a0 Fed. R. Evid. 803(24)[[9]].The compliance officer’s testimony that death orparalysis have occurred is something had fallen on an employee’s head, establishes theseriousness of the violation within the meaning of section 17(k) of the Act.\u00a0Therefore, we find the proposed penalty of $100 to be appropriate in light of the penaltyfactors set out in section 17(j) of the Act. C. Broken Sledge Hammer HandleThe other-than-serious citation alleged that respondent violated 29 C.F.R. ?1910.242(a)[[10]] because employees were exposed to hazards stemming from the use of a4-pound sledge hammer with a cracked handle.\u00a0 No penalty was proposed for theviolation.The compliance officer testified that, during hisFebruary 18 inspection, he observed a 4-pound sledge hammer with a crack that extendedhalfway down the handle.\u00a0 The hammer was adjacent to a walkway and had mud on it,indicating that it had been used.The judge vacated the item on the ground that thecompliance officer never explicitly stated that the cracked handle rendered the toolunsafe. \u00a0 The judge opined that, without direct evidence that the hammer was unsafe,the question is whether a reasonable inference could be made regarding the unsafe natureof the hammer.\u00a0 Noting the slight and easily met nature of the Secretary’s burden onthis item, he concluded that it was not proper to leave the matter to inference.The Secretary urges the Commission to use simplecommon sense and conclude that a handle that is cracked through a substantial part of itslength poses a safety hazard.\u00a0 She contends that the judge erred by ignoring thepatently obvious hazards that are connected to the use of a hammer in thiscondition.\u00a0 We agree.The judge vacated the item because the complianceofficer failed to utter the \”magic words\” to the effect that the use of thehammer posed a hazard. However, the fact that the compliance officer believed that the useof the hammer posed a hazard because of the potential of breaking is obvious from thecitation. \u00a0 Moreover, the record does not indicate that respondent lacked anyunderstanding of the nature of the charge.\u00a0 As the Secretary suggests, the hazardousnature of a 4-pound sledge hammer in such a condition is patently obvious.\u00a0 Thephotograph introduced at the hearing clearly depicts a badly broken handle.\u00a0 In ouropinion, it would not have taken much force for the handle to break and cause the head ofthe hammer to fly off, creating a hazardous condition.We therefore find that the judge’s reliance on thelack of \”magic words\” was unnecessarily technical.\u00a0 The charge contained inthe citation, combined with the condition of the hammer depicted in the photograph and thetestimony of the compliance officer that the hammer was available for use by employees, issufficient to establish that the hammer was not in safe condition, in violation of section1910.242(a).\u00a0 Respondent introduced no contrary evidence. Therefore, we affirm theitem as other-than-serious.\u00a0 No penalty is assessed.Ill. ORDERAccordingly, the judge’s decision is reversed.\u00a0 Items 1 and 2 of the serious citationare affirmed.\u00a0 A penalty of $150 is assessed for item 1 and a penalty of $100 isassessed for item 2.\u00a0 Item 1 of the other-than-serious citation is affirmed, and nopenalty is assessed.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: June 18, 1992SECRETARY OF LABOR, Complainant, v. WELL SOLUTIONS, INC., Respondent.OSHRC DOCKET NO. 89-1559DECISION AND ORDERAppearances:Jerome T. Kearney, Esq., of Dallas, Texas, for theComplainant.George R. Carlton, Esq., of Dallas, Texas for theRespondent.BLYTHE, Judge:PROCEDURAL HISTORYPursuant to an inspection warrant, Robert Konvicka, a compliance officer (\”CO\”)of the Occupational Safety and Health Administration (\”OSHA\”), on February 18,1989, inspected a workplace 7 miles north of Gregory, Texas, where the respondent, WellSolutions, Inc., was completing an oil well.\u00a0 As the result of this inspection, twocitations were issued April 26, 1989, charging respondent with serious and\”other\” violations of ? 5(a)(2) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”) and the safety standards promulgatedthereunder.\u00a0 Respondent timely filed a notice of contest May 3, 1989, thus invokingthe jurisdiction of the Occupational Safety and Health Review Commission (\”theCommission\”).\u00a0\u00a0 Thereafter the Secretary of Labor (\”theSecretary\”) filed a formal complaint, to which respondent filed an answer.\u00a0 Thecase came on for hearing March 30, 1990 in Corpus Christi, Texas.\u00a0 Neither party hasfiled a posthearing brief.DISCUSSION AND OPINION I The CO, accompanied by his supervisor, attempted to inspect respondent’s workover rig onFebruary 15, 1989, but the tool pusher demanded an inspection warrant (Tr. 5-6). \u00a0Before departing, the CO noted that a two-level platform on the rig had no guardrails (Tr.9). When the CO returned two days later with an inspection warrant, the platform wasguarded by guardrails.\u00a0 He measured the height of the two levels and found one to be48 inches and the other 60 inches above ground level (Tr. 12).