“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16317 DRAVO CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 9, 1980DECISIONBEFORECLEARY, Chairman; and BARNAKO, Commissioner.*BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Donald K. Duvall is before the Commissionfor review pursuant to section 12(j) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ??\u00a0651-678, ? 661(i) (?the Act?).[1] Judge Duvall held thatDravo Corporation (?Dravo?) committed two violations of section 5(a)(2) of theAct, 29 U.S.C. ? 654(a)(2): a serious violation for failing to comply with thestandard at 29 C.F.R. ? 1916.31(b)(1) and a repeat violation for failing tocomply with the standard at 29 C.F.R. ? 1916.51(a). Penalties of $700 and $250,respectively, were assessed.??????????? TheCommission agrees with the judge?s conclusion that Dravo committed a seriousviolation of the Act by failing to comply with section 1916.31(b)(1) and alsoaffirms the judge?s assessment of a $700 penalty for that violation. However,having reviewed the entire record, the Commission members are divided on theappropriate disposition of the citation for repeated violation of section1916.51(a) and the $250 penalty assessed by the judge for that violation. Inview of the statutory purpose of expeditious adjudication, the members agree toresolve their impasse by affirming the judge?s order. That part of the judge?sdecision and order affirming the citation for repeated violation of section1916.51(a) and assessing a penalty of $250 for that violation is accorded theprecedential value of an unreviewed judge?s decision. Sun Petroleum ProductsCo., 79 OSAHRC ??, 7 BNA OSHC 1306, 1979 CCH OSHD ? 23,502 (No. 76-3749,1979), appeal filed, No. 79-1828 (3d Cir. June 26, 1979); LifeScience Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD?22,313 (No. 14910, 1977), aff?d, 591 F.2d 991 (4th Cir. 1979).I??????????? Duringan inspection of Dravo?s shipyard near Pittsburgh, Pennsylvania, a complianceofficer for the Occupational Safety and Health Administration observed anemployee emerge from a deck hatch on a barge under construction. The employeehad been making welding repairs in the rake, a compartment at the sloped bow ofthe barge, for four hours.[2] The rake is 54 feet wide,38 feet long, and 2 to 10 feet high, and has a volume of 14,570 cubic feet. The15-inch by 23-inch oval hatch from which the welder was seen emerging is thesole opening in the rake. Blue smoke filled the rake while the welder wasinside. No artificial ventilation was provided.??????????? Dravowas cited for failing to provide either general mechanical or local exhaustventilation required by section 1916.31(b)(1) (?the ventilation standard?).[3] Dravo raises the followingcontentions in its defense:(1) The rake is not a ?confined space?;?(2) The ventilation standard isunenforceable because the phrase ?confined space? is vague and uninformative;?(3) An element of proof of a failure to complywith the ventilation standard is the presence of air contaminants beyond safelimits;?(4) There is no evidence that the air inthe rake was contaminated beyond safe limits; and?(5) The violation, if any, was notserious.\u00a0??????????? Aconfined space is. . . a compartment of small size andlimited access such as a double bottom tank, cofferdam, or other space which byits small size and confined nature can readily create or aggravate a hazardousexposure.?29 C.F.R. ? 1916.2(m). Three witnesses with extensiveexperience in maritime safety?compliance officer George Reed,[4] senior maritime complianceofficer William Draper,[5] and Acting Area DirectorLeo Carey[6]?testified that the rake onDravo?s barge created the possibility of a hazardous exposure because the rakeis small, has limited access, and lacks natural ventilation to remove weldingfumes.[7] Dravo?s chief maritimeengineer, Cornelis Van Mook, testified that the rake is an enclosed space, nota confined space, because it is closer in size to the examples given in thedefinition of enclosed space.[8] The judge credited thetestimony of the Secretary?s witnesses because they possess expertise inmaritime safety while Van Mook does not. He concluded that the Secretary?scontention that the rake ?falls within the definition of ?confined space? issupported credible testimonial evidence of the relatively small size of thespace . . ., the very limited access to the space . . ., [and] the generationand accumulation of smoke and fumes from the burning welding rods in the spaceduring the welder?s normal working hours?; this evidence and the evidence as tothe contaminants emitted from the welding rods ?indicate that such a space, inthe circumstances of this case, could readily create or aggravate a hazardousexposure.? Dravo argues that Van Mook?s testimony should be credited over thetestimony of the other witnesses because they necessarily are prejudiced infavor of the position of their employer?the Secretary?and they expressedsomewhat differing opinions of the application of the ventilation standard toconditions other than those on Dravo?s barge.??????????? Weconclude that the judge?s finding that the rake on Dravo?s barge is a confinedspace is supported by a preponderance of the evidence. Accordingly, we rejectDravo?s exceptions to that finding. In particular, we conclude that JudgeDuvall did not err in relying on the expert opinion testimony of theSecretary?s witnesses or in discrediting the testimony of Van Mook. We notethat Van Mook testified that he is not qualified to decide if a compartmentreadily can create or aggravate a hazardous exposure and that his testimony wasbased exclusively on a comparison of the size of the rake and the compartmentslisted in subsections 1916.2(m) and (n).[9] Moreover, the argumentthat we should discredit the testimony of the Secretary?s witnesses because oftheir employment status applies with equal force to Van Mook?s testimony.Finally, disagreement over the scope of the application of the ventilationstandard is not a sufficient reason to discredit the witnesses? uniformtestimony with respect to the standard?s application in this case.??????????? Additionalevidence supports the judge?s finding. The welder in the rake had been providedwith ventilation equipment when he worked on Dravo?s towboats, and he attemptedto obtain ventilating equipment before beginning this project. The foreman ofthe welder called to him periodically during the welding to check on hiscondition. Furthermore, we note that the general industry standard at 29 C.F.R.? 1910.252(f)(2)(i) requires mechanical ventilation when welding is done in aroom less than 16 feet high. (The rake is 2 to 10 feet high.) The evidence andthe general industry standard set forth above support the testimony of theSecretary?s witnesses that welding in an area like the rake creates thepotential for a hazardous exposure. We therefore adopt the judge?s finding thatthe rake is a confined space.??????????? Dravoargues that the phrase ?confined space? is vague because an employernecessarily must guess as to the meaning and differ as to the application ofthe phrases ?small size,? ?confined nature,? and ?can readily create oraggravate a hazardous exposure.? See 29 C.F.R. ?\u00a01916.2(m), quoted supra.Dravo claims support from the fact that the Secretary?s witnesses differed asto whether certain spaces are confined. Finally, the meaning of confined spaceis even more uncertain, Dravo claims, when viewed in light of the definition ofenclosed space. See note 8 supra.??????????? Thedefinition of confined space is not as perplexing as Dravo suggests. When readtogether, subsections 1916.2(m) and (n) inform employers that any below-deckspace on a vessel is either confined or enclosed. Furthermore, the definitionsgive examples of each type of space. Thus, the definitions give employersconsiderable guidance in distinguishing a confined space from an enclosedspace.??????????? AsJudge Duvall noted,[t]he range and variety . . . ofcompartments in the various types of vessels constructed or repaired inAmerican shipyards . . . and the diversity of working conditions affecting thebreathable air in such compartments . . . make the drafting of . . . [aventilation standard] with exactitude most difficult.???????????? Accordingly,the ventilation standard necessarily includes some broad terms. This does notrender the standard unenforceably vague. Instead, it means that an employermust read it in light of the conduct to which it applies and guide his actionsaccordingly. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337(1952); Brennan v. OSHRC (Santa Fe Trail Transport Co.), 505 F.2d 869(10th Cir. 1974).??????????? Wheneveran employer cannot determine whether a space is confined or enclosed from theexamples given in the definitions, the employer must use his experience,knowledge, and judgment to decide whether the hazard at which the standard isdirected is increased by the size and configuration of the space. A standard isnot vague simply because its application requires the exercise of judgment.[10] See, e.g., Allis-ChalmersCorp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976); M-Co EquipmentCompany, Inc., 75 OSAHRC 37\/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD ? 19,394(No. 3811, 1975). For further guidance, if necessary, the employer can look toother standards or to industry custom and practice. Modern AutomotiveService, Inc., 74 OSAHRC 9\/A11, 1 BNA OSHC 1544, 1973-74 CCH OSHD ?17,369(No. 1541, 1974). The employer is not required to simply ?guess? at what thedefinition means.??????????? Finally,we agree with Judge Duvall?s statement that, ?[i]n any event, the appropriatetest in this case is whether a reasonably prudent man familiar with the [11]circumstances of theshipbuilding industry would have protected against the hazard.?[12] We also agree with hisdetermination that such a person would have provided protection against thehazard at Dravo?s workplace.[13]??????????? Accordingly,for all of the reasons stated, we reject Dravo?s contention that 29 C.F.R. ?\u00a01916.31(b)(1)is unenforceably vague.??????????? Dravooffers two reasons to support the contention that the ventilation standard, 29C.F.R. ? 1916.31(b)(1), imposes on the Secretary the burden of proving thatwelding fumes and smoke in a confined space exceeded safe limits. First, ahazardous exposure must be shown to have existed because a confined space isone that readily creates or aggravates a hazardous exposure. Second, theventilation standard incorporates by reference the requirement of subsection1916.31(a) that ventilative be of sufficient capacity to keep fumes and smokewithin safe limits. Accordingly, ?. . . 29 C.F.R. 1916.31(b)(1) does notrequire mechanical ventilation unless welding fumes and smoke are beyondsafe limits? (emphasis supplied by Dravo). Dravo claims that its incorporationby reference argument is supported by the Commission opinion in BethlehemFabricators, Inc., 76 OSAHRC 62\/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD?20,782 (No. 7176, 1976). Dravo poses the following hypotheticals if thisburden is not placed on the Secretary: striking a welding arc for one second ina confined space, and striking an arc in a confined space with sufficientnatural ventilation to keep fumes within safe limits, would be violations. Itimplicitly argues that these results would be unreasonable.??????????? JudgeDuvall rejected Dravo?s contention on the ground that the standard ispreventive in nature. We agree. A confined space differs from other spaces byits potential for creating or aggravating a hazardous exposure, not, as Dravostates, by the actual creation or aggravation of such an exposure. This isclear from the express language of the definition: ?. . . space which by itssmall size and confined nature can readily create or aggravate ahazardous exposure? (emphasis added). Ventilation is required when weldingbegins in order to prevent injuries that might occur if an employer werepermitted and decided to withhold ventilation until excessive fumes and smokewere predicted or discovered and the prediction were faulty or the discoveryuntimely. Cf. Marshall v. Western Electric, Inc., 565 F.2d 240, 244-245(2d Cir. 1977) (testing for presence of vinyl chloride required if it isreleased during work operation, not only when there is a ?reliable prediction?of presence of excessive quantities).??????????? Theventilation standard does refer to subsection 1916.31(a). The requirements of astandard to which reference is made in another standard are not, however,incorporated automatically into the latter standard. See, e.g., WisconsinElectric Power Company, 76 OSAHRC 134\/B2, 4 BNA OSHC 1783, 1976-77 CCH OSHD? 21,234 (No. 5209, 1976), aff?d, 567 F.2d 735 (7th Cir. 1977).Reference in the ventilation standard to subsection 1916.31(a) is limited tonoting that the ventilation provided pursuant to the standard must perform asrequired by the subsection. The Bethlehem Fabricators opinion offers no supportto Dravo?s incorporation argument. The Commission recently overruled thatopinion in Westinghouse Electric Corporation, 79 OSAHRC ??, 7 BNA OSHC1318, 1979 CCH OSHD ?23,542 (No. 13955, 1979), appeal docketed, No.79-1556 (7th Cir. May 24, 1979).??????????? Finally,Dravo?s hypotheticals do not persuade us to reverse the judge. Dravo is correctthat welding in a confined space for even a moment would constitute a failureto comply with the ventilation standard if artificial ventilation were notpresent. The Act provides for this type of violation: the violation would be deminimis under section 9(a) of the Act. Penalties are not assessed and abatementrequirements are not imposed for de minimis violations. E.g., CombustionEngineering, Inc., 77 OSAHRC 182\/A2, 5 BNA OSHC 1943, 1977-78 CCH OSHD ? 