“Docket No. 88-1711_88-2674 \u00a0SECRETARY OF LABOR, Complainant, v. SHANK-OHBAYASHI, Respondent.OSHRC Docket Nos. 88-1711 & 88-2674ORDERThese consolidated cases were directed forreview by Former Acting Chairman Linda L. Arey on November 21, 1989.\u00a0 Review wassought and directed only on issues involving Docket No. 88-2674.\u00a0 Review was notdirected on any issue involving Docket No. 88-1711.\u00a0 Under Commission Rule ofProcedure 92(a), 29 C.F.R. ? 2200.92(a), however, the direction for review establishedjurisdiction in the Commission to review \”the entire case,\” that is, all issuesin Docket Nos. 88-1711 & 88-2674.\u00a0 Having reviewed the entire record, theCommission now finds that there is neither party interest nor a compelling public interestthat would warrant further review of the issues presented in Docket No. 88-1711.Accordingly, on the Commission’s own motionpursuant to Commission Rule of Procedure 10, 29 C.F.R. ? 2200.10, Docket No. 88-1711 issevered and the judge’s decision as to that docket number is deemed a final order of theCommission.\u00a0 Docket No. 88-2674 remains pending before the Commission on review.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: June 19, 1990SECRETARY 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, CADECISION AND ORDERLoye, Judge:This proceeding arises under the OccupationalSafety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the\”Act\”).Respondent, Shank-Ohbayashi, is involved in atunneling project for the Los Angeles Metro-Rail (Tr. 24).\u00a0 As a result of twoseparate inspections at the tunnel site, respondent was issued a number of citations whichwere timely contested.\u00a0 Those cases were docketed under Commission Docket Nos.88-1711 and 88-2674.\u00a0 Upon motion, the two cases were consolidated for purposes oftrial.\u00a0 A hearing was held in Los Angeles, California on April 11-14, 1989.The parties have submitted briefs and the matteris now ready for decision.Alleged ViolationsAt hearing the Secretary moved to withdraw anumber of citations.\u00a0 The Secretary’s motion was granted.\u00a0 With respect toDocket No. 88-2674, the Secretary withdrew citation 1, item 4c, (Tr.361).\u00a0 Docket No.88-1711:\u00a0 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 1through 6, allege violation 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).\u00a0 The Secretary was allowedto amend Serious citation 1, items 7a and 7b to plead in the alternative, rather thanseparately, violations of 29 C.F.R. ??1926.800(e)(1)(iv) and 5(a)(1) (Tr. 21-23). \u00a0Serious citation 1, item 8 names violations of ?1926.800(h)(2)(ii).\u00a0 Willfulcitation 2, items 1, 2 and 3 charge violations of ?1926.407(b), 1926.800(c)(2)(vii), and1926.800(k)(6).\u00a0 Other than serious citation 3, item 1, 2, 3 and 4, charge violationsof 1926.403(e), 1926.403(g), 1926.403(h) and 1926.405(b)(2).Docket No. 88-1711 – Serious citation 1, items1a, 1b, and 1c allege violation of 29 C.F.R. ??1926.350(a)(1), 1926.350(a)(9) and1926.350(j).\u00a0 Serious citation 1, item 3b alleges violation of ??1926.21(b)(2).\u00a0 Citation 1, item 4 was amended to allege a violation of ?1926.431.\u00a0 Otherthan serious citation 2, items 1, 3, 4 and 5 charge violations of ??1926.51(a)(4),1926.54(b), 1926.152(a)(1) and 1926.800(k)(14).No jurisdictional issues are in dispute, theparties having pled sufficient facts to establish respondent is subject to the Act and theCommission has jurisdiction of the parties and the subject matter.Docket No. 2674Mr. Thomas L. Wild, a Compliance Officer withOSHA, conducted the August, 1988 inspection at respondent’s A171 tunnel site near Wilshireand Bonnie Brae in Los Angeles, California (Tr. 319).Citation 1, Items 1a and 1bFacts The first citation concerns a ballast weightconveyor.\u00a0 The ballast weight rides on a frame consisting of two poles attached tothe conveyor and passing through supports on each side of the weight.\u00a0 The bottommember of the frame is about four feet below the conveyor and four feet above the ground(Tr. 324; Ex. C-K3, C-K4).\u00a0 The ballast fluctuates up and down to keep tension on thebelt as it moves \”muck\” over the top (Tr. 326).Mr. Wild testified that if the conveyor beltwere to break, the ballast would fall 18 inches to two feet to the bottom of itssupporting frame (Tr. 321, 329).\u00a0 Employees walking past, or at work greasing theconveyor’s roller might be struck on the head or shoulder (Tr. 321, 332; Ex. C-K2). \u00a0A blow from the weight could result in severe injuries including concussion and brokenbones (Tr. 328, 331).Mr. Wild felt that a cable should have beenattached from the frame to the weight itself to prevent it from dropping (Tr. 322, 330).Mr. Wild also testified that on the lower partof the same conveyor system, a self-cleaning tail pulley and 4 idler rollers wereunguarded (Tr. 332; Ex. C-K5).\u00a0 Mr. Wild stated that employees could get their handsinside the spokes of the pulley wheel or get their clothing caught in \”littlehands\” that stick out front the wheel (Tr. 334-335).\u00a0 Mr. Wild also stated thatemployees could get their hands caught between the idler rollers and the metal conveyorframe, resulting in possible broken bones or amputation (Tr. 336).Mr. Wild testified that employees had to walkaround the conveyor to get up the walkway to the top of the conveyor system, and thatmaintenance employees would also be exposed to the alleged hazard when greasing therollers (Tr. 337).DiscussionPart 1926, Subpart I is titled -Tools-Handand Power.\u00a0 Section 1926.300(b)(2) provides that:Belts, gears, shafts, pulleys, sprockets,spindles, drums, flywheels, chains, or other reciprocating rotating or moving parts ofequipment shall be guarded if such parts are exposed to contact by employees or otherwisecreate a hazard.\u00a0 Guarding shall meet the requirements as set forth in AmericanNational Standards Institute, B15.1-1953 (R1958), Safety Code for MechanicalPower-Transmission Apparatus.Respondent argues that the Secretary has failedto demonstrate that the cited standard applies to its conveyor belt as required underCommission precedent.\u00a0 Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126(No. 78-6247, 1981).The Secretary contends that, despite the headingof Sub-part I; ?1926.300(b)(2), applicable to belts and gears on equipment, is applicableto respondent’s belt conveyor.\u00a0 This Judge disagrees.Webster’s II New Riverside UniversityDictionary contains the definition:tool 1.A hand-held implement, as a hammer, saw,or drill, used in accomplishing work.\u00a0 2.a. A machine, as a lathe, for cutting andshaping mechanical parts. b.The cutting part of such a machine.. . .It is clear a conveyor belt is not a\”tool\”, in the common understanding of the word.\u00a0 Moreover, in this casethe standard itself refers to many tools specifically.\u00a0 References to sanders,grinders, routers, nailers, jackhammers, etc., support a finding that the drafters of thestandard intended it to apply to \”tools\” in the common sense.In addition, Subpart N -Cranes, Derricks,Hoists, Elevators, and Conveyors contains regulations specifically applicable toconveyors.\u00a0 Section 1926.555 directs the reader to safety requirements set forth inANSI B20.1-1957, Safety Code for Conveyors, Cableways, and Related Equipment, an ANSIstandard different than the one referred to by ? 1926.300(b)(2).\u00a0 Those standardsset forth requirements for the very components dealt with in the Secretary’s citation.It is well settled that the Secretary may notextend the reach of a standard beyond the plain meaning of the regulation’s language, thusdepriving the employer of fair warning of proscribed conduct.\u00a0 See e.g., BethlehemSteel v. OSHRC, 573 F.2d 157 [6 BNA OSHC 1440] (3rd Cir. 1978).The Secretary has not shown the cited standard’sapplicability and Citation 1, items 1a and 1b are dismissed.Citation 1, Item 2FactsMr. Wild then testified that during hisinspection, he observed two employees working with an air powered jackhammer.\u00a0 Theflexible hose supplying air to the jackhammer was not secured by a \”whip check\”or any other positive means (Tr. 343).A whip check is a cord that attaches to a frameand the end of an air hose.\u00a0 Should the hose work loose, the whip check would preventthe pressurized hose from whipping around and possibly striking employees (Tr. 344).\u00a0 Mr. Wild testified that a blow from a pressurized hose could result in possiblebroken bones or a concussion (Tr. 351).Mr. Wild observed one employee using thejackhammer at the time of the inspection and another within two feet of him (Tr. 350).When he called the condition to the attention of the foreman, who was in the area, it wasimmediately 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 the wingnut to dislodge.\u00a0 Whip checks are used only on hoses larger than one inch (Tr. 816;Ex. R-4).Discussion Section 1926.302(b) requires that:Pneumatic Power tools.\u00a0 (1)Pneumatic power tools shall be secured to the hose or whip by some positive means toprevent the tool from becoming accidentally disconnected.The relevant facts are uncontested. \u00a0Respondent argues that its use of the Boss coupling constitutes a positive means ofpreventing accidental disconnection.