“Docket No. 90-2668 SECRETARY OF LABOR, Complainant, V.PRESSURE CONCRETE CONSTRUCTION CO., Respondent.OSHRC Docket No. 90- 2668DECISION Before: FOULKE, Chairman; WISEMAN and MONTOYA, CommissionersBY THE COMMISSION:Pressure Concrete Construction Co. (\”Pressure Concrete\” or \”thecompany\”) was hired by the city of Montgomery, Alabama to repair portions ofMontgomery’s storm sewer system which had begun to collapse. Following a heavy rainstorm,during which a Pressure Concrete employee was trapped in the storm sewer and drowned, theOccupational Safety and Health Administration of the U. S. Department of Labor(\”OSHA\”) conducted an investigation of the fatal incident. As a result of thatinvestigation, the Secretary of Labor (\”the Secretary\”) issued a citationalleging that Pressure Concrete had violated the Occupational Safety and Health Act of1970, 29 U. S. C. ? 651-678 (\”the Act\”), by failing to comply with various OSHAstandards. Pressure Concrete contested that citation and a hearing was held before anadministrative law judge of this Commission. After the judge issued his decision, PressureConcrete petitioned the Commission to review that decision. Review was directed pursuantto section 12(j) of the Act, 29 U. S. C. ? 661(j).The direction for review specified that the Commission would review Item 1 of thecitation in which the Secretary alleged that Pressure Concrete had committed a seriousviolation of the standard at 29 C.F.R. ? 1926.21(b)(2)[[1]] by failing to instruct itsemployees how to recognize and avoid unsafe conditions that might be encountered duringthe performance of their work. The judge found that Pressure Concrete had violated thestandard. The question before the Commission is whether a preponderance of the evidencesupports the judge’s decision.I.BACKGROUND A.THE WORKSITEThe storm sewer system was made of brick. It was built between 80 and 150 years ago,and age had caused it to deteriorate badly. After a major flood, part of the systemcollapsed, and other parts of it had begun to show signs that they were near collapse.Pressure Concrete was hired to repair those portions of the system. The company used aprocess called \”guniting,\” or \”shooting gunite,\” which involvesspraying concrete through a nozzle onto a form, in this case the brick walls of the stormsewer. In the guniting process, cement is first mixed with sand and water in a cementmixer. It is then poured into a gun, a device attached to a compressor, which forces itdown a hose 1 1\/2 inches in diameter and out the nozzle.The storm sewer in question collects water from the downtown Montgomery area. It has amain channel into which a number of laterals empty. Each of these laterals, in turn, has anumber of secondary laterals feeding into it, and those have individual lines fromdrains feeding into them.[[2]] Pressure Concrete’s employees were working in a trunk line,the main feeder tunnel of the storm sewer. That tunnel started at a creek, where there wasan opening approximately 7 feet by 8 feet, and emptied into the Alabama Riverapproximately half a mile away. The tunnel was about 7 feet wide and was from 8 to 12 feethigh. At the point where the employees were working, the tunnel was a brick archapproximately 11 feet, 8 inches high.The work area began approximately 212 feet from the creek entrance and extendedapproximately 88 feet downstream, so that the work area ended approximately 300 feet fromthe mouth of the tunnel. The Lawrence Street lateral emptied into the side of the maintunnel approximately 139 feet inside the tunnel, approximately 73 feet upstream from thestart of the area being repaired.Approximately 37 feet downstream from the work area was the Railroad Street manhole,which was near the intersection of Perry Street and Railroad Street. That man holedescended approximately 30 feet from the surface and was entered through a hole in theside of the main tunnel which was approximately 2 feet above the floor of the tunnel.Approximately 11 feet from the bottom of the manhole, three or four laterals ranging insize from 8 inches to 15 inches in diameter, emptied into the manhole. There were U-shapedmetal bars built into the wall of the manhole, which served as steps for employees toclimb from the street to the tunnel and to climb out of the tunnel. This Railroad Streetmanhole was where the Pressure Concrete employees who were working aboveground were mixingthe concrete. This was where the employees most frequently entered and left the tunnel ontheir way to and from the work area. Pressure Concrete had a generator at the site to runthe compressor and to provide electricity for the lights used in the tunnel. The hose andthe wires for the lights went into the Railroad Street manhole and then to the work area.There was another manhole, approximately 20 feet closer to the work area, which openedon Perry Street, but it entered the tunnel at its crown, almost 12 feet above the floor ofthe tunnel. The employees could not climb in or out of that manhole without a long ladder,so they used the Railroad Street manhole for access to the tunnel, and their equipment wasset up outside the Railroad Street manhole.Before Pressure Concrete and the city of Montgomery entered into a contract for therepair of the storm sewer system, representatives of the city and the company togetherinspected the storm sewers to determine the nature and extent of the work to be done.After the company had been hired, representatives of the city again toured the storm sewerwith Pressure Concrete’s job superintendent and other company officials. Before workbegan, no one from the city described to Pressure Concrete how long the laterals were, howmany secondary laterals drained into them, how large an area they drained, or what volumeof water they might potentially carry. More importantly, the company’s representatives didnot ask for that information. Although the company was given maps and diagrams by the citywhich showed where the primary lateral fines emptied into the main trunk lines, thesedocuments did not show the secondary laterals that fed the primary laterals and did notindicate the total length of the primary laterals.B.THE ACCIDENTOn the day of the accident, Pressure Concrete had a 6-man crew assigned to this job. Inthe morning, all six were at the site, but after lunch the job superintendent went back tothe motel where the crew was staying to order supplies and do some paperwork, leaving