Docket No. 84-0852

SECRETARY OF LABOR,
Complainant,

J. W. BILL CHRISTIE, INC.,
Respondent.

OSHRC DOCKET NO. 84-0852

ORDER

The Commission approves the parties' stipulation and settlement agreement.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated: March 20, 1987

WILLIAM E. BROCK, SECRETARY OF LABOR,
Complainant,

J.W. BILL CHRISTIE, INC.,
Respondent.

OSHRC DOCKET No. 84-0852

STIPULATION AND SETTLEMENT AGREEMENT

The parties have reached a full and complete settlement of the above-captioned matter presently pending on review before the Occupational Safety and Health Review Commission. The parties hereby agree as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. § 651 et seq.) (hereinafter the "Act").

(b) Respondent, J.W. Bill Christie, Inc., is a corporation with its principal place of business located in Frisco, Texas. It was at all times material to this proceeding engaged in the business of repairing natural gas pipelines and during the course of its business its employees performed various tasks in the nature of repair of natural gas pipelines. During the course of its business, respondent uses material and equipment which it received from places located outside Texas. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act, and has employees as defined by section 3(6) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted during the period of February 9 through April 11, 1984 at respondent's workplace at the intersection of Spring Valley and North Central Expressway (U.S. Highway 75) in Richardson, Texas, a citation for two serious violations was issued to respondent on August 6, 1986, pursuant to Section 9(a) of the Act. The citation alleged violations of 29 CFR 1926.21(b)(2), 29 CFR 1926.21(b)(6)(i), 29 CFR 1926.103(a)(1) and 29 CFR 1910.134(e)(3). A notification of proposed penalty in the amount of $480 was also issued to respondent on August 6, 1984.

(d) Respondent filed a timely notice of contest to the citation and penalty with the Secretary of Labor. The contest was duly transmitted to the Commission. A hearing was held before Commission Administrative Law Judge E. Carter Botkin. Thereafter the judge issued a decision and order affirming the citation and assessing a penalty of $480 therefor. Respondent, thereafter, filed a petition for discretionary review with the Commission. Review was directed on February 3, 1986.

III

(a)Complainant agrees to reduce the penalty to $240.

(b)(1) Respondent hereby agrees to withdraw its notice of contest to the citation and penalty as amended in section III(a) above.

(2) Respondent avers that the conditions have been abated and shall remain abated.

(3) Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7.

(4) Respondent agrees to send a check to the Dallas, Texas OSHA Area Office in the amount of $240 within fifteen days of its signing of this Stipulation and Settlement Agreement.

(a) Each party agrees to bear all of its own attorney fees, costs, and expenses arising out of and incidental to the instant matter.

(b) By entering into this stipulated settlement of these proceedings and the undertaking and performance of any duty required by this stipulated settlement or the taking of any steps pursuant thereto, Respondent does not admit that it has violated the Act or any standards or regulations issued thereunder or nor shall the act of entering into this stipulated settlement or such performance or the taking of such steps constitute any evidence against or admission by Respondent or form the basis of any assertion of collateral estoppel, res judicata or other preclusion against Respondent except in proceedings brought under the Act by the Secretary.

WHEREFORE, the parties agrees that under the above-noted conditions this matter docketed before the Commission as Docket No. 84-0852 is hereby settled.

FOR COMPLAINANT FOR RESPONDENT

SECRETARY OF LABOR,
Complainant,

J. W. BILL CHRISTIE, INC.,
AND ITS SUCCESSORS,
Respondent.

OSHRC DOCKET NO. 84-0852

DECISION AND ORDER

Appearances:
Max A. Wernick, Esq., of Dallas, Texas,
for the Complainant.

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

BOTKIN, Judge:
This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to §10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"), contesting a citation issued by the complainant, the Secretary of Labor ("the Secretary"), to the Respondent, J. W. Bill Christie, Inc., and its Successors ("Christie"), under authority vested in the Secretary by §9(a) of the Act.

As the result of an accident occurring on February 8, 1984, at a manhole located at the intersection of Spring Valley and North Central Expressway (U.S. Highway 75), in Richardson, Texas, an inspection was conducted during the period of February 9 through April 11, 1984. On February 8, 1984, Christie's employees had been engaged in work activities related to the performance of cathodic protection, repair work, on a natural gas pipeline. One citation was issued to Christie on August 6, 1984. It charged Christie with two serious violations (both of which included subitems) of § 5(a)(2) of the Act for which a total penalty of $480.00 was sought.[[1]] Christie timely filed a notice of contest on August 21, 1984, commencing this proceeding under § 10(c) of the Act. Thereafter, a complaint and answer were filed with the Commission. A hearing was held in this matter on November 29, 1984, in Dallas, Texas. No affected employees or representatives of affected employees participated in the proceeding. The Secretary has submitted proposed findings of fact, conclusions of law and order. The matter is now ripe for decision.