\u00a0 The Secretary maintains that the \”positivemeans\” 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 not satisfy theregulation.It is noted that the interpretation of astandard by the promulgating agency is controlling unless \”clearly erroneous orinconsistent with the regulation itself.\”\u00a0 Udall v. Tallman, 380 U.S. 1,at 16, 87 S.Ct. 792, at 801 (1965).\u00a0 In this case, the Secretary’s interpretation isconsistent with the language and purpose of the standard.\u00a0 Respondent was 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 on the size hoseinvolved here; therefore, employer knowledge of the violation is established.Since a pneumatically propelled hose couldeasily put out an eye or result in serious lacerations, the violation will be affirmed asa \”Serious\” violation.The Secretary proposes a penalty of $500.00.The determination of what constitutes anappropriate penalty is within the discretion of the Review Commission.\u00a0 Long ManufacturingCo. v. OSHRC, 554 F.2d 902 (8th Cir. 1977).\u00a0 In determining the penalty theCommission is required to give due consideration to the size of the employer, the gravityof the violation and the employer’s good faith and history of previous violations. \u00a0The gravity of the offense is the principle factor to be considered.\u00a0 NaciremaOperating Co., 1 BNA OSHC 1001, (No. 4, 1972).Respondent in this case is a medium to largeemployer, with 75 to 100 employees.\u00a0 Respondent has a history of serious citations(Tr. 501, 504).\u00a0 The gravity of the violation is medium to low.\u00a0 Only twoemployees were exposed to the hazard, which respondent had taken some measures to abatewith the use of safety couplings.\u00a0 The cited condition was immediately abated. \u00a0Under the circumstances, this Judge finds that the proposed penalty is excessive. \u00a0$300.00 will be assessed.Citation 1, Item 3Facts While in the tunnel, Mr. Wild observed anunsecured oxygen and acetylene bottle propped against the wall on top of a pipeline whichran along the right-hand side of the tunnel (Tr. 353-354).\u00a0 Mr. Wild stated that thebottles were full and capped (Tr. 509). Two employees were observed working within severalfeet of the hazardous condition (Tr. 355).\u00a0 A foreman was in the area (Tr. 356).Mr. Wild testified that the bottles were in anunstable condition and could be easily knocked over by traffic in the area (Tr. 356).Should a pressurized bottle tip over and rupture or break off at the top, it would becomea missile (Tr. 354-355).\u00a0 A tank propelled into an employee could result in seriousinjury including broken bones or death (Tr. 355).Mr. Stokes testified that pressurized cylindersare stored upright in a rack on the surface.\u00a0 Oxygen and acetylene are separated witha fireproof metal barrier (Tr. 817).\u00a0 Cylinders are taken into the tunnel whenrequired for use (Tr. 818).Discussion Section 1926.350(a) states:Transporting, moving, and storing compressedgas cylinders.(9) Compressed gas cylinders shall be secured inan upright position at all times except, if necessary for short periods of time whilecylinders are actually being hoisted or carried.The only issue raised by respondent is that of applicability.\u00a0 Respondent argues that?1926.350(a) is limited by its heading to the transport and storage of cylinders, citing Sterns-RogerIncorporated, 7 BNA OSHC 1919 (No. 76-2326, 1979).\u00a0 The cited cylinders, itargues, were in use or available for intermittent use and therefore not subject to theregulation.The Commission, however, limited theapplicability of Sterns-Roger in a later case, Austin Building Co., 8 BNAOSHC 2150 (No. 77-3878, 1980).\u00a0 In that case the Commission found that?1926.350(a)’s heading could not be used to limit the explicit terms of 1926.350(a)(9),which require that cylinders be secured \”at all times\” other than when hoistedor carried for short periods.\u00a0 Id. at 2153.\u00a0 The Commission then foundthe standard to be applicable to cylinders in use.This Judge is bound by the ruling in AustinBuilding Co.\u00a0 Since the respondent’s cylinders were neither being hoisted norcarried, the standard is applicable.The evidence establishes a \”Serious\”violation of ?1926.350(a)(9), and citation 1, item 3 will be affirmed.The Secretary has proposed a penalty of $500.00.The gravity of the violation is medium. \u00a0Two employees were exposed, no alternative measures were taken to protect against thehazard.\u00a0 Taking the relevant factors into account the proposed penalty is found to beexcessive.\u00a0 $400.00 will be assessed.Citation 1, Item 4a and 4bFactsDuring the inspection, Mr. Wild noted equipmentin use approximately 4,000 feet inside the tunnel which was not approved for use in ahazardous location (Tr. 363).\u00a0 Respondent has admitted that the equipment inquestion, the control switch of a Baldor 1.5 hp industrial motor and auxiliary toolextension cords and recepticals, was in the tunnel 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 mayarc or spark, igniting any flammable gas in the atmosphere.\u00a0 A fire in the tunnelcould result in death (Tr. 364).Respondent, however, argues that the tunnel wasimproperly classified as a hazardous Class 1, Division 2 location.Ronald J. Searle, a professional engineer andSafety Engineer and Consultant with the Bureau of Reclamation (Tr. 49), testified as anexpert for the Secretary. While with the Bureau, Mr. Searle worked on the development ofsafety and health standards for that agency (Tr. 44).\u00a0 Mr. Searle worked with theBureau’s geotechnical staff developing specifications for the driving of tunnels based ongeological formations (Tr. 45).\u00a0 Among his other qualifications, Mr. Searle counted13 years experience classifying mines with Kennecott Copper (Tr. 43, 46, 49).\u00a0 Mr.Searle admitted he was not a geologist nor an electrical or petroleum engineer (Tr. 41,55). Mr. Searle also admitted that the U.S. Bureau of Reclamation’s standards forclassifying tunnels are not based on OSHA standards and are more stringent than OSHAstandards (Tr. 184-186).Mr. Searle testified that, in classifying atunnel, he would look at geotechnical reports, gas test results taken from bore holes inthe area and any information available from earlier underground work conducted nearby (Tr.39-41).\u00a0 In this case he reviewed the Geotechnical Report, Metro Rail ProjectDesign Unit A170 (referring to the A171 segment) prepared by Converse Consultants,Inc., their report on Design Unit A140 (referring to the A146 segment) and GeologicAspects Of Tunneling In The Los Angeles Area, prepared by the Department of theInterior, U.S. Geological Survey (Tr. 52; Ex. C-A, C-B, C-C).\u00a0 Mr. Searle also reliedon portions of the Southern California Rapid Transit District (RTD) Contract for the MetroRail Project and newspaper and personal reports of gaseous conditions in tunnels andelsewhere in the Los Angeles area, including reports from respondent’s employees (Tr. 49,52, 102-103, 109, 125; Ex. C-D, C-E).The geotechnical report of Converse, aGeo\/Resource Consultant, noted that the Los Angeles City Oil Field is located from 500feet, at its closest approach, to 2,000 feet north of the A171 tunnel (Ex. C-A, p. 7).\u00a0 Although gas analyses conducted on bore holes dug in the tunnel area wereinconclusive (Ex. C-A, p. 12), the report stated that \”[g]asoline, sulfur andpetroleum odors were noted\” in amounts of roughly 2 to 15% by volume in four of theborings, and that \”[o]rganic-sulfurous odors\” were noted in one additional borehole at shallow depths.\u00a0 \”[L]arge gas bubbles and tar were observed on thesurface within the drilling fluid when the bottom of the hole was at depths greater than150 feet.\”\u00a0 (Tr. 72; Ex. C-A, p.7).\u00a0 Converse advised that \”[t]helikelihood of gas issuing from the bedrock formation is a distinct likelihood throughoutDesign Unit A170\” (Tr. 72; Ex. C-A, p.9; see also, Ex. C-A, p. 12; Appendix A,December 2, 1983 memorandum).\u00a0 The report further stated that \”[m]ethane andother natural hydrocarbon gases are expected to occur along the proposed Metro Rail tunnelalignment, especially where the alignment crosses oil fields\” (Tr. 74; Ex. C-A,Appendix C, p. C-1; see also p. C-5).Converse reached similar conclusions in itsgeotechnical report for the nearby A146 tunnel segment.\u00a0 In one instance, gas whichhad been entrained in ground water was released and ignited by a \”spark of unknownorigin\”\u00a0 (Tr. 90-91; Ex. C-C, p. 8-9, 12, 15, 63).The U.S. Geological Survey located the LosAngeles City oil field approximately 6 to 8 blocks from the A171 tunnel (Tr. 98; Ex. C-B,sheet 5).\u00a0 The survey noted that \”local accumulations of petroleum (petroleumgas, free oil, asphalt or tar) and a few of hydrogen sulfide were found in shallowborings. . . at several places. . . in the downtown area (Ex. C-B, p. 7).\u00a0 A specificinstance where \”gas and seeping oil\” had been encountered in 1975 was cited (Tr.96; Ex. C-B, p. 66).According to the RTD contract governing theconstruction of the A171 tunnel, the tunnel project had been classified by Cal-OSHA as a\”gassy\” location (Tr. 125, Ex. C-E, ? 01545).\u00a0 California Title 8,Industrial Relations, Article 8.\u00a0 Tunnel Classifications ? 8422 defines\”gassy,\”:\”which classification shall be applied to tunnels where it is likely gas will beencountered or if a concentration of 0.25 percent by volume (5% of LEL) or more offlammable gas has been detected not less than 12 inches from the roof face, floor andwalls in any open workings with normal ventilation.