\u00a0 He testified thatwhen he observed the platform on February 15, from a distance of approximately 70 to 90feet, the height of the two levels of the platform appeared to him to be the same as itwas on February 18 (Tr. 33-35, 36-37).Respondent introduced no evidence to contradict theCO, so the question is whether the CO’s testimony was sufficient to establish a violationof 29 C.F.R. 1910.23(c)(1).[[1]]Respondent’s rig was in a muddy, plowed field whichwas reached via a roundabout route (Tr. 18).\u00a0 This route was described by the CO asfollows:\”You would have to go down, through a farm road,an unpaved road off of Farm to Market Road 136, and then travel north on another unpavedroad about another mile\” (Tr. 18).\u00a0 This testimony did not establish that the COwas in a public place where he had a right to be when he made his observations on February15. Laclede Gas Co., 79 OSAHRC 94\/E13, 7 BNA OSHC 1875, 1979 CCH OSHD ? 24,007 (No.76-3211, 1979).Even if this testimony would otherwise be competent,I am not convinced that the CO’s observation from a distance of 70 to 90 feet issufficient to establish that the platform height was the same on February 15 as it was onFebruary 18. \u00a0 The Secretary has not met her burden of proof for Item 1, citation 1.IIWhen the CO visited respondent’s workplace on February 15, 1989, he observed two men nearthe rig who were wearing baseball caps instead of hard hats (Tr. 17), so a citation wasissued (item 2, citation 1) alleging a violation of 29 C.F.R. ?1910.132)(a)[[2]]. \u00a0One of the men was respondent’s toolpusher, but the other was never identified (Tr. 19,39).\u00a0 When the CO returned February 18, 1989, with an inspection warrant, the wholecrew was wearing hard hats.The CO’s testimony on this time suffers the sameinfirmity as it did on the scaffolding items.\u00a0 The \”plain view\” doctrinedoes not apply because the CO’s observations on February 15 were not made from a placewhere he had a right to be.IIIItem 3 of citation 1 alleges that Respondent was in serious violation of 29 C.F.R.?1910.151(b)[[3]] in that its employees did not have ready access to first aid by aphysician or other person trained to render such aid.\u00a0 The CO testified that theworkplace was 45 minutes to an hour from medical treatment by a physician (Tr. 21),whereas the Commission has held that effective first aid must be administered within threeminutes.\u00a0 Love Box Co., 76 OSAHRC 45\/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD ? 20,588(No. 6286, 1976).\u00a0 The tool pusher had been trained in first aid by the Red Cross buthis certificate was out of date (Tr. 44).\u00a0 The date of the certificate was notproved.There is no requirement that a person be trained orcertified by the Red Cross to comply with this standard.\u00a0 Snyder Well Servicing,Inc., 82 OSAHRC 10\/C5, 10 BNA OSHC 1371, 1982 CCH OSHD ? 25,943 (No. 77-1334, 1982). Infact, it is only required that a person be \”adequately trained.\”\u00a0\u00a0 Idecline the invitation to infer that a lack of up-to-date certification means a lack ofadequate training on the part of the tool pusher.Absent more positive evidence, the Secretary hasfailed to carry her burden of proof.IV Item 1 of citation 2 alleges a non-serious violation of 29 C.F.R.? 1910.242(a)[[4]] inthat a 4-pound sledge hammer had a cracked handle, which is visible in a photograph,exhibit C-3.\u00a0 The cited standard requires employers to maintain tools in a \”safecondition\”.\u00a0 The CO never stated that the cracked handle made the sledge hammerunsafe or hazardous.\u00a0 The question then is whether there is a reasonable inferencethat this tool’s condition was unsafe.\u00a0 The evidentiary requirement is very slightand easily met.\u00a0 However, this is all the more reason why it should not be left toinference.\u00a0 This item is vacated.\u00a0 Cf. Burk Well Service Co., 85 OSAHRC 49\/A3,1984-85 CCH OSHD ? 27,453 (No. 79-6060, 1985).\u00a0 (Some, though slight, evidence isneeded to establish that the employer was engaged in commerce).FINDINGS OF FACT1. Respondent has admitted the jurisdiction and coverage allegations of the complaint.2. The CO made observations on February 15, 1989,which he attempted to use to support items 1 and 2 of citation 2, involving conditions onFebruary 18, 1989, although respondent had demanded an inspection warrant.\u00a0 OnFebruary 15, 1989, the CO was not in a public place from which he could legally make suchobservation under the \”plain view\” doctrine.3. The tool pusher had received first aid training, and the fact that his cardshowing this fact was out of date was not controlling.4. A 4-pound sledge hammer had a cracked handle but there was no evidence that thiscondition was unsafe. \u00a0CONCLUSIONS OF LAW1. The Commission has jurisdiction of the parties and subject matter of theproceeding.2. On February 18, 1989, respondent was not in violation of any of the standardsalleged in the citation here involved.ORDERAll citations issued to Well Solutions, Inc., on April 26, 1989, should be and arehereby VACATED.So ORDERED.DEE C. BLYTHE Administrative Law Judge Date: August 20, 1990FOOTNOTES: [[1]] Item 3 of the serious citation alleged a violation of 29 C.F.R. ? 1910.151(b) onthe grounds that there was neither an infirmary, clinic, or hospital in near proximity ofthe workplace.\u00a0 The item was vacated on the merits.