“SECRETARY OF LABOR,Complainant,v.CLEVELAND CONSOLIDATED, INC.,Respondent.OSHRC Docket No. 84-0696 _DECISION_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).In 1984, Cleveland Consolidated, Inc. was an electrical subcontractor atVogtle Nuclear Power Plant under construction in Waynesboro, Georgia.The Secretary of Labor issued a citation alleging that during that work,Cleveland violated two construction safety standards. The Secretaryproposed a combined penalty of $480. Administrative Law Judge James D.Burroughs found that Cleveland violated both standards, and he assessedthe proposed penalty. Cleveland obtained discretionary review of thejudge’s decision. With respect to the first citation item, we affirm.For the second citation item, we conclude that the violation is, inpart, _de_ _minimis_. We further hold that, to the extent that theviolation in part is greater than _de_ _minimis_, it is duplicative ofthe first citation item. Therefore, we find only a single seriousviolation, and we assess a single penalty of $100. I.In item 1a of the citation, the Secretary alleged that Clevelandviolated C.F.R ? 1926.400(c)(1). That standard provides:? 1926.400(c)(1). _General requirements_.* * *(c) _Protection of employees_. (1) No employer shall permit an employeeto work in such proximity to any part of an electric power circuit thathe may contact the same in the course of his work unless the employee isprotected against electric shock by de-energizing the circuit andgrounding it or by guarding it by effective insulation or other means .. . .The essential facts are not in dispute. On the evening of April 13,1984, four Cleveland employees–William Stansell, Walter McCoy, GeorgeSutton, and Jerry Gill–were assigned to replace a damaged electricalcable that was connected to a switchbox. Stansell was designated asworking foreman for the crew. The switchbox was mounted on a wall in acorridor only 28 inches wide. Because electricity had been cut off tothe cable being replaced, the electric lights in the building did notwork. The crew therefore used portable swivel-head lanterns.The switchbox was 28 to 30 inches high; its top was 39 inches above thefloor. The switchbox consisted of two parts. The bottom part, of \”loadside,\” contained the electrical cable which was to be replaced. The toppart, or \”line side,\” had four conductors carrying at least 460 volts ofelectricity enclosed in a conduit, which entered the switchbox from atransformer outside of the building. The line side conduit and the loadside cable were connected to the switchbox at the top and bottom parts,respectively, by uninsulated set screws, referred to as \”lugs.\” Thethree lugs for the line side were approximately 13? inches above thethree lugs for the load side. An unenergized bar was located below theline side lugs.In preparation for the cable replacement, Stansell flipped the barswitch on the side of the switchbox to the \”off\” position, whichde-energized the load side of the box. He then removed the fuses on theload side. The line side, including the three exposed lugs, remainedenergized. After the damaged cable was removed, Sutton started to attachthe replacement cable to the load side lugs in the switchbox. Gill heldthe flashlight and handed tools to Sutton. Sutton sat in front of theswitchbox on a metal bucket about 12 inches high. He did not use anyinsulation or other protection from electric shock. While Sutton was inthe process of attaching the replacement cable to the lug furthest tothe left on the load side of the switchbox, an explosion occurred at theswitchbox. Sutton was sufficiently close to the switchbox so that hisbeard and clothes were set on fire.[[1]]It is undisputed that the \”line\” side of the switchbox was neitherde-energized nor guarded by \”effective insulation or other means\” withinthe meaning of section 1926.400(c)(1). The question we would ordinarilyturn to, therefore, is whether a Cleveland employee was shown to havebeen in \”such proximity to any part of an electrical power circuit thathe may [have] contact[ed] [it] in the course of his work. . . . \”Cleveland argues, however, that the word \”proximity\” in section1926.00(c)(l) is so vague as to violate the due process requirement ofthe fifth amendment to the Constitution. Cleveland asserts that\”proximity\” does not connote a \”prohibited spacial relationship\” betweenthe employee’s location while working and an electrical power circuit.Since the word \”proximity\” is vague, Cleveland submits that referencemust be made to the customary practices of a reasonably prudentelectrical contractor to determine what proximity means when workingnear an energized power circuit.The word \”proximity\” as it is used in section 1926.400(c)(1) is notspecially defined in the electrical standards for construction work. Seesection 1926.405 (special definitions). _Webster’s Third NewInternational Dictionary_ 1823 (1971) defines \”proximity\” as the\”quality or state of being proximate, next, or very near . . . .\” Thus,the dictionary definition of \”proximity\” does not connote a specificdistance. That \”proximity\” is an imprecise word and is not speciallydefined in the electrical standards does not, however, mean that thestandard is vague. In interpreting a standard and in determining whetherit is vague, words are to be examined in context, not in isolation._See_ _Tunnel Electric Construction Co._, 80 OSAHRC 80\/B7, 8 BNA OSHC1961, 1963, 1980 CCH OSHD ? 