“Docket No. 84-0852 SECRETARY OF LABOR, Complainant, v. J. W. BILL CHRISTIE, INC., Respondent.OSHRC DOCKET NO. 84-0852ORDER The Commission approves the parties’ stipulation andsettlement agreement.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDated: March 20, 1987WILLIAM E. BROCK, SECRETARY OF LABOR, Complainant, v. J.W. BILL CHRISTIE, INC., Respondent.OSHRC DOCKET No. 84-0852STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached a full and completesettlement of the above-captioned matter presently pending on review before theOccupational Safety and Health Review Commission. The parties hereby agree as follows:II (a) The Occupational Safety and Health ReviewCommission (hereinafter the \”Commission\”) has jurisdiction of this matterpursuant to Section 10(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 acorporation with its principal place of business located in Frisco, Texas. It was at alltimes material to this proceeding engaged in the business of repairing natural gaspipelines and during the course of its business its employees performed various tasks inthe nature of repair of natural gas pipelines. During the course of its business,respondent uses material and equipment which it received from places located outsideTexas. Respondent, as a result of the aforesaid activities, is an employer engaged in abusiness affecting commerce as defined by section 3(3) and 3(5) of the Act, and hasemployees as defined by section 3(6) of the Act, and is subject to the requirements of theAct.(c) As a result of an inspection conducted during theperiod of February 9 through April 11, 1984 at respondent’s workplace at the intersectionof Spring Valley and North Central Expressway (U.S. Highway 75) in Richardson, Texas, acitation for two serious violations was issued to respondent on August 6, 1986, pursuantto Section 9(a) of the Act. The citation alleged violations of 29 CFR 1926.21(b)(2), 29CFR 1926.21(b)(6)(i), 29 CFR 1926.103(a)(1) and 29 CFR 1910.134(e)(3). A notification ofproposed penalty in the amount of $480 was also issued to respondent on August 6, 1984.(d) Respondent filed a timely notice of contest tothe citation and penalty with the Secretary of Labor. The contest was duly transmitted tothe Commission. A hearing was held before Commission Administrative Law Judge E. CarterBotkin. Thereafter the judge issued a decision and order affirming the citation andassessing a penalty of $480 therefor. Respondent, thereafter, filed a petition fordiscretionary review with the 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 itsnotice of contest to the citation and penalty as amended in section III(a) above.(2) Respondent avers that the conditions have beenabated and shall remain abated.(3) Respondent agrees to post this Stipulation andSettlement Agreement in accordance with Commission Rule 7.(4) Respondent agrees to send a check to the Dallas,Texas OSHA Area Office 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 attorneyfees, costs, and expenses arising out of and incidental to the instant matter.(b) By entering into this stipulated settlement ofthese proceedings and the undertaking and performance of any duty required by thisstipulated settlement or the taking of any steps pursuant thereto, Respondent does notadmit that it has violated the Act or any standards or regulations issued thereunder ornor shall the act of entering into this stipulated settlement or such performance or thetaking of such steps constitute any evidence against or admission by Respondent or formthe basis of any assertion of collateral estoppel, res judicata or other preclusionagainst Respondent except in proceedings brought under the Act by the Secretary.WHEREFORE, the parties agrees that under theabove-noted conditions this matter docketed before the Commission as Docket No. 84-0852 ishereby settled.FOR COMPLAINANT\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0FOR RESPONDENTSECRETARY OF LABOR, Complainant, v. J. W. BILL CHRISTIE, INC., AND ITS SUCCESSORS, Respondent.OSHRC DOCKET NO. 84-0852DECISION AND ORDERAppearances: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 Health Review Commission(\”the Commission\”) pursuant to ?10 of the Occupational Safety and Health Act of1970, 29 U.S.C. 651 et seq. (\”the Act\”), contesting a citationissued by the complainant, the Secretary of Labor (\”the Secretary\”), to theRespondent, J. W. Bill Christie, Inc., and its Successors (\”Christie\”), underauthority vested in the Secretary by ?9(a) of the Act.As the result of an accident occurring on February 8,1984, at a manhole located at the intersection of Spring Valley and North CentralExpressway (U.S. Highway 75), in Richardson, Texas, an inspection was conducted during theperiod of February 9 through April 11, 1984. On February 8, 1984, Christie’s employees hadbeen engaged in work activities related to the performance of cathodic protection, repairwork, on a natural gas pipeline. One citation was issued to Christie on August 6, 1984. Itcharged Christie with two serious violations (both of which included subitems) of ?5(a)(2) of the Act for which a total penalty of $480.00 was sought.[[1]] Christie timelyfiled a notice of contest on August 21, 1984, commencing this proceeding under ? 