Well Solutions, Inc.

Plain-English summary

An OSHA inspector first visited Well Solutions' oil-well rig without a warrant and observed unguarded platforms and employees without hard hats from an accessible road and field. The judge suppressed those observations and vacated the citations. The Commission held that the open-fields doctrine applied because the worksite was visible and accessible to the public, regardless of whether the unpaved roads were publicly or privately owned. Using the reinstated evidence, it affirmed serious violations for an unguarded five-foot platform and missing head protection. It also affirmed an other-than-serious item for a four-pound sledge hammer with a badly cracked handle, finding the unsafe condition obvious without formulaic testimony. The Commission assessed $150 and $100 for the serious items, while the separate first-aid item remained vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.23(c)(1), 1910.132(a), 1910.151(b), and 1910.242(a)
• Outcome: Mixed. Two serious violations and one other-than-serious violation were affirmed with $250 total penalties; the first-aid item remained vacated.
• Key point: OSHA observations from an open, publicly accessible field do not implicate a reasonable expectation of privacy, even if access roads may be private.

Full text (OSHRC public release)

Docket No. 89-1559

SECRETARY OF LABOR, 

Complainant,

v.

WELL SOLUTIONS, INC.,

Respondent.

OSHRC Docket No. 89-1559

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

Well Solutions, Inc. is an oil well servicing company that maintained a worksite
designated Rig #37, in Corpus Christi,Texas.  On February 15, 1989, an OSHA
compliance officer sought to inspect the worksite, but was refused permission because he
did not have a warrant.  Although he was not allowed to conduct an inspection, the
compliance officer did observe several allegedly violative conditions while waiting for
the supervisor to be contacted.  The compliance officer returned to the worksite on
February 18 with a warrant and conducted an inspection.  As a result of his two
visits 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 of
29 C.F.R. � 1910.23(c)(1) for failure to guard the perimeter of a rig platform that was
60 inches above ground level.  A penalty of $150 was proposed.

Item 2 of the serious citation alleges that
respondent violated 29 C.F.R. � 1910.132(a) because employees without head protection
were exposed to the hazard of being struck during rig operations.  A Penalty of $100
was proposed.[[1]]

The other-than-serious citation alleged that
respondent violated 29 C.F.R. � 1910.242(a) by permitting employees to use a 4-pound
sledge hammer that was not in a safe condition.  No penalty was proposed for this
violation.

The case was heard by former Commission
Administrative Law Judge Dee C. Blythe.  In his decision, Judge Blythe vacated the
citations.  He suppressed most of the evidence relevant to items 1 and 2 of the
serious citation, finding that it was obtained as a result of an illegal search. 
Judge Blythe considered the evidence relevant to the other-than-serious citation because
it was obtained after the warrant was served.  However, he vacated the citation on
the merits.

For the reasons that follow, we reverse the judge's
decision and affirm the citations.[[2]]

I. The Admissibility of Evidence

i

The threshold issue in this case is whether observations made by the compliance officer
during his initial visit to the worksite on February 15, 1989 are admissible into
evidence.

The compliance officer testified that, to reach the
worksite, he had to "go down through a farm road, an unpaved road off of Farm to
Market Road 136, and then travel north on another unpaved road about another
mile."[[3]]  He then parked his car on the road and walked to the worksite in
the middle of a plowed field.  The compliance officer testified that he did not have
to open any gates to get to the site.  One of respondent's employees, Gonzales, a
"toolpusher" and apparent supervisor, came over to a portable shed and talked to
the compliance officer.  The shed was outside the guy wires that were supporting the
rig.   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 a
warrant, Gonzales refused to allow the inspection and the compliance officer left the
site.

Although he was not allowed to conduct an inspection,
the compliance officer observed that the edges of two of the platforms levels on the rig
did not have guardrails and that Gonzales and a second employee were not wearing hard
hats.   When the compliance officer returned to the site with a proper search warrant
on February 18, the platforms were guarded and all employees were wearing hard hats.

