“Docket No. 89-3268 SECRETARY OF LABOR.Complainant. v.ALL PHASE ELECTRIC & MAINTENANCE, INC. Respondent.Docket No. 89-3268ORDERThis matter is before The Commission on a Direction for Reviewentered by Commissioner Edwin G. Foulke, Jr. on June 17, 1991. The parties have now fileda Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representationsappearing in the Stipulation and Settlement Agreement, we conclude that this case raisesno matters warranting further review by the Commission.The terms of the Stipulation andSettlement Agreement do not appear to he contrary to the Occupational Safety and HealthAct and are in compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation andSettlement Agreement into this order. This is the final order of the Commission in thiscase. See 29 U.S.C. ?? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated January 17, 1992LYNN MARTIN, SECRETARY OF LABOR,Complainant,v.ALL PHASE ELECTRIC & MAINTENANCE INC.Respondent.OSHRC Docket No. 89-3268STIPULATION AND SETTLEMENT AGREEMENT IThe parties have reached agreement on a full and completesettlement and disposition of the issues in this proceeding which are currently pendingbefore the Commission.IIIt is hereby stipulated and agreed by between the Complainant,Secretary of Labor, and the Respondent, All Phase Electric & Maintenance Inc., that:1. Respondent represents that all of the alleged violations forwhich it was 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) and1926.59(h) as other than serious violations. The total proposed penalty for Citation 1,items 1, 2, and 3 is hereby amended to $315.3. Respondent hereby agrees to withdraw its notice of contestto items 1, 2, and 3 of citation 1 as amended above, to the amended penalties for Items 1,2 and 3, and to items 4, 5, and 6 of Citation 1, alleging violations of 29 C.F.R.??1926.152(a)(1), 1926.403(i)(2)(i), and 1926.600 (e)(1)(iii), respectively, which wereaffirmed by the judge below and became a final order of the Commission on June 17, 1991.Respondent hereby agrees to pay a penalty of $550 for Citation 1, items 4, 5, and 6.4. Respondent agree to pay a penalty in the total amount of$865 by submitting 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 expensesincurred by such party in connection with any stage of this proceeding.6. Respondent states that there are authorized representativesof affected employees.7. The parties agree that this Stipulation and SettlementAgreement is effective upon execution.8. Respondent certifies that a copy of this Stipulation andSettlement Agreement was posted at its main office on the 26th day of December,1991, in accordance with Commission Rules 7 and 100, and will remain posted for a minimumperiod of ten days.Respectfully submitted,MARSHALL J. BREGER Solicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor for Occupational Safety and HealthDONALD G. SHALHOUBDeputy Associate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for Regional Trial LitigationPAUL PULEOPresident All Phase Electric & Maintenance Inc.ORLANDO ANNOCCHIA Attorney for theSecretary of LaborSECRETARY OF LABOR, Complainant,v.ALL PHASE ELECTRIC & MAINTENANCE, INC.,Respondent.OSHRC Docket No. 89-3268APPEARANCES: Leslie John Rodriguez, Esquire, Office of theSolicitor, 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 ORDERBRADY, Judge:\u00a0\u00a0\u00a0\u00a0 This proceeding isbrought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) toContest two citations issued by the Secretary of Labor (Secretary) pursuant to section9(a) of the Act.Prior to commencement of the hearing in this cause, theSecretary’s motion 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, All Phase Electric &Maintenance, Inc., (All Phase) basically contends it was without knowledge of anyviolative conditions, any such violations were not serious, and the proposed penalties arenot reasonable.ALLEGED VIOLATIONS OF 29 C.F.R. ? 59 (e)(1), (g)(8), AND 59(h)The standards which pertain to hazard communication require inpertinent part as follows:(e) Written hazard communication program(1) Employees shall develop, implement and maintain it theworkplace a written hazard communication program for their workplaces.(g) Material safety data sheets(8) The employer shall copies of the required material safetydata sheets for each hazardous chemical in the workplace, and shall ensure that they arereadily accessible during each work shift to employees when they are in their workarea(s).(h) Employee information and trainingEmployers shall provide employees with information and trainingon hazardous chemicals in their work area at the time of their initial assignment, andwhenever 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 implementeda written hazard communication program which describes how the criteria in 29 CFR1926.59(f), (g) and (h) will be met:(a) For employees using or potentially exposed to hazardouschemicals such as, but not limited to, gasoline and PVC cement, on or about July 10, 198910, 1989.29 CFR 1926-59(g)(8): Employer did not maintain copies of thematerial safety data sheets for each hazardous chemical in the workplace and ensure thatthey are readily accessible to the employees in their work area during each work shift:(a) For employee using or potentially exposed to hazardouschemicals such as,but not limited to, gasoline and PVC cement, on or about, July 10, 1989.29 CFR 1926.59(h):\u00a0 Employees were not providedinformation and training as specified in 29 CFR 1926.59(h)(l) and (2) on hazardouschemicals in their work area at the time of their initial assignment and whenever a newhazard was introduced into their work area:(a) For employees using or potentially exposed to hazardouschemicals such as, but not limited to, gasoline and PVC cement, on or about July 10, 1989.Ms. Nancy Hodenius, a compliance officer, testified that sheconducted an inspection