10(c) ofthe Act. Thereafter, a complaint and answer were filed with the Commission. A hearing washeld in this matter on November 29, 1984, in Dallas, Texas. No affected employees orrepresentatives of affected employees participated in the proceeding. The Secretary hassubmitted proposed findings of fact, conclusions of law and order. The matter is now ripefor decision.ISSUES1. Whether Christie was in serious violation of thecited standards (29 CFR 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 ormore of the standards set forth in paragraph 1 hereof, the appropriate penalty therefor.STIPULATIONSThe parties stipulated that (i) Christie is engagedin work on pipelines, including both construction and repair of pipelines, (ii) in theinstant circumstances, Christie’s employees were engaged in cathodic work (repair) on apipeline for Lone Star Gas (\”LSG\”), (iii) Christie is an employer engaged in abusiness which affects commerce, (iv) jurisdiction of this proceeding is conferred on theCommission 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 after graduation from high school. He had worked for Christie for sixto eight weeks during the period of December 1983 into February 1984, terminating thatemployment relationship shortly after the accident (Tr. 69-71). For approximately onemonth, his initial assignment for Christie totally involved new construction, working as alaborer cleaning and smoothing out the bottom of ditches so that pipe could be laid. Norepair work was done on that job (Tr. 71-72, 79). Thereafter, he transferred to adifferent crew where he worked with Preston Walker, age 19, and Billy Parker, age 22 (Tr.70-72, 80). Parker, as foreman of that crew, instructed and trained Sullivan on jobprocedures, acquainting him with equipment, the work routine, etc. (Tr. 70, 80-81). Amongother things, that crew performed some cathodic protection work. Sullivan had worked ontwo cathodic protection jobs prior to the accident (Tr. 80-81). It was Sullivan’sresponsibility to prepare things so that the cathodic protection jobs could be performedcorrectly (Tr. 72-73).(2) Kenneth Cooper (\”Cooper\”) had beenemployed by Christie since January 1972. Christie has performed cathodic protection workexclusively for LSG since July 1972 and Cooper was the foreman on the first crew. Since1975 he has supervised Christie’s crews. Among other things, this involves (i) being aliaison between crews of LSG and Christie so that matters function smoothly, (ii) makingsure that crews are provided the necessary work materials and tools, (iii) seeing to itthat crews follow proper procedures and function properly (knowledge and supervision ofthe cathodic protection program), and (iv) giving on-the-job safety training to the crews(Tr. 86-87, 91-92).(3) Gerald K. Forester (\”Forester\” or\”the CO\”) has been employed by the Occupational Safety and Health Administration(\”OSHA\”) as a compliance officer since May 1973. Since then, he has conductedapproximately 1500 inspections. Prior thereto, he was employed as an engineeringtechnician by the U.S. Army Corps of Engineers. During that term of employment, he wasengaged in the different phases or areas that said employer covered. While so employed, hewas certified as an engineering technician by the Society of Professional Engineers. Hisformal education included three years of college level work in several different fields,engineering and geology. He has taken all of the training courses required by OSHA,together with nearly all of the other courses offered by it. He has also attended seminarsand training courses given by various companies locally, including one with LSG (Tr.11-14). He has attended a number of seminars related to employees working in confinedspaces such as manholes. Those seminars dealt with generally accepted practice regardingwhat instructions should be given to workers as to hazards present and how to avoid thosehazards (Tr. 29).PARTIAL SUMMARY OF THE TESTIMONYSullivan-Sullivan was one of the threeemployees assigned to the workplace which is the subject of this case (Tr. 70, 75). Thisparticular job involved cathodic protection (Tr. 80-81). This was the first one Sullivanhad encountered which was enclosed (Tr. 81). He entered this manhole so that Parker couldshow him how to install the new insulators. The manhole was approximately seven to eightfeet deep. As Sullivan stood at the bottom of the manhole, the pipeline was approximately14 to 16 inches above the bottom thereof and ground level was above his head. His workposition involved leaning over to place wrenches on the pipeline (Tr. 75-76). Parker tookthe cover off of the manhole, leaving it open before they went down there (Tr. 82-83).Parker told him that there was natural gas in the pipeline (Tr. 74, 83-84). Sullivan doesnot know whether Parker, or anyone else, tested for gas or smelled for it (Tr. 82, 84). Itwas Parker’s job to do, but he was uncertain whether Parker had done so (Tr. 84). Parkerhad told him that there was a possibility of oxygen deficiency in the manhole if gasescaped from the pipeline (Tr. 74, 83-84). This was the only hazard of which he wasinformed (Tr. 74). However, since it is common knowledge that natural gas will burn,Sullivan agreed this was something that he did not need to be told (Tr. 84). Sullivancould not recall receiving any instructions from company officials on how to avoid thehazards (Tr. 74). He did not receive (i) any instructions or information about emergencysituations that might arise while working in a manhole, or (ii) instructions aboutrespirators or the safe use thereof (Tr. 75).Cooper-Parker was the foreman on this job. Hehad only been a foreman for 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, workinghis way up