24,706, p. 30,321 (No. 76-1803, 1980) (focusupon a single word in electrical standard ignores clear context of itsuse); 2A Sutherland Stat. Const. ? 46.05 (4th Ed. 1984)(statute shouldbe construed as a whole; meaning of word or phrase to be determined fromcontext). Thus, if a standard affords fair notice when read in itsentirety, it does not matter that a single word viewed in isolation isimprecise.[[2]]We agree with Judge Burroughs that section 1926.400(c)(1) is not vaguebecause the context in which it uses the word \”proximity\” explains andnarrows the word’s meaning. The standard speaks not of an employeeworking in \”proximity\” to an electric power circuit, but \”in suchproximity to any part of an electric power circuit that he may contact[it] in the course of his work . . . .\” The clear meaning and evidentpurpose of the standard is therefore that an employee shall not work soclose to an energized power circuit that he may inadvertently contact itin the course of his work. Thus, the standard, when read in itsentirety, prescribes a specific and ascertainable standard of conduct,for an employer can determine by objective means whether employees arewithin reach of, and therefore may contact, an energized power circuitwhile they work.Cleveland presented evidence at the hearing that it was industrypractice, in performing the repair at issue, not to de-energize the lineportion of the switchbox or to otherwise follow the precautions outlinedin section 1926.400(c)(1). However, we agree with Judge Burroughs thatreference to industry practice or a \”reasonably prudent employer\” testis not warranted when the standard prescribes the expected standard oremployer conduct in specific terms. Both the Commission and severalcourts of appeals have held that reference to industry practice or a\”reasonable person\” test is required only to cure a standard ofvagueness.[[3]] Since section 1926.400(c)(1) is not vague, an industrycustom or \”reasonable person\” test is not warranted.[[4]]We therefore turn to whether Cleveland’s employee was working in suchproximity to energized parts that he may have contacted them in thecourse of his work. Cleveland’s employee McCoy indicated that Sutton,when he was sitting on the bucket, was within arm’s reach of theenergized lugs in the switchbox. Also, Sutton’s beard and clothes wereset afire by the explosion at the switchbox. Thus, the record shows thatSutton was working in proximity to the energized lugs within the meaningof section 1926.400(c)(1).We also find that the Secretary proved that the employer actually knewof the violative condition or could have known of it with the exerciseof reasonable diligence. _Sasser Electric & Manufacturing Co._, 84OSAHRC 37\/C6, 11 BNA OSHC 2133, 2135, 1984 CCH OSHD ? 26,982, p. 34,684(No. 82-178, 1984), _aff’d_, 12 BNA OSHC 1445 (4th Cir. 1985)(opiniondesignated as unpublished).[[5]] At the hearing, Cleveland stipulatedthat it was aware of the \”physical conditions\” that constituted thealleged violation. _See_ _Southwestern Acoustics & Specialty, Inc._, 77OSAHRC 25\/E7, 5 BNA OSHC 1091, 1092, 1977-78 CCH OSHD ? 21,582, p.25,896 (No. 12174, 1977) (record must show knowledge of physicalconditions). Further, James Blount, Cleveland’s project manager,indicated that the procedure followed by the workers on the day of theincident was Cleveland’s normal procedure for performing that type ofwork. Stansell, the foreman in charge of the crew, had observed all thecrew’s members and knew exactly what physical conditions existed.Cleveland asserts that the probability of an experienced electriciancoming into contact with an energized part of the switchbox wasextremely unlikely. Under the Act, a violation should be classified as_de_ _minimis_ when there is a technical noncompliance with a standard,but the departure bears such a negligible relationship to employeesafety or health as to render inappropriate the assessment of a penaltyor the entry of an abatement order. _E_._g_., _Keco Industries, Inc._,84 OSAHRC 7\/A2, 11 BNA OSHC 1832, 1983-84 CCH OSHD ? 26,810 (No.81-1976, 1984). However, the likelihood that Cleveland’s employee Suttonwould contact the energized power circuits of the switchbox was not soremote as to be _de_ _minimis_. The switchbox was only 39 inches abovethe floor. The exposed, energized lugs in the switchbox were only 13? inches above the lugs on the load side of the box, to which Sutton wasattaching the replacement cable. Further, the narrowness of theworkplace and its darkness increased the likelihood that Sutton couldhave contacted the energized power circuit, which contained at least 460volts of electricity. Accordingly, we agree with Judge Burroughs thatthe violation of section 1926.400(c)(1) was serious within the meaningof section 17(k) of the Act and not _de_ _minimis_. II.The standard at 29 C.F.R. ? 1926.400(c)(2) provides:? 1926.400 _General requirements_.* * *(c) Protection of employees.