of respondent’s work site at the construction of a one-storybuilding. In the course of performing electrical work, she noted employees were using PVCcement and gasoline, which are hazardous chemicals (Tr. 14, 16). Ms. Hodenius stated thatAll Phase did maintain a material safety data sheet for the PVC cement. She indicated,however, that the employees were not aware of the hazards associated with use of thechemicals involved. Her investigation revealed that no written hazard communicationprogram had been developed or implemented and the employees were not provided and trainingon hazardous chemicals at the work site (Tr. 16-17).Mr. Paul Puleo, Owner and President of All Phase, admitted thealleged violations, 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 combustibleliquids, requires in part as follows:Only approved containers and portable tanks shall be used forstorage and handling of flammable and combustible liquids. Approved metal safety cansshall be used for the handling and use of flammable liquids in quantities greater than onegallon…The citation alleges that a five gallon metal container usedfor storage and handling gasoline was not a safety can.Ms. Hodenius testified that gasoline was stored in a containerthat was not a safety can. The container did not have a self-closing spout which couldresult in easy spilling (Tr. 21-22). Mr. Puleo did not refute the inspecting officer’stestimony, but indicated he was not aware of the safety 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 andrequires in part as follows:… live parts of electric equipment operating at 50 volts ormore shall be guarded against accidental contact by cabinets or other forms of enclosures…The citation alleges that a circuit breaker panel did not haveproper cover over the live parts. Ms. Hodenius testified that she observed the violativecondition as shown in exhibit C-3 (Tr. 24).Mr. Puleo pointed out that a temporary cardboard cover was usedfor protection, 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 88inches 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 haverailings.Ms. Hodenius testified that the stairs, with six risers, didnot have railings on the open sides (Exh. C-4).No evidence was offered by All Phase to refute the allegedviolation.NATURE OF THE VIOLATIONSSince the violations have been established, it must now bedetermined whether they are of a serious nature as alleged. For a violation to bedetermined serious under section 17(k) of the Act, there must be substantial probabilitythat death or serious physical harm could result therefrom.Although All Phase seriously questions the nature of theviolations in this case, the evidence of the hazards involved clearly establish they areserious within the context of the Act. The evidence shows that violation of the hazardcommunication standards could result in dizziness to employees and possible falls intomachinery. It also shows that PVC cement could be absorbed through employees’ skin andaffect their internal organs (Tr. 18-19).Ms. Hodenius explained that without a self-closing spout,gasoline could spill, resulting in fire. During refueling, a spill onto hot equipmentcould cause fire and serious burns to employees (Tr. 22). She also pointed out that thecardboard over the live electrical parts could easily be displaced, allowing employees tocontact the parts by falls or while flipping the breakers. Serious electrical burns couldresult (Tr. 26). Ms. Hodenius noted that employees going in or out of the trailer couldeasily slip and fall, causing possible fractures (Tr. 28).Although All Phase argues that accidents are not probable underthe conditions described by the inspector the Secretary is not required to prove that anaccident is probable. It is sufficient if an accident is possible and its probable resultwould be serious injury or death. Brown & Root, Inc., Power Plant Division, 80OSAHRC 17\/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ? 24,275 (No. 76-3942, 1980); NiagaraMohawk Power Corp., 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 BNA OSHC 1286,1980 CCH OSHD ? 24,459 (Nos. 76-191 and 76-192, 1980).Respondent also raises the question of knowledge in this case.It is true that the Secretary must prove that an employer knew or, with the exercise ofreasonable diligence, should have known the existence of the violation. Such knowledge isdirected to the physical conditions which constitution violation Southwestern Acoustics& Specialty, Inc., 77 OSAHRC 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. In this regard, theCommission has held that an employer has an obligation to inspect the work area, toanticipate hazards to which employees may be exposed, and to take measures to preventtheir 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, 80 OSAHRC 47E4, 8 BNA OSHC 1385, 1980 CCH OSHD ? 24,495 (No. 76-5089, 1980).FINDINGS OF FACTAll findings of fact relevant and necessary to a determinationof the contested issues in this case have been found specially and appear in the abovedecision.CONCLUSIONS OF LAW1. All Phase Electric & Maintenance, Inc., at all timespertinent hereto, was an employer engaged in a business affecting commerce within themeaning of section 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of parties and subject matter herein pursuant to section 10(c)the Act.2. Respondent is, and at all times pertinent hereto, requiredto comply with the safety and health regulations promulgated by the Secretary pursuant tosection 6(a)Act. 3. Respondent was violation of 29 C.F.R. ? 1926.59(e)(1),59(g)(8) and 59(h); 152(a)(1); 403(i)(2)(i); and 500(e)(iv) as alleged.ORDERUpon the basis of the foregoing findings of fact, conclusionsof law, and the entire record, it is ORDERED:Citation No. 1 is hereby affirmed and a penalty in the amountof $1,810.00 is hereby assessed.PAUL L. BradyJudgeDate: May 9, 1991”