“Docket No. 84-0696 SECRETARY OF LABOR, Complainant, v. CLEVELAND CONSOLIDATED, INC., Respondent. OSHRC Docket No. 84-0696\u00a0DECISIONBefore: BUCKLEY, Chairman; WALL, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c). In 1984, Cleveland Consolidated, Inc. was anelectrical subcontractor at Vogtle 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 Secretary proposed a combinedpenalty of $480. Administrative Law Judge James D. Burroughs found that Cleveland violatedboth standards, and he assessed the proposed penalty. Cleveland obtained discretionaryreview of the judge’s decision. With respect to the first citation item, we affirm. Forthe second citation item, we conclude that the violation is, in part, de minimis.We further hold that, to the extent that the violation in part is greater than de minimis,it is duplicative of the first citation item. Therefore, we find only a single seriousviolation, and we assess a single penalty of $100.\u00a0I.In item 1a of the citation, the Secretary allegedthat Cleveland violated C.F.R ? 1926.400(c)(1). That standard provides:? 1926.400(c)(1). General requirements.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0*(c) Protection of employees. (1) No employer shall permit an employee to work insuch proximity to any part of an electric power circuit that he may contact the same inthe course of his work unless the employee is protected against electric shock byde-energizing the circuit and grounding it or by guarding it by effective insulation orother means . . . .The essential facts are not in dispute. On theevening of April 13, 1984, four Cleveland employees–William Stansell, Walter McCoy,George Sutton, and Jerry Gill–were assigned to replace a damaged electrical cable thatwas connected to a switchbox. Stansell was designated as working foreman for the crew. Theswitchbox was mounted on a wall in a corridor only 28 inches wide. Because electricity hadbeen cut off to the 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 was39 inches above the floor. The switchbox consisted of two parts. The bottom part, of\”load side,\” 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 a transformer outsideof the building. The line side conduit and the load side cable were connected to theswitchbox at the top and bottom parts, respectively, by uninsulated set screws, referredto as \”lugs.\” The three lugs for the line side were approximately 13? \u00a0inches above the three lugs for the load side. An unenergized bar was located below theline side lugs.In preparation for the cable replacement, Stansellflipped the bar switch on the side of the switchbox to the \”off\” position, whichde-energized the load side of the box. He then removed the fuses on the load side. Theline side, including the three exposed lugs, remained energized. After the damaged cablewas removed, Sutton started to attach the replacement cable to the load side lugs in theswitchbox. Gill held the flashlight and handed tools to Sutton. Sutton sat in front of theswitchbox on a metal bucket about 12 inches high. He did not use any insulation or otherprotection from electric shock. While Sutton was in the process of attaching thereplacement cable to the lug furthest to the left on the load side of the switchbox, anexplosion occurred at the switchbox. Sutton was sufficiently close to the switchbox sothat his beard and clothes were set on fire.[[1]]It is undisputed that the \”line\” side ofthe switchbox was neither de-energized nor guarded by \”effective insulation or othermeans\” within the meaning of section 1926.400(c)(1). The question we would ordinarilyturn to, therefore, is whether a Cleveland employee was shown to have been in \”suchproximity to any part of an electrical power circuit that he may [have] contact[ed] [it]in the course of his work. . . . \” Cleveland argues, however, that the word\”proximity\” in section 1926.00(c)(l) is so vague as to violate the due processrequirement of the fifth amendment to the Constitution. Cleveland asserts that\”proximity\” does not connote a \”prohibited spacial relationship\”between the employee’s location while working and an electrical power circuit. Since theword \”proximity\” is vague, Cleveland submits that reference must be made to thecustomary practices of a reasonably prudent electrical contractor to determine whatproximity means when working near an energized power circuit.The word \”proximity\” as it is used insection 1926.400(c)(1) is not specially defined in the electrical standards forconstruction work. See section 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, thedictionary definition of \”proximity\” does not connote a specific distance. That\”proximity\” is an imprecise word and is not specially defined in the electricalstandards does not, however, mean that the standard is vague. In interpreting a standardand in determining whether it is vague, words are to be examined in context, not inisolation. 