SECRETARY OF LABOR, Complainant, v. SHANK-OHBAYASHI, Respondent. OSHRC Docket Nos. 88-1711 & 88-2674 _ORDER_ These consolidated cases were directed for review by Former Acting Chairman Linda L. Arey on November 21, 1989. Review was sought and directed only on issues involving Docket No. 88-2674. Review was not directed on any issue involving Docket No. 88-1711. Under Commission Rule of Procedure 92(a), 29 C.F.R. § 2200.92(a), however, the direction for review established jurisdiction in the Commission to review "the entire case," that is, all issues in Docket Nos. 88-1711 & 88-2674. Having reviewed the entire record, the Commission now finds that there is neither party interest nor a compelling public interest that would warrant further review of the issues presented in Docket No. 88-1711. Accordingly, on the Commission's own motion pursuant to Commission Rule of Procedure 10, 29 C.F.R. § 2200.10, Docket No. 88-1711 is severed and the judge's decision as to that docket number is deemed a final order of the Commission. Docket No. 88-2674 remains pending before the Commission on review. Edwin G. Foulke, Jr. Chairman Donald G. Wiseman Commissioner Velma Montoya Commissioner Dated: June 19, 1990 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. SHANK-OHBAYASHI, Respondent. OSHRC DOCKET NOS. 88-1711 and 88-2674 APPEARANCES: For the Complainant: Jonathan S. Vick, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles, CA For the Respondent: Michael L. Shank, Pro se, Shank-Ohbayashi, Los Angeles, CA _DECISION AND ORDER_ Loye, Judge: This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 _et seq_.; hereafter called the "Act"). Respondent, Shank-Ohbayashi, is involved in a tunneling project for the Los Angeles Metro-Rail (Tr. 24). As a result of two separate inspections at the tunnel site, respondent was issued a number of citations which were timely contested. Those cases were docketed under Commission Docket Nos. 88-1711 and 88-2674. Upon motion, the two cases were consolidated for purposes of trial. A hearing was held in Los Angeles, California on April 11-14, 1989. The parties have submitted briefs and the matter is now ready for decision. _Alleged Violations_ At hearing the Secretary moved to withdraw a number of citations. The Secretary's motion was granted. With respect to Docket No. 88-2674, the Secretary withdrew citation 1, item 4c, (Tr.361). Docket No. 88-1711: citation 1, items 2 and 3a and citation number 2, item 2 were withdrawn (Tr. 20-21). The remaining citations are as follows: Docket No. 88-2674 - Serious citation 1, items 1 through 6, allege violation of 29 C.F.R. §§1926.300(b)(2), 1926.302(b)(1), 1926.350(a)(9), 1926.407(b), 1926.431 and 1926.800(a)(2). The Secretary was allowed to amend Serious citation 1, items 7a and 7b to plead in the alternative, rather than separately, violations of 29 C.F.R. §§1926.800(e)(1)(iv) and 5(a)(1) (Tr. 21-23). Serious citation 1, item 8 names violations of §1926.800(h)(2)(ii). Willful citation 2, items 1, 2 and 3 charge violations of §1926.407(b), 1926.800(c)(2)(vii), and 1926.800(k)(6). Other than serious citation 3, item 1, 2, 3 and 4, charge violations of 1926.403(e), 1926.403(g), 1926.403(h) and 1926.405(b)(2). Docket No. 88-1711 - Serious citation 1, items 1a, 1b, and 1c allege violation of 29 C.F.R. §§1926.350(a)(1), 1926.350(a)(9) and 1926.350(j). Serious citation 1, item 3b alleges violation of §§1926.21(b)(2). Citation 1, item 4 was amended to allege a violation of §1926.431. Other than serious citation 2, items 1, 3, 4 and 5 charge violations of §§1926.51(a)(4), 1926.54(b), 1926.152(a)(1) and 1926.800(k)(14). No jurisdictional issues are in dispute, the parties having pled sufficient facts to establish respondent is subject to the Act and the Commission has jurisdiction of the parties and the subject matter. *Docket No. 2674* Mr. Thomas L. Wild, a Compliance Officer with OSHA, conducted the August, 1988 inspection at respondent's A171 tunnel site near Wilshire and Bonnie Brae in Los Angeles, California (Tr. 319). _Citation 1, Items 1a and 1b_ _Facts_ The first citation concerns a ballast weight conveyor. The ballast weight rides on a frame consisting of two poles attached to the conveyor and passing through supports on each side of the weight. The bottom member of the frame is about four feet below the conveyor and four feet above the ground (Tr. 324; Ex. C-K3, C-K4). The ballast fluctuates up and down to keep tension on the belt as it moves "muck" over the top (Tr. 326). Mr. Wild testified that if the conveyor belt were to break, the ballast would fall 18 inches to two feet to the bottom of its supporting frame (Tr. 321, 329). Employees walking past, or at work greasing the conveyor's roller might be struck on the head or shoulder (Tr. 321, 332; Ex. C-K2). A blow from the weight could result in severe injuries including concussion and broken bones (Tr. 328, 331). Mr. Wild felt that a cable should have been attached from the frame to the weight itself to prevent it from dropping (Tr. 322, 330). Mr. Wild also testified that on the lower part of the same conveyor system, a self-cleaning tail pulley and 4 idler rollers were unguarded (Tr. 332; Ex. C-K5). Mr. Wild stated that employees could get their hands inside the spokes of the pulley wheel or get their clothing caught in "little hands" that stick out front the wheel (Tr. 334-335). Mr. Wild also stated that employees could get their hands caught between the idler rollers and the metal conveyor frame, resulting in possible broken bones or amputation (Tr. 336). Mr. Wild testified that employees had to walk around the conveyor to get up the walkway to the top of the conveyor system, and that maintenance employees would also be exposed to the alleged hazard when greasing the rollers (Tr. 337). _Discussion_ Part 1926, Subpart I is titled _-Tools-Hand and Power_. Section 1926.300(b)(2) provides that: Belts, gears, shafts, pulleys, sprockets, spindles, drums, flywheels, chains, or other reciprocating rotating or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard. Guarding shall meet the requirements as set forth in American National Standards Institute, B15.1-1953 (R1958), Safety Code for Mechanical Power-Transmission Apparatus. Respondent argues that the Secretary has failed to demonstrate that the cited standard applies to its conveyor belt as required under Commission precedent. _Astra Pharmaceutical Products, Inc_., 9 BNA OSHC 2126 (No. 78-6247, 1981). The Secretary contends that, despite the heading of Sub-part I; §1926.300(b)(2), applicable to belts and gears on equipment, is applicable to respondent's belt conveyor. This Judge disagrees. _Webster's II New Riverside University Dictionary_ contains the definition: tool 1.A hand-held implement, as a hammer, saw, or drill, used in accomplishing work. 2.a. A machine, as a lathe, for cutting and shaping mechanical parts. b.The cutting part of such a machine.. . . It is clear a conveyor belt is not a "tool", in the common understanding of the word. Moreover, in this case the standard itself refers to many tools specifically. References to sanders, grinders, routers, nailers, jackhammers, etc., support a finding that the drafters of the standard intended it to apply to "tools" in the common sense. In addition, Subpart N _-Cranes, Derricks, Hoists, Elevators, and Conveyors_ contains regulations specifically applicable to conveyors. Section 1926.555 directs the reader to safety requirements set forth in ANSI B20.1-1957, Safety Code for Conveyors, Cableways, and Related Equipment, an ANSI standard different than the one referred to by § 1926.300(b)(2). Those standards set forth requirements for the very components dealt with in the Secretary's citation. It is well settled that the Secretary may not extend the reach of a standard beyond the plain meaning of the regulation's language, thus depriving the employer of fair warning of proscribed conduct. _See e.g., Bethlehem Steel v. OSHRC_, 573 F.2d 157 [6 BNA OSHC 1440] (3rd Cir. 1978). The Secretary has not shown the cited standard's applicability and Citation 1, items 1a and 1b are dismissed. _Citation 1, Item 2_ _Facts_ Mr. Wild then testified that during his inspection, he observed two employees working with an air powered jackhammer. The flexible hose supplying air to the jackhammer was not secured by a "whip check" or any other positive means (Tr. 343). A whip check is a cord that attaches to a frame and the end of an air hose. Should the hose work loose, the whip check would prevent the pressurized hose from whipping around and possibly striking employees (Tr. 344). Mr. Wild testified that a blow from a pressurized hose could result in possible broken bones or a concussion (Tr. 351). Mr. Wild observed one employee using the jackhammer at the time of the inspection and another within two feet of him (Tr. 350). When he called the condition to the attention of the foreman, who was in the area, it was immediately abated (Tr. 350-351, 356). The Project Manager, Mr. Stokes, testified that, on its hoses, respondent uses only Boss couplings, which take multiple turns of the wing nut to dislodge. Whip checks are used only on hoses larger than one inch (Tr. 816; Ex. R-4). _Discussion_ Section 1926.302(b) requires that: _Pneumatic Power tools_. (1) Pneumatic power tools shall be secured to the hose or whip by some positive means to prevent the tool from becoming accidentally disconnected. The relevant facts are uncontested. Respondent argues that its