ISSUES

1. Whether Christie was in serious violation of the cited standards (29 CFR 1926.21(b)(2), 29 CFR 1926.21(b)(6)(i), 29 CFR 1926.103(a)(1), and 29 CFR 1910.134(e)(3)).

2. If Christie was in serious violation of one or more of the standards set forth in paragraph 1 hereof, the appropriate penalty therefor.

STIPULATIONS

The parties stipulated that (i) Christie is engaged in work on pipelines, including both construction and repair of pipelines, (ii) in the instant circumstances, Christie's employees were engaged in cathodic work (repair) on a pipeline for Lone Star Gas ("LSG"), (iii) Christie is an employer engaged in a business which affects commerce, (iv) jurisdiction of this proceeding is conferred on the Commission by §10(c) of the Act, and (v) Christie has no history of previous violations (Tr. 5-9).

BACKGROUND OF THE WITNESSES

(1) Scott Sullivan ("Sullivan"), age 20, worked as a farmer after graduation from high school. He had worked for Christie for six to eight weeks during the period of December 1983 into February 1984, terminating that employment relationship shortly after the accident (Tr. 69-71). For approximately one month, his initial assignment for Christie totally involved new construction, working as a laborer cleaning and smoothing out the bottom of ditches so that pipe could be laid. No repair work was done on that job (Tr. 71-72, 79). Thereafter, he transferred to a different crew where he worked with Preston Walker, age 19, and Billy Parker, age 22 (Tr. 70-72, 80). Parker, as foreman of that crew, instructed and trained Sullivan on job procedures, acquainting him with equipment, the work routine, etc. (Tr. 70, 80-81). Among other things, that crew performed some cathodic protection work. Sullivan had worked on two cathodic protection jobs prior to the accident (Tr. 80-81). It was Sullivan's responsibility to prepare things so that the cathodic protection jobs could be performed correctly (Tr. 72-73).

(2) Kenneth Cooper ("Cooper") had been employed by Christie since January 1972. Christie has performed cathodic protection work exclusively for LSG since July 1972 and Cooper was the foreman on the first crew. Since 1975 he has supervised Christie's crews. Among other things, this involves (i) being a liaison between crews of LSG and Christie so that matters function smoothly, (ii) making sure that crews are provided the necessary work materials and tools, (iii) seeing to it that crews follow proper procedures and function properly (knowledge and supervision of the cathodic protection program), and (iv) giving on-the-job safety training to the crews (Tr. 86-87, 91-92).

(3) Gerald K. Forester ("Forester" or "the CO") has been employed by the Occupational Safety and Health Administration ("OSHA") as a compliance officer since May 1973. Since then, he has conducted approximately 1500 inspections. Prior thereto, he was employed as an engineering technician by the U.S. Army Corps of Engineers. During that term of employment, he was engaged in the different phases or areas that said employer covered. While so employed, he was certified as an engineering technician by the Society of Professional Engineers. His formal education included three years of college level work in several different fields, engineering and geology. He has taken all of the training courses required by OSHA, together with nearly all of the other courses offered by it. He has also attended seminars and training courses given by various companies locally, including one with LSG (Tr. 11-14). He has attended a number of seminars related to employees working in confined spaces such as manholes. Those seminars dealt with generally accepted practice regarding what instructions should be given to workers as to hazards present and how to avoid those hazards (Tr. 29).

PARTIAL SUMMARY OF THE TESTIMONY

Sullivan-Sullivan was one of the three employees assigned to the workplace which is the subject of this case (Tr. 70, 75). This particular job involved cathodic protection (Tr. 80-81). This was the first one Sullivan had encountered which was enclosed (Tr. 81). He entered this manhole so that Parker could show him how to install the new insulators. The manhole was approximately seven to eight feet deep. As Sullivan stood at the bottom of the manhole, the pipeline was approximately 14 to 16 inches above the bottom thereof and ground level was above his head. His work position involved leaning over to place wrenches on the pipeline (Tr. 75-76). Parker took the cover off of the manhole, leaving it open before they went down there (Tr. 82-83). Parker told him that there was natural gas in the pipeline (Tr. 74, 83-84). Sullivan does not know whether Parker, or anyone else, tested for gas or smelled for it (Tr. 82, 84). It was Parker's job to do, but he was uncertain whether Parker had done so (Tr. 84). Parker had told him that there was a possibility of oxygen deficiency in the manhole if gas escaped from the pipeline (Tr. 74, 83-84). This was the only hazard of which he was informed (Tr. 74). However, since it is common knowledge that natural gas will burn, Sullivan agreed this was something that he did not need to be told (Tr. 84). Sullivan could not recall receiving any instructions from company officials on how to avoid the hazards (Tr. 74). He did not receive (i) any instructions or information about emergency situations that might arise while working in a manhole, or (ii) instructions about respirators or the safe use thereof (Tr. 75).