22,241(No. 76-2210, 1977). As to the second hypothetical, if sufficient naturalventilation is present in a space to prevent the accumulation of aircontaminants, the space is not one in which a hazardous exposure could becreated. Thus, the space would not be classified as ?confined? and a failure tocomply with the ventilation standard could not be found. Dravo?s contentionthat the Secretary must prove the presence of unsafe levels of air contaminantsis therefore rejected. Dravo?s fourth contention?that the Secretary failed toestablish the presence of air contaminants beyond safe limits?is thereforeirrelevant.??????????? Dravoalso takes exception to Judge Duvall?s conclusion that its failure to complywith the ventilation standard was a serious violation of the Act.[14] Compliance officer Reedtestified that he recommended to his area director that Dravo?s allegednoncompliance with section 1916.31(b)(1) be classified as a serious violation.He based this recommendation on the concentration of welding fumes he observedrising from the hatch, which concentration he described as a ?steady flow,? andon the welder?s statement as to the length of time he had been in the rake. InReed?s view, these factors created a ?very serious likelihood that he [thewelder] would not have enough breathable air.? Reed conceded that he did notenter the rake and that he took no measurements or tests to determine eitherthe concentration or the composition of the welding fumes.??????????? Basedon the record evidence as to the size and configuration of the rake and thetestimony concerning the welding operation, Draper stated that the atmosphericconditions inside the rake were such that the air was moving from inside thecompartment to the outside with little, if any, replacement air coming back in.Thus, there was no natural ventilation in the rake. Draper further testifiedthat these conditions could cause death due to oxygen deficiency. Oncross-examination, Draper asserted that, despite the absence of any atmospherictests, the evidence he had seen and heard provided a sufficient basis for hisconclusions.??????????? Careyalso testified that the conditions created the possibility of death or seriousphysical harm due to oxygen deficiency. Because the welding process itselfproduces oxides, that is, chemical compounds composed in part of oxygen drawnfrom the surrounding air, and because ?based on my experience with confinedspaces . . . I would consider that natural ventilation was not adequate torestore oxygen that was used up in the process,? Carey concluded that thepotential for an oxygen deficient atmosphere was present in the rake. Hefurther testified that ?the fact that similar operations in confined spaces has[sic] created oxygen deficiencies . . . is a matter of general agreement amongthe community in safety and health.? He conceded, however, that he could notknow, in the absence of atmospheric testing, the degree of oxygen deficiency inthe rake or whether an oxygen deficiency had occurred at the time of theinspection.??????????? Inaddition, Carey testified that the welding operation at issue created apotential for exposure to ferric or ferrous oxides (iron oxides), manganeseoxides, carbon monoxide, carbon dioxide, nitrogen oxide and ozone. He basedthis testimony on information supplied by the manufacturer of the welding rodsused in the welding operation in question and on his own experience as anindustrial hygienist in evaluating similar welding operations. Carey statedthat iron oxides, manganese oxides, and carbon dioxide are ?decompositionproducts? generated as a result of welding with the type of rods that were usedat the time of the inspection. He further testified that the welding arcproduces energy in the form of ultra-violet radiation and that this energy inturn causes nitrogen oxides and ozone to form in the surrounding atmosphere. Oncross-examination, Carey admitted that he did not know the amount of any ofthese contaminants that was present in the rake at the time of the inspection.However, he asserted that there was only a ?remote? possibility that the welderwas not exposed to the contaminants at any level. He also noted that, becauseof the confined nature of the rake and the lack of ventilation, contaminantsgenerated by the welding process were not removed from the rake, with theexception of those contaminants that went out through the hatch.??????????? Careyfurther testified as to the potential consequences of exposure to thecontaminants he had listed. He stated that exposure to carbon monoxide canresult in permanent brain damage or death by asphyxiation. Exposure to carbondioxide or ozone can result in permanent impairment of the respiratory system.Moreover, exposure to manganese oxides can permanently affect the nervoussystem, while exposure to nitrogen oxides can result in death due to pulmonaryedema (a release of fluids into the lungs). Carey conceded that, with respectto each of these contaminants, whether exposure in fact results in death orserious physical harm depends on the concentration of the contaminant in theatmosphere and that he did not know what those concentrations were at the timeof the inspection.??????????? JudgeDuvall stated that the ?unrebutted credible testimony? of Draper and Careyestablished that serious injury or death ?could result from exposure to theviolative condition.? He found that exposure to the contaminants emitted by theburning welding rods ?results in serious hazards, such as the possibility ofpermanent damage to the nervous system (manganese oxide), discomfort torespiratory system (nitrogen dioxide), collapse and\/or death due to oxygendeficiency (carbon monoxide).? Accordingly, he concluded that Dravo?s failureto comply with section 1916.31(b)(1) was a serious violation of the Act?because if the potential hazard of oxygen deficiency and\/or air contaminationwhen welding in an unventilated confined space became actual or actuallyoccurred, there is a substantial probability that death or serious physicalharm could result to the welder thus exposed. . . .???????????? Dravoargues that the judge erred because the evidence is insufficient to support hisconclusion that the violation was serious. Citing Carey?s concession that theconcentration of contaminants in the atmosphere of the rake would determinewhether death or serious physical injury actually occurred, it emphasizes thefact that tests of the atmosphere were taken. It also emphasizes evidenceindicating that the welder?s exposure to the welding smoke and fumes wasrelatively limited. Dravo asserts that the Secretary?s witnesses ?simply neverwent beyond what hazards might be possible? to establish ?a substantialprobability that death or serious physical harm could result from the conditionsfound at the time of the inspection.???????????? We donot agree. For a violation to be serious within the meaning of the Act, therecord must establish that there was a substantial probability that death orserious physical harm could result if an accident occurred. The probability ofthe accident occurring is irrelevant. Niagara Mohawk Power Corp., 79OSAHRC ??, 7 BNA OSHC 1447, 1979 CCH OSHD ? 23,670 (No. 76-2414, 1979). Herethe record establishes a likelihood that various hazardous contaminants were inthe atmosphere as a natural consequence of the welding operation beingperformed. It also establishes that there was not sufficient ventilation in therake to remove the contaminants or to prevent the accumulation of an increasingconcentration of the contaminants as the welding progressed. In addition, therecord establishes the possibility that an oxygen deficient atmosphere woulddevelop in the rake. Finally, the record supports Judge Duvall?s conclusionthat there was a substantial probability that death or serious physical harmcould result if an oxygen deficiency or sufficiently contaminated atmosphereactually were created. Accordingly we affirm the judge?s conclusion thatDravo?s failure to comply with section 1916.31(b)(1) was a serious violation ofthe Act.[15]We also affirm his conclusion that a penalty of $700 is appropriate in light ofthe statutory criteria specified in section 17(j) of the Act.II??????????? Approximately15 Dravo employees were working on the deck of a towboat under constructionwhen it was inspected. Numerous houses and lines[16] were scattered around thedeck, including in front of the stairway that provided the only means of accessto the boat. As stated above, the judge concluded that these conditions werenot in compliance with section 1916.51(a) (?the housekeeping standard?) andthat the violation was repeated.[17] Dravo raises thefollowing arguments in opposition to the judge?s conclusions:[18]1. The presence of the hoses and lines onthe boat was not forbidden by the housekeeping standard because it provides anexception for hoses and lines that are in use and Dravo?s were used constantly;?2. Compliance was impossible; and?3. The Secretary has not proven that thealleged violation was a repeated one.???????????? Most,if not all, of the hoses and lines on the towboat were being used when it wasinspected. The judge nonetheless concluded that the conditions did not fallwithin the ?in use? exception. He interpreted the standard to require thathoses and lines be maintained as neatly as possible without interfering withtheir use. We agree with the judge?s conclusion, but not his reasoning. The ?inuse? exception does not apply to hoses and lines. See FMC Corp., 79OSAHRC ??, 7 BNA OSHC 1419, 1420, 1979 CCH OSHD ?23,631 at p. 28,656 (No.12311, 1979). Under the express terms of the standard, separate and independentrequirements are established with respect to (a) ?tools, materials, andequipment? and (b) ?hose and electric conductors.? See note 17 supra. The ?inuse? exception is contained in the former provision and applies only to tools,materials and equipment that are in use. The provision relating to hoses andlines, which is the requirement at issue in this case, contains no exceptionfor hoses and lines that are in use. Dravo?s first contention is rejected.??????????? Thepresence of hoses and lines on the decks of vessels under construction is aninherent problem in the shipbuilding industry. All witnesses testified that alllines and hoses could not have been eliminated from the deck of Dravo?s boat.Even if full compliance with a standard is not possible, however, an employermust provide all the protection that is possible. M.J. Lee Construction Co.,79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1146-1147, 1979 CCH OSHD ?\u00a023,330 at p.28,230 (No. 15094, 1979). See also, Sletten Construction Co., 77 OSAHRC200\/F8, 6 BNA OSHC 1091, 1977-78 CCH OSHD ?22,349 (No. 11028, 1977); SomogyiConstruction Co., Inc., 77 OSAHRC 192\/E8, 5 BNA OSHC 2065, 1977-78 CCH OSHD?22,319 (No. 76-3020, 1977). In order to establish an impossibility defense, anemployer must prove that (1) compliance with the standard was functionallyimpossible or would have precluded performance of necessary work and (2)alternative means of employee protection were used or unavailable. M.J. LeeConstruction Co., supra.??????????? Complianceofficer Draper testified that the number of tripping hazards on the deck of thetowboat could have been reduced substantially, by as much as 75 percent, if acombination of the following available abatement methods had been implemented. Hosesand lines could have been suspended above a working surface on cable trees andchanneled in raceway troughs. Cross-over plates could have been placed overindividual or groups of cables. Indeed, a plate was placed over the lines atthe access stairway of the boat after the inspection. A grid manifold systemconsisting of one large power source feeding several temporary manifolds placedabout the working surface would have permitted employees to use short, neatlyarranged hoses and lines because of easy access to the temporary power outletsrather than long (up to two-thirds of the length of the boat) and tangled hosesand lines observed on the boat. Finally, the hoses and lines could have beenpushed against the side of the deck house. Draper testified that he had seenvarious combinations of these abatement methods used on towboats at the samestage of construction as Dravo?s.