use of the Boss coupling constitutes a positive means of preventing accidental disconnection. The Secretary maintains that the "positive means" required by §1926.302(b)(1) refers to some type of safety clip, chain or retainer, and that merely adding more threads to the coupling will not satisfy the regulation. It is noted that the interpretation of a standard by the promulgating agency is controlling unless "clearly erroneous or inconsistent with the regulation itself." _Udall v. Tallman_, 380 U.S. 1, at 16, 87 S.Ct. 792, at 801 (1965). In this case, the Secretary's interpretation is consistent with the language and purpose of the standard. Respondent was not, therefore, in compliance with 1926.302(b)(1) as interpreted. It is admitted that it was respondent's policy not to use whip checks on the size hose involved here; therefore, employer knowledge of the violation is established. Since a pneumatically propelled hose could easily put out an eye or result in serious lacerations, the violation will be affirmed as a "Serious" violation. The Secretary proposes a penalty of $500.00. The determination of what constitutes an appropriate penalty is within the discretion of the Review Commission. _Long_ _Manufacturing Co. v. OSHRC_, 554 F.2d 902 (8th Cir. 1977). In determining the penalty the Commission is required to give due consideration to the size of the employer, the gravity of the violation and the employer's good faith and history of previous violations. The gravity of the offense is the principle factor to be considered. _Nacirema Operating Co_., 1 BNA OSHC 1001, (No. 4, 1972). Respondent in this case is a medium to large employer, with 75 to 100 employees. Respondent has a history of serious citations (Tr. 501, 504). The gravity of the violation is medium to low. Only two employees were exposed to the hazard, which respondent had taken some measures to abate with the use of safety couplings. The cited condition was immediately abated. Under the circumstances, this Judge finds that the proposed penalty is excessive. $300.00 will be assessed. _Citation 1, Item 3_ _Facts_ While in the tunnel, Mr. Wild observed an unsecured oxygen and acetylene bottle propped against the wall on top of a pipeline which ran along the right-hand side of the tunnel (Tr. 353-354). Mr. Wild stated that the bottles were full and capped (Tr. 509). Two employees were observed working within several feet of the hazardous condition (Tr. 355). A foreman was in the area (Tr. 356). Mr. Wild testified that the bottles were in an unstable condition and could be easily knocked over by traffic in the area (Tr. 356). Should a pressurized bottle tip over and rupture or break off at the top, it would become a missile (Tr. 354-355). A tank propelled into an employee could result in serious injury including broken bones or death (Tr. 355). Mr. Stokes testified that pressurized cylinders are stored upright in a rack on the surface. Oxygen and acetylene are separated with a fireproof metal barrier (Tr. 817). Cylinders are taken into the tunnel when required for use (Tr. 818). _Discussion_ Section 1926.350(a) states: _Transporting, moving, and storing compressed gas cylinders._ (9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary for short periods of time while cylinders are actually being hoisted or carried. The only issue raised by respondent is that of applicability. Respondent argues that §1926.350(a) is limited by its heading to the transport and storage of cylinders, citing _Sterns-Roger Incorporated_, 7 BNA OSHC 1919 (No. 76-2326, 1979). The cited cylinders, it argues, were in use or available for intermittent use and therefore not subject to the regulation. The Commission, however, limited the applicability of _Sterns-Roger_ in a later case, _Austin Building Co_., 8 BNA OSHC 2150 (No. 77-3878, 1980). In that case the Commission found that §1926.350(a)'s heading could not be used to limit the explicit terms of 1926.350(a)(9), which require that cylinders be secured "at all times" other than when hoisted or carried for short periods. _Id_. at 2153. The Commission then found the standard to be applicable to cylinders in use. This Judge is bound by the ruling in _Austin Building Co_. Since the respondent's cylinders were neither being hoisted nor carried, the standard is applicable. The evidence establishes a "Serious" violation of §1926.350(a)(9), and citation 1, item 3 will be affirmed. The Secretary has proposed a penalty of $500.00. The gravity of the violation is medium. Two employees were exposed, no alternative measures were taken to protect against the hazard. Taking the relevant factors into account the proposed penalty is found to be excessive. $400.00 will be assessed. _Citation 1, Item 4a and 4b_ _Facts_ During the inspection, Mr. Wild noted equipment in use approximately 4,000 feet inside the tunnel which was not approved for use in a hazardous location (Tr. 363). Respondent has admitted that the equipment in question, the control switch of a Baldor 1.5 hp industrial motor and auxiliary tool extension cords and recepticals, was in the tunnel and was not approved for a Class 1, Division 2 location (Tr. 357, 364; Ex. C-K6, C-K10). Mr. Wild stated that unapproved equipment may arc or spark, igniting any flammable gas in the atmosphere. A fire in the tunnel could result in death (Tr. 364). Respondent, however, argues that the tunnel was improperly classified as a hazardous Class 1, Division 2 location. Ronald J. Searle, a professional engineer and Safety Engineer and Consultant with the Bureau of Reclamation (Tr. 49), testified as an expert for the Secretary. While with the Bureau, Mr. Searle worked on the development of safety and health standards for that agency (Tr. 44). Mr. Searle worked with the Bureau's geotechnical staff developing specifications for the driving of tunnels based on geological formations (Tr. 45). Among his other qualifications, Mr. Searle counted 13 years experience classifying mines with Kennecott Copper (Tr. 43, 46, 49). Mr. Searle admitted he was not a geologist nor an electrical or petroleum engineer (Tr. 41, 55). Mr. Searle also admitted that the U.S. Bureau of Reclamation's standards for classifying tunnels are not based on OSHA standards and are more stringent than OSHA standards (Tr. 184-186). Mr. Searle testified that, in classifying a tunnel, he would look at geotechnical reports, gas test results taken from bore holes in the area and any information available from earlier underground work conducted nearby (Tr. 39-41). In this case he reviewed the _Geotechnical Report, Metro Rail Project Design Unit A170_ (referring to the A171 segment) prepared by Converse Consultants, Inc., their report on Design Unit A140 (referring to the A146 segment) and _Geologic Aspects Of Tunneling In The Los Angeles_ _Area_, prepared by the Department of the Interior, U.S. Geological Survey (Tr. 52; Ex. C-A, C-B, C-C). Mr. Searle also relied on portions of the Southern California Rapid Transit District (RTD) Contract for the Metro Rail Project and newspaper and personal reports of gaseous conditions in tunnels and elsewhere in the Los Angeles area, including reports from respondent's employees (Tr. 49, 52, 102-103, 109, 125; Ex. C-D, C-E). The geotechnical report of Converse, a Geo/Resource Consultant, noted that the Los Angeles City Oil Field is located from 500 feet, at its closest approach, to 2,000 feet north of the A171 tunnel (Ex. C-A, p. 7). Although gas analyses conducted on bore holes dug in the tunnel area were inconclusive (Ex. C-A, p. 12), the report stated that "[g]asoline, sulfur and petroleum odors were noted" in amounts of roughly 2 to 15% by volume in four of the borings, and that "[o]rganic-sulfurous odors" were noted in one additional bore hole at shallow depths. "[L]arge gas bubbles and tar were observed on the surface within the drilling fluid when the bottom of the hole was at depths greater than 150 feet." (Tr. 72; Ex. C-A, p.7). Converse advised that "[t]he likelihood of gas issuing from the bedrock formation is a distinct likelihood throughout Design Unit A170" (Tr. 72; Ex. C-A, p.9; _see also_, Ex. C-A, p. 12; Appendix A, December 2, 1983 memorandum). The report further stated that "[m]ethane and other natural hydrocarbon gases are expected to occur along the proposed Metro Rail tunnel alignment, especially where the alignment crosses oil fields" (Tr. 74; Ex. C-A, Appendix C, p. C-1; _see also_ p. C-5). Converse reached similar conclusions in its geotechnical report for the nearby A146 tunnel segment. In one instance, gas which had been entrained in ground water was released and ignited by a "spark of unknown origin" (Tr. 90-91; Ex. C-C, p. 8-9, 12, 15, 63). The U.S. Geological Survey located the Los Angeles City oil field approximately 6 to 8 blocks from the A171 tunnel (Tr. 98; Ex. C-B, sheet 5). The survey noted that "local accumulations of petroleum (petroleum gas, free oil, asphalt or tar) and a few of hydrogen sulfide were found in shallow borings. . . at several places. . . in the downtown area (Ex. C-B, p. 7). A specific instance where "gas and seeping oil" had been encountered in 1975 was cited (Tr. 96; Ex. C-B, p. 66). According to the RTD contract governing the construction of the A171 tunnel, the tunnel project had been classified by Cal-OSHA as a "gassy" location (Tr. 125, Ex. C-E, § 01545). California Title 8, Industrial Relations, Article 8. _Tunnel Classifications_ § 8422 defines "gassy,": "which classification shall be