” SECRETARY OF LABOR,Complainant,v.SHANK-OHBAYASHI,Respondent.OSHRC Docket Nos. 88-1711 & 88-2674_ORDER_These consolidated cases were directed for review by Former ActingChairman Linda L. Arey on November 21, 1989. Review was sought anddirected only on issues involving Docket No. 88-2674. Review was notdirected on any issue involving Docket No. 88-1711. Under CommissionRule of Procedure 92(a), 29 C.F.R. ? 2200.92(a), however, the directionfor review established jurisdiction in the Commission to review \”theentire case,\” that is, all issues in Docket Nos. 88-1711 & 88-2674. Having reviewed the entire record, the Commission now finds that thereis neither party interest nor a compelling public interest that wouldwarrant further review of the issues presented in Docket No. 88-1711.Accordingly, on the Commission’s own motion pursuant to Commission Ruleof Procedure 10, 29 C.F.R. ? 2200.10, Docket No. 88-1711 is severed andthe judge’s decision as to that docket number is deemed a final order ofthe Commission. Docket No. 88-2674 remains pending before theCommission on review.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: June 19, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.SHANK-OHBAYASHI,Respondent.OSHRC DOCKET NOS. 88-1711 and 88-2674APPEARANCES:For the Complainant:Jonathan S. Vick, Esq., Office of the Solicitor,U.S. Department of Labor, Los Angeles, CAFor the Respondent:Michael L. Shank, Pro se, Shank-Ohbayashi,Los Angeles, CA_DECISION AND ORDER_Loye, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651 _et seq_.; hereafter called the \”Act\”).Respondent, Shank-Ohbayashi, is involved in a tunneling project for theLos Angeles Metro-Rail (Tr. 24). As a result of two separateinspections at the tunnel site, respondent was issued a number ofcitations which were timely contested. Those cases were docketed underCommission Docket Nos. 88-1711 and 88-2674. Upon motion, the two caseswere consolidated for purposes of trial. A hearing was held in LosAngeles, California on April 11-14, 1989.The parties have submitted briefs and the matter is now ready for decision._Alleged Violations_At hearing the Secretary moved to withdraw a number of citations. TheSecretary’s motion was granted. With respect to Docket No. 88-2674, theSecretary withdrew citation 1, item 4c, (Tr.361). Docket No. 88-1711: citation 1, items 2 and 3a and citation number 2, item 2 were withdrawn(Tr. 20-21).The remaining citations are as follows:Docket No. 88-2674 – Serious citation 1, items 1 through 6, allegeviolation of 29 C.F.R. ??1926.300(b)(2), 1926.302(b)(1), 1926.350(a)(9),1926.407(b), 1926.431 and 1926.800(a)(2). The Secretary was allowed toamend Serious citation 1, items 7a and 7b to plead in the alternative,rather than separately, violations of 29 C.F.R. ??1926.800(e)(1)(iv) and5(a)(1) (Tr. 21-23). Serious citation 1, item 8 names violations of?1926.800(h)(2)(ii). Willful citation 2, items 1, 2 and 3 chargeviolations of ?1926.407(b), 1926.800(c)(2)(vii), and 1926.800(k)(6). Other than serious citation 3, item 1, 2, 3 and 4, charge violations of1926.403(e), 1926.403(g), 1926.403(h) and 1926.405(b)(2).Docket No. 88-1711 – Serious citation 1, items 1a, 1b, and 1c allegeviolation of 29 C.F.R. ??1926.350(a)(1), 1926.350(a)(9) and1926.350(j). Serious citation 1, item 3b alleges violation of??1926.21(b)(2). Citation 1, item 4 was amended to allege a violationof ?1926.431. Other than serious citation 2, items 1, 3, 4 and 5 chargeviolations of ??1926.51(a)(4), 1926.54(b), 1926.152(a)(1) and1926.800(k)(14).No jurisdictional issues are in dispute, the parties having pledsufficient facts to establish respondent is subject to the Act and theCommission has jurisdiction of the parties and the subject matter.*Docket No. 2674*Mr. Thomas L. Wild, a Compliance Officer with OSHA, conducted theAugust, 1988 inspection at respondent’s A171 tunnel site near Wilshireand Bonnie Brae in Los Angeles, California (Tr. 319)._Citation 1, Items 1a and 1b__Facts_The first citation concerns a ballast weight conveyor. The ballastweight rides on a frame consisting of two poles attached to the conveyorand passing through supports on each side of the weight. The bottommember of the frame is about four feet below the conveyor and four feetabove the ground (Tr. 324; Ex. C-K3, C-K4). The ballast fluctuates upand down to keep tension on the belt as it moves \”muck\” over the top(Tr. 326).Mr. Wild testified that if the conveyor belt were to break, the ballastwould fall 18 inches to two feet to the bottom of its supporting frame(Tr. 321, 329). Employees walking past, or at work greasing theconveyor’s roller might be struck on the head or shoulder (Tr. 321, 332;Ex. C-K2). A blow from the weight could result in severe injuriesincluding concussion and broken bones (Tr. 328, 331).Mr. Wild felt that a cable should have been attached from the frame tothe weight itself to prevent it from dropping (Tr. 322, 330).Mr. Wild also testified that on the lower part of the same conveyorsystem, a self-cleaning tail pulley and 4 idler rollers were unguarded(Tr. 332; Ex. C-K5). Mr. Wild stated that employees could get theirhands inside the spokes of the pulley wheel or get their clothing caughtin \”little hands\” that stick out front the wheel (Tr. 334-335). Mr.Wild also stated that employees could get their hands caught between theidler rollers and the metal conveyor frame, resulting in possible brokenbones or amputation (Tr. 336).Mr. Wild testified that employees had to walk around the conveyor to getup the walkway to the top of the conveyor system, and that maintenanceemployees would also be exposed to the alleged hazard when greasing therollers (Tr. 337)._Discussion_Part 1926, Subpart I is titled _-Tools-Hand and Power_. Section1926.300(b)(2) provides that:Belts, gears, shafts, pulleys, sprockets, spindles, drums, flywheels,chains, or other reciprocating rotating or moving parts of equipmentshall be guarded if such parts are exposed to contact by employees orotherwise create a hazard. Guarding shall meet the requirements as setforth in American National Standards Institute, B15.1-1953 (R1958),Safety Code for Mechanical Power-Transmission Apparatus.Respondent argues that the Secretary has failed to demonstrate that thecited standard applies to its conveyor belt as required under Commissionprecedent. _Astra Pharmaceutical Products, Inc_., 9 BNA OSHC 2126 (No.78-6247, 1981).The Secretary contends that, despite the heading of Sub-part I;?1926.300(b)(2), applicable to belts and gears on equipment, isapplicable to respondent’s belt conveyor. This Judge disagrees._Webster’s II New Riverside University Dictionary_ contains the definition:tool 1.A hand-held implement, as a hammer, saw, or drill, used inaccomplishing work. 2.a. A machine, as a lathe, for cutting and shapingmechanical parts. b.The cutting part of such a machine.. . .It is clear a conveyor belt is not a \”tool\”, in the common understandingof the word. Moreover, in this case the standard itself refers to manytools specifically. References to sanders, grinders, routers, nailers,jackhammers, etc., support a finding that the drafters of the standardintended it to apply to \”tools\” in the common sense.In addition, Subpart N _-Cranes, Derricks, Hoists, Elevators, andConveyors_ contains regulations specifically applicable to conveyors. Section 1926.555 directs the reader to safety requirements set forth inANSI B20.1-1957, Safety Code for Conveyors, Cableways, and RelatedEquipment, an ANSI standard different than the one referred to by ?1926.300(b)(2). Those standards set forth requirements for the verycomponents dealt with in the Secretary’s citation.It is well settled that the Secretary may not extend the reach of astandard beyond the plain meaning of the regulation’s language, thusdepriving the employer of fair warning of proscribed conduct. _Seee.g., Bethlehem Steel v. OSHRC_, 573 F.2d 157 [6 BNA OSHC 1440] (3rdCir. 1978).The Secretary has not shown the cited standard’s applicability andCitation 1, items 1a and 1b are dismissed._Citation 1, Item 2__Facts_Mr. Wild then testified that during his inspection, he observed twoemployees working with an air powered jackhammer. The flexible hosesupplying air to the jackhammer was not secured by a \”whip check\” or anyother positive means (Tr. 343).A whip check is a cord that attaches to a frame and the end of an airhose. Should the hose work loose, the whip check would prevent thepressurized hose from whipping around and possibly striking employees(Tr. 344). Mr. Wild testified that a blow from a pressurized hosecould result in possible broken bones or a concussion (Tr. 351).Mr. Wild observed one employee using the jackhammer at the time of theinspection and another within two feet of him (Tr. 350). When he calledthe condition to the attention of the foreman, who was in the area, itwas immediately abated (Tr. 350-351, 356).The Project Manager, Mr. Stokes, testified that, on its hoses,respondent uses only Boss couplings, which take multiple turns of thewing nut to dislodge. Whip checks are used only on hoses larger thanone inch (Tr. 816; Ex. R-4)._Discussion_Section 1926.302(b) requires that:_Pneumatic Power tools_. (1) Pneumatic power tools shall be secured tothe hose or whip by some positive means to prevent the tool frombecoming accidentally disconnected.The relevant facts are uncontested. Respondent argues that its use ofthe Boss coupling constitutes a positive means of preventing accidentaldisconnection. The Secretary maintains that the \”positive means\”required by ?1926.302(b)(1) refers to some type of safety clip, chain orretainer, and that merely adding more threads to the coupling will notsatisfy the regulation.It is noted that the interpretation of a standard by the promulgatingagency is controlling unless \”clearly erroneous or inconsistent with theregulation itself.