“SECRETARY OF LABOR,Complainant,v.J. W. BILL CHRISTIE, INC.,Respondent.OSHRC DOCKET NO. 84-0852_ORDER_The Commission approves the parties’ stipulation and settlement agreement.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: _March 20, 1987_————————————————————————WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.J.W. BILL CHRISTIE, INC.,Respondent.OSHRC DOCKET No. 84-0852_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached a full and complete settlement of theabove-captioned matter presently pending on review before theOccupational Safety and Health Review Commission. The parties herebyagree as follows:II(a) The Occupational Safety and Health Review Commission (hereinafterthe \”Commission\”) has jurisdiction of this matter pursuant to Section10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590;29 U.S.C. ? 651 _et_ _seq_.) (hereinafter the \”Act\”).(b) Respondent, J.W. Bill Christie, Inc., is a corporation with itsprincipal place of business located in Frisco, Texas. It was at alltimes material to this proceeding engaged in the business of repairingnatural gas pipelines and during the course of its business itsemployees performed various tasks in the nature of repair of natural gaspipelines. During the course of its business, respondent uses materialand equipment which it received from places located outside Texas.Respondent, as a result of the aforesaid activities, is an employerengaged in a business affecting commerce as defined by section 3(3) and3(5) of the Act, and has employees as defined by section 3(6) of theAct, and is subject to the requirements of the Act.(c) As a result of an inspection conducted during the period of February9 through April 11, 1984 at respondent’s workplace at the intersectionof Spring Valley and North Central Expressway (U.S. Highway 75) inRichardson, Texas, a citation for two serious violations was issued torespondent on August 6, 1986, pursuant to Section 9(a) of the Act. Thecitation alleged violations of 29 CFR 1926.21(b)(2), 29 CFR1926.21(b)(6)(i), 29 CFR 1926.103(a)(1) and 29 CFR 1910.134(e)(3). Anotification of proposed penalty in the amount of $480 was also issuedto respondent on August 6, 1984.(d) Respondent filed a timely notice of contest to the citation andpenalty with the Secretary of Labor. The contest was duly transmitted tothe Commission. A hearing was held before Commission Administrative LawJudge E. Carter Botkin. Thereafter the judge issued a decision and orderaffirming the citation and assessing a penalty of $480 therefor.Respondent, thereafter, filed a petition for discretionary review withthe Commission. Review was directed on February 3, 1986.III(a)Complainant agrees to reduce the penalty to $240.(b)(1) Respondent hereby agrees to withdraw its notice of contest to thecitation and penalty as amended in section III(a) above.(2) Respondent avers that the conditions have been abated and shallremain abated.(3) Respondent agrees to post this Stipulation and Settlement Agreementin accordance with Commission Rule 7.(4) Respondent agrees to send a check to the Dallas, Texas OSHA AreaOffice in the amount of $240 within fifteen days of its signing of thisStipulation and Settlement Agreement.IV(a) Each party agrees to bear all of its own attorney fees, costs, andexpenses arising out of and incidental to the instant matter.(b) By entering into this stipulated settlement of these proceedings andthe undertaking and performance of any duty required by this stipulatedsettlement or the taking of any steps pursuant thereto, Respondent doesnot admit that it has violated the Act or any standards or regulationsissued thereunder or nor shall the act of entering into this stipulatedsettlement or such performance or the taking of such steps constituteany evidence against or admission by Respondent or form the basis of anyassertion of collateral estoppel, res judicata or other preclusionagainst Respondent except in proceedings brought under the Act by theSecretary.WHEREFORE, the parties agrees that under the above-noted conditions thismatter docketed before the Commission as Docket No. 84-0852 is herebysettled.FOR COMPLAINANT FOR RESPONDENT————————————————————————SECRETARY OF LABOR,Complainant,v.J. W. BILL CHRISTIE, INC.,AND ITS SUCCESSORS,Respondent.OSHRC DOCKET NO. 84-0852_DECISION AND ORDER_Appearances:Max A. Wernick, Esq., of Dallas, Texas,for the Complainant.George R. Carlton, Jr., Esq., of Dallas, Texas,for the Respondent.BOTKIN, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to ?10 of the OccupationalSafety and Health Act of 1970, 29 U.S.C. 651 _et_ _seq_. (\”the Act\”),contesting a citation issued by the complainant, the Secretary of Labor(\”the Secretary\”), to the Respondent, J. W. Bill Christie, Inc., and itsSuccessors (\”Christie\”), under authority vested in the Secretary by?9(a) of the Act.As the result of an accident occurring on February 8, 1984, at a manholelocated at the intersection of Spring Valley and North CentralExpressway (U.S. Highway 75), in Richardson, Texas, an inspection wasconducted during the period of February 9 through April 11, 1984. OnFebruary 8, 1984, Christie’s employees had been engaged in workactivities related to the performance of cathodic protection, repairwork, on a natural gas pipeline. One citation was issued to Christie onAugust 6, 1984. It charged Christie with two serious violations (both ofwhich included subitems) of ? 5(a)(2) of the Act for which a totalpenalty of $480.00 was sought.[[1]] Christie timely filed a notice ofcontest on August 21, 1984, commencing this proceeding under ? 