applied to tunnels where it is likely gas will be encountered or if a concentration of 0.25 percent by volume (5% of LEL) or more of flammable gas has been detected not less than 12 inches from the roof face, floor and walls in any open workings with normal ventilation." (Tr. 130; Ex. J-B2). In the course of his investigation, Mr. Searle visited respondent's tunnel where employees told him that hydrogen sulfide had been detected at low concentrations (Tr. 49, 52). This was the only evidence Mr. Searle was aware of that gas had been encountered in the tunnel itself (Tr. 202). As respondent excavated the tunnel, a 3 to 4 inch probe hole was drilled 50 feet straight ahead of the mining machine. Tom Grogan, respondent's Safety Representative, personally monitored the probe holes (Tr. 703, 707-709). At 10 foot intervals the explosive gas sensor was inserted three feet into the hole (Tr. 720). There was also an eight head automatic monitoring system on the mining machine itself which hung directly outside the bore hole, taking readings as air from the hole was flushed using air or water introduced through the steel head (Tr. 703, 720-722). In addition there was a gas detector head in the fan line (Tr. 703). Each shift included a gas tester who watched the automatic monitoring system and tested the area for hydrogen sulfide on an hourly basis with a Draeger hand pump (Tr. 703, 714-716, 718-719). Mr. Grogan testified that they have never encountered any explosive gases in the tunnel (Tr. 704). Small amounts of hydrogen sulfide were found in the rock itself at the end of one of the tunnels[[1]] (Tr. 705). Mr. Wild testified that over the course of his inspection, he tested the tunnel atmosphere for gases over 100 times without ever detecting any gas (Tr. 512-513). The ventilation system in respondent's tunnel was designed to provide 50,000 cfm of air (Tr. 839). Mr. Searle testified that the methods (velometers) being used by respondent to monitor its ventilation system were inadequate and that, based on his own calculations, less than the design amount was being circulated at the tunnel heading (Tr. 117, 204). According to Mr. Searle's calculations, the circulation from the main duct system was inadequate, merely recirculating air from the tunnel at the heading. Additionally, Mr. Searle felt the system should have been capable of producing 100,000 cfm at the heading should gas be encountered (Tr. 204-205). Mr. Searle also felt that a secondary system drawing air into or exhausting air from the cross-cuts was necessary as existing fans did not adequately circulate air through the cross passages (Tr. 136, 137, 204; See also Mr. Wild's testimony at 635). Mr. Searle opined that, given the proximity of the Los Angeles City oil field and the detection of tar, a petroleum product, in the area it is reasonable to assume that flammable petroleum gases or vapors may also be present in the A171 area (Tr. 74-75, 101). Methane, a flammable gas, and hydrogen sulfide, both flammable and toxic, may also be generated where there are oil fields as well as where bacteria works upon organic material entrapped in geologic formations (Tr. 78-79). Mr. Searle stated that in the area of the Los Angeles tunnel, seismic conditions create fissures through which gas from nearby areas may move. Gas may also migrate through permeable formations or through water channels (Tr. 93). Based on his understanding of the geologic formation in the area of the A171 tunnel, the "gassy" classification of Cal-OSHA and his knowledge of instances where gas had been encountered within 6 miles of the tunnel site (Tr. 102, Ex. C-D), Mr. Searle felt that there was a "great potential for a gassy environment" which would not be immediately dissipated by respondent's ventilation system, and that only electrical systems and equipment meeting the requirements of the National Electrical Code, Article 500, Class I, Division I, Group D or Class I, Division II, Group D, should be used below ground (Tr. 173, 193, 205; Ex. C-G). Mr. Searle felt the tunnel was properly classified as a Class 1, Division 2 location by OSHA (Tr. 193, _see also_ p. 53, 69). The Southern California Rapid Transit District apparently agreed with Mr. Searle. The product specifications in the Wilshire/Alvarado Line Contract A171, under which Shank-Ohbayashi was engaged, state that all electrical installation and electrical equipment for tunneling and covered construction operations shall conform with the Class I, Division 2 designations in the Electrical Safety Orders in Title 8 of the California Administrative Code (Tr. 132-133; Ex. C-E, §01545-2.1C). The California classification system found in Title 8 Article 59 §2540.1 is identical to that found in §1926.449 (Ex. J-B3).[[2]] Mr. William C. Bible, a professional consultant and licensed electrical, industrial and fire protection engineer testifying for respondent, disagreed with Mr. Searle's conclusions (Tr. 769-772). Based solely on the construction history of respondent's tunnels and the results of gas tests, Mr. Bible concluded that there was no "identifiable and positive" probability of gas being present in the tunnel (Tr. 787-789). Mr. Iraj Ershaghi testified for respondent. Mr. Ershaghi is a professor and acting Chairman of the Department of Petroleum Engineering at the University of Southern California, specializing in reservoir engineering, the study of the underground migration of crude oil or gas. Mr. Ershaghi also acts as a consultant (Tr. 880-883). Mr. Ershaghi reviewed the material relied upon by Mr. Searle as well as the records of the California Division of Oil and Gas, and Division of Mines and Geology (Tr. 884-885). Mr. Ershaghi then prepared a statistical study of wells or holes bored in the last 30 to 40 years in the vicinity, i.e. within 100 feet, of the tunnel site. Mr. Ershaghi noted that the oil extracted from the area was extremely heavy, containing no light hydrocarbons (Tr. 912). Oil being pumped from the area was driven, not by gas pressure, but by gravity or the weight of the oil itself (Tr. 914). Mr. Ershaghi found that the Los Angeles City oil field is a homocline, a geological formation running from south to north and rising up out of the earth at a 30 to 40 º angle. The northern most portion of the structure is on the surface itself (Tr. 909-910; Ex. J-F6). Based on the evidence, Mr. Ershaghi concluded that the formation had no "gas cap", such as rock or an impermeable clay layer holding the gasses beneath the surface, and that as a result, over the life of the field, about 15 million years, most of the light hydrocarbon in the field had escaped into the atmosphere (Tr. 910-912). He further stated that what small amounts of gas remained trapped were not likely to be communicated further because of insufficient gas pressure and the presence of insufficient perch, or ground water (Tr. 917, 922-923). Mr. Ershaghi determined that based on the gas encountered, there was a 6% to 30% chance of encountering gas during tunnel excavation (Tr. 888-889, 904). He felt that any gas would likely be of "local effect". Because of limited information available, Mr. Ershaghi was unable to accurately estimate amounts which might be trapped in the "pores" of the rock, but felt that there might be several hundred cubic feet maximum (Tr. 882, 917-918, 920-922, 927). _Discussion_ Section 1926.407(b) states that: _Electrical installations_. Equipment, wiring methods, and installations of equipment in hazardous (classified) locations shall be approved as intrinsically safe or approved for the hazardous (classified) location or safe for the hazardous (classified) location. . . Definitions of hazardous locations are provided under §1926.449. The Secretary maintains that respondent's tunnel falls under subsection (b)(2) of Class I locations, which defines Division 2 locations as those (among others): In which ignitable concentrations of gases or vapors are normally prevented by positive mechanical ventilation, and which might become hazardous through failure or abnormal operations of the ventilating equipment;. . .