fiveemployees at the site when it started to rain. The employee who drowned was the one whowas left in charge by the superintendent. The afternoon the drowning occurred, twoemployees were working below, in the tunnel, and three were working \”topside,\”aboveground outside the Railroad Street manhole. In the tunnel were the employee who hadbeen left in charge and a new employee, who had worked for the company only a few months.The more experienced employee was acting as \”nozzleman,\” holding the hose andspraying the concrete onto the walls from the nozzle, and the new employee was acting ashis helper.The three employees topside were mixing the cement and feeding it into the gun when itbegan to \”sprinkle,\” or rain very lightly. The employees topside then called thehelper in the tunnel an a field telephone to tell him that it had begun to rain and theyshould shut down and get out of the tunnel. One of the employees topside, Garza, told the,other two employees that he was going below to help the employees in the tunnel shut down,and he got into the company’s pickup truck and drove to the creek entrance of the tunnel.By the time he got to the entrance, it had begun to rain harder. He left the truck at themouth of the tunnel and walked to the work area.Because the tunnel originated at a creek, there was always some water in the bottom ofthe tunnel. When Garza entered the tunnel, he observed that the level of the water wasabout normal. When he reached the work area, the helper was gathering the tools andmaterials, getting ready to leave, while the nozzleman continued spraying in an attempt touse up the already- mixed-concrete so that it would not harden in the machinery. As Garzaclimbed onto the scaffold to help the nozzleman, the field telephone rang, and the helperanswered it. He told his companions that the employees topside said that it had started torain very hard and that they should all get out immediately. He then left the work areaand headed toward the creek entrance. Garza and the nozzleman started to follow, but alarge amount of water was already coming down the tunnel, so they started to go in theother direction, downstream toward the Railroad Street manhole. However, because it wasdark in that direction, Garza decided to head for the creek bed entrance at the mouth ofthe tunnel where he had left the truck.Garza estimated that by this time the water was approaching waist height. Although theyhad difficulty getting past the torrent of water entering the side of the tunnel from theLawrence Street lateral, Garza and the new employee escaped from the tunnel and went tothe Railroad Street manhole to join the two employees who had remained topside to see ifthe remaining employee had escaped. They found that he was still in the tunnel, at thebottom of the manhole, unable to climb through the water cascading down on him from thelaterals that emptied into that manhole.The employees topside and the employee below could communicate by shouting back andforth. They threw him a rope and tried to pull him out, but the rope kept slipping out ofhis hands. Finally, they told him to tie the rope around himself. Because of the pressureof the water and the angle caused by the hole in the wall where the manhole connected tothe tunnel, they still could not pull him out. Only after the rain stopped were they ableto pull his body outC. PRESSURE CONCRETE’S INSTRUCTIONS TO ITS EMPLOYEESThe company introduced into evidence documents used in its safety program: a safetymanual issued to every employee; a safety manual issued to supervisory employees; andminutes of weekly safety meetings held by the crew involved in this incident. Although therecord shows that repairing sewer systems is a major portion of Pressure Concrete’s work,the company stipulated that nothing in those documents specifically addressed thedangerous working conditions that might be encountered on this job, such as flooding orthe accumulation of dangerous gases or liquids[[3]] underground.The company’s field superintendent was in charge of the entire project, includingsafety and hazard instruction. He testified that, although he had worked for PressureConcrete for sixteen years and had been a superintendent for ten years, he had notreceived any training from the company in recognizing hazards. The only safety materialshe had received from the company were the ones introduced into evidence. He admittedduring the hearing that he did not point out the potential hazards on this worksite to theemployees before they began working in the tunnel and that he did not give them anyinstructions in emergency procedure. He also admitted that there was no evacuation planfor this worksite. His instructions to the employees were to \”get out\” in caseof an emergency.Although the company’s policy was not to work in either a storm sewer or a sanitarysewer when it was raining, the project superintendent gave the employees no specificinstructions in this regard. Nor did he tell them not to enter the tunnel if there wasrain. At the hearing, the project superintendent claimed that he had instructed theemployees that, when it started to rain, they were to stop work and leave the tunnelimmediately, to \”just drop everything\” and head for the nearest exit withoutworrying about the tools and equipment.Pressure Concrete’s project superintendent, its general manager, and an employee alltestified that there is usually plenty of time to pick up things and get out of anunderground worksite when it begins to rain. Some of the employees testified that, whilethey knew that they were supposed to stop work when it began to rain, they had never beentold not to use up the concrete in the hopper. One employee of the company testified thathe thought they were supposed to \”get everything cleaned up\” before they gotout.D. THE JUDGE’S DECISIONThe judge found that Pressure Concrete had violated 29 C.F.R.?1926.21(b). The judgefound that a large portion of Pressure Concrete’s business required its employees to workin storm sewers and that the company was aware of the danger of working in a storm sewerduring rain. He held that reasonable instructions appropriate to the cited workingconditions would have included a specific evacuation plan designating an emergency exitand explicit instructions to stop work immediately and go to that exit when it began torain. The judge also found that the violation was serious and assessed a penalty of $1000.Having