[19]??????????? Dravo?sinterpretation of the impossibility defense is best characterized as ?all ornothing,? i.e., the defense is established if the hazards that existed couldnot have been eliminated completely. For example, Dravo?s boatyardsuperintendent testified that cable trees would not have eliminated hoses andlines from the deck because part of each still would come down to the deck whenin use, and that the number of cross-over plates necessary to cover all hosesand lines would be so great as to cover the entire deck, making it uneven andcreating tripping hazards.[20] Dravo?s general hullstructural superintendent testified that use of a manifold grid system mightreduce the length of the hoses and lines, but would not eliminate them from thedeck, and that a linesman would reduce the tripping hazards but only at animpractical cost. Dravo?s interpretation of the impossibility defense, and theevidence relied upon to prove that the defense as interpretated by Dravo hasbeen established, is inconsistent with Commission precedent cited above.Moreover, at no point does Dravo or its witnesses consider the efficacy ofcombining abatement methods as suggested by Draper. We therefore agree with thejudge?s finding that use of a combination of abatement methods would haveimproved the conditions on Dravo?s boat substantially.[21]??????????? JudgeDuvall concluded that Dravo?s failure to comply with the housekeeping standardis a repeat violation. He relied on the Third Circuit?s position in BethlehemSteel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), that the test of whethera violation is repeated is whether the employer ?flaunted? the Act. Dravoargues that the judge used the proper test, but applied it improperly. There isno need to review the judge?s application of a flaunting test, however, becausethe Commission adopted a different test subsequent to the judge?s decision.[22]??????????? TheCommission held in Potlatch Corporation, 79 OSAHRC 6\/A2, 7 BNA OSHC1061, 1063, 1979 CCH OSHD ?23,294 at p. 28,171 (No. 16183, 1979), that,[a] violation is repeated under section17(a) of the Act if, at the time of the alleged violation, there was aCommission final order against the same employer for a substantially similarviolation.???????????? ChairmanCleary and Commissioner Barnako do not agree on the proof necessary for a primafacie showing that a prior and present violation of the same standard aresubstantially similar.[23] The Chairman requires theSecretary to prove only that the prior and present violations involve the samestandard. An employer can then rebut this showing with evidence that thehazards and conditions involved in the prior violation were significantlydifferent from those in the present violation. Commissioner Barnako does notpresume that a violation of the same standard fulfills the substantialsimilarity requirement and shifts the burden to the employer to proveotherwise. Instead he looks to whether the second violation is of such a naturethat the employer, as a result of the notice provided by the first citation,should have taken steps to eliminate from its workplace the condition allegedlyconstituting a repeated violation. Where such notice is not apparent from theface of the first citation, Commissioner Barnako requires the Secretary toprove substantial similarity by other means. In addition, once substantialsimilarity is established, Commissioner Barnako permits the employer to defendagainst a repeated charge by proving that it took reasonable, good faith stepsafter entry of a prior final order to prevent the recurrence of a substantiallysimilar violation. See generally, Stearns-Roger Inc., 79 OSAHRC ??, 7BNA OSHC ??, 1979 CCH OSHD ?24,008 (No. 76-2326, October 31, 1979) (concurringopinion).??????????? Theparties stipulated that three citations alleging failures to comply with thehousekeeping standard became final orders of the Commission before issuance ofthe citation in this case. The prior citations had become final orders undersection 10(a) of the Act because they were not contested by Dravo. There is nofurther evidence about the prior violations. Chairman Cleary would hold thatthe final orders alone establish a prima facie showing of a repeat violation.In addition, he would hold that it is obvious that the prior violations of thesame housekeeping standard involved similar hazards and that there are nopossible dissimilarities of circumstances that Dravo could prove that wouldrebut the Secretary?s prima facie case. Accordingly, he would affirm thejudge?s conclusion that Dravo?s failure to comply with 29 C.F.R. ? 1916.51(a)was a repeated violation of the Act. See Stearns-Roger Inc., supra, 7BNA OSHC at ??, 1979 CCH OSHD at p. 29,159. See also, Todd Shipyards Corp.v. Secretary of Labor and O.S.H.R.C., 566 F.2d 1327 (9th Cir. 1977).??????????? CommissionerBarnako would hold that the Secretary has not established a prima facie casebecause of the absence of evidence of the hazards and conditions that gave riseto the citations that were not contested. He notes that the Commission haspreviously held that ?[t]he several requirements of ? 1916.51(a) each createindependent abatement responsibilities.? FMC Corp., supra, 7 BNA OSHC at1421, 1979 CCH OSHD at p. 28,656. Accordingly, it cannot be assumed that theprior citations, which have not been introduced into evidence, placed Dravo onnotice that it should take steps to eliminate from its workplace the hazardcreated by hoses and electric conductors. See Automatic Sprinkler Corp. ofAmerica, 79 OSAHRC ??, 7 BNA OSHC 1957, 1979 CCH OSHD ? 24,076 (No.76-5271, 1979) (concurring in part and dissenting in part) (citation forrepeated violation vacated where cited standard applies to two distinctsituations and first citation did not involve same or substantially similarconditions as repeated allegation). Nor has the Secretary otherwise establishedthat the prior violations were substantially similar to the present violation.Commissioner Barnako would remand the case, however, to permit the Secretary afurther opportunity to present evidence on this issue and, if necessary, topermit Dravo to present rebuttal evidence. In addition, he would permit Dravoto raise the affirmative defense that it took reasonable good faith steps afterentry of the prior final orders to prevent the recurrence of a substantiallysimilar violation.[24] If the defense wereraised, Commissioner Barnako would permit the parties to introduce evidencerelevant to the defense.??????????? Accordingly,the decision and order of the administrative law judge, as modified by hisdecision, is AFFIRMED.?It is so ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 9, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16317 DRAVO CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 12, 1976APPEARANCESMarshall H. Harris, Regional SolicitorRegina Kossek, Esquire U.S. Department of Labor, Philadelphia, Pa. ForComplainant\u00a0Thorp, Reed & Armstrong Pittsburgh,Pa. By Carl H. Hellerstedt, Jr., Esq. For Respondent\u00a0Gatz, Cohen, Segal & KoenerPittsburgh, Pa. By Christopher Lepore, Esq. For Respondent?s Affected Employees?DECISION AND ORDER??????????? Thisis a proceeding under section 10 of the Occupational Safety and Health Act of1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as theAct) contesting an alleged serious violation and an alleged repeated violationcontained in two citations, and the proposed penalties pertinent thereto,issued by complainant to respondent, a river craft manufacturer, under section9(a) of the Act.??????????? Specifically,in Citation Number 5, as amended at the hearing in this matter held on April 6,1976, at Pittsburgh, Pennsylvania, a repeated violation of the standard setforth at 29 CFR 1916.51(a) is alleged in that on hull #6613, located inrespondent?s shipbuilding yard at Neville Island, Pennsylvania, hoses andelectric conductors were not elevated or placed under the walkway or working surfaceor covered by adequate crossover plank on November 14, 1975, the date of anOSHA inspection of respondent?s shipyard. The parties stipulated that there hadbeen three previous citations issued to respondent for violations of the sameaforestated standard which had become final orders (Tr. 15). A penalty of $270was proposed for this alleged repeat violation.??????????? CitationNumber 2 alleged a serious violation of the standard set forth at 29 CFR1916.31(b)(1) in that, at the down river end of barge S.F.1. 41 Boat FittingDock, neither general mechanical nor local exhaust ventilation was providedduring 4 hours of welding done in a confined space on November 14, 1975. Apenalty of $900 was proposed for this alleged serious violation.??????????? Byway of defense, respondent claims that, respecting the alleged housekeepingviolation, it was impracticable to raise or cover the hoses and electricconductors cited in Citation Number 5 by reason of the nature of thefabrication process on the towboat then under construction; that the hazard, ifany, was minimal, and that if any violation occurred it was not a repeatedviolation since it did not flaunt the Act.??????????? Asfor Citation Number 2, respondent claims (1) that no violation has been provedbecause of lack of proof of a concentration of fumes in the alleged confinedspace in excess of the safe (permissible) limits prescribed in the ThresholdLimit Values of the American Conference of Governmental Industrial Hygienists(see 29 CFR 1916.5 and 1916.21(b)); (2) that the space in which the citedwelding was being performed was an enclosed rather than a confined space withinthe meaning of the cited standard; and\/or (3) that the term ?confined space? asused in the cited standard is vague, thus rendering the cited standard unenforceable.Finally, respondent contends that the alleged violation in Citation Number 2 isnot serious, and that the proposed penalties for both alleged violations areimproper, excessive, arbitrary and capricious.Findings of Fact??????????? Basedon all the evidence of record, I find the following facts:??????????? 1. Atall times material herein respondent was a corporation with its principal placeof business located in Pittsburgh, Pennsylvania, where it was engaged inshipbuilding and other activities which entailed shipping finished products topersons and firms in several states (Complaint, Answer).??????????? 2.Citations numbered 2 and 5, issued by complainant to respondent on November 28,1975, and the Notification of Proposed Penalty dated December 3, 1975, werecontested by respondent on December 17, 1975 (Citation Numbers 2 and 5,Notification of Proposed Penalty, Notice of Contest).??????????? 3. OnNovember 14, 1975, George Reed, respondent?s compliance officer, conducted anofficial OSHA inspection of respondent?s shipyard at Neville Island,Pittsburgh, Pennsylvania (Tr. 30; Citations)??????????? 29CFR 1916.51(a)??????????? 4. OnNovember 14, 1975, 10 to 15 employees of respondent were working on a towboat(hull number 6613) under construction in respondent?s shipbuilding yard. Therewere a number of hoses and electric conductors lying in the walkway and acrossthe sole access way at the top of stairs to the deck of the towboat, whichhoses and electric conductors were not elevated over or placed under thewalkway or covered by any crossover planks (Tr. 30?40, 46?50, 69?71, ExhibitsC?1, CR?5).??????????? 5.The 10?15 workers on the towboat at the time, including welders, pipefittersand electricians performing their various tasks of welding, chipping, grinding,cutting and burning, were exposed to the condition of the hoses and conductorsset forth in 4, above, and to the tripping hazard created thereby (Tr. 35, 40,43, 48, 51, 69).??????????? 