to the job of foreman. Consequently, he was familiar with the work, simplyoverseeing as foreman those jobs that he had been performing in other capacities. Hisexperience included familiarity with cathodic protection procedures which he had beendoing for the same period of time (Tr. 100-101). Cooper was not at the scene of theaccident and did not personally investigate it, but relied on information provided byothers (Tr. 91-92).Cathodic protection is the procedure done on thepipeline. Partly, it is the proper approach to removing bolts out of the pipeline,installing insulation and replacing the bolts along the flange. The policy is to only takeone of the eight bolts out at a time. This is a precaution to maintain the integrity ofthe pipe and seals (Tr. 101-103).The safety staff is composed of Burke Isabell(\”Isabell\”), a retired school principal, and Walter Ocherbauck(\”Ocherbauck\”), who retired as chief engineer for LSG after working for thatfirm for many years (Tr. 87, 90). Christie works in conjunction with LSG’s procedures.When LSG initiates new procedures, Isabell analyzes them and distributes copies thereof toall foremen. Christie’s procedures are contained in the \”Blue Book\” which has tobe on the job, or in the truck, at all times. Among other things, Isabell makes personalchecks of crews on the job to verify that required safety equipment is available and\/orbeing used. A record is maintained of those checks (Tr. 88-89). Ocherbauck serves as aconsultant. His responsibilities include (i) checking crews (over a period of time) toinsure that they are conforming work to LSG’s standards, (ii) consulting on mattersrelated to safety procedures, and (iii) being responsible for seeing to it that safetyprocedures used by Christie are in conformity with LSG requirements (Tr. 90-91). Safetyprocedures utilized by Christie, including those related to cathodic protection areformulated by Isabell, Ocherbauck and J. W. Bill Christie, Sr. (\”J.W., Sr.\”)(Tr.89). LSG requires Christie to follow its procedures to the letter on both (i) the mannerin which something is done, and (ii) the safety precautions (Tr. 89-90). In fact, LSG hasa senior inspector who, among other things, inspects Christie’s crews (Tr. 90).Cooper gives safety training to the crews out on thejob. Such training is on a continual and endless basis (Tr. 91-92). He had dealt withParker, the foreman on this job, on many occasions, instructing him on proper safetyprocedures, such as checking for gas, airing out holes, etc. (Tr. 92, 101). As far asCooper knew, those procedures were properly performed in this case. Those procedures werenot out of conformity with the requirements of LSG on safety. Based on his experience, hedid not find that the crew had done anything contrary to recognized safety procedures inthe industry[[2]] (Tr. 91-92).Since 1972, Cooper had personally been involved incathodic protection work (insulation of flow control or gate valves) on thousands ofoccasions. He had encountered only three or four workplaces on those occasions whichrequired him to enter a manhole to perform the work (Tr. 93). Christie’s other crews wouldalso have very little experience along that line, since there are not many vaults at thatdepth (Tr. 93-94). Christie has no written procedures regarding entry into vaults (Tr.94). The only instructions given to employees, regarding hazard recognition in manholes orvaults, is to use the senses (the eyes, ears and nose) (Tr. 95). Consequently, there areno written procedures for Christie’s workers, who must enter manholes while involved incathodic protection, in regard to the use of respirators, self-contained breathingapparatus or 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, ifany, covering the float control valve, and (iii) to vent or air out the vault if gas isdetected or suspected. This procedure is followed in all manhole or vault situations,including the shallow ones (Tr. 96-97). Over a period of years, they have discovered oneor two (pipelines) valve stems leaking when the lid is removed. They are in need ofpacking or greasing. The company continuously instructs workers to stay out of the vaultsin those situations (where gas is either suspected or known to be present) and to adviseLSG of the leak, who notifies Christie when the repair is accomplished (Tr. 97-98). Cooperhad personally instructed the two employees who died on those procedures. He had neverknown them to disobey procedures (Tr. 99). LSG does not have any written safety proceduresfor Christie’s employees to follow when going into manholes; it does provide that its ownemployees shall use respirators, snatch jackets, etc., when going in if gas is present.LSG is aware of how Christie’s employees perform cathodic work, has observed their doingit and is aware of Christie’s safety procedures. LSG has never voiced an opinion thatChristie’s employees were doing anything unsafely (Tr. 98-99).Forester-Forester was assigned to conduct theinvestigation of the subject workplace located at Spring Valley and North CentralExpressway in Richardson, Texas (Citation and Tr. 14, 19, 39). The inspection took placebetween February 9 and April 11, 1984 (Tr. 14, 22). He believes that the accident hadoccurred on February 8, 1984 (Tr. 16, 22). The opening conference was held with J.W., Sr.,president of Christie; but he also spoke with other management officials of Christie,including Cooper (field superintendent), Isabell (safety director), Sam Christie(vice-president) and