“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1803 TUNNEL ELECTRIC CONSTRUCTION CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 11, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thiscase is before the Commission for review under 29 U.S.C. ? 661(i), section12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678(?the Act?). At issue is a citation alleging that the Respondent, TunnelElectric Construction Company, committed a serious violation of section 5(a)(2)of the Act by failing to comply with the safety standards found at 29 C.F.R. ??1926.800(l)(1) and 1926.402(a)(8).[1]??????????? AdministrativeLaw Judge Benjamin G. Usher affirmed the citation and assessed a penalty of$500. Chairman Timothy F. Cleary subsequently directed review of the judge?sdecision sua sponte on the following issues:??????????? (1)Whether the standard at 29 C.F.R. ? 1926.402(a)(8) is unconstitutionally voidfor vagueness;??????????? (2)Whether the Administrative Law Judge erred in concluding that the electricalcables to which respondent?s employees were exposed presented the hazardscontemplated by the standard at 29 C.F.R. ? 1926.402(a)(8); and??????????? (3)Whether the Administrative Law Judge erred in concluding that respondent?s lackof exclusive control over the work that gave rise to the charged violation isnot a valid defense to the charge.??????????? Respondentfiled a brief in response to the direction for review. The Secretary of Labor(?the Secretary?) submitted a statement-of-position letter in lieu of a brief,urging an affirmance of the judge?s decision and expressing his reliance uponthe record, the Secretary?s post-hearing brief, and the judge?s decision andorder.I??????????? Thecitation at issue resulted from an inspection of a subway construction projectin Washington, D.C. where Respondent, an electrical subcontractor, wasresponsible for providing temporary light and power to the prime contractor onthe site, Morrison-Knudsen and Associates (?Morrison-Knudsen?).Morrison-Knudsen supplied all materials for Respondent including the necessaryelectrical cables. It also gave Respondent?s on-site foreman, Hughes, dailyinstruction regarding work assignments for the electricians. At the time of theinspection, Morrison-Knudsen was concluding its installation of concrete on thewalls of the inbound tunnel. This process had already been completed in theadjacent outbound tunnel. The concrete-pouring operation involved heavyequipment?mobile scaffolds for installing reinforcing bar and finishing cementand a radius car for placing concrete?moving on steel track in the tunnel.Morrison-Knudsen poured about 200 feet of concrete per day. In addition toHughes, Respondent had two employees assisting the concrete-pouring operationduring the day shift and one employee during each of the ?swing? and?graveyard? shifts. Their duties were to move the cables and to keep thelights, motors, and fans running.??????????? Duringthe inspection an Occupational Safety and Health Administration complianceofficer, Clyde Farrar, observed some 3000 feet of energized 480 volt cablelying in mud, muck, and debris and under a flow of water on the ?invert?(floor) of the inbound tunnel. The cable was used to power the tunnel?stemporary electric lighting. Sections of the cable were kinked, broken atconnection points, or had protective armor unraveled. In some places, the 480volt cable lay directly against the tracks and in others, adjacent to them. The480 volt cable consisted of three power conductors and three smaller groundingconductors wrapped in successive layers of cable tape, interlocking metalcladding (referred to as ?armor?), and tubing of polyvinyl chloride one-sixteenthinch thick. Farrar also observed an energized 7200 volt cable that was used topower the radius car in the inbound tunnel lying on the invert of the outboundtunnel near a cross adit, a small passageway connecting the inbound andoutbound tunnels. The cable lay partially encased in hardened concrete. The7200 volt cable consisted of three insulated conductors, each with a braidedelectrostatic shield, and three grounding conductors, one of which wasinsulated. All of the conductors were pressure-extruded to achieve a roundoutside surface and were wrapped in a neoprene jacket that ranged fromone-quarter to three-eighths of an inch thick. A locomotive, some ?muck cars,?and a car used to transport employees at shift changes were operating on trackin the outbound tunnel.??????????? InFarrar?s view the hazard associated with the condition of the two cables wasthat physical damage to the cable could cause a fire or explosion andemployees, depending upon their proximity to the cables, could inhale theresultant fumes and could suffer burns or shocks causing serious physicalinjury or death. In fact, Farrar found, as Hughes already knew, that bothcables had been damages on a number of occasions. The damage to the cables hadbeen caused by water seeping into a junction box, air and water pipes beingdropped on the invert, concrete forms falling while being transported withinthe tunnel, and derailments of ?muck cars?. During the course of theinspection, electricians assigned to extricate the 480 volt cable from some hardenedconcrete accidentally struck the cable with a pick-axe, causing the circuitbreaker to blow out, the lights to go out, and sparks to fly from the cable.There were no reported injuries attendant to these instances of cable damage.??????????? The480 volt cable had initially been suspended from ?S? hooks along the wall ofthe tunnel, but was gradually removed at the direction of Morrison-Knudsen?sElectrical Superintendent, Shanks, and placed on the invert, out of the way ofthe progress of the concrete-pouring operation.