[[3]] When the regulation is read as a whole, it appears that subsection (b)(2) provides a means for an employer with a Class 1, Division 1 location, "[i]n which ignitable concentrations of flammable gases or vapors may exist under normal operating conditions," to downgrade the location's classification through the provision of positive mechanical ventilation. Since a location may be classified as Class 1, Division 1 based on the mere probability of ignitable concentrations of gas, it would be inconsistent to require the actual presence of those same concentrations to support a Class 1, Division 2 classification. This does not, however, end the analysis. In _Continental Oil Company_, 11 BNA OSHC 2114 (No. 79-570-E, 1984), the Commission examined §1926.449's definition of Class 1, Division 2 locations and noted that: The definition does not establish any unbending rules. A great deal of discretion is left. . . The standard specifically instructs that certain factors should be considered: The quantity of flammable material that might escape in case of an accident, the adequacy of ventilating equipment, the total area involved, and the record of the industry or business with respect to explosions or fires are all factors that merit consideration in determining the classification and extent of each location. _Id_. at 2117. _See_ note 2 _supra_. Because of the latitude allowed in the standard, the Commission held that in order to prove a violation, the Secretary must demonstrate that, after taking into consideration the above mentioned factors, the use of unapproved equipment presents a fire or explosion hazard and is contrary to sound engineering judgement. _Id_. The evidence is clear that although no hydrocarbon gases and only small concentrations of hydrogen sulfide had so far been encountered in the A171 tunnel segment, there exists a substantial likelihood of encountering such flammable gases there. Based on its testing, the accuracy of which was not disputed by respondent, Converse Consultants repeatedly stressed the possibility of encountering gas and even respondent's own expert, Mr. Ershaghi stated that the probability was as high as 30%. Though Mr. Ershaghi did not believe it probable that large amounts of gas would be encountered, he could not conclude that the amounts encountered would not constitute ignitable concentrations. In at least one instance, ignitable concentrations trapped in perch water were encountered in a borehole. Respondent contends that its ventilation would dissipate such concentrations, estimated at several hundred cubic feet, as might be encountered. However the standard contemplates a failure in ventilation systems. There was no evidence that respondent had any back-up system. Moreover there was testimony that the ventilation system merely recirculated air at the tunnel heading and did not reach the cross-passages at all. Mr. Searle's testimony is clear, that in his expert opinion, given the conditions encountered in the A171 tunnel, sound engineering practices require the use of electrical equipment certified safe for Class I, Division 2 locations. His opinion is supported by the conclusions of RTD as evidenced by the A171 contract. Mr. Ershaghi has no experience in the construction field and offered no opinion as to the necessity of using non-sparking equipment. The only expert stating a contrary opinion was Mr. Bible, who viewed only gas testing results from the tunnel itself and did not see any of the geotechnical reports for the Los Angeles Area. The Secretary has established that a fire and/or explosion hazard existed in the A171 tunnel and that sound engineering judgment required the use of equipment certified for a Class 1, Division 2 location. Respondent's use of non-certified equipment therefore, constitutes a violation of §1926.407(b). The Secretary has proposed a penalty of $1,000.00. In this instance the gravity of the violation is medium to high. The violation was ongoing and a fire in the tunnel could endanger every employee inside, however, given the history of the tunnel excavation the probability of such a fire has been proven low. Taking the relevant factors into account, the proposed penalty is found to be excessive. $700.00 will be assessed. _Citation 1, Item 5a through 5e_ _Facts_ Inside the tunnel, a circuit-breaker box for a sump pump (Ex. C-K7, C-K8), panel boxes for the left and right air supply fans (Ex. C-K12), a pilot power unit (Ex. C-K13), a control panel to the shield (Ex. C-K14), and a lighting and laser unit (Tr. C-K15), all had bolts missing and backed part way out (Tr. 370-375). In addition, the lighting and laser unit had an open unused opening (Tr. 377-378). Mr. Wild testified that gas could enter any of these unsecured control panels and that the arcing and sparking within the components could then ignite the gas and spread fire to a gaseous atmosphere outside (Tr. 379-380). Mr. Wild felt that the missing and loose bolts should have been obvious if proper maintenance procedures were being followed (Tr. 381). _Discussion_ Section 1926.431 states that: The employer shall ensure that all wiring components and utilization equipment in hazardous locations are maintained in a dust-tight, dust ignition-proof, or explosion-proof condition as appropriate. There shall be no loose or missing screws, gaskets, threaded connections, seals or other impairments to a tight condition. Respondent defends solely on the basis that its tunnel was not properly classified as a Class 1, Division 2 location. Based on the discussion in the previous section finding the A171 tunnel a hazardous location in which sound engineering judgement requires the use of non-sparking electrical equipment, the violation is affirmed. The Secretary has proposed a combined penalty of $1,000.00. For the reasons discussed under the preceding item, the proposed penalty is considered excessive. $700.00 will be assessed. _Citation 1, Item 6_ _Facts_ Approximately 2,000 feet inside the tunnel, Mr. Wild observed two open holes in a section of decking which supported a train switch, or siding (Tr. 383-384; Ex. K-16). The holes were between 8 and 24 inches deep and provided access under the decking so that employees could level it when required (Tr. 385, 517, 818). Mr. Stokes stated that 3/4 inch plywood covers were provided for covering the holes when they were not in use (Tr. 818). Mr. Wild stated that no employees were working in the holes when he noted them, but that the holes remained uncovered the following day and throughout the inspection (Tr. 385-386). The tunnel constituted the only way in and out, and Mr. Wild observed several employees walking directly alongside the holes (Tr. 385). Mr. Wild stated that an employee could step into one of the holes resulting in sprains or a possible broken leg (Tr. 386). _Discussion_ Section 1926.800(a)(2) requires that a "[s]afe means of access shall be provided and maintained to all working places." In its brief, respondent admits that citation 1, item 6 should be affirmed as a "Serious" violation of the cited standard, and contests only the $400.00 penalty proposed by the Secretary. Taking the relevant factors into account, the proposed penalty is considered appropriate and will be assessed. _Citation 1, Item 7a and 7b_ _Facts_ In the tunnel shaft, Mr. Wild observed a diesel pipeline running from the surface to the bottom, where it was used for filling respondent's diesel locomotives (Tr. 387). The pipe-line ran alongside the wooden stairway which descended into the shaft, about 5 feet from the shaft wall (Tr. 387-388). A hose with a dispensing nozzle was attached to the pipeline and draped across some other pipes (Tr. 388-389; Ex. C-K17, C-K19). A film of diesel fuel floated in a puddle of water at the bottom of the shaft (Tr. 398). The diesel pipeline was equipped with a timer and anti-syphon pump, which allowed only 50 to 60 gallons at a time to be pumped and prevented the fuel from passing through the line except when the pump was in operation (Tr. 395, 828; Ex. C-K18). An emergency shut-off was located at the tank and the top of the shaft (Tr. 828). Approximately 10 gallons of fuel might be present in the pipe in the shaft at any time. Mr. Stokes estimated that respondent used 200 to 300 gallons of fuel per day in the shaft (Tr. 829). Mr. Wild testified that equipment being lowered by crane into the shaft could strike the pipeline and cause it to rupture, leaking fuel (Tr. 396). Employees performing welding in the bottom of the shaft, as on the day of the inspection, could provide an ignition source (Tr. 392). Mr. Wild pointed out that should a fire occur in that location the staircase, the primary means of exit, could be destroyed (Tr. 393-394). Moreover, the ventilation system would draw smoke from a fire throughout the remainder of the tunnel (Tr. 392). Though the ventilation system was reversible, the fan controls were located at the top of the shaft and would take several minutes to reverse the system (Tr. 844-845). Mr. Wild stated that a fire in the shaft could result in asphyxiation, and probable death (Tr. 397). Mr. Frank Memmot, a Senior Safety Engineer and instructor on tunnel safety for OSHA (Tr. 215-229), testified that the pipeline presented a recognized hazard (Tr. 680). Mr. Memmot stated that diesel fuel is usually brought into shafts in drums or containers (Tr. 684). Mr. Wild felt the hazard could be abated by installing a cut off valve at the top of the shaft and draining the pipeline between uses (Tr. 396). The design of the pumping station was submitted to the City of Los Angeles Fire Department and was inspected and approved by them (Tr. 819-825; Ex. R-5) Mr. Stokes stated that the fuel line was protected by its location behind the stairway and the shaft supports and could not be struck by loads being hoisted (Tr. 830). _Discussion_ In her brief, the Secretary withdraws her contention that respondent's diesel pipeline constituted a violation of § 1926.800(e)(1)(iv), which provides that "[n]ot more than 1 day's supply of diesel fuel shall be stored underground." Based on the same facts, the Secretary alternatively alleges a violation of § 5(a)(1) of the Act. The Commission has held that: To prove that an employer violated section 5(a)(1), The Act's general duty clause, the Secretary must prove that the cited employer failed to free the workplace of a hazard that was recognized by the cited employer or its industry, that was causing or likely to cause death or serious physical harm, and that could have been materially reduced or eliminated by a feasible and useful means of abatement. _Pelron Corporation_, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986). This Judge finds that the Secretary failed to show that respondent's diesel line was a hazard recognized in the tunneling industry. The Secretary's sole evidence on this issue