10(c) ofthe Act. Thereafter, a complaint and answer were filed with theCommission. A hearing was held in this matter on November 29, 1984, inDallas, Texas. No affected employees or representatives of affectedemployees participated in the proceeding. The Secretary has submittedproposed findings of fact, conclusions of law and order. The matter isnow ripe for decision._ISSUES_1. Whether Christie was in serious violation of the cited standards (29CFR 1926.21(b)(2), 29 CFR 1926.21(b)(6)(i), 29 CFR 1926.103(a)(1), and29 CFR 1910.134(e)(3)).2. If Christie was in serious violation of one or more of the standardsset forth in paragraph 1 hereof, the appropriate penalty therefor._STIPULATIONS_The parties stipulated that (i) Christie is engaged in work onpipelines, including both construction and repair of pipelines, (ii) inthe instant circumstances, Christie’s employees were engaged in cathodicwork (repair) on a pipeline for Lone Star Gas (\”LSG\”), (iii) Christie isan employer engaged in a business which affects commerce, (iv)jurisdiction of this proceeding is conferred on the Commission by ?10(c)of the Act, and (v) Christie has no history of previous violations (Tr.5-9)._BACKGROUND OF THE WITNESSES_(1) Scott Sullivan (\”Sullivan\”), age 20, worked as a farmer aftergraduation from high school. He had worked for Christie for six to eightweeks during the period of December 1983 into February 1984, terminatingthat employment relationship shortly after the accident (Tr. 69-71). Forapproximately one month, his initial assignment for Christie totallyinvolved new construction, working as a laborer cleaning and smoothingout the bottom of ditches so that pipe could be laid. No repair work wasdone on that job (Tr. 71-72, 79). Thereafter, he transferred to adifferent crew where he worked with Preston Walker, age 19, and BillyParker, age 22 (Tr. 70-72, 80). Parker, as foreman of that crew,instructed and trained Sullivan on job procedures, acquainting him withequipment, the work routine, etc. (Tr. 70, 80-81). Among other things,that crew performed some cathodic protection work. Sullivan had workedon two cathodic protection jobs prior to the accident (Tr. 80-81). Itwas Sullivan’s responsibility to prepare things so that the cathodicprotection jobs could be performed correctly (Tr. 72-73).(2) Kenneth Cooper (\”Cooper\”) had been employed by Christie sinceJanuary 1972. Christie has performed cathodic protection workexclusively for LSG since July 1972 and Cooper was the foreman on thefirst crew. Since 1975 he has supervised Christie’s crews. Among otherthings, this involves (i) being a liaison between crews of LSG andChristie so that matters function smoothly, (ii) making sure that crewsare provided the necessary work materials and tools, (iii) seeing to itthat crews follow proper procedures and function properly (knowledge andsupervision of the cathodic protection program), and (iv) givingon-the-job safety training to the crews (Tr. 86-87, 91-92).(3) Gerald K. Forester (\”Forester\” or \”the CO\”) has been employed by theOccupational Safety and Health Administration (\”OSHA\”) as a complianceofficer since May 1973. Since then, he has conducted approximately 1500inspections. Prior thereto, he was employed as an engineering technicianby the U.S. Army Corps of Engineers. During that term of employment, hewas engaged in the different phases or areas that said employer covered.While so employed, he was certified as an engineering technician by theSociety of Professional Engineers. His formal education included threeyears of college level work in several different fields, engineering andgeology. He has taken all of the training courses required by OSHA,together with nearly all of the other courses offered by it. He has alsoattended seminars and training courses given by various companieslocally, including one with LSG (Tr. 11-14). He has attended a number ofseminars related to employees working in confined spaces such asmanholes. Those seminars dealt with generally accepted practiceregarding what instructions should be given to workers as to hazardspresent and how to avoid those hazards (Tr. 29)._PARTIAL SUMMARY OF THE TESTIMONY__Sullivan_-Sullivan was one of the three employees assigned to theworkplace which is the subject of this case (Tr. 70, 75). Thisparticular job involved cathodic protection (Tr. 80-81). This was thefirst one Sullivan had encountered which was enclosed (Tr. 81). Heentered this manhole so that Parker could show him how to install thenew insulators. The manhole was approximately seven to eight feet deep.As Sullivan stood at the bottom of the manhole, the pipeline wasapproximately 14 to 16 inches above the bottom thereof and ground levelwas above his head. His work position involved leaning over to placewrenches on the pipeline (Tr. 75-76). Parker took the cover off of themanhole, leaving it open before they went down there (Tr. 82-83). Parkertold him that there was natural gas in the pipeline (Tr. 74, 83-84).Sullivan does not know whether Parker, or anyone else, tested for gas orsmelled for it (Tr. 82, 84). It was Parker’s job to do, but he wasuncertain whether Parker had done so (Tr. 84). Parker had told him thatthere was a possibility of oxygen deficiency in the manhole if gasescaped from the pipeline (Tr. 74, 83-84). This was the only hazard ofwhich he was informed (Tr. 74). However, since it is common knowledgethat natural gas will burn, Sullivan agreed this was something that hedid not need to be told (Tr. 84). Sullivan could not recall receivingany instructions from company officials on how to avoid the hazards (Tr.74). He did not receive (i) any instructions or information aboutemergency situations that might arise while working in a manhole, or(ii) instructions about respirators or the safe use thereof (Tr. 75)._Cooper_-Parker was the foreman on this job. He had only