In addition to the evidence gathered as a result of
the February 18 inspection, the Secretary sought to introduce into evidence the compliance
officer's testimony regarding the lack of guardrails and hard hats on February 15.  
Judge 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 public
place where he had a right to be when he made his observations.  In Laclede the
Commission held that an employer's Fourth Amendment right to privacy was not violated when
the worksite was open to view from a "public thoroughfare."   Laclede, 7
BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153.  Judge Blythe distinguished this case
by the lack of evidence establishing that the roads the compliance officer traveled to get
to the worksite were public, as opposed to private, roads.

ii

Generally, an observation by a compliance officer of that which is open to public view
does not constitute a search that might infringe on an employer's Fourth Amendment rights.
  See v. City of Seattle, 387 U.S. 541 (1967).  The government's obligation to
obtain a search warrant prior to a nonconsensual search extends only to those areas where
the party being searched has a reasonable expectation of privacy. Laclede Gas Co., 7 BNA
OSHC at 1877, 1979 CCH OSHD at p. 29,153.  Where there is no reasonable expectation
of privacy, there can be no Fourth Amendment violation. Id.  The Commission has held
that an employer cannot claim a reasonable expectation of privacy where the worksite is
observed from a public thoroughfare, open to public view.  Ackermann Enterps., Inc.,
10 BNA OSHC 1709, 1712, 1982 CCH OSHD � 26,090, p. 32,839 (No. 80-4971, 1982); Laclede, 7
BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153; Minnotte Contrac. & Erection Corp., 6
BNA OSHC 1369, 1371-2, 1978 CCH OSHD � 22,551, p. 27,215 (No. 15919,1978); Environmental
Utilities Corp., 5 BNA OSHC 1195, 1197, 1977-78 CCH OSHD � 21,709, p. 26,074 (No.
5324,1977).  This exception from the requirements of the Fourth Amendment has been
referred to as the "open fields" doctrine. The "open fields" doctrine
may apply even when the government agent technically trespasses on private property to
make his observations.  Ackermann, 10 BNA OSHC at 1712, 1982 CCH OSHD at p. 32,839.
  The critical factor in finding the exception is whether the government agent is on
land from which the general public is excluded.  If the observations are made from an
area easily accessible and visible to the general public, Fourth Amendment protections do
not apply.  Ehlers v. Bogue, 626 F.2d 1314, 1315 (5th Cir. 1980).

iii

The question before the Commission in this case is whether the judge erred in rejecting
the application of the "open-fields" doctrine to the aforementioned
circumstances.  Having reviewed the circumstances, we must conclude that the judge
did err.  Regardless of whether the roads were public or private, the record
establishes that the roads leading to respondent's worksite were open to the public and
that the rig was located in a plowed field not set off by a gate or other obstacle.  
Thus, as in Ackermann, the employer could have no reasonable expectation of privacy with
respect to the view of its drilling operation.

II. VALIDITY OF THE CITATIONS

A. Failure to Guard Platforms

Item 1 of the serious citation alleges a violation of 29 C.F.R. � 1910.23(c)(1)[[4]] for
failure to guard a rig platform 60 inches above the ground.  A penalty of $150 was
proposed.

The compliance officer testified that, during his
visit to the site on February 15, he observed that the edges of two of the levels of the
rig platform were not equipped with railings.  He also testified that, although they
were not installed, the railings were at the site.  The compliance officer was not
able to measure the height of the platforms until February 18 when he found them to be 45
and 60 inches [[5]] above the ground.  Although the height of the platforms was
adjustable and he was approximately 70 feet from the rig on February 15, the compliance
officer testified that the platform levels were at the same height on both February 15 and
18.

Since the judge suppressed the evidence obtained by
the compliance officer on February 15, he vacated this citation item because there was no
other evidence that the platform was unguarded.  However, the judge also found that,
even if the February 15 observations were admitted in evidence, a question remained as to
whether the compliance officer's observations made from a distance of over 70 feet were
sufficient to establish that the platform height was the same on February 15 and 18.
  We disagree.

The judge's concern regarding the accuracy of
observations made from a distance of over 70 feet is understandable.  However, the
evidence at issue is not directed at a height estimate made from great distance. 
Rather, the testimony focuses on an observation that the height of the platform appeared
to have been identical on both days.  Estimations of distance based on observations
are admissible and may be dispositive in the absence of proof to the contrary.  
See 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).  This
testimony was unrebutted.  We therefore find that the compliance officer's testimony,
that the height of the platforms did not change between February 15 and February 18 and
that on February 18 the height of one of the platform levels was 60 inches, is sufficient
to establish that the platform was more than four feet in height on February 15.

Although respondent did introduce evidence that the
height of the platforms was adjustable, it never attempted to establish that any height
adjustments were made between February 15 and 18.  The only testimony regarding any
possible change in height came from respondent's safety director who testified that, while
it was possible to change the height of the platform, he did not know whether any such
adjustment had been made.  Because Well Solutions failed to rebut the Secretary's
showing that the edge of a platform 60 inches high was unguarded, we find that the
Secretary 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 or
serious physical harm could result from the violation.  Here, the compliance
officer's testimony, that there was a possibility of broken bones or paralysis if an
employee fell, was not rebutted.  This is sufficient to establish that a fall from
the platform could have resulted in death or serious physical harm.  We therefore
find that this violation was serious.