Cooper-Parker was the foreman on this job. He had only been a foreman for two weeks and this was his first job in that capacity (Tr. 92-93, 100). However, he had worked for Christie for 1 1/2 years prior thereto, working his way up to the job of foreman. Consequently, he was familiar with the work, simply overseeing as foreman those jobs that he had been performing in other capacities. His experience included familiarity with cathodic protection procedures which he had been doing for the same period of time (Tr. 100-101). Cooper was not at the scene of the accident and did not personally investigate it, but relied on information provided by others (Tr. 91-92).

Cathodic protection is the procedure done on the pipeline. Partly, it is the proper approach to removing bolts out of the pipeline, installing insulation and replacing the bolts along the flange. The policy is to only take one of the eight bolts out at a time. This is a precaution to maintain the integrity of the pipe and seals (Tr. 101-103).

The safety staff is composed of Burke Isabell ("Isabell"), a retired school principal, and Walter Ocherbauck ("Ocherbauck"), who retired as chief engineer for LSG after working for that firm for many years (Tr. 87, 90). Christie works in conjunction with LSG's procedures. When LSG initiates new procedures, Isabell analyzes them and distributes copies thereof to all foremen. Christie's procedures are contained in the "Blue Book" which has to be on the job, or in the truck, at all times. Among other things, Isabell makes personal checks of crews on the job to verify that required safety equipment is available and/or being used. A record is maintained of those checks (Tr. 88-89). Ocherbauck serves as a consultant. His responsibilities include (i) checking crews (over a period of time) to insure that they are conforming work to LSG's standards, (ii) consulting on matters related to safety procedures, and (iii) being responsible for seeing to it that safety procedures used by Christie are in conformity with LSG requirements (Tr. 90-91). Safety procedures utilized by Christie, including those related to cathodic protection are formulated by Isabell, Ocherbauck and J. W. Bill Christie, Sr. ("J.W., Sr.")(Tr. 89). LSG requires Christie to follow its procedures to the letter on both (i) the manner in which something is done, and (ii) the safety precautions (Tr. 89-90). In fact, LSG has a senior inspector who, among other things, inspects Christie's crews (Tr. 90).

Cooper gives safety training to the crews out on the job. Such training is on a continual and endless basis (Tr. 91-92). He had dealt with Parker, the foreman on this job, on many occasions, instructing him on proper safety procedures, such as checking for gas, airing out holes, etc. (Tr. 92, 101). As far as Cooper knew, those procedures were properly performed in this case. Those procedures were not out of conformity with the requirements of LSG on safety. Based on his experience, he did not find that the crew had done anything contrary to recognized safety procedures in the industry[[2]] (Tr. 91-92).

Since 1972, Cooper had personally been involved in cathodic protection work (insulation of flow control or gate valves) on thousands of occasions. He had encountered only three or four workplaces on those occasions which required him to enter a manhole to perform the work (Tr. 93). Christie's other crews would also have very little experience along that line, since there are not many vaults at that depth (Tr. 93-94). Christie has no written procedures regarding entry into vaults (Tr. 94). The only instructions given to employees, regarding hazard recognition in manholes or vaults, is to use the senses (the eyes, ears and nose) (Tr. 95). Consequently, there are no written procedures for Christie's workers, who must enter manholes while involved in cathodic protection, in regard to the use of respirators, self-contained breathing apparatus or other types of personal protective equipment such as a lifeline (Tr. 94-96). Employees are instructed (i) to pull the lid off of a manhole, (ii) to pump out water, if any, covering the float control valve, and (iii) to vent or air out the vault if gas is detected or suspected. This procedure is followed in all manhole or vault situations, including the shallow ones (Tr. 96-97). Over a period of years, they have discovered one or two (pipelines) valve stems leaking when the lid is removed. They are in need of packing or greasing. The company continuously instructs workers to stay out of the vaults in those situations (where gas is either suspected or known to be present) and to advise LSG of the leak, who notifies Christie when the repair is accomplished (Tr. 97-98). Cooper had personally instructed the two employees who died on those procedures. He had never known them to disobey procedures (Tr. 99). LSG does not have any written safety procedures for Christie's employees to follow when going into manholes; it does provide that its own employees shall use respirators, snatch jackets, etc., when going in if gas is present. LSG is aware of how Christie's employees perform cathodic work, has observed their doing it and is aware of Christie's safety procedures. LSG has never voiced an opinion that Christie's employees were doing anything unsafely (Tr. 98-99).