carefully considered the transcript of the hearing, the exhibits, and the briefsfiled by the parties, we find that the administrative law judge did not err.II. ARGUMENTSPressure Concrete argues that there was no violation because the instructions it gaveits employees were adequate to meet the requirements of the standard, pointing to itssafety manuals, the minutes of its weekly safety meeting, and to its company policy toevacuate underground worksites when it begins to rain. It also asserts that itsinstructions were not deficient because the dangers were so obvious that any reasonableemployee would recognize and avoid them; that the events leading up to the citation wereunforeseeable; and that the city of Montgomery failed to give the company sufficientinformation for it to be able to foresee these events.III. ANALYSISIn order to prove that an employer violated an OSHA standard, the Secretary must provethat (1) the standard applies to the cited working conditions, (2) the terms of thestandard were not complied with, (3) employees had access to the violative conditions, and(4) the employer knew of the violative conditions or could have known with the exercise ofreasonable diligence. Kulka Constr. Management Corp., 15 BNA OSHC 1870, 1992 CCH OSHD ?29,829 (No. 88-1167,1992); Astra Pharmaceutical Prods., Inc., 9 BNA OSHC 2126, 1981 CCHOSHD ? 25,578 (No. 78-6247,1981), aff’d, 681 F.2d 69 (1st Cir. 1982). Because section1926.21 (b) (2) does not specify exactly what instruction the employees must be given, theCommission and the courts have held that an employer must instruct its employees in therecognition and avoidance of those hazards of which a reasonably prudent employer wouldhave been aware. E.g., R & R Builders, Inc., 15 BNA OSHC 1383,1991 CCH OSHD ? \u00a029,531 (No. 88-282, 1991); A. P. O’Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD ? 29,223(No. 85-369, 1991); see also National Industrial Constructors, Inc. v. OSHRC, 583 F.2d1048 (8th Cir. 1978). We must therefore examine the evidence to determine whether PressureConcrete gave its employees instructions about recognizing and avoiding unsafe conditionsthat a reasonably prudent employer would have given in the same circumstances.Having reviewed the entire record, including the exhibits and the testimony of the twoPressure Concrete management officials who testified, we find a serious violation of 29 C.F. R. ? 1926.21 (b).We find that the cited standard applies to the working conditions.[[4]] Furthermore, wefind that the requirements of the standard were not met, that Pressure Concrete’semployees were exposed to the violative conditions, that the company had knowledge thatthe violative conditions existed.A. FAILURE TO COMPLYPressure Concrete argues that its instructions were adequate. We disagree. Thestandard requires that employees be instructed how to recognize and avoid dangerousconditions that they may reasonably be expected to encounter in their workplace. PressureConcrete failed to meet this requirement.Specifically, the person who was responsible for supervising this crew admitted that hehad not received any training in the recognition of hazards from Pressure Concrete in thesixteen years he had worked for the company. He testified that the employees could see forthemselves where the laterals were and that it was common sense not to go into the tunnelafter it had started raining. Based on this testimony, the company argues that thedangerous conditions pointed out by the Secretary were obvious and that a reasonableemployee would be aware of the dangers and act accordingly. However, that contentionerroneously places the burden on employees to be more aware and alert than their employer,and an employer cannot assume that its employees will all observe certain dangers andunderstand the significance of what they see, such as the fact that the laterals emptyinginto the manhole might make it impossible to climb out through the incoming water. What isobvious to an experienced supervisor may not be obvious to an inexperienced employee.[[5]]Although the record indicates that a substantial portion of Pressure Concrete’s work isperformed in underground locations such as this one, the company had never given thesuperintendent any training that would enable him to comply with the standard. BecausePressure Concrete failed to instruct the superintendent in the subject matter on which hewas required to instruct the employees, it could not reasonably expect him to adequatelytrain the employees.Furthermore, in order to know what hazards it must train its employees to recognize andavoid, an employer must inspect the worksite to determine any dangerous conditions towhich the employees may be exposed and then give them appropriate instructions. It is clear that Pressure Concrete did not fulfill this requirement. Though Pressure Concreteattempts to shift the blame to the city for not telling the company how quickly the tunnelcould flood, it is clear that no one from the company ever inquired about this subject tothe city nor did the superintendent ever examine the tunnel with an eye toward whathazards might be encountered. [[6]] We conclude that a reasonably prudent employerconcerned about the safety of its employees would have investigated to detect potentialdangers more aggressively than Pressure Concrete appears to have done. Under thesecircumstances, it was highly unlikely that the superintendent could adequately instructthe employees.Nevertheless, Pressure Concrete claims that its employees were adequately instructed.In support of this assertion, the company points to its two safety manuals and the minutesof its weekly safety meetings, which addressed topics specified by company headquarters,not potential hazards specific to this worksite. While the company’s safety program mayhave been adequate as far as it went, it did not address matters specific to this worksiteabout which a reasonably prudent employer would have instructed its employees. Forexample, although the record is clear that Pressure Concrete’s employees all knew thatthey were to stop work and evacuate the tunnel when it began to rain, the record isequally clear that there was no evacuation plan and that the employees were not giveninstructions that were adequate to imbue them with a sense of urgency. In fact, when itbegan to rain, the employees’ first reaction was to use up all the mixed concrete, whichwould have taken at least