6.Many if not all of the hoses and conductors on the boat deck were in use on theinspection date by the workers on the towboat at the time. Workers requiringseparate hoses or electric conductors pulled them on board by themselves andused several machine sources of energy on the ground near the towboat. Eachworker needs 5 to 10 feet of slack in his hose or line in order to perform hiswork, which typically involves movement to different locations on the towboatas each particular task is completed (Tr. 30, 37, 40?41, 44, 48, 51?54, 62?63,65, 69, 413, 419?420).??????????? 7.The condition of the hoses and electric conductors crisscrossing the workingsurface and walkways of towboats and other vessels in the same stage ofconstruction as respondent?s towboat here is inherent in the shipbuildingindustry and practically cannot be totally eliminated. But various devices usedor available for use by employees in the industry, such as stanchions or cabletrees, troughs or raceways, crossover planks or covers, grid manifold systems,and linesmen, can substantially and practicably reduce or improve the conditionin many instances (Tr. 50, 406?407, 425, 429, 435?453, 455?469).??????????? 8.Previously, respondent has used stanchions, treadles or crossover planks andline channeling when practicable, i.e., where it has not restricted workers?movements, interfered with work on the deck surface, or produced more lineentanglement (Tr. 409?413).??????????? 9. Acrossover plank could have been used to cover the lines in the access walkwayon the cited towboat shown in Exhibit C?1 herein and thus have eliminated atripping hazard without difficulty (Tr. 418?419, 425, 429). The hoses and linesshown in Exhibit C?1 were, subsequent to the inspection, moved to the side ofthe deck passageway closer to the deck housing without making use of the hosesor lines more difficult (Tr. 49?50, 56?57).??????????? 10.Complainant previously issued to respondent four other citations for allegedviolations of the occupational safety and health standard 29 CFR 1916.51(a),three of which have become final orders of the Commission (Stipulation, Tr. 15,22).??????????? 11.Respondent has approximately 1,000 employees, of whom about 450 work in theBoatyard Department, and its gross income for 1975 was approximately 749million dollars (Tr. 14?15, 385).??????????? 29CFR 1916.31(b)(1)??????????? 12.On November 14, 1975, respondent?s employee, Carl Sustrich, spent approximatelyfour (4) hours, with a 15-minute break after the first two (2) hours and 30?35minutes for lunch at noon, repairing welds 1 to 8 inches long (welding andchipping) with Fleetweld 5P 60?10 welding rods in a non-cargo holdapproximately 36 feet by 54 feet by 2?10 feet with overhead bulkheads and asole access deck hatch about 15 inches by 23 inches and without any generalmechanical or local exhaust ventilation in the rake end of a barge (S.F.1. 41)at respondent?s boat-fitting dock on the Ohio River at Neville Island, Pittsburgh,Pennsylvania (Tr. 15, 103, 107?108, 118, 127?128, 147?149, 157?158, 218,330?333).??????????? 13.At the time of the inspection, the barge S.F.1. 41 was afloat on the navigablewaters of the Ohio River within respondent?s boatfitting area (Tr. 105, 118, 144).??????????? 14.The air in the compartment in the rake end of the barge in which respondent?semployee was welding was contaminated by welding fumes to an unmeasured anduntested extent; a steady flow of blue smoke issued from the open hatch intothe hold at the time of the OSHA inspection and the welder wore a dust filter(white cloth mouthpiece?not an approved respirator) under his welder?s hoodwhile welding in the hold. The hold was smoky, and there was no generalmechanical or local exhaust ventilation present or in use, the closestavailable ventilating equipment being an impractical distance away (Tr. 103,105, 116, 130?131, 163?166, 386).??????????? Respondent?swelder used about 50?60 welding rods to repair some 50 welds in the hold, 1 rodlasting for about one minute of arc time, 30?40 percent of total time in thehold being estimated arc time (Tr. 365?378). The contaminants emitted byburning welding rods include oxides of iron, manganese, carbon and carbonmonoxide, ozone and nitrogen dioxide and human (Mr. Sustrich here) exposure tothese contaminants results in serious hazards, such as the possibility ofpermanent damage to the nervous system (manganese oxide), discomfort torespiratory system (nitrogen dioxide), collapse and\/or death due to oxygendeficiency (carbon monoxide) (Tr. 128?130, 274?275, 284). The cans containingthe welding rods had a notice on them advising adequate ventilation when used(Tr. 162).??????????? 15.In determining whether a confined space exists within the meaning of 29 CFR1916.31(b), safety professionals consider access and degree of enclosure mostimportant; other factors considered include availability of naturalventilation, the nature (toxicity) of foreign objects or substances introducedor work process performed, size, design and construction of the space (Tr.108?113, 116?117, 212?213).??????????? 16.No employee of respondent entered the space to evaluate, inspect or test theatmosphere before or during the welding performed by Mr. Sustrich in the citedspace on the material date (Tr. 384?383). Welder Sustrich?s foreman entered thespace sometime prior to welding in order to mark the welds to be repaired (Tr.365), but there is no evidence of record that the foreman was a competentperson within the meaning of 29 CFR 1916.10.??????????? 17.Respondent?s Superintendent of Boatyards, Joseph Paquette, entered the citedspace on the material date several hours after the OSHA inspection and had notrouble breathing (Tr. 382?384).??????????? 18.It is respondent?s policy and practice to check the air in spaces of the typehere involved before entry of personnel only when there is reason to believethat explosive or high concentration of fumes are present. In the BoatyardDepartment of which Mr. Paquette was superintendent, three assistantsuperintendents had authority to ask for an air check, but the foreman on thejob (directly supervising welder Sustrich) was under instructions to obtainmechanical ventilation equipment whenever he believed such equipment wasnecessary (Tr. 385?386). The foreman checked on Mr. Sustrich every 20?25minutes while he was welding in the space, but never issued him any ventilationequipment or furnished him with a requisition to secure same from the nearesttoolroom located in the towboat area some distance away (Tr. 151?152). On thematerial date, Mr. Sustrich looked on neighboring boats in the area forventilation equipment, which was normal practice, but did not go to the towboatarea (right field) to look for it since that would have consumed about anhour?s time (Tr. 151?152, 159?160, 163).??????????? 19.The interior compartment space of the rake end of the cited tank bargecontained a net air volume of about 14,570 cubic feet and was intersected byparallel rows of upright and diagonal L-shaped iron or steel angles or supports(Tr. 331?332, Exhibits R?4, 6, 7, 8).??????????? 20.While the precise amount of breathable air in the cited space is conjectural inthe absence of any scientific tests on the material date, safety and healthprofessionals generally agree, based on experience in similar operations, that weldingin such a space under the circumstances present here creates a potentialoxygen-deficient or contaminated atmosphere which is deemed to be a serioushazard (Tr. 223?257, 274?275, 286?306).??????????? 21.In determining proposed penalties for the alleged standard violations herein,OSHA considered the gravity of the violations, respondent?s good faith, thesize of its business, and its history of violations under the Act (Tr. 74?99).Due to an arithmetical miscalculation the proposed penalty for the alleged violationset forth in Citation Number 5, item 1 should be $260 instead of $270 (Tr.74?81, 89?96, 99?100, 295?305).Opinion??????????? HousekeepingStandard??????????? Atthe hearing in this matter respondent took exception to the presiding judge?sruling granting complainant?s motion, filed the day before the hearing, toamend the complaint and citation to provide a clearer, more accuratedescription of the location of ?Hull #6613,? the subject of Citation Number 5relating to the cited housekeeping standard 29 CFR 1916.51(a). In itspost-hearing brief, respondent renews and argues its position on this rulingthus, in effect, seeking reconsideration of the prior ruling. That rulingshould be affirmed because respondent?s legal arguments are without merit.??????????? Torecapitulate the pertinent facts, the citation in question was issued onNovember 28, 1975, alleging respondent?s violation, on November 14, 1975, atits Neville Island, Pennsylvania, place of employment, of the standard 29 CFR1916,51(a) and the Act in that ?At the following location hoses and electricconductors had not been elevated over or placed under the walkway or workingsurface or covered by adequate crossover plank.? No more specific location wasstated in the original citation. In its complaint, issued on January 9, 1976,complainant amended the citation by adding to the violation description: ?Hull#6613 moored at the fitting dock on the main channel of the Ohio River.?Thereafter, in its April 5, 1976, motion to amend the complaint and thecitation for the second time, complainant corrected the added sentence to read?Hull #6613 located in the shipbuilding yard,? thus clarifying that said hullwas on land and not water. Respondent argues that the second amendment came toolate and prejudiced respondent for lack of adequate notice and that, if denied,the citation as first amended should be vacated for lack of specificity asrequired by section 9(a) of the Act.??????????? Amendmentsof pleadings subsequent to the complaint, being not covered by the Commission?sRules, are governed by the applicable Federal Rules of Civil Procedure (29 CFR2200.2(b)). Federal Rule 15 provides in pertinent part that, after service ofresponsive pleadings, ?a party may amend his pleading only by leave of court orby written consent of the adverse party; and leave shall be freely given whenjustice so requires.? The only change effected by the second amendment was tolocate hull #6613 in the shipbuilding yard rather than in the fitting dock onthe Ohio River. Where the sought amendment would not mislead or otherwiseprejudice the opposing party, leave to amend will be freely given when justiceso requires. Lovell Clay Products Company, 10 OSAHRC 237, 238 (1974); J.L. Mabry Grading, Inc., 9 OSAHRC 98, 110?112 (1973). It is the practice ofthe Commission to allow the complainant to amend the citation when suchamendment corrects minor errors in the citation, or when the amendment is madeto more fully describe the violation indicated in the citation. StructuralPanel Components, 8 OSAHRC 271, 272?273 (1974). Here the amendment simplycorrected the location of the stated hull within respondent?s shipyard and inno way changed the cited standard or the subject and description of theviolation.??????????? Whilethe lateness (some four months after issuance of the citation) of this secondamendment may be deplorable and unprofessional (see complainant?s explanation,Tr. 12?13), in the absence of any substantial showing of misleading orprejudice, it is not fatal. Respondent could not have been misled as to thesubject and substance of the citation since the citation from the outsetspecified ?Hull #6613,? the location of which on the inspection datecomplainant should have known by reason of the fact that its Boatyardsuperintendent accompanied the OSHA compliance officer on the walk-aroundinspection. Alternatively, pre-trial discovery procedures were available torespondent to seek clarification. Furthermore, by its own admission, andcommendably so, respondent was prepared with appropriate witnesses at trial topresent evidence on the citation as amended and it did so (Tr. 10?11).??????????? Thelegal authorities cited by respondent in its brief are inapposite. These casesinvolve amendments substantially changing the violative issues or standardsalleged in the original citation and are therefore distinguishable from thecase at bar (See Old Forge Construction Company, Inc., CCH 1975?76 OSHDpara. 