Forester-Forester was assigned to conduct the investigation of the subject workplace located at Spring Valley and North Central Expressway in Richardson, Texas (Citation and Tr. 14, 19, 39). The inspection took place between February 9 and April 11, 1984 (Tr. 14, 22). He believes that the accident had occurred on February 8, 1984 (Tr. 16, 22). The opening conference was held with J.W., Sr., president of Christie; but he also spoke with other management officials of Christie, including Cooper (field superintendent), Isabell (safety director), Sam Christie (vice-president) and Ocherbauck (consultant) (Tr. 15-17). He discussed training and procedures provided to employees with Cooper, Isabell and Ocherbauck (Tr. 18). He also talked with those company officials, as well as Sam Christie, in an attempt to obtain a physical description of the workplace, an understanding of the type of work being performed by the employees and information relating to how the accident occurred (Tr. 16-18).

In general, those officials informed the CO that (i) the functions being performed at the subject location involved activities related to cathodic protection of the flange on a flow valve located on a pipeline in a manhole, and (ii) there were three workers on that particular job (Tr. 17-19, 22, 39, 42). Cathodic protection is a procedure to prevent corrosion of the pipeline, by isolating two sections (metal) from each other by insulation (Tr. 19, 22). Christie was performing this work pursuant to a contract with LSG. Representatives of LSG issued directions to Christie's employees of where to work (location of the pipeline) and the cathodic protection necessary to install (Tr. 19). The CO did not obtain dimensions of the manhole from Christie's representatives. After the accident occurred, the CO made a physical examination of the workplace, but there had been an excavation of the area involving the manhole. Approximate dimensions were ascertained by measuring the distance from ground level to the base of the valve. It was bell- shaped with a cover which was approximately 22 inches in diameter. It was approximately 6½ - 7 feet deep with an inside diameter of approximately four feet. The pipeline was approximately six feet underground (Tr. 20-21, 55, 57). The fitting, being worked on, was a flange on the valve. This flange, a connection consisting of two round pieces of metal, has a lip extending from the inside of the pipeline for approximately two inches outside thereof. There were eight holes in both flanges, coupled together by bolts. The cathodic protection involved the installation of insulation inside the holes to prevent the pipe sections from coming in contact with each other (Tr. 21- 22).

Christie's officials were not present when the accident occurred. The only information they had was gathered from one employee, who survived, and Cooper, the superintendent (Tr. 39- 40). The CO determined that the accident was a rupture of the pipeline which released gas into the manhole; but, it did not cause a fire or explosion (Tr. 42-43). He gained this information initially from a news report, which was later supplemented by talking with J.W., Sr., and Cooper, plus other investigative findings. Those two officials told the CO that (i) the three employees were working at that location, and (ii) one employee was in the manhole when the gasket ruptured on the flange, causing gas to leak in a large volume (pressure unknown). The employee inside the manhole was overcome and keeled over. Another employee saw what had transpired and went into the manhole to save his fellow employee; but, he also keeled over. The surviving employee attempted in vain to pull that employee out. Both of the employees in the manhole died (Tr. 43-44). Both J.W., Sr. and Cooper stated that performance of work in manholes below ground level was rare (Tr. 33-34, 52-53).

The CO's evaluation of Christie's safety program, after the inspection, resulted in the highest rating in all categories (3's or above average) These categories included comprehensiveness of safety program (written), communication of program to employees (weekly safety meetings conducted by Cooper), enforcement of program (direct supervisory warnings), safety training program (safety staff composed of safety director), etc. Accidents are investigated with action taken. The CO felt that his findings indicated that Christie was safety oriented (Tr. 44-51, Ex. R-1).[[3]]

The CO's familiarity with the hazards associated with workplaces such as the one at issue stemmed from seminars attended and training received about work in confined spaces in this and other types of work situations.[[4]] They dealt with the generally accepted practices regarding instructions given to employees about the hazards presented and how to avoid those hazards. The training received from LSG related to the recognition of hazards presented by work in manholes only confirmed his earlier training (Tr. 23-24, 29). The principal hazards encountered in this type of work are an oxygen deficiency or gas present in explosive quantities (Tr. 24).[[5]] Those hazards could arise from several sources, a leak in the pipeline or decay of organic matter. Such decay can create various types of gases (methane, carbon monoxide, carbon dioxide and hydrogen) which can cause oxygen deficiency or can exist in a flammable mixture (Tr. 24-25). Additionally, the simple rusting of metal in a confined space, such as pipe and valve connections, consumes oxygen and can cause an oxygen deficiency (Tr. 25-26).

Based on his training and experience, employees should be instructed about hazards associated with entry into a confined space (the hazards possible to encounter) and how to determine if they are present by testing the atmosphere prior to entry (Tr. 29-30). The atmosphere can be tested initially and at various intervals by gas combustion or explosion meters and oxygen meters. If there is a problem, an air bowser can be used to ventilate the manhole (Tr. 26-27, 30-31). If that does not eliminate the problem, then entry into the confined space can be made using respiratory protection such as a self-contained breathing apparatus (scuba gear) or in-line respirators (Tr. 26, 31). The CO has found that such employees, who are required to enter manholes that are confined spaces, are typically given written instructions on the proper use and care of respirators (Tr. 33).

