“SECRETARY OF LABOR.Complainant.v.ALL PHASE ELECTRIC & MAINTENANCE, INC.Respondent.Docket No. 89-3268*ORDER*This matter is before The Commission on a Direction for Review enteredby Commissioner Edwin G. Foulke, Jr. on June 17, 1991. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission.The termsof the Stipulation and Settlement Agreement do not appear to he contraryto the Occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. See 29 U.S.C. ?? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated January 17, 1992————————————————————————LYNN MARTIN, SECRETARY OF LABOR,Complainant,v.ALL PHASE ELECTRIC & MAINTENANCE INC.Respondent.OSHRC Docket No. 89-3268*STIPULATION AND SETTLEMENT AGREEMENT*IThe parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which are currently pendingbefore the Commission.IIIt is hereby stipulated and agreed by between the Complainant, Secretaryof Labor, and the Respondent, All Phase Electric & Maintenance Inc., that:1. Respondent represents that all of the alleged violations for which itwas cited have been abated.2. Complainant hereby amends Citation 1, items 1, 2, and 3 tocharacterize the alleged violations of 29 C.F.R. ?? 1926.59(e)(1),1926.59(g)(8) and 1926.59(h) as other than serious violations. The totalproposed penalty for Citation 1, items 1, 2, and 3 is hereby amended to$315.3. Respondent hereby agrees to withdraw its notice of contest to items1, 2, and 3 of citation 1 as amended above, to the amended penalties forItems 1, 2 and 3, and to items 4, 5, and 6 of Citation 1, allegingviolations of 29 C.F.R. ??1926.152(a)(1), 1926.403(i)(2)(i), and1926.600 (e)(1)(iii), respectively, which were affirmed by the judgebelow and became a final order of the Commission on June 17, 1991.Respondent hereby agrees to pay a penalty of $550 for Citation 1, items4, 5, and 6.4. Respondent agree to pay a penalty in the total amount of $865 bysubmitting its check, made payable to \”U.S. Department of Labor – OSHA\”to the OSHA Area Office within 30 days from the date of this agreement.5. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding.6. Respondent states that there are authorized representatives ofaffected employees.7. The parties agree that this Stipulation and Settlement Agreement iseffective upon execution.8. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at its main office on the _26th_ day of December,1991, in accordance with Commission Rules 7 and 100, and will remainposted for a minimum period of ten days.Respectfully submitted,MARSHALL J. BREGERSolicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDONALD G. SHALHOUBDeputy Associate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for Regional Trial LitigationPAUL PULEOPresidentAll Phase Electric & Maintenance Inc.ORLANDO ANNOCCHIAAttorney for theSecretary of Labor————————————————————————SECRETARY OF LABOR,Complainant,v.ALL PHASE ELECTRIC & MAINTENANCE, INC.,Respondent.OSHRC Docket No. 89-3268APPEARANCES: Leslie John Rodriguez, Esquire, Office of the Solicitor, U.S. Department of Labor, AtIanta, Georgia, on behalf of complainant.Paul Puleo, President, All Phase Electric & Maintenance, Inc., Tampa,Florida, on behalf of respondent._*DECISION AND ORDER*_BRADY, Judge: This proceeding is brought pursuant to section 10 ofthe Occupational Safety and Health Act of 1970 (Act) to Contest twocitations issued by the Secretary of Labor (Secretary) pursuant tosection 9(a) of the Act.Prior to commencement of the hearing in this cause, the Secretary’smotion to amend Item 6 of the citation to allege violation of 1926.500(e)(1)(iv), instead of 500(e)(1)(iii), was granted. Respondent, AllPhase Electric & Maintenance, Inc., (All Phase) basically contends itwas without knowledge of any violative conditions, any such violationswere not serious, and the proposed penalties are not reasonable._ALLEGED VIOLATIONS OF 29 C.F.R. ? 59 (e)(1), (g)(8), AND 59 (h)_The standards which pertain to hazard communication require in pertinentpart as follows:(e) Written hazard communication program(1) Employees shall develop, implement and maintain it the workplace awritten hazard communication program for their workplaces.