The Commission must give due consideration to the
size of respondent's business, the gravity of the violation, respondent's good faith and
its history of previous violations in assessing a penalty under section 17(j) of the Act,
29 U.S.C. � 666(j).  Having considered the evidence relating to those factors as it
is 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 of
being struck during rig operations.  A penalty of $100 was proposed.

The compliance officer testified that, during his
February 15 visit to the site, two employees were wearing soft baseball caps instead of
appropriate head protection.  When he got to the site, the compliance officer noticed
these two employees standing adjacent to the rig, within the area where the guy wires came
down.   One of the employees, Gonzales, met the compliance officer shortly after his
arrival at the job site.  The other employee was not identified.  The compliance
officer testified that, at the time, respondent was picking up 30- to 32-foot sections of
pipe and that the two employees were exposed to the hazard of having something fall on
them from the rig.

The compliance officer testified that, before
Gonzales approached him, Gonzales was standing adjacent to the rig.[[7]]  However,
respondent's safety director testified that Gonzales told him that he was not wearing his
hard hat because he was always in a safe area.  When the compliance officer returned
to the site on February 18, all employees were wearing appropriate head protection.

The judge vacated the item because he suppressed the
compliance officer's testimony that employees were not wearing hard hats during the
compliance officer's visit of February 15.

In light of our having found admissible the
compliance officer's testimony regarding his observations of February 15, we conclude that
the evidence is sufficient to establish the violation.  The compliance officer
testified that two employees, one of whom was a supervisory employee, were not wearing
hard hats while exposed to the hazard of falling objects.  The testimony of
respondent's safety director that disputes this testimony as to Gonzales is hearsay in its
purest sense.   Gonzales' "statement" that he was in a safe area was
introduced to establish the truth of that proposition, yet Gonzales was not called to
testify.   Fed. R. Evid. 801(c)[[8]].  The Secretary was, therefore, deprived of
the opportunity to cross-examine Gonzales.  Moreover, the declaration does not fit
into any of the accepted exceptions to the hearsay rule.  Furthermore, the statement
attributed to Gonzales was completely self-serving and, without subjecting Gonzales to
cross-examination, there is no basis for evaluating the inherent trustworthiness of the
statement.  We therefore conclude that there is nothing in the record to justify the
admissibility of the statement.  Fed. R. Evid. 803(24)[[9]].

The compliance officer's testimony that death or
paralysis have occurred is something had fallen on an employee's head, establishes the
seriousness of the violation within the meaning of section 17(k) of the Act. 
Therefore, we find the proposed penalty of $100 to be appropriate in light of the penalty
factors set out in section 17(j) of the Act.

C. Broken Sledge Hammer Handle

The 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 a
4-pound sledge hammer with a cracked handle.  No penalty was proposed for the
violation.

The compliance officer testified that, during his
February 18 inspection, he observed a 4-pound sledge hammer with a crack that extended
halfway down the handle.  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 the
compliance officer never explicitly stated that the cracked handle rendered the tool
unsafe.   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 nature
of the hammer.  Noting the slight and easily met nature of the Secretary's burden on
this item, he concluded that it was not proper to leave the matter to inference.

The Secretary urges the Commission to use simple
common sense and conclude that a handle that is cracked through a substantial part of its
length poses a safety hazard.  She contends that the judge erred by ignoring the
patently obvious hazards that are connected to the use of a hammer in this
condition.  We agree.

The judge vacated the item because the compliance
officer failed to utter the "magic words" to the effect that the use of the
hammer posed a hazard. However, the fact that the compliance officer believed that the use
of the hammer posed a hazard because of the potential of breaking is obvious from the
citation.   Moreover, the record does not indicate that respondent lacked any
understanding of the nature of the charge.  As the Secretary suggests, the hazardous
nature of a 4-pound sledge hammer in such a condition is patently obvious.  The
photograph introduced at the hearing clearly depicts a badly broken handle.  In our
opinion, it would not have taken much force for the handle to break and cause the head of
the hammer to fly off, creating a hazardous condition.