\” _Udall v. Tallman_, 380 U.S. 1, at 16, 87 S.Ct.792, at 801 (1965). In this case, the Secretary’s interpretation isconsistent with the language and purpose of the standard. Respondentwas not, therefore, in compliance with 1926.302(b)(1) as interpreted.It is admitted that it was respondent’s policy not to use whip checks onthe size hose involved here; therefore, employer knowledge of theviolation is established.Since a pneumatically propelled hose could easily put out an eye orresult in serious lacerations, the violation will be affirmed as a\”Serious\” violation.The Secretary proposes a penalty of $500.00.The determination of what constitutes an appropriate penalty is withinthe discretion of the Review Commission. _Long_ _Manufacturing Co. v.OSHRC_, 554 F.2d 902 (8th Cir. 1977). In determining the penalty theCommission is required to give due consideration to the size of theemployer, the gravity of the violation and the employer’s good faith andhistory of previous violations. The gravity of the offense is theprinciple factor to be considered. _Nacirema Operating Co_., 1 BNA OSHC1001, (No. 4, 1972).Respondent in this case is a medium to large employer, with 75 to 100employees. Respondent has a history of serious citations (Tr. 501,504). The gravity of the violation is medium to low. Only twoemployees were exposed to the hazard, which respondent had taken somemeasures to abate with the use of safety couplings. The cited conditionwas immediately abated. Under the circumstances, this Judge finds thatthe proposed penalty is excessive. $300.00 will be assessed._Citation 1, Item 3__Facts_While in the tunnel, Mr. Wild observed an unsecured oxygen and acetylenebottle propped against the wall on top of a pipeline which ran along theright-hand side of the tunnel (Tr. 353-354). Mr. Wild stated that thebottles were full and capped (Tr. 509). Two employees were observedworking within several feet of the hazardous condition (Tr. 355). Aforeman was in the area (Tr. 356).Mr. Wild testified that the bottles were in an unstable condition andcould be easily knocked over by traffic in the area (Tr. 356). Should apressurized bottle tip over and rupture or break off at the top, itwould become a missile (Tr. 354-355). A tank propelled into an employeecould result in serious injury including broken bones or death (Tr. 355).Mr. Stokes testified that pressurized cylinders are stored upright in arack on the surface. Oxygen and acetylene are separated with afireproof metal barrier (Tr. 817). Cylinders are taken into the tunnelwhen required for use (Tr. 818)._Discussion_Section 1926.350(a) states:_Transporting, moving, and storing compressed gas cylinders._(9) Compressed gas cylinders shall be secured in an upright position atall times except, if necessary for short periods of time while cylindersare actually being hoisted or carried.The only issue raised by respondent is that of applicability. Respondent argues that ?1926.350(a) is limited by its heading to thetransport and storage of cylinders, citing _Sterns-Roger Incorporated_,7 BNA OSHC 1919 (No. 76-2326, 1979). The cited cylinders, it argues,were in use or available for intermittent use and therefore not subjectto the regulation.The Commission, however, limited the applicability of _Sterns-Roger_ ina later case, _Austin Building Co_., 8 BNA OSHC 2150 (No. 77-3878,1980). In that case the Commission found that ?1926.350(a)’s headingcould not be used to limit the explicit terms of 1926.350(a)(9), whichrequire that cylinders be secured \”at all times\” other than when hoistedor carried for short periods. _Id_. at 2153. The Commission then foundthe standard to be applicable to cylinders in use.This Judge is bound by the ruling in _Austin Building Co_. Since therespondent’s cylinders were neither being hoisted nor carried, thestandard is applicable.The evidence establishes a \”Serious\” violation of ?1926.350(a)(9), andcitation 1, item 3 will be affirmed.The Secretary has proposed a penalty of $500.00.The gravity of the violation is medium. Two employees were exposed, noalternative measures were taken to protect against the hazard. Takingthe relevant factors into account the proposed penalty is found to beexcessive. $400.00 will be assessed._Citation 1, Item 4a and 4b__Facts_During the inspection, Mr. Wild noted equipment in use approximately4,000 feet inside the tunnel which was not approved for use in ahazardous location (Tr. 363). Respondent has admitted that theequipment in question, the control switch of a Baldor 1.5 hp industrialmotor and auxiliary tool extension cords and recepticals, was in thetunnel and was not approved for a Class 1, Division 2 location (Tr. 357,364; Ex. C-K6, C-K10).Mr. Wild stated that unapproved equipment may arc or spark, igniting anyflammable gas in the atmosphere. A fire in the tunnel could result indeath (Tr. 364).Respondent, however, argues that the tunnel was improperly classified asa hazardous Class 1, Division 2 location.Ronald J. Searle, a professional engineer and Safety Engineer andConsultant with the Bureau of Reclamation (Tr. 49), testified as anexpert for the Secretary. While with the Bureau, Mr. Searle worked onthe development of safety and health standards for that agency (Tr.44). Mr. Searle worked with the Bureau’s geotechnical staff developingspecifications for the driving of tunnels based on geological formations(Tr. 45). Among his other qualifications, Mr. Searle counted 13 yearsexperience classifying mines with Kennecott Copper (Tr. 43, 46, 49). Mr. Searle admitted he was not a geologist nor an electrical orpetroleum engineer (Tr. 41, 55). Mr. Searle also admitted that the U.S.Bureau of Reclamation’s standards for classifying tunnels are not basedon OSHA standards and are more stringent than OSHA standards (Tr. 184-186).Mr. Searle testified that, in classifying a tunnel, he would look atgeotechnical reports, gas test results taken from bore holes in the areaand any information available from earlier underground work conductednearby (Tr. 39-41). In this case he reviewed the _Geotechnical Report,Metro Rail Project Design Unit A170_ (referring to the A171 segment)prepared by Converse Consultants, Inc., their report on Design Unit A140(referring to the A146 segment) and _Geologic Aspects Of Tunneling InThe Los Angeles_ _Area_, prepared by the Department of the Interior,U.S. Geological Survey (Tr. 52; Ex. C-A, C-B, C-C). Mr. Searle alsorelied on portions of the Southern California Rapid Transit District(RTD) Contract for the Metro Rail Project and newspaper and personalreports of gaseous conditions in tunnels and elsewhere in the LosAngeles area, including reports from respondent’s employees (Tr. 49, 52,102-103, 109, 125; Ex. C-D, C-E).The geotechnical report of Converse, a Geo\/Resource Consultant, notedthat the Los Angeles City Oil Field is located from 500 feet, at itsclosest approach, to 2,000 feet north of the A171 tunnel (Ex. C-A, p.7). Although gas analyses conducted on bore holes dug in the tunnelarea were inconclusive (Ex. C-A, p. 12), the report stated that\”[g]asoline, sulfur and petroleum odors were noted\” in amounts ofroughly 2 to 15% by volume in four of the borings, and that\”[o]rganic-sulfurous odors\” were noted in one additional bore hole atshallow depths. \”[L]arge gas bubbles and tar were observed on thesurface within the drilling fluid when the bottom of the hole was atdepths greater than 150 feet.\” (Tr. 72; Ex. C-A, p.7). Converseadvised that \”[t]he likelihood of gas issuing from the bedrock formationis a distinct likelihood throughout Design Unit A170\” (Tr. 72; Ex. C-A,p.9; _see also_, Ex. C-A, p. 12; Appendix A, December 2, 1983memorandum). The report further stated that \”[m]ethane and othernatural hydrocarbon gases are expected to occur along the proposed MetroRail tunnel alignment, especially where the alignment crosses oilfields\” (Tr. 74; Ex. C-A, Appendix C, p. C-1; _see also_ p. C-5).Converse reached similar conclusions in its geotechnical report for thenearby A146 tunnel segment. In one instance, gas which had beenentrained in ground water was released and ignited by a \”spark ofunknown origin\” (Tr. 90-91; Ex. C-C, p. 8-9, 12, 15, 63).The U.S. Geological Survey located the Los Angeles City oil fieldapproximately 6 to 8 blocks from the A171 tunnel (Tr. 98; Ex. C-B, sheet5). The survey noted that \”local accumulations of petroleum (petroleumgas, free oil, asphalt or tar) and a few of hydrogen sulfide were foundin shallow borings. . . at several places. . . in the downtown area (Ex.C-B, p. 7). A specific instance where \”gas and seeping oil\” had beenencountered in 1975 was cited (Tr. 96; Ex. C-B, p. 66).According to the RTD contract governing the construction of the A171tunnel, the tunnel project had been classified by Cal-OSHA as a \”gassy\”location (Tr. 125, Ex. C-E, ? 01545). California Title 8, IndustrialRelations, Article 8. _Tunnel Classifications_ ? 8422 defines \”gassy,\”:\”which classification shall be applied to tunnels where it is likely gaswill be encountered or if a concentration of 0.25 percent by volume (5%of LEL) or more of flammable gas has been detected not less than 12inches from the roof face, floor and walls in any open workings withnormal ventilation.