\”(Tr. 130; Ex. J-B2).In the course of his investigation, Mr. Searlevisited respondent’s tunnel where employees told him that hydrogen sulfide had beendetected at low concentrations (Tr. 49, 52).\u00a0 This was the only evidence Mr. Searlewas aware of that gas had been encountered in the tunnel itself (Tr. 202).As respondent excavated the tunnel, a 3 to 4inch probe hole was drilled 50 feet straight ahead of the mining machine.\u00a0 TomGrogan, respondent’s Safety Representative, personally monitored the probe holes (Tr. 703,707-709).\u00a0 At 10 foot intervals the explosive gas sensor was inserted three feet intothe hole (Tr. 720).\u00a0 There was also an eight head automatic monitoring system on themining machine itself which hung directly outside the bore hole, taking readings as airfrom the hole was flushed using air or water introduced through the steel head (Tr. 703,720-722).\u00a0 In addition there was a gas detector head in the fan line (Tr. 703). Eachshift included a gas tester who watched the automatic monitoring system and tested thearea for hydrogen sulfide on an hourly basis with a Draeger hand pump (Tr. 703, 714-716,718-719).Mr. Grogan testified that they have neverencountered any explosive gases in the tunnel (Tr. 704).\u00a0 Small amounts of hydrogensulfide were found in the rock itself at the end of one of the tunnels[[1]] (Tr. 705).Mr. Wild testified that over the course of hisinspection, he tested the tunnel atmosphere for gases over 100 times without everdetecting any gas (Tr. 512-513).The ventilation system in respondent’s tunnelwas designed to provide 50,000 cfm of air (Tr. 839).\u00a0 Mr. Searle testified that themethods (velometers) being used by respondent to monitor its ventilation system wereinadequate and that, based on his own calculations, less than the design amount was beingcirculated at the tunnel heading (Tr. 117, 204).\u00a0 According to Mr. Searle’scalculations, the circulation from the main duct system was inadequate, merelyrecirculating air from the tunnel at the heading. Additionally, Mr. Searle felt the systemshould have been capable of producing 100,000 cfm at the heading should gas be encountered(Tr. 204-205).Mr. Searle also felt that a secondary systemdrawing air into or exhausting 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 ofthe Los Angeles City oil field and the detection of tar, a petroleum product, in the areait is reasonable to assume that flammable petroleum gases or vapors may also be present inthe A171 area (Tr. 74-75, 101). Methane, a flammable gas, and hydrogen sulfide, bothflammable and toxic, may also be generated where there are oil fields as well as wherebacteria works upon organic material entrapped in geologic formations (Tr. 78-79). \u00a0Mr. Searle stated that in the area of the Los Angeles tunnel, seismic conditions createfissures through which gas from nearby areas may move.\u00a0 Gas may also migrate throughpermeable formations or through water channels (Tr. 93).Based on his understanding of the geologicformation in the area of the A171 tunnel, the \”gassy\” classification of Cal-OSHAand his knowledge of instances where gas had been encountered within 6 miles of the tunnelsite (Tr. 102, Ex. C-D), Mr. Searle felt that there was a \”great potential for agassy environment\” which would not be immediately dissipated by respondent’sventilation system, and that only electrical systems and equipment meeting therequirements of the National Electrical Code, Article 500, Class I, Division I, Group D orClass 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 Class 1, Division 2 location byOSHA (Tr. 193, see also p. 53, 69).The Southern California Rapid Transit Districtapparently agreed with Mr. Searle. The product specifications in the Wilshire\/AlvaradoLine Contract A171, under which Shank-Ohbayashi was engaged, state that all electricalinstallation and electrical equipment for tunneling and covered construction operationsshall conform with the Class I, Division 2 designations in the Electrical Safety Orders inTitle 8 of the California Administrative Code (Tr. 132-133; Ex. C-E, ?01545-2.1C). \u00a0The California classification system found in Title 8 Article 59 ?2540.1 is identical tothat found in ?1926.449 (Ex. J-B3).[[2]]Mr. William C. Bible, a professional consultantand licensed electrical, industrial and fire protection engineer testifying forrespondent, disagreed with Mr. Searle’s conclusions (Tr. 769-772).\u00a0 Based solely onthe construction history of respondent’s tunnels and the results of gas tests, Mr. Bibleconcluded that there was no \”identifiable and positive\” probability of gas beingpresent in the tunnel (Tr. 787-789).Mr. Iraj Ershaghi testified for respondent.\u00a0 Mr. Ershaghi is a professor and acting Chairman of the Department of PetroleumEngineering at the University of Southern California, specializing in reservoirengineering, the study of the underground migration of crude oil or gas.\u00a0 Mr.Ershaghi also acts as a consultant (Tr. 880-883).Mr. Ershaghi reviewed the material relied uponby Mr. Searle as well as the records of the California Division of Oil and Gas, andDivision of Mines and Geology (Tr. 884-885).\u00a0 Mr. Ershaghi then prepared astatistical study of wells or holes bored in the last 30 to 40 years in the vicinity, i.e.within 100 feet, of the tunnel site.Mr. Ershaghi noted that the oil extracted fromthe area was extremely heavy, containing no light hydrocarbons (Tr. 912).\u00a0 Oil beingpumped from the area was driven, not by gas pressure, but by gravity or the weight of theoil itself (Tr. 914).Mr. Ershaghi found that the Los Angeles City oilfield is a homocline, a geological formation running from south to north and rising up outof the earth at a 30 to 40 ? angle.\u00a0 The northern most portion of the structure ison the surface itself (Tr. 909-910; Ex. J-F6).Based on the evidence, Mr. Ershaghi concludedthat the formation had no \”gas cap\”, such as rock or an impermeable clay layerholding the gasses beneath 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 had escaped into theatmosphere (Tr. 910-912).\u00a0 He further stated that what small amounts of gas remainedtrapped were not likely to be communicated further because of insufficient gas pressureand the presence of insufficient perch, or ground water (Tr. 917, 922-923).Mr. Ershaghi determined that based on the gasencountered, there was a 6% to 30% chance of encountering gas during tunnel excavation(Tr. 888-889, 904).\u00a0 He felt that any gas would likely be of \”localeffect\”.\u00a0 Because of limited information available, Mr. Ershaghi was unable toaccurately estimate amounts which might be trapped in the \”pores\” of the rock,but felt that there might be several hundred cubic feet maximum (Tr. 882, 917-918,920-922, 927).DiscussionSection 1926.407(b) states that:Electrical installations. \u00a0Equipment, wiring methods, and installations of equipment in hazardous (classified)locations shall be approved as intrinsically safe or approved for the hazardous(classified) location or safe for the hazardous (classified) location. . .Definitions of hazardous locations are providedunder ?1926.449.\u00a0 The Secretary maintains that respondent’s tunnel falls undersubsection (b)(2) of Class I locations, which defines Division 2 locations as those (amongothers):In which ignitable concentrations of gases or vapors are normally prevented by positivemechanical ventilation, and which might become hazardous through failure or abnormaloperations of the ventilating equipment;. . .[[3]]When the regulation is read as a whole, itappears that subsection (b)(2) provides a means for an employer with a Class 1, Division 1location, \”[i]n which ignitable concentrations of flammable gases or vapors may existunder normal operating conditions,\” to downgrade the location’s classificationthrough the provision of positive mechanical ventilation.Since a location may be classified as Class 1,Division 1 based on the mere probability of ignitable concentrations of gas, it would beinconsistent to require the actual presence of those same concentrations to support aClass 1, Division 2 classification.This does not, however, end the analysis. \u00a0In Continental Oil Company, 11 BNA OSHC 2114 (No. 79-570-E, 1984), the Commissionexamined ?1926.449’s definition of Class 1, Division 2 locations and noted that:The definition does not establish any unbending rules.\u00a0 A great deal of discretion isleft. . . The standard specifically instructs that certain factors should be considered:The quantity of flammable material that mightescape in case of an accident, the adequacy of ventilating equipment, the total areainvolved, and the record of the industry or business with respect to explosions or firesare all factors that merit consideration in determining the classification and extent ofeach location.Id. at 2117.\u00a0 See note 2 supra.\u00a0 Because of the latitude allowed in the standard, the Commission held that in orderto prove a violation, the Secretary must demonstrate that, after taking into considerationthe above mentioned factors, the use of unapproved equipment presents a fire or explosionhazard and is contrary to sound engineering judgement.