[2] Before the cable waslowered, Hughes complained to his immediate supervisor at Tunnel Electric,LaPrise, regarding the shock hazard associated with dropping the cable in themuck and water along the floor of the tunnel. LaPrise, an Area Manager whoseprincipal duties at the worksite appear to have been collecting time sheets anddelivering checks, advised Hughes to proceed as instructed by Morrison-Knudsen.Hughes warned him men to stay away from the cable. However, that was notpracticable if they were to perform their job assignments in the tunnels.Respondent was supposed to re-hang the cable on the wall behind the advance ofthe concrete-pouring operation, but that soon was neglected because the cablebecame variously embedded in concrete, entangled in air and water lines, orsubmerged under mud. In order to re-hang the cable, it would have beennecessary to turn off the power while the electricians took steps to free thecable. Shanks, however, instructed Hughes not to cut off the lights, for thiswould have retarded the work in the tunnel.[3] Eventually, by the time ofthe inspection, some 3000 feet of 480 volt cable was down on the inbound tunneland 70 feet of 7200 volt cable was down in the outbound tunnel. More than 500feet was lodged in concrete.II.??????????? Thestandard at section 1926.402(a)(8) requires that electric cables be elevated orcovered. See note 1 supra. It is undisputed that the cables were not elevated.Therefore, the controversy has centered, in part, on the question of whether thecables were ?covered? within the meaning of the standard. On review, Respondentargues at length that the standard is vague because of the absence in thestandards of any definition for the ambiguous term ?covered?; that the citedcables were ?covered? according to the industry practice; and that, in theabsence of a specific definition, it was reasonable for Respondent to concludethat these cables were ?covered.? These are essentially the same contentionsthat were asserted below and rejected by the judge. Inasmuch as he correctlydecided the issue before him, we adopt the judge?s conclusions. See AdrianConstruction Co., 79 OSAHRC 16\/A2, 7 BNA CCH 1172, 1979 CCH OSHD ? 23,389(No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216\/B10, 6 BNA OSHC 1240, 1978 CCH OSHD?22,737 (No. 14281, 1977). Additionally, we note in particular that resort to a?reasonable person? test to clarify the term ?covered? is unwarranted.Respondent?s focus upon the single word ?covered? ignores the clear context ofits use and deprives the standard of its salutary force. The cited standardplainly commands that a cable be either elevated or covered to the extentnecessary for protection from damage which would cause a hazard. Thus, anemployer who chooses to guard against cable damage by means of a protectivecover must ascertain the types of damaging agents present in the vicinity ofthe cable and must adopt a covering sufficiently durable to withstand contractwith those agents. In our view, this standard is drafted with sufficient precisiongiven the variety of cable coverings that could be required under myriadworking conditions. See Austin Commercial v. OSHRC, 610 F.2d 200 (5thCir. 1979); Diebold Inc. v. OSHRC, 585 F.2d 1327 (6th Cir. 1978). Moreover, aswe have held previously, a standard is not vague simply because its applicationrequires the exercise of judgement. Dravo Corp., 80 OSAHRC ___, 7 BNAOSHC 2095, 1980 CCH OSHD ?24,158 (No. 16317, 1980), appeal docketed, No.80?1267 (3rd Cir., Feb. 27, 1980). Respondent should have recognized that thecables were not adequately covered because locomotives, mobile scaffolds, ?muchcars? and other heavy equipment operating in the confined tunnel work area wereobviously capable of damaging the cables?and did. In addition, heavy materials suchas forms and pipes could and did damage the cables.III.??????????? Respondentpresents several arguments on the issue of whether the Secretary hasestablished the existence of the hazard contemplated by the cited standard. Inessence, Respondent submits that the Secretary?s assertions regarding thepotential hazard are purely speculative. Initially, Respondent contends that,because the cables were equipped with ground fault interrupter systems whichwould cut off the power in the event of cable damage, its employees wereprotected from injury. Respondent also suggests that heavy equipment could nothave been operating in the inbound tunnel because the track had been partiallyremoved or obstructed. We conclude that the judge properly rejected theseclaims, holding that Respondent has not carried its burden of proving that theground fault interrupter system is ?fail safe? insofar as insuring employees?health and safety; and that the presence of damaging agents such aslocomotives, ?muck cars,? mobile scaffolds, concrete forms, air-hammers andpick-axes in both tunnels is supported by the record. We therefore adopt hisdecision on these issues. Adrian Construction Co., supra; Gulf Oil Co.,supra.??????????? Respondentalso asserts that there was no hazard under the circumstances presented by thiscase because no injuries resulted from any of the reported incidents of cabledamage. Moreover, Respondent points out that its employees all were experiencedelectricians who were fully aware of the existence, location, and purpose ofthe cables. Finally, Respondent discounts the incident involving thepick-axe-wielding electrician as an employee ?frolic?.??????????? TheCommission has held that, when a standard prescribes specific means ofenhancing employee safety, a hazard is presumed to exist if the terms of thestandard are violated. Clifford B. Hannay & Son, Inc., 78 OSAHRC12\/A2, 6 BNA OSHC 1335, 1978 CCH OSHD ?22,525 (No. 15983, 1978). Again, it isundisputed that neither the 480 volt cable nor the 7200 volt cable waselevated. We are also persuaded that neither was ?covered? within the meaningof the standard. Consequently, since the cable was not elevated and notprovided with an adequate cover, the hazard was established. Additionally,there is ample testimony to establish the substantial probability that death orserious physical harm could result if an injury-causing accident occurred. Theprobability of an accident?s actually taking place is irrelevant. DravoCorp., supra, 7 BNA OSHC at 2101, 1980 CCH OSHD at p. 29,370. Moreover, itis well settled that employers are not relieved of responsibility forcompliance with a standard because of the absence of injuries. Winn-DixieStores, Inc., 78 OSAHRC 35\/B11, 6 BNA OSHC 1598, 1978 CCH OSHD ?22,712 (No.76?1733, 1978).??????????? Asfor Respondent?s assertions concerning the experience of its electricians, evenhighly experienced employees are entitled to the protection the Act seeks toprovide. As we stated in Butler Lime and Cement Co., 79 OSAHRC 103\/D12,7 BNA OSHC 1973, 1975, 1979 CCH OSHD ?24,091 at p. 29,269 (No. 855, 1979) appealdocketed, No. 80?1121 (7th Cir., Jan. 31, 1980), ?an employer may notignore readily available opportunities to take simple precautionary measuresthat will protect an employee from exposure to life threatening hazards simplybecause the employee is experienced.? Therefore, Respondent?s failure to complywith the cited standard cannot be excused on the basis of the experience of itsemployees.??????????? Finally,by referring to the ?frolicking? electrician, Respondent has raised theaffirmative defense of unpreventable employee misconduct. The Commission hasstated that, in order to establish this defense, an employer must show that theaction of its employee was a departure from a uniformly and effectivelycommunicated and enforced work rule. H.B. Zachry Co., 80 OSAHRC ___, 7BNA OSHC 2202, 1980 CCH OSHD ? 24,196 (No. 76?1393, 1980), appeal docketed,No. 80?1357 (5th Cir., Mar. 28, 1980). The mere formulation of work rules,however, is not sufficient to avoid responsibility for a violation. But forHughes? general caution to the electricians to stay away from the very cablesthat the employees were charged with maintaining, there is nothing in therecord to support this affirmative defense. In any event, the pick-axe incidentis neither the sole nor the determinative indicia of a hazard in this case. Thegravamen of this violation is employee exposure to energized cables which wereinadequately protected against the obvious threat of damage posed by the heavyequipment in the work area. The fact that, excluding the pick-axe incident, thetestimony revealed at least five separate instances of damage to the cablesonly confirms the Secretary?s assertions of a hazard in the tunnel.IV.??????????? Respondentalso raises a number of contentions to support the defense that it neithercreated nor controlled the hazard at this multi-employer worksite and,therefore, cannot be held responsible. Respondent relies upon the Commissiondecisions in Grossman Steel and Aluminum Corporation, 76 OSAHRC 54\/D9, 4BNA OSHC 1185, 1975?76 CCH OSHD ?20,691 (No. 12775, 1976) and Anning-JohnsonCompany, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975?76 CCH OSHD ?20, 690 (No.4409, 1976). It argues that as a subcontractor it only provided labor whileMorrison-Knudsen provided materials including the cable and that the highestranking employee on the site was a mere foreman who was not part of TunnelElectric?s management. Respondent maintains that the foreman?s immediatesupervisor at Tunnel Electric, LaPrise, was present at the worksite onlyperiodically to handle administrative matters. In general, no work wasperformed by Respondent?s personnel except at Morrison-Knudsen?s instruction.In particular, Morrison-Knudsen directed Respondent to drop the cables to theinvert. For its part, Respondent told its men to avoid the cables and to repairthem when necessary. Finally Respondent states that Morrison-Knudsen hadsufficient control of the site to require additional protective measures.??????????? Essentially,these contentions were made below and were properly rejected by the judge.Therefore, we adopt his conclusions. Adrian Construction Co., supra; GulfOil Co., supra. Although acting under daily instruction fromMorrison-Knudsen, Respondent retained responsibility for maintaining the cables.We add that Respondent?s foreman had knowledge of the hazard, knowinglyparticipated in creating the hazard by dropping the 480 volt cable[4] at Morrison-Knudsen?sdirection, and had knowledge that employees were exposed to the hazard.Moreover, the record reflects only feeble Tunnel Electric efforts to abate thecondition. Foreman Hughes protested to his supervisor, LaPrise. LaPrise advisedhim, essentially, to do what he was told. Later, Hughes told his men to avoidthe cables. Respondent?s own president testified that both Hughes and LaPrisehad authority to order Tunnel Electric employees out of the tunnel even overthe objection or contrary order of Morrison-Knudsen. Such a posture ofpassivity in the face of known and serious hazards cannot be excused especiallywhere, as here, the employer possesses the technical expertise and personnel toabate the hazards. Howard Electric Co., 78 OSAHRC 37\/B9, 6 BNA OSHC1518, 1978 CCH OSHD ?22,672 (No. 15339, 1978).V.??????????? Inlieu of the proposed penalty of $800.00, the judge assessed $500.00. The judgenoted that the size of Respondent?s business is small-to-medium and that itshistory of compliance with the Act is, according to the Secretary?s records,comparatively good. In addition, Respondent?s attitude toward the health andsafety of its employees as reflected in the record is not devoid of good faith.We agree with the judge that a penalty of $500.00 is consistent with theobjectives of section 17(j) of the Act.?Accordingly, we affirm the citation and assess apenalty of $500.00.?SO ORDERED?