20,063 (1975); Marquette Cement Manufacturing Company, CCH 1975?76OSHD para. 20,353 (1976)). The instant case is also distinguishable from DelMonte Corp., CCH 1974?75 OSHD para. 19,751 (OSHRC Docket No. 11865), sincethe only possible ambiguity of the citation in the present case related to thelocation of the specified vessel under respondent?s control on which the specifiedhousekeeping violation allegedly occurred. Furthermore, the ?particularity?requirement of section 9(a) of the Act (29 U.S.C. 658(a)) is satisfied if the?Respondent was appraised of the subject facts so that it could take propercorrective action and\/or file a notice of contest or otherwise defend itself inthis matter.? L. E. Myers Company, 16 OSAHRC 686, 687?688 (1975),quoting the Commission in J. L. Mabry Grading, Inc., supra. It isevident that respondent here was so appraised.??????????? Respectingthe alleged repeated housekeeping violation set forth in Citation Number 5herein, the cited standard, 29 CFR 1916.51(a), reads as follows:Good housekeeping conditions shall bemaintained at all times. Adequate aisles and passageways shall be maintained inall work areas. All staging platforms, ramps, stairways, walkways, aisles, andpassageways on vessels or drydocks shall be kept clear of all tools, materials,and equipment except that which is in use, and all debris such as welding rodtrips, bolts, nuts, and similar material. Hose and electric conductors shall beelevated over or placed under the walkway or working surfaces or covered byadequate crossover planks.???????????? Apreponderance of the relevant evidence of record, including unrebuttedtestimony of compliance officer George Reed, welder Richard Sala, and riggerClaude Willey, establishes that on November 14, 1975, there were a substantialnumber of hoses and electric conductors, including welding leads, clutteringthe top of the stairway access, walkways, and passageways or working areas onthe deck of the towboat (hull number 6613) in respondent?s shipbuilding yard.Said hoses and electric conductors were not elevated over or placed under thewalkway or working surfaces or covered by any crossover planks. (Finding ofFact 4, supra.) As many as 15 of respondent?s employees working on the towboatat the time of inspection were exposed to the tripping hazard posed by thenumber, disorder, and location of the cited lines and conductors on theinspection date (Finding of Fact 5, supra). However inherent or necessary inthe industry may be the welter of hoses and conductors on the deck of a towboatunder construction, there were and are ample additional practical housekeepingmeasures which respondent could and should have implemented (as it had onprevious occasions) to minimize the hazards of the cited condition, based onthe substantially unrebutted testimony of employees Richard Sala and JosephPaquette and safety professional William Draper (Findings of Fact 6 to 9,supra).??????????? Sincethe record herein establishes by a preponderance of the evidence that most ifnot all of the hoses and conductors on the towboat were in use at the time ofinspection, respondent?s defense relies on the ?in use? exception provided in thecited standard (29 CFR 1916.51(a)). However, read in the context of thestandard as a whole and consistent with the remedial purpose of the Act, the?in use? exception may not, in the circumstances of this case, reasonably beconstrued to operate so absolutely as to free respondent from any and allobligation to minimize the hazard of ?in use? hoses, lines and conductors lyingon the deck of the towboat under construction here when housekeeping measuresto minimize such hazard may be accomplished without substantially restrictingor interfering with the use of said hoses, lines and conductors. Mr. Salatestified that, following the inspection, a number of the hoses and leadconductors were ?neatened up? to the side of the walkway next to the deck housingwithout inhibiting their use (Tr. 50, 62); Mr. Reed and Mr. Paquette verifiedthat respondent designed and used stanchions previously to uplift hoses overwalkways on boats under construction (Tr. 41?42; 416?418) and could haveplanked over most of the hoses and conductors at the access area of the ship(Tr. 419).??????????? Contraryto respondent?s contention (Respondent?s Brief, p. 17), such a ?degrees ofneatness? construction, so long as it is reasonably compatible with effectiveuse of the hoses and conductors, is more consistent with the purpose of theAct?to assure safe working conditions for all working men and women?than an?unequivocal exception? construction. Respondent?s citation of UnderhillConstruction Corp., OSHRC Docket No. 2232, 1974?75 OSHD par. 19,328 (1975)(recognizing that some degree of hazard in workplace may be permissible whenjob could not otherwise be completed) is inapt since in the instant case stepsto alleviate or minimize at least some multiple hose and conductors lying ondeck passageways could have been taken without substantially interfering withuse of the hoses and related equipment or completion of the job. While closerchanneling and grouping of hoses and conductors might increase the risk ofentanglement and limited mobility, such risks have not been shown to beunavoidable or even probable on this record; indeed there is credible experttestimony by Mr. Draper that through appropriate planning and use of techniquesthese risks are substantially avoidable (Tr. 414?420, 435?453).??????????? Togive operative effect to the cited housekeeping standard as a whole, we arebound to construe the ?in use? exception provision in context with the otherprovisions of the standard, including the general unqualified requirements that?Good housekeeping conditions shall be maintained at all times? and that?Adequate aisles and passageways shall be maintained in all work areas?(emphasis added). To carve out an absolute ?in use? exception without referenceto the circumstances in each case would unreasonably nullify the effect anddefeat the intent of the quoted provisions and actually preclude the kind ofpractical consideration and balancing which both parties here seek and whichsound legal construction requires.??????????? Respondent?sfurther argument, that the cited violation of the housekeeping standard doesnot constitute a ?repeat? violation within the meaning and intent of the Act,is more troublesome. Complainant bases this citation principally on thestipulation of three previous citations alleging violations of the samestandard which became final orders of the Commission (Complainant?s Brief, pp.14?15; Tr. 15). Complainant?s position is in accord with the Commission?sdecision in Bethlehem Steel Corporation, 20 OSAHRC 227 (Docket No. 8392,1975), wherein the Commission found ?no language in the Act or its legislativehistory indicating that a second violation must result from any particularstate of the employer?s mind in order to be a repeated violation within themeaning of section 17(a)? (29 U.S.C. 666(a)).[25] However, on appeal, thisdecision was modified by the Third Circuit Court of Appeals. Bethlehem SteelCorporation v. Occupational Safety and Health Review Commission and Secretaryof Labor, No. 75?2301, ?? F.2d ?? (3rd Cir., 1976).??????????? Inthe latter decision, involving the identically-worded housekeeping standard forShip Repairing (29 CFR 1915.51(a)), the Court held that ?sec. 666(a) isdirected to particularly flagrant conduct, and therefore the objective conductwhich ?repeatedly? encompasses must be similar to that which would raise aninference of willfulness.? In developing a workable definition of ?repeatedly?the Court favorably quoted the Commission?s decision in General ElectricCompany, 17 OSAHRC 49, 65?66 (No. 2739, 1975) (on appeal, No. 75?4116,2d Cir. C.A.):?As a starting point, it should beobserved that the size of a penalty that can be imposed for a ?repeated?violation is ten times that for a singular ?serious? violation. Hence, it isobvious that Congress intended to deal with a more flagrant type of conductthan just a single serious violation. Cf. Frank Irey, Jr., Inc. v. OSHRC,519 F.2d 1200 (3rd Cir. 1974), which discusses ?willful? violations as beingthe most severe in the hierarchy of civil penalties. The term ?repeated? is thereforeread to mean happening more than once in a manner which flaunts therequirements of the Act. With a test of whether the requirements of the Act arebeing flaunted it cannot be said abstractly just how many places of employmentor conditions of employment should be considered. Each case must be decidedupon its own merits and turn upon the nature and extent of the violationsinvolved.????????????? TheCourt further stated that ?the mere occurrence of a violation of a standard orregulation more than twice does not constitute that flaunting necessary to befound before a penalty can be assessed under sec. 666(a).? In determining whatacts constitute flaunting of the Act?s requirements, we are to be guided by theCourt?s statements in Irey because a broad interpretation of ?repeatedly? would?disrupt the gradations of penalties and violations so carefully provided inthe Act? just as much as a broad interpretation of ?willfully.? BethlehemSteel Corp. v. Occupational Safety and Health Review Commission and Secretaryof Labor, supra. Thus, the flaunting required for a repeated violationshould contain ?an element of obstinate refusal to comply?: ?defiance,? ineffect, ?or such reckless disregard of consequences as to be equivalent to aknowing, conscious, and deliberate flaunting of the Act.? Among the factorsspecified by the Court that the Commission should consider when determiningwhether a course of conduct is flaunting the requirement of the Act are thenumber, proximity in time, nature and extent of violations, their factual andlegal relatedness, the degree of care of the employer in his efforts to preventviolations of the type involved, and the nature of the duties, standards, orregulations violated. In the Court?s view ?repeatedly? is an objective test. Whilethe Commission has considerable discretion in determining whether conduct comeswithin sec. 666(a), the acts themselves must flaunt the requirements of thestatute and the Commission need not determine whether the acts were performedwith intent to flaunt the requirement of the statute. Bethlehem Steel Corp.v. Occupational Safety and Health Review Commission and Secretary of Labor,supra at Fn. 12(a).??????????? Herethe alleged housekeeping violation constituted respondent?s fifth citationunder the same standard (three of these were affirmed as final orders, oneunder Commission review) since the effective date of the Act (respondentalleges two of the three past violations occurred in 1973, Respondent?s Brief,p. 32) Given the size of respondent?s shipbuilding operations (500 employeesapproximately, Tr. 385) and the nature of such operations, which requires thesimultaneous presence of different types of tradesmen using multiple lines on ashifting basis over a substantial period of time in the construction of eachtowboat-type vessel, the number and proximity of respondent?s prior violationsof the housekeeping standard hardly connotes flaunting within the meaning ofthe Act. See National Steel and Shipbuilding Co., OSAHRC Docket Nos.11769 and 11011, CCH 1975?76, par. 19,762 (under review) (5,000 employeesoperating on a three-shift basis).??????????? Onthe other hand, even taking into account that the lines on deck problem areinherent in the industry and cannot be totally eliminated, the fact that therecord evidence here shows no effort by respondent to alleviate this problem onthe cited towboat prior to the inspection, despite previous citations for thesame standard violation, thus exposing approximately 15 employees to thetripping hazard created, does suggest an element of obstinate refusal to complywith the standard. This suggestion is reinforced by testimonial evidence ofwitnesses for both parties that the towboat conditions cited were normal anddaily (Tr. 55, 70, 427?428) and that complainant, while taking some steps toalleviate specific problems of this nature on occasion (Tr. 54?55, 409), had noaffirmative, systematic safety program to alleviate this problem generally as amatter of policy, principally because of the company?s position that there isno practical way to eliminate the line-tripping hazard beyond use of thetree-stanchions (Tr. 417?418) and manifolds for gas and oxygen lines at times(Tr. 461?463).??????????? It isfurther noted that, although the cited standard requires that adequate aislesand passageways be maintained in all work areas, complainant considers theentire boat a work surface at this stage of construction, with no designatedaisles or walkways practical since work is taking place all over the boat (Tr.424?425). Complainant has undertaken no study of this problem by safetyprofessionals (Tr. 418, 425), but has consulted its safety director and others,including its supervisory officials, like