” SECRETARY OF LABOR,Complainant,v.MOSSER CONSTRUCTION, Inc.,Respondent.OSHRC Docket No. 87-0198_ORDER_The parties’ Stipulation and Settlement Agreement is approved. Thisorder is issued pursuant to a delegation of authority to the ExecutiveSecretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: November 8, 1988————————————————————————ANN McLAUGHLIN, SECRETARY OF LABOR,Complainant,v.MOSSER CONSTRUCTION, INC.,Respondent.OSHRC Docket No. 87-0198_CERTIFICATE OF POSTING_On October 17, 1988, a copy of the Settlement Agreement in this matterwas posted by Respondent Mosser Construction, Inc., and will remainposted through October 27, 1998.ARTER & HADDENDouglas M. BrickerOne Columbus————————————————————————_CERTIFICATE OF SERVICE_The undersigned hereby certifies that a true copy of the foregoingCertificate of Posting has been served upon Antony F. Gil, U.S.Department of Labor, Office of the Solicitor, Washington, D.C. 20210, byfirst class United States Mail this 19th day of October, 1988.Of Counsel————————————————————————————————————————————————ANN McLAUGHLIN, SECRETARY OF LABOR,Complainant,v.MOSSER CONSTRUCTION, INC.Respondent.OSHRC DocketNo. 87-0198STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full and complete settlement ofthe instant matter which is presently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereafter \”theCommission\”) has jurisdiction of this matter pursuant to Section 10(c)of the Occupational Safety and Health Act of 1970 (84 Sat, 1590; 29U.S.C. 651 et seq.) (hereafter \”the Act\”).(b) Respondent, Mosser Construction, Inc. is a corporation with itsprincipal place of business in Fremont, Ohio. It is engaged in theconstruction business and during the course of its business respondentuses materials and equipment which it receives from places locatedoutside Fremont, Ohio. Respondent, as a result of the aforesaidactivities, is an employer engaged in a business affecting commerce asdefined by Section 3(3) and 3(5) of the Act and is subject to therequirements of the Act.(c) As a result of an inspection conducted on November 20 and 21, 1986at respondent’s workplace at 3518 St. Lawrence Drive in Toledo, Ohio, acitation for three serious violations,[[1]] a citation for one repeatedviolation and a citation for one other-than-serious violation wereissued to respondent on January 13, 1987 pursuant to Section 9(a) of theAct. A total penalty of $2,300 was proposed for the violations.(d) Respondent contested the citations and proposed penalties.On December 18, 1987, Commission Administrative Law Judge Edwin G.Salyers issued his Decision and Order in which he dismissed the tworemaining serious citations alleging violations of 29 C.F.R.1926.152(a)(2) and 29 C.F.R. 1926.152(b)(2)(iv), and the repeatviolation of 29 C.F.R. 1926.350(j). The judge affirmed the citation forthe other-than-serious violation of 29 C.F.R. 1926.404(f)(6). Thereafter, the Secretary filed a timely Petition for Review on theserious and repeat violations which was granted by the Commission onFebruary 16, 1988.IIINow, the Secretary of Labor and Mosser Construction, Inc., in order toconclude this matter without the necessity of further litigation orreview, stipulate and agree as follows:(a) The Secretary hereby agrees to withdraw Item 1 of serious citationNo. 1 for violation of 29 C.F.R. 1926.152(a)(2) and Item 2 of repeatcitation No. 2 for violation of 29 C.F.R. 1926.350(j).(b) The Secretary hereby agrees to reduce the classification for Item 2of serious citation No. 1 for violation of 29 C.F.R. 1926.556(b)(2)(iv)from serious to other-than-serious with no penalty.(c) Respondent hereby agrees to withdraw its notice of contest to theviolation of 29 C.F.R. 1926.556(b)(2)(iv) and states that the violationhas been abated and shall remain abated.(d) Respondent hereby withdraws its Notice of Contest to the citationsand to the Notification of Proposed Penalty so as to come in harmonywith the terms of this agreement.(e) None of the foregoing agreements, statements, stipulations andactions taken by the Respondent shall be deemed an admission by it ofany of the allegations contained in the citations. Respondentspecifically denies each such allegation. The agreements, statements,stipulations and actions herein are made solely for the purpose ofsettling this matter economically and amicably without furtherlitigation in order to conserve the resources of both OSHA andRespondent. They shall not be used by anyone for any other purpose,except by the Secretary of Labor for subsequent enforcement proceedingsfiled against the Respondent under the Occupational Safety and HealthAct of 1970.