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 11, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1803 TUNNEL ELECTRIC CONSTRUCTION CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 October 18, 1977DECISION AND ORDERAppearances:Kenneth A. Hellman, Esq. Office of theSolicitor U. S. Department of Labor Washington, D.C. for the Complainant\u00a0Harold Gordon, Esq. Gordon and HealyAttorneys at Law Washington, D.C. for the Respondent\u00a0USHER, Judge:??????????? Thisis a proceeding initiated by the Secretary of Labor, United States Departmentof Labor, pursuant to Section 10(c) of the Occupational Safety and Health Actof 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act) seekingaffirmance by the Commission of a citation which charges a ?serious? violationof Section 5(a)(2) of the Act and seeking further to have the Commission assessan $800 penalty for this alleged violation.??????????? Thecitation was issued by Complainant?s agent, the Area Director of theOccupational Safety and Health Administration (hereinafter ?OSHA?) on April 1,1976, the result of an inspection by an OSHA Compliance Safety and HealthOfficer (hereinafter ?the OSHO?) of a work site in Washington, D.C. on severaldays between February 23 and March 2, 1976. Respondent timely contested thecitation, pursuant to Section 10(c) of the Act, and a Complaint and Answer werefiled in accordance with the Commission?s Rules of Procedure. The issues weretried before the undersigned at Washington, D.C. on October 27 28, November 34, 1976, and January 5 6, 1977.??????????? JurisdictionalFacts??????????? Respondentis an Illinois corporation (Tr. 5) which maintains offices at McCook, Illinois(Tr. 8), employs employees (Tr. 11, et seq.) and engages in a businessaffecting interstate commerce (Tr. 14, 15).??????????? Theissues??????????? Thepleadings, the evidence adduced by the parties and the arguments of counselhave served to raise the following basic issues.??????????? 1.Was Complainant?s Complaint following basic issues.??????????? 2.Can Complainant amend the citation in his Complaint???????????? 3. Isthe occupational safety and health standard promulgated by Complainant andcodified at 29 CFR 1926.402(a)(8) (hereinafter ?the standard?)?unconstitutionally void for vagueness????????????? 4.Did Respondent violate Section 5(a)(2) of the Act by failing to comply with theprovisions of the cited standard???????????? 5.Did Respondent?s actions (or its failure to act) constitute a ?hazard? to itsemployees???????????? 6.Did Respondent present a valid defense to the charged violation because of ?nothaving exclusive control of the work or the premises.????????????? 7. IfRespondent violated the provisions of the Act, was that violation ?serious? or?other than serious? (hereinafter ?the CSHO?) of the Act???????????? 8. IfRespondent violated the provisions of the Act, what penalty, if any, isappropriate?Timeliness of Complaint??????????? Accordingto the record, Complainant did not file his Complaint in strict accordance withthe Commission?s Rules of Procedure (Rule 33 (a)(1)). His Motion for Extensionof Time was granted by Chief Judge Charles K. Chaplin. Respondent?s Motion forReconsideration of that ruling and its Motion to Strike were considered by thefull Commission as an interlocutory matter and were denied prior to theassignment of the matter to me. Respondent again made the motion before me, andit was denied. The question is treated briefly here only because it is againraised in Respondent?s post-trial brief. It should suffice to say thatRespondent has shown no legal prejudice occasioned by Judge Chaplin?s ruling orby that of the Commission.Amendment of Complaint??????????? Inthe citation Complainant charged a violation of the safety and health standardcodified at 29 CFR 1926.400(a), and the violative conduct is described:??????????? Electricalequipment was not installed in a neat and workmanlike manner in accordance withArticle 110 12 of the National Electrical Code NFPA 70 1971; ANSI CI 1971 (Revof CI 1968) in that:??????????? a)7200 volt energized Mine Power Feeder Cable was allowed on floor or invert oftunnel and not supported 8 feet above to prevent physical damage.??????????? b) 80volt interloc Armor Cable used as lighting service was allowed on floor orinvert of tunnel and not supported 8 feet above to prevent physical damage.??????????? Inhis Complaint Complainant amended the charge to assert a violation of the standardscodified at 29 CFR 1926.800(1)(i) and 29 CFR 1926.402(a)(8) and described theviolation as follows:. . . electrical cable passing throughwork areas was not covered or elevated to protect it from damage which wouldcreate a hazard to employees in that:?(1) the 7200 volt energized Mine PowerFeeder Cable in the outbound tunnel at the cross adit of Shaft 4 was on thefloor or invert of the tunnel.?