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) (focus upon a singleword in electrical standard ignores clear context of its use); 2A Sutherland Stat. Const.? 46.05 (4th Ed. 1984)(statute should be construed as a whole; meaning of word or phraseto be determined from context). Thus, if a standard affords fair notice when read in itsentirety, it does not matter that a single word viewed in isolation is imprecise.[[2]]We agree with Judge Burroughs that section1926.400(c)(1) is not vague because the context in which it uses the word\”proximity\” explains and narrows the word’s meaning. The standard speaks not ofan employee working in \”proximity\” to an electric power circuit, but \”insuch proximity to any part of an electric power circuit that he may contact [it] in thecourse of his work . . . .\” The clear meaning and evident purpose of the standard istherefore that an employee shall not work so close to an energized power circuit that hemay inadvertently contact it in the course of his work. Thus, the standard, when read inits entirety, prescribes a specific and ascertainable standard of conduct, for an employercan determine by objective means whether employees are within reach of, and therefore maycontact, an energized power circuit while they work.Cleveland presented evidence at the hearing that itwas industry practice, in performing the repair at issue, not to de-energize the lineportion of the switchbox or to otherwise follow the precautions outlined in section1926.400(c)(1). However, we agree with Judge Burroughs that reference to industry practiceor a \”reasonably prudent employer\” test is not warranted when the standardprescribes the expected standard or employer conduct in specific terms. Both theCommission and several courts of appeals have held that reference to industry practice ora \”reasonable person\” test is required only to cure a standard ofvagueness.[[3]] Since section 1926.400(c)(1) is not vague, an industry custom or\”reasonable person\” test is not warranted.[[4]]We therefore turn to whether Cleveland’s employee wasworking in such proximity to energized parts that he may have contacted them in the courseof his work. Cleveland’s employee McCoy indicated that Sutton, when he was sitting on thebucket, was within arm’s reach of the energized lugs in the switchbox. Also, Sutton’sbeard and clothes were set afire by the explosion at the switchbox. Thus, the record showsthat Sutton was working in proximity to the energized lugs within the meaning of section1926.400(c)(1).We also find that the Secretary proved that theemployer actually knew of the violative condition or could have known of it with theexercise of 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)(opinion designated asunpublished).[[5]] At the hearing, Cleveland stipulated that it was aware of the\”physical conditions\” that constituted the alleged violation. See SouthwesternAcoustics & Specialty, Inc., 77 OSAHRC 25\/E7, 5 BNA OSHC 1091, 1092, 1977-78 CCHOSHD ? 21,582, p. 25,896 (No. 12174, 1977) (record must show knowledge of physicalconditions). Further, James Blount, Cleveland’s project manager, indicated that theprocedure followed by the workers on the day of the incident was Cleveland’s normalprocedure for performing that type of work. Stansell, the foreman in charge of the crew,had observed all the crew’s members and knew exactly what physical conditions existed.Cleveland asserts that the probability of anexperienced electrician coming into contact with an energized part of the switchbox wasextremely unlikely. Under the Act, a violation should be classified as de minimiswhen there is a technical noncompliance with a standard, but the departure bears such anegligible relationship to employee safety or health as to render inappropriate theassessment of a penalty or the entry of an abatement order. E.g., KecoIndustries, 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 Sutton would contact theenergized power circuits of the switchbox was not so remote as to be de minimis.The switchbox was only 39 inches above the floor. The exposed, energized lugs in theswitchbox were only 13?\u00a0 inches above the lugs on the load side of the box, to whichSutton was attaching the replacement cable. Further, the narrowness of the workplace andits darkness increased the likelihood that Sutton could have contacted the energized powercircuit, which contained at least 460 volts of electricity. Accordingly, we agree withJudge Burroughs that the violation of section 1926.400(c)(1) was serious within themeaning of section 17(k) of the Act and not de minimis.\u00a0II.The standard at 29 C.F.R. ? 1926.400(c)(2) provides:? 1926.400 General requirements.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0*(c) Protection of employees.