(f) Respondent and Complainant agree that each party shall bear its owncosts.Antony F. GilCounsel for theSecretary of LaborDouglas M. BrickerOn Behalf ofMosser Construction————————————————————————_CERTIFICATE OF SERVICE_The undersigned hereby certifies that a true copy of the foregoingStipulation and Settlement Agreement has been served upon Antony F. Gil,U.S. Department of Labor, Office of the Solicitor, Washington, D.C.20210, by first-class United States mail this 18th day of October, 1988.Of Counsel————————————————————————SECRETARY OF LABOR,Complainant,v.MOSSER CONSTRUCTION, INC.,RespondentOSHRC Docket No. 87-0198APPEARANCES:Christopher J. Carney, Esquire, Office of the Solicitor, U. S.Department of Labor , Cleveland, Ohio, on behalf of complainantDouglas M. Bricker, Esquire, Columbus, Ohio, on behalf of respondent_DECISION AND ORDER_SALYERS, Judge: Respondent, Mosser Construction, Inc., is aconstruction contractor (Tr. 21). At the time relevant to thisproceeding, respondent was engaged as a subcontractor, erecting the ironwork on a project known as the Toledo Distribution Center (Tr. 23,153). OSHA Compliance Officer Paul Brown inspected the worksite onNovember 20 and 21, 1986, pursuant to a report that a piece of equipmenthad been overturned (Tr. 21).Brown began the opening conference on November 20 but, due to inclementweather and people leaving, he had to postpone the opening conferenceuntil November 21 (Tr. 22). Brown conducted the actual walkaround onNovember 21 (Tr. 24). Respondent’s job office trailer was located atthe south side of the worksite, approximately 100 feet from the buildingunder construction (Tr. 29, 31). The trailer was approximately 25 feetlong and 8 feet wide (Tr. 30). Brown was inside the trailer at leastonce on November 20 and was in and out of the trailer several times onNovember 21 (Tr. 32). At the time of his inspection, Brown believedthat the door he used was the only passageway to the trailer (Tr. 32). It was established at the hearing, however, that there was a largeoverhead door at one end of the trailer with wooden steps leading up toit from the outside (Tr. 203; Respondent’s Ex. 5).Located near the steps leading to the small door were three propanecylinders, one oxygen cylinder, and a five-gallon can (Tr. 33, 36). Brown believed the five-gallon can contained diesel fuel, but it wasestablished at the hearing that the can contained form oil (Tr. 209). There is a dispute as to the exact location of the four cylinders andthe five-gallon can. Brown asserts that the three propane cylinderswere directly to the right of the wooden stairway, with the oxygencylinder on the left (Tr. 33). Brown testified that he measured thedistance between the oxygen cylinder and the propane cylinders as being50 inches (Tr. 35) and that the five-gallon can was sitting with thepropane cylinders (Tr. 36). In contrast, Raymond Ackerman, assistant torespondent’s safety officer, testified that the propane cylinders weresix to eight feet from the stairway’s left rail, with the five-galloncan between the propane cylinders and the stairway (Tr. 207-208). Tobolster his argument, Ackerman pointed out a copper line to which thepropane cylinders were hooked when in use. The copper line wasapproximately six feet from the stairway (Tr. 215, 219). It isunnecessary to resolve this conflict in the testimony in view of thedecision reached.The location of the cylinders and the five-gallon can was the basis fortwo citations for violations of two different standards. Item 1 ofCitation No. 1 charged a serious violation of 29 C.F.R. ? 1926.152(a)(2)which provides:(2) Flammable or combustible liquids shall not be stored in areas usedfor exits, stairways, or normally used for the safe passage of people.Item 2 of Citation No. 2 charged a repeat violation of 29 C.F.R. ?1926.350(j) which provides:(j) For additional details not covered in this subpart, applicabletechnical portions of American National Standards Institute, Z49.1-1967,Safety in Welding and Cutting, shall apply.Section 3.2.4.3[[1\/]] of ANSI standard Z-49.1-1967 provides:Oxygen cylinders in storage shall be separated from fuel gas cylindersor combustible materials (especially oil or grease), a minimum distanceof 20 feet or by a noncombustible barrier at least 5 feet high having afire-resistance rating of at least 1\/2 hour.Section 1926.152(a)(2) specifies that the cylinders must \”be stored\”;section 1926.350(j) specifies that the cylinders must be \”in storage.