* * *(2) Before work is begun the employer shall ascertain by inquiry ordirect observation, or by instruments, whether any part of an electricpower circuit, exposed or concealed, is so located that the performanceof the work may bring any person, tool, or machine into physical orelectrical contact therewith. The employer shall post and maintainproper warning signs where such a circuit exists. He shall advise hisemployees of the location of such lines, the hazards involved and theprotective measures to be taken.Referring to the same cable-replacement job as the first citation item,the Secretary in citation item 1b alleges that Cleveland violatedsection 1926.400(c)(2) in that it did not \”advise employees of thelocation of electric power circuits, the hazards involved, andprotective measures to be taken. . .\”Cleveland does not contend that it advised its employees as required bysection 1926.400(c)(2). Rather, it asserts that it was unnecessary toadvise its employees as required by the standard, since the employees inStansell’s crew were experienced electricians who were aware of thedangers involved in performing the work of replacing the cable. However,section 1926.400(c)(2) contains no exception based upon the employee’sexperience.We need not pass upon these matters further, however, for we concludethat any violation of section 1926.400(c)(2) is in part _de_ _minimis_and in part duplicative of the violation we found above. Cleveland’semployee McCoy, who had 36 years experience as an electrician, describedthe cable-replacement job as \”routine.\” Further, both McCoy andCleveland’s project manager Blount indicated that the experiencedelectricians in Stansell’s crew did not need to be told of the locationof energized circuits and about the hazards involved, since theemployees would know that information as a result of their experienceand their training through a formal apprenticeship program. Based onthis testimony, we conclude that Cleveland’s failure to advise theemployees in Stansell’s crew of the location of energized circuits andof the hazards involved bore no more than a negligible relationship tothe crew’s safety and was therefore de minimis. Accordingly, we neitherorder abatement of this condition nor assess a penalty for it.We also conclude that it would be duplicative of item 1a to affirm theremaining allegation of item 1b–that Cleveland failed to advise itsemployees of the \”protective measures to be taken\” within the meaning ofsection 1926.400(c)(2). We found above that Cleveland violated section1926.400(c)(1) because an employee working in proximity to the exposed,energized lugs was not protected by effective insulation or other means.As a practical matter, however, the way by which Cleveland would meetsection 1926.400(c)(1) is to instruct employees working in proximity toelectric power circuits to de-energize the circuit or to use insulationor other protective measures. This would, of course, meet therequirement of section 1926.400(c)(2) that employees be advised of the\”protective measures to be taken.\” In short, because the two citationsitems involve substantially the same violative conduct, we find only asingle violation and assess a single penalty. _See_ _Alpha PosterService, Inc._, 76 OSAHRC 141\/B8, 4 BNA OSHC 1883, 1884, 1976-77 CCHOSHD ? 21,354, p. 25,644 (No. 7869, 1976) (two items involvingsubstantially the same violative conduct should merge into a singleviolation). III.We conclude that the penalty for the violation of section 1926.400(c)(1)should be $100. In assessing that amount, we rely upon the fact thatthere is no evidence that Cleveland had previously been cited forviolations of the Act. Further, we consider it significant for penaltyassessment purposes that Cleveland had a good faith belief, based uponindustry practice, that its work procedures for replacing an electricalcable were safe.Accordingly, citation item 1a is affirmed. Item 1b is modified to a _de__minimis_ notice. A single penalty of $100 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: FEB 13, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.CLEVELAND CONSOLIDATED, INC.,Respondent.OSHRC Docket No. 84-0696APPEARANCES:William Lawson, Esquire, and James L. Stine, Esquire,Office of the Solicitor, U. S. Department of Labor,Atlanta, Georgia, on behalf of complainant.Ira J. Smotherman. Jr., Esquire, Stokes, Shapiro, Fusselland Genberg, Atlanta, Georgia, on behalf of respondent. _DECISION AND ORDER_Burroughs, Judge: Cleveland Consolidated, Inc. (\”CIeveland\”), contestsalleged serious violations of 29 C.F.R. ? 1926.400(c)(1) for failure tode-energize or otherwise guard an electric power circuit before allowingan employee to begin work near it and 29 C.F.R. ? 1926.400(c)(2) forfailing to advise employees of the location of electric power circuits,the hazards involved, and the protective measures to be taken. Theviolations allegedly occurred on April 13, 1984, while four electricianswere in the process of replacing a damaged cable in the RAD WasteBuilding at the Vogtle Nuclear Power Plant under construction atWaynesboro, Georgia.Cleveland is an electrical and mechanical contractor. It has the primaryelectrical contract on the Vogtle Plant under construction by GeorgiaPower Company. On April 12, 1984, a cable which ran to the service or\”load\” center that provided electrical service to the RAD Waste Buildingwas damaged when a worker dragged a welding lead over the cable. Atemporary repair was completed and a decision made to replace the cableat the earliest occasion.On April 