We therefore find that the judge's reliance on the
lack of "magic words" was unnecessarily technical.  The charge contained in
the citation, combined with the condition of the hammer depicted in the photograph and the
testimony of the compliance officer that the hammer was available for use by employees, is
sufficient to establish that the hammer was not in safe condition, in violation of section
1910.242(a).  Respondent introduced no contrary evidence. Therefore, we affirm the
item as other-than-serious.  No penalty is assessed.

Ill. ORDER

Accordingly, the judge's decision is reversed.  Items 1 and 2 of the serious citation
are affirmed.  A penalty of $150 is assessed for item 1 and a penalty of $100 is
assessed for item 2.  Item 1 of the other-than-serious citation is affirmed, and no
penalty is assessed.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: June 18, 1992

SECRETARY OF LABOR,

Complainant,

v.

WELL SOLUTIONS, INC.,

Respondent.

OSHRC DOCKET NO. 89-1559

DECISION AND ORDER

Appearances:

Jerome T. Kearney, Esq., of Dallas, Texas, for the
Complainant.

George R. Carlton, Esq., of Dallas, Texas for the
Respondent.

BLYTHE, Judge:

PROCEDURAL HISTORY

Pursuant 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, Well
Solutions, Inc., was completing an oil well.  As the result of this inspection, two
citations were issued April 26, 1989, charging respondent with serious and
"other" violations of � 5(a)(2) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act") and the safety standards promulgated
thereunder.  Respondent timely filed a notice of contest May 3, 1989, thus invoking
the jurisdiction of the Occupational Safety and Health Review Commission ("the
Commission").   Thereafter the Secretary of Labor ("the
Secretary") filed a formal complaint, to which respondent filed an answer.  The
case came on for hearing March 30, 1990 in Corpus Christi, Texas.  Neither party has
filed a posthearing brief.

DISCUSSION AND OPINION

I

The CO, accompanied by his supervisor, attempted to inspect respondent's workover rig on
February 15, 1989, but the tool pusher demanded an inspection warrant (Tr. 5-6).  
Before 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 was
guarded by guardrails.  He measured the height of the two levels and found one to be
48 inches and the other 60 inches above ground level (Tr. 12).  He testified that
when he observed the platform on February 15, from a distance of approximately 70 to 90
feet, the height of the two levels of the platform appeared to him to be the same as it
was on February 18 (Tr. 33-35, 36-37).

Respondent introduced no evidence to contradict the
CO, so the question is whether the CO's testimony was sufficient to establish a violation
of 29 C.F.R. 1910.23(c)(1).[[1]]

Respondent's rig was in a muddy, plowed field which
was reached via a roundabout route (Tr. 18).  This route was described by the CO as
follows:

"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 unpaved
road about another mile" (Tr. 18).  This testimony did not establish that the CO
was in a public place where he had a right to be when he made his observations on February

15. 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 is
sufficient to establish that the platform height was the same on February 15 as it was on
February 18.   The Secretary has not met her burden of proof for Item 1, citation 1.

II

When the CO visited respondent's workplace on February 15, 1989, he observed two men near
the rig who were wearing baseball caps instead of hard hats (Tr. 17), so a citation was
issued (item 2, citation 1) alleging a violation of 29 C.F.R. �1910.132)(a)[[2]].  
One of the men was respondent's toolpusher, but the other was never identified (Tr. 19,
39).  When the CO returned February 18, 1989, with an inspection warrant, the whole
crew was wearing hard hats.

The CO's testimony on this time suffers the same
infirmity as it did on the scaffolding items.  The "plain view" doctrine
does not apply because the CO's observations on February 15 were not made from a place
where he had a right to be.

III

Item 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 a
physician or other person trained to render such aid.  The CO testified that the
workplace 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 three
minutes.  Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD � 20,588
(No. 6286, 1976).  The tool pusher had been trained in first aid by the Red Cross but
his certificate was out of date (Tr. 44).  The date of the certificate was not
proved.

There is no requirement that a person be trained or
certified by the Red Cross to comply with this standard.  Snyder Well Servicing,
Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1982 CCH OSHD � 25,943 (No. 77-1334, 1982). In
fact, it is only required that a person be "adequately trained."   I
decline the invitation to infer that a lack of up-to-date certification means a lack of
adequate training on the part of the tool pusher.