ten minutes. Although they changed this plan when it began torain harder, they acted on the revised plan too late to get out safely.Pressure Concrete asserts that its company policy was to drop everything and exitimmediately. However, the testimony of the employees at the worksite and their conductduring the incident in question contradict the assertion by the project superintendentthat he had, in fact, instructed the employees to \”drop everything\” and head forthe nearest exit when it began to rain. All the employees seemed to agree that it wasperfectly acceptable to use up all the concrete that had been mixed, to \”run out thehopper,\” and the employee who had been left in charge continued to operate the nozzleuntil the topside employees turned off the gun.The company further asserts that it did have an evacuation plan, pointing to testimonyby the superintendent that the plan was to get out immediately by the nearest exit. Thatsame witness, however, also testified that there was no specific evacuation plan. Inaddition, the company points to a statement by one of the employees that the employees hadbeen instructed to get out of the tunnel if it began to rain, but the impact of thatstatement is severely undercut by the fact that the testimony came from the employee whoentered the tunnel to help finish up and secure the equipment when it began to rain. Inthis case, his actions speak louder than his words, and we find that, if such instructionswere given, they were not communicated in such a way as to make them meaningful to theemployees whose conduct they were supposed to control. The record is therefore clear that,if there was a specific evacuation plan, the employees were unaware of it.The company also argues that the accident was unforeseeable, but the circumstances ofthe accident are irrelevant to the question before us: whether the employees were giveninstructions that were adequate.[[7]] The precise circumstances of this incident may nothave been foreseen by the company, but the potential dangers caused by flooding in stormsewers generally were certainly known to Pressure Concrete, and the employees should havebeen instructed more specifically than they were. The water did not rise \”in aflash,\” as Pressure Concrete asserts. The employees worked for several minutes afterthey had been informed that it had begun to rain. It appears from the record that, had theemployees ceased work immediately when the rain began, they would have been out of thestorm sewer before the inflow of water became dangerous, and the \”unforeseeable\”rise in the water level would nothave mattered. Pressure Concrete’s failure to give its employees instructions that wereadequate to enable them to recognize and avoid the conditions that occurred rendersmeaningless any argument that the conditions were not foreseeable.Finally, Pressure Concrete asserts that it is not required under the standard toadminister a test to determine whether its employees understood the instructions they weregiven. That may be a correct analysis of the standard’s requirements, but we conclude thatan employer cannot wash its hands of all responsibility to assure that the instructionsgiven are understood. A reasonably prudent employer would attempt to give instructionsthat can be understood and remembered by its employees, and would make at least someeffort to assure that the employees did, in fact, understand the instructions.We are aware that, at the hearing, the OSHA compliance officer (\”CO\”) whoconducted the investigation was not able to state specifically what instructions shouldhave been given, replying that what instructions would be appropriate would depend on anumber of different factors. That inability does not excuse Pressure Concrete from itslegal obligation to give proper instructions, however. The fact that the requisiteinstructions would have to be detailed enough to take into account various contingenciesdoes not negate the requirement for the instructions. We do note that the CO testifiedthat he had never been trained in underground construction safety and that, because henever saw the inside of the tunnel, he did not know the exact conditions that theemployees might encounter. However, the record does demonstrate that the CO did learn whenhe questioned the workmen and Pressure Concrete’s management personnel that the employeeshad not been given instructions sufficient to inform them about the conditions theyforeseeably encountered on the day of the fatal accident.Like the CO, the Commission has not seen the inside of the tunnel and cannot specifyhere exactly what instructions should have been given. However, we do find, based on therecord as a whole, that Pressure Concrete’s employees had not been instructed in the kindsof conditions that were found in the storm sewer, such as the inflow of water into themanhole that they used to enter and exit the tunnel. Pressure Concrete’s failure to complywith the requirements of the standard has therefore been established.B. KNOWLEDGEThe fact that Pressure Concrete had failed to train the project superintendent in therecognition and avoidance of dangerous conditions establishes that it had at leastconstructive knowledge of the inadequacy of its training program. That being the case, thesuperintendent could not reasonably be expected to instruct the employees he supervised onmatters or hazards about which he himself had not been taught. In addition, thesuperintendent’s knowledge of his own actions or inactions may be imputed to his employer.Pride Oil Well Serv., 15 BNA OSHC 1809,1814,1992 CCH OSHD ? 29,807, P.40,584 (No. 87-692,1992). From the record, it is clear that Pressure Concrete had, at a minimum, constructiveknowledge of the violation, and such knowledge is sufficient for the Secretary to meet herburden of proof as to knowledge. Id.C. CHARACTERIZATION OF THE VIOLATIONUnder section 17(k) of the Act, 29 U.S.C.? 666(k), a violation is serious ifthere is a substantial probability that death or serious physical harm could result. Thisstatement does not mean that the occurrence of an accident must be a substantiallyprobable result of the violative condition but, rather, that a serious injury is thelikely result should an accident occur. Super Excavators, Inc., 15 BNA OSHC 1313, 1315,1991 CCH OSHD ? 29,498, p. 39,804 (No. 89-2253, 1991);.Natkin & Co., 1 BNA OSHC 1204,1205, 1971-73 CCH OSHD ? 