Both J.W., Sr. and Cooper stated to the CO that work which required entry into manholes (below ground level) was very rare (Tr. 34, 52-53). The only instructions that employees were given as to possible hazards in that situation related to the possibility of gas being present in a gas line was in a manhole (Tr. 34-35). They were instructed to take off the manhole cover and to sniff for gas. If gas was smelled, then they let the manhole air out for a couple of hours (Tr. 35, 53, 57-58). If it was not gone then, workers were told to contact LSG who would make any necessary repair (Tr. 58-60). All employees who perform this type of work receive the same instructions (Tr. 60-61, 64). He stated that the source of leaks in a LSG manhole could emanate from an adjacent sewer line creating methane or hydrogen sulfide; but, he did not know if there were any adjacent sewer lines in this situation (Tr. 59). He suspected that any gas in this manhole could possibly percolate out in 2 hours; but he could not know without testing (Tr. 59-60). The CO could not find any instructions covering any type of emergency equipment. There were no emergency protective devices or equipment on that jobsite (Tr. 36-39). Various types of possible emergency equipment identified by the CO included SCUBA gear and self-rescuers (attached to the belt with a 10-15 minute oxygen supply). Another type of emergency equipment involved the use of a body harness (safety belt with lifeline) on the person in the manhole. The lifeline would go to a worker out of the manhole who could pull the worker out of the manhole in case of an emergency (Tr. 36-37). Christie officials had not made a determination that a need existed for any type of respirators; therefore, there were no written procedures related to the use and care of such equipment or the safe use thereof in dangerous atmospheres (Tr. 38-39, 61-62).

Based on a comparison of the instructions given by Christie and instructions generally provided by employers to employees in such workplaces, the CO felt that Christie's instructions were inadequate. He noted that the instructions failed (i) to point out hazards, (ii) to set forth procedures to maintain a safe atmosphere, and (iii) to provide for emergency situations (either written or verbal) (Tr. 40-41).

The CO did not feel that the sniff test offered any advantage over meter types of tests. Disadvantages noted by the use of that test included an inability (i) to ascertain the quantity of a gas or the lower or upper explosive levels thereof, (ii) to learn how much oxygen has been displaced, and (iii) to detect odorless gases (Tr. 27-28). Moreover, the sense of smell can be quickly lost by exposure to certain agents, such as hydrogen sulfide (Tr. 28, 53).

This was a LSG pipeline (Tr. 51-52). The CO stated that (i) he is aware of LSG's safety program and procedures, and (ii) LSG procedure does not require safety lines, respirators or protective equipment until gas is actually detected (Tr. 52, 60). He agreed that LSG has a state-of-the-art safety program (Tr. 52).

DISCUSSION

A close examination of the evidence in this case reveals that many of the underlying facts are not in dispute. Since the evidence has been summarized in detail, only those matters crucial to a resolution of the issues will be discussed at any length.

It is well-settled that to prove a violation of a standard, the Secretary must show that the cited standard applies to the cited condition. Howard Barthelmass Painting Co., Inc., 81 OSAHRC 84/E1, 9 BNA OSHC 2160 1981 CCH OSHD 25,636 (No. 78-5450, 1981). All of the alleged violations are based upon an assumption that the workplace qualifies as a "confined space." Consequently, it is necessary to determine the correctness of that assumption. §1926.21(b)(6)(ii) contains a definition of "confined or enclosed space".[[6]] In essence, the CO's description of the workplace (manhole) was not controverted (Tr. 20-21, 55, 57).[[7]] Under the factual circumstances of this case, it cannot be seriously argued that the workplace in question does not meet the definition of a "confined space" found in §1926.21(b)(6)(ii).

In general, the subitems of item 1 of the citation can be collectively described as an alleged failure of Respondent to instruct each employee (i) in the recognition and nature of hazards applicable to his work (cathodic protection) which requires entry into manholes (natural gas pipeline vaults), and (ii) in the avoidance of such hazards by taking necessary precautions and in the use of protective and emergency equipment. Those subitems of item 2 deal with the same work situation. They are concerned with an alleged failure (i) to provide employees with appropriate respiratory protective devices to be used for escape during emergencies, (ii) to provide written procedures (instructions) for the safe use of respirators in dangerous atmospheres that might be encountered in the work situation, and (iii) to familiarize employees with such procedures to be used in dangerous atmospheres.