Ocherbauck (consultant) (Tr. 15-17). He discussed training andprocedures provided to employees with Cooper, Isabell and Ocherbauck (Tr. 18). He alsotalked with those company officials, as well as Sam Christie, in an attempt to obtain aphysical description of the workplace, an understanding of the type of work beingperformed by the employees and information relating to how the accident occurred (Tr.16-18).In general, those officials informed the CO that (i)the functions being performed at the subject location involved activities related tocathodic protection of the flange on a flow valve located on a pipeline in a manhole, and(ii) there were three workers on that particular job (Tr. 17-19, 22, 39, 42). Cathodicprotection is a procedure to prevent corrosion of the pipeline, by isolating two sections(metal) from each other by insulation (Tr. 19, 22). Christie was performing this workpursuant to a contract with LSG. Representatives of LSG issued directions to Christie’semployees of where to work (location of the pipeline) and the cathodic protectionnecessary to install (Tr. 19). The CO did not obtain dimensions of the manhole fromChristie’s representatives. After the accident occurred, the CO made a physicalexamination of the workplace, but there had been an excavation of the area involving themanhole. Approximate dimensions were ascertained by measuring the distance from groundlevel to the base of the valve. It was bell- shaped with a cover which was approximately22 inches in diameter. It was approximately 6? – 7 feet deep with an inside diameter ofapproximately four feet. The pipeline was approximately six feet underground (Tr. 20-21,55, 57). The fitting, being worked on, was a flange on the valve. This flange, aconnection consisting of two round pieces of metal, has a lip extending from the inside ofthe pipeline for approximately two inches outside thereof. There were eight holes in bothflanges, coupled together by bolts. The cathodic protection involved the installation ofinsulation inside the holes to prevent the pipe sections from coming in contact with eachother (Tr. 21- 22).Christie’s officials were not present when theaccident occurred. The only information they had was gathered from one employee, whosurvived, and Cooper, the superintendent (Tr. 39- 40). The CO determined that the accidentwas a rupture of the pipeline which released gas into the manhole; but, it did not cause afire or explosion (Tr. 42-43). He gained this information initially from a news report,which was later supplemented by talking with J.W., Sr., and Cooper, plus otherinvestigative findings. Those two officials told the CO that (i) the three employees wereworking at that location, and (ii) one employee was in the manhole when the gasketruptured on the flange, causing gas to leak in a large volume (pressure unknown). Theemployee inside the manhole was overcome and keeled over. Another employee saw what hadtranspired and went into the manhole to save his fellow employee; but, he also keeledover. The surviving employee attempted in vain to pull that employee out. Both of theemployees in the manhole died (Tr. 43-44). Both J.W., Sr. and Cooper stated thatperformance of work in manholes 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 aboveaverage) These categories included comprehensiveness of safety program (written),communication of program to employees (weekly safety meetings conducted by Cooper),enforcement of program (direct supervisory warnings), safety training program (safetystaff composed of safety director), etc. Accidents are investigated with action taken. TheCO felt that his findings indicated that Christie was safety oriented (Tr. 44-51, Ex.R-1).[[3]]The CO’s familiarity with the hazards associated withworkplaces such as the one at issue stemmed from seminars attended and training receivedabout work in confined spaces in this and other types of work situations.[[4]] They dealtwith the generally accepted practices regarding instructions given to employees about thehazards presented and how to avoid those hazards. The training received from LSG relatedto the recognition of hazards presented by work in manholes only confirmed his earliertraining (Tr. 23-24, 29). The principal hazards encountered in this type of work are anoxygen deficiency or gas present in explosive quantities (Tr. 24).[[5]] Those hazardscould arise from several sources, a leak in the pipeline or decay of organic matter. Suchdecay can create various types of gases (methane, carbon monoxide, carbon dioxide andhydrogen) which can cause oxygen deficiency or can exist in a flammable mixture (Tr.24-25). Additionally, the simple rusting of metal in a confined space, such as pipe andvalve connections, consumes oxygen and can cause an oxygen deficiency (Tr. 25-26).Based on his training and experience, employeesshould be instructed about hazards associated with entry into a confined space (thehazards possible to encounter) and how to determine if they are present by testing theatmosphere prior to entry (Tr. 29-30). The atmosphere can be tested initially and atvarious intervals by gas combustion or explosion meters and oxygen meters. If there is aproblem, an air bowser can be used to ventilate the manhole (Tr. 26-27, 30-31). If thatdoes not eliminate the problem, then entry into the confined space can be made usingrespiratory protection such as a self-contained breathing apparatus (scuba gear) orin-line respirators (Tr. 26, 31). The CO has found that such employees, who