(2) the 480 volt Interloc Armor Cable usedfor lighting service was on the floor or invert of the inbound tunnel betweenshafts 2 (134+80) and 4 (164+50) for approximately 3000 linear feet.???????????? Heasserted that the amendment served ?to allege both the factual and legalcharges with greater specificity . . ..???????????? Respondent?sobjection to Complainant?s right to amend the citation in his Complaint wasargued at a pretrial hearing on October 27, 1976, and Complainant?s Motion toAmend was granted.[5]It was made clear at that hearing that the charged violation was a ?failure tocomply with the provisions of 29 CFR 1926.402(a)(8), as made applicable by 29CFR 1926.800(1)(i).???????????? Thestandard set forth at 29 CFR 1926.800(1)(i) is contained in Subpart ?S? of theOccupational Safety and Health Standards and Interpretations, is entitled?Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air,? and issubtitled ?Tunnels and Shafts.? It provides that[e]lectrical equipment shall conform tothe requirements of Subpart K of this part.\u00a0Subpart ?K? of the standards and interpretationscontains 29 CFR 1926.402(a)(8) which provides:Cable passing through work areas shall becovered or elevated to protect if from damage which would create a hazard toemployees.?Validity of Standard[6]??????????? Respondenthas argued at length and has adduced plethoric testimony and physical evidenceto establish that ?[t]he Secretary?s regulation [1926.402(a)(8)] isunconstitutionally vague in two respects . . . the regulation fails to definethe word ?covered? [and] the Secretary then attempts to read a stricter anddifferent standard into the regulation by claiming it means ?adequatelycovered.? Counsel for Respondent asserts ?the standard violates due process;Fifth Amendment, United States Constitution? because, among other things, ?menof common intelligence must necessarily guess at its meaning and differ as toits application,? citing Connally v. General Construction Company, 269U.S. 385; International Harvester Company v. Kentucky, 234 U.S. 216; Collinsv. Kentucky, 234 U.S. 634; Boyce Motor Lines, Inc. v. United States,342 U.S. 337; Ryder Truck Lines, Inc. v. Secretary of Labor, 497 F.2d230; Secretary of Labor v. California Stevadoring Company, CCH OSHDpara. 15,097; and Diamond Roofing Co., Inc. v. OSHRC et al, 528 F.2d645.??????????? *3Respondent?s position that the enforcement of a vaguely worded standard may beviolative of due process is well taken as several of the cited cases instructus. However, here the vagueness, or perceived vagueness, is self-imposed byRespondent who insists that the outer protective layers of the cable which?cover,? ?insulate,? ?shelter,? and ?guard? the inner conductors of the currentconstitute the covering required by the terms of the safety standard.??????????? Significantly,all ?men of common intelligence? need not ?guess at [the] meaning [of thestandard].? The CSHO, Clyde W. Farrar, a man of extensive experience in thefield of construction safety, had no difficulty understanding what the standardrequires.[7] Respondent?s foreman,Robert Hughes, a recognized that the cable needed to be ?covered? in a mannerdifferent from that which existed. Complainant?s expert witness, Ralph Lee, athoroughly competent electrical engineer, understood the requirements of the standard.??????????? Complainant?sargument is persuasive. As he points out with considerable logic, an employeris put on notice by the standard?s provisions that he must either elevate orcover a cable ?if conditions in the workplace . . . are such that the cable maybe damaged and if that damage will create a hazard to employees . . ..? Thus,he contends that the standard ?delineates its reach in words of commonunderstanding,? citing Secretary of Labor v. OSHRC and Santa Fe TrailTransport Company, 505 F.2d 869; Cameron v. Johnson, 390 U.S. 611. ??????????? Complainant?scounsel further cautions us that this standard, having been promulgatedpursuant to remedial legislation, must be read ?in light of the conduct towhich it is applied? (Secretary of Labor v. OSHRC and Santa Fe TrailTransport Company, supra; Ryder Truck Lines, Inc. v. Secretary of Labor,supra; McLean Trucking Company v. OSHRC and Secretary of Labor, 503 F.2d8.) The obvious purpose of the standards promulgated pursuant to the Act is toassure safe and healthful working conditions for employees. The reason forrequiring that a cable be covered or elevated is ?to protect it from damagewhich would create a hazard to employees? and to thus assure safe and healthfulworking conditions for those employees. By its very terms, therefore, thestandard requires that a cable be either elevated or covered to the extentnecessary for protection from damage which would create a hazard. Complainant?sargument that the standard requires ?adequate? covering to accomplish the statedpurpose is entirely reasonable.??????????? Inlight of these considerations, I find that the standard promulgated pursuant toSection 6 of the Act and codified at 29 CFR 1926.402(a)(8) is not void becauseof vagueness.