Superintendent of Boatyards Paquetteand General Hull Superintendent Seddon. in their view it is impossible toeliminate all lines lying on a boat under construction and impractical tochannel or group them close together (as would occur with use of stanchions,troughs, or crossover planks) since, with the degree of mobility required, thatwould likely increase entanglement of the lines, unduly cover the workingsurface making it more difficult to walk and work on, and cause an unduetime-consumption factor on the part of employees using the lines (Tr. 411?416,460?461). Similarly, complainant deems the use of grid manifolds and linesmenof limited value because they would not eliminate the problem, although,admittedly they could reduce the problem to some extent (Tr. 425?426, 429,456?457, 464?465, 469).??????????? Onbalance, I find that complainant, after three previous violations, has failedto exercise the degree of care required of a prudent employer in his efforts toprevent violations of the type here involved. There is no evidence that anysuch efforts were made on the cited towboat on which some 15 tradesmen wereworking. While the broad, comprehensive requirements of the housekeepingstandard make compliance difficult, respondent cannot ignore its complianceresponsibilities in this area. In National Steel and Shipbuilding Co., supra,involving a substantially larger shipbuilding operation, the employer tookaffirmative and reasonable action to improve the housekeeping situation at theworksite, including the assignment of five different creaft foremen with areasof responsibility for housekeeping on each ship under construction, as well asperiodic safety inspections of the shipyard and ships under construction givingattention to the immediate correction of existing unsafe housekeepingconditions. In contrast, respondent appears to take the position that sincelines cannot be totally eliminated from decks of vessels under construction,little or no sustained corrective or preventive action is required by thestandard, particularly if such action entails essentially nonproductive cost inthis very competitive industry (Tr. 418, 425?429, 455?456, 459?460, 463?469).Such an attitude, viewed in the context of the circumstances here, bespeaks anelement of obstinate refusal to comply or attempt to comply with the citedstandard. Such flaunting of the statute by respondent warrants applicability of29 CFR 666(a) to the case at bar.??????????? Incomputing the proposed penalty for the housekeeping standard violation, I wouldaccord respondent more credit for good faith and less for history of pastviolations than did OSHA (Finding of Fact 20, supra) for some of the reasonsdiscussed above. Accordingly, a penalty of $250 would be appropriate.Ventilation Standard??????????? Respectingthe cited ventilation standard (29 CFR 1916.31(b)), respondent contends that itis so vague as to violate due process of law (Respondent?s Brief, pp. 33?36).??????????? Respondentalso questions whether the cited compartment in the rake end of the bargeconcerned is a confined space within the meaning of the standard and as definedin 29 CFR 1916.2(m), including whether or not under this standard in thecircumstances of this case complainant has the burden of proving hazardousexposure, i.e., employee exposure to a concentration of smoke and gaseous fumesfrom burning welding rods in excess of the safe limits permitted by theThreshold Limit Values of the American Conference of Governmental IndustrialHygienists (see 29 CFR 1916.5 and 21(b); Respondent?s Brief, p. 47).??????????? Respondentcontends that the cited rake end compartment of the barge falls within thedefinition of ?enclosed space? (29 CFR 1916.2(n)) rather than confined spaceand, alternatively, that complainant has not met its burden of provinghazardous exposure.??????????? Ventilationand Protection in Welding, Cutting and Heating, 29 CFR 1916.31 provides inpertinent part as follows:(b) Welding, cutting and heating inconfined spaces?(1) Except as provided in paragraphs(b)(3) and (c)(2) of this section [not applicable here], either generalmechanical or local exhaust ventilation meeting the requirements of paragraph(a) of this section shall be provided whenever welding, cutting or heating isperformed in a confined space.?29 CFR 1917.31(a), Mechanical Ventilation;requirements, provides in pertinent part as follows:(1) For purposes of this section,mechanical ventilation shall meet the following requirements:(i) mechanical ventilation shall consistof either general mechanical ventilation systems or local exhaust systems.?(ii) General mechanical ventilation shallbe of sufficient capacity and so arranged as to produce the number of airchanges necessary to maintain welding fumes and smoke within safe limits.?(iii) Local exhaust ventilation shallconsist of freely movable hoods intended to be placed by the welder or burneras close as practicable to the work. This system shall be of sufficientcapacity and so arranged as to remove fumes and smoke at the source and keepthe concentration of them in the breathing zone within safe limits.?29 CFR 1916.2?Definitions, provides inpertinent part as follows:(m) The term ?confined? space means acompartment of small size and limited access such as a double bottom tank,cofferdam, or other space which by its small size and confined nature canreadily create or aggravate a hazardous exposure.?(n) The term ?enclosed space? means anyspace other than a confined space, which is enclosed by bulkheads and overhead.It includes cargo holds, tanks, quarters and machinery and boiler spaces.???????????? Thevagueness issue raised by respondent is essentially based on the varyingapproaches or interpretations apparently given by complainant?s witnesses tothe term ?confined space,? which term, as defined in sec. 1916.2(m), governsthe applicability of cited standard sec. 1916.31(b) (see Respondent?s Brief,pp. 33?36). While the illustrative examples in the definition give someguidance as to the type of compartment of ?small size and limited access? whichconstitutes ?confined space,? no such guideline examples are given respecting?other space which by its small size and confined nature can readily create oraggravate a hazardous exposure.? Such a lack of definitional precision tends tothrust more responsibility upon the judgment and expertise of enforcementofficials and makes it more difficult for employers to know or anticipate theproper metes and bounds of the standard with which they are bound to comply.??????????? Astatute (or regulation) which is so vague that men and women of commonintelligence must necessarily guess at its meaning and differ as to itsapplication violates due process. Brennan v. Occupational Safety and HealthReview Commission and Santa Fe Trail Transport Company, 505 F.2d 869, 872(1974); Connally v. General Construction Co., 269 U.S. 385, 391; BoyceMotor Lines, Inc. v. United States, 342 U.S. 337. But a regulationpromulgated pursuant to remedial civil legislation must be construed in thelight of the conduct to which it is applied. Santa Fe Trail TransportCompany Case, supra (hereinafter Santa Fe) at 872, citing Ryder TruckLines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974); United Statesv. National Dairy Corp., 372 U.S. 29, 36 (1963). The question is whetherthe regulation ?delineates its reach in words of common understanding,? bearingin mind that a permissible ?leeway? is allowed in the field of regulatorystatutes governing business activities in narrow categories, Santa Fe,supra, citing Cameron v. Johnson, 390 U.S. 611, 616 (1968); Papachristouv. City of Jacksonville, 405 U.S. 156 (1972).??????????? Whilethe cited standard may not on its face inform a person of common intelligenceprecisely how small or confined a space must be absolutely or in order toreadily create a hazardous exposure to someone present or working in the space,with or without personal protective equipment, and thus require mechanicalventilation, the standard does clearly emphasize the need for ventilationwhenever welding is performed in a confined or restricted space. In thusseeking to avoid or prevent on-the-job injuries, the standard certainlyfurthers the objectives of the Act.??????????? Whilethe regulation may not be a model of perfect precision, I do not believe itsimprecision renders it unenforceably vague. As remedial civil legislationapplicable to an entire industry, the regulation was drafted in the light ofthe myriad conceivable situations which could arise and which would be capableof causing injury or creating potential hazards. See Ryder Truck Lines, Inc.v. Brennan, supra; McLean Trucking Co. v. Occupational Safety and HealthReview Commission and Secretary of Labor, 503 F.2d 8 (4th Cir. 1974). Therange and variety of sizes, limited access, and structural constriction ofcompartments in the various types of vessels constructed or repaired inAmerican shipyards, including respondent?s, and the diversity of workconditions affecting the breathable air in such compartments, including theamount of natural ventilation, the specific nature, duration and intensity ofthe work activity performed therein and the nature and hazard potential of anyair contaminants incident to such work activity in the compartment?all thesevariable factors make the drafting of such a regulation with exactitude mostdifficult. At the same time, inherent in this standard is an external andobjective test, namely, whether or not a reasonable person would recognize ahazard or potential hazard of respiratory difficulty or bodily injury due tooxygen insufficiency or air contamination when welding is performed in arelatively confined space, which would warrant mechanical ventilation. So longas the regulation affords a reasonable warning of the proscribed conduct in thelight of common understanding and practices, it will pass constitutionalmuster. Ryder Truck Lines, Inc., supra; United States v. Petrillo,332 U.S. 1, 4 (1947).??????????? Inany event, the appropriate test in this case is whether a reasonably prudentman familiar with the circumstances of the shipbuilding industry would haveprotected against the hazard. See Cape and Vineyard Division of the NewBedford Gas and Edison Light Company v. Occupational Safety and Health ReviewCommission, 512 F.2d 1148 (1st Cir. 1975). The unrebutted testimony ofexpert witness Draper, a senior OSHA maritime compliance officer experienced asa marine safety engineer and as a shipyard competent person, establishes thatthe need for adequate ventilation when welding is performed in confined spacesis well known throughout the industry (Tr. 215). Indeed, according to thiscredible expert witness, ?all professional societies that are involved inwelding and safety, including the National Safety Council, recommend that anyarea that has less than 50,000 cubic feet of space be ventilated prior to work?