\”(Tr. 130; Ex. J-B2).In the course of his investigation, Mr. Searle visited respondent’stunnel where employees told him that hydrogen sulfide had been detectedat low concentrations (Tr. 49, 52). This was the only evidence Mr.Searle was aware of that gas had been encountered in the tunnel itself(Tr. 202).As respondent excavated the tunnel, a 3 to 4 inch probe hole was drilled50 feet straight ahead of the mining machine. Tom Grogan, respondent’sSafety Representative, personally monitored the probe holes (Tr. 703,707-709). At 10 foot intervals the explosive gas sensor was insertedthree feet into the hole (Tr. 720). There was also an eight headautomatic monitoring system on the mining machine itself which hungdirectly outside the bore hole, taking readings as air from the hole wasflushed using air or water introduced through the steel head (Tr. 703,720-722). In addition there was a gas detector head in the fan line(Tr. 703). Each shift included a gas tester who watched the automaticmonitoring system and tested the area for hydrogen sulfide on an hourlybasis with a Draeger hand pump (Tr. 703, 714-716, 718-719).Mr. Grogan testified that they have never encountered any explosivegases in the tunnel (Tr. 704). Small amounts of hydrogen sulfide werefound in the rock itself at the end of one of the tunnels[[1]] (Tr. 705).Mr. Wild testified that over the course of his inspection, he tested thetunnel atmosphere for gases over 100 times without ever detecting anygas (Tr. 512-513).The ventilation system in respondent’s tunnel was designed to provide50,000 cfm of air (Tr. 839). Mr. Searle testified that the methods(velometers) being used by respondent to monitor its ventilation systemwere inadequate and that, based on his own calculations, less than thedesign amount was being circulated at the tunnel heading (Tr. 117,204). According to Mr. Searle’s calculations, the circulation from themain duct system was inadequate, merely recirculating air from thetunnel at the heading. Additionally, Mr. Searle felt the system shouldhave been capable of producing 100,000 cfm at the heading should gas beencountered (Tr. 204-205).Mr. Searle also felt that a secondary system drawing air into orexhausting air from the cross-cuts was necessary as existing fans didnot adequately circulate air through the cross passages (Tr. 136, 137,204; See also Mr. Wild’s testimony at 635).Mr. Searle opined that, given the proximity of the Los Angeles City oilfield and the detection of tar, a petroleum product, in the area it isreasonable to assume that flammable petroleum gases or vapors may alsobe present in the A171 area (Tr. 74-75, 101). Methane, a flammable gas,and hydrogen sulfide, both flammable and toxic, may also be generatedwhere there are oil fields as well as where bacteria works upon organicmaterial entrapped in geologic formations (Tr. 78-79). Mr. Searlestated that in the area of the Los Angeles tunnel, seismic conditionscreate fissures through which gas from nearby areas may move. Gas mayalso migrate through permeable formations or through water channels (Tr.93).Based on his understanding of the geologic formation in the area of theA171 tunnel, the \”gassy\” classification of Cal-OSHA and his knowledge ofinstances where gas had been encountered within 6 miles of the tunnelsite (Tr. 102, Ex. C-D), Mr. Searle felt that there was a \”greatpotential for a gassy environment\” which would not be immediatelydissipated by respondent’s ventilation system, and that only electricalsystems and equipment meeting the requirements of the NationalElectrical Code, Article 500, Class I, Division I, Group D or Class I,Division II, Group D, should be used below ground (Tr. 173, 193, 205;Ex. C-G). Mr. Searle felt the tunnel was properly classified as a Class1, Division 2 location by OSHA (Tr. 193, _see also_ p. 53, 69).The Southern California Rapid Transit District apparently agreed withMr. Searle. The product specifications in the Wilshire\/Alvarado LineContract A171, under which Shank-Ohbayashi was engaged, state that allelectrical installation and electrical equipment for tunneling andcovered construction operations shall conform with the Class I, Division2 designations in the Electrical Safety Orders in Title 8 of theCalifornia Administrative Code (Tr. 132-133; Ex. C-E, ?01545-2.1C). The California classification system found in Title 8 Article 59 ?2540.1is identical to that found in ?1926.449 (Ex. J-B3).[[2]]Mr. William C. Bible, a professional consultant and licensed electrical,industrial and fire protection engineer testifying for respondent,disagreed with Mr. Searle’s conclusions (Tr. 769-772). Based solely onthe construction history of respondent’s tunnels and the results of gastests, Mr. Bible concluded that there was no \”identifiable and positive\”probability of gas being present in the tunnel (Tr. 787-789).Mr. Iraj Ershaghi testified for respondent. Mr. Ershaghi is aprofessor and acting Chairman of the Department of Petroleum Engineeringat the University of Southern California, specializing in reservoirengineering, the study of the underground migration of crude oil orgas. Mr. Ershaghi also acts as a consultant (Tr. 880-883).Mr. Ershaghi reviewed the material relied upon by Mr. Searle as well asthe records of the California Division of Oil and Gas, and Division ofMines and Geology (Tr. 884-885). Mr. Ershaghi then prepared astatistical study of wells or holes bored in the last 30 to 40 years inthe vicinity, i.e. within 100 feet, of the tunnel site.Mr. Ershaghi noted that the oil extracted from the area was extremelyheavy, containing no light hydrocarbons (Tr. 912). Oil being pumpedfrom the area was driven, not by gas pressure, but by gravity or theweight of the oil itself (Tr. 914).Mr. Ershaghi found that the Los Angeles City oil field is a homocline, ageological formation running from south to north and rising up out ofthe earth at a 30 to 40 ? angle. The northern most portion of thestructure is on the surface itself (Tr. 909-910; Ex. J-F6).Based on the evidence, Mr. Ershaghi concluded that the formation had no\”gas cap\”, such as rock or an impermeable clay layer holding the gassesbeneath the surface, and that as a result, over the life of the field,about 15 million years, most of the light hydrocarbon in the field hadescaped into the atmosphere (Tr. 910-912). He further stated that whatsmall amounts of gas remained trapped were not likely to be communicatedfurther because of insufficient gas pressure and the presence ofinsufficient perch, or ground water (Tr. 917, 922-923).Mr. Ershaghi determined that based on the gas encountered, there was a6% to 30% chance of encountering gas during tunnel excavation (Tr.888-889, 904). He felt that any gas would likely be of \”local effect\”. Because of limited information available, Mr. Ershaghi was unable toaccurately estimate amounts which might be trapped in the \”pores\” of therock, but felt that there might be several hundred cubic feet maximum(Tr. 882, 917-918, 920-922, 927)._Discussion_Section 1926.407(b) states that:_Electrical installations_. Equipment, wiring methods, andinstallations of equipment in hazardous (classified) locations shall beapproved as intrinsically safe or approved for the hazardous(classified) location or safe for the hazardous (classified) location. . .Definitions of hazardous locations are provided under ?1926.449. TheSecretary maintains that respondent’s tunnel falls under subsection(b)(2) of Class I locations, which defines Division 2 locations as those(among others):In which ignitable concentrations of gases or vapors are normallyprevented by positive mechanical ventilation, and which might becomehazardous through failure or abnormal operations of the ventilatingequipment;. . .[[3]]When the regulation is read as a whole, it appears that subsection(b)(2) provides a means for an employer with a Class 1, Division 1location, \”[i]n which ignitable concentrations of flammable gases orvapors may exist under normal operating conditions,\” to downgrade thelocation’s classification through the provision of positive mechanicalventilation.Since a location may be classified as Class 1, Division 1 based on themere probability of ignitable concentrations of gas, it would beinconsistent to require the actual presence of those same concentrationsto support a Class 1, Division 2 classification.This does not, however, end the analysis. In _Continental OilCompany_, 11 BNA OSHC 2114 (No. 79-570-E, 1984), the Commission examined?1926.449’s definition of Class 1, Division 2 locations and noted that:The definition does not establish any unbending rules. A great deal ofdiscretion is left. . . The standard specifically instructs that certainfactors should be considered:The quantity of flammable material that might escape in case of anaccident, the adequacy of ventilating equipment, the total areainvolved, and the record of the industry or business with respect toexplosions or fires are all factors that merit consideration indetermining the classification and extent of each location._Id_. at 2117. _See_ note 2 _supra_. Because of the latitude allowedin the standard, the Commission held that in order to prove a violation,the Secretary must demonstrate that, after taking into consideration theabove mentioned factors, the use of unapproved equipment presents a fireor explosion