\u00a0 Id.The evidence is clear that although nohydrocarbon gases and only small concentrations of hydrogen sulfide had so far beenencountered in the A171 tunnel segment, there exists a substantial likelihood ofencountering such flammable gases there.\u00a0 Based on its testing, the accuracy of whichwas not disputed by respondent, Converse Consultants repeatedly stressed the possibilityof encountering gas and even respondent’s own expert, Mr. Ershaghi stated that theprobability was as high as 30%.\u00a0 Though Mr. Ershaghi did not believe it probable thatlarge amounts of gas would be encountered, he could not conclude that the amountsencountered would not constitute ignitable concentrations.\u00a0 In at least one instance,ignitable concentrations trapped in perch water were encountered in a borehole.Respondent contends that its ventilation would dissipate such concentrations, estimated atseveral hundred cubic feet, as might be encountered.\u00a0 However the standardcontemplates a failure in ventilation systems.\u00a0 There was no evidence that respondenthad any back-up system.\u00a0 Moreover there was testimony that the ventilation systemmerely recirculated air at the tunnel heading and did not reach the cross-passages at all.Mr. Searle’s testimony is clear, that in hisexpert opinion, given the conditions encountered in the A171 tunnel, sound engineeringpractices require the use of electrical equipment certified safe for Class I, Division 2locations.\u00a0 His opinion is supported by the conclusions of RTD as evidenced by theA171 contract.\u00a0 Mr. Ershaghi has no experience in the construction field and offeredno opinion as to the necessity of using non-sparking equipment.\u00a0 The only expertstating a contrary opinion was Mr. Bible, who viewed only gas testing results from thetunnel itself and did not see any of the geotechnical reports for the Los Angeles Area.The Secretary has established that a fire and\/orexplosion hazard existed in the A171 tunnel and that sound engineering judgment requiredthe use of equipment certified for a Class 1, Division 2 location.\u00a0 Respondent’s useof non-certified equipment therefore, constitutes a violation 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.\u00a0 The violation wasongoing and a fire in the tunnel could endanger every employee inside, however, given thehistory of the tunnel excavation the probability of such a fire has been proven low.Taking the relevant factors into account, the proposed penalty is found to be excessive.\u00a0 $700.00 will be assessed.Citation 1, Item 5a through 5eFactsInside the tunnel, a circuit-breaker box for asump pump (Ex. C-K7, C-K8), panel boxes for the left and right air supply fans (Ex.C-K12), a pilot power unit (Ex. C-K13), a control panel to the shield (Ex. C-K14), and alighting and laser unit (Tr. C-K15), all had bolts missing and backed part way out (Tr.370-375).\u00a0 In addition, the lighting and laser unit had an open unused opening (Tr.377-378).Mr. Wild testified that gas could enter any ofthese unsecured control panels and that the arcing and sparking within the componentscould then ignite the gas and spread fire to a gaseous atmosphere outside (Tr. 379-380).Mr. Wild felt that the missing and loose boltsshould have been obvious if proper maintenance procedures were being followed (Tr. 381).DiscussionSection 1926.431 states that:The employer shall ensure that all wiringcomponents and utilization equipment in hazardous locations are maintained in adust-tight, dust ignition-proof, or explosion-proof condition as appropriate. There shallbe no loose or missing screws, gaskets, threaded connections, seals or other impairmentsto a tight condition.Respondent defends solely on the basis that itstunnel was not properly classified as a Class 1, Division 2 location. Based on the discussion in the previous sectionfinding the A171 tunnel a hazardous location in which sound engineering judgement requiresthe use of non-sparking electrical equipment, the violation is affirmed.The Secretary has proposed a combined penalty of$1,000.00.\u00a0 For the reasons discussed under the preceding item, the proposed penaltyis considered excessive.\u00a0 $700.00 will be assessed.Citation 1, Item 6FactsApproximately 2,000 feet inside the tunnel, Mr.Wild observed two open holes in a section of decking which supported a train switch, orsiding (Tr. 383-384; Ex. K-16).\u00a0 The holes were between 8 and 24 inches deep andprovided access under the decking so that employees could level it when required (Tr. 385,517, 818).\u00a0 Mr. Stokes stated that 3\/4 inch plywood covers were provided for coveringthe holes when they were not in use (Tr. 818).\u00a0 Mr. Wild stated that no employeeswere working in the holes when he noted them, but that the holes remained uncovered thefollowing day and throughout the inspection (Tr. 385-386).\u00a0 The tunnel constitutedthe only way in and out, and Mr. Wild observed several employees walking directlyalongside the holes (Tr. 385).Mr. Wild stated that an employee could step intoone of the holes resulting in sprains or a possible broken leg (Tr. 386).DiscussionSection 1926.800(a)(2) requires that a\”[s]afe means of access shall be provided and maintained to all working places.\”In its brief, respondent admits that citation 1,item 6 should be affirmed as a \”Serious\” violation of the cited standard, andcontests only the $400.00 penalty proposed by the Secretary.Taking the relevant factors into account, theproposed penalty is considered appropriate and will be assessed. Citation 1, Item 7a and 7bFactsIn the tunnel shaft, Mr. Wild observed a dieselpipeline running from the surface to the bottom, where it was used for fillingrespondent’s diesel locomotives (Tr. 387).\u00a0 The pipe-line ran alongside the woodenstairway which descended into the shaft, about 5 feet from the shaft wall (Tr. 387-388).\u00a0 A hose with a dispensing nozzle was attached to the pipeline and draped across someother pipes (Tr. 388-389; Ex. C-K17, C-K19).\u00a0 A film of diesel fuel floated in apuddle of water at the bottom of the shaft (Tr. 398).The diesel pipeline was equipped with a timer and anti-syphon pump, which allowed only 50to 60 gallons at a time to be pumped and prevented the fuel from passing through the lineexcept when the pump was in operation (Tr. 395, 828; Ex. C-K18).\u00a0 An emergencyshut-off was located at the tank and the top of the shaft (Tr. 828).Approximately 10 gallons of fuel might bepresent in the pipe in the shaft at any time.\u00a0 Mr. Stokes estimated that respondentused 200 to 300 gallons of fuel per day in the shaft (Tr. 829).Mr. Wild testified that equipment being loweredby crane into the shaft could strike the pipeline and cause it to rupture, leaking fuel(Tr. 396).\u00a0 Employees performing welding in the bottom of the shaft, as on the day ofthe inspection, could provide an ignition source (Tr. 392).\u00a0 Mr. Wild pointed outthat should a fire occur in that location the staircase, the primary means of exit, couldbe destroyed (Tr. 393-394).\u00a0 Moreover, the ventilation system would draw smoke from afire throughout the remainder of the tunnel (Tr. 392).\u00a0 Though the ventilation systemwas reversible, the fan controls were located at the top of the shaft and would takeseveral minutes to reverse the system (Tr. 844-845).\u00a0 Mr. Wild stated that a fire inthe shaft could result in asphyxiation, and probable death (Tr. 397).Mr. Frank Memmot, a Senior Safety Engineer andinstructor on tunnel safety for OSHA (Tr. 215-229), testified that the pipeline presenteda recognized hazard (Tr. 680).\u00a0 Mr. Memmot stated that diesel fuel is usually broughtinto shafts in drums or containers (Tr. 684).Mr. Wild felt the hazard could be abated byinstalling a cut off valve at the top of the shaft and draining the pipeline between uses(Tr. 396).The design of the pumping station was submittedto the City of Los Angeles Fire Department and was inspected and approved by them (Tr.819-825; Ex. R-5)Mr. Stokes stated that the fuel line wasprotected by its location behind the stairway and the shaft supports and could not bestruck by loads being hoisted (Tr. 830).DiscussionIn her brief, the Secretary withdraws hercontention that respondent’s diesel pipeline constituted a violation of ?1926.800(e)(1)(iv), which provides that \”[n]ot more than 1 day’s supply of dieselfuel shall be stored underground.\”Based on the same facts, the Secretaryalternatively alleges a violation of ? 5(a)(1) of the Act.\u00a0 The Commission has heldthat:To prove that an employer violated section5(a)(1), The Act’s general duty clause, the Secretary must prove that the cited employerfailed to free the workplace of a hazard that was recognized by the cited employer or itsindustry, that was causing or likely to cause death or serious physical harm, and thatcould have been materially reduced or eliminated by a feasible and useful means ofabatement.Pelron Corporation, 12 BNA OSHC 1833,1835 (No. 82-388, 1986). This Judge finds that the Secretary failed toshow that respondent’s diesel line was a hazard recognized in the tunneling industry.The Secretary’s sole evidence on this issueconsisted of Mr. Memmot’s unsupported statement that the diesel line was a recognizedhazard.\u00a0 Though Mr. Memmot’s teaching credentials are impressive, his actual contactwith the mining industry is tenuous, consisting in recent years mainly of attendance atconferences and membership in professional associations (Tr. 217-218).