[8]??????????? Discussionand Evaluation of the Evidence of the Alleged Violation??????????? Thetestimony of the CSHO, the opinion expressed by Complainant?s expert witness,and the testimony of Respondent?s employees establishes the facts which areessential to the findings set forth hereinafter.??????????? ?On or about February 24, 1976, Respondent wasengaged as the ?temporary electrical? subcontractor on the Metro constructionproject known as project A6a. Morrison-Knudsen and Associates was engaged thereas the general contractor.??????????? Thework site, located in Northwest Washington, was accessed at 2400 Rock CreekParkway. Two parallel tunnels were being excavated and the interiors of thetunnels were being finished with concrete at the time of the OSHA inspection.The tunnels were connected at various points by crossovers or ?cross adits,?and access to the tunnels was gained by shafts.??????????? TheCSHO described a 480-volt cable which he observed laying on the ground or floorof the inbound tunnel for approximately 3000 feet between shafts numbered 2 and4. The cable was being used to electrically power lights and sundry equipmentin the tunnel. He described the cable as kinked, broken and damaged, andcharacterized the ?invert?[9] as being composed ofwater, mud and muck. Respondent?s witness stated that the cable had laid on thefloor of the tunnel for some six weeks prior to the OSHA inspection.Previously, it had been hung on the wall on ?S? hooks, but was taken down andlaid on the floor by Respondent?s employees at the foreman?s direction. Theforeman had been told to do so by his superior who acted on instructions fromthe general contractor?s supervisory personnel. Respondent?s foreman testifiedthat the cable was damaged; the protective cover or ?neoprene jacket? was cutand ?the conductors exposed.? It ?was in that condition . . . [for] severalweeks.???????????? Theforeman described what he perceived to be the hazard presented by the damagedcable. He instructed his men ?to hang a red raincoat over [the exposedconductors]? and further advised them ?to stay away from it,? but it was notpossible for them to ?stay away from it and do their jobs.? The witnesstestified that Respondent?s employees were required to work near the cable inquestion and that the cable was then energized.??????????? Thetestimony of the foreman establishes that he advised Respondent?s projectsuperintendent about the hazard involved in placing the cable on the floor ofthe tunnel, but the superintendent, Claude Laprise, replied that he had beeninstructed to do so by Morrison-Knudsen supervisory personnel.??????????? Accordingto the testimony, the cable ?blew up,? exploded,? and ?there were bits ofcopper spread over the cable.? ?It tripped the 150-amp circuit? on at least oneoccasion. Respondent?s employees were working in the tunnel at the time.??????????? Whilethe record leaves some doubt concerning how the break (or breaks) in the cableoccurred, the evidence supports the conclusion that damaging agents werepresent. For example, heavy equipment was propelled within the tunnel on steelwheels operating upon steel tracks, and the cable was strewn perilously closeto the tracks.??????????? Thetestimony of Claude Laprise, Respondent?s foreman, was limited, but it didserve to deny any knowledge on his part concerning the fact that the cable inquestion ?blew up? or ?exploded.? Significantly, he was not questioned byeither party about his alleged instructions to drop the cable from the ?S?hooks and lay it on the wet ground prior to the commencement of the concretingoperation.??????????? Oneof Respondent?s employees, Walter Alexander, an electrician, testified abouthaving had to repair breaks in the cable that was found laying on the floor ofthe tunnel. This occurred on two different occasions prior to the OSHAinspection. The cable had been ?smashed [as though] it had been struck bysomething . . . [t]he outer jackets were torn open, in one instance theconductors were burnt.???????????? TheCSHO also observed what he described as a ?7200-volt power cable? laying on thefloor or invert of the outbound tunnel at the cross adit of shaft 4. It, too,was positioned near the steel track upon which the ?train cars? were propelled,and employees were observed working in close proximity to it.??????????? Respondenthas not contended that the cables in question were elevated. It has notseriously contested the assertion that they were not covered by any extraneoussubstance, but rather has obliquely asserted that the electric-currentconductors were surrounded by a neoprene outer jacket (1\/4 to 3\/8 inch thick)and that the neoprene (or polyvinyl chloride) jacket constituted a ?cover? asrequired by the standard.??????????? Assumingarguendo that the standard allows for such an interpretation, the question nextpresented is whether or not such a covering protected the cable from damagewhich would create a hazard. The extensive and credible testimony ofComplainant?s expert witness, Ralph Lee, when summarized, establishes the factthat the ?cloth tape,? ?interlocking metal cladding [or] reinforcing ? and the?polyvinyl chloride tubing? which surrounded the energy conducting ?cablebundle? did not constitute a cover sufficient to protect the cable from damagewhich would create a hazard. Having heard the testimony of the CSHO andRespondent?s employees concerning the conditions which existed in the tunnel atthe time of the OSHA inspection, Mr. Lee opined ?that the cable is unsuited forthat use, and the likelihood of failure is unusually high.? Mr. Lee describedconditions which could be expected to create a ?mechanical injury to the cable?and thus present a ?hazard,? viz, ?the ignition of an arc similar to, but muchmore intense than, an electrical arc of an arc welding apparatus . . . withmolten copper or steel droplets being propelled out [from the cable] todistances of five to ten feet.? The witness described in some detail thepersonal injuries he has witnessed as the result of exposure to the describedhazard.??????????? Respondentadduced the testimony of Thomas Weichel, who was duly qualified as an expertwitness. Mr. Weichel?s significant contribution to the controversy was hisability to say, without qualification, that the cables in question were?covered? as that term is used in the National Electrical Code and as definedby the Insulated Power Cable Engineers Association (IPCEA) of which he is amember. He was not, however, able to enlighten us as to the meaning of?covered? as that term is used in the OSH standard codified at 29 CFR1926.402(a)(8).