15,679, pp. 20,967-68 (No. 401, 1973). Here, it is abundantlyclear that the consequences of Pressure Concrete’s failure to instruct its employees couldresult in serious harm. We therefore find that the violation was serious.IV. PENALTYSection 17(j) of the Act provides that the Commission shall assess an appropriatepenalty for each violation, giving due consideration to the size of the employer, thegravity of the violation, the good faith of the employer, and the employer’s history ofprevious violations. 29 U.S.C.? 666(j). The Secretary proposed a penalty of $1000 forthis item. At the hearing, Pressure Concrete stipulated that such a penalty wasappropriate, and the judgeassessed a penalty of $1000. Under these circumstances, we see no reason to reexamine thejudge’s determination.V. CONCLUSIONAccordingly, we find that the administrative law judge did not err in findingthat Pressure Concrete had committed a serious violation of 29 C.F.R. ? 1926.21(b)(2) orin assessing a penalty of $1000 for the violation. We therefore affirm his decision onthat item.Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ChairmanDonald G.Wiseman\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CommissionerVelma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CommissionerDated: December 7, 1992SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Complainant,V.PRESSURE CONCRETE CONSTRUCTION COMPANY,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Respondent.OSHRC Docket No. 90-2668APPEARANCES: Kathleen Henderson, Esquire, Office of the Solicitor, U. S. Department of Labor,Birmingham, Alabama, on behalf of complainantJohn C. Wright, Jr., Esquire, Philadelphia, Pennsylvania, on behalf of respondentDECISION AND ORDERSALYERS, Judge: Pressure Concrete Construction Company is engaged in the reconstructionand repair of sewer systems (Tr. 307-308) and was under contract with the City ofMontgomery, Alabama, to repair parts of the city’s storm sewer system in the spring andsummer of 1990 (Tr. 46). The storm sewer system in the downtown area was built of brick 80to 150 years ago (Tr. 22) and, at the time in question, parts of the sewer system hadbegun to collapse (Tr. 46).On July 11, 1990, one of Pressure’s employees drowned while working in the storm sewer(Tr. 244-245). OSHA conducted an investigation of the fatality and subsequently issued toPressure a citation alleging serious violations of three safety standards. Item 1 of thecitation alleged a serious violation of 29 C.F.R. ? 1926.21(b)(2) for failure to instructemployees in the recognition and avoidance of unsafe conditions.[[1]] Item 2 of thecitation alleged a serious violation of 29 C.F.R. ? 1926.59(h) for failing to provideinformation and training on hazardous chemicals used at the workplace. Item 3 of thecitation alleges a serious violation of 29 C.F.R.? 1926.405(a)(2)(ii)(G) for usingelectrical lighting operating at greater than 120 volts without the protection of a groundfault circuit interrupter (\”GFCI\”).The city’s storm sewer system is designed to concentrate rain water from the downtownarea into an underground system leading into the Alabama River (Tr. 25). Rain water fromthe developed areas is collected in lateral lines connected to a central sewer tunnel. Thesewer tunnel is about one-half mile long. Creek water from a wooded area flows into thesewer tunnel at one end. At the other end the water from the creek and from the laterallines flows into the Alabama River (Tr. 27-28, 53-54).The Perry Street and Lawrence Street lateral lines are two main laterals which collectrain water from the downtown area and dump it into the sewer tunnel (Exs. C-1, C-2; Tr.28). The Perry Street lateral line deposits rain water from a height of about 11 feet intothe bottom of the Railroad Street manhole where it is then washed into the sewer tunnel.The Lawrence Street lateral line deposits rain water directly into the sewer tunnel (Exs.C-1, C-2).On July 11, 1990, Pressure’s crew was repairing an 88-foot section between the RailroadStreet manhole and the Lawrence Street lateral line. Pressure’s work crew consisted ofRobert Dean, its field superintendent, and five other men: James Montgomery, Keith Dean,Jimmy Garza, Wayne Patterson, and Ed Williams. Montgomery, Garza, and Keith Dean workedtopside while Patterson and Williams worked inside the sewer tunnel (Tr. 197, 226, 229,235).In the afternoon of July 11, it began to rain (Tr. 201). The men who were workingtopside called below and told the men who were working inside the sewer that it hadstarted to rain (Tr. 227). Garza quit mixing concrete, got in his truck, and drove to thecreek box entrance. Garza entered the creek box entrance because he stated, \”Wheneverwe always quit shooting, I always went down and helped them secure up down at thebottom\” (Tr. 203). At the time Garza entered the sewer tunnel, the water in thetunnel was six inches to a foot deep (Tr. 205). The men in the sewer tunnel, includingGarza, continued working. They did not start to leave until after they were called asecond time by the men working topside and told that water was coming into the area (Tr.227). The water was waist high when they started to leave the tunnel (Tr. 212).Garza and Williams initially headed for the creek box exit (Tr. 211). They encountereda surge of water from the Lawrence Street lateral, so they turned around and wentdownstream in the direction of the Railroad Street manhole. Garza saw that \”it wastotal darkness\” in that direction and turned around to head back towards the creekbox exit where he was able to get out. Patterson had already left the sewer tunnel by thatexit (Tr. 215-216). Williams made it to the Railroad Street manhole but was unable to getout. Pressure’s crew and other people attempted to rescue Williams by pulling him with arope up through the manhole. They were unable to do so before Williams drowned (Tr. 214-219).Item 1: 29 C.F.R. ? 