consisted of Mr. Memmot's unsupported statement that the diesel line was a recognized hazard. Though Mr. Memmot's teaching credentials are impressive, his actual contact with the mining industry is tenuous, consisting in recent years mainly of attendance at conferences and membership in professional associations (Tr. 217-218). His most recent experience is in maritime construction (Tr. 216, 223). It is this Judge's opinion that the use of a diesel line containing 10 gallons of fuel constitutes a lesser hazard than lowering into the shaft barrels of fuel which could themselves strike some obstacle and release their contents. Yet this alternative was recommended by Mr. Memmot and is apparently sanctioned by § 1926.800(e)(iv) which permits a one day's supply to be stored underground. The pipeline allows respondent to keep a much smaller amount of fuel in the shaft itself. The pipeline is largely protected by the structural members of the shaft itself and was, moreover, approved as installed by the Los Angeles Fire Department. The Secretary has failed to show a violation of § 5(a)(1) and citation 1, item 7a and 7b is dismissed. _Citation 1, Item 8_ _Facts_ Several cross-passages were being excavated to join the tunnel which was the subject of this inspection to a second tunnel running parallel and about 20 feet away (Tr. 400-401). Normally, the cross-passage is excavated a half at a time, top and then bottom (Tr. 402-403). As the passage is excavated, rock bolts, 4 foot bolts with a plate attached, are inserted to support the soil (Tr. 407, 410; Ex. C-K22). Once the excavation is completed, wire mesh is installed and "shotcrete" is pneumatically applied to the roof and walls. The shotcrete hardens and supports the tunnel (Tr. 408, 832; Ex. C-K20, C-K21). Mr. Wild observed employees excavating cross-passage No. 13. At that time they were working approximately 13 feet off the main tunnel 2,000 feet from the portal (Tr. 401- 402, 831). The cross-passage had neither rock bolts nor shotcrete for support (Tr. 408). The cross-tunnels were being excavated from a hard clay called "puente", a dense siltstone that was spaded out (Tr. 408, 411, 833-834). Mr. Stokes stated that although he had encountered loose ground in cross passage 15, 1500 feet away, none was noted in cross passage 13 (Tr. 836). Mr. Wild felt that the employees were exposed to a cave in hazard (Tr. 409). _Discussion_ Section 1926.800(h)(2)(ii) provides: Loose ground shall be taken down or supported. Ground conditions along haulage ways and travelways shall be examined periodically and scaled or supported as necessary. The evidence establishes that the soil in the cited cross-passage was a hard clay, or "puente." No soil samples were introduced and there was no other evidence that puente is a loose soil. The Compliance Officer did not testify that he saw any loose ground in the cross-passage or elsewhere. There being no evidence that the cited standard is applicable to cross-passage 13, citation 1, item 8 will be dismissed. _Willful Violations_ _Citation 2, Item 1a and 1b_ Respondent has stipulated that two circuit breakers within the tunnel were not of a type approved for Class 1, Division 2 location (Tr. 413-414; Ex. C-K23, C- K25). The hazards are the same as discussed for Citation 1, item 5, involving the identical standard. Respondent defends solely on the basis that the tunnel in which the cited equipment was located was not a Class 1, Division 2 location. Respondent also contests the "Willful" classification of this violation. _Discussion_ The text of the cited standard § 1926.407(b) is stated above. Based on the determination that respondent's tunnel was properly classified as a hazardous location requiring the use of electrical equipment approved for a Class 1, Division 2 environment, the placement of unapproved circuit breakers in the tunnel constituted a violation of that standard. The Commission has held that in order to establish that a violation was willful: . . . there must be evidence of such reckless disregard for employee safety or the requirements of the law generally that one can infer that if the employer had known of the standard or provision, the employer would not have cared that the conduct or conditions violated it. _Williams Enterprises, Inc_., 13 BNA OSHC 1249, 1256-57 (No. 85-355, 1987). _See also Brock v. Morello Brothers Construction_, _Inc._, 809 F.2d 161, 163-65 (1st Cir. 1987). A violation is not willful if the employer had a reasonable, good faith belief that the violative conditions conformed to the requirements of the Act. _Keco Industries Inc._, 13 BNA OSHC 1161, 1169 (No. 81-263, 1987); _RSR Corp_., 11 BNA OSHC 1163, 1172 (No. 79-3813, 1983) _aff'd_, 764 F.2d 355 [12 OSHC 1413] (5th Cir. 1984). As is evidenced by the testimony in this case, § 1926.449 is by no means a model of clarity. Federal enforcement of OSHA standards is new to California and the Secretary presented no evidence that its interpretation of the cited standard had been previously communicated to Shank-Ohbayashi. Cases involving § 1926.449's classification system are few, and as discussed above, they enumerate in a number of variables requiring the exercise of considerable judgment on the part of the employer. The geologic factors involved in this particular case are complex. Though erroneous, this Judge cannot say that respondent's interpretation of § 1926.449 was unreasonable under the circumstances. Citation 2, items 1a and 1b will be affirmed as "Serious" violations of the Act. The Secretary has proposed a penalty of $10,000.00. For the reasons set forth in the discussion pertaining to citation 1, items 4 and 5, the proposed penalty is found to be excessive. $700.00 will be assessed. _Citation 2, Items 2a, 2b and 2c_ _Facts_ At the time he arrived to conduct his inspection, Mr. Wild observed two diesel skid loaders working in the tunnel which had no approval plates from the Bureau of Mines, U.S. Department of the Interior (Tr. 417, 419; Ex. C-K26, C-K27). Mr. Shank stated that two types of Gehl loaders, Models 4615 and 3615 were selected by him to perform excavation work in the tunnel (Tr. 957; Ex. R-8). Mr. Shank stated that the loaders had been specifically determined to be in compliance with OSHA regulations and introduced a Diesel Equipment Listing for Diesel Engines Certified Under Part 32, 30 CFR in support. The listing indicated that the 4.108 Perkins diesel engine used in the 4615 Gehl was certified under that part (Tr. 959; Ex. R-9). The Isuzu 3KR1 engine used in the 3615 was not listed (Tr. 965). Mr. Shank stated that he had contacted the manufacturer, however, and determined that with the addition of "exhaust scrubbers", the ventilation requirements of the engine would be within the capabilities of the A171 tunnel's ventilation system before putting the loaders to work underground (Tr. 967-968). Mr. Shank stated that he was contacted by an RTD representative who pointed out that Shank's diesel permit from the State of California did not include the new equipment (Tr. 968-970). Mr. Shank notified Cal/OSHA of the new equipment's specifications in August 1988 (Ex. R-11). In September respondent received notification from R.W. Stranberg, Cal/OSHA Chief, that the said equipment was not acceptable for use in "gassy" tunnels because it was not permissible under parts 31 or 36 of 30 CFR. Mr. Stranberg stated that Federal OSHA had jurisdiction in this case, however, and would "have the decision regarding the use of this equipment" (Ex. R-12). _Discussion_ Section 1926.800(c)(2)(vii) states: Internal combustion engines other than mobil diesel shall not be used underground. Mobile diesel-powered equipment used underground shall be certified by the Bureau of Mines, U.S. Department of the Interior or according to the Bureau of Mines publication "Mechanical Equipment for Mines-tests for permissibility and suitability, Part 32, Mobile Diesel Power Equipment for Non-Coal Mines, Schedule 24" of March 23, 1965. The Code of Federal Regulations, Title 30, Chapter 1, Subchapter E, Part 32 sets forth the procedure for testing mobile diesel powered equipment for non-coal mines. Section 32.1 identifies the type of equipment which may be approved. . . . Equipment for use in coal mines, or other situations where flammable atmospheres may be encountered, will be considered permissible only when proved by test to offer adequate protection against all these hazards. (See Part 31, Procedure for testing Diesel Mine Locomotives for Permissibility and Recommendations on the Use of Diesel Locomotives Underground of this chapter) Equipment for use in non-coal mines in which the underground atmosphere contains less than 0.25 percent by volume of flammable gas will be granted approval when proved by test to offer adequate protection against the production of toxic or objectionable gases and when design and construction are such as to minimize the fire hazard presented by the engine fuel oil under normal operating conditions. * * * (a) _Approvals_ will be granted for complete Diesel powered equipment units only and not for engines and other individual parts used in the assembly of such units. (b) _Inspection and tests of subassemblies_ The engine and exhaust gas cooling system may be supplied as a subassembly to the manufacturer of the complete unit. Under such conditions this sub-assembly may be submitted for inspection and test either by the manufacturer. . . If the subassembly meets all requirements applicable to it, the Bureau will inform the manufacturer of the subassembly by letter that further test or inspection of the engine will not be required. . . The Secretary argues respondent's tunnel constituted a "situation where flammable atmospheres may be encountered" and that respondent was thereby directed to Part 31 and bound by its strictures. This Judge disagrees. A "flammable atmosphere" for purposes of Part 32 of Title 30 is not conterminous with a Class 1, Division 2 location as defined by § 1926.449. It is defined by the regulation itself as a tunneling operation containing less than 0.25% by volume of flammable gas. There has been no evidence from which this Judge could possibly compute the percentage by volume of gas which might be present in respondent's tunnel. It is concluded, therefore, that respondent's tunnel is a "non-coal" mine and that its equipment must comply only with the requirements of Part 32. Respondent argues that although his equipment was not "approved" as defined by Part 32, there is a difference between approval and certification, and that under the terms of § 1926. 