13, 1984, four electricians, Walter McCoy, William Stansell,Jerry Gill, and George Sutton, were assigned to replace the cable afternormal working hours on that date. Stansell was made foreman. The fourelectricians were to get the tools and materials together, de-energizethe switch, remove the old cable, put in a new cable, terminate thewires and re-energize the switch. The repair was to be made after normalworking hours since the cable had to be de- energized and there would beno lights or other power while they made the repair. The superintendentwent over the job with the foreman and they decided what tools would beneeded. The job was considered a routine operation.The cable to be replaced was approximately 1? inches in diameter and ranfrom a switchbox to a load center approximately 40 feet away. Theswitchbox was mounted on the wall in a narrow corridor. The top of theswitchbox was 39 inches above the floor of the corridor. The box wasapproximately 28 inches in height. A safety switch was located on theright side of the switchbox. When the switch is pulled down, theelectricity to the load cables is cut off. The box also contained threefuses. Four conductors enclosed in a conduit ran from a transformeroutside the building into the top portion of the switchbox (referred toas the \”line\” side). The damaged cable ran from the bottom of theswitchbox (referred to as the \”load\” side). The cables were connected tothe switchbox at the top and bottom by set screws or \”lugs.\”On the evening of April 13, 1984, Stansell pulled down the switch on theswitchbox to cut off the power to the \”load\” side, used his voltagetester to assure himself that the current had been cut off and thenremoved the fuses from the switchbox. This cut off all power to the loadcables. Electrical current was still flowing into the top or \”line\” sideof the switchbox. Once Stansell had assured himself that no electricalcurrent was flowing to the \”load\” side, he and McCoy connected the farend of the new cable to the service center. When they finished thistask, McCoy and Stansell returned to the switchbox to determine how Gilland Sutton were progressing with connecting the new cable to the switchbox.As McCoy and Stansell approached the switchbox, they observed Suttonsitting on a small metal bucket in front of and facing the switchbox.Gill held a six-volt lantern and handed Sutton the necessary tools.Sutton was attaching the leads of the new cable to the bottom left lugin the switchbox. During this process, an explosion occurred. _ALLEGED VIOLATION OF 29 C.F.R. ? 1926.400(c)(1)_The Secretary contends that Cleveland violated 29 C.F.R. ?1926.400(c)(1) for failure to de-energize or otherwise guard an electricpower circuit before allowing an employee to work near it. The basicfacts are undisputed. The top portion of the switchbox (\”line\” side) waslive at the time Sutton was attaching the new cable to the bottomportion of the switchbox (\”load\” side). The \”load\” side had beende-energized. The Secretary argues that the \”line\” side should have beeneffectively insulated or de-energized prior to Sutton working on the\”load\” side. There was a distance of approximately 13? inches betweenthe lugs for the \”line\” side and those for the \”load\” side.The cited standard, ? 1926.400(c)(1),[[1\/]] provides, in part, that\”[n]o employer shall permit an employee to work in _such proximity_ toany part of an electrical power circuit that he may contact the same _inthe course of his work_ unless the employee is protected againstelectric shock.\” (Underlining added.) The primary question involveswhether Sutton, while working on the \”load\” side, was in such proximityto the \”line\” side that he might nave contacted the live power circuit\”in the course of his work.\”Cleveland argues that the standard uses the \”term ‘proximity’ in ageneral way to describe a certain prohibited spacial relationshipbetween an employee’s work and an electrical power circuit.\” Since theword \”proximity\” does not connote specific measurements, it submits thatreference must be made to the customary practices of a reasonablyprudent electrical contractor to determine what proximity means whenworking near a live power circuit. Cleveland argues that \”[t]he standardof care required in the absence of actual knowledge is that of a’reasonably prudent [employer] familiar with the circumstances of theindustry,’\” citing _Cape and Vineyard Division v. OSHRC_, 512 F.2d 1148,1152 (1st Cir. 1975); and _B&B Insulation, Inc. v. OSHRC_, 583 F.2d1364, 1367 (5th Cir. 1978).While the word \”proximity\”[[2\/]] used by itself does not connote aspecific spacial relationship between an employee’s work and an electricpower circuit, the use of the words \”that he may contact. . .in thecourse of his work\” assists in defining the meaning of \”proximity\” asused in the standard. The standard, as a whole, is clear that anemployee is not to be permitted to work in such proximity to any part ofan electrical power circuit that he may contact the same in the courseof his work. A specific ascertainable standard of conduct is prescribedfor an employer. The only question for determination is whether Suttoncould contact the live part of the switchbox in the course of connectingthe cable to the \”load\” side.Compliance Officer James