been a foremanfor two weeks and this was his first job in that capacity (Tr. 92-93,100). However, he had worked for Christie for 1 1\/2 years prior thereto,working his way up to the job of foreman. Consequently, he was familiarwith the work, simply overseeing as foreman those jobs that he had beenperforming in other capacities. His experience included familiarity withcathodic protection procedures which he had been doing for the sameperiod of time (Tr. 100-101). Cooper was not at the scene of theaccident and did not personally investigate it, but relied oninformation provided by others (Tr. 91-92).Cathodic protection is the procedure done on the pipeline. Partly, it isthe proper approach to removing bolts out of the pipeline, installinginsulation and replacing the bolts along the flange. The policy is toonly take one of the eight bolts out at a time. This is a precaution tomaintain the integrity of the pipe and seals (Tr. 101-103).The safety staff is composed of Burke Isabell (\”Isabell\”), a retiredschool principal, and Walter Ocherbauck (\”Ocherbauck\”), who retired aschief engineer for LSG after working for that firm for many years (Tr.87, 90). Christie works in conjunction with LSG’s procedures. When LSGinitiates new procedures, Isabell analyzes them and distributes copiesthereof to all foremen. Christie’s procedures are contained in the \”BlueBook\” which has to be on the job, or in the truck, at all times. Amongother things, Isabell makes personal checks of crews on the job toverify that required safety equipment is available and\/or being used. Arecord is maintained of those checks (Tr. 88-89). Ocherbauck serves as aconsultant. His responsibilities include (i) checking crews (over aperiod of time) to insure that they are conforming work to LSG’sstandards, (ii) consulting on matters related to safety procedures, and(iii) being responsible for seeing to it that safety procedures used byChristie are in conformity with LSG requirements (Tr. 90-91). Safetyprocedures utilized by Christie, including those related to cathodicprotection are formulated by Isabell, Ocherbauck and J. W. BillChristie, Sr. (\”J.W., Sr.\”)(Tr. 89). LSG requires Christie to follow itsprocedures to the letter on both (i) the manner in which something isdone, and (ii) the safety precautions (Tr. 89-90). In fact, LSG has asenior inspector who, among other things, inspects Christie’s crews (Tr.90).Cooper gives safety training to the crews out on the job. Such trainingis on a continual and endless basis (Tr. 91-92). He had dealt withParker, the foreman on this job, on many occasions, instructing him onproper safety procedures, such as checking for gas, airing out holes,etc. (Tr. 92, 101). As far as Cooper knew, those procedures wereproperly performed in this case. Those procedures were not out ofconformity with the requirements of LSG on safety. Based on hisexperience, he did not find that the crew had done anything contrary torecognized safety procedures in the industry[[2]] (Tr. 91-92).Since 1972, Cooper had personally been involved in cathodic protectionwork (insulation of flow control or gate valves) on thousands ofoccasions. He had encountered only three or four workplaces on thoseoccasions which required him to enter a manhole to perform the work (Tr.93). Christie’s other crews would also have very little experience alongthat line, since there are not many vaults at that depth (Tr. 93-94).Christie has no written procedures regarding entry into vaults (Tr. 94).The only instructions given to employees, regarding hazard recognitionin manholes or vaults, is to use the senses (the eyes, ears and nose)(Tr. 95). Consequently, there are no written procedures for Christie’sworkers, who must enter manholes while involved in cathodic protection,in regard to the use of respirators, self-contained breathing apparatusor other types of personal protective equipment such as a lifeline (Tr.94-96). Employees are instructed (i) to pull the lid off of a manhole,(ii) to pump out water, if any, covering the float control valve, and(iii) to vent or air out the vault if gas is detected or suspected. Thisprocedure is followed in all manhole or vault situations, including theshallow ones (Tr. 96-97). Over a period of years, they have discoveredone or two (pipelines) valve stems leaking when the lid is removed. Theyare in need of packing or greasing. The company continuously instructsworkers to stay out of the vaults in those situations (where gas iseither suspected or known to be present) and to advise LSG of the leak,who notifies Christie when the repair is accomplished (Tr. 97-98).Cooper had personally instructed the two employees who died on thoseprocedures. He had never known them to disobey procedures (Tr. 99). LSGdoes not have any written safety procedures for Christie’s employees tofollow when going into manholes; it does provide that its own employeesshall use respirators, snatch jackets, etc., when going in if gas ispresent. LSG is aware of how Christie’s employees perform cathodic work,has observed their doing it and is aware of Christie’s safetyprocedures. LSG has never voiced an opinion that Christie’s employeeswere doing anything unsafely (Tr. 98-99)._Forester_-Forester was assigned to conduct the investigation of thesubject workplace located at Spring Valley and North Central Expresswayin Richardson, Texas (Citation and Tr. 14, 19, 39). The inspection tookplace between February 9 and April 11, 1984 (Tr. 14, 22). He believesthat the accident had occurred on February 8, 1984 (Tr. 16, 22). Theopening conference was held with J.W., Sr., president of Christie; buthe also spoke with other management officials of Christie, includingCooper (field superintendent), Isabell (safety director), Sam Christie(vice-president) and Ocherbauck (consultant) (Tr. 15-17). He discussedtraining and procedures provided to employees with Cooper, Isabell andOcherbauck (Tr. 18). He also talked with those company officials, aswell as Sam Christie, in an attempt to obtain a physical description ofthe workplace, an understanding of the type of work being performed bythe employees and information relating to how the accident occurred (Tr.16-18).In general, those officials informed the CO that (i) the functions beingperformed at the subject location involved activities related tocathodic protection of the flange on a flow valve located on a pipelinein a manhole, and (ii) there were three workers on that particular job(Tr. 17-19, 22, 39, 42). Cathodic protection is a procedure to preventcorrosion of the pipeline, by isolating two sections (metal) from eachother by insulation (Tr. 19, 22). Christie was performing this workpursuant to a contract with LSG. Representatives of LSG issueddirections to Christie’s employees of where to work (location of thepipeline) and the cathodic protection necessary to install (Tr. 19). TheCO did not obtain dimensions of the manhole from Christie’srepresentatives. After the accident occurred, the CO made a physicalexamination of the workplace, but there had been an excavation of thearea involving the manhole. Approximate dimensions were ascertained bymeasuring the distance from ground level to the base of the valve. Itwas bell- shaped with a cover which was approximately 22 inches indiameter. It was approximately 6? – 7 feet deep with an inside diameterof approximately four feet. The pipeline was approximately six feetunderground (Tr. 20-21, 55, 57). The fitting, being worked on, was aflange on the valve. This flange, a connection consisting of two roundpieces of metal, has a lip extending from the inside of the pipeline forapproximately two inches outside thereof. There were eight holes in bothflanges, coupled together by bolts. The cathodic protection involved theinstallation of insulation inside the holes to prevent the pipe sectionsfrom coming in contact with each other (Tr. 21- 22).Christie’s officials were not present when the accident occurred. Theonly information they had was gathered from one employee, who survived,and Cooper, the superintendent (Tr. 39- 40). The CO determined that theaccident was a rupture of the pipeline which released gas into themanhole; but, it did not cause a fire or explosion (Tr. 42-43). Hegained this information initially from a news report, which was latersupplemented by talking with J.W., Sr., and Cooper, plus otherinvestigative findings. Those two officials told the CO that (i) thethree employees were working at that location, and (ii) one employee wasin the manhole when the gasket ruptured on the flange, causing gas toleak in a large volume (pressure unknown). The employee inside themanhole was overcome and keeled over. Another employee saw what hadtranspired and went into the manhole to save his fellow employee; but,he also keeled over. The surviving employee attempted in vain to pullthat employee out. Both of the employees in the manhole died (Tr.43-44). Both J.W., Sr. and Cooper stated that performance of work inmanholes below ground level was rare (Tr. 33-34, 52-53).The CO’s evaluation of Christie’s safety program, after the inspection,resulted in the highest rating in all categories (3’s or above average)These categories included comprehensiveness of safety program (written),communication of program to employees (weekly safety meetings conductedby Cooper), enforcement of program (direct supervisory warnings), safetytraining program (safety staff composed of safety director), etc.Accidents are investigated with action taken. The CO felt that hisfindings indicated that Christie was safety oriented (Tr. 44-51, Ex.R-1).[[3]]The CO’s familiarity with the hazards associated with workplaces such asthe one at issue stemmed from seminars attended and training receivedabout work in confined spaces in this and other types of worksituations.[[4]] They dealt with the generally accepted practicesregarding instructions given to employees about the hazards presentedand how to avoid those hazards. The training received from LSG relatedto the recognition of hazards presented by work in manholes onlyconfirmed his earlier training (Tr. 23-24, 29). The principal hazardsencountered in this type of work are an oxygen deficiency or gas presentin explosive quantities (Tr. 24).[[5]] Those hazards could arise fromseveral sources, a leak in the pipeline or decay of organic matter. Suchdecay can create various types of gases (methane, carbon monoxide,carbon dioxide and hydrogen) which can cause oxygen deficiency or canexist in a flammable mixture (Tr. 24-25). Additionally, the simplerusting of metal in a confined space, such as pipe and valveconnections, consumes oxygen and can cause an oxygen deficiency (Tr. 25-26).Based on his training and experience, employees should be instructedabout hazards associated with entry into a confined space (the hazardspossible to encounter) and how to determine if they are present bytesting the atmosphere prior to entry (Tr. 29-30). The atmosphere can betested initially and at various intervals by gas combustion or explosionmeters and oxygen meters. If there is a problem, an air bowser can beused to ventilate the manhole (Tr. 26-27, 30-31). If that does noteliminate the problem, then entry into the confined space can be madeusing respiratory protection such as a self-contained breathingapparatus (scuba gear) or in-line respirators (Tr. 26, 31). The CO hasfound that such employees, who are required to enter manholes that areconfined spaces, are