I find no obvious discrepancies between the testimony of Sullivan[[8]] and Cooper. Cooper's unrebutted testimony reveals that (i) safety training is given by him to the crews out on the job, (ii) such training is on a continual and endless basis, (iii ) Parker, the foreman on this job, had been instructed by him on many occasions on the safety procedures of checking for gas, airing out holes, etc. (Tr. 91-92, 96-97, 100). Other uncontroverted testimony by him reveals that (i) cathodic protection work requiring a crew to enter a manhole (underground vault) is extremely rare with the concomitant result of a very limited amount of crew experience in that situation, (ii) Christie has no written procedures regarding entry into such vaults, (iii) the only instructions given to employees, regarding hazard recognition in manholes or vaults, is to use the senses (eyes, ears, and nose), (iv) employees are instructed to pull the lid off a manhole, to pump out water (if any) covering the float control valve and to vent or air out the vault if gas is detected or suspected, (v) the procedure detailed in (iv) hereof is followed in all manholes or vaults, including the shallow ones, (vi) over the years, only one or two pipeline valve stems were leaking when the lid was pulled off, (vii) workers are continuously instructed to stay out of vaults where gas is suspected or known to be present, to advise LSG of the leak who notifies Christie when the repair is accomplished, and (viii) Cooper had personally instructed the two employees, who died, on those procedures (Parker and Walker) (Tr. 93-99) There is no evidence that any of those procedures were violated in this case (Tr. 82, 84, 91- 92, 99).[[9]] Sullivan testified that it was Parker who instructed and trained him on job procedures (Tr. 70, 80-81).[[10]] Parker had informed him that there was a possibility of oxygen deficiency in the manhole if gas escaped from the pipeline (Tr. 74, 83-84). This was the only hazard of which he was informed (Tr. 74).[[11]] He did not receive (i) any instructions on how to avoid such hazards, (ii) any instructions or information about emergency situations that might arise while working in a manhole, or (iii) instructions about respirators or the safe use thereof (Tr. 74-75).[[12]]

The Secretary's case is primarily based on the CO's testimony in a regard to his educational background, training and work experience in matters related to hazards associated with work in a confined space. Insofar as ascertainable, Respondent bases its defense on Cooper's testimony regarding the nature and relationship of its safety program and procedures to those mandated by LSG, together with the Secretary's assessment of the stature of LSG's safety program.[[13]] The bottom line on this matter rests squarely on a finding regarding the credibility of testimony by these two witnesses. In arriving at this finding, a close look must be given to that which went unstated, as well as to the testimony itself.

A totality of the evidence supports a finding that each of the violations, as alleged, has been established. As related to item 1, key areas of the CO's testimony were unrebutted.[[14]] The principal hazards encountered in this type of work are an oxygen deficiency or gas present in explosive quantities. While Respondent instructs employees that natural gas which has escaped from a pipeline into a manhole can cause an oxygen deficiency, there is simply no evidence that such employees are instructed that such gas can be present in explosive quantities.[[15]] Moreover, the CO testified that both hazards (oxygen deficiency and gas in explosive quantities) can arise from sources other than a leak in a pipeline. His uncontroverted testimony shows that decayed matter can cause both of those hazards by creating various types of gases (methane, carbon monoxide, carbon dioxide or hydrogen sulfide) which can cause an oxygen deficiency or exist in a flammable mixture.[[16]] Additionally, an oxygen deficiency can be caused by the rusting of metal (pipe and valve connections) in the manhole. In his opinion, employees should be instructed about hazards possible to encounter when entering a confined space and how to determine whether they are present, prior to entry, by testing the atmosphere with gas combustion and oxygen meters. They should also be tested at intervals thereafter. I agree. I further agree that such meters lack the disadvantages of the sniff test pointed out by the CO. Finally, I am not convinced by Respondent's stated reliance on the mandates of LSG's procedures and safety requirements. Cooper testified at length about the tight controls exercised by LSG. In that light, I find it surprising that LSG has not issued any safety procedures, either verbal or written, for Respondent's employees to follow when actually entering and working in manholes. However, since actual entry into manholes by Respondent's employees is so rare, this may have been overlooked by LSG.[[17]] Otherwise, I would find it inexplicable that LSG has written procedures for Respondent's use on other matters (installation, thermal welding, etc.), but not on safety procedures for entry into a manhole (confined space) (Tr. 98-99).

I also find the CO's testimony persuasive in regard to the various allegations found in item 2. Once again, he testified that, under such circumstances (work requiring entry into manholes qualifying as a confined space), it is industry practice for employers (i) to provide and require the use of appropriate respiratory protection (self-contained breathing apparatus or in-line respirators) when emergencies require, (ii) to prepare written procedures covering the safe use of respirators in dangerous atmospheres that might be encountered during emergencies, and (iii) to familiarize such employees with those procedures and available respirators. Respondent did not provide such workers respirators or any other type of emergency equipment to be used in such circumstances (Tr. 36-41, 61-62, 94-96). Moreover, Cooper stated that he was unaware of industry practice regarding the use of respirators (Tr. 103). In this particular situation, employees were engaged in cathodic protection on a live pipeline while working in a confined space. I find that a reasonable person familiar with this procedure would recognize that an emergency situation could arise. Unfortunately, it did in this particular case.