\u00a0 His mostrecent experience is in maritime construction (Tr. 216, 223).It is this Judge’s opinion that the use of adiesel line containing 10 gallons of fuel constitutes a lesser hazard than lowering intothe shaft barrels of fuel which could themselves strike some obstacle and release theircontents.\u00a0 Yet this alternative was recommended by Mr. Memmot and is apparentlysanctioned by ? 1926.800(e)(iv) which permits a one day’s supply to be storedunderground.The pipeline allows respondent to keep a muchsmaller amount of fuel in the shaft itself.\u00a0 The pipeline is largely protected by thestructural members of the shaft itself and was, moreover, approved as installed by the LosAngeles Fire Department.The Secretary has failed to show a violation of? 5(a)(1) and citation 1, item 7a and 7b is dismissed.Citation 1, Item 8Facts Several cross-passages were being excavated tojoin the tunnel which was the subject of this inspection to a second tunnel runningparallel and about 20 feet away (Tr. 400-401).\u00a0 Normally, the cross-passage isexcavated a half at a time, top and then bottom (Tr. 402-403).\u00a0 As the passage isexcavated, rock bolts, 4 foot bolts with a plate attached, are inserted to support thesoil (Tr. 407, 410; Ex. C-K22).\u00a0 Once the excavation is completed, wire mesh isinstalled and \”shotcrete\” is pneumatically applied to the roof and walls.\u00a0 The shotcrete hardens and supports the tunnel (Tr. 408, 832; Ex. C-K20, C-K21).Mr. Wild observed employees excavatingcross-passage No. 13.\u00a0 At that time they were working approximately 13 feet off themain tunnel 2,000 feet from the portal (Tr. 401- 402, 831).\u00a0 The cross-passage hadneither rock bolts nor shotcrete for support (Tr. 408).The cross-tunnels were being excavated from ahard clay called \”puente\”, a dense siltstone that was spaded out (Tr. 408, 411,833-834).\u00a0 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 toa cave in hazard (Tr. 409).Discussion Section 1926.800(h)(2)(ii) provides:Loose ground shall be taken down or supported.\u00a0 Ground conditions along haulage ways and travelways shall be examined periodicallyand scaled or supported as necessary.The evidence establishes that the soil in thecited cross-passage was a hard clay, or \”puente.\”\u00a0 No soil samples wereintroduced and there was no other evidence that puente is a loose soil.\u00a0 TheCompliance Officer did not testify that he saw any loose ground in the cross-passage orelsewhere.There being no evidence that the cited standardis applicable to cross-passage 13, citation 1, item 8 will be dismissed.Willful ViolationsCitation 2, Item 1a and 1bRespondent has stipulated that two circuitbreakers within the tunnel were not of a type approved for Class 1, Division 2 location(Tr. 413-414; Ex. C-K23, C- K25).\u00a0 The hazards are the same as discussed for Citation1, item 5, involving the identical standard.Respondent defends solely on the basis that thetunnel in which the cited equipment was located was not a Class 1, Division 2 location.\u00a0 Respondent also contests the \”Willful\” classification of this violation.DiscussionThe text of the cited standard ? 1926.407(b) is stated above.\u00a0 Based on thedetermination that respondent’s tunnel was properly classified as a hazardous locationrequiring the use of electrical equipment approved for a Class 1, Division 2 environment,the placement of unapproved circuit breakers in the tunnel constituted a violation of thatstandard.The Commission has held that in order toestablish that a violation was willful:. . . there must be evidence of such recklessdisregard for employee safety or the requirements of the law generally that one can inferthat if the employer had known of the standard or provision, the employer would not havecared that the conduct or conditions violated it.Williams Enterprises, Inc., 13 BNA OSHC1249, 1256-57 (No. 85-355, 1987).\u00a0 See also Brock v. Morello Brothers Construction,Inc., 809 F.2d 161, 163-65 (1st Cir. 1987).\u00a0 A violation is not willful if theemployer had a reasonable, good faith belief that the violative conditions conformed tothe requirements of the Act.\u00a0 Keco Industries Inc., 13 BNA OSHC 1161, 1169(No. 81-263, 1987); RSR Corp., 11 BNA OSHC 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 means a model of clarity.\u00a0 Federal enforcement of OSHA standardsis new to California and the Secretary presented no evidence that its interpretation ofthe cited standard had been previously communicated to Shank-Ohbayashi.\u00a0 Casesinvolving ? 1926.449’s classification system are few, and as discussed above, theyenumerate in a number of variables requiring the exercise of considerable judgment on thepart of the employer.\u00a0 The geologic factors involved in this particular case arecomplex.Though erroneous, this Judge cannot say thatrespondent’s interpretation of ? 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.\u00a0 For the reasons set forth in the discussion pertaining to citation 1,items 4 and 5, the proposed penalty is found to be excessive.\u00a0 $700.00 will beassessed.Citation 2, Items 2a, 2b and 2c Facts At the time he arrived to conduct hisinspection, Mr. Wild observed two diesel skid loaders working in the tunnel which had noapproval plates from 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 3615 were selected by him to perform excavation work in the tunnel (Tr.957; Ex. R-8).\u00a0 Mr. Shank stated that the loaders had been specifically determined tobe in compliance with OSHA regulations and introduced a Diesel Equipment Listing forDiesel Engines Certified Under Part 32, 30 CFR in support.\u00a0 The listing indicatedthat the 4.108 Perkins diesel engine used in the 4615 Gehl was certified under that part(Tr. 959; Ex. R-9).\u00a0 The Isuzu 3KR1 engine used in the 3615 was not listed (Tr. 965).\u00a0 Mr. Shank stated that he had contacted the manufacturer, however, and determinedthat with the addition of \”exhaust scrubbers\”, the ventilation requirements ofthe engine would be within the capabilities of the A171 tunnel’s ventilation system beforeputting the loaders to work underground (Tr. 967-968).Mr. Shank stated that he was contacted by an RTDrepresentative who pointed out that Shank’s diesel permit from the State of California didnot include the new equipment (Tr. 968-970).\u00a0 Mr. Shank notified Cal\/OSHA of the newequipment’s specifications in August 1988 (Ex. R-11).\u00a0 In September respondentreceived notification from R.W. Stranberg, Cal\/OSHA Chief, that the said equipment was notacceptable for use in \”gassy\” tunnels because it was not permissible under parts31 or 36 of 30 CFR.\u00a0 Mr. Stranberg stated that Federal OSHA had jurisdiction in thiscase, however, and would \”have the decision regarding the use of this equipment\”(Ex. R-12).DiscussionSection 1926.800(c)(2)(vii) states:Internal combustion engines other than mobildiesel shall not be used underground.\u00a0 Mobile diesel-powered equipment usedunderground shall be certified by the Bureau of Mines, U.S. Department of the Interior oraccording to the Bureau of Mines publication \”Mechanical Equipment for Mines-testsfor permissibility and suitability, Part 32, Mobile Diesel Power Equipment for Non-CoalMines, Schedule 24\” of March 23, 1965.The Code of Federal Regulations, Title 30, Chapter 1, Subchapter E, Part 32 sets forth theprocedure for testing mobile diesel powered equipment for non-coal mines.\u00a0 Section32.1 identifies the type of equipment which may be approved.. . . Equipment for use in coal mines, or other situations where flammable atmospheres maybe encountered, will be considered permissible only when proved by test to offer adequateprotection against all these hazards. (See Part 31, Procedure for testing Diesel MineLocomotives for Permissibility and Recommendations on the Use of Diesel LocomotivesUnderground of this chapter) Equipment for use in non-coal mines in which the undergroundatmosphere contains less than 0.25 percent by volume of flammable gas will be grantedapproval when proved by test to offer adequate protection against the production of toxicor objectionable gases and when design and construction are such as to minimize the firehazard presented by the engine fuel oil under normal operating conditions.* * *(a) Approvals will be granted forcomplete Diesel powered equipment units only and not for engines and other individualparts used in the assembly of such units.(b) Inspection and tests of subassembliesThe engine and exhaust gas cooling system may be supplied as a subassembly to themanufacturer of the complete unit.\u00a0 Under such conditions this sub-assembly may besubmitted for inspection and test either by the manufacturer. . . If the subassembly meetsall requirements applicable to it, the Bureau will inform the manufacturer of thesubassembly by letter that further test or inspection of the engine will not be required.. .The Secretary argues respondent’s tunnelconstituted a \”situation where flammable atmospheres may be encountered\” andthat respondent was thereby directed to Part 31 and bound by its strictures.This Judge disagrees.\u00a0 A \”flammableatmosphere\” for purposes of Part 32 of Title 30 is not conterminous with a Class 1,Division 2 location as defined by ? 1926.449.