\” The Review Commission has held that \”cylinders are not ‘in storage’ ifthey are located in an area where they are used intermittently.\” _M.C.C. of Florida, Inc_., 81 OSAHRC 57\/C10, 9 BNA OSHC 1895, 1981 CCHOSHD ? 25,420, p. 31,681 (No. 15757, 1981). In the present case,neither party presented evidence as to whether the cylinders were beingstored or used intermittently. It was the Secretary’s burden to provethat the cylinders were in storage.A similar situation occurred in _Grossman Steel & Aluminum Corp_., 78OSAHRC 85\/A2, 6 BNA OSHC 2020, 1978 CCH OSHD ? 21,567 (No. 76-2834, 1978).During his inspection, the compliance officer observed one oxygen tankand one acetylene tank standing upright and tied together in front ofthe Respondent’s trailer. Neither hoses nor gauges were attached to thetanks. The compliance officer testified he was informed by Respondent’srepresentative that the tanks were in storage and were fully charged. On the other hand, the Respondent’s Chairman testified that the tankswere not in storage, but were ready for use in that location. Accordingto the witness, gauges and hoses were removed to avoid theft and werekept in the trailer.Judge Fier found that the tanks were not \”hooked up\” and that there wasno evidence to show that they were not inactive and stored.In _United Engineers and Construction, Inc_., 75 OSAHRC 69\/A2, 1974-1975CCH OSHD ? 19,780 (No. 2414, 1975), appeal dismissed, No. 75-1946 (3dCir., September 17, 1975), the Commission affirmed the Judge’sconclusion that ? 1910.252 (a)(2)(iv)(c) was not violated because thecylinders were not in storage within meaning of the standard. In thatcase, oxygen and acetylene cylinders, found together on the site, didnot have regulators and hoses attached but were located in an area whereburning would be done on an intermittent basis. The regulators andhoses were removed nightly to prevent leaks. The facts in the instantcase are essentially undistinguishable and _United Engineers_ istherefore dispositive. The Respondent has successfully rebutted theSecretary’s prima facie case and has established that the tanks were notin storage but rather were available for use in an area where weldingwas to be performed on an intermittent basis._Id_. at pgs. 2,023-2,024.In the present case, the Secretary presented no evidence on the questionof whether the cylinders were in storage. Accordingly, item 1 ofCitation No. 1 and item 1 of Citation No. 2 are vacated.During his walk-around inspection on the second day, Brown observedrespondent’s employees climbing over the rails of an aerial lift basketonto and off of the roof of the building under construction,approximately 35 feet above the ground (Tr. 43). The employees wereputting insulation on the roof. One employee would stand in the basket,with the top handrail of the basket at roof level, and stretchfour-foot-wide rolls of insulation from the peak of the roof down to theroof ‘s edge. Once the insulation was stretched, the employee in thebasket would climb onto the roof to assist another employee already onthe roof in applying metal roof panels over the top of the insulationwhich had just been installed. The employee would then climb back ontothe basket and move it over to install the next section (Tr. 155-156,158-159).Respondent was issued item 2 of Citation No. 1 for a serious violationof 29 C.F.R. ? 1926.556(b)(2)(iv) which provides:(iv) Employees shall always stand firmly on the floor of the basket, andshall not sit or climb on the edge of the basket or use planks, ladders,or other devices for a work position.Brown testified that the employees were violating the standard byclimbing the rails to gain access to and from the roof (Tr. 50). Brownasserted that there would be no violation if the bottom of the basketwere raised to roof level and the employees could remove the rails andwalk onto the roof (Tr. 51). Brown also testified that there would beno violation if the platform rails were closer to the roof so that theemployees could get to and from the roof by climbing over the rails (Tr.105).The method that the employees used of crawling over the rails to get toand from the roof may constitute a hazard, but it is not a hazardproscribed by ? 1926.556(b)(2)(iv). That standard mandates that theemployees \”stand firmly on the floor of the basket . . . for a workposition.\” The evidence is clear that the employees were not doing workfrom their positions on the basket rails. They were only on the railsmomentarily while getting to and from the roof. Therefore, respondentwas not in violation of ? 