Based on the credible evidence of record, I find (in regard to all subitems, in items 1 and 2) that (i) the terms of each of the subject standards were violated, (ii) in each situation, Respondent failed to follow industry practice, (iii) as a result of each of the violations, Respondent's employees were exposed to unsafe and hazardous work conditions, (iv) if an accident occurred as a result of any of the violations, there was a substantial probability that death or serious physical harm could result, (v) the supervisor's knowledge and actions regarding the violative facts are imputed to Respondent, (vi) the factual circumstances that form the basis of the violations were reasonably foreseeable, and (vii) the method of abatement is both obvious and easily attainable.

In light of the record and the statutory penalty criteria set forth in § 17(j) of the Act, I conclude that a total penalty of $480.00 ($240.00 for each item) is reasonable and appropriate.[[18]]

FINDINGS OF FACT

The evidence of record has been fully considered and evaluated in its entirety. Findings of fact have been exhaustively set forth under the headings of STIPULATIONS, BACKGROUND OF THE WITNESSES and DISCUSSION. To avoid unnecessary repetition, they are hereby incorporated by reference.

CONCLUSIONS OF LAW

1. At all times material hereto, Respondent was an employer within the meaning of § 3(5) of the Act, engaged in a business affecting commerce, and having employees.

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

3. Respondent was in serious violation of 29 CFR 1926.21(b)(2).

4. Respondent was in serious violation of 29 CFR 1926.21(b)(6)(i).

5. Respondent was in serious violation of 29 CFR 1926.103 (a) (1).

6. Respondent was in serious violation of 29 CFR 1910.134(e)(3).

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the record as a whole, it is ORDERED that:

1. To the extent that the Secretary's requested findings of fact and conclusions of law are inconsistent with this decision, they are DENIED.

2. Item 1 of serious citation 1, alleging violations of 29 CFR 1926.21(b)(2) and 29 CFR 1926.21(b)(6)(i), is AFFIRMED, and a civil penalty of $240.00 is ASSESSED.

3. Item 2 of serious citation 1, alleging violations of 29 CFR 1926.103(a)(1) and 29 CFR 1910.134(e)(3) is AFFIRMED, and a civil penalty of $240.00 is ASSESSED.

E. CARTER BOTKIN
Administrative Law Judge

Date: December 27, 1985

APPENDIX

Citation

1a[[1]]
29 CFR 1926.21(b)(2): The employer did not instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to his work environment to control or eliminate any hazard(s) or other exposure to illness or injury:

(a) Intersection of Spring Valley and North Central Freeway, manhole - Cathodic Protection operation on gate valve in natural gas pipeline valve vault, recognition of hazards connected with prior entry into manhole vaults.

1b
29 CFR 1926.21(b)(6)(i): Employees required to enter into confined or enclosed spaces were not instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required:

(a) Intersection of Spring Valley and North Central Freeway, manhole - Cathodic Protection operation - requiring entry into manhole and natural gas pipeline valve vault.

2a[[2]]
29 CPR 1926.103(a)(1): The employer did not provide or enforce employee use of appropriate respiratory protective devices in emergency situations or when controls required by subpart D of 29 CFR part 1926, either failed or were inadequate to prevent harmful exposure to employees:

(a) Intersection of Spring Valley and North Central Freeway, southeast corner, employees required to work in confined space were not provided with emergency escape respirators.

2b
29 CFR 1910.134(e)(3): Written procedures were not prepared covering safe use of respirators in dangerous atmospheres that might have been encountered in normal operations or in emergencies:

(a) Intersection of Spring Valley and North Central Freeway, southeast corner, employees required to work in confined space were not provided written instructions for emergency conditions that could be encountered while performing Cathodic Protection on line gas valve.

2c
29 CFR 1910.134(e)(3): Personnel were not familiar with procedures and the available respirators to be used in dangerous atmospheres that might have been encountered in normal operations or in emergencies:

(a) Intersection of Spring Valley and North Central Freeway, southeast corner, employees required to work in confined space were not provided written instructions for emergency conditions that could be encountered while performing Cathodic Protection on line gas valve.

Standards

1a - 29 CFR 1926.21(b)(2)

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

1b - 29 CFR 1926.21(b)(6)(i)

(6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.

2a - 29 CFR 1926.103(a)(1)

(a) General. (1) In emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful exposure to employees, appropriate respiratory protective devices shall be provided by the employer and shall be used.