\u00a0 It is defined by the regulationitself as a tunneling operation containing less than 0.25% by volume of flammable gas.There has been no evidence from which this Judge could possibly compute the percentage byvolume of gas which might be present in respondent’s tunnel.\u00a0 It is concluded,therefore, that respondent’s tunnel is a \”non-coal\” mine and that its equipmentmust comply only with the requirements of Part 32.Respondent argues that although his equipmentwas not \”approved\” as defined by Part 32, there is a difference between approvaland certification, and that under the terms of ? 1926. 800(c)(2)(vii) only the latter isrequired.\u00a0 In support, respondent points to a list for certified diesel engines putout by the U. S. Department of Labor, Mine Safety and Health Administration (Ex. R-9) andan information circular from the U. S. Department of the Interior, Bureau of Mines (Ex.R-10).\u00a0 In the latter document the author refers to the Bureau letter provided forsubassemblies pursuant to 30 CFR 32.1(b) as a letter of certification.\u00a0 Respondentconcludes that by its terms ? 1926.800 (c)(2)(vii) requires only this certification ofequipment subassemblies, not approval of the entire piece of equipment.Respondent’s interpretation of ?1926.800(c)(2)(vii) is rejected.\u00a0 The drafters of the above cited standard direct thereader to 30 CFR 32, schedule 24 for requirements governing the certification of mobilediesel-powered equipment.\u00a0 Part 32 never uses the term \”certification\” butsets forth testing and approval procedures for such diesel-powered equipment.\u00a0 It isclear the drafters intended the employer to abide by those procedures for\”approval\”, a term synonymous with \”certification\”, of the entirepiece of equipment. The section dealing with a Bureau letter clearly is for the benefit ofmanufacturers, so that subassemblies (engines and cooling, systems) need not be retestedwhen included in a complete unit.\u00a0 This Judge finds it unreasonable to assume thatthe drafters intended reference to this section, thus allowing employers to use equipmentcontaining any one certified system.Respondent’s loaders were not approved inaccordance with this section and therefore respondent was in violation of?1926.800(c)(2)(vii).Citation 2, items 2a, 2b, and 2c are classifiedas \”Willful\” violations of the act.\u00a0 As discussed above, a violation willnot be found willful where the respondent follows a course of action in the reasonable,good faith belief that it is complying with regulations.In this case, however, respondent’s lack of goodfaith is demonstrated by its failure to follow even its own interpretation of theregulations.\u00a0 Mr. Shank admitted that his research revealed that only one of the twotypes of loaders utilized by respondent had a certified engine.\u00a0 Nevertheless, theloader was put into use based on Shank’s own calculations and his determination that theloader 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 thepossible production of toxic gases as well as to fire hazards presented by fuel oil and bycombustible dust or gas which might come in contact with unapproved equipment.\u00a0 Taking all the relevant factors into consideration, however, it is determined thatthe proposed penalty is excessive.\u00a0 $7,000.00 will be assessed.Citation 2, Item 3Facts On two different occasions, Mr. Wild observedemployees riding in and out of the tunnel on the flat top of a locomotive (Tr. 424).Mr. Wild stated that an employee could fall offand sustain injury or be run over.\u00a0 Mr. Wild estimated that the locomotive moved atabout 10 miles per hour (Tr. 430).Mr. Wild discussed the violation with asupervisor following the first incident.\u00a0 The locomotive operator was contacted andit was agreed that in 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 andphotographed the same condition (Tr. 427; Ex. C-K1).Mr. Robert S. Harris is a Safety Inspector on the Metro Rail Project for PDCD, theconstruction manager.\u00a0 (Tr. 639).\u00a0 In this capacity, Mr. Harris inspected theShank-Ohbayashi project for compliance with Cal-OSHA safety orders (Tr. 647).\u00a0 Duringhis inspections, Mr. Harris reported that respondent was using the locomotives and segmentcars, rather than mancars to transport workers (Tr. 647- 648, 657; Ex. C-H, p.2, 17).\u00a0 Copies of his reports were furnished to Tom Grogan (Tr. 658).Mr. Stokes testified that respondent requestedthat a deck be built on top of the locomotive, consisting of 3\” x 6\” pieces ofangle iron running around the top of the locomotive (Tr. 837-838).\u00a0 A pipe enclosingthe deck at 24 inches was added after the inspection (Tr. 853).In its \”Safe Work Practices Code\”respondent allows employees to ride on top of the locomotive \”if handrails areprovided\” (Ex. J-C, p. 8, ? H(16)).Discussion Section 1926.800(k)(6) states:No employee shall be permitted to ride apower-driven chain, belt, or bucket conveyor, unless the conveyor is specifically designedfor the transportation of employees.It is clear that a 3\” x 6\” piece ofangle iron is insufficient to assure the safety of employees being transported on top of alocomotive. The iron described by respondent cannot be used as a handhold or a restraint;it cannot even be seen on the photographs.\u00a0 This Judge finds it impossible to creditrespondent’s testimony that the iron was added specifically for the transport ofpersonnel.Moreover, respondent was aware that itsconstruction manager’s safety personnel considered it hazardous for employees to ride atopof the locomotive.\u00a0 Respondent’s supervisory personnel had been warned more than onceto use a mancar.\u00a0 Yet there was no indication that respondent made any effort toenforce the mancar’s use.Despite warning from the Compliance Officer andcontrary to its own policy set forth in its safety booklet, that riding atop thelocomotive is safe only when hand rails have been provided, none were installed untilafter respondent was cited by OSHA.The facts not only demonstrate that respondentviolated ?1926.800(k)(6) but evidence a general attitude of such indifference towardsemployee safety as to support a finding that the violation was \”Willful.\”The Secretary has proposed a penalty of$10,000.00.\u00a0 Taking all the factors into consideration, the proposed penalty isdeemed excessive.\u00a0 $4,000.00 will be assessed.Other than serious citation 3, items 1through 4In its brief respondent admits that theconditions cited as \”Other than serious\” in citation 3 constitute violations ofthe Act.\u00a0 No penalties were proposed.\u00a0 Those items will be affirmed withoutpenalty.Docket No. 1711Mr. Salvatore C. Jimenez, an OSHA ComplianceOfficer, conducted an inspection of respondent’s A146 tunnel site at 520 South Hill Street(Tr. 569).Citation 1, Item 1a, 1b and 1cFactsDuring the course of the inspection, Mr. Jimeneznoted an acetylene cylinder that did not have a cap designed to protect the bottle’s valvefrom damage (Tr. 570).\u00a0 The acetylene bottle was located between two columns at thebottom of the north side of the shaft (Tr. 571).\u00a0 The cylinder was secured with achain strung between the columns (Tr. 571).Mr. Jimenez felt that the single chain wasinsufficient to keep the bottle from falling sideways (Tr. 571).\u00a0 There wasconsiderable traffic and material was being hauled in and out of the shaft.\u00a0 Someobject could have fallen and bounced into the cylinder, knocking it over and\/or damagingthe valve (Tr. 572, 576).Mr. Jimenez testified that should the valve bedamaged, flammable gas would be released.\u00a0 Employees welding in the area, as theywere on the day of the inspection, could provide an ignition source, resulting in fire orexplosion (Tr. 572-573).\u00a0 Mr. Jimenez stated that there would have been a flammablerange around the cylinder despite the eventual dilution of the gas from the ventilationsystem (Tr. 573).\u00a0 Burns or shrapnel injuries could result (Tr. 575).Seven employees were observed working in the shaft and adjacent to it, the closest 10 to15 feet away (Tr. 573-574).The alleged violation was in plain sight (Tr.575).\u00a0 Mr. Jimenez testified that the violation was brought to the attention of theemployee representative, who told him, \”it shouldn’t be like that\” and replacedthe valve cap (Tr. 574).Approximately four feet from the acetylenecylinder, Mr. Jimenez observed an oxygen cylinder, also against the wall between the twocolumns and secured by the single chain (Tr. 575).\u00a0 Mr. Jimenez felt that the chainshould have been passed completely around the tanks to secure them (Tr. 576).In addition, there was no fire barrier betweenthe two cylinders (Tr. 578).\u00a0 Oxygen is an oxidizer; added to a fuel such asacetylene it would cause the acetylene to burn hotter and faster (Tr. 578).Mr. Clifton Sammons, a Safety Engineer withrespondent, testified that the normal procedure for storing oxygen and acetylene cylindersat the job site is to place them in a metal rack on the surface, divided by a steel platethat serves as a fire wall between oxygen and acetylene bottles.\u00a0 Full bottles areremoved from the rack when needed for use, empty ones are recapped and returned to therack (Tr. 727).Discussion Section 1926.350(a), cited in item 1a, requiresthat when \”transporting, moving, and storing compressed gas cylinders. (1) Valveprotection caps shall be in place and secured.