[10]??????????? Theevidence, therefore, clearly establishes that the two cables which were laid byRespondent?s employees on the floor of the tunnel at the above-described worksite were not elevated or ?covered? to protect them from damage which wouldcause a hazard.??????????? Respondent?sActions Constituted a Hazard??????????? Ashas been stated hereinabove, the CSHO, Respondent?s employees and Mr. Lee,whose expert testimony was adduced by Complainant, considered the unguarded,?uncovered? cables as hazardous. Mr. Weichel did not.[11]??????????? Therecord contains a plethora of opinions and counter opinions regarding theeffectiveness of a ?ground fault circuit interrupter system? allegedly in useat the work site while the cables laid on the floor of the tunnel. Respondentasserts that this system eliminated any possible hazard resulting from aphysical insult to the cables. The system, described in great detail by MessersWeichel and Lee, may or may not have been operative at the time of the OSHAinspection. In either event, Respondent has not carried its burden of provingthat the system is ?fail safe? insofar as ensuring employees? health andsafety. The device is seemingly intended to protect machinery and equipmentrather than persons.??????????? Lackof Control by Respondent??????????? Respondent?sassertion that it was ?not liable for violating the . . . regulations [because]it did not have exclusive control of the work or premises? (citing Secretaryof Labor v. OSHRC and Underhill Construction Corporation, 513 F.2d 1032) isnot well founded. Underhill simply stands for the proposition: ?. . . where . . . an employer is incontrol of an area, and responsible for its maintenance, . . . to prove aviolation of OSHA, the Secretary of Labor need only show that a hazard has beencommitted and that the area of the hazard was accessible to the employees ofthe cited employer or those of other employees engaged in a commonundertaking.? (Ibid at p. 1038).\u00a0??????????? Thetestimony of Respondent?s employees established the fact that Respondent wasthe subcontractor at the work site in question ?doing electrical work for the excavationof the tunnel.? Among its responsibilities was maintenance of the cables inquestion, and its foreman ?instructed [his] men to lay it on the floor;? ?. . .it was on the wall . . . [m]y men took it off the wall.? Respondent created thecondition and its employees not only had access to the hazard presented by thecables, but, according to the evidence, they (perhaps together with theemployees of the general contractor and other subcontractors) were actuallyexposed to the hazard. Under these circumstances, the lack-of-control defense(as more clearly enunciated in Secretary of Labor v. Anning-Johnson Co.,OSHRC Docket Nos. 3694 and 4409, CCH OSHD para. 20,690; and Secretary ofLabor v. Grossman Steel and Aluminum Corporation, OSHRC Docket No. 12775,CCH OSHD para. 20,691) is not available to Respondent.??????????? Seriousnessof the Violation??????????? Thetestimony of the CSHO, as well as that of Respondent?s employees and the expertwitness, Mr. Lee, fully establishes Complainant?s assertion that there was a substantialprobability that death or serious physical harm could result from the violativecondition. The probability of a fatal electrocution was not proven, but theserious results of possible physical damage to the cable were detailed,especially in the testimony of Mr. Lee.??????????? ThePenalty??????????? The$800 penalty proposed by Complainant is not totally reasonable. The criteriaset forth in Section 17 of the Act were considered by Complainant?s agents atthe time they computed the proposed penalty. However, additional credits mightbe given because of the size of Respondent?s business and its history ofprevious violations. The business is relatively small to medium, and itshistory of compliance with the Act?s provisions is, so far as the recordreflects, comparatively good. A $500 penalty would more nearly conform with themandate of Section 17 of the Act.FINDINGS OF FACT??????????? Apreponderance of the probative evidence of record, taken in its entirety,compels the following findings of fact:??????????? 1.Respondent, Tunnel Electric Construction Company, is an Illinois corporationwhich engages in electrical construction in several states.??????????? 2. Onor about February 24, 1976, Respondent maintained a place of business or worksite at the Metro A6a project in Northwest Washington, D.C., where it performedas a temporary-electrical subcontractor for Morrison-Knudsen Associations andemployed eight or more employees who handled goods and materials that had movedin interstate commerce.??????????? 3. Onor about February 24, 1976, two or more of Respondent?s employees were exposedto an occupational safety hazard which was occasioned by the presence ofenergized electrical cables laying upon the floor of a tunnel at theaforementioned work site.??????????? 4.The electrical cables referred to in Finding of Fact No. 3 were not covered orelevated to protect them from physical damage which would create a hazardouscondition from which serious physical harm or death could, as a substantialprobability, result.??????????? 