typically given written instructions on the properuse and care of respirators (Tr. 33).Both J.W., Sr. and Cooper stated to the CO that work which requiredentry into manholes (below ground level) was very rare (Tr. 34, 52-53).The only instructions that employees were given as to possible hazardsin that situation related to the possibility of gas being present in agas line was in a manhole (Tr. 34-35). They were instructed to take offthe manhole cover and to sniff for gas. If gas was smelled, then theylet the manhole air out for a couple of hours (Tr. 35, 53, 57-58). If itwas not gone then, workers were told to contact LSG who would make anynecessary repair (Tr. 58-60). All employees who perform this type ofwork receive the same instructions (Tr. 60-61, 64). He stated that thesource of leaks in a LSG manhole could emanate from an adjacent sewerline creating methane or hydrogen sulfide; but, he did not know if therewere any adjacent sewer lines in this situation (Tr. 59). He suspectedthat any gas in this manhole could possibly percolate out in 2 hours;but he could not know without testing (Tr. 59-60). The CO could not findany instructions covering any type of emergency equipment. There were noemergency protective devices or equipment on that jobsite (Tr. 36-39).Various types of possible emergency equipment identified by the COincluded SCUBA gear and self-rescuers (attached to the belt with a 10-15minute oxygen supply). Another type of emergency equipment involved theuse of a body harness (safety belt with lifeline) on the person in themanhole. The lifeline would go to a worker out of the manhole who couldpull the worker out of the manhole in case of an emergency (Tr. 36-37).Christie officials had not made a determination that a need existed forany type of respirators; therefore, there were no written proceduresrelated to the use and care of such equipment or the safe use thereof indangerous atmospheres (Tr. 38-39, 61-62).Based on a comparison of the instructions given by Christie andinstructions generally provided by employers to employees in suchworkplaces, the CO felt that Christie’s instructions were inadequate. Henoted that the instructions failed (i) to point out hazards, (ii) to setforth procedures to maintain a safe atmosphere, and (iii) to provide foremergency situations (either written or verbal) (Tr. 40-41).The CO did not feel that the sniff test offered any advantage over metertypes of tests. Disadvantages noted by the use of that test included aninability (i) to ascertain the quantity of a gas or the lower or upperexplosive levels thereof, (ii) to learn how much oxygen has beendisplaced, and (iii) to detect odorless gases (Tr. 27-28). Moreover, thesense of smell can be quickly lost by exposure to certain agents, suchas hydrogen sulfide (Tr. 28, 53).This was a LSG pipeline (Tr. 51-52). The CO stated that (i) he is awareof LSG’s safety program and procedures, and (ii) LSG procedure does notrequire safety lines, respirators or protective equipment until gas isactually detected (Tr. 52, 60). He agreed that LSG has astate-of-the-art safety program (Tr. 52)._DISCUSSION_A close examination of the evidence in this case reveals that many ofthe underlying facts are not in dispute. Since the evidence has beensummarized in detail, only those matters crucial to a resolution of theissues will be discussed at any length.It is well-settled that to prove a violation of a standard, theSecretary must show that the cited standard applies to the citedcondition. _Howard Barthelmass Painting Co., Inc._, 81 OSAHRC 84\/E1, 9BNA OSHC 2160 1981 CCH OSHD 25,636 (No. 78-5450, 1981). All of thealleged violations are based upon an assumption that the workplacequalifies as a \”confined space.\” Consequently, it is necessary todetermine the correctness of that assumption. ?1926.21(b)(6)(ii)contains a definition of \”confined or enclosed space\”.[[6]] In essence,the CO’s description of the workplace (manhole) was not controverted(Tr. 20-21, 55, 57).[[7]] Under the factual circumstances of this case,it cannot be seriously argued that the workplace in question does notmeet the definition of a \”confined space\” found in ?1926.21(b)(6)(ii).In general, the subitems of item 1 of the citation can be collectivelydescribed as an alleged failure of Respondent to instruct each employee(i) in the recognition and nature of hazards applicable to his work(cathodic protection) which requires entry into manholes (natural gaspipeline vaults), and (ii) in the avoidance of such hazards by takingnecessary precautions and in the use of protective and emergencyequipment. Those subitems of item 2 deal with the same work situation.They are concerned with an alleged failure (i) to provide employees withappropriate respiratory protective devices to be used for escape duringemergencies, (ii) to provide written procedures (instructions) for thesafe use of respirators in dangerous atmospheres that might beencountered in the work situation, and (iii) to familiarize employeeswith such procedures to be used in dangerous atmospheres.I find no obvious discrepancies between the testimony of Sullivan[[8]]and Cooper. Cooper’s unrebutted testimony reveals that (i) safetytraining is given by him to the crews out on the job, (ii) such trainingis on a continual and endless basis, (iii ) Parker, the foreman on thisjob, had been instructed by him on many occasions on the safetyprocedures of checking for gas, airing out holes, etc. (Tr. 91-92,96-97, 100). Other uncontroverted testimony by him reveals that (i)cathodic protection work requiring a crew to enter a manhole(underground vault) is extremely rare with the concomitant result of avery limited amount of crew experience in that