800(c)(2)(vii) only the latter is required. In support, respondent points to a list for certified diesel engines put out by the U. S. Department of Labor, Mine Safety and Health Administration (Ex. R-9) and an information circular from the U. S. Department of the Interior, Bureau of Mines (Ex. R-10). In the latter document the author refers to the Bureau letter provided for subassemblies pursuant to 30 CFR 32.1(b) as a letter of certification. Respondent concludes that by its terms § 1926.800 (c)(2)(vii) requires only this certification of equipment subassemblies, not approval of the entire piece of equipment. Respondent's interpretation of § 1926.800(c)(2)(vii) is rejected. The drafters of the above cited standard direct the reader to 30 CFR 32, schedule 24 for requirements governing the certification of mobile diesel-powered equipment. Part 32 never uses the term "certification" but sets forth testing and approval procedures for such diesel-powered equipment. It is clear the drafters intended the employer to abide by those procedures for "approval", a term synonymous with "certification", of the entire piece of equipment. The section dealing with a Bureau letter clearly is for the benefit of manufacturers, so that subassemblies (engines and cooling, systems) need not be retested when included in a complete unit. This Judge finds it unreasonable to assume that the drafters intended reference to this section, thus allowing employers to use equipment containing any one certified system. Respondent's loaders were not approved in accordance with this section and therefore respondent was in violation of §1926.800(c)(2)(vii). Citation 2, items 2a, 2b, and 2c are classified as "Willful" violations of the act. As discussed above, a violation will not be found willful where the respondent follows a course of action in the reasonable, good faith belief that it is complying with regulations. In this case, however, respondent's lack of good faith is demonstrated by its failure to follow even its own interpretation of the regulations. Mr. Shank admitted that his research revealed that only one of the two types of loaders utilized by respondent had a certified engine. Nevertheless, the loader was put into use based on Shank's own calculations and his determination that the loader was acceptable. [[4]] Based on the evidence the violation was properly classified as "willful." The Secretary has proposed a penalty of $10,000.00. All respondent's employees were exposed to the possible production of toxic gases as well as to fire hazards presented by fuel oil and by combustible dust or gas which might come in contact with unapproved equipment. Taking all the relevant factors into consideration, however, it is determined that the proposed penalty is excessive. $7,000.00 will be assessed. _Citation 2, Item 3_ _Facts_ On two different occasions, Mr. Wild observed employees riding in and out of the tunnel on the flat top of a locomotive (Tr. 424). Mr. Wild stated that an employee could fall off and sustain injury or be run over. Mr. Wild estimated that the locomotive moved at about 10 miles per hour (Tr. 430). Mr. Wild discussed the violation with a supervisor following the first incident. The locomotive operator was contacted and it was agreed that in order to abate the hazard, employees should be transported in a mancar (a car with back-rests and seats) which was inside the shaft (Tr. 425-426). Three or four days later Mr. Wild observed and photographed the same condition (Tr. 427; Ex. C-K1). Mr. Robert S. Harris is a Safety Inspector on the Metro Rail Project for PDCD, the construction manager. (Tr. 639). In this capacity, Mr. Harris inspected the Shank-Ohbayashi project for compliance with Cal-OSHA safety orders (Tr. 647). During his inspections, Mr. Harris reported that respondent was using the locomotives and segment cars, rather than mancars to transport workers (Tr. 647- 648, 657; Ex. C-H, p.2, 17). Copies of his reports were furnished to Tom Grogan (Tr. 658). Mr. Stokes testified that respondent requested that a deck be built on top of the locomotive, consisting of 3" x 6" pieces of angle iron running around the top of the locomotive (Tr. 837-838). A pipe enclosing the deck at 24 inches was added after the inspection (Tr. 853). In its "Safe Work Practices Code" respondent allows employees to ride on top of the locomotive "if handrails are provided" (Ex. J-C, p. 8, § H(16)). _Discussion_ Section 1926.800(k)(6) states: No employee shall be permitted to ride a power-driven chain, belt, or bucket conveyor, unless the conveyor is specifically designed for the transportation of employees. It is clear that a 3" x 6" piece of angle iron is insufficient to assure the safety of employees being transported on top of a locomotive. The iron described by respondent cannot be used as a handhold or a restraint; it cannot even be seen on the photographs. This Judge finds it impossible to credit respondent's testimony that the iron was added specifically for the transport of personnel. Moreover, respondent was aware that its construction manager's safety personnel considered it hazardous for employees to ride atop of the locomotive. Respondent's supervisory personnel had been warned more than once to use a mancar. Yet there was no indication that respondent made any effort to enforce the mancar's use. Despite warning from the Compliance Officer and contrary to its own policy set forth in its safety booklet, that riding atop the locomotive is safe only when hand rails have been provided, none were installed until after respondent was cited by OSHA. The facts not only demonstrate that respondent violated §1926.800(k)(6) but evidence a general attitude of such indifference towards employee safety as to support a finding that the violation was "Willful." The Secretary has proposed a penalty of $10,000.00. Taking all the factors into consideration, the proposed penalty is deemed excessive. $4,000.00 will be assessed. _Other than serious citation 3, items 1 through 4_ In its brief respondent admits that the conditions cited as "Other than serious" in citation 3 constitute violations of the Act. No penalties were proposed. Those items will be affirmed without penalty. Docket No. 1711 Mr. Salvatore C. Jimenez, an OSHA Compliance Officer, conducted an inspection of respondent's A146 tunnel site at 520 South Hill Street (Tr. 569). _Citation 1, Item 1a, 1b and 1c_ _Facts_ During the course of the inspection, Mr. Jimenez noted an acetylene cylinder that did not have a cap designed to protect the bottle's valve from damage (Tr. 570). The acetylene bottle was located between two columns at the bottom of the north side of the shaft (Tr. 571). The cylinder was secured with a chain strung between the columns (Tr. 571). Mr. Jimenez felt that the single chain was insufficient to keep the bottle from falling sideways (Tr. 571). There was considerable traffic and material was being hauled in and out of the shaft. Some object could have fallen and bounced into the cylinder, knocking it over and/or damaging the valve (Tr. 572, 576). Mr. Jimenez testified that should the valve be damaged, flammable gas would be released. Employees welding in the area, as they were on the day of the inspection, could provide an ignition source, resulting in fire or explosion (Tr. 572-573). Mr. Jimenez stated that there would have been a flammable range around the cylinder despite the eventual dilution of the gas from the ventilation system (Tr. 573). Burns or shrapnel injuries could result (Tr. 575). Seven employees were observed working in the shaft and adjacent to it, the closest 10 to 15 feet away (Tr. 573-574). The alleged violation was in plain sight (Tr. 575). Mr. Jimenez testified that the violation was brought to the attention of the employee representative, who told him, "it shouldn't be like that" and replaced the valve cap (Tr. 574). Approximately four feet from the acetylene cylinder, Mr. Jimenez observed an oxygen cylinder, also against the wall between the two columns and secured by the single chain (Tr. 575). Mr. Jimenez felt that the chain should have been passed completely around the tanks to secure them (Tr. 576). In addition, there was no fire barrier between the two cylinders (Tr. 578). Oxygen is an oxidizer; added to a fuel such as acetylene it would cause the acetylene to burn hotter and faster (Tr. 578). Mr. Clifton