(g) Material safety data sheets(8) The employer shall copies of the required material safety datasheets for each hazardous chemical in the workplace, and shall ensurethat they are readily accessible during each work shift to employeeswhen they are in their work area(s).(h) Employee information and trainingEmployers shall provide employees with information and training onhazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard is introduced into their work area.The violations are alleged in the citation as follows:29 CFR 1926.59(e)(1): Employer had not developed or implemented awritten hazard communication program which describes how the criteria in29 CFR 1926.59(f), (g) and (h) will be met:(a) For employees using or potentially exposed to hazardous chemicalssuch as, but not limited to, gasoline and PVC cement, on or about July10, 1989 10, 1989.29 CFR 1926-59(g)(8): Employer did not maintain copies of the materialsafety data sheets for each hazardous chemical in the workplace andensure that they are readily accessible to the employees in their workarea during each work shift:(a) For employee using or potentially exposed to hazardous chemicalssuch as,but not limited to, gasoline and PVC cement, on or about, July10, 1989.29 CFR 1926.59(h): Employees were not provided information and trainingas specified in 29 CFR 1926.59(h)(l) and (2) on hazardous chemicals intheir work area at the time of their initial assignment and whenever anew hazard was introduced into their work area:(a) For employees using or potentially exposed to hazardous chemicalssuch as, but not limited to, gasoline and PVC cement, on or about July10, 1989.Ms. Nancy Hodenius, a compliance officer, testified that she conductedan inspection of respondent’s work site at the construction of aone-story building. In the course of performing electrical work, shenoted employees were using PVC cement and gasoline, which are hazardouschemicals (Tr. 14, 16). Ms. Hodenius stated that All Phase did maintaina material safety data sheet for the PVC cement. She indicated, however,that the employees were not aware of the hazards associated with use ofthe chemicals involved. Her investigation revealed that no writtenhazard communication program had been developed or implemented and theemployees were not provided and training on hazardous chemicals at thework site (Tr. 16-17).Mr. Paul Puleo, Owner and President of All Phase, admitted the allegedviolations, indicating he was unaware of the hazard communication,requirements (Tr. 61, 83).The violations occurred as alleged._ALLEGED VIOLATION OF 29 C.F.R. ? 1926.152 (a) (1)_The standard, which pertains to flammable and combustible liquids,requires in part as follows:Only approved containers and portable tanks shall be used for storageand handling of flammable and combustible liquids. Approved metal safetycans shall be used for the handling and use of flammable liquids inquantities greater than one gallon…The citation alleges that a five gallon metal container used for storageand handling gasoline was not a safety can.Ms. Hodenius testified that gasoline was stored in a container that wasnot a safety can. The container did not have a self-closing spout whichcould result in easy spilling (Tr. 21-22). Mr. Puleo did not refute theinspecting officer’s testimony, but indicated he was not aware of thesafety requirements (Tr. 64).The standard was violated as alleged._ALLEGED VIOLATION OF 29 C.F.R. ? 1926.403 (i) (2) (i)_The standard pertains to guarding of live electrical parts and requiresin part as follows:… live parts of electric equipment operating at 50 volts or more shallbe guarded against accidental contact by cabinets or other forms ofenclosures …The citation alleges that a circuit breaker panel did not have propercover over the live parts. Ms. Hodenius testified that she observed theviolative condition as shown in exhibit C-3 (Tr. 24).Mr. Puleo pointed out that a temporary cardboard cover was used forprotection, but agreed a proper cover should have been in place (Tr. 92).The live parts were not guarded against accidental as required._ALLEGED VIOLATION OF 29 C.F.R. ? 