W. Deaver, Jr., measured a distance of 39inches from the floor of the corridor to the top of the switchbox.Sutton was sitting on a small metal bucket approximately 12 inches high.He was facing the front of the switchbox while he was attaching theleads of the new cable to the bottom left lug in the switchbox. Thedistance between the lugs for the \”line\” side and those for the \”load\”side was approximately 13? inches. As Sutton faced the switchbox andworked from his seat on the metal bucket, the live part of the switchboxwas easily within his working area. McCoy, who was at the site andobserved Sutton as he worked, conceded that the energized portion of theswitchbox was within reach or contact by Sutton (Tr. 22).While the exact cause of the accident is unknown, Sutton was in suchproximity to the live side of the switchbox that his beard and clotheswere engulfed in flames (Tr. 84). While there is no evidence that Suttonmade contact with the live parts of the switchbox, his work location wassuch that he easily could have made contact. He could have contacted thelive parts in the course of his work on the \”load\” side. The violationhas been established.It is not necessary to resort to industry practice to determine themeaning of the word \”proximity\” as used in ? 1926.400(c)(1). Thestandard is clear that \”proximity\” is used to refer to those instanceswhere the employee may make contact with an electric power circuit inthe course of his work. If the employee can make contact with the powercircuit in the course of his work, the employer must de-energize thecircuit and ground it or guard it by effective insulation or othermeans. The standard does not describe the expected standard of employerconduct in nonspecific terms. The words \”such proximity\” must be read incontext with the full wording of the standard. Cleveland focuses only onthe word \”proximity,\” which by itself does not prescribe anascertainable standard of conduct.Either actual or constructive knowledge of the violation must beestablished by the Secretary. _See_, _e.g._, _Scheel Construction Inc._,76 OSAHRC 138\/B6, 4 BNA OSHC 1825, 1976-77 CCH OSHD ? 21,263 (No. 8687,1976), appeal dismissed, No. 77-1022, 8th Cir., February 10, 1977.Cleveland argues that the Secretary presented no evidence that Clevelandhad knowledge of the hazard, either through its employees or its pastexperience with similar conditions. This argument is without merit.Cleveland was fully aware of all the conditions under which the fouremployees were to perform the job. The fact it deems the procedurefollowed in replacing the cable to be safe does not excuse it fromcomplying with the standard.The evidence establishes that Cleveland had insulating blankets at thesite that would have insulated Sutton from the energized \”line\” side ofthe switchbox. This means of protection would have been simple andexpedient. _ALLEGED VIOLATION OF 29 C.F.R. ? 1926.400(c)(2)_Cleveland was also cited for a violation of 29 C.F.R. ?1926.400(c)(2),[[3\/]] for failing to advise employees of the hazardsinvolved and the protective measures to be taken while replacing thecable. The standard requires an employer to advise employees of thehazards involved and the protective measures to be taken when theemployees’ work may bring them or their tools into physical orelectrical contact with any part of an electric power circuit, exposedor concealed.Sutton was working on the \”load\” side while sitting on a bucket andfacing the switchbox. He was in a position where he would contact anenergized part in the course of his work. The superintendent went overthe job with the foreman and decided what tools would be required tomake the repair. McCoy could not recall any instructions as to whatprecautions should be taken (Tr. 36). The project manager, James R.Blount, did not know if safety precautions had been discussed prior toworking on the switchbox (Tr. 98). The job was considered routine, andboth McCoy and Blount were of the opinion that a craftsman working in aload center did not need to be instructed as to how to perform the jobor as to what safety precautions needed to be taken. The fact the jobwas considered routine does not excuse Cleveland from complying with thestandard. The standard does not excuse employers from compliance whenexperienced workers are performing work on live electric power circuitswhere the performance of the work might bring the employee into contactwith the circuit.The standard is specific in its requirements. There is no evidence thatCleveland complied with the provisions of the standard. Undoubtedly,Cleveland was of the opinion that work on a de-energized \”load\” sidewould not bring any employee into physical or electrical contact withthe \”line\” side of the switchbox. Sutton was working within inches ofthe live circuit in a narrow corridor with the only light being from asix-volt lantern being held by Gill. While the chances of his contactingthe live circuit may have been remote, the standard was promulgated toprotect against the unexpected. The violation has been established. _NATURE OF VIOLATIONS_The Secretary alleges that the violations of 29 C.F.R. ? 1926.400(c)(1)and 400(c)(2) were serious within the meaning of section 17(k) of theAct.