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0*(2) Before work is begun the employer shall ascertain by inquiry or direct observation, orby instruments, whether any part of an electric power circuit, exposed or concealed, is solocated that the performance of the work may bring any person, tool, or machine intophysical or electrical contact therewith. The employer shall post and maintain properwarning signs where such a circuit exists. He shall advise his employees of the locationof such lines, the hazards involved and the protective measures to be taken. Referring to the same cable-replacement job as thefirst citation item, the Secretary in citation item 1b alleges that Cleveland violatedsection 1926.400(c)(2) in that it did not \”advise employees of the location ofelectric power circuits, the hazards involved, and protective measures to be taken. ..\”Cleveland does not contend that it advised itsemployees as required by section 1926.400(c)(2). Rather, it asserts that it wasunnecessary to advise its employees as required by the standard, since the employees inStansell’s crew were experienced electricians who were aware of the dangers involved inperforming the work of replacing the cable. However, section 1926.400(c)(2) contains noexception based upon the employee’s experience.We need not pass upon these matters further, however,for we conclude that any violation of section 1926.400(c)(2) is in part de minimisand in part duplicative of the violation we found above. Cleveland’s employee McCoy, whohad 36 years experience as an electrician, described the cable-replacement job as\”routine.\” Further, both McCoy and Cleveland’s project manager Blount indicatedthat the experienced electricians in Stansell’s crew did not need to be told of thelocation of energized circuits and about the hazards involved, since the employees wouldknow that information as a result of their experience and their training through a formalapprenticeship program. Based on this testimony, we conclude that Cleveland’s failure toadvise the employees in Stansell’s crew of the location of energized circuits and of thehazards involved bore no more than a negligible relationship to the crew’s safety and wastherefore de minimis. Accordingly, we neither order abatement of this condition nor assessa penalty for it.We also conclude that it would be duplicative of item1a to affirm the remaining allegation of item 1b–that Cleveland failed to advise itsemployees of the \”protective measures to be taken\” within the meaning of section1926.400(c)(2). We found above that Cleveland violated section 1926.400(c)(1) because anemployee working in proximity to the exposed, energized lugs was not protected byeffective insulation or other means. As a practical matter, however, the way by whichCleveland would meet section 1926.400(c)(1) is to instruct employees working in proximityto electric power circuits to de-energize the circuit or to use insulation or otherprotective measures. This would, of course, meet the requirement of section 1926.400(c)(2)that employees be advised of the \”protective measures to be taken.\” In short,because the two citations items involve substantially the same violative conduct, we findonly a single violation and assess a single penalty. See Alpha Poster Service,Inc., 76 OSAHRC 141\/B8, 4 BNA OSHC 1883, 1884, 1976-77 CCH OSHD ? 21,354, p. 25,644(No. 7869, 1976) (two items involving substantially the same violative conduct shouldmerge into a single violation).\u00a0III.We conclude that the penalty for the violation ofsection 1926.400(c)(1) should be $100. In assessing that amount, we rely upon the factthat there is no evidence that Cleveland had previously been cited for violations of theAct. Further, we consider it significant for penalty assessment purposes that Clevelandhad a good faith belief, based upon industry practice, that its work procedures forreplacing an electrical cable were safe.Accordingly, citation item 1a is affirmed. Item 1b ismodified to a de minimis notice. A single penalty of $100 is assessed.FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary DATED: FEB 13, 1987SECRETARY 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.\u00a0DECISION AND ORDERBurroughs, Judge: Cleveland Consolidated, Inc.(\”CIeveland\”), contests alleged serious violations of 29 C.F.R. ?1926.400(c)(1) for failure to de-energize or otherwise guard an electric power circuitbefore allowing an 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 hazardsinvolved, and the protective measures to be taken. The violations allegedly occurred onApril 13, 1984, while four electricians were in the process of replacing a damaged cablein the RAD Waste Building at the Vogtle Nuclear Power Plant under construction atWaynesboro, Georgia.Cleveland is an electrical and mechanical contractor.It has the primary electrical 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 Building was damaged when aworker dragged a welding lead over the cable. A temporary repair was completed and adecision made to replace the cable at 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 four electricians wereto get the tools and materials together, de-energize the switch, remove the old cable, putin a new cable, terminate the wires and re-energize the switch. The repair was to be madeafter normal working hours since the cable had to be de- energized and there would be nolights or other power while they made the repair. The superintendent went over the jobwith the foreman and they decided what tools would be needed. The job was considered aroutine operation.The cable to be replaced was approximately 1? inchesin diameter and ran from a switchbox to a load center approximately 40 feet away. Theswitchbox was mounted on the wall in a narrow corridor.