500(e)(1)(iv)_This standard applies to stairway railings and states:(iv) On stairways more than 44 inches wide but less than 88 inches wide,one handrail on each enclosed side and one stair railing on each open side.The citation alleges stairs to the job trailer did not have railings.Ms. Hodenius testified that the stairs, with six risers, did not haverailings on the open sides (Exh. C-4).No evidence was offered by All Phase to refute the alleged violation._NATURE OF THE VIOLATIONS_Since the violations have been established, it must now be determinedwhether they are of a serious nature as alleged. For a violation to bedetermined serious under section 17(k) of the Act, there must besubstantial probability that death or serious physical harm could resulttherefrom.Although All Phase seriously questions the nature of the violations inthis case, the evidence of the hazards involved clearly establish theyare serious within the context of the Act. The evidence shows thatviolation of the hazard communication standards could result indizziness to employees and possible falls into machinery. It also showsthat PVC cement could be absorbed through employees’ skin and affecttheir internal organs (Tr. 18-19).Ms. Hodenius explained that without a self-closing spout, gasoline couldspill, resulting in fire. During refueling, a spill onto hot equipmentcould cause fire and serious burns to employees (Tr. 22). She alsopointed out that the cardboard over the live electrical parts couldeasily be displaced, allowing employees to contact the parts by falls orwhile flipping the breakers. Serious electrical burns could result (Tr.26). Ms. Hodenius noted that employees going in or out of the trailercould easily slip and fall, causing possible fractures (Tr. 28).Although All Phase argues that accidents are not probable under theconditions described by the inspector the Secretary is not required toprove that an accident is probable. It is sufficient if an accident ispossible and its probable result would be serious injury or death._Brown & Root, Inc., Power Plant Division_, 80 OSAHRC 17\/B8, 8 BNA OSHC1055, 1980 CCH OSHD ? 24,275 (No. 76-3942, 1980); _Niagara Mohawk PowerCorp.,_ 79 OSAHRC 36\/A2, 7 BNA OSHC 1447, 1979 CCH OSHD ? 23,670 (No.76-2414, 1979); _Kent Nowlin Construction Co.,_ 81 OSAHRC 44\/A2, 8 BNAOSHC 1286, 1980 CCH OSHD ? 24,459 (Nos. 76-191 and 76-192, 1980).Respondent also raises the question of knowledge in this case. It istrue that the Secretary must prove that an employer knew or, with theexercise of reasonable diligence, should have known the existence of theviolation. Such knowledge is directed to the physical conditions whichconstitution violation _Southwestern Acoustics & Specialty, Inc., _77OSAHRC 141\/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ? 21,382 (No. 12174,1977). Clearly under the circumstances presented All Phase knew or withreasonable diligence could have known of the violative conditions. Inthis regard, the Commission has held that an employer has an obligationto inspect the work area, to anticipate hazards to which employees maybe exposed, and to take measures to prevent their occurrence._Swidzinski Co.,_ 81 OSAHRC 4\/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ?25,1219 (No. 76-4627, 1981); _Automatic Sprinkler Corp. of America,_ 80OSAHRC 47 E4, 8 BNA OSHC 1385, 1980 CCH OSHD ? 24,495 (No. 76-5089, 1980)._FINDINGS OF FACT_All findings of fact relevant and necessary to a determination of thecontested issues in this case have been found specially and appear inthe above decision._CONCLUSIONS OF LAW_1. All Phase Electric & Maintenance, Inc., at all times pertinenthereto, was an employer engaged in a business affecting commerce withinthe meaning of section 3(5) of the Occupational Safety and Health Act of1970, and the Commission has jurisdiction of parties and subject matterherein pursuant to section 10(c) the Act.2. Respondent is, and at all times pertinent hereto, required to complywith the safety and health regulations promulgated by the Secretarypursuant to section 6(a)Act.3. Respondent was violation of 29 C.F.R. ? 1926.59(e)(1), 59(g)(8) and59(h); 152(a)(1); 403(i)(2)(i); and 500(e)(iv) as alleged._*ORDER*_Upon the basis of the foregoing findings of fact, conclusions of law,and the entire record, it is ORDERED:Citation No. 1 is hereby affirmed and a penalty in the amount of$1,810.00 is hereby assessed.PAUL L. BradyJudgeDate: May 9, 1991”