are requiredto enter manholes that are confined spaces, are typically given written instructions onthe proper use and care of respirators (Tr. 33).Both J.W., Sr. and Cooper stated to the CO that workwhich required entry into manholes (below ground level) was very rare (Tr. 34, 52-53). Theonly instructions that employees were given as to possible hazards in that situationrelated to the possibility of gas being present in a gas line was in a manhole (Tr.34-35). They were instructed to take off the manhole cover and to sniff for gas. If gaswas smelled, then they let the manhole air out for a couple of hours (Tr. 35, 53, 57-58).If it was not gone then, workers were told to contact LSG who would make any necessaryrepair (Tr. 58-60). All employees who perform this type of work receive the sameinstructions (Tr. 60-61, 64). He stated that the source of leaks in a LSG manhole couldemanate from an adjacent sewer line creating methane or hydrogen sulfide; but, he did notknow if there were any adjacent sewer lines in this situation (Tr. 59). He suspected thatany gas in this manhole could possibly percolate out in 2 hours; but he could not knowwithout testing (Tr. 59-60). The CO could not find any instructions covering any type ofemergency equipment. There were no emergency protective devices or equipment on thatjobsite (Tr. 36-39). Various types of possible emergency equipment identified by the COincluded SCUBA gear and self-rescuers (attached to the belt with a 10-15 minute oxygensupply). Another type of emergency equipment involved the use of a body harness (safetybelt with lifeline) on the person in the manhole. The lifeline would go to a worker out ofthe manhole who could pull 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 for any typeof respirators; therefore, there were no written procedures related to the use and care ofsuch equipment or the safe use thereof in dangerous atmospheres (Tr. 38-39, 61-62).Based on a comparison of the instructions given byChristie and instructions generally provided by employers to employees in such workplaces,the CO felt that Christie’s instructions were inadequate. He noted that the instructionsfailed (i) to point out hazards, (ii) to set forth procedures to maintain a safeatmosphere, and (iii) to provide for emergency situations (either written or verbal) (Tr.40-41).The CO did not feel that the sniff test offered anyadvantage over meter types of tests. Disadvantages noted by the use of that test includedan inability (i) to ascertain the quantity of a gas or the lower or upper explosive levelsthereof, (ii) to learn how much oxygen has been displaced, and (iii) to detect odorlessgases (Tr. 27-28). Moreover, the sense of smell can be quickly lost by exposure to certainagents, such as hydrogen sulfide (Tr. 28, 53).This was a LSG pipeline (Tr. 51-52). The CO statedthat (i) he is aware of LSG’s safety program and procedures, and (ii) LSG procedure doesnot require safety lines, respirators or protective equipment until gas is actuallydetected (Tr. 52, 60). He agreed that LSG has a state-of-the-art safety program (Tr. 52).DISCUSSION A close examination of the evidence in this casereveals that many of the underlying facts are not in dispute. Since the evidence has beensummarized in detail, only those matters crucial to a resolution of the issues will bediscussed at any length.It is well-settled that to prove a violation of astandard, the Secretary must show that the cited standard applies to the cited condition. HowardBarthelmass Painting Co., Inc., 81 OSAHRC 84\/E1, 9 BNA OSHC 2160 1981 CCH OSHD 25,636(No. 78-5450, 1981). All of the alleged violations are based upon an assumption that theworkplace qualifies 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 theworkplace (manhole) was not controverted (Tr. 20-21, 55, 57).[[7]] Under the factualcircumstances of this case, it cannot be seriously argued that the workplace in questiondoes not meet the definition of a \”confined space\” found in ?1926.21(b)(6)(ii).In general, the subitems of item 1 of the citationcan be collectively described as an alleged failure of Respondent to instruct eachemployee (i) in the recognition and nature of hazards applicable to his work (cathodicprotection) which requires entry into manholes (natural gas pipeline vaults), and (ii) inthe avoidance of such hazards by taking necessary precautions and in the use of protectiveand emergency equipment. Those subitems of item 2 deal with the same work situation. Theyare concerned with an alleged failure (i) to provide employees with appropriaterespiratory protective devices to be used for escape during emergencies, (ii) to providewritten procedures (instructions) for the safe use of respirators in dangerous atmospheresthat might be encountered in the work situation, and (iii) to familiarize employees withsuch procedures to be used in dangerous atmospheres.I find no obvious discrepancies between the testimonyof 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 training is on a continualand endless basis, (iii ) Parker, the foreman on this job, had been instructed by him onmany occasions on the safety procedures of checking for gas, airing out holes, etc. (Tr.91-92, 96-97, 100). Other uncontroverted testimony by him reveals that (i) cathodicprotection work requiring a crew to enter a manhole (underground vault) is extremely rarewith the concomitant result of a very limited amount of crew experience in that situation,(ii) Christie has no written procedures