5.Subsequent to, and as a result of, an inspection of the above-mentioned worksite by Complainant?s agent on or about February 24, 1976, a citation wasissued to Respondent by Complainant and a penalty for Respondent?s violativeconduct was proposed by Complainant.??????????? 6.The size of Respondent?s business is relatively small-to-medium; its historyunder the Act, so far as Complainant?s records indicate, is compliant; a totallack of a good faith attitude by Respondent toward the safety and health of itsemployees has not been demonstrated in the record.CONCLUSIONS OF LAW??????????? 1.Jurisdiction of the parties and of the subject matter herein is conferred uponthe Occupational Safety and Health Review Commission by Section 10(c) of theAct.??????????? 2. Atall times relevant hereto, Respondent was an employer engaged in a businessaffecting commerce within the meaning of Section 3(5) of the Act and as suchwas subject to the requirements of Section 5(a)(2) of the Act.??????????? 3.The occupational safety and health standard promulgated by Complainant andcodified at 29 CFR 1926.402(a)(8) is not unconstitutionally void for vagueness.??????????? 4. Onor about February 24, 1976, Respondent violated the provisions of Section5(a)(2) of the Act by failing to comply with the provisions of the safetystandard promulgated pursuant to Section 6 of the Act and codified at 29 CFR1926.402(a)(8).??????????? 5.The penalty hereby assessed for the aforesaid violation has been computed withdue consideration of the criteria set forth in Section 17(j) of the Act.ORDER??????????? Uponconsideration of the aforegoing findings and conclusions, it is hereby ORDEREDthat??????????? Thecitation issued to Respondent by Complainant on April 1, 1976, is AFFIRMED anda penalty of $500 is ASSESSED.?BENJAMIN G. USHERJudge, OSHRCDated: OCT 18, 1977?Hyattsville, Maryland\u00a0\u00a0[1] 29 C.F.R. ? 1926.800(l)(1)provides:?1926.800 Tunnels and shafts(1)Electrical Equipment. (1) Electrical equipment shall conform to therequirements of Subpart K of this part.29C.F.R. ? 1926.402(a)(8) provides:SubpartK?Electrical?1926.402 Equipment Installation and Maintenance(a)Flexible cable and cords.(8)Cable passing through work areas shall be covered or elevated to protect iffrom damage which would create a hazard to employees.[2] NotwithstandingRespondent?s contrary arguments, the record indicates that dropping this cablefrom its protected, elevated position was not the only feasible option in orderto complete the concrete-pouring. The cable could have been passed through the adjacenttunnel and, while still elevated on ?S? hooks, back-fed to illuminate theconcrete-pouring operation from behind. Indeed, this method had been employedearlier regarding the 480 volt cable when concrete was poured in the outboundtunnel. Moreover, at the time of the inspection the 7200 volt cable waselevated through the outbound tunnel and then backfed across into the inboundtunnel. Nevertheless, some seventy feet of it had been permitted to rest on theinvert of the outbound tunnel at the cross adit, where it became partiallyencased in hardened concrete. The record is not clear as to who authorized andwho accomplished the lowering of the 7200 volt cable in this area.[3] The record showsthat the general contractor would not authorize any elective repairs tomaintain the cable that would have necessitated shutting off the power in thetunnel. Only emergency repairs necessitated by power failures were permitted.[4] See note 2 supra.[5] Commission?s Rulesof Procedure, Rule 33(a)(3); National Realty and Construction Company, Inc.,v. OSHRC, et al., 489 F.2d 1257 (December 13, 1973).[6] Respondent?scounsel errs when he asserts ?[t]he mere fact this matter required a five-daytrial of this matter [sic] shows the standard is void for vagueness.? He alsopoints out that I repeatedly asked Complainant?s counsel for an explanation ofthe meaning of the word ?covered? as used in the standard, and he implies thatmy questioning proves ?vagueness.? It might be noted that had Complainant?scounsel presented his counter argument as well at trial as he has in hisPost-Trial Brief, perhaps the trial time would have been shortened.[7] About Mr. Farrar,Respondent?s counsel said: ?. . . I have known the Compliance Officer in thiscase personally for 15 years. He is no fool. He has more experience in thisthan anyone in this room, and he knew what he was doing when he cited us. . . .he is a personal [sic] expert, and I can personally testify that I haveprosecuted cases against him 15 years ago.?[8] The parties?arguments and counter-arguments regarding whether or not the standard requiresan extraneous covering, or a covering in addition to that which was included inthe cable?s manufacture, need not be addressed here. The covering, whether apart of the cable itself or exogenous thereto, must be adequate to protect itfrom hazard-creating damage.[9] The floor of thetunnel is referred to by witnesses and counsel?in the transcript and inbriefs?as ?the invert.?[10] Respondent?sexpert witness did state, however, that the standard in question is, in hisopinion, not clear [vague] with respect [to the use of the word]?covered.? Inhis opinion ?guarded? would be a better word to use.?[11] It is interestingto note that Respondent?s Area Manager, Claude Laprise, was called as Respondent?switness. It might be presumed that he would have information which would behelpful in resolving the factual issues here. However, neither party asked hima single significant question.”