hazard and is contrary to sound engineering judgement. _Id_.The evidence is clear that although no hydrocarbon gases and only smallconcentrations of hydrogen sulfide had so far been encountered in theA171 tunnel segment, there exists a substantial likelihood ofencountering such flammable gases there. Based on its testing, theaccuracy of which was not disputed by respondent, Converse Consultantsrepeatedly stressed the possibility of encountering gas and evenrespondent’s own expert, Mr. Ershaghi stated that the probability was ashigh as 30%. Though Mr. Ershaghi did not believe it probable that largeamounts of gas would be encountered, he could not conclude that theamounts encountered would not constitute ignitable concentrations. Inat least one instance, ignitable concentrations trapped in perch waterwere encountered in a borehole.Respondent contends that its ventilation would dissipate suchconcentrations, estimated at several hundred cubic feet, as might beencountered. However the standard contemplates a failure in ventilationsystems. There was no evidence that respondent had any back-up system. Moreover there was testimony that the ventilation system merelyrecirculated air at the tunnel heading and did not reach thecross-passages at all.Mr. Searle’s testimony is clear, that in his expert opinion, given theconditions encountered in the A171 tunnel, sound engineering practicesrequire the use of electrical equipment certified safe for Class I,Division 2 locations. His opinion is supported by the conclusions ofRTD as evidenced by the A171 contract. Mr. Ershaghi has no experiencein the construction field and offered no opinion as to the necessity ofusing non-sparking equipment. The only expert stating a contraryopinion was Mr. Bible, who viewed only gas testing results from thetunnel itself and did not see any of the geotechnical reports for theLos Angeles Area.The Secretary has established that a fire and\/or explosion hazardexisted in the A171 tunnel and that sound engineering judgment requiredthe use of equipment certified for a Class 1, Division 2 location. Respondent’s use of non-certified equipment therefore, constitutes aviolation of ?1926.407(b).The Secretary has proposed a penalty of $1,000.00.In this instance the gravity of the violation is medium to high. Theviolation was ongoing and a fire in the tunnel could endanger everyemployee inside, however, given the history of the tunnel excavation theprobability of such a fire has been proven low. Taking the relevantfactors into account, the proposed penalty is found to be excessive. $700.00 will be assessed._Citation 1, Item 5a through 5e__Facts_Inside the tunnel, a circuit-breaker box for a sump pump (Ex. C-K7,C-K8), panel boxes for the left and right air supply fans (Ex. C-K12), apilot power unit (Ex. C-K13), a control panel to the shield (Ex. C-K14),and a lighting and laser unit (Tr. C-K15), all had bolts missing andbacked part way out (Tr. 370-375). In addition, the lighting and laserunit had an open unused opening (Tr. 377-378).Mr. Wild testified that gas could enter any of these unsecured controlpanels and that the arcing and sparking within the components could thenignite the gas and spread fire to a gaseous atmosphere outside (Tr.379-380).Mr. Wild felt that the missing and loose bolts should have been obviousif proper maintenance procedures were being followed (Tr. 381)._Discussion_Section 1926.431 states that:The employer shall ensure that all wiring components and utilizationequipment in hazardous locations are maintained in a dust-tight, dustignition-proof, or explosion-proof condition as appropriate. There shallbe no loose or missing screws, gaskets, threaded connections, seals orother impairments to a tight condition.Respondent defends solely on the basis that its tunnel was not properlyclassified as a Class 1, Division 2 location.Based on the discussion in the previous section finding the A171 tunnela hazardous location in which sound engineering judgement requires theuse of non-sparking electrical equipment, the violation is affirmed.The Secretary has proposed a combined penalty of $1,000.00. For thereasons discussed under the preceding item, the proposed penalty isconsidered excessive. $700.00 will be assessed._Citation 1, Item 6__Facts_Approximately 2,000 feet inside the tunnel, Mr. Wild observed two openholes in a section of decking which supported a train switch, or siding(Tr. 383-384; Ex. K-16). The holes were between 8 and 24 inches deepand provided access under the decking so that employees could level itwhen required (Tr. 385, 517, 818). Mr. Stokes stated that 3\/4 inchplywood covers were provided for covering the holes when they were notin use (Tr. 818). Mr. Wild stated that no employees were working in theholes when he noted them, but that the holes remained uncovered thefollowing day and throughout the inspection (Tr. 385-386). The tunnelconstituted the only way in and out, and Mr. Wild observed severalemployees walking directly alongside the holes (Tr. 385).Mr. Wild stated that an employee could step into one of the holesresulting in sprains or a possible broken leg (Tr. 386)._Discussion_Section 1926.800(a)(2) requires that a \”[s]afe means of access shall beprovided and maintained to all working places.\”In its brief, respondent admits that citation 1, item 6 should beaffirmed as a \”Serious\” violation of the cited standard, and contestsonly the $400.00 penalty proposed by the Secretary.Taking the relevant factors into account, the proposed penalty isconsidered appropriate and will be assessed._Citation 1, Item 7a and 7b__Facts_In the tunnel shaft, Mr. Wild observed a diesel pipeline running fromthe surface to the bottom, where it was used for filling respondent’sdiesel locomotives (Tr. 387). The pipe-line ran alongside the woodenstairway which descended into the shaft, about 5 feet from the shaftwall (Tr. 387-388). A hose with a dispensing nozzle was attached tothe pipeline and draped across some other pipes (Tr. 388-389; Ex. C-K17,C-K19). A film of diesel fuel floated in a puddle of water at thebottom of the shaft (Tr. 398).The diesel pipeline was equipped with a timer and anti-syphon pump,which allowed only 50 to 60 gallons at a time to be pumped and preventedthe fuel from passing through the line except when the pump was inoperation (Tr. 395, 828; Ex. C-K18). An emergency shut-off was locatedat the tank and the top of the shaft (Tr. 828).Approximately 10 gallons of fuel might be present in the pipe in theshaft at any time. Mr. Stokes estimated that respondent used 200 to 300gallons of fuel per day in the shaft (Tr. 829).Mr. Wild testified that equipment being lowered by crane into the shaftcould strike the pipeline and cause it to rupture, leaking fuel (Tr.396). Employees performing welding in the bottom of the shaft, as onthe day of the inspection, could provide an ignition source (Tr. 392). Mr. Wild pointed out that should a fire occur in that location thestaircase, the primary means of exit, could be destroyed (Tr. 393-394). Moreover, the ventilation system would draw smoke from a fire throughoutthe remainder of the tunnel (Tr. 392). Though the ventilation systemwas reversible, the fan controls were located at the top of the shaftand would take several minutes to reverse the system (Tr. 844-845). Mr.Wild stated that a fire in the shaft could result in asphyxiation, andprobable death (Tr. 397).Mr. Frank Memmot, a Senior Safety Engineer and instructor on tunnelsafety for OSHA (Tr. 215-229), testified that the pipeline presented arecognized hazard (Tr. 680). Mr. Memmot stated that diesel fuel isusually brought into shafts in drums or containers (Tr. 684).Mr. Wild felt the hazard could be abated by installing a cut off valveat the top of the shaft and draining the pipeline between uses (Tr. 396).The design of the pumping station was submitted to the City of LosAngeles Fire Department and was inspected and approved by them (Tr.819-825; Ex. R-5)Mr. Stokes stated that the fuel line was protected by its locationbehind the stairway and the shaft supports and could not be struck byloads being hoisted (Tr. 830)._Discussion_In her brief, the Secretary withdraws her contention that respondent’sdiesel pipeline constituted a violation of ? 1926.800(e)(1)(iv), whichprovides that \”[n]ot more than 1 day’s supply of diesel fuel shall bestored underground.\”Based on the same facts, the Secretary alternatively alleges a violationof ? 5(a)(1) of the Act. The Commission has held that:To prove that an employer violated section 5(a)(1), The Act’s generalduty clause, the Secretary must prove that the cited employer failed tofree the workplace of a hazard that was recognized by the cited employeror its industry, that was causing or likely to cause death or seriousphysical harm, and that could have been materially reduced or eliminatedby a feasible and useful means of abatement._Pelron Corporation_, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986).This Judge finds that the Secretary failed to show that respondent’sdiesel line was a hazard recognized in the tunneling industry.The Secretary’s sole evidence on this issue consisted of Mr. Memmot’sunsupported statement that the diesel line was a recognized hazard. Though Mr. Memmot’s teaching credentials are impressive, his actualcontact with the mining industry is tenuous, consisting in recent yearsmainly of attendance at conferences and membership in professionalassociations (Tr. 217-218). His most recent experience is in maritimeconstruction (Tr. 216, 223).It is this Judge’s opinion that the use of a diesel line containing 10gallons of fuel constitutes a lesser hazard than lowering into the shaftbarrels of fuel which could themselves strike some obstacle and releasetheir contents. Yet this alternative was recommended by Mr. Memmot andis apparently sanctioned by ? 