regarding entry into such vaults, (iii) the onlyinstructions given to employees, regarding hazard recognition in manholes or vaults, is touse the senses (eyes, ears, and nose), (iv) employees are instructed to pull the lid off amanhole, to pump out water (if any) covering the float control valve and to vent or airout the vault if gas is detected or suspected, (v) the procedure detailed in (iv) hereofis followed in all manholes or vaults, including the shallow ones, (vi) over the years,only one or two pipeline valve stems were leaking when the lid was pulled off, (vii)workers are continuously instructed to stay out of vaults where gas is suspected or knownto be present, to advise LSG of the leak who notifies Christie when the repair isaccomplished, and (viii) Cooper had personally instructed the two employees, who died, onthose procedures (Parker and Walker) (Tr. 93-99) There is no evidence that any of thoseprocedures were violated in this case (Tr. 82, 84, 91- 92, 99).[[9]] Sullivan testifiedthat it was Parker who instructed and trained him on job procedures (Tr. 70, 80-81).[[10]]Parker had informed him that there was a possibility of oxygen deficiency in the manholeif gas escaped from the pipeline (Tr. 74, 83-84). This was the only hazard of which he wasinformed (Tr. 74).[[11]] He did not receive (i) any instructions on how to avoid suchhazards, (ii) any instructions or information about emergency situations that might arisewhile working in a manhole, or (iii) instructions about respirators or the safe usethereof (Tr. 74-75).[[12]]The Secretary’s case is primarily based on the CO’stestimony in a regard to his educational background, training and work experience inmatters related to hazards associated with work in a confined space. Insofar asascertainable, Respondent bases its defense on Cooper’s testimony regarding the nature andrelationship of its safety program and procedures to those mandated by LSG, together withthe Secretary’s assessment of the stature of LSG’s safety program.[[13]] The bottom lineon this matter rests squarely on a finding regarding the credibility of testimony by thesetwo witnesses. In arriving at this finding, a close look must be given to that which wentunstated, as well as to the testimony itself.A totality of the evidence supports a finding thateach of the violations, as alleged, has been established. As related to item 1, key areasof the CO’s testimony were unrebutted.[[14]] The principal hazards encountered in thistype of work are an oxygen deficiency or gas present in explosive quantities. WhileRespondent instructs employees that natural gas which has escaped from a pipeline into amanhole can cause an oxygen deficiency, there is simply no evidence that such employeesare instructed that such gas can be present in explosive quantities.[[15]] Moreover, theCO testified that both hazards (oxygen deficiency and gas in explosive quantities) canarise from sources other than a leak in a pipeline. His uncontroverted testimony showsthat decayed matter can cause both of those hazards by creating various types of gases(methane, carbon monoxide, carbon dioxide or hydrogen sulfide) which can cause an oxygendeficiency or exist in a flammable mixture.[[16]] Additionally, an oxygen deficiency canbe caused by the rusting of metal (pipe and valve connections) in the manhole. In hisopinion, employees should be instructed about hazards possible to encounter when enteringa confined space and how to determine whether they are present, prior to entry, by testingthe atmosphere with gas combustion and oxygen meters. They should also be tested atintervals thereafter. I agree. I further agree that such meters lack the disadvantages ofthe sniff test pointed out by the CO. Finally, I am not convinced by Respondent’s statedreliance on the mandates of LSG’s procedures and safety requirements. Cooper testified atlength about the tight controls exercised by LSG. In that light, I find it surprising thatLSG has not issued any safety procedures, either verbal or written, for Respondent’semployees to follow when actually entering and working in manholes. However, since actualentry into manholes by Respondent’s employees is so rare, this may have been overlooked byLSG.[[17]] Otherwise, I would find it inexplicable that LSG has written procedures forRespondent’s use on other matters (installation, thermal welding, etc.), but not on safetyprocedures for entry into a manhole (confined space) (Tr. 98-99).I also find the CO’s testimony persuasive in regardto the various allegations found in item 2. Once again, he testified that, under suchcircumstances (work requiring entry into manholes qualifying as a confined space), it isindustry practice for employers (i) to provide and require the use of appropriaterespiratory protection (self-contained breathing apparatus or in-line respirators) whenemergencies require, (ii) to prepare written procedures covering the safe use ofrespirators in dangerous atmospheres that might be encountered during emergencies, and(iii) to familiarize such employees with those procedures and available respirators.Respondent did not provide such workers respirators or any other type of emergencyequipment to be used in such circumstances (Tr. 36-41, 61-62, 94-96). Moreover, Cooperstated that he was unaware of industry practice regarding the use of respirators (Tr.103). In this particular situation, employees were engaged in cathodic protection on alive pipeline while working in a confined space. I find