1926.556(b)(2)(iv).In the course of his inspection, Brown observed two of respondent’semployees using a power saw that was plugged into a receptacle (Tr.95). Brown stated that the receptacles were noticeably damaged. \”Themetal covers for the receptacles inside the insulating case around theconductors themselves were cracked in two or three places\” (Tr. 93). Brown tested the receptacles with an Etcon circuit tester, whichindicates whether or not a circuit is grounded (Tr. 90-91). The testshowed that the receptacles were ungrounded (Tr. 90).The receptacles had been installed two days prior to Brown’s inspectionby the electrical subcontractor, Danelik Electric (Tr. 173). Upon beingtold that the receptacles were ungrounded, respondent’s carpenterforeman, Robert Johnson, informed Danelik Electric who replaced thereceptacles that same day (Tr. 114). Johnson testified that he wasunaware of the damage to the receptacles until it was pointed out tohim, but he acknowledged that they were noticeably damaged (Tr. 184).Respondent was cited for an \”other\” than serious violation of 29 C.F.R.? 1926.404(f)(6) which provides: \”The path to ground from circuits,equipment, and enclosures shall be permanent and continuous.\” Respondent argues that the citation should be vacated because ?1926.404(f)(6) was not promulgated until after the November 21, 1986,inspection. Respondent contends that it was without notice as to therequirements of the standard. This contention is without merit.Raymond Ackerman testified that he had a copy of the 1985 edition of theOSHA section 1926 regulations in his office (Tr. 188). In that edition,section 1926.401(c) provides in part: \”The path from circuits,equipment, structures, and conduits or enclosures to ground shall bepermanent and continuous.\” In 1987 the standards were revised to theirpresent form, and section 401(c) was transformed into section404(f)(6). The standards require the same thing: the path to groundfrom circuits shall be grounded. Respondent was on notice as to thisrequirement.Respondent contends that it had no knowledge of the damaged receptaclesand is, therefore, not in violation of the standard. Yet, RobertJohnson testified that the receptacles were noticeably damaged. \”Constructive knowledge is demonstrated when the record reveals theviolative conditions are detectable through the exercise of reasonablediligence.\” _M.C.C. of Florida, Inc_., 1981 CCH OSHD at p. 31,682. Respondent had constructive knowledge of the damaged receptacles.Finally, respondent contends that it was Danelik Electric who wasresponsible for the installation and maintenance of the receptacles,citing _Anning-Johnson_, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCHOSHD ? 20,690 (Nos. 3694 & 4409, 1976). _Anning-Johnson_ provides asubcontractor who proves that it did not create or control a hazardouscondition with an affirmative defense.Once a cited construction subcontractor has established that it neithercreated nor controlled the hazardous condition, it may affirmativelydefend against the Secretary’s charge by showing either (a) that itsemployees who were or may have been exposed to the hazard were protectedby means of realistic measures taken as an alternative to literalcompliance with the cited standard, or (b) that it did not have nor withthe exercise of reasonable diligence could have had notice that thecondition was hazardous._Id_. at pgs. 24,783-24,784.In the present case, respondent did not create the hazardous conditionof the damaged receptacles, but it did control it. Respondent’semployees used the receptacles. When respondent notified DanelikElectric of the damage, the receptacles were replaced that same day. Itrequired minimal effort on respondent’s part to have the hazard abated. Reasonable efforts by the exposing subcontractor to abate the hazard arerequired, as the Review Commission stated in the companion case to_Anning-Johnson, Grossman Steel & Aluminum Corp_., 76 OSAHRC 54\/D9, 4BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691, p. 24,791 (No. 12775, 1976):[E]ach employer has primary responsibility for the safety of its ownemployees. Simply because a subcontractor cannot himself abate aviolative condition does not mean it is powerless to protect itsemployees. It can, for example, attempt to have the general contractorcorrect the condition, attempt to persuade the employer responsible forthe condition to correct it, instruct its employees to avoid the areawhere the hazard exists if the alternative is practical, or in someinstances provide an alternative means of protection against thehazard. We therefore expect every employer to make a reasonable effortto detect violations of standards not created by it but to which itsemployees have access and, when it detects such violations, to exertreasonable efforts to have them abated or take such other steps as thecircumstances may dictate to protect its employees. In the absence ofsuch actions, we will still hold each employer responsible for allviolative conditions to which its employees have access.Respondent was responsible for the damaged receptacles to which itsemployees had access. Item 1 of Citation No. 3 charging a violation of? 1926.404(f)(6) is affirmed.