N.W. Washington, DC 20210 Carl B. Carruth, Esq. Respondent is an employer engaged in a business affecting interstate commerce and is an employer within the meaning of section 3 of the Act. Accordingly, the Commission has jurisdiction over the parties and the subject matter. At the site just south of the material trailer, the employer did not assure that oxygen and acetylene were separated at least twenty feet in distance or by a noncombustible barrier of at least five feet high exposing employees to a fire hazard. Aside from the two carbon dioxide cylinders, there were no barriers between the acetylene and oxygen cylinders.
Acetylene is a fuel gas and is combustible.
Based on this evidence, the Secretary has made a prima facie showing of a violation of the cited standard. The foreman, Tom Bauer, testified that later in the day of the inspection the acetylene cylinder and both oxygen cylinders were used to cut an especially thick piece of metal. Bauer said that using two oxygen cylinders simultaneously was unusual but necessary for the job. Bauer, however, did not adequately explain why he did not tell the CO that he intended to use the cylinders later in the day, instead of telling him only that the carbon dioxide cylinders provided a noncombustible barrier. Given that Bauer's testimony on the storage issue was uncorroborated, that he failed to tell the CO about his plan to use the cylinders later that day, and that he himself conceded that using two oxygen cylinders simultaneously was unusual, I find Bauer's testimony unpersuasive and conclude that the cylinders were in fact in storage.