situation, (ii) Christiehas no written procedures regarding entry into such vaults, (iii) theonly instructions given to employees, regarding hazard recognition inmanholes or vaults, is to use the senses (eyes, ears, and nose), (iv)employees are instructed to pull the lid off a manhole, to pump outwater (if any) covering the float control valve and to vent or air outthe vault if gas is detected or suspected, (v) the procedure detailed in(iv) hereof is followed in all manholes or vaults, including the shallowones, (vi) over the years, only one or two pipeline valve stems wereleaking when the lid was pulled off, (vii) workers are continuouslyinstructed to stay out of vaults where gas is suspected or known to bepresent, to advise LSG of the leak who notifies Christie when the repairis accomplished, and (viii) Cooper had personally instructed the twoemployees, who died, on those procedures (Parker and Walker) (Tr. 93-99)There is no evidence that any of those procedures were violated in thiscase (Tr. 82, 84, 91- 92, 99).[[9]] Sullivan testified that it wasParker who instructed and trained him on job procedures (Tr. 70,80-81).[[10]] Parker had informed him that there was a possibility ofoxygen deficiency in the manhole if gas escaped from the pipeline (Tr.74, 83-84). This was the only hazard of which he was informed (Tr.74).[[11]] He did not receive (i) any instructions on how to avoid suchhazards, (ii) any instructions or information about emergency situationsthat might arise while working in a manhole, or (iii) instructions aboutrespirators or the safe use thereof (Tr. 74-75).[[12]]The Secretary’s case is primarily based on the CO’s testimony in aregard to his educational background, training and work experience inmatters related to hazards associated with work in a confined space.Insofar as ascertainable, Respondent bases its defense on Cooper’stestimony regarding the nature and relationship of its safety programand procedures to those mandated by LSG, together with the Secretary’sassessment of the stature of LSG’s safety program.[[13]] The bottom lineon this matter rests squarely on a finding regarding the credibility oftestimony by these two witnesses. In arriving at this finding, a closelook must be given to that which went unstated, as well as to thetestimony itself.A totality of the evidence supports a finding that each of theviolations, as alleged, has been established. As related to item 1, keyareas of the CO’s testimony were unrebutted.[[14]] The principal hazardsencountered in this type of work are an oxygen deficiency or gas presentin explosive quantities. While Respondent instructs employees thatnatural gas which has escaped from a pipeline into a manhole can causean oxygen deficiency, there is simply no evidence that such employeesare instructed that such gas can be present in explosivequantities.[[15]] Moreover, the CO testified that both hazards (oxygendeficiency and gas in explosive quantities) can arise from sources otherthan a leak in a pipeline. His uncontroverted testimony shows thatdecayed matter can cause both of those hazards by creating various typesof gases (methane, carbon monoxide, carbon dioxide or hydrogen sulfide)which can cause an oxygen deficiency or exist in a flammablemixture.[[16]] Additionally, an oxygen deficiency can be caused by therusting of metal (pipe and valve connections) in the manhole. In hisopinion, employees should be instructed about hazards possible toencounter when entering a confined space and how to determine whetherthey are present, prior to entry, by testing the atmosphere with gascombustion and oxygen meters. They should also be tested at intervalsthereafter. I agree. I further agree that such meters lack thedisadvantages of the sniff test pointed out by the CO. Finally, I am notconvinced by Respondent’s stated reliance on the mandates of LSG’sprocedures and safety requirements. Cooper testified at length about thetight controls exercised by LSG. In that light, I find it surprisingthat LSG has not issued any safety procedures, either verbal or written,for Respondent’s employees to follow when actually entering and workingin manholes. However, since actual entry into manholes by Respondent’semployees is so rare, this may have been overlooked by LSG.[[17]]Otherwise, I would find it inexplicable that LSG has written proceduresfor Respondent’s use on other matters (installation, thermal welding,etc.), but not on safety procedures for entry into a manhole (confinedspace) (Tr. 98-99).I also find the CO’s testimony persuasive in regard to the variousallegations found in item 2. Once again, he testified that, under suchcircumstances (work requiring entry into manholes qualifying as aconfined space), it is industry practice for employers (i) to provideand require the use of appropriate respiratory protection(self-contained breathing apparatus or in-line respirators) whenemergencies require, (ii) to prepare written procedures covering thesafe use of respirators in dangerous atmospheres that might beencountered during emergencies, and (iii) to familiarize such employeeswith those procedures and available respirators. Respondent did notprovide such workers respirators or any other type of emergencyequipment to be used in such circumstances (Tr. 36-41, 61-62, 94-96).Moreover, Cooper stated that he was unaware of industry practiceregarding the use of respirators (Tr. 103). In this particularsituation, employees were engaged in cathodic protection on a livepipeline while working in a confined space. I find that a reasonableperson familiar with this procedure would recognize that an emergencysituation could arise. Unfortunately, it did in this particular case.Based on the credible evidence of record, I