[[2\/]]_FINDINGS OF FACT_1. Respondent, Mosser Construction, Inc., is a construction companythat was engaged as a subcontractor in erecting the iron work on aproject known as the Toledo Distribution Center.2. On November 20 and 21, 1986, OSHA Compliance Officer Paul Brownconducted an inspection of respondent’s worksite.3. Respondent’s job office trailer was located on the south side of theworksite. The trailer was approximately 25 feet by 8 feet. There weretwo doors leading into the trailer, a smaller door on the south side,and a large overhead door at the end of the trailer farthest from thesmall door. There were wooden steps leading up to both doors.4. Outside of the south side of the trailer were three propanecylinders, an oxygen cylinder, and a five-gallon can of form oil. Therecord does not reflect whether these items were \”in storage\” or wereavailable for \”intermittent use.\”5. Respondent’s employees used an aerial lift basket to gain access tothe roof of the building under construction, a height of approximately35 feet. Although the evidence reflects employees climbed over therails of the basket to gain access to the roof, there was no showingthat these employees performed work while standing on the rails.6. Two of respondent’s employees were using a power saw plugged into anoticeably damaged receptacle that was not grounded. Respondentexercised control over the maintenance of the receptacles._CONCLUSIONS OF LAW_1. Respondent, at all times material to this proceeding, was engaged ina business affecting interstate commerce within the meaning of section3(5) of the Occupational Safety and Health Act of 1970 (\”Act\”).2. Respondent, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.3. Respondent was not in violation of 29 C.F.R. ? 1926.152(a)(2) forstoring flammable or combustible liquids in areas used for exits,stairways, or the safe passage of people. No evidence was adducedshowing that the Cylinders were in storage.4. Respondent was not in violation of 29 C.F.R. ? 1926.350(j) forfailing to separate combustible material by 20 feet or a 5-foot highbarrier. No evidence was adduced to show that the cylinders were instorage.5. Respondent was not in violation of 29 C.F.R. ? 1926.556 (b)(2)(iv)for failing to require its employees to stand firmly on the floor of thebasket while in a work position. The employees were not in a workposition when they were climbing over the basket rails.6. Respondent was in violation of 29 C.F.R. ? 1926.404(f)(6) forallowing its employees to plug a power saw into a damaged receptaclethat was not grounded. Respondent had constructive knowledge of andcontrol over the hazardous condition._ORDER_Based upon the findings of fact and conclusions of law, it isORDERED:1. Item 1 of Citation No. 1 and proposed penalty issued to respondenton January 13, 1987, are vacated.2. Item 2 of Citation No. 2 and proposed penalty issued to respondenton January 13, 1987, are vacated.3. Item 3 of Citation No. 1 and proposed penalty issued to respondenton January 13, 1987, are vacated.4. Item 1 of Citation No. 3 issued to respondent on January 13, 1987,is affirmed as an \”other\” than serious violation, and no penalty isassessed.EDWIN G. SALYERSJudgeDate: January 7, 1988FOOTNOTES:[[1]] At the hearing, the Secretary withdrew serious citation item forviolations of 29 C.F.R. 1926.602(c)(1)(vi).[[1\/]] Section 3.2.4.3 was the section originally cited in the citationissued to respondent on January 13, 1987. At the hearing the Secretarymistakenly amended this section to section 3.2.3.3, a section which isinapplicable to this situation (\”Acetylene cylinders shall be storedvalve and up.\”) Despite the confusion, it was understood by all presentat the hearing that the standard being litigated was section 3.2.4.3.[[2\/]] A fifth charge, item 2 of Citation No. 2, alleging a violation of29 C.F.R. ? 1926.102(a)(1) was litigated at the hearing but waswithdrawn by the Secretary subsequent to the hearing.”