\u00a0 The top of the switchbox was39 inches above the floor of the corridor. The box was approximately 28 inches in height.A safety switch was located on the right side of the switchbox. When the switch is pulleddown, the electricity to the load cables is cut off. The box also contained three fuses.Four conductors enclosed in a conduit ran from a transformer outside the building into thetop portion of the switchbox (referred to as the \”line\” side). The damaged cableran from the bottom of the switchbox (referred to as the \”load\” side). Thecables were connected to the switchbox at the top and bottom by set screws or\”lugs.\”On the evening of April 13, 1984, Stansell pulleddown the switch on the switchbox to cut off the power to the \”load\” side, usedhis voltage tester to assure himself that the current had been cut off and then removedthe fuses from the switchbox. This cut off all power to the load cables. Electricalcurrent was still flowing into the top or \”line\” side of the switchbox. OnceStansell had assured himself that no electrical current was flowing to the\”load\” side, he and McCoy connected the far end of the new cable to the servicecenter. When they finished this task, McCoy and Stansell returned to the switchbox todetermine how Gill and Sutton were progressing with connecting the new cable to theswitchbox.As McCoy and Stansell approached the switchbox, theyobserved Sutton sitting on a small metal bucket in front of and facing the switchbox. Gillheld a six-volt lantern and handed Sutton the necessary tools. Sutton was attaching theleads of the new cable to the bottom left lug in the switchbox. During this process, anexplosion occurred.\u00a0ALLEGED VIOLATION OF 29 C.F.R. ? 1926.400(c)(1)The Secretary contends that Cleveland violated 29C.F.R. ? 1926.400(c)(1) for failure to de-energize or otherwise guard an electric powercircuit before allowing an employee to work near it. The basic facts are undisputed. Thetop portion of the switchbox (\”line\” side) was live at the time Sutton wasattaching the new cable to the bottom portion of the switchbox (\”load\” side).The \”load\” side had been de-energized. The Secretary argues that the\”line\” side should have been effectively insulated or de-energized prior toSutton working on the \”load\” side. There was a distance of approximately 13?inches between the 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 suchproximity to any part of an electrical power circuit that he may contact the same inthe course of his work unless the employee is protected against electric shock.\”(Underlining added.) The primary question involves whether Sutton, while working on the\”load\” side, was in such proximity to the \”line\” side that he mightnave contacted the live power circuit \”in the course of his work.\”Cleveland argues that the standard uses the\”term ‘proximity’ in a general way to describe a certain prohibited spacialrelationship between 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 reasonably prudent electricalcontractor to determine what proximity means when working near a live power circuit.Cleveland argues that \”[t]he standard of care required in the absence of actualknowledge is that of a ‘reasonably prudent [employer] familiar with the circumstances ofthe industry,’\” citing Cape and Vineyard Division v. OSHRC, 512 F.2d 1148,1152 (1st Cir. 1975); and B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1367(5th Cir. 1978).While the word \”proximity\”[[2\/]] used byitself does not connote a specific spacial relationship between an employee’s work and anelectric power circuit, the use of the words \”that he may contact. . .in the courseof his work\” assists in defining the meaning of \”proximity\” as used in thestandard. The standard, as a whole, is clear that an employee is not to be permitted towork in such proximity to any part of an electrical power circuit that he may contact thesame in the course of his work. A specific ascertainable standard of conduct is prescribedfor an employer. The only question for determination is whether Sutton could contact thelive part of the switchbox in the course of connecting the cable to the \”load\”side.Compliance Officer