\u00a0 The Secretary has notsought review of the judge’s disposition, and we shall not disturb it.[[2]] The Secretary has filed a Motion for DefaultJudgment based on respondent’s failure to either file a brief or otherwise respond to theCommission’s briefing notice.\u00a0 We hereby deny the motion.\u00a0 We note, however,that when, as here, the non-petitioning party fails to respond to a briefing notice, thatparty runs the risk of having the Commission decide the case without having had theopportunity to hear its views and arguments to the Commission.\u00a0 29 C.F.R. ?2200.93(d), Commission Rule 93(d).[[3]] Although the compliance officer testified thatthe public had access to the roads, it was not established whether any of these roads werepublic or private.[[4]] The standard states in pertinent part:? 1910.23 Guarding floor and wall openings andholes.(c) Protection of open-sided floors, platforms, andrunways. \u00a0 (1) Every open-sided floor or platform 4 feet or more above adjacent flooror ground level shall be guarded by a standard railing (or the equivalent as specified inparagraph (e) of this section) on all open sides except where there is entrance to a ramp,stairway, or fixed ladder.[[5]] The platform that was allegedly 60 inches abovethe ground is the subject of this item.[[6]] The standard provides:? 1910.132 General requirements.(a) Application.\u00a0 Protective equipment,including personal protective equipment for eyes, face, head, and extremities, protectiveclothing, respiratory devices, and protective shields and barriers, shall be provided,used, and maintained in a sanitary and reliable condition whenever it is necessary byreason of hazards of processes or environment, chemical hazards, radiological hazards, ormechanical irritants encountered in a manner capable of causing injury or impairment inthe function of any part of the body through absorption, inhalation or physical contact.[[7]] When the compliance officer spoke to Gonzales,they were outside the guy line pattern, in an area safe from falling objects.[[8]] The rule states:Hearsay is a statement, other than one made by thedeclarant while testifying at the trial or hearing, offered in evidence to prove the truthof the matter asserted.[[9]] The rule states defines \”Otherexceptions\” as:A statement not specifically covered by any of theforegoing exceptions but having equivalent circumstantial guarantees of trustworthiness,if the court determines that (A) the statement is offered as evidence of a material fact;(B) the statement is more probative on the point for which it is offered than any otherevidence which the proponent can procure through reasonable efforts, and (C) the generalpurposes of these rules and the interests of justice will best be served by admission ofthe statement into evidence.\u00a0 However, a statement may not be admitted under thisexception unless the proponent of it makes known to the adverse party sufficiently inadvance of the trial of hearing to provide the adverse party with a fair opportunity toprepare to meet it, his intention to offer the statement and the particulars of it,including the name and address of the declarant.[[10]] The standard states:? 1910.242 Hand and portable powered tools andequipment, general.(a) General requirements.\u00a0 Each employer shallbe responsible for the safe condition of tools and equipment used by employees, includingtools and equipment which may be furnished by employees.[[1]] The cited standard provides:(c) Protection of open-sided floors, platforms, andrunways. \u00a0 (1) Every open-sided floor or platform 4 feet or more above adjacent flooror ground level shall be guarded by a standard railing (or the equivalent as specified inparagraph (e) (3) of this section) on all open sides except where there is entrance to aramp, stairway, or fixed ladder.\u00a0 The railing shall be provided with a toeboardwherever, beneath the open sides,(i) Persons can pass,(ii) There is moving machinery, or(iii) There is equipment with which falling materials could create a hazard.[[2]] This standard states:? 1910.132 General Requirements.(a) Application.\u00a0\u00a0 Protective equipment,including personal protective equipment for eyes, face, head, and extremities, protectiveclothing, respiratory devices, and protective shields and barriers, shall be provided,used, and maintained in a sanitary and reliable condition wherever it is necessary byreason of hazards or processes or environment, chemical hazards, radiological hazards, ormechanical irritants encountered in a manner capable of causing injury or impairment inthe function of any part of the body through absorption, inhalation or physical contact.[[3]] The cited standard provides:(b) In the absence of an infirmary, clinic, orhospital in near proximity to the workplace which is used for the treatment of all injuredemployees, a person or persons shall be adequately trained to render first aid.\u00a0First aid supplies approved by the consulting physician shall be readily available.[[4]] The cited standard provides:? 1910.242\u00a0 Hand and portable powered tools andequipment, general.(a) General requirements.\u00a0 Each employer shallbe responsible for the safe condition of tools and equipment use by employees, includingtools and equipment which may be furnished by employees.”