Absent more positive evidence, the Secretary has
failed 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]] in
that a 4-pound sledge hammer had a cracked handle, which is visible in a photograph,
exhibit C-3.  The cited standard requires employers to maintain tools in a "safe
condition".  The CO never stated that the cracked handle made the sledge hammer
unsafe or hazardous.  The question then is whether there is a reasonable inference
that this tool's condition was unsafe.  The evidentiary requirement is very slight
and easily met.  However, this is all the more reason why it should not be left to
inference.  This item is vacated.  Cf. Burk Well Service Co., 85 OSAHRC 49/A3,
1984-85 CCH OSHD � 27,453 (No. 79-6060, 1985).  (Some, though slight, evidence is
needed to establish that the employer was engaged in commerce).

FINDINGS OF FACT

1. 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 on
   February 18, 1989, although respondent had demanded an inspection warrant.  On
   February 15, 1989, the CO was not in a public place from which he could legally make such
   observation under the "plain view" doctrine.

3. The tool pusher had received first aid training, and the fact that his card
   showing 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 this
   condition was unsafe.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and subject matter of the
   proceeding.

2. On February 18, 1989, respondent was not in violation of any of the standards
   alleged in the citation here involved.

ORDER

All citations issued to Well Solutions, Inc., on April 26, 1989, should be and are
hereby VACATED.

So ORDERED.

DEE C. BLYTHE

Administrative Law Judge

Date: August 20, 1990

FOOTNOTES:

[[1]] Item 3 of the serious citation alleged a violation of 29 C.F.R. � 1910.151(b) on
the grounds that there was neither an infirmary, clinic, or hospital in near proximity of
the workplace.  The item was vacated on the merits.  The Secretary has not
sought review of the judge's disposition, and we shall not disturb it.

[[2]] The Secretary has filed a Motion for Default
Judgment based on respondent's failure to either file a brief or otherwise respond to the
Commission's briefing notice.  We hereby deny the motion.  We note, however,
that when, as here, the non-petitioning party fails to respond to a briefing notice, that
party runs the risk of having the Commission decide the case without having had the
opportunity to hear its views and arguments to the Commission.  29 C.F.R. �
2200.93(d), Commission Rule 93(d).

[[3]] Although the compliance officer testified that
the public had access to the roads, it was not established whether any of these roads were
public or private.

[[4]] The standard states in pertinent part:

� 1910.23 Guarding floor and wall openings and
holes.

(c) Protection of open-sided floors, platforms, and
runways.   (1) Every open-sided floor or platform 4 feet or more above adjacent floor
or ground level shall be guarded by a standard railing (or the equivalent as specified in
paragraph (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 above
the ground is the subject of this item.

[[6]] The standard provides:

� 1910.132 General requirements.

(a) Application.  Protective equipment,
including personal protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers, shall be provided,
used, and maintained in a sanitary and reliable condition whenever it is necessary by
reason of hazards of processes or environment, chemical hazards, radiological hazards, or
mechanical irritants encountered in a manner capable of causing injury or impairment in
the 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 the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.

[[9]] The rule states defines "Other
exceptions" as:

A statement not specifically covered by any of the
foregoing 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 other
evidence which the proponent can procure through reasonable efforts, and (C) the general
purposes of these rules and the interests of justice will best be served by admission of
the statement into evidence.  However, a statement may not be admitted under this
exception unless the proponent of it makes known to the adverse party sufficiently in
advance of the trial of hearing to provide the adverse party with a fair opportunity to
prepare 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 and
equipment, general.

(a) General requirements.  Each employer shall
be responsible for the safe condition of tools and equipment used by employees, including
tools and equipment which may be furnished by employees.
[[1]] The cited standard provides:

(c) Protection of open-sided floors, platforms, and
runways.   (1) Every open-sided floor or platform 4 feet or more above adjacent floor
or ground level shall be guarded by a standard railing (or the equivalent as specified in
paragraph (e) (3) of this section) on all open sides except where there is entrance to a
ramp, stairway, or fixed ladder.  The railing shall be provided with a toeboard
wherever, 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.   Protective equipment,
including personal protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers, shall be provided,
used, and maintained in a sanitary and reliable condition wherever it is necessary by
reason of hazards or processes or environment, chemical hazards, radiological hazards, or
mechanical irritants encountered in a manner capable of causing injury or impairment in
the 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, or
hospital in near proximity to the workplace which is used for the treatment of all injured
employees, a person or persons shall be adequately trained to render first aid. 
First aid supplies approved by the consulting physician shall be readily available.

[[4]] The cited standard provides:

� 1910.242  Hand and portable powered tools and
equipment, general.

(a) General requirements.  Each employer shall
be responsible for the safe condition of tools and equipment use by employees, including
tools and equipment which may be furnished by employees.