\” The text of ? 1926.350(a)(9), cited in item 1b, requires that gas cylinders be secured atall times and is quoted above in the discussion of 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 technical portions ofAmerican National Standards Institute, Z49.1-1967, Safety in Welding and Cutting shallapply.The ANSI standard requires oxygen cylinders instorage be separated by a minimum of 20 feet or by a fire wall.Respondent does not dispute the presence ofuncapped, unsecured oxygen and acetylene cylinders four feet apart in the tunnel shaft,but defends on the ground that the standard is inapplicable because the cited cylinderswere not \”in storage,\” but were available for use.There is no evidence contradicting respondent’stestimony that it stores its cylinders on the surface, only bringing them into the tunnelwhen necessary for use.\u00a0 Section 1926.350(a), referring to cylinders in storage ortransport and ? 1926.350(j), governing cylinders in storage are, therefore, inapplicablehere.\u00a0 Sterns-Roger Incorporated, supra.\u00a0 Items 1a and 1c aredismissed.As is discussed above under citation 1, item 3,however, the Commission distinguishes ? 1926.350(a)(9), which applies by its terms tocylinders \”at all times.\”\u00a0 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 deemed appropriate and willbe assessed.Citation 1, 3bFacts At the time of the inspection, Mr. Jimenezapproached an employee he observed welding on the south side of the bottom of the shaft(Tr. 579).\u00a0 The employee indicated to Mr. Jimenez that he had not obtained a gas freecertificate, nor ascertained whether gas testing had been done in the area.\u00a0 He toldMr. Jimenez he had never been instructed not to begin any welding or burning in the tunneluntil he had determined the atmosphere was gas free (Tr. 580).Mr. Jimenez determined that there was a policyon site not to allow welding or cutting until it was determined that the atmosphere wasgas free (Tr. 581).\u00a0 New employees at Shank-Ohbayashi receive a copy of Safe WorkPractices Code for Los Angeles Rapid Transit Tunnels (Tr. 732, Ex. J-C).\u00a0 The codestates, \”[b]efore lighting cutting torches or starting to weld, be sure than (sic)the area is well ventilated and that the air has been tested by the gas technician\”(Ex. J- C, p. 6).\u00a0 Mr. Sammons, the gas tested, had tested the area in questionthough he had not issued a certificate (Tr. 580, 730).\u00a0 Mr. Jimenez believed thepre-testing policy was being enforced except in this instance (Tr. 582).Respondent introduced the signed statement ofthe employee involved stating that he had read through the code and completed an 8 hourtunnel safety course on August 20 and September 19, 1987 respectively (Ex. R-7).DiscussionSection 1926.21(b)(2) provides that:The employer shall instruct each employee in therecognition and avoidance of unsafe conditions and the regulations applicable to his workenvironment to control or eliminate any hazards or other exposure to illness or injury.Section 1926.21(b)(2) requires only that theemployer instruct its employees in safety hazards and regulations intended to eliminatesuch hazards.\u00a0 Compliance with the standard does not include the additional duty ofenforcing such regulations.\u00a0 Dravo Engineers and Constructors, 11 BNAOSHC 2010 (No. 81-748, 1984).\u00a0 The evidence clearly establishes that respondent has asafety rule prohibiting cutting and welding in the tunnel before gas testing is completedand that rule was communicated to the employee involved.Citation 1, Item 3 is dismissed. Citation 1, Item 4Mr. Jimenez found two bolts missing from the \”rotary limit switch\” of aMitsubishi boring machine which was classified for Class 1, Division 2 locations (Tr.583).\u00a0 The condition was in plain view (Tr. 584).The hazard associated with arcing or sparkingelements in gaseous locations has been adequately described above.The text of ? 1926.431, requiring wiringcomponents in hazardous locations be maintained in dust tight condition, is quoted aboveunder the discussion of Docket No. 88-2674, citation 1, item 5.Respondent does not dispute that bolts weremissing from the boring machine switch.\u00a0 It has been established that respondent’stunnels were hazardous Class 1, Division 2 locations.\u00a0 The Secretary has establishedthat respondent violated ? 1926.431.A penalty in the amount of $300.00 has beenproposed.The same factors are relevant here as werediscussed under Citation 1, Items 4 and 5, Docket No. 88-2674.\u00a0 Here only one switchwas involved.\u00a0 Taking all the factors into account the penalty is consideredappropriate and will be assessed.Citation 2, Item 1During the course of his inspection, Mr. Jimenezobserved an employee picking up a water barrel and drinking from the spigot (Tr. 584).\u00a0 Mr. Jimenez stated that drinking from the spigot could lead to the transmission ofcommunicable diseases and that the hazard could be eliminated by the provision of drinkingcups (Tr. 585).Mr. Sammons testified that the workers hold thespigot over their mouths to drink and do not actually come in contact with the spigot.\u00a0 Drinking cups are occasionally provided (Tr. 734).\u00a0 Upon communication of thehazard to the employee representative, cups were provided within the hour (Tr. 585).Discussion Section 1926. 51(a)(4) provides \”[t]hecommon drinking cup is prohibited.\”The Secretary failed to prove that drinking froma spigot results in the same hazards as a common cup and citation 2, item 1 will bedismissed.Citation 2, Item 3Facts Mr. Jimenez observed an employee adjusting thelaser on the Mitsubishi boring machine.\u00a0 The employee said he had been operating themachine for 13 years, but could not provide an operator’s certificate or proof ofqualification (Tr. 586).\u00a0 Mr. Jimenez stated that lasers are potentially hazardous(Tr. 586).Mr. Sammons stated that the employee involvedwas not operating the machine, but merely adjusting the survey instrument to which thelaser was attached.\u00a0 He admitted the only operation the laser required was to adjustthe pedestal, a directional device, to get the proper line and grade (Tr. 735-739)Discussion Section 1926.54 (b) requires that \”[p]roofof qualification of the laser equipment operator shall be available and in possession ofthe operator at all times.\”This Judge finds that for purposes of thestandard, adjustment of the laser’s directional equipment equals \”operation\” ofthe laser. The employee adjusting the survey instrument was operating the machine andshould have carried proof of qualification.Citation 2, Item 3 is, therefore, affirmed as anOther than serious violation without penalty.Citation 2, Item 4Facts When Mr. Jimenez arrived on the site, heobserved a 10 liter plastic container on the entrance platform of the office trailer (Tr.587).\u00a0 The plastic can did not have a pressure release or flash arrester.\u00a0 Mr.Jimenez felt that the plastic could also leak, presenting a fire hazard (Tr. 587).\u00a0 When Mr. Jimenez exited the trailer 45 minutes later, the gas container was stillthere (Tr. 588).Mr. Sammons testified that a rental agency, fromwhich respondent had rented equipment requiring gasoline, had left the plastic containerin front of the office door.\u00a0 Mr. Sammons removed the container as soon as he learnedof it (Tr. 735).Discussion Section 1926.152(a)(1) states:Only approved containers and portable tanksshall be used for storage and handling of flammable and combustible liquids. Approvedmetal safety cans shall be used for the handling and use of flammable liquids inquantities greater than one gallon . . . For quantities of one gallon or less, only theoriginal container or approved metal safety cans shall be used for storage, use, andhandling of flammable liquids.The evidence establishes that the plastic container of gas was placed outside respondent’strailer by a rental agency.\u00a0 The container remained there for only 45 minutes whilethe Compliance Officer was inside.\u00a0 There was no testimony that during that timeanyone went by or in or out of the trailer.The Secretary has not shown that the employerknew, or with the exercise of reasonable diligence, could have known of the hazardouscondition.\u00a0 Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928,1986).Citation 2, item 4 is, therefore, dismissed. Citation 2, Item 5Facts As excavation proceeded in respondent’s tunnel,muck cars were pulled out of the tunnel by a \”tuggerrope\”, a wire rope attachedto a winch.\u00a0 After they were emptied, the cars were gravity fed back down to the faceof the tunnel (Tr. 588-589).\u00a0 The tracks ran 60 or 70 feet to the face at an angle ofapproximately 5 to 7 (Tr. 589).Mr. Jimenez testified that in the case ofoperator error or a break in the tuggerline, the muck cars could come loose and crash intothe back of the boring machine (Tr. 590).\u00a0 Employees working on the top of the boringmachine could be jarred and fall to the tunnel floor (Tr. 590-591).\u00a0 Rail stops atthe end of the line would prevent such an occurrence (Tr. 589).DiscussionSection 1926.800(k) (14) states that\”[w]here necessary, bumper blocks, or the equivalent, shall be provided at all trackdead ends.\”The Secretary has established the need forproviding a backup method of stopping muck cars at the tunnel heading.