find (in regard to allsubitems, in items 1 and 2) that (i) the terms of each of the subjectstandards were violated, (ii) in each situation, Respondent failed tofollow industry practice, (iii) as a result of each of the violations,Respondent’s employees were exposed to unsafe and hazardous workconditions, (iv) if an accident occurred as a result of any of theviolations, there was a substantial probability that death or seriousphysical harm could result, (v) the supervisor’s knowledge and actionsregarding the violative facts are imputed to Respondent, (vi) thefactual circumstances that form the basis of the violations werereasonably foreseeable, and (vii) the method of abatement is bothobvious and easily attainable.In light of the record and the statutory penalty criteria set forth in ?17(j) of the Act, I conclude that a total penalty of $480.00 ($240.00for each item) is reasonable and appropriate.[[18]]_FINDINGS OF FACT_The evidence of record has been fully considered and evaluated in itsentirety. Findings of fact have been exhaustively set forth under theheadings of STIPULATIONS, BACKGROUND OF THE WITNESSES and DISCUSSION. Toavoid unnecessary repetition, they are hereby incorporated by reference._CONCLUSIONS OF LAW_1. At all times material hereto, Respondent was an employer within themeaning of ? 3(5) of the Act, engaged in a business affecting commerce,and having employees.2. The Commission has jurisdiction over the parties and subject matterof the proceeding.3. Respondent was in serious violation of 29 CFR 1926.21(b)(2).4. Respondent was in serious violation of 29 CFR 1926.21(b)(6)(i).5. Respondent was in serious violation of 29 CFR 1926.103 (a) (1).6. Respondent was in serious violation of 29 CFR 1910.134(e)(3)._ORDER_Upon the basis of the foregoing findings of fact, conclusions of law,and the record as a whole, it is ORDERED that:1. To the extent that the Secretary’s requested findings of fact andconclusions of law are inconsistent with this decision, they are DENIED.2. Item 1 of serious citation 1, alleging violations of 29 CFR1926.21(b)(2) and 29 CFR 1926.21(b)(6)(i), is AFFIRMED, and a civilpenalty of $240.00 is ASSESSED.3. Item 2 of serious citation 1, alleging violations of 29 CFR1926.103(a)(1) and 29 CFR 1910.134(e)(3) is AFFIRMED, and a civilpenalty of $240.00 is ASSESSED.E. CARTER BOTKINAdministrative Law JudgeDate: December 27, 1985————————————————————————APPENDIXCitation1a[[1]]29 CFR 1926.21(b)(2): The employer did not instruct each employee in therecognition and avoidance of unsafe condition(s) and the regulation(s)applicable to his work environment to control or eliminate any hazard(s)or other exposure to illness or injury:(a) Intersection of Spring Valley and North Central Freeway, manhole -Cathodic Protection operation on gate valve in natural gas pipelinevalve vault, recognition of hazards connected with prior entry intomanhole vaults.1b29 CFR 1926.21(b)(6)(i): Employees required to enter into confined orenclosed spaces were not instructed as to the nature of the hazardsinvolved, the necessary precautions to be taken, and in the use ofprotective and emergency equipment required:(a) Intersection of Spring Valley and North Central Freeway, manhole -Cathodic Protection operation – requiring entry into manhole and naturalgas pipeline valve vault.2a[[2]]29 CPR 1926.103(a)(1): The employer did not provide or enforce employeeuse of appropriate respiratory protective devices in emergencysituations or when controls required by subpart D of 29 CFR part 1926,either failed or were inadequate to prevent harmful exposure to employees:(a) Intersection of Spring Valley and North Central Freeway, southeastcorner, employees required to work in confined space were not providedwith emergency escape respirators.2b29 CFR 1910.134(e)(3): Written procedures were not prepared coveringsafe use of respirators in dangerous atmospheres that might have beenencountered in normal operations or in emergencies:(a) Intersection of Spring Valley and North Central Freeway, southeastcorner, employees required to work in confined space were not providedwritten instructions for emergency conditions that could be encounteredwhile performing Cathodic Protection on line gas valve.2c29 CFR 1910.134(e)(3): Personnel were not familiar with procedures andthe available respirators to be used in dangerous atmospheres that mighthave been encountered in normal operations or in emergencies:(a) Intersection of Spring Valley and North Central Freeway, southeastcorner, employees required to work in confined space were not providedwritten instructions for emergency conditions that could be encounteredwhile performing Cathodic Protection on line gas valve._Standards_1a – 29 CFR 1926.21(b)(2)(2) The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.1b – 29 CFR 1926.21(b)(6)(i)(6)(i) All employees required to enter into confined or enclosed spacesshall be instructed as to the nature of the hazards involved, thenecessary precautions to be taken, and in the use of protective andemergency equipment required. The employer shall comply with anyspecific regulations that apply to work in dangerous or potentiallydangerous areas.2a – 29 CFR 1926.103(a)(1)(a) _General_. (1) In emergencies, or when controls required by SubpartD of this part either fail or are inadequate to prevent harmful exposureto employees, appropriate respiratory protective devices shall beprovided by the employer and shall be used.2b – 29 CFR 1910.134(e)(3)(3) Written procedures shall be prepared covering safe use ofrespirators in dangerous atmospheres that might be encountered in normaloperations or in emergencies. Personnel shall be familiar with theseprocedures and the available respirators.2c – (The same as set forth in 2b hereof)FOOTNOTES:[[1]] The text of the citations and the text of the standards areappended to this decision.