1926.800(e)(iv) which permits a one day’ssupply to be stored underground.The pipeline allows respondent to keep a much smaller amount of fuel inthe shaft itself. The pipeline is largely protected by the structuralmembers of the shaft itself and was, moreover, approved as installed bythe Los Angeles Fire Department.The Secretary has failed to show a violation of ? 5(a)(1) and citation1, item 7a and 7b is dismissed._Citation 1, Item 8__Facts_Several cross-passages were being excavated to join the tunnel which wasthe subject of this inspection to a second tunnel running parallel andabout 20 feet away (Tr. 400-401). Normally, the cross-passage isexcavated a half at a time, top and then bottom (Tr. 402-403). As thepassage is excavated, rock bolts, 4 foot bolts with a plate attached,are inserted to support the soil (Tr. 407, 410; Ex. C-K22). Once theexcavation is completed, wire mesh is installed and \”shotcrete\” ispneumatically applied to the roof and walls. The shotcrete hardens andsupports the tunnel (Tr. 408, 832; Ex. C-K20, C-K21).Mr. Wild observed employees excavating cross-passage No. 13. At thattime they were working approximately 13 feet off the main tunnel 2,000feet from the portal (Tr. 401- 402, 831). The cross-passage had neitherrock bolts nor shotcrete for support (Tr. 408).The cross-tunnels were being excavated from a hard clay called \”puente\”,a dense siltstone that was spaded out (Tr. 408, 411, 833-834). Mr.Stokes stated that although he had encountered loose ground in crosspassage 15, 1500 feet away, none was noted in cross passage 13 (Tr. 836).Mr. Wild felt that the employees were exposed to a cave in hazard (Tr. 409)._Discussion_Section 1926.800(h)(2)(ii) provides:Loose ground shall be taken down or supported. Ground conditions alonghaulage ways and travelways shall be examined periodically and scaled orsupported as necessary.The evidence establishes that the soil in the cited cross-passage was ahard clay, or \”puente.\” No soil samples were introduced and there wasno other evidence that puente is a loose soil. The Compliance Officerdid not testify that he saw any loose ground in the cross-passage orelsewhere.There being no evidence that the cited standard is applicable tocross-passage 13, citation 1, item 8 will be dismissed._Willful Violations__Citation 2, Item 1a and 1b_Respondent has stipulated that two circuit breakers within the tunnelwere not of a type approved for Class 1, Division 2 location (Tr.413-414; Ex. C-K23, C- K25). The hazards are the same as discussed forCitation 1, item 5, involving the identical standard.Respondent defends solely on the basis that the tunnel in which thecited equipment was located was not a Class 1, Division 2 location. Respondent also contests the \”Willful\” classification of this violation._Discussion_The text of the cited standard ? 1926.407(b) is stated above. Based onthe determination that respondent’s tunnel was properly classified as ahazardous location requiring the use of electrical equipment approvedfor a Class 1, Division 2 environment, the placement of unapprovedcircuit breakers in the tunnel constituted a violation of that standard.The Commission has held that in order to establish that a violation waswillful:. . . there must be evidence of such reckless disregard for employeesafety or the requirements of the law generally that one can infer thatif the employer had known of the standard or provision, the employerwould not have cared that the conduct or conditions violated it._Williams Enterprises, Inc_., 13 BNA OSHC 1249, 1256-57 (No. 85-355,1987). _See also Brock v. Morello Brothers Construction_, _Inc._, 809F.2d 161, 163-65 (1st Cir. 1987). A violation is not willful if theemployer had a reasonable, good faith belief that the violativeconditions conformed to the requirements of the Act. _Keco IndustriesInc._, 13 BNA OSHC 1161, 1169 (No. 81-263, 1987); _RSR Corp_., 11 BNAOSHC 1163, 1172 (No. 79-3813, 1983) _aff’d_, 764 F.2d 355 [12 OSHC 1413](5th Cir. 1984).As is evidenced by the testimony in this case, ? 1926.449 is by no meansa model of clarity. Federal enforcement of OSHA standards is new toCalifornia and the Secretary presented no evidence that itsinterpretation of the cited standard had been previously communicated toShank-Ohbayashi. Cases involving ? 1926.449’s classification system arefew, and as discussed above, they enumerate in a number of variablesrequiring the exercise of considerable judgment on the part of theemployer. The geologic factors involved in this particular case arecomplex.Though erroneous, this Judge cannot say that respondent’s interpretationof ? 1926.449 was unreasonable under the circumstances. Citation 2,items 1a and 1b will be affirmed as \”Serious\” violations of the Act.The Secretary has proposed a penalty of $10,000.00. For the reasons setforth in the discussion pertaining to citation 1, items 4 and 5, theproposed penalty is found to be excessive. $700.00 will be assessed._Citation 2, Items 2a, 2b and 2c__Facts_At the time he arrived to conduct his inspection, Mr. Wild observed twodiesel skid loaders working in the tunnel which had no approval platesfrom the Bureau of Mines, U.S. Department of the Interior (Tr. 417, 419;Ex. C-K26, C-K27).Mr. Shank stated that two types of Gehl loaders, Models 4615 and 3615were selected by him to perform excavation work in the tunnel (Tr. 957;Ex. R-8). Mr. Shank stated that the loaders had been specificallydetermined to be in compliance with OSHA regulations and introduced aDiesel Equipment Listing for Diesel Engines Certified Under Part 32, 30CFR in support. The listing indicated that the 4.108 Perkins dieselengine used in the 4615 Gehl was certified under that part (Tr. 959; Ex.R-9). The Isuzu 3KR1 engine used in the 3615 was not listed (Tr. 965). Mr. Shank stated that he had contacted the manufacturer, however, anddetermined that with the addition of \”exhaust scrubbers\”, theventilation requirements of the engine would be within the capabilitiesof the A171 tunnel’s ventilation system before putting the loaders towork underground (Tr. 967-968).Mr. Shank stated that he was contacted by an RTD representative whopointed out that Shank’s diesel permit from the State of California didnot include the new equipment (Tr. 968-970). Mr. Shank notifiedCal\/OSHA of the new equipment’s specifications in August 1988 (Ex.R-11). In September respondent received notification from R.W.Stranberg, Cal\/OSHA Chief, that the said equipment was not acceptablefor use in \”gassy\” tunnels because it was not permissible under parts 31or 36 of 30 CFR. Mr. Stranberg stated that Federal OSHA hadjurisdiction in this case, however, and would \”have the decisionregarding the use of this equipment\” (Ex. R-12)._Discussion_Section 1926.800(c)(2)(vii) states:Internal combustion engines other than mobil diesel shall not be usedunderground. Mobile diesel-powered equipment used underground shall becertified by the Bureau of Mines, U.S. Department of the Interior oraccording to the Bureau of Mines publication \”Mechanical Equipment forMines-tests for permissibility and suitability, Part 32, Mobile DieselPower Equipment for Non-Coal Mines, Schedule 24\” of March 23, 1965.The Code of Federal Regulations, Title 30, Chapter 1, Subchapter E, Part32 sets forth the procedure for testing mobile diesel powered equipmentfor non-coal mines. Section 32.1 identifies the type of equipment whichmay be approved.. . . Equipment for use in coal mines, or other situations whereflammable atmospheres may be encountered, will be considered permissibleonly when proved by test to offer adequate protection against all thesehazards. (See Part 31, Procedure for testing Diesel Mine Locomotives forPermissibility and Recommendations on the Use of Diesel LocomotivesUnderground of this chapter) Equipment for use in non-coal mines inwhich the underground atmosphere contains less than 0.25 percent byvolume of flammable gas will be granted approval when proved by test tooffer adequate protection against the production of toxic orobjectionable gases and when design and construction are such as tominimize the fire hazard presented by the engine fuel oil under normaloperating conditions.* * *(a) _Approvals_ will be granted for complete Diesel powered equipmentunits only and not for engines and other individual parts used in theassembly of such units.(b) _Inspection and tests of subassemblies_ The engine and exhaust gascooling system may be supplied as a subassembly to the manufacturer ofthe complete unit. Under such conditions this sub-assembly may besubmitted for inspection and test either by the manufacturer. . . If thesubassembly meets all requirements applicable to it, the Bureau willinform the manufacturer of the subassembly by letter that further testor inspection of the engine will not be required. . .The Secretary argues respondent’s tunnel constituted a \”situation whereflammable atmospheres may be encountered\” and that respondent wasthereby directed to Part 31 and bound by its strictures.This Judge disagrees. A \”flammable atmosphere\” for purposes of Part 32of Title 30 is not conterminous with a Class 1, Division 2 location asdefined by ? 