that a reasonable person familiarwith this procedure would recognize that an emergency situation could arise.Unfortunately, it did in this particular case.Based on the credible evidence of record, I find (inregard to all subitems, in items 1 and 2) that (i) the terms of each of the subjectstandards were violated, (ii) in each situation, Respondent failed to follow industrypractice, (iii) as a result of each of the violations, Respondent’s employees were exposedto unsafe and hazardous work conditions, (iv) if an accident occurred as a result of anyof the violations, there was a substantial probability that death or serious physical harmcould result, (v) the supervisor’s knowledge and actions regarding the violative facts areimputed to Respondent, (vi) the factual circumstances that form the basis of theviolations were reasonably foreseeable, and (vii) the method of abatement is both obviousand easily attainable.In light of the record and the statutory penaltycriteria set forth in ? 17(j) of the Act, I conclude that a total penalty of $480.00($240.00 for each item) is reasonable and appropriate.[[18]]FINDINGS OF FACTThe evidence of record has been fully considered andevaluated in its entirety. Findings of fact have been exhaustively set forth under theheadings of STIPULATIONS, BACKGROUND OF THE WITNESSES and DISCUSSION. To avoid unnecessaryrepetition, they are hereby incorporated by reference.CONCLUSIONS OF LAW1. At all times material hereto, Respondent was anemployer within the meaning of ? 3(5) of the Act, engaged in a business affectingcommerce, and having employees.2. The Commission has jurisdiction over the partiesand subject matter of the proceeding.3. Respondent was in serious violation of 29 CFR1926.21(b)(2).4. Respondent was in serious violation of 29 CFR1926.21(b)(6)(i).5. Respondent was in serious violation of 29 CFR1926.103 (a) (1).6. Respondent was in serious violation of 29 CFR1910.134(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 and conclusions of laware inconsistent with this decision, they are DENIED.2. Item 1 of serious citation 1, alleging violationsof 29 CFR 1926.21(b)(2) and 29 CFR 1926.21(b)(6)(i), is AFFIRMED, and a civil penalty of$240.00 is ASSESSED.3. Item 2 of serious citation 1, alleging violationsof 29 CFR 1926.103(a)(1) and 29 CFR 1910.134(e)(3) is AFFIRMED, and a civil penalty of$240.00 is ASSESSED.E. CARTER BOTKINAdministrative Law JudgeDate: December 27, 1985APPENDIX Citation 1a[[1]] 29 CFR 1926.21(b)(2): The employer did not instruct each employee in the recognition andavoidance of unsafe condition(s) and the regulation(s) applicable to his work environmentto control or eliminate any hazard(s) or other exposure to illness or injury:(a) Intersection of Spring Valley and North Central Freeway, manhole – CathodicProtection operation on gate valve in natural gas pipeline valve vault, recognition ofhazards connected with prior entry into manhole vaults.1b 29 CFR 1926.21(b)(6)(i): Employees required to enter into confined or enclosed spaces werenot instructed as to the nature of the hazards involved, the necessary precautions to betaken, and in the use of protective and emergency equipment required:(a) Intersection of Spring Valley and North Central Freeway, manhole – CathodicProtection operation – requiring entry into manhole and natural gas pipeline valve vault.2a[[2]]29 CPR 1926.103(a)(1): The employer did not provide or enforce employee use of appropriaterespiratory protective devices in emergency situations or when controls required bysubpart D of 29 CFR part 1926, either failed or were inadequate to prevent harmfulexposure to employees:(a) Intersection of Spring Valley and North Central Freeway, southeast corner,employees required to work in confined space were not provided with emergency escaperespirators.2b 29 CFR 1910.134(e)(3): Written procedures were not prepared covering safe use ofrespirators in dangerous atmospheres that might have been encountered in normal operationsor in emergencies:(a) Intersection of Spring Valley and North Central Freeway, southeast corner,employees required to work in confined space were not provided written instructions foremergency conditions that could be encountered while performing Cathodic Protection online gas valve.2c29 CFR 1910.134(e)(3): Personnel were not familiar with procedures and the availablerespirators to be used in dangerous atmospheres that might have been encountered in normaloperations or in emergencies:(a) Intersection of Spring Valley and North Central Freeway, southeast corner,employees required to work in confined space were not provided written instructions foremergency conditions that could be encountered while performing Cathodic Protection online gas valve.Standards 1a – 29 CFR 1926.21(b)(2)(2) The employer shall instruct each employee in the recognition and avoidance ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.1b – 29 CFR 1926.21(b)(6)(i)(6)(i) All employees required to enter into confined or enclosed spaces shall beinstructed as to the nature of the hazards involved, the necessary precautions to betaken, and in the use of protective and emergency equipment required. The employer shallcomply with any specific 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 Subpart D ofthis part either fail or are inadequate to prevent harmful exposure to employees,appropriate respiratory protective devices shall be provided by the employer and shall beused.2b – 29 CFR 1910.134(e)(3)(3) Written procedures shall be prepared covering safe use of respirators in dangerousatmospheres that might be encountered in normal operations or in emergencies. Personnelshall be familiar with these procedures and the available respirators.2c – (The same as set forth in 2b hereof)FOOTNOTES:[[1]] The text of the citations and the text of thestandards are appended to this decision.