[[4\/]] A violation is serious within the meaning of section 17(k) ofthe Act it there is (1) a substantial probability that death or seriousphysical harm could result from the violation, and (2) the employer knewor with the exercise of reasonable diligence could have known of thepresence of the violation.Cleveland had knowledge that the work was to be performed withoutde-energizing or otherwise protecting the employees from exposure to the\”line\” side of the switchbox. Under their normal procedure, such workwas to be performed by de-energizing only the \”load\” side. Since Suttonwas exposed to a possible shock of 460 volts, enough to electrocute him,the violations are deemed to be serious. _PENALTY DETERMINATION_The violations were combined for purposes of determining an appropriatepenalty. While the Secretary proposes a penalty of $480, the Commissionis the final arbiter of penalties in all contested cases. _Secretary v.OSHRC and Interstate Glass Co._, 487 F.2d 438 (8th Cir. 1973). Undersection 17(j)[[5\/]] of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith or the employer and the historyof previous violations in determining the assessment of an appropriatepenalty. The gravity of the offense is the principal factor to beconsidered. _Nacirema Operating Co., Inc._, 72 OSAHRC 1\/B10, 1 BNA OSHC1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The gravity of the violation must be considered serious since Sutton wasworking within inches of 460 volts of electricity while sitting on ametal bucket. The corridor was narrow and the work location was lightedwith only a six-volt lantern. There is no evidence of previous citationsand Cleveland’s good faith was not questioned (Tr. 64). The company hasover 2,000 employees (Tr. 64). A penalty of $460 is assessed for theviolations. _FINDINGS OF FACT_1. Cleveland Consolidated, Inc. (\”Cleveland\”), is an electrical andmechanical contractor. At times pertinent to this action, it maintaineda workplace at Vogtle Plant, River Road, Waynesboro, Georgia, a plantunder construction for Georgia Power Company. Cleveland has the primaryelectrical contract on the Plant Vogtle Project (Tr. 71, 101).2. On Friday, April 13, 1984, four electricians, Walter McCoy, WilliamStansell, Jerry Gill, and George Sutton, were assigned to replace adamaged cable which ran to the service or \”load\” center that providedelectrical service to the RAD Waste Building (Tr. 7-8, 9, 10, 75, 109,110). Stansell was the foreman for the job (Tr. 8, 109-110, 113).3. Gill was an apprentice electrician. Sutton, McCoy and Stansell werejourneymen wiremen (Tr. 7, 75). McCoy has 36 years’ experience in theelectrical industry (Tr. 7). Stansell has worked as a journeymanelectrician for 33 years (Tr. 114).4. The cable had been damaged on Thursday, April 12, 1984, when a workerdragged a welding load over it. A temporary repair was completed onThursday and a decision made to replace the cable at the earliestoccasion (Tr. 74).5. The superintendent, went over the job with the foreman and decidedwhat tools would be required to make the repair (Tr. 75, 86). The fouremployees were to get the tools and materials together, de-energize theswitch, remove the old cable, put in a new cable, terminate the wiresand re-energize the switch (Tr. 76). The job was a routine operation(Tr. 77).6. The work was to be performed after normal working hours since thecable ran to the load center that provided electrical power for thebuilding. The cable had to be de-energized for replacement. The cablefurnished temporary power for the lights and other power equipment whichwere being used in the construction work (Tr. 7-8, 11-12, 74-75).7. Four conductors enclosed in a conduit ran from a transformer mountedoutside the building into the top portion of the switchbox (referred toas the \”line\” side) (Tr. 18-19, 77, 81). The cables carried at least 460volts of electricity (Tr. 9).8. The cable to be replaced was approximately 1? inches in diameter andran from a switchbox to the load center, which was approximately 40 feetaway. The switchbox was mounted on the wall in a narrow corridor,approximately one to two feet above the floor (Ex. 8; Tr. 10, 18, 25, 76).9. The distance from the floor of the corridor to the top of theswitchbox was 39 inches (Tr. 59). The corridor was 28 inches wide (Tr. 61).10. The cable that was to be replaced ran from the bottom of theswitchbox (referred to as the \”load\” side). The cables were connected tothe switchbox at the top and bottom by set screws or \”lugs.\” Thedistance between the lugs for the line side and those for the load sidewas approximately 13? inches (Tr. 59, 61, 76, 81).11. A brake handle or safety switch was located on the right side of theswitchbox. When the handle is pulled down, it cuts off the electricityflowing into the load cables. The switchbox contained three fuses.Removing the fuses from the switchbox prevented any power from flowingto the load cables (Tr. 14, 42). It is normal procedure to remove thefuses as an additional precaution in the event the switch is defective(Tr. 44). Electricity would still flow into the top portion of theswitchbox (the \”line\” side) even though the handle is down and the fuseshave been removed. Only the bottom part of the switchbox would bede-energized (Ex. 1; Tr. 14-15, 34, 40, 41).12. After the damaged load cable was de-energized, Stansell and McCoywere to disconnect