2b - 29 CFR 1910.134(e)(3)
(3) Written procedures shall be prepared covering safe use of respirators in dangerous atmospheres that might be encountered in normal operations or in emergencies. Personnel shall be familiar with these procedures and the available respirators.

2c - (The same as set forth in 2b hereof)

FOOTNOTES:

[[1]] The text of the citations and the text of the standards are appended to this decision.

[[2]] This is consistent with his statement of never having seen respirators in cathodic protection work. However, he also stated that he was unaware of what other people in the industry do regarding the use of respirators in such work (Tr. 103).

[[3]] Christie employed 130 people (Tr. 42). The CO stated that the inspection was an evaluation of Christie's entire program. The overall rating was not lowered by a finding of the subject deficiencies (Tr. 64-66).

[[4]] He defined a confined space as one which is more than four feet deep with a limited means of gaining entry or exit (Tr. 56).

[[5]] Exposure to either of those hazards could lead to death or serious physical harm (Tr. 25)

[[6]] This section defines a confined or enclosed space as follows:

(ii) For purposes of paragraph (b)(6)(i) of this section, "confined or enclosed space" means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels.

[[7]] The only exception thereto involved the depth of the manhole. Sullivan felt the manhole was 7-8 feet below ground level while the CO indicated it was 6½-7 feet deep. Both were approximations (Tr. 20-21, 55, 57, 75). I find that the bottom of the manhole was at least 6½ feet below ground level. Otherwise, I find that it was bell-shaped with a cover which was approximately 22 inches in diameter. The inside diameter was approximately 4 feet. There was a natural gas pipeline situated therein (Tr. 20-21, 55, 57).

[[8]] Although there was an effort to damage the credibility of Sullivan based on a possible financial interest, I did not find that effort convincing (Tr. 77-79). This witness answered questions directly and without equivocation. He left the impression of being honest and guileless.

[[9]] Other evidence establishes that the workers had been working at the subject location and in the manhole for a significant period of time prior to the accident (the rupture of the gasket on the flange of the pipeline causing a large volume of natural gas to leak into the manhole) (Tr. 22-23, 42-44).

[[10]] I note that this was not contradicted by Cooper. Moreover, he never mentioned giving Sullivan instructions on safety or work procedures. Instead, his testimony centered specifically on Parker and Walker (Tr. 39). I do not find this surprising. After all, Sullivan was not only a relatively new employee, but had transferred to this type of work crew only a short time prior to the accident (Tr. 69-73, 79-81).

[[11]] This includes the hazard of natural gas catching on fire or exploding.

[[12]] All of those matters set forth in the foregoing paragraph are hereby found as facts.

[[13]] The CO referred to it as a state-of-the-art safety program.

[[14]] I found the CO to be a compelling witness, based on both his demeanor and testimony. Beyond his formal educational background, completion of safety training courses and many years of work in the field of safety, he has attended a number of seminars related to employees working in confined spaces such as manholes. Significantly, those seminars included one given by LSG.

[[15]] This is not cured by Sullivan's testimony that, since it is common knowledge, he did not need to be told that natural gas will burn. Very simply, an assumption, that matters of "common knowledge" need not be the subject of safety instructions, does not satisfy an employer's duty under either §1926.21(b)(2) or §1926.21(b)(6)(i).

[[16]] The fact that the CO did not know if there were adjacent sewer lines in the area (a possible source of methane or hydrogen sulfide) has been considered. This testimony does not rule out that source, other sources of those gases, or the other gases mentioned. Moreover, the subject matter at issue in item 1 is to a large degree related to "instructions" on the (i) recognition and nature of hazards, and (ii) avoidance thereof by precautions taken and use of protective and emergency equipment. Whether they actually exist in this or any other particular case begs the question.

[[17]] To the extent that this is the case, I would not agree with the CO's statement regarding a state-of-the-art safety program. Both Cooper and the CO testified that LSG requires its own employees to use respirators, snatch jackets, etc., when going into manholes if gas is "present" or "detected." However, this testimony does not establish how LSG determines whether gases are present. In particular, I note that Cooper's testimony is silent regarding whether LSG's employees use gas combustion and oxygen meters to detect gases prior to entry into a manhole (confined space).

[[18]] Respondent has a constant workforce of approximately 60 employees. At times, it has employed approximately 130 workers.

[[1]] Preferring statements regarding the alleged violations set forth in item 1 were that (i) they had been grouped because they involved similar or related hazards that may increase the potential for injury resulting from an accident, and (ii) they were alleged to have occurred on or about February 8, 1984. The Secretary required immediate abatement of these conditions and a penalty of $240.00 was proposed.

[[2]] All of the prefacing statements in footnote 1 are equally applicable to item 2. Once again, the Secretary required immediate abatement of the conditions and a penalty of $240.00 was proposed.