Sammons, a Safety Engineer with respondent, testified that the normal procedure for storing oxygen and acetylene cylinders at the job site is to place them in a metal rack on the surface, divided by a steel plate that serves as a fire wall between oxygen and acetylene bottles. Full bottles are removed from the rack when needed for use, empty ones are recapped and returned to the rack (Tr. 727). _Discussion_ Section 1926.350(a), cited in item 1a, requires that when "transporting, moving, and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secured." The text of § 1926.350(a)(9), cited in item 1b, requires that gas cylinders be secured at all times and is quoted above in the discussion of Docket No. 88-2674, citation 1, item 3. Section 1926.350(j), cited in item 1c, states that" For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1-1967, Safety in Welding and Cutting shall apply. The ANSI standard requires oxygen cylinders in storage be separated by a minimum of 20 feet or by a fire wall. Respondent does not dispute the presence of uncapped, unsecured oxygen and acetylene cylinders four feet apart in the tunnel shaft, but defends on the ground that the standard is inapplicable because the cited cylinders were not "in storage," but were available for use. There is no evidence contradicting respondent's testimony that it stores its cylinders on the surface, only bringing them into the tunnel when necessary for use. Section 1926.350(a), referring to cylinders in storage or transport and § 1926.350(j), governing cylinders in storage are, therefore, inapplicable here. _Sterns-Roger Incorporated_, _supra_. Items 1a and 1c are dismissed. As is discussed above under citation 1, item 3, however, the Commission distinguishes § 1926.350(a)(9), which applies by its terms to cylinders "at all times." Respondent is shown to have been in violation of § 1926.350(a)(9) and item 1b is affirmed as a "Serious" violation. The Secretary has proposed a combined penalty of $300.00. Taking the relevant factors into consideration, the penalty is deemed appropriate and will be assessed. _Citation 1, 3b_ _Facts_ At the time of the inspection, Mr. Jimenez approached an employee he observed welding on the south side of the bottom of the shaft (Tr. 579). The employee indicated to Mr. Jimenez that he had not obtained a gas free certificate, nor ascertained whether gas testing had been done in the area. He told Mr. Jimenez he had never been instructed not to begin any welding or burning in the tunnel until he had determined the atmosphere was gas free (Tr. 580). Mr. Jimenez determined that there was a policy on site not to allow welding or cutting until it was determined that the atmosphere was gas free (Tr. 581). New employees at Shank-Ohbayashi receive a copy of Safe Work Practices Code for Los Angeles Rapid Transit Tunnels (Tr. 732, Ex. J-C). The code states, "[b]efore lighting cutting torches or starting to weld, be sure than (sic) the area is well ventilated and that the air has been tested by the gas technician" (Ex. J- C, p. 6). Mr. Sammons, the gas tested, had tested the area in question though he had not issued a certificate (Tr. 580, 730). Mr. Jimenez believed the pre-testing policy was being enforced except in this instance (Tr. 582). Respondent introduced the signed statement of the employee involved stating that he had read through the code and completed an 8 hour tunnel safety course on August 20 and September 19, 1987 respectively (Ex. R-7). _Discussion_ Section 1926.21(b)(2) provides that: 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. Section 1926.21(b)(2) requires only that the employer instruct its employees in safety hazards and regulations intended to eliminate such hazards. Compliance with the standard does not include the additional duty of enforcing such regulations. _Dravo Engineers_ _and Constructors_, 11 BNA OSHC 2010 (No. 81-748, 1984). The evidence clearly establishes that respondent has a safety rule prohibiting cutting and welding in the tunnel before gas testing is completed and that rule was communicated to the employee involved. Citation 1, Item 3 is dismissed. _Citation 1, Item 4_ Mr. Jimenez found two bolts missing from the "rotary limit switch" of a Mitsubishi boring machine which was classified for Class 1, Division 2 locations (Tr. 583). The condition was in plain view (Tr. 584). The hazard associated with arcing or sparking elements in gaseous locations has been adequately described above. The text of § 1926.431, requiring wiring components in hazardous locations be maintained in dust tight condition, is quoted above under the discussion of Docket No. 88-2674, citation 1, item 5. Respondent does not dispute that bolts were missing from the boring machine switch. It has been established that respondent's tunnels were hazardous Class 1, Division 2 locations. The Secretary has established that respondent violated § 1926.431. A penalty in the amount of $300.00 has been proposed. The same factors are relevant here as were discussed under Citation 1, Items 4 and 5, Docket No. 88-2674. Here only one switch was involved. Taking all the factors into account the penalty is considered appropriate and will be assessed. _Citation 2, Item 1_ During the course of his inspection, Mr. Jimenez observed an employee picking up a water barrel and drinking from the spigot (Tr. 584). Mr. Jimenez stated that drinking from the spigot could lead to the transmission of communicable diseases and that the hazard could be eliminated by the provision of drinking cups (Tr. 585). Mr. Sammons testified that the workers hold the spigot over their mouths to drink and do not actually come in contact with the spigot. Drinking cups are occasionally provided (Tr. 734). Upon communication of the hazard to the employee representative, cups were provided within the hour (Tr. 585). _Discussion_ Section 1926. 51(a)(4) provides "[t]he common drinking cup is prohibited." The Secretary failed to prove that drinking from a spigot results in the same hazards as a common cup and citation 2, item 1 will be dismissed. _Citation 2, Item 3_ _Facts_ Mr. Jimenez observed an employee adjusting the laser on the Mitsubishi boring machine. The employee said he had been operating the machine for 13 years, but could not provide an operator's certificate or proof of qualification (Tr. 586). Mr. Jimenez stated that lasers are potentially hazardous (Tr. 586). Mr. Sammons stated that the employee involved was not operating the machine, but merely adjusting the survey instrument to which the laser was attached. He admitted the only operation the laser required was to adjust the pedestal, a directional device, to get the proper line and grade (Tr. 735-739) _Discussion_ Section 1926.54 (b) requires that "[p]roof of qualification of the laser equipment operator shall be available and in possession of the operator at all times." This Judge finds that for purposes of the standard, adjustment of the laser's directional equipment equals "operation" of the laser. The employee adjusting the survey instrument was operating the machine and should have carried proof of qualification. Citation 2, Item 3 is, therefore, affirmed as an Other than serious violation without penalty. _Citation 2, Item 4_ _Facts_ When Mr. Jimenez arrived on the site, he observed a 10 liter plastic container on the entrance platform of the office trailer (Tr. 587). The plastic can did not have a pressure release or flash arrester. Mr. Jimenez felt that the plastic could also leak, presenting a fire hazard (Tr. 587). When Mr. Jimenez exited the trailer 45 minutes later, the gas container was still there (Tr. 588). Mr. Sammons testified that a rental agency, from which respondent had rented equipment requiring gasoline, had left the plastic container in front of the office door. Mr. Sammons removed the container as soon as he learned of it (Tr. 735). _Discussion_ Section 1926.152(a)(1) states: Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon . . . For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids. The evidence establishes that the plastic container of gas was placed outside respondent's trailer by a rental agency. The container remained there for only 45 minutes while the Compliance Officer was inside. There was no testimony that during that time anyone went by or in or out of the trailer. The Secretary has not shown that the employer knew, or with the exercise of reasonable diligence, could have known of the hazardous condition. _Dun Par Engineered Form Co_., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). Citation 2, item 4 is, therefore, dismissed. _Citation 2, Item 5_ _Facts_ As excavation proceeded in respondent's tunnel, muck cars were pulled out of the tunnel by a "tuggerrope", a wire rope attached to a winch. After they were emptied, the cars were gravity fed back down to the face of the tunnel (Tr. 588-589). The tracks ran 60 or 70 feet to the face at an angle of approximately 5 to 7 (Tr. 589). Mr. Jimenez testified that in the case of operator error or a break in the tuggerline, the muck cars could come loose and crash into the back of the boring machine (Tr. 590). Employees working on the top of the boring machine could be jarred and fall to the tunnel floor (Tr. 590-591). Rail stops at the end of the line would prevent such an occurrence (Tr. 589). _Discussion_ Section 1926.800(k) (14) states that "[w]here necessary, bumper blocks, or the equivalent, shall be provided at all track dead ends." The Secretary has established the need for providing a backup method of stopping muck cars at the tunnel heading. The tuggerline, being the element subject to failure, is not the equivalent of bumper blocks. Citation 2, item 5 is affirmed without penalty. _Findings of Fact and Conclusions of Law_ All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above. _See_ Rule 52(a) of the Federal Rules of Civil Procedure. Proposed Findings of Fact or Conclusions of Law that are inconsistent with this decision are denied. _Order_ _Docket No. 88-2674_ 1. Serious citation 1, items 1a and 1b alleging violation of § 1926.300(b)(2) are DISMISSED. 