1926.449. It is defined by the regulation itself as atunneling operation containing less than 0.25% by volume of flammable gas.There has been no evidence from which this Judge could possibly computethe percentage by volume of gas which might be present in respondent’stunnel. It is concluded, therefore, that respondent’s tunnel is a\”non-coal\” mine and that its equipment must comply only with therequirements of Part 32.Respondent argues that although his equipment was not \”approved\” asdefined by Part 32, there is a difference between approval andcertification, and that under the terms of ? 1926. 800(c)(2)(vii) onlythe latter is required. In support, respondent points to a list forcertified diesel engines put out by the U. S. Department of Labor, MineSafety and Health Administration (Ex. R-9) and an information circularfrom the U. S. Department of the Interior, Bureau of Mines (Ex. R-10). In the latter document the author refers to the Bureau letter providedfor subassemblies pursuant to 30 CFR 32.1(b) as a letter ofcertification. Respondent concludes that by its terms ? 1926.800(c)(2)(vii) requires only this certification of equipment subassemblies,not approval of the entire piece of equipment.Respondent’s interpretation of ? 1926.800(c)(2)(vii) is rejected. Thedrafters of the above cited standard direct the reader to 30 CFR 32,schedule 24 for requirements governing the certification of mobilediesel-powered equipment. Part 32 never uses the term \”certification\”but sets forth testing and approval procedures for such diesel-poweredequipment. It is clear the drafters intended the employer to abide bythose procedures for \”approval\”, a term synonymous with \”certification\”,of the entire piece of equipment. The section dealing with a Bureauletter clearly is for the benefit of manufacturers, so thatsubassemblies (engines and cooling, systems) need not be retested whenincluded in a complete unit. This Judge finds it unreasonable to assumethat the drafters intended reference to this section, thus allowingemployers to use equipment containing any one certified system.Respondent’s loaders were not approved in accordance with this sectionand therefore respondent was in violation of ?1926.800(c)(2)(vii).Citation 2, items 2a, 2b, and 2c are classified as \”Willful\” violationsof the act. As discussed above, a violation will not be found willfulwhere the respondent follows a course of action in the reasonable, goodfaith belief that it is complying with regulations.In this case, however, respondent’s lack of good faith is demonstratedby its failure to follow even its own interpretation of theregulations. Mr. Shank admitted that his research revealed that onlyone of the two types of loaders utilized by respondent had a certifiedengine. Nevertheless, the loader was put into use based on Shank’s owncalculations and his determination that the loader was acceptable. [[4]]Based on the evidence the violation was properly classified as \”willful.\”The Secretary has proposed a penalty of $10,000.00.All respondent’s employees were exposed to the possible production oftoxic gases as well as to fire hazards presented by fuel oil and bycombustible dust or gas which might come in contact with unapprovedequipment. Taking all the relevant factors into consideration,however, it is determined that the proposed penalty is excessive. $7,000.00 will be assessed._Citation 2, Item 3__Facts_On two different occasions, Mr. Wild observed employees riding in andout of the tunnel on the flat top of a locomotive (Tr. 424).Mr. Wild stated that an employee could fall off and sustain injury or berun over. Mr. Wild estimated that the locomotive moved at about 10miles per hour (Tr. 430).Mr. Wild discussed the violation with a supervisor following the firstincident. The locomotive operator was contacted and it was agreed thatin order to abate the hazard, employees should be transported in amancar (a car with back-rests and seats) which was inside the shaft (Tr.425-426).Three or four days later Mr. Wild observed and photographed the samecondition (Tr. 427; Ex. C-K1).Mr. Robert S. Harris is a Safety Inspector on the Metro Rail Project forPDCD, the construction manager. (Tr. 639). In this capacity, Mr.Harris inspected the Shank-Ohbayashi project for compliance withCal-OSHA safety orders (Tr. 647). During his inspections, Mr. Harrisreported that respondent was using the locomotives and segment cars,rather than mancars to transport workers (Tr. 647- 648, 657; Ex. C-H,p.2, 17). Copies of his reports were furnished to Tom Grogan (Tr. 658).Mr. Stokes testified that respondent requested that a deck be built ontop of the locomotive, consisting of 3\” x 6\” pieces of angle ironrunning around the top of the locomotive (Tr. 837-838). A pipeenclosing the deck at 24 inches was added after the inspection (Tr. 853).In its \”Safe Work Practices Code\” respondent allows employees to ride ontop of the locomotive \”if handrails are provided\” (Ex. J-C, p. 8, ? H(16))._Discussion_Section 1926.800(k)(6) states:No employee shall be permitted to ride a power-driven chain, belt, orbucket conveyor, unless the conveyor is specifically designed for thetransportation of employees.It is clear that a 3\” x 6\” piece of angle iron is insufficient to assurethe safety of employees being transported on top of a locomotive. Theiron described by respondent cannot be used as a handhold or arestraint; it cannot even be seen on the photographs. This Judge findsit impossible to credit respondent’s testimony that the iron was addedspecifically for the transport of personnel.Moreover, respondent was aware that its construction manager’s safetypersonnel considered it hazardous for employees to ride atop of thelocomotive. Respondent’s supervisory personnel had been warned morethan once to use a mancar. Yet there was no indication that respondentmade any effort to enforce the mancar’s use.Despite warning from the Compliance Officer and contrary to its ownpolicy set forth in its safety booklet, that riding atop the locomotiveis safe only when hand rails have been provided, none were installeduntil after respondent was cited by OSHA.The facts not only demonstrate that respondent violated ?1926.800(k)(6)but evidence a general attitude of such indifference towards employeesafety as to support a finding that the violation was \”Willful.\”The Secretary has proposed a penalty of $10,000.00. Taking all thefactors into consideration, the proposed penalty is deemed excessive. $4,000.00 will be assessed._Other than serious citation 3, items 1 through 4_In its brief respondent admits that the conditions cited as \”Other thanserious\” in citation 3 constitute violations of the Act. No penaltieswere proposed. Those items will be affirmed without penalty.Docket No. 1711Mr. Salvatore C. Jimenez, an OSHA Compliance Officer, conducted aninspection of respondent’s A146 tunnel site at 520 South Hill Street(Tr. 569)._Citation 1, Item 1a, 1b and 1c__Facts_During the course of the inspection, Mr. Jimenez noted an acetylenecylinder that did not have a cap designed to protect the bottle’s valvefrom damage (Tr. 570). The acetylene bottle was located between twocolumns at the bottom of the north side of the shaft (Tr. 571). Thecylinder was secured with a chain strung between the columns (Tr. 571).Mr. Jimenez felt that the single chain was insufficient to keep thebottle from falling sideways (Tr. 571). There was considerable trafficand material was being hauled in and out of the shaft. Some objectcould have fallen and bounced into the cylinder, knocking it over and\/ordamaging the valve (Tr. 572, 576).Mr. Jimenez testified that should the valve be damaged, flammable gaswould be released. Employees welding in the area, as they were on theday of the inspection, could provide an ignition source, resulting infire or explosion (Tr. 572-573). Mr. Jimenez stated that there wouldhave been a flammable range around the cylinder despite the eventualdilution of the gas from the ventilation system (Tr. 573). Burns orshrapnel injuries could result (Tr. 575).Seven employees were observed working in the shaft and adjacent to it,the closest 10 to 15 feet away (Tr. 573-574).The alleged violation was in plain sight (Tr. 575). Mr. Jimeneztestified that the violation was brought to the attention of theemployee representative, who told him, \”it shouldn’t be like that\” andreplaced the valve cap (Tr. 574).Approximately four feet from the acetylene cylinder, Mr. Jimenezobserved an oxygen cylinder, also against the wall between the twocolumns and secured by the single chain (Tr. 575). Mr. Jimenez feltthat the chain should have been passed completely around the tanks tosecure them (Tr. 576).In addition, there was no fire barrier between the two cylinders (Tr.578). Oxygen is an oxidizer; added to a fuel such as acetylene it wouldcause the acetylene to burn hotter and faster (Tr. 578).Mr. Clifton Sammons, a Safety Engineer with respondent, testified thatthe normal procedure for storing oxygen and acetylene cylinders at thejob site is to place them in a metal rack on the surface, divided by asteel plate that serves as a fire wall between oxygen and acetylenebottles. Full bottles are removed from the rack when needed for use,empty ones are recapped and returned to the rack (Tr. 727)._Discussion_Section 1926.350(a), cited in item 1a, requires that when \”transporting,moving, and storing compressed gas cylinders. (1) Valve protection capsshall be in place and secured.