James W. Deaver, Jr., measured adistance of 39 inches from the floor of the corridor to the top of the switchbox. Suttonwas sitting on a small metal bucket approximately 12 inches high. He was facing the frontof the switchbox while he was attaching the leads of the new cable to the bottom left lugin the switchbox. The distance between the lugs for the \”line\” side and thosefor the \”load\” side was approximately 13? inches. As Sutton faced the switchboxand worked from his seat on the metal bucket, the live part of the switchbox was easilywithin his working area. McCoy, who was at the site and observed Sutton as he worked,conceded that the energized portion of the switchbox was within reach or contact by Sutton(Tr. 22).While the exact cause of the accident is unknown,Sutton was in such proximity to the live side of the switchbox that his beard and clotheswere engulfed in flames (Tr. 84). While there is no evidence that Sutton made contact withthe live parts of the switchbox, his work location was such that he easily could have madecontact. He could have contacted the live parts in the course of his work on the\”load\” side. The violation has been established.It is not necessary to resort to industry practice todetermine the meaning of the word \”proximity\” as used in ? 1926.400(c)(1). Thestandard is clear that \”proximity\” is used to refer to those instances where theemployee may make contact with an electric power circuit in the course of his work. If theemployee can make contact with the power circuit in the course of his work, the employermust de-energize the circuit and ground it or guard it by effective insulation or othermeans. The standard does not describe the expected standard of employer conduct innonspecific terms. The words \”such proximity\” must be read in context with thefull wording of the standard. Cleveland focuses only on the word \”proximity,\”which by itself does not prescribe an ascertainable standard of conduct.Either actual or constructive knowledge of theviolation must be established by the Secretary. See, e.g., ScheelConstruction 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 arguesthat the Secretary presented no evidence that Cleveland had knowledge of the hazard,either through its employees or its past experience with similar conditions. This argumentis without merit. Cleveland was fully aware of all the conditions under which the fouremployees were to perform the job. The fact it deems the procedure followed in replacingthe cable to be safe does not excuse it from complying with the standard.The evidence establishes that Cleveland hadinsulating blankets at the site that would have insulated Sutton from the energized\”line\” side of the switchbox. This means of protection would have been simpleand expedient.\u00a0ALLEGED 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 hazards involved and theprotective measures to be taken while replacing the cable. The standard requires anemployer to advise employees of the hazards involved and the protective measures to betaken when the employees’ work may bring them or their tools into physical or electricalcontact with any part of an electric power circuit, exposed or concealed.Sutton was working on the \”load\” side whilesitting on a bucket and facing the switchbox. He was in a position where he would contactan energized part in the course of his work. The superintendent went over the job with theforeman and decided what tools would be required to make the repair. McCoy could notrecall any instructions as to what precautions should be taken (Tr. 36). The projectmanager, James R. Blount, did not know if safety precautions had been discussed prior toworking on the switchbox (Tr. 98). The job was considered routine, and both McCoy andBlount were of the opinion that a craftsman working in a load center did not need to beinstructed as to how to perform the job or as to what safety precautions needed to betaken. The fact the job was considered routine does not excuse Cleveland from complyingwith the standard. The standard does not excuse employers from compliance when experiencedworkers are performing work on live electric power circuits where the performance of thework might bring the employee into contact with the circuit.The standard is specific in its requirements. Thereis no evidence that Cleveland complied with the provisions of the standard. Undoubtedly,Cleveland was of the opinion that work on a de-energized \”load\” side would notbring any employee into physical or electrical contact with the \”line\” side ofthe switchbox. Sutton was working within inches of the live circuit in a narrow corridorwith the only light being from a six-volt lantern being held by Gill. While the chances ofhis contacting the live circuit may have been remote, the standard was promulgated toprotect against the unexpected. The violation has been established.