(Tr. 216). In the largest American shipyard, it is the policy that no spaces orvoids, confined or not confined, are to be entered without previouslydetermining the atmosphere and providing adequate exhaust and mechanicalventilation (Tr. 215). The testimony of the welder in this case, particularlyhis repeated efforts to secure mechanical ventilation for his work on the citedand other barges, just as he had when working earlier on towboats, tends toconfirm that the use of mechanical ventilation by welders in the type ofcompartment space here involved is an accepted practice and well within thecommon understanding and experience of those working in the industry (Findingof Fact 17, supra). Industrial hygienist Carey also indicated that it is amatter of general agreement within the safety and health community that similaroperations in confined spaces have created oxygen deficiencies (Tr. 287).??????????? Complainant?scontention that the non-cargo compartment in the rake end of the cited bargefalls within the definition of ?confined space? is supported by credibletestimonial evidence of the relatively small size of the space (approximately54 x 36 x 2?10 feet; net air volume of about 14,500 cubic feet, allowing fornumerous interior structural members), the very limited access to the space(one hatch 15 x 23 inches in size), the generation and accumulation of smokeand fumes from the burning welding rods in the space during the welder?s normalworking hours (smoke observed rising from hatch after welder exited, wearing respiratoryprotection face mask, after about 4 hours? work broken by a short rest periodand 1\/2 hour lunch period). Bearing in mind the hazardous contaminants emittedby the burning welding rods (Finding of Fact 14, supra), a preponderance of theevidence of record and the reasonable inferences to be drawn therefrom indicatethat such a space, in the circumstances of this case, could readily create oraggravate a hazardous exposure.??????????? Whilethe space here is considerably larger than the examples of compartments ofsmall size and limited access referred to in the definition of ?confined space,?the definition also encompasses ?other space which by its small size andconfined nature can readily create or aggravate a hazardous exposure.? Theexamples are deemed to be illustrative and not strict size and accesslimitations, especially in a potential health hazard situation. Accord,Construction Safety and Health Standards, which have the identicalventilation\/welding provision (29 CFR 1926.353(b)(1)), but the same definitionfor ?confined? and ?enclosed? spaces (1926.21(b)(6)). By the essentiallyunrebutted testimony of Mr. Carey, an experienced industrial hygienist withexpertise in evaluating confined spaces (Tr. 268?269) and of Mr. Draper, asenior maritime compliance officer, marine safety engineer, and former shipyardcompetent person with substantial experience in evaluating confined spaces onbarges of the type here involved from a safety and health standpoint (Tr.169?202), complainant has sustained the OSHA determination, based on therecommendation of the inspecting compliance officer, Mr. Reed, that the citedspace under the work conditions existing on the inspection date was indeed aconfined space within the meaning of the cited standard, as defined (Tr. 108,214?216, 241, 278). The opinion to the contrary by respondent?s qualified chiefmarine engineer (Mr. Van Mook) was based primarily on construction engineeringand design considerations, untutored by safety and health considerations, towhich the cited standard is particularly attuned (Tr. 322?324, 348, 352,356?357, 361).??????????? Thepurpose and thrust of the cited standard as defined is clearly to requireemployers to take appropriate steps to prevent or avoid exposures of employeesto any conditions which could readily become hazardous, such as by reason ofoxygen deficiency or concentrations of toxic smoke and fumes beyond safelimits. The preventive intent, based on a competent potential risk-evaluationbefore entry into a confined space, is implicit in the definition of confinedspace.??????????? Sincedetermining a confined space as defined necessarily involves a potential hazardevaluation prior to entry into such space, so does the cited standard itselfwhich, with certain inapplicable exceptions, explicitly requires mechanicalventilation ?whenever welding . . . is performed in a confined space.? Thispreventive or precautionary intent (as distinguished from correction orelimination of existing hazard), expressed in the language of the citedstandard, is reinforced by other provisions of Subpart D of the ?Shipbuilding?standards and other parts of the maritime standards. See 29 CFR 1916.31(c) and(e), 32, 33 and 34. The precautionary thrust of the cited standard is evidentwhen contrasted with sec. 1916.31(e), which requires suitable mechanicalventilation for general welding not involving conditions or materials describedin paragraph (b) only where, because of unusual physical or atmosphericconditions, an unsafe accumulation of contaminants exists. Similarly, in1916.82 (Respiratory Protection), appropriate respiratory protective equipmentis required when employees are exposed even to unknown concentrations in agaseous contaminated atmosphere not immediately dangerous to life (29 C.F.R.1916.82(c) and (e)).??????????? Certainlythe keystone of the Act is preventability. Brennan v. Occupational Safetyand Health Review Commission and Underhill Construction Corporation, 513F.2d 1032, 1039 (2d Cir. 1975); National Realty and Construction Corporationv. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1266?67(D.C. Cir. 1973); Brennan v. Occupational Safety and Health ReviewCommission and Gerosa, Incorporated, 491, F.2d 1340, 1742 (1974). And thepurpose of the Act is ?to assure so far as possible every working man and womanin the Nation safe and healthful working conditions.? Sec. 2(b), OccupationalSafety and Health Act of 1970.??????????? Thefact that the cited standard incorporates by reference requirements formechanical ventilation equipment which include a capacity to keep theconcentration of welder smoke and fumes in the breathing zone ?within safelimits,? does not, in the context of the regulatory scheme previouslydiscussed, require complainant to prove the existence of unsafe airconcentrations, i.e., specific threshold limit values in excess of thosepromulgated by the Department of Labor or the American Conference of GovernmentIndustrial Hygienists, in order to show a violation of the cited standard. TheSecretary need only show, as was done in this case, the existence of welding ina confined space. Compare: Bethlehem Fabrications, Inc., OSAHRC DocketNo. 7176 (1976) (proof of dangerous quantities of emission from spray paintingactivities required under 29 CFR 1910.94(c)(2) read in conjunction with thedefinition of spraying area at sec. 1910.107(a)(2)).??????????? Asthus interpreted, the cited standard clearly imposes the risk of noncomplianceon employers, including respondent here, who fail to make competent pre-entrydeterminations as to whether a compartment in which welding is to be performedis a confined space within the meaning of the standard. While the citedstandard, unlike some other sections of the welding subpart (see 29 CFR1916.33(d) and 1916.34(c)), does not specifically require a competent person,as defined in 1916.10, to make pre-entry atmospheric tests or evaluations, sucha designated person or one of comparable qualification could well be used bythe employer to make any potential hazard determination which may be deemedprudent in order to assure compliance with the standard (Tr. 200?202, 232?233).??????????? Adequateprovision of appropriate mechanical ventilation equipment where confined spacedeterminations are made is required for compliance with the standard. Suchprecautionary requirements appear to be practical and consistent with normalcustoms and practices within the industry. All professional societies involvedin welding, including the National Safety Council, the American Welding Societyand the pertinent ANSI standards, recommend that any welding area with lessthan 50,000 cubic feet of space be ventilated prior to work (Tr. 216, 239).Indeed, compliance officer Reed had on previous inspections at this employer?sshipyard seen mechanical ventilation being used on these types of barges (Tr.106) and Mr. Sustrich stated that ventilation equipment had been regularly issuedhim when he was working on towboats (Tr. 154?155).??????????? Respondent?sviolation of the cited ventilation standard was a serious violation within themeaning of section 17(k) of the Act because if the potential hazard of oxygendeficiency and\/or air contamination when welding in an unventilated confinedspace became actual or actually occurred, there is a substantial probabilitythat death or serious physical harm could result to the welder thus exposedfrom the condition created or from the practices, methods, operations orprocesses used. The unrebutted credible testimony of Mr. Carey, complainant?scertified industrial hygienist, and of Mr. Draper, complainant?s expert marinesafety engineer, provide ample evidence of the serious types of injury or deathwhich could result from exposure to the violative condition, e.g., oxygendeficiency or toxic contamination of the breathable air generated by thewelding process in the confined space (Finding of Fact 13, supra; Tr. 216).??????????? Thefact that the welder here was wearing a cloth mouthpiece and that no aircontamination tests or verification were made does not preclude a finding of aserious violation of the cited standard. The personal protective mouthpieceworn was not an approved respirator, as required by sec 1916.82(a) (see1916.31(b)(3)). As previously noted, complainant?s burden of proof of violationof the standard did not require a showing of the existence of a contaminationbeyond safe limits in the confined space, but only a showing of the potentialhazard of welding in such space. Indeed, unlike the employer in BethlehemFabricators, Inc., supra, respondent here did not make any atmospheric tests ormeasurements, so that the extent of the air contamination in the confined spaceat the time of inspection remains undetermined.??????????? Respectingthe penalty for the serious ventilation violation, since the appropriateequipment was apparently available but not effectively provided and used inrespondent?s barge division and the record showing no previous violation ofthis standard by respondent, I would give it more credit for good faith andhistory and assess a penalty of $700.Conclusions of Law??????????? 1. Atall times material herein respondent was an employer with employees engaged ina business affecting commerce within the meaning of sections 3(5) and 5(a) ofthe Act, and the Commission has jurisdiction of the parties and the subjectmatter herein under section 10 of the Act.??????????? 2. Atall times material herein respondent was subject to the requirements of the Actand the occupational safety and health standards promulgated thereunderpursuant to section 6 of the Act, including the standards cited herein.??????????? 3.Complainant?s motion to amend the complaint and Citation Number 5 herein wasproperly granted in accordance with the applicable Rules of Procedure andsection 9(a) of the Act as interpreted by the Commission under law.??????????? 4. OnNovember 14, 1975, as set forth in the pertinent amended citation herein,respondent violated the occupational safety and health standard set forth at 29CFR 1916.51(a) under section 5(a)(2) of the Act. Said violation was a repeatedviolation under section 17(a) of the Act, for which a civil penalty of $250 isassessed in accordance with section 17(j) of the Act.??????????? 5.The occupational safety and health standard 29 CFR 1910.31(b)(1) is notunenforceably vague and constitutes no substantial denial of due process.??????????? 6. OnNovember 14, 1975, as set forth in the pertinent citation herein, respondentviolated the occupational safety and health standard set forth at 29 CFR1916.31(b)(1) under section 5(a)(2) of the Act. Said violation was a seriousviolation under section 17(b) and (k) of the Act, for which a civil penalty of$700 is assessed in accordance with section 17(j) of the Act.ORDER??????????? Basedon the foregoing findings of fact, opinion, and conclusions of law and therecord herein as a whole, it is ORDERED that serious Citation Number 2 andrepeated Citation Number 5, as amended, both issued on November 28, 1975, beand hereby are affirmed, with penalties of $250 and $700, respectively, herebyassessed.?DONALD K. DUVALLJudge, OSHRCDated: October 12, 1976?Hyattsville, Maryland?*CommissionerCOTTINE took no part in the consideration or decision of this case.[1] FormerCommissioner Moran directed review of Judge Duvall?s decision withoutspecifying issues. Dravo Corporation subsequently raised issues in a petitionfor review and presented argument on those issues in a brief. Under thesecircumstances, the Commission will address the issues raised by Dravo. See GrossmanSteel & Aluminum Corp., 78 OSAHRC 85\/A2, 6 BNA OSHC 2020 (No. 76-2834,1978) (not reported in CCH OSHD).[2] Dravo properlynotes that the welder was in the rake for four hours but was not welding duringthe entire period. Contrary to Dravo?s implicit assertion, the time spentwelding is not a significant factor in this case.[3] The ventilationstandard provides, in pertinent part, that.. . either general mechanical or local exhaust ventilation meeting therequirements of paragraph (a) of this section shall be provided wheneverwelding, cutting, or heating is performed in a confined space.[4] Reed had beensafety director for the Irvin Works division of the United States SteelCorporation for 15 years before being employed as a compliance officer in 1971or 1972. He testified that United States Steel had developed procedures forentry into confined spaces twenty years before the hearing in this case.[5] Draper was themaritime safety engineer for the Newport News Shipbuilding and Drydock Company,the largest shipbuilding and repair facility in the United States, for threeyears before joining the Department of Labor. In that position, he wasresponsible for the safety of 2600 welders. For eight years prior to thisDraper was a marine safety specialist with the United States Army Reserve. Asignificant part of his time during the four years prior to the hearing wasspent inspecting barges. Judge Duvall qualified Draper as an expert on mattersof maritime safety.