1926.21(b)(2)Section 1926.21(b)(2) provides:(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.The Secretary argues that Pressure failed to instruct its employees in the recognitionand avoidance of unsafe conditions associated with working in storm sewers. The Secretaryasserts that these unsafe conditions include \”the potentially fatal force of thewater rushing through the storm sewer, the hazard of the lateral lines, the hazard ofrapid accumulation rate of water in the storm sewer during periods of rainfall, the hazardof electrocution, and the hazard of not immediately leaving the storm sewer after itrains\” (Secretary’s Brief, pg. 18).All employees hired by Pressure are given a company safety manual when they begin work(Ex. R-1; Tr. 179). Pressure’s employees are required to attend weekly safety meetings(Ex. R-4; Tr. 181). Pressure stipulation at the hearing that the safety manual does notmention an evacuation plan in case of rising water in a storm sewer (Tr. 321). The safetymanual contains general safety information that does not specifically address hazardsassociated with work in storm sewers.Garza testified that he was given no specific safety instructions before starting onthe Montgomery project (Tr. 198, 204). James Montgomery testified that he was told that ifit started raining, the crew was to \”[g]et everything cleaned up and get out\”(Tr. 236).Pressure’s crew was not apprised of the location of the exits or of the obstacles theymight encounter getting out (Tr. 222). The Railroad Street manhole was locatedapproximately 37 feet downstream from the work area (Ex. C-1). The next closest exitbeyond it was the creek box exit approximately one-half mile away (Ex. C-1; Tr. 54). Toexit from the sewer by means of the Railroad Street manhole, employees first had to stepup two and a half feet and go through a hole in the sewer tunnel wall which was only aboutthree and a half feet high (Exs. C-1, C-2). Once inside the manhole it was necessary toclimb up over 28 feet in order to exit. During rainstorms, the Perry Street lateral linedumps rain water from a three- by four-foot outlet in the manhole wall from a height of 11feet. On July 11, when Williams was attempting to exit through the Railroad Streetmanhole, he was prevented from getting out by the cascade of water from the outlet. Garzawas topside of the manhole while Williams was trying to exit. He could hear Williams butcould not see him because of the volume of water pouring in (Tr. 214). Garza had not beenwarned that water pouring in from the Perry Street lateral line could be hazardous to aperson attempting to use the Railroad Street exit (Tr. 214-215).James Wilder is the maintenance director for the City of Montgomery. His duties includethe maintenance of the city’s storm sewer lines (Tr. 21). Wilder and his employees wererequired to enter the storm sewer from time to time (Tr. 23). Because of the potentialhazards involved, Wilder followed strict safety procedures before allowing his employeesto enter the sewer (Tr. 24).Before any work begins, Wilder or one of his assistants inspects the area of the sewersystem where the work is to be performed. Points of ingress and egress are noted, andemergency exits are designated. The area is checked for potential hazards (Tr. 33-34).Because it is dangerous to have people in a storm sewer when it is raining, Wildermonitors the weather before permitting his employees to enter the system (Tr. 25). He willwatch the cable weather channel on television in his office. He will then call theNational Weather Service’s local office and speak with a weather forecaster (Tr. 24). Ifthere is a 40 percent chance of rain, Wilder said, \”I don’t even consider\”allowing employees in the system (Tr. 25). Wilder explained his procedure for assessingthe weather situation for smaller percentage possibilities of rain (Tr. 26):If it’s a very small percentage, for instance, 20 percent or where it says a slightchance of rain, then I discuss this slight chance or this 20 percent chance with a weatherforecaster with the National Weather Service, and in most cases elect not to have personsworking in the storm sewer lines.There are some few exceptions to that. If the weather forecaster feels that there is anear certainty that the front for instance, will not move in until nighttime [sic], forinstance, then we might possibly work that morning.Wilder would station an employee topside who would observe the weather conditions.\”If there is a threat of rain that comes up, or if it begins raining then, of course,our employees are instructed to leave immediately\” (Tr.27?). Rain, as defined byWilder for this situation, is \”one drop\” (Tr.37). Wilder’s employees are instructed to put down anything they are holding and toleave immediately. They are not to attempt to finish up their work or to even gather uptheir tools and materials (Tr. 39). Wilder has verbally reprimanded employees who stoppedto gather equipment when it started to rain (Tr. 45).Robert Dean, Pressure’s superintendent, did not instruct his employees in emergencyprocedures (Tr. 140). Dean’s evacuation plan was to use the \”closest route\” (Tr.155). The closest route in this case was the Railroad Street manhole where Williamsdrowned trying to get out. Dean did not warn the employees that the Perry Street lateralline could cause problems by cascading water into the sewer tunnel (Tr. 156). Deanrecalled watching the weather forecast at the time of the fatality and hearing that therewas a 20 percent chance of showers that day (Tr. 143-144). The Secretary introducedevidence that the weather service had projected a 30 percent chance of rain that day (Exs.C-18, C-19).John Clayton, Pressure’s vice-president and general manager, was asked aboutprecautions his company took against the rapid rise of water in sewer tunnels in case ofrain (Tr. 311):A. Well, our people watch the sky and they watch to see if it’s raining or going tostart raining. And if it does, then they leave. They get out of the line.Q. Do you try to assess each worksite with that in mind or not? The potential hazard ofa sewer filling up rapidly?A. I Suppose that — Each individually? Q. Yes.A. I guess in the back of your mind I guess you do. Yes, Sir.Q. But you don’t make a big issue out it?A. Well, there’s no way you can tell, really. You don’t know. You just know the size ofit and if it starts to fill up, you get out.Pressure clearly did not take reasonable steps to instruct its employees in therecognition and avoidance of sewer tunnel hazards. Garza was never told that he was not toenter a sewer system if it started to rain. He understood that he and his fellow employeeswere to finish up what they were doing, secure the equipment, and leave if it startedraining. They were not to just drop everything and leave (Tr. 204-205). Garza thoughttheir instructions were \”Get everything cleaned up and get out\” (Tr. 236).Pressure’s instructions regarding rain situations are in marked contrast to Wilder’s,who instructed his employees