\u00a0 Thetuggerline, being the element subject to failure, is not the equivalent of bumper blocks.Citation 2, item 5 is affirmed without penalty. Findings of Fact and Conclusions of LawAll findings of fact and conclusions of lawrelevant and necessary to a determination of the contested issues have been foundspecially and appear in the decision above.\u00a0 See Rule 52(a) of the FederalRules of Civil Procedure.\u00a0 Proposed Findings of Fact or Conclusions of Law that areinconsistent with this decision are denied.OrderDocket No. 88-26741. Serious citation 1, items 1a and 1b allegingviolation of ? 1926.300(b)(2) are DISMISSED.2. Serious citation 1, item 2 alleging violationof ? 1926.302(b)(1) is AFFIRMED and a penalty of $300.00 is ASSESSED.3. Serious citation 1, item 3 alleging violationof ? 1926.350(a)(9) is AFFIRMED and a penalty of $400.00 is ASSESSED.4. Serious citation 1, items 4a and 4b allegingviolation of ? 1926.407(b) are AFFIRMED and a penalty of $700.00 is ASSESSED.5. Serious citation 1, items 5a through 5ealleging violation of ? 1926.431 are AFFIRMED and a penalty of $700.00 is ASSESSED.6. Serious citation 1, item 6 alleging violationof ? 1926.800(a)(2) is AFFIRMED and a penalty of $400.00 is ASSESSED.7. Serious citation 1, items 7a and 7b allegingviolation of ? 1926.800(e)(1)(iv) and ? 5(a)(1) are DISMISSED.8. Serious citation 1, item 8 alleging violationof ? 1926.800(h)(2)(ii) is DISMISSED.9. Willful citation 2, items 1a and 1b allegingviolation of ? 1926.407(b) are AFFIRMED as \”serious\” violations and a penaltyof $700.00 is ASSESSED.10. Willful citation 2, item 2 allegingviolation of ? 1926.800(c)(2)(vii) is AFFIRMED and a penalty of $7,000.00 is ASSESSED.11. Willful citation 2, item 3 allegingviolation of ? 1926.800(k)(6) is AFFIRMED and a penalty of $4,000.00 is ASSESSED.12. Other than serious citation 3, items 1through 4 are AFFIRMED without penalty.Docket No 88-171113. Serious citation 1, item la and 1c allegingviolation of ? 1926.350(a)(1) and (j) are DISMISSED.14. Serious citation 1, item 1b allegingviolation of ? 1926.350(a)(9) is AFFIRMED and a penalty of $300.00 is ASSESSED.15. Serious citation 1, item 3b allegingviolation of ? 1926.21(b)(2) is DISMISSED.16. Serious citation 1, item 4 allegingviolation of ? 1926.431 is AFFIRMED and a penalty of $300.00 is ASSESSED.17. Other than serious citation 2, item 1alleging violation of ? 1926.51(a)(4) is DISMISSED.18. Other than serious citation 2, item 3alleging violation of ? 1926.54(b) is AFFIRMED without penalty.19. Other than serious citation 2, item 4alleging violation of ? 1926.152(a)(1) is DISMISSED.20. Other than serious citation 2, item 5alleging violation of ? 1926.800(k)(14) is AFFIRMED without penalty.Benjamin R. Loye Judge, OSHRCDated: October 18, 1989SECRETARY OF LABOR,Complainant,v.SHANK-OHBAYASHI, INC.,Respondent.OSHRC Docket No. 88-2674ORDERThis matter is before the Commission on aDirection for Review entered by former Chairman Linda L. Arey on November 21, 1989.\u00a0 The parties have now filled an Amended Stipulation and Settlement Agreement.Having reviewed the record, and based upon, therepresentatives appearing in the Amended Stipulation and Settlement Agreement, we concludethat this case raises no matters warranting further review by the Commission.\u00a0 Theterms of the Amended Stipulation and Settlement Agreement do not appear to be contrary tothe Occupational Safety and Health Act and are in compliance with the Commission’s Rulesof Procedure.\u00a0 final order of the Commission in this case.\u00a0 See 29 U.S.C. ??659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma\u00a0 MontoyaCommissionerDonald G. WisemanCommissionerDated:\u00a0 October 23, 1990ELIZABETH DOLE, SECRETARY OF LABORComplainant,v.SHANK-OHBAYASHIRespondent.NOTICE OF CORRECTION TO STIPULATION ANDSETTLEMENT AGREEMENT1.\u00a0 The parties in the above-captioned caseentered into a Stipulation and Settlement Agreement which was signed by Respondent onAugust 28, 1990 and then signed by the Secretary on September 4, 1990.\u00a0 The originaland four copies of the document was mailed to the Occupational Safety and Health ReviewCommission.2.\u00a0 Paragraph 10 of the Stipulation andSettlement Agreement reads as follows:10.\u00a0 This Stipulation and SettlementAgreement does not affect the judge’s disposition of the following citation items:\u00a0 Citation 1, Items 1(a) and 1(b); Citation 1, Items 4(a) and 4(b); Citation 1, Items5(a) through 5(e), Citation 1, Item 6; Citation 2, Items 2(a) and 2(b); Citation 3, Items1 through 4.3.\u00a0 The next to the last sentence inParagraph 10 should have read, and is hereby corrected to read:Citation 2, Items 1(a) and 1(b).4.\u00a0 Respondent has been notified of thiscorrection and consents thereto.ANTONY F. GILAttorney for theSecretary of Labor ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.SHANK-OHBAYASHIRespondent.OSHRC Docket No. 88-2674Stipulation and Settlement AgreementIn full settlement and disposition of the issuesin this proceeding, it is hereby stipulated and agreed by and between the Complainant,Secretary of Labor, and the Respondent, Shank-Ohbayashi, that:1.\u00a0 This case is before the Commission uponrespondent’s contest of Citation 2, Item 2(a), 2(b) and 2(c) which alleged willfulviolations of 29 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 CFR 1926.800(k)(6) along with aproposed penalty of $10,000.\u00a0 The citations were affirmed by the Commission’sadministrative law judge, and a penalty of $7,000 was assessed for the violation of1926.800(c)(2)(vii) and $4,000 for the violation of 29 CFR 1926.800(k)(6).\u00a0 (Decisionand Order, September 27, 1989.)\u00a0 Respondent was also cited in pertinent part, forviolations of 29 U.S.C. 654(a)(1) (Citation 1, Item 7(a) and 29 CFR 1926.800(h)(2)(ii)(Citation 1, Item 8).\u00a0 These citations items were vacated by the administrative lawjudge.\u00a0 (Decision and Order, September 27, 1989.)2.\u00a0 The Secretary hereby amends thecitation to characterize the violations of 29 CFR 1926.800(c)(2)(vii) and 29 CFR1926.800(k)(6) as violations of Section 17 of the Occupational Safety and Health Act, 29U.S.C. ?666.3.\u00a0 The Secretary hereby amends theproposed penalty to a combined total of $4,400 for items 2 and 3 of Citation No. 2.4.\u00a0 Respondent hereby withdraws its noticeof 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.\u00a0 The Secretary hereby amends theproposed penalty in Citation 1, Item 7(a) for violation of the general duty clause, 29U.S.C. ?654(a)(1) to $100.6.\u00a0 Respondent hereby withdraws its noticeof contest to Citation 1, Item 7(a) and to the notification of proposed penalty as amendedin paragraph 5.7.\u00a0 The Secretary hereby amends theproposed penalty in Citation 1, Item 8 for violation of 29 CFR 1926.800(h)(2)(ii) to $100.8.\u00a0 Respondent hereby withdraws its noticeof contest to Citation 1, Item 8 and to the notification of proposed penalty as amended inparagraph 7.9.\u00a0 Respondent agrees that theabove-mentioned violations have been abated.10.\u00a0 This Stipulation and SettlementAgreement does not affect the judge’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 andSettlement Agreement can be construed as an admission of willful conduct on the part ofrespondent for any violation for which a notice of contest has been withdrawn.11.\u00a0 Respondent agrees to submit to theOSHA Area Office $4,600 in full and complete payment of the penalty within 30 days of thisAgreement.12.\u00a0 Respondent certifies that a copy ofthis Stipulation and Settlement Agreement was posted at the workplace on the 29th day ofAugust 1990, in accordance with Rules 7 and 100 of the Commission’s Rules of Procedure.\u00a0 There are no authorized representatives of affected employees.13.\u00a0 Complainant and respondent will beartheir own litigation costs and expenses.Antony F. GilCounsel for theSecretary of LaborKate RaabeAttorney for Respondent(Shank-Ohbayashi)FOOTNOTES: [[1]] Respondent considered hydrogen sulfide tobe a toxic gas rather than an explosive gas since the lower explosive limit of H2S, 43,000parts per million, would not be reached until concentrations of the gas far exceeded thefatal toxic limit of 1,000 parts per million (Tr. 706).[[2]] Mr. Paul Taylor, an Electrical Engineerwith Shank-Ohbayashi, testified that the contract allowed the RTD and their constructionmanager, PDCD to approve non-certified equipment where a certified version was notcommercially available.\u00a0 There was no evidence that the equipment named here had beenso approved.[[3]] Subsection (b) is followed by anexplanatory note: NOTE:\u00a0 This classification usually includeslocations where volatile flammable liquids or flammable gases or vapors are used, butwhich would become hazardous only in case of an accident or of some unusual operatingcondition.\u00a0 The quantity of flammable material that might escape in case of accident,the adequacy of ventilating equipment, the total area involved, and the record of theindustry or business with respect to explosions or fires are all factors that meritconsideration in determining the classification and extent of each location.[[4]] Respondent’s argument that it felt it wasauthorized to make its own safety determination, based on footnotes in the Department ofLabor publication (Ex. R-9) directing the reader to the manufacturer for \”percylinder\” information, is patently unbelievable.”