2. Serious citation 1, item 2 alleging violation of § 1926.302(b)(1) is AFFIRMED and a penalty of $300.00 is ASSESSED. 3. Serious citation 1, item 3 alleging violation of § 1926.350(a)(9) is AFFIRMED and a penalty of $400.00 is ASSESSED. 4. Serious citation 1, items 4a and 4b alleging violation of § 1926.407(b) are AFFIRMED and a penalty of $700.00 is ASSESSED. 5. Serious citation 1, items 5a through 5e alleging violation of § 1926.431 are AFFIRMED and a penalty of $700.00 is ASSESSED. 6. Serious citation 1, item 6 alleging violation of § 1926.800(a)(2) is AFFIRMED and a penalty of $400.00 is ASSESSED. 7. Serious citation 1, items 7a and 7b alleging violation of § 1926.800(e)(1)(iv) and § 5(a)(1) are DISMISSED. 8. Serious citation 1, item 8 alleging violation of § 1926.800(h)(2)(ii) is DISMISSED. 9. Willful citation 2, items 1a and 1b alleging violation of § 1926.407(b) are AFFIRMED as "serious" violations and a penalty of $700.00 is ASSESSED. 10. Willful citation 2, item 2 alleging violation of § 1926.800(c)(2)(vii) is AFFIRMED and a penalty of $7,000.00 is ASSESSED. 11. Willful citation 2, item 3 alleging violation of § 1926.800(k)(6) is AFFIRMED and a penalty of $4,000.00 is ASSESSED. 12. Other than serious citation 3, items 1 through 4 are AFFIRMED without penalty. _Docket No 88-1711_ 13. Serious citation 1, item la and 1c alleging violation of § 1926.350(a)(1) and (j) are DISMISSED. 14. Serious citation 1, item 1b alleging violation of § 1926.350(a)(9) is AFFIRMED and a penalty of $300.00 is ASSESSED. 15. Serious citation 1, item 3b alleging violation of § 1926.21(b)(2) is DISMISSED. 16. Serious citation 1, item 4 alleging violation of § 1926.431 is AFFIRMED and a penalty of $300.00 is ASSESSED. 17. Other than serious citation 2, item 1 alleging violation of § 1926.51(a)(4) is DISMISSED. 18. Other than serious citation 2, item 3 alleging violation of § 1926.54(b) is AFFIRMED without penalty. 19. Other than serious citation 2, item 4 alleging violation of § 1926.152(a)(1) is DISMISSED. 20. Other than serious citation 2, item 5 alleging violation of § 1926.800(k)(14) is AFFIRMED without penalty. Benjamin R. Loye Judge, OSHRC Dated: October 18, 1989 SECRETARY OF LABOR, Complainant, v. SHANK-OHBAYASHI, INC., Respondent. OSHRC Docket No. 88-2674 _ORDER_ This matter is before the Commission on a Direction for Review entered by former Chairman Linda L. Arey on November 21, 1989. The parties have now filled an Amended Stipulation and Settlement Agreement. Having reviewed the record, and based upon, the representatives appearing in the Amended Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Amended Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure. final order of the Commission in this case. See 29 U.S.C. §§ 659(c), 660(a) and (b). Edwin G. Foulke, Jr. Chairman Velma Montoya Commissioner Donald G. Wiseman Commissioner Dated: October 23, 1990 ELIZABETH DOLE, SECRETARY OF LABOR Complainant, v. SHANK-OHBAYASHI Respondent. NOTICE OF CORRECTION TO STIPULATION AND SETTLEMENT AGREEMENT 1. The parties in the above-captioned case entered into a Stipulation and Settlement Agreement which was signed by Respondent on August 28, 1990 and then signed by the Secretary on September 4, 1990. The original and four copies of the document was mailed to the Occupational Safety and Health Review Commission. 2. Paragraph 10 of the Stipulation and Settlement Agreement reads as follows: 10. This Stipulation and Settlement Agreement does not affect the judge's disposition of the following citation items: Citation 1, Items 1(a) and 1(b); Citation 1, Items 4(a) and 4(b); Citation 1, Items 5(a) through 5(e), Citation 1, Item 6; Citation 2, Items 2(a) and 2(b); Citation 3, Items 1 through 4. 3. The next to the last sentence in Paragraph 10 should have read, and is hereby corrected to read: Citation 2, Items 1(a) and 1(b). 4. Respondent has been notified of this correction and consents thereto. ANTONY F. GIL Attorney for the Secretary of Labor ------------------------------------------------------------------------ ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. SHANK-OHBAYASHI Respondent. OSHRC Docket No. 88-2674 _*Stipulation and Settlement Agreement*_ In full settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, Shank-Ohbayashi, that: 1. This case is before the Commission upon respondent's contest of Citation 2, Item 2(a), 2(b) and 2(c) which alleged willful violations of 29 CFR 1926.800(c)(2)(vii) along with a proposed penalty of $10,000, and Citation 2, Item 3 which alleged a willful violation of 29 CFR 1926.800(k)(6) along with a proposed penalty of $10,000. The citations were affirmed by the Commission's administrative law judge, and a penalty of $7,000 was assessed for the violation of 1926.800(c)(2)(vii) and $4,000 for the violation of 29 CFR 1926.800(k)(6). (Decision and Order, September 27, 1989.) Respondent was also cited in pertinent part, for violations of 29 U.S.C. 654(a)(1) (Citation 1, Item 7(a) and 29 CFR 1926.800(h)(2)(ii) (Citation 1, Item 8). These citations items were vacated by the administrative law judge. (Decision and Order, September 27, 1989.) 2. The Secretary hereby amends the citation to characterize the violations of 29 CFR 1926.800(c)(2)(vii) and 29 CFR 1926.800(k)(6) as violations of Section 17 of the Occupational Safety and Health Act, 29 U.S.C. §666. 3. The Secretary hereby amends the proposed penalty to a combined total of $4,400 for items 2 and 3 of Citation No. 2. 4. Respondent hereby withdraws its notice of contest to Citation 2, Items 2(a), 2(b), and 2(c) and to Citation 2, Item 3, and to the notification of proposed penalty as amended above in paragraph 3. 5. The Secretary hereby amends the proposed penalty in Citation 1, Item 7(a) for violation of the general duty clause, 29 U.S.C. §654(a)(1) to $100. 6. Respondent hereby withdraws its notice of contest to Citation 1, Item 7(a) and to the notification of proposed penalty as amended in paragraph 5. 7. The Secretary hereby amends the proposed penalty in Citation 1, Item 8 for violation of 29 CFR 1926.800(h)(2)(ii) to $100. 8. Respondent hereby withdraws its notice of contest to Citation 1, Item 8 and to the notification of proposed penalty as amended in paragraph 7. 9. Respondent agrees that the above-mentioned violations have been abated. 10. This Stipulation and Settlement Agreement does not affect the judge's disposition of the following citation items: Citation 1, Items 1(a) and 1(b); Citation 1, Item 2; Citation 1, Item 3; Citation 1, Items 4(a) and 4(b); Citation 1, Items 5(a) through 5(e); Citation 1, Item 6; Citation 2, Items 2(a) and 2(b); Citation 3, Items 1 through 4. Nothing set forth in this Stipulation and Settlement Agreement can be construed as an admission of willful conduct on the part of respondent for any violation for which a notice of contest has been withdrawn. 11. Respondent agrees to submit to the OSHA Area Office $4,600 in full and complete payment of the penalty within 30 days of this Agreement. 12. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 29th day of August 1990, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. There are no authorized representatives of affected employees. 13. Complainant and respondent will bear their own litigation costs and expenses. Antony F. Gil Counsel for the Secretary of Labor Kate Raabe Attorney for Respondent (Shank-Ohbayashi) FOOTNOTES: [[1]] Respondent considered hydrogen sulfide to be a toxic gas rather than an explosive gas since the lower explosive limit of H2S, 43,000 parts per million, would not be reached until concentrations of the gas far exceeded the fatal toxic limit of 1,000 parts per million (Tr. 706). [[2]] Mr. Paul Taylor, an Electrical Engineer with Shank-Ohbayashi, testified that the contract allowed the RTD and their construction manager, PDCD to approve non-certified equipment where a certified version was not commercially available. There was no evidence that the equipment named here had been so approved. [[3]] Subsection (b) is followed by an explanatory note: NOTE: This classification usually includes locations where volatile flammable liquids or flammable gases or vapors are used, but which would become hazardous only in case of an accident or of some unusual operating condition. The quantity of flammable material that might escape in case of accident, the adequacy of ventilating equipment, the total area involved, and the record of the industry or business with respect to explosions or fires are all factors that merit consideration in determining the classification and extent of each location. [[4]] Respondent's argument that it felt it was authorized to make its own safety determination, based on footnotes in the Department of Labor publication (Ex. R-9) directing the reader to the manufacturer for "per cylinder" information, is patently unbelievable.