the side of the cable which ran into the service areaof the building and connect the new cable. Sutton and Gill were assignedto disconnect the damaged load cable and connect the new cable to theswitchbox (Tr. 13, 21).13. Stansell threw the switch on the switchbox, used his voltage testerto verify that the current had been cut off, and took the fuses out ofthe switchbox. Electrical current was still flowing into the top or\”line\” side of the switchbox (Tr. 15, 43, 83). Stansell and McCoy thenproceeded to the far end of the cable to disconnect it from the loadcenter. They detached the old feeder cable and reattached the new cable(Tr. 13, 110, 111).14. When the switch or safety handle was pulled down, the flow ofelectricity to the load cable was stopped and the lights in the RADWaster Building were cut off. The electricians had available and usedsix-volt lanterns to furnish light to replace the cable (Tr. 15, 78).15. The bar of the safety switch, once pulled down to the off position,helps prevent contact with the line side if one is working on the loadside (Ex. 10, 11, A; Tr. 129-130).16. After McCoy and Stansell had connected the far end of the new cableto the service center, they returned to the switchbox to determine howGill and Sutton were progressing with their work. Since the switchboxwas located close to the floor, Sutton sat upon a small metal bucketapproximately 12 inches high while performing his job. Gill held andhanded him necessary tools. Sutton was facing the front of the switchboxas he worked to replace the cable (Tr. 13, 19, 20, 21-22, 25, 38).17. As McCoy and Stansell approached the switchbox, Sutton was attachingthe leads of the new cable to the bottom left lug in the switchbox (Tr.13-14, 22, 26, 44-45).18. While Sutton was sitting on the metal bucket and attaching the newcable to the lugs, he was within arm’s length of the energized circuit(Tr. 22).19. During the time Sutton was inserting the new cable into the leftlug, an explosion occurred. His beard and clothes were set on fire (Tr.14, 84). The accident occurred around 7:00 p.m. (Tr. 82).20. It is not the practice of Cleveland employees to de-energize theentire switchbox unless work is to be performed on the \”line\” side (Tr.53-54, 78-79, 114-115, 118-119, 121).21. The entire switchbox could have been de-energized by de-energizingthe high voltage coming to the transformer (Tr. 29-30, 48-49). A buckettruck and hot stick were available at the site to assist inde-energizing the transformer (Tr. 30).22. Cleveland has insulating blankets at the site that would haveinsulated Sutton from the energized \”line\” side of the switchbox (Tr.31-32).23. Plant Vogtle is one of the work sites participating in the OSHAvoluntary protection program known as the Star Program (Tr. 65-66). _CONCLUSIONS OF LAW_1. Cleveland, at all time material hereto, was engaged in a businessaffecting commerce the meaning of section 3(5) of the Act.2. Cleveland, at all times material hereto, was subject to therequirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction of the parties and of the subject matter herein.3. On April 13, 1984, an employee was permitted to work in suchproximity to a live power circuit that he could have contacted the samein the course of his work. The live circuit was not de-energized andgrounded, guarded by insulation or protected by other means. The workcondition was in violation of 29 C.F.R. ? 1926.400(c)(1).4. On April 13, 1984, the employees engaged in a cable repair were notspecifically advised of the hazards involved and the protective measuresto be taken to protect them from a live \”line\” side power circuit whilereplacing a cable on the \”load\” side of a switchbox. The work conditionwas in violation of 29 C.F.R. ? 1926.400(c)(2).5. The violations of 29 C.F.R. ? 1926.400(c)(1) and 29 C.F.R. ?1926.400(c)(2) were serious since the employee was working within inchesof 460 volts of electricity.6. A penalty of $480 is determined to be appropriate for the violations. _ORDER_Based upon the foregoing findings of fact and conclusions of law, it isORDERED: That the serious citation and proposed penalty issued toCleveland on June 18, 1984, are affirmed.Dated this 11th day of February, 1985.JAMES D. BURROUGHSJudgeFOOTNOTES:[[1]] There is no evidence that the explosion was the result of contactof Sutton with any energized parts of the switchbox. Cleveland’s projectmanager Blount testified that there was no electric shock or burnt tool,and that the explosion was caused by a fault or short circuit in theline side of the switchbox. However, the cause of an accident, andparticularly whether a violation of a standard caused an accident, isnot necessarily relevant to whether an employer violated a regulation._See_, _e.g._, _Towne Construction Co._, 86 OSAHRC ____, 12 BNA OSHC2185, 2188 n.7, 1986 CCH OSHD ? 27,760, p. 36,310 n.7 (No. 83-1262,1986) (relevant issue is not what caused an accident, but whether OSHAstandard was violated), and cases cited. The circumstances of anaccident may, however, provide probative evidence of whether a standardwas violated. _See_ _generally_ _Concrete Construction Corp._, 76 OSAHRC47\/A2, 4 BNA OSHC 1133, 1135, 1975-76 CCH OSHD ? 20,610, p. 24,644 (No.2490, 1976). We therefore mention the accident only in connection withwhat it shows about Sutton’s proximity to the switchbox.