\u00a0NATURE OF VIOLATIONSThe Secretary alleges that the violations of 29C.F.R. ? 1926.400(c)(1) and 400(c)(2) were serious within the meaning of section 17(k) ofthe Act.[[4\/]] A violation is serious within the meaning of section 17(k) of the Act itthere is (1) a substantial probability that death or serious physical harm could resultfrom the violation, and (2) the employer knew or with the exercise of reasonable diligencecould have known of the presence of the violation.Cleveland had knowledge that the work was to beperformed without de-energizing or otherwise protecting the employees from exposure to the\”line\” side of the switchbox. Under their normal procedure, such work was to beperformed by de-energizing only the \”load\” side. Since Sutton was exposed to apossible shock of 460 volts, enough to electrocute him, the violations are deemed to beserious.\u00a0PENALTY DETERMINATIONThe violations were combined for purposes ofdetermining an appropriate penalty. While the Secretary proposes a penalty of $480, theCommission is the final arbiter of penalties in all contested cases. Secretary v. OSHRCand Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j)[[5\/]] ofthe Act, the Commission is required to find and give \”due consideration\” to thesize of the employer’s business, the gravity of the violation, the good faith or theemployer and the history of previous violations in determining the assessment of anappropriate penalty. The gravity of the offense is the principal factor to be considered. NaciremaOperating Co., Inc., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No.4, 1972).The gravity of the violation must be consideredserious since Sutton was working within inches of 460 volts of electricity while sittingon a metal bucket. The corridor was narrow and the work location was lighted with only asix-volt lantern. There is no evidence of previous citations and Cleveland’s good faithwas not questioned (Tr. 64). The company has over 2,000 employees (Tr. 64). A penalty of$460 is assessed for the violations.\u00a0FINDINGS OF FACT1. Cleveland Consolidated, Inc.(\”Cleveland\”), is an electrical and mechanical contractor. At times pertinent tothis action, it maintained a workplace at Vogtle Plant, River Road, Waynesboro, Georgia, aplant under construction for Georgia Power Company. Cleveland has the primary electricalcontract on the Plant Vogtle Project (Tr. 71, 101).2. On Friday, April 13, 1984, four electricians,Walter McCoy, William Stansell, Jerry Gill, and George Sutton, were assigned to replace adamaged cable which ran to the service or \”load\” center that provided electricalservice to the RAD Waste Building (Tr. 7-8, 9, 10, 75, 109, 110). Stansell was the foremanfor the job (Tr. 8, 109-110, 113).3. Gill was an apprentice electrician. Sutton, McCoyand Stansell were journeymen wiremen (Tr. 7, 75). McCoy has 36 years’ experience in theelectrical industry (Tr. 7). Stansell has worked as a journeyman electrician for 33 years(Tr. 114).4. The cable had been damaged on Thursday, April 12,1984, when a worker dragged a welding load over it. A temporary repair was completed onThursday and a decision made to replace the cable at the earliest occasion (Tr. 74).5. The superintendent, went over the job with theforeman and decided what tools would be required to make the repair (Tr. 75, 86). The fouremployees were to get the tools and materials together, de-energize the switch, remove theold cable, put in a new cable, terminate the wires and re-energize the switch (Tr. 76).The job was a routine operation (Tr. 77).6. The work was to be performed after normal workinghours since the cable ran to the load center that provided electrical power for thebuilding. The cable had to be de-energized for replacement. The cable furnished temporarypower for the lights and other power equipment which were being used in the constructionwork (Tr. 7-8, 11-12, 74-75).7. Four conductors enclosed in a conduit ran from atransformer mounted outside the building into the top portion of the switchbox (referredto as 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 and ran from a switchbox to the load center, which was approximately 40feet away. The switchbox was mounted on the wall in a narrow corridor, approximately oneto two feet above the floor (Ex. 8; Tr. 10, 18, 25, 76).9. The distance from the floor of the corridor to thetop of the switchbox was 39 inches (Tr. 59). The corridor was 28 inches wide (Tr. 61).10. The cable that was to be replaced ran from thebottom of the switchbox (referred to as the \”load\” side). The cables wereconnected to the switchbox at the top and bottom by set screws or \”lugs.