[[2]] This is consistent with his statement of neverhaving seen respirators in cathodic protection work. However, he also stated that he wasunaware of what other people in the industry do regarding the use of respirators in suchwork (Tr. 103).[[3]] Christie employed 130 people (Tr. 42). The COstated that the inspection 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 ismore than four feet deep with a limited means of gaining entry or exit (Tr. 56).[[5]] Exposure to either of those hazards could leadto death or serious physical harm (Tr. 25)[[6]] This section defines a confined or enclosedspace as follows: (ii) For purposes of paragraph (b)(6)(i) of this section, \”confined or enclosedspace\” means any space having a limited means of egress, which is subject to theaccumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere.Confined or enclosed spaces include, but are not limited to, storage tanks, processvessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults,tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs,vaults, and vessels.[[7]] The only exception thereto involved the depthof 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 findthat the bottom of the manhole was at least 6? feet below ground level. Otherwise, I findthat it was bell-shaped with a cover which was approximately 22 inches in diameter. Theinside diameter was approximately 4 feet. There was a natural gas pipeline situatedtherein (Tr. 20-21, 55, 57).[[8]] Although there was an effort to damage thecredibility of Sullivan based on a possible financial interest, I did not find that effortconvincing (Tr. 77-79). This witness answered questions directly and without equivocation.He left the impression of being honest and guileless.[[9]] Other evidence establishes that the workers hadbeen working at the subject location and in the manhole for a significant period of timeprior to the accident (the rupture of the gasket on the flange of the pipeline causing alarge volume of natural gas to leak into the manhole) (Tr. 22-23, 42-44).[[10]] I note that this was not contradicted byCooper. Moreover, he never mentioned giving Sullivan instructions on safety or workprocedures. Instead, his testimony centered specifically on Parker and Walker (Tr. 39). Ido not find this surprising. After all, Sullivan was not only a relatively new employee,but had transferred to this type of work crew only a short time prior to the accident (Tr.69-73, 79-81).[[11]] This includes the hazard of natural gascatching on fire or exploding.[[12]] All of those matters set forth in theforegoing paragraph are hereby found as facts.[[13]] The CO referred to it as a state-of-the-artsafety program.[[14]] I found the CO to be a compelling witness,based on both his demeanor and testimony. Beyond his formal educational background,completion of safety training courses and many years of work in the field of safety, hehas attended a number of seminars related to employees working in confined spaces such asmanholes. Significantly, those seminars included one given by LSG.[[15]] This is not cured by Sullivan’s testimonythat, since it is common knowledge, he did not need to be told that natural gas will burn.Very simply, an assumption, that matters of \”common knowledge\” need not be thesubject of safety instructions, does not satisfy an employer’s duty under either?1926.21(b)(2) or ?1926.21(b)(6)(i).[[16]] The fact that the CO did not know if therewere adjacent sewer lines in the area (a possible source of methane or hydrogen sulfide)has been considered. This testimony does not rule out that source, other sources of thosegases, or the other gases mentioned. Moreover, the subject matter at issue in item 1 is toa large degree related to \”instructions\” on the (i) recognition and nature ofhazards, and (ii) avoidance thereof by precautions taken and use of protective andemergency equipment. Whether they actually exist in this or any other particular case begsthe question.[[17]] To the extent that this is the case, I wouldnot agree with the CO’s statement regarding a state-of-the-art safety program. Both Cooperand the CO testified that LSG requires its own employees to use respirators, snatchjackets, etc., when going into manholes if gas is \”present\” or\”detected.\” However, this testimony does not establish how LSG determineswhether gases are present. In particular, I note that Cooper’s testimony is silentregarding whether LSG’s employees use gas combustion and oxygen meters to detect gasesprior to entry into a manhole (confined space).[[18]] Respondent has a constant workforce ofapproximately 60 employees. At times, it has employed approximately 130 workers.[[1]] Preferring statements regarding the alleged violations set forth in item 1 were that(i) they had been grouped because they involved similar or related hazards that mayincrease the potential for injury resulting from an accident, and (ii) they were allegedto have occurred on 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 1are equally applicable to item 2. Once again, the Secretary required immediate abatementof the conditions and a penalty of $240.00 was proposed.”