[6] Carey was employedby the State of Pennsylvania as an industrial hygienist from 1969 through 1975.He specialized in investigating confined space entry procedures during the lasttwo and one-half years of his tenure with Pennsylvania. (The definition ofconfined space that Carey used as a Pennsylvania employee is not identical tothe definition at 29 C.F.R. ? 1916.2(m), but Carey testified that the samefactors?size and access?are relevant to both.) He is certified to practiceindustrial hygiene by the American Board of Industrial Hygienists.[7] Dravo argues thatreliance on the absence of natural ventilation in deciding whether a space isconfined is improper because the definition of confined space refers only toaccess and size. We disagree. The extent to which a space is ventilatednaturally has a direct bearing on whether a hazardous exposure can be created,which is the principal test of the standard.[8] The term ?enclosedspace? is defined as follows:.. . any space, other than a confined space, which is enclosed by bulkheads andoverhead. It includes cargo holds, tanks, quarters and machinery and boilerspaces.29 C.F.R. ? 1916.2(n).[9] Van Mook admittedthat a cofferdam and a double bottom tank of a large tanker could have a volumegreater than the rake on Dravo?s barge. Both of these compartments are used asexamples of a confined space in its definition. Thus, even if size were theonly factor to be used to decide if a space is confined or enclosed, Van Mook?stestimony would not compel a finding that the rake is an enclosed space. Thetestimony raises the question of whether Van Mook considered large vessels informing his opinion that the rake is an enclosed space. [10] There can be noassurance that two people, even those with expertise, always will agree on theapplication of a standard that cannot be applied with mathematical precision.Individual views necessarily influence a person?s judgment. Thus, it is notsurprising that the Secretary?s witnesses did not agree on the application ofthe ventilation standard to a few spaces hypothesized by Dravo?s counsel at thehearing. Nor is the disagreement grounds for concluding that the ventilationstandard is vague. The relevant inquiry is whether reasonable persons wouldagree as to the application of the ventilation standard to the circumstances ofthis case. As noted previously, there was no disagreement among the Secretary?switnesses as to this issue. Moreover, we conclude infra that reasonable personswould agree as to the need for mechanical ventilation in the rake on Dravo?sbarge.[11] In support of thisconclusion, the judge cited Cape and Vineyard Division of the New BedfordGas and Edison Light Company v. Occupational Safety and Health ReviewCommission, 512 F.2d 1148 (1st Cir. 1975). He also stated the following:Atthe same time, inherent in this standard is an external and objective test,namely, whether or not a reasonable person would recognize a hazard or potentialhazard of respiratory difficulty or bodily injury due to oxygen insufficiencyor air contamination when welding is performed in a relatively confined space,which would warrant mechanical ventilation.[12] Section 17(k) ofthe Act, 29 U.S.C. ? 666(j), defines a serious violation as follows:(k)For purposes of this section, a serious violation shall be deemed to exist in aplace of employment if there is a substantial probability that death or seriousphysical harm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have been adopted orare in use, in such place of employment unless the employer did not, and couldnot with the exercise of reasonable diligence, know of the presence of the violation.[13] The relevantportions of subsection 1916.31(a) provide the following:?1916.31 Ventilation and protection in welding, cutting and heating. (a)Mechanical ventilation; requirements.(1)For purposes of this section, mechanical ventilation shall meet the followingrequirements:(i)Mechanical ventilation shall consist of either general mechanical ventilationsystems or local exhaust systems.(ii)General mechanical ventilation shall be of sufficient capacity and so arrangedas to produce the number of air changes necessary to maintain welding fumes andsmoke within safe limits.(iii)Local exhaust ventilation shall consist of freely movable hoods intended to beplaced by the welder or burner as close as practicable to the work. This systemshall be of sufficient capacity and so arranged as to remove fumes and smoke atthe source and keep the concentration of them in the breathing zone within safelimits.[14] Section17(k) of the Act, 29 U.S.C. ? 666(j), defines a serious violation as follows:(k) For purposes of thissection, a serious violation shall be deemed to exist in a place of employmentif 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 placeof employment unless the employer did not, and could not with the exercise ofreasonable diligence, know of the presence of the violation.[15] The inspectedworkplace involved in this case is located within the physical jurisdiction ofthe United States Court of Appeals for the Third Circuit. Accordingly, there isa possibility that our decision in this case may be reviewed by that court.Section 11(a) of the Act, 29 U.S.C. ? 660(a). We note that the court recentlyissued its decision in Bethlehem Steel Corp. v. OSHRC and Marshall,Docket No. 78-2337 (3d Cir. Oct. 24, 1979). In that decision, the courtreversed and remanded a Commission judge?s decision holding that Bethlehem Steelcommitted a serious violation of the Act by failing to comply with severalstandards relating to the providing of adequate ventilation for welders inconfined spaces. Among the alleged violations at issue was an asserted failureto comply with 29 C.F.R. ? 1916.31(b)(1), the same standard at issue in theinstant case.We conclude that there is noinconsistency between our decision in this case and the court?s decision in BethlehemSteel Corp. The basis of the court?s order in that case was the failure ofthe Commission judge to comply with ?the minimum standards required by theAdministrative Procedure Act.? Slip opinion at p. 8. In particular, the judge?sconclusion that the violation was serious was inadequate because ?the ALJnowhere relate[d] the evidentiary basis upon which a serious violation might befound. . . . [and] the ALJ?s findings of fact [did] not specify how and why asubstantial probability of death or bodily harm existed from inadequateventilation . . . on the day of the OSHA inspection.? Id. Here, we have fullyexplained ?how and why? the conditions at Dravo?s workplace created asubstantial probability that death or serious physical harm could result. Wehave also fully set forth the evidentiary basis for our findings and ourconclusion. The instant case and Bethlehem Steel Corp. are thereforeclearly distinguishable.We also note that the court in BethlehemSteel Corp. did not rule upon the merits of the allegation that theviolation was serious and that it endorsed the test for determining whether aviolation is serious that we have applied in this case. Slip opinion at p. 7.[16] The various hosesand lines included electrical lines for lighting, air hoses for pneumatictools, oxygen and gas lines for burning, and weld lines for welding. Each wasattached to a stationary outlet on the ground near the hull of the towboat.[17] ? 1916.51Housekeeping.(a)Good housekeeping conditions shall be maintained at all times. Adequate aislesand passageways shall be maintained in all work areas. All staging platforms,ramps, stairways, walk-ways, aisles, and passageways on vessels or drydocksshall be kept clear of all tools, materials, and equipment except that which isin use, and all debris such as welding rod tips, bolts, nuts, and similarmaterial. Hose and electric conductors shall be elevated over or placed underthe walkway or working surfaces or covered by adequate crossover planks.[18] Dravo claimed inits petition for review that the hoses and lines did not present a hazard. Thisclaim was not argued in Dravo?s brief. Assuming that the contention remainsbefore us, it is without merit. Section 1916.51(a) consists of ?requirements orprohibitions that by their terms must be observed whenever specifiedconditions, practices or procedures are encountered.? Austin Bridge Company,79 OSAHRC ??, 7 BNA OSHC 1761, 1765-66, 1979 CCH OSHD ?23, 935 at p. 29,021(No. 76-93, 1979). The provisions of the standard, ?are predicated on theexistence of a hazard when their terms are not met? and accordingly ?the Secretaryis not required to prove that noncompliance . . . creates a hazard in order toestablish a violation.? Id. Furthermore, the record supports the judge?sfinding that Dravo?s employees were exposed to tripping hazards created by thecited conditions.[19] The housekeepingstandard lists only three methods of preventing hoses and lines from becomingtripping hazards: (1) elevating them over the walkway or working surface, (2)placing them under the walkway or working surface, or (3) covering them byadequate crossover planks. Dravo argues that these are the only methodsrequired by the standard and, therefore, that the other methods suggested bythe compliance officer are irrelevant. We disagree. The standard establishes apreference for the listed methods. If these methods cannot eliminate thehazard, an employer must use alternative methods in order to comply with therequirements of the first two sentences of the standard, i.e., maintain goodhousekeeping generally and clear passageways specifically. See KellyConstruction Services, Inc., 76 OSAHRC 89\/F3, 4 BNA OSHC 1491, 1976-77 CCHOSHD ?20,925 (No. 7102, 1976).[20] Judge Duvall foundthat Dravo previously used cable trees and cross-over plates. Dravo excepts tothis finding apparently because it can be read to mean that Dravo stopped usingthese devices. We do not read the finding in this way, and it does not appearthat the judge intended or relied on the finding as read by Dravo.[21] Dravo also assertsthat elevating and covering the lines and hoses could have increased thehazards to which employees were exposed. It is difficult to decide whether thisassertion is part of Dravo?s impossibility defense or a separate defense. If itis the former, it does not alter the discussion or conclusion reached above. Ifthe separate greater hazard defense is being raised, it must be rejected. Inorder to establish this defense, an employer must prove that (a) the hazardsthat would have been created by complying with the relevant standard would havebeen greater than the hazards that resulted from noncompliance, (b) alternativemeans of protecting employees were either used or unavailable, and (c) avariance application under section 6(d) of the Act would have beeninappropriate. M.J. Lee Construction Co., supra. As noted above, we haveaffirmed the judge?s finding that Dravo could have substantially reduced thetripping hazards on the boat. Accordingly, Dravo has not established the firstand primary element of the greater hazard defense, that compliance would createa greater hazard.[22] Dravo asserts thatthe Commission is obligated to follow the Third Circuit?s opinion in the BethlehemSteel case. Dravo is incorrect. See, e.g., S & H Riggers andErectors, Inc., 79 OSAHRC ??, 7 BNA OSHC 1260, 1979 CCH OSHD ?23,480 (No. 15855,1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).[23] The Chairman wouldalso find a violation repeated if, ?[i]n the absence of evidence that theantecedent and present violations concern noncompliance with the samestandard,? the Secretary establishes through other evidence ?that theviolations are substantially similar in nature.? Potlatch Corp., supra,7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28, 172.[24] CommissionerBarnako notes that Dravo has introduced evidence relating to the difficulty ofmaintaining good housekeeping conditions and efforts it has made to do so. See FMCCorp., supra (Barnako separate opinion). However, the ?good faith effort?defense has neither been clearly raised nor fully tried in this case.[25] Section 17(a) ofthe Act provides: ?Any employer who willfully or repeatedly violates therequirements of section 5 of this Act, any standard, rule, or order promulgatedpursuant to section 6 of this Act, or regulations prescribed pursuant to thisAct, may be assessed a civil penalty of not more than $10,000 for eachviolation.?”