to drop everything and leave immediately, and who evenreprimanded his employees for stopping to gather up equipment. Wilder’s reason for thisinstruction was that, depending on the intensity of the rain, the sewer system could fillup in five minutes or less, and in some cases, almost immediately (Tr. 43).While Pressure was not required to follow exactly the procedure outlined by Wilder,Wilder’s procedure is an example of a reasonable instruction appropriate to thecircumstances of the work situation. A large part of Pressure’s business requires itsemployees to work in storm sewers. It is well known in the storm sewer industry that stormsewers are dangerous to work in during rain (Tr. 32). Reasonable instructions to itsemployees in this case would have, at a minimum, included a specific evacuation plan whichincluded a designated emergency exit and explicit orders to drop everything immediatelyand go to that exit.Pressure argues that the circumstances of the accident were \”unprecedented andunforeseeable\” and that Williams \”probably would have died even if [Pressure]employees would have been given more specific instructions regarding leaving the stormsewer\” (Pressure’s Brief, pg. 11). It must be borne in mind that the function of thisproceeding is not to determine whether Pressure’s actions contributed to Williams’ death.The question at issue is whether Pressure’s employees were instructed in the recognitionand avoidance of unsafe conditions in their work environment. The record establishes thatPressure’s crew did not receive instructions which enabled them to recognize that thelateral lines posed potential hazards in exiting through the manholes, or that sewersystems could fill up with water in a matter of minutes. The crew was not instructed inthe avoidance of these hazards by going todesignated emergency exits or by immediately abandoning their work.The Secretary has established that Pressure was in serious violation of ?1926.21(b)(2). Because it is concluded that a violation of this standard existed, it isnot necessary to consider whether Pressure was in violation of the standards which theSecretary charged in the alternative, ? 1926.21(b)(6)(i) and ? 1926.800(d).Item 2: 29 C.F.R.?1926.59(h)Section 1926.59(h) provides:(h) Employers shall provide employees with information and training on hazardouschemicals in their work area at the time of their initial assignment, and whenever a newhazard is introduced into their work area.When OSHA Safety Compliance officer Donald Nguyen asked superintendent Robert Dean ifPressure had a hazardous communication program, Dean did not know what he was talkingabout (Tr. 282): \”He stated he may have it at the hotel–the motel–and he had noknowledge of it… He said he doesn’t know what hazard communication means or whatMaterial Data Safety Sheet means…He doesn’t understand what Material Safety Data Sheetsare.\” Nguyen asked the other employees about a hazardous communication program (Tr.283): \”I asked Robert Dean with the crew as a group and they all shook theirhead.\”Pressure contends that its employees were trained regarding the hazards of working withcement, the only hazardous substance with which they were working. The record does notsupport this contention.Dean did not consider cement to be a hazardous substance, even though there was a MSDSsupplied with it (Tr. 163). He did not review the MSDS to see if any hazards wereassociated with the cement (Tr. 164). Dean, who supervised the work crew, could not statewhether his crew knew what the purpose of the MSDS was (Tr. 165).When Garza was asked what precautions he used in handling cement, he replied,\”common sense\” (Tr. 200). He carried eye drops in his pocket in case he got anycement dust in his eyes. When asked how he knew what to do if exposed to cement dust, hereplied, \”Over the years, I’ve been told. I’m not told everyday what to do\” (Tr.200). This testimony does not support Pressure’s contention that it was in compliance with? 1926.59(h), which requires that employees receive training on hazardous chemicals\”at the time of their initial assignment.\”Pressure used from 80 to 130 bags of cement during one work day. Two employees wereused to mix the cement during the day (Tr. 167). Clayton recognized cement dust as ahazardous substance (Tr. 316).The Secretary has established that Pressure was in violation of ? 1926.59(h). Pressurewas charged with a serious violation of the standard. Section 17(k) of the OccupationalSafety and Health Act of 1970 (\”Act\”) provides: \”A serious violation shallbe deemed to exist in a place of employment if there is a substantial probability thatdeath or serious physical harm could result….\” It is the Secretary’s burden ofproof to establish the probability of death or serious physical harm as part of her primafacie case. Crescent Wharf and Warehouse Company, 73 OSAHRC 15\/A2, 1 BNA OSHC 1219, 1973CCH OSHD ? 15,687 (No. 1, 1973). The Secretary has failed to adduce any evidence on theseriousness of this violation.It is possible to infer from some standards that a hazard poses a serious risk toemployees. Such is not the case here. Although cement is classified as a hazardoussubstance, the extent of the hazard remained unexplored at the hearing. The only evidenceas to the effects of the cement came from Pressure’s employees, who characterized thehazard as minor irritation to the eyes. It may well be that cement poses a more serioushazard than that, but the MSDS for cement was not introduced into the record and no onetestified to its more serious effects. Based on the record, it does not appear thatexposure to cement dust would lead to a substantial probability of serious physical harm.Accordingly, item 2 will be affirmed as nonserious.Item 3: 29 C.F.R. ? 1926.405(a)(2)(ii)(G) Section 1926.405(a)(2)(ii)(G) provides:(G) Portable electric lighting used in wet and\/or other conductive locations, as forexample, drums, tanks, and vessels, shall be operated at 12 volts or less. However,120-volt lights may be used if protected by a ground-fault circuit interrupter. Pressure concedes that it was operating a 120-volt electrical system for lighting inthe sewer tunnel and that it was not using a ground fault circuit interrupter (Tr. 17,289). Dean testified that a GFCI would not work because moisture in the tunnel would causethe portable light to short out (Tr. 169).Pressure, using an innovative argument, contends that using the GFCI would havepresented a greater hazard, i.e., working in the dark. Unfortunately for Pressure, thegreater hazard defense is composed of three elements, none of which has been met in thepresent case.