[[2]] _Cf_. _Phelps Dodge Corp._, 83 OSAHRC 29\/A2, 11 BNA OSHC 1441,1450, 1983-84 CCH OSHD ? 26,552, p. 33,927 (No. 80-3203, 1983)(dissenting opinion), _aff’d_, 725 F.2d 1237 (9th Cir. 1984):[T]he meaning of words can be better judged from the context in whichthey appear than the abstract generalizations of a dictionary. It doesnot follow that a standard is ambiguous simply because a word in astandard is ambiguous. If, as here, the context and structure of thestandard clearly indicate that a critical word was used in a particularsense, the standard is not ambiguous.[[3]]_See_ _Research Cottrell, Inc._, 81 OSAHRC 26\/B13, 9 BNA OSHC 1489,1497, 1981 CCH OSHD ? 25,284, p. 31,263 (No. 11756, 1981) (standardunequivocal; reasonable person test unnecessary); _Faultless Division v.Secretary of Labor_, 674 F.2d 1177, 1186-87 (7th Cir. 1982) (industrypractice should not be considered; standard is sufficiently specific);_A.E. Burgess Leather Co. v. OSHRC_, 576 F.2d 948, 951 (1st Cir. 1978)(same).These cases are consistent with _B & B Insulation, Inc. v. OSHRC_, 583F.2d 1364 (5th Cir. 1978), and other decisions which are precedent inthe Eleventh Circuit (formerly part of the Firth Circuit) whereCleveland is located. The _B & B_ court held that when a standard failsto state the required protection in specific terms, the standard wouldbe unenforceably vague unless it were read to require only thoseprotective measures that the employer’s industry would deem appropriateunder the circumstances. _Id_. at 1367. However, that holding waslimited to such vague standards, for the court pointed out that theSecretary could promulgate specifically-worded standards to imposerequirements more stringent than those customarily followed in industry._Id_. at 1371-72. We also note that the Fifth Circuit has held thatother standards were sufficiently specific without the need forreference to industry practice. _Deering Milliken, Inc. v. OSHRC_, 630F.2d 1094, 1103-05 (5th Cir. 1980) (any vagueness in air contaminantstandard is dispelled by its history, legislative intent, and theSecretary’s enforcement posture); _Austin Commercial v. OSHRC_, 610 F.2d200, 201 (5th Cir. 1979) (plain words of materials-handling regulationgive employer fair warning). Accordingly, because ? 1926.400(c)(1) is aspecific standard, it is not necessary under _B & B_, and otherdecisions that are precedent in the Eleventh Circuit, to refer toindustry practice.[[4]] The Fifth Circuit has held that, even if a \”reasonable persontest\” otherwise would be required to cure a standard of vagueness, theproblem of fair notice does not exist where an employer has actualknowledge that its work practice is hazardous. _Owens Corning FiberglassCorp. v. Donovan_, 659 F.2d 1285, 1288 (5th Cir. 1981). In response tothat holding in _Owens Corning_, Cleveland argues that it lacked actualknowledge that its work procedures were hazardous, while the Secretaryargues that Cleveland and had such actual knowledge. We find itunnecessary to decide this issue, since we find that the language of thestandard provided fair notice of its requirements.[[5]] This element of employer knowledge, which must be established inall cases which arise under the Act, is different from the actualknowledge issue which is discussed in _Owen’s Corning_. _See_ note 4_supra_. Cleveland does not appear to argue that the Secretary failed toestablish the element of employer knowledge, as discussed in _Sasser_and other cases. Cleveland’s argument that it lacked actual knowledgethat its work procedures were hazardous pertains to its vaguenessargument. That argument may have been intended, however, to alsoencompass the broader issue of employer knowledge. We therefore discussthe matter here.[[1\/]] Section 1926.400(c)(1) provides:(c) _Protection of employees_. (1) No employer shall permit an employeeto work in such proximity to any part of an electric power circuit thathe may contact the same in the course of his work unless the employee isprotected against electric shock by de-energizing the circuit andgrounding it or by guarding it by effective insulation or other means.In work areas where the exact location of underground electric powerlines is unknown, workmen using jack-hammers, bars, or other hand toolswhich may contact a line shall be provided with insulated protective gloves.[[2\/]] The term \”proximity\” is defined by _Webster’s Third NewInternational Dictionary_ as \”the quality or state of being proximate,next or very near (as in time, place, relationship).\”[[3\/]] Section 1926.400(c)(2) of 29 C.F.R. provides:Before work is begun the employer shall ascertain by inquiry or directobservation, or by instruments, whether any part of an electric powercircuit, exposed or concealed, is so located that the performance of thework may bring any person, tool, or machine into physical or electricalcontact therewith. The employer shall post and maintain proper warningsigns where such a circuit exists. He shall advise his employees of thelocation of such lines, the hazards, involved and the protectivemeasures to be taken.[[4\/]] Section 17(k) states:For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[5\/]] Section 17(j) of the Act provides:The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of the previous violations.”