\” Thedistance between the lugs for the line side and those for the load side was approximately13? inches (Tr. 59, 61, 76, 81).11. A brake handle or safety switch was located onthe right side of the switchbox. When the handle is pulled down, it cuts off theelectricity flowing into the load cables. The switchbox contained three fuses. Removingthe fuses from the switchbox prevented any power from flowing to the load cables (Tr. 14,42). It is normal procedure to remove the fuses as an additional precaution in the eventthe 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 fuses havebeen removed. Only the bottom part of the switchbox would be de-energized (Ex. 1; Tr.14-15, 34, 40, 41).12. After the damaged load cable was de-energized,Stansell and McCoy were to disconnect the side of the cable which ran into the servicearea of the building and connect the new cable. Sutton and Gill were assigned todisconnect the damaged load cable and connect the new cable to the switchbox (Tr. 13, 21).13. Stansell threw the switch on the switchbox, usedhis voltage tester to 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\” sideof the switchbox (Tr. 15, 43, 83). Stansell and McCoy then proceeded to the far end of thecable to disconnect it from the load center. They detached the old feeder cable andreattached the new cable (Tr. 13, 110, 111).14. When the switch or safety handle was pulled down,the flow of electricity to the load cable was stopped and the lights in the RAD WasterBuilding were cut off. The electricians had available and used six-volt lanterns tofurnish light to replace the cable (Tr. 15, 78).15. The bar of the safety switch, once pulled down tothe 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 farend of the new cable to the service center, they returned to the switchbox to determinehow Gill and Sutton were progressing with their work. Since the switchbox was locatedclose to the floor, Sutton sat upon a small metal bucket approximately 12 inches highwhile performing his job. Gill held and handed him necessary tools. Sutton was facing thefront of the switchbox as he worked to replace the cable (Tr. 13, 19, 20, 21-22, 25, 38).17. As McCoy and Stansell approached the switchbox,Sutton was attaching the 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 andattaching the new cable to the lugs, he was within arm’s length of the energized circuit(Tr. 22).19. During the time Sutton was inserting the newcable into the left lug, 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 tode-energize the entire 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-energizedby de-energizing the high voltage coming to the transformer (Tr. 29-30, 48-49). A buckettruck and hot stick were available at the site to assist in de-energizing the transformer(Tr. 30).22. Cleveland has insulating blankets at the sitethat would have insulated Sutton from the energized \”line\” side of the switchbox(Tr. 31-32).23. Plant Vogtle is one of the work sitesparticipating in the OSHA voluntary protection program known as the Star Program (Tr.65-66).\u00a0CONCLUSIONS OF LAW1. Cleveland, at all time material hereto, wasengaged in a business affecting commerce the meaning of section 3(5) of the Act.2. Cleveland, at all times material hereto, wassubject to the requirements 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 towork in such proximity to a live power circuit that he could have contacted the same inthe course of his work. The live circuit was not de-energized and grounded, guarded byinsulation or protected by other means. The work condition was in violation of 29 C.F.R.? 1926.400(c)(1).4. On April 13, 1984, the employees engaged in acable repair were not specifically advised of the hazards involved and the protectivemeasures to be taken to protect them from a live \”line\” side power circuit whilereplacing a cable on the \”load\” side of a switchbox. The work condition was inviolation of 29 C.F.R. ? 1926.400(c)(2).5. The violations of 29 C.F.R. ? 1926.400(c)(1) and29 C.F.R. ? 1926.400(c)(2) were serious since the employee was working within inches of460 volts of electricity.6. A penalty of $480 is determined to be appropriatefor the violations.\u00a0ORDERBased upon the foregoing findings of fact andconclusions of law, it is ORDERED: That the serious citation and proposed penalty issued to Cleveland on June18, 1984, are affirmed.Dated this 11th day of February, 1985.JAMES D. BURROUGHSJudgeFOOTNOTES: [[1]] There is no evidence that the explosion was theresult of contact of Sutton with any energized parts of the switchbox. Cleveland’s projectmanager Blount testified that there was no electric shock or burnt tool, and that theexplosion was caused by a fault or short circuit in the line side of the switchbox.However, the cause of an accident, and particularly whether a violation of a standardcaused an accident, is not necessarily relevant to whether an employer violated aregulation. See, e.g., Towne Construction Co., 86 OSAHRC ____, 12 BNAOSHC 2185, 2188 n.7, 1986 CCH OSHD ? 