\”The text of ? 1926.350(a)(9), cited in item 1b, requires that gascylinders be secured at all times and is quoted above in the discussionof Docket No. 88-2674, citation 1, item 3.Section 1926.350(j), cited in item 1c, states that\”For additional details not covered in this subpart, applicable technicalportions of American National Standards Institute, Z49.1-1967, Safety inWelding and Cutting shall apply.The ANSI standard requires oxygen cylinders in storage be separated by aminimum of 20 feet or by a fire wall.Respondent does not dispute the presence of uncapped, unsecured oxygenand acetylene cylinders four feet apart in the tunnel shaft, but defendson the ground that the standard is inapplicable because the citedcylinders were not \”in storage,\” but were available for use.There is no evidence contradicting respondent’s testimony that it storesits cylinders on the surface, only bringing them into the tunnel whennecessary for use. Section 1926.350(a), referring to cylinders instorage or transport and ? 1926.350(j), governing cylinders in storageare, therefore, inapplicable here. _Sterns-Roger Incorporated_,_supra_. Items 1a and 1c are dismissed.As is discussed above under citation 1, item 3, however, the Commissiondistinguishes ? 1926.350(a)(9), which applies by its terms to cylinders\”at all times.\” Respondent is shown to have been in violation of ?1926.350(a)(9) and item 1b is affirmed as a \”Serious\” violation.The Secretary has proposed a combined penalty of $300.00.Taking the relevant factors into consideration, the penalty is deemedappropriate and will be assessed._Citation 1, 3b__Facts_At the time of the inspection, Mr. Jimenez approached an employee heobserved welding on the south side of the bottom of the shaft (Tr.579). The employee indicated to Mr. Jimenez that he had not obtained agas free certificate, nor ascertained whether gas testing had been donein the area. He told Mr. Jimenez he had never been instructed not tobegin any welding or burning in the tunnel until he had determined theatmosphere was gas free (Tr. 580).Mr. Jimenez determined that there was a policy on site not to allowwelding or cutting until it was determined that the atmosphere was gasfree (Tr. 581). New employees at Shank-Ohbayashi receive a copy of SafeWork Practices Code for Los Angeles Rapid Transit Tunnels (Tr. 732, Ex.J-C). The code states, \”[b]efore lighting cutting torches or startingto weld, be sure than (sic) the area is well ventilated and that the airhas been tested by the gas technician\” (Ex. J- C, p. 6). Mr. Sammons,the gas tested, had tested the area in question though he had not issueda certificate (Tr. 580, 730). Mr. Jimenez believed the pre-testingpolicy was being enforced except in this instance (Tr. 582).Respondent introduced the signed statement of the employee involvedstating that he had read through the code and completed an 8 hour tunnelsafety course on August 20 and September 19, 1987 respectively (Ex. R-7)._Discussion_Section 1926.21(b)(2) provides that:The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.Section 1926.21(b)(2) requires only that the employer instruct itsemployees in safety hazards and regulations intended to eliminate suchhazards. Compliance with the standard does not include the additionalduty of enforcing such regulations. _Dravo Engineers_ _andConstructors_, 11 BNA OSHC 2010 (No. 81-748, 1984). The evidenceclearly establishes that respondent has a safety rule prohibitingcutting and welding in the tunnel before gas testing is completed andthat rule was communicated to the employee involved.Citation 1, Item 3 is dismissed._Citation 1, Item 4_Mr. Jimenez found two bolts missing from the \”rotary limit switch\” of aMitsubishi boring machine which was classified for Class 1, Division 2locations (Tr. 583). The condition was in plain view (Tr. 584).The hazard associated with arcing or sparking elements in gaseouslocations has been adequately described above.The text of ? 1926.431, requiring wiring components in hazardouslocations be maintained in dust tight condition, is quoted above underthe discussion of Docket No. 88-2674, citation 1, item 5.Respondent does not dispute that bolts were missing from the boringmachine switch. It has been established that respondent’s tunnels werehazardous Class 1, Division 2 locations. The Secretary has establishedthat respondent violated ? 1926.431.A penalty in the amount of $300.00 has been proposed.The same factors are relevant here as were discussed under Citation 1,Items 4 and 5, Docket No. 88-2674. Here only one switch was involved. Taking all the factors into account the penalty is consideredappropriate and will be assessed._Citation 2, Item 1_During the course of his inspection, Mr. Jimenez observed an employeepicking up a water barrel and drinking from the spigot (Tr. 584). Mr.Jimenez stated that drinking from the spigot could lead to thetransmission of communicable diseases and that the hazard could beeliminated by the provision of drinking cups (Tr. 585).Mr. Sammons testified that the workers hold the spigot over their mouthsto drink and do not actually come in contact with the spigot. Drinkingcups are occasionally provided (Tr. 734). Upon communication of thehazard to the employee representative, cups were provided within thehour (Tr. 585)._Discussion_Section 1926. 51(a)(4) provides \”[t]he common drinking cup is prohibited.\”The Secretary failed to prove that drinking from a spigot results in thesame hazards as a common cup and citation 2, item 1 will be dismissed._Citation 2, Item 3__Facts_Mr. Jimenez observed an employee adjusting the laser on the Mitsubishiboring machine. The employee said he had been operating the machine for13 years, but could not provide an operator’s certificate or proof ofqualification (Tr. 586). Mr. Jimenez stated that lasers are potentiallyhazardous (Tr. 586).Mr. Sammons stated that the employee involved was not operating themachine, but merely adjusting the survey instrument to which the laserwas attached. He admitted the only operation the laser required was toadjust the pedestal, a directional device, to get the proper line andgrade (Tr. 735-739)_Discussion_Section 1926.54 (b) requires that \”[p]roof of qualification of the laserequipment operator shall be available and in possession of the operatorat all times.\”This Judge finds that for purposes of the standard, adjustment of thelaser’s directional equipment equals \”operation\” of the laser. Theemployee adjusting the survey instrument was operating the machine andshould have carried proof of qualification.Citation 2, Item 3 is, therefore, affirmed as an Other than seriousviolation without penalty._Citation 2, Item 4__Facts_When Mr. Jimenez arrived on the site, he observed a 10 liter plasticcontainer on the entrance platform of the office trailer (Tr. 587). Theplastic can did not have a pressure release or flash arrester. Mr.Jimenez felt that the plastic could also leak, presenting a fire hazard(Tr. 587). When Mr. Jimenez exited the trailer 45 minutes later, thegas container was still there (Tr. 588).Mr. Sammons testified that a rental agency, from which respondent hadrented equipment requiring gasoline, had left the plastic container infront of the office door. Mr. Sammons removed the container as soon ashe learned of it (Tr. 735)._Discussion_Section 1926.152(a)(1) states:Only approved containers and portable tanks shall be used for storageand handling of flammable and combustible liquids. Approved metal safetycans shall be used for the handling and use of flammable liquids inquantities greater than one gallon . . . For quantities of one gallon orless, only the original container or approved metal safety cans shall beused for storage, use, and handling of flammable liquids.The evidence establishes that the plastic container of gas was placedoutside respondent’s trailer by a rental agency. The container remainedthere for only 45 minutes while the Compliance Officer was inside. There was no testimony that during that time anyone went by or in or outof the trailer.The Secretary has not shown that the employer knew, or with the exerciseof reasonable diligence, could have known of the hazardous condition. _Dun Par Engineered Form Co_., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986).Citation 2, item 4 is, therefore, dismissed._Citation 2, Item 5__Facts_As excavation proceeded in respondent’s tunnel, muck cars were pulledout of the tunnel by a \”tuggerrope\”, a wire rope attached to a winch. After they were emptied, the cars were gravity fed back down to the faceof the tunnel (Tr. 588-589). The tracks ran 60 or 70 feet to the faceat an angle of approximately 5 to 7 (Tr. 589).Mr. Jimenez testified that in the case of operator error or a break inthe tuggerline, the muck cars could come loose and crash into the backof the boring machine (Tr. 590). Employees working on the top of theboring machine could be jarred and fall to the tunnel floor (Tr.590-591). Rail stops at the end of the line would prevent such anoccurrence (Tr. 589)._Discussion_Section 1926.800(k) (14) states that \”[w]here necessary, bumper blocks,or the equivalent, shall be provided at all track dead ends.