[T]o prevail on the \”greater hazard\” defense, an employer must establish thethree substantive elements of the defense: \”(I) the hazards of compliance are greaterthan the hazards of noncompliance, (2) alternative means of protection are unavailable,and (3) a variance was unavailable or inappropriate.Secretary of Labor v. Williams Enterprises, 876 F.2d 188 (D.C. Cir. 1989).Pressure did not attempt to obtain a variance. Pressure did not show that alternativemeans of protection were unavailable. When asked about the possibility of usingflashlights or battery- powered lights, Dean stated simply that he had not tried to usethem. Likewise, no evidence was introduced to show why the lighting system could not\”be operated at 12 volts or less\” as contemplated by the standard. Pressure didnot establish that the hazards of complying with the standard were greater than those ofnoncompliance. On the other hand, it seems obvious that the reason the generator keptshorting out was because the GFCI was performing its function, that is, it was terminatingthe current when the amount of moisture in the environment made it unsafe to continue.The Secretary has established that Pressure was in serious violation of 29 C.F.R.?1926.405 (a)(2)(ii)(G).Penalties The Commission is the final arbiter of penalties in all contested cases. Secretaryv. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j)of the Act, the Commission is required to find and give \”due consideration\” tothe size of the employer’s business, the gravity of the violation, the good faith of theemployer, and the history of previous violations in determining the appropriate penalty.The gravity of the offense is the principal factor to be considered. Nacirema OperatingCo., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Upon due consideration of the relevant factors, it is determined that the appropriatepenalties for the cited items are as follows: Item 1 $1000.00 Item 2 – 0 – Item 3 $900.00 FINDINGS OF FACT AND CONCLUSIONS OF LAWThe foregoing constitutes the findings of fact and conclusions of law in accordancewith Federal Rule of Civil Procedure 52(a).ORDERBased upon the foregoing decision, it is hereby ORDERED: (1) That item 1 of thecitation is affirmed and a penalty of $1,000.00 is assessed.(2) That item 2 of the citation is affirmed as nonserious, and no penalty is assessed.(3) That item 3 of the citation is affirmed, and a penalty of $900.00 is assessed.EDWIN G. SALYERS\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 JudgeFOOTNOTES: [[1]] That standard provides:?1926.21 Safety training and education (b)Employer responsibility.(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.[[2]] One witnesses described the storm sewer system as being like a tree with a trunkand limbs, with smaller branches growing off the larger limbs. The limbs were analogizedto the main lateral lines emptying into the tunnel where the employees were working, withthe secondary laterals emptying into the main laterals being like smaller branches growingfrom the limbs.[[3]] The record indicates that there is a gasoline storage and distribution facilitywithin a block of where the employees were working, and a leak or spill could allowgasoline to get into the storm sewer.[[4]] In her complaint, the Secretary amended the citation to allege in the alternativethat two additional standards had been violated. The judge found a violation of the citedstandard without addressing the applicability of the other two standards alleged in thealternative. While it would have been preferable for the judge to explain why he found thecited standard to apply instead of the others, neither party has sought review of thejudge’s implicit finding that the cited standard was the most appropriate of the three,and the direction for review did not specify that as an issue to be considered. Becauseneither party had urged on review that one of the other standards is more specificallyapplicable, the Commission will not address that question. Our decision in this casetherefore constitutes a finding only that section 1926.21 (b) (2) applies to the factshere, not that it is the most appropriate standard.[[5]] Pressure Concrete cites an unreviewed decision by an administrative law judge assupport for the proposition that an employer need not instruct its employees on somethingthat is obvious. As the discussion above indicates, what is obvious to one person may notbe obvious to another. Consequently, we do not necessarily agree that the decision citedis apposite. More importantly, because it was unreviewed, that decision does notconstitute precedent that is binding on the Commission. Havens Steel Co., 6 BNA OSHC 1740,1742 n.7, 1978 CCH OSHD ?\u00a0 22,875. p. 27,672 n.7 (No. 15538, 1978).[[6]] The company’s general manager testified that, in the back of his mind, heassessed the worksite for the hazard of rapidly rising water, but he apparently did notcommunicate this assessment to the superintendent or the employees.[[7]] Furthermore, we find nothing in the record that establishes that the storm inquestion was extraordinary. For example, the reason it was necessary for the city to hirePressure Concrete to repair the storm sewer was that there had recently been very heavyrain and flooding, but the record does not suggest that the results of this storm causedextensive flooding. Indeed, the record shows that the storm lasted less than an hour. Wealso accord little weight to the testimony by witnesses who were not at the worksite thatthey had never known of an instance in which water rose as quickly as it did in this case,because their knowledge of the amount of time that elapsed is open to question. Inaddition, some of them stated that they always evacuate as underground worksiteimmediately at the first word of rain, which means that they could not know how quicklythe water rose after they left.[[1]]In her complaint, the Secretary amended item 1 to allege in the alternative a seriousviolation of 29 C.F.R.? 1926.21(6)(i) for failure to instruct employees in the hazards ofconfined spaces, or a serious violation of 29 C.F.R. ? 1926.800(d) for failure toinstruct employees in the recognition and avoidance of hazards associated with undergroundconstruction activities.”