27,760, p. 36,310 n.7 (No. 83-1262, 1986) (relevantissue is not what caused an accident, but whether OSHA standard was violated), and casescited. The circumstances of an accident may, however, provide probative evidence ofwhether a standard was violated. See generally Concrete ConstructionCorp., 76 OSAHRC 47\/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 with what it showsabout Sutton’s proximity to the switchbox.[[2]] Cf. Phelps Dodge Corp., 83 OSAHRC29\/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 which they appear than theabstract generalizations of a dictionary. It does not follow that a standard is ambiguoussimply because a word in a standard is ambiguous. If, as here, the context and structureof the standard clearly indicate that a critical word was used in a particular sense, thestandard is not ambiguous.[[3]]See Research Cottrell, Inc., 81OSAHRC 26\/B13, 9 BNA OSHC 1489, 1497, 1981 CCH OSHD ? 25,284, p. 31,263 (No. 11756, 1981)(standard unequivocal; reasonable person test unnecessary); Faultless Division v.Secretary of Labor, 674 F.2d 1177, 1186-87 (7th Cir. 1982) (industry practice shouldnot 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, 583 F.2d 1364(5th Cir. 1978), and other decisions which are precedent in the Eleventh Circuit (formerlypart of the Firth Circuit) where Cleveland is located. The B & B court heldthat when a standard fails to state the required protection in specific terms, thestandard would be unenforceably vague unless it were read to require only those protectivemeasures that the employer’s industry would deem appropriate under the circumstances. Id.at 1367. However, that holding was limited to such vague standards, for the court pointedout that the Secretary could promulgate specifically-worded standards to imposerequirements more stringent than those customarily followed in industry. Id. at1371-72. We also note that the Fifth Circuit has held that other standards weresufficiently specific without the need for reference to industry practice. DeeringMilliken, Inc. v. OSHRC, 630 F.2d 1094, 1103-05 (5th Cir. 1980) (any vagueness in aircontaminant standard is dispelled by its history, legislative intent, and the Secretary’senforcement posture); Austin Commercial v. OSHRC, 610 F.2d 200, 201 (5th Cir. 1979)(plain words of materials-handling regulation give employer fair warning). Accordingly,because ? 1926.400(c)(1) is a specific standard, it is not necessary under B & B,and other decisions that are precedent in the Eleventh Circuit, to refer to industrypractice.[[4]] The Fifth Circuit has held that, even if a\”reasonable person test\” otherwise would be required to cure a standard ofvagueness, the problem of fair notice does not exist where an employer has actualknowledge that its work practice is hazardous. Owens Corning Fiberglass Corp. v.Donovan, 659 F.2d 1285, 1288 (5th Cir. 1981). In response to that holding in OwensCorning, Cleveland argues that it lacked actual knowledge that its work procedureswere hazardous, while the Secretary argues that Cleveland and had such actual knowledge.We find it unnecessary 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 mustbe established in all 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 to establish the element ofemployer knowledge, as discussed in Sasser and other cases. Cleveland’s argumentthat it lacked actual knowledge that its work procedures were hazardous pertains to itsvagueness argument. That argument may have been intended, however, to also encompass thebroader issue of employer knowledge. We therefore discuss the matter here.[[1\/]] Section 1926.400(c)(1) provides: (c) Protection of employees. (1) No employer shall permit an employee to workin such proximity to any part of an electric power circuit that he may contact the same inthe course of his work unless the employee is protected against electric shock byde-energizing the circuit and grounding it or by guarding it by effective insulation orother means. In work areas where the exact location of underground electric power lines isunknown, workmen using jack-hammers, bars, or other hand tools which may contact a lineshall be provided with insulated protective gloves.[[2\/]] The term \”proximity\” is defined by Webster’sThird New International 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 direct observation, or byinstruments, whether any part of an electric power circuit, exposed or concealed, is solocated that the performance of the work may bring any person, tool, or machine intophysical or electrical contact therewith. The employer shall post and maintain properwarning signs where such a circuit exists. He shall advise his employees of the locationof such lines, the hazards, involved and the protective measures to be taken.[[4\/]] Section 17(k) states: For purposes of this section, a serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physical harm couldresult from a condition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.[[5\/]] Section 17(j) of the Act provides:The Commission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of the previous violations.”