\”The Secretary has established the need for providing a backup method ofstopping muck cars at the tunnel heading. The tuggerline, being theelement subject to failure, is not the equivalent of bumper blocks.Citation 2, item 5 is affirmed without penalty._Findings of Fact and Conclusions of Law_All findings of fact and conclusions of law relevant and necessary to adetermination of the contested issues have been found specially andappear in the decision above. _See_ Rule 52(a) of the Federal Rules ofCivil Procedure. Proposed Findings of Fact or Conclusions of Law thatare inconsistent with this decision are denied._Order__Docket No. 88-2674_1. Serious citation 1, items 1a and 1b alleging violation of ?1926.300(b)(2) are DISMISSED.2. Serious citation 1, item 2 alleging violation of ? 1926.302(b)(1) isAFFIRMED and a penalty of $300.00 is ASSESSED.3. Serious citation 1, item 3 alleging violation of ? 1926.350(a)(9) isAFFIRMED and a penalty of $400.00 is ASSESSED.4. Serious citation 1, items 4a and 4b alleging violation of ?1926.407(b) are AFFIRMED and a penalty of $700.00 is ASSESSED.5. Serious citation 1, items 5a through 5e alleging violation of ?1926.431 are AFFIRMED and a penalty of $700.00 is ASSESSED.6. Serious citation 1, item 6 alleging violation of ? 1926.800(a)(2) isAFFIRMED and a penalty of $400.00 is ASSESSED.7. Serious citation 1, items 7a and 7b alleging violation of ?1926.800(e)(1)(iv) and ? 5(a)(1) are DISMISSED.8. Serious citation 1, item 8 alleging violation of ? 1926.800(h)(2)(ii)is DISMISSED.9. Willful citation 2, items 1a and 1b alleging violation of ?1926.407(b) are AFFIRMED as \”serious\” violations and a penalty of$700.00 is ASSESSED.10. Willful citation 2, item 2 alleging violation of ?1926.800(c)(2)(vii) is AFFIRMED and a penalty of $7,000.00 is ASSESSED.11. Willful citation 2, item 3 alleging violation of ? 1926.800(k)(6) isAFFIRMED and a penalty of $4,000.00 is ASSESSED.12. Other than serious citation 3, items 1 through 4 are AFFIRMEDwithout penalty._Docket No 88-1711_13. Serious citation 1, item la and 1c alleging violation of ?1926.350(a)(1) and (j) are DISMISSED.14. Serious citation 1, item 1b alleging violation of ? 1926.350(a)(9)is AFFIRMED and a penalty of $300.00 is ASSESSED.15. Serious citation 1, item 3b alleging violation of ? 1926.21(b)(2) isDISMISSED.16. Serious citation 1, item 4 alleging violation of ? 1926.431 isAFFIRMED and a penalty of $300.00 is ASSESSED.17. Other than serious citation 2, item 1 alleging violation of ?1926.51(a)(4) is DISMISSED.18. Other than serious citation 2, item 3 alleging violation of ?1926.54(b) is AFFIRMED without penalty.19. Other than serious citation 2, item 4 alleging violation of ?1926.152(a)(1) is DISMISSED.20. Other than serious citation 2, item 5 alleging violation of ?1926.800(k)(14) is AFFIRMED without penalty.Benjamin R. LoyeJudge, OSHRCDated: October 18, 1989SECRETARY OF LABOR,Complainant,v.SHANK-OHBAYASHI, INC.,Respondent.OSHRC Docket No. 88-2674_ORDER_This matter is before the Commission on a Direction for Review enteredby former Chairman Linda L. Arey on November 21, 1989. The partieshave now filled an Amended Stipulation and Settlement Agreement.Having reviewed the record, and based upon, the representativesappearing in the Amended Stipulation and Settlement Agreement, weconclude that this case raises no matters warranting further review bythe Commission. The terms of the Amended Stipulation and SettlementAgreement do not appear to be contrary to the Occupational Safety andHealth Act and are in compliance with the Commission’s Rules ofProcedure. final order of the Commission in this case. See 29 U.S.C.?? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: October 23, 1990ELIZABETH DOLE, SECRETARY OF LABORComplainant,v.SHANK-OHBAYASHIRespondent.NOTICE OF CORRECTION TO STIPULATION AND SETTLEMENT AGREEMENT1. The parties in the above-captioned case entered into a Stipulationand Settlement Agreement which was signed by Respondent on August 28,1990 and then signed by the Secretary on September 4, 1990. Theoriginal and four copies of the document was mailed to the OccupationalSafety and Health Review Commission.2. Paragraph 10 of the Stipulation and Settlement Agreement reads asfollows:10. This Stipulation and Settlement Agreement does not affect thejudge’s disposition of the following citation items: Citation 1, Items1(a) and 1(b); Citation 1, Items 4(a) and 4(b); Citation 1, Items 5(a)through 5(e), Citation 1, Item 6; Citation 2, Items 2(a) and 2(b);Citation 3, Items 1 through 4.3. The next to the last sentence in Paragraph 10 should have read, andis hereby corrected to read:Citation 2, Items 1(a) and 1(b).4. Respondent has been notified of this correction and consents thereto.ANTONY F. GILAttorney for theSecretary of Labor————————————————————————ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.SHANK-OHBAYASHIRespondent.OSHRC Docket No. 88-2674_*Stipulation and Settlement Agreement*_In full settlement and disposition of the issues in this proceeding, itis hereby stipulated and agreed by and between the Complainant,Secretary of Labor, and the Respondent, Shank-Ohbayashi, that:1. This case is before the Commission upon respondent’s contest ofCitation 2, Item 2(a), 2(b) and 2(c) which alleged willful violations of29 CFR 1926.800(c)(2)(vii) along with a proposed penalty of $10,000, andCitation 2, Item 3 which alleged a willful violation of 29 CFR1926.800(k)(6) along with a proposed penalty of $10,000. The citationswere affirmed by the Commission’s administrative law judge, and apenalty of $7,000 was assessed for the violation of 1926.800(c)(2)(vii)and $4,000 for the violation of 29 CFR 1926.800(k)(6). (Decision andOrder, September 27, 1989.) Respondent was also cited in pertinentpart, for violations of 29 U.S.C. 654(a)(1) (Citation 1, Item 7(a) and29 CFR 1926.800(h)(2)(ii) (Citation 1, Item 8). These citations itemswere vacated by the administrative law judge. (Decision and Order,September 27, 1989.)2. The Secretary hereby amends the citation to characterize theviolations of 29 CFR 1926.800(c)(2)(vii) and 29 CFR 1926.800(k)(6) asviolations of Section 17 of the Occupational Safety and Health Act, 29U.S.C. ?666.3. The Secretary hereby amends the proposed penalty to a combined totalof $4,400 for items 2 and 3 of Citation No. 2.4. Respondent hereby withdraws its notice of contest to Citation 2,Items 2(a), 2(b), and 2(c) and to Citation 2, Item 3, and to thenotification of proposed penalty as amended above in paragraph 3.5. The Secretary hereby amends the proposed penalty in Citation 1, Item7(a) for violation of the general duty clause, 29 U.S.C. ?654(a)(1) to $100.6. Respondent hereby withdraws its notice of contest to Citation 1,Item 7(a) and to the notification of proposed penalty as amended inparagraph 5.7. The Secretary hereby amends the proposed penalty in Citation 1, Item8 for violation of 29 CFR 1926.800(h)(2)(ii) to $100.8. Respondent hereby withdraws its notice of contest to Citation 1,Item 8 and to the notification of proposed penalty as amended inparagraph 7.9. Respondent agrees that the above-mentioned violations have been abated.10. This Stipulation and Settlement Agreement does not affect thejudge’s disposition of the following citation items:Citation 1, Items 1(a) and 1(b); Citation 1, Item 2; Citation 1, Item 3;Citation 1, Items 4(a) and 4(b); Citation 1, Items 5(a) through 5(e);Citation 1, Item 6; Citation 2, Items 2(a) and 2(b); Citation 3, Items 1through 4.Nothing set forth in this Stipulation and Settlement Agreement can beconstrued as an admission of willful conduct on the part of respondentfor any violation for which a notice of contest has been withdrawn.11. Respondent agrees to submit to the OSHA Area Office $4,600 in fulland complete payment of the penalty within 30 days of this Agreement.12. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at the workplace on the 29th day of August 1990, inaccordance with Rules 7 and 100 of the Commission’s Rules of Procedure. There are no authorized representatives of affected employees.13. Complainant and respondent will bear their own litigation costs andexpenses.Antony F. GilCounsel for theSecretary of LaborKate RaabeAttorney for Respondent(Shank-Ohbayashi)FOOTNOTES:[[1]] Respondent considered hydrogen sulfide to be a toxic gas ratherthan an explosive gas since the lower explosive limit of H2S, 43,000parts per million, would not be reached until concentrations of the gasfar exceeded the fatal toxic limit of 1,000 parts per million (Tr. 706).[[2]] Mr. Paul Taylor, an Electrical Engineer with Shank-Ohbayashi,testified that the contract allowed the RTD and their constructionmanager, PDCD to approve non-certified equipment where a certifiedversion was not commercially available. There was no evidence that theequipment named here had been so approved.[[3]] Subsection (b) is followed by an explanatory note:NOTE: This classification usually includes locations where volatileflammable liquids or flammable gases or vapors are used, but which wouldbecome hazardous only in case of an accident or of some unusualoperating condition. The quantity of flammable material that mightescape in case of accident, the adequacy of ventilating equipment, thetotal area involved, and the record of the industry or business withrespect to explosions or fires are all factors that merit considerationin determining the classification and extent of each location.[[4]] Respondent’s argument that it felt it was authorized to make itsown safety determination, based on footnotes in the Department of Laborpublication (Ex. R-9) directing the reader to the manufacturer for \”percylinder\” information, is patently unbelievable.”