[[2]] This is consistent with his statement of never having seenrespirators in cathodic protection work. However, he also stated that hewas unaware of what other people in the industry do regarding the use ofrespirators in such work (Tr. 103).[[3]] Christie employed 130 people (Tr. 42). The CO stated that theinspection was an evaluation of Christie’s entire program. The overallrating was not lowered by a finding of the subject deficiencies (Tr. 64-66).[[4]] He defined a confined space as one which is more than four feetdeep with a limited means of gaining entry or exit (Tr. 56).[[5]] Exposure to either of those hazards could lead to death or seriousphysical harm (Tr. 25)[[6]] This section defines a confined or enclosed space as follows:(ii) For purposes of paragraph (b)(6)(i) of this section, \”confined orenclosed space\” means any space having a limited means of egress, whichis subject to the accumulation of toxic or flammable contaminants or hasan oxygen deficient atmosphere. Confined or enclosed spaces include, butare not limited to, storage tanks, process vessels, bins, boilers,ventilation or exhaust ducts, sewers, underground utility vaults,tunnels, pipelines, and open top spaces more than 4 feet in depth suchas pits, tubs, vaults, and vessels.[[7]] The only exception thereto involved the depth of the manhole.Sullivan felt the manhole was 7-8 feet below ground level while the COindicated it was 6?-7 feet deep. Both were approximations (Tr. 20-21,55, 57, 75). I find that the bottom of the manhole was at least 6? feetbelow ground level. Otherwise, I find that it was bell-shaped with acover which was approximately 22 inches in diameter. The inside diameterwas approximately 4 feet. There was a natural gas pipeline situatedtherein (Tr. 20-21, 55, 57).[[8]] Although there was an effort to damage the credibility of Sullivanbased on a possible financial interest, I did not find that effortconvincing (Tr. 77-79). This witness answered questions directly andwithout equivocation. He left the impression of being honest and guileless.[[9]] Other evidence establishes that the workers had been working atthe subject location and in the manhole for a significant period of timeprior to the accident (the rupture of the gasket on the flange of thepipeline causing a large volume of natural gas to leak into the manhole)(Tr. 22-23, 42-44).[[10]] I note that this was not contradicted by Cooper. Moreover, henever mentioned giving Sullivan instructions on safety or workprocedures. Instead, his testimony centered specifically on Parker andWalker (Tr. 39). I do not find this surprising. After all, Sullivan wasnot only a relatively new employee, but had transferred to this type ofwork crew only a short time prior to the accident (Tr. 69-73, 79-81).[[11]] This includes the hazard of natural gas catching on fire orexploding.[[12]] All of those matters set forth in the foregoing paragraph arehereby found as facts.[[13]] The CO referred to it as a state-of-the-art safety program.[[14]] I found the CO to be a compelling witness, based on both hisdemeanor and testimony. Beyond his formal educational background,completion of safety training courses and many years of work in thefield of safety, he has attended a number of seminars related toemployees working in confined spaces such as manholes. Significantly,those seminars included one given by LSG.[[15]] This is not cured by Sullivan’s testimony that, since it iscommon knowledge, he did not need to be told that natural gas will burn.Very simply, an assumption, that matters of \”common knowledge\” need notbe the subject of safety instructions, does not satisfy an employer’sduty under either ?1926.21(b)(2) or ?1926.21(b)(6)(i).[[16]] The fact that the CO did not know if there were adjacent sewerlines in the area (a possible source of methane or hydrogen sulfide) hasbeen considered. This testimony does not rule out that source, othersources of those gases, or the other gases mentioned. Moreover, thesubject matter at issue in item 1 is to a large degree related to\”instructions\” on the (i) recognition and nature of hazards, and (ii)avoidance thereof by precautions taken and use of protective andemergency equipment. Whether they actually exist in this or any otherparticular case begs the question.[[17]] To the extent that this is the case, I would not agree with theCO’s statement regarding a state-of-the-art safety program. Both Cooperand the CO testified that LSG requires its own employees to userespirators, snatch jackets, etc., when going into manholes if gas is\”present\” or \”detected.\” However, this testimony does not establish howLSG determines whether gases are present. In particular, I note thatCooper’s testimony is silent regarding whether LSG’s employees use gascombustion and oxygen meters to detect gases prior to entry into amanhole (confined space).[[18]] Respondent has a constant workforce of approximately 60employees. At times, it has employed approximately 130 workers.[[1]] Preferring statements regarding the alleged violations set forthin item 1 were that (i) they had been grouped because they involvedsimilar or related hazards that may increase the potential for injuryresulting from an accident, and (ii) they were alleged to have occurredon or about February 8, 1984. The Secretary required immediate abatementof these conditions and a penalty of $240.00 was proposed.[[2]] All of the prefacing statements in footnote 1 are equallyapplicable to item 2. Once again, the Secretary required immediateabatement of the conditions and a penalty of $240.00 was proposed.”