CMC Electric, Inc.

Plain-English summary

CMC Electric sent three journeyman wiremen to install electrical service at a cellular-telephone construction site near Andover, Ohio. An employee died after climbing a utility pole and contacting an energized 7,200-volt line that was not shown on the work schematic. CMC had not inspected for energized lines, assigned no foreman, and gave no site-specific instruction about the electrical hazard or applicable clearance rules. The Commission also found that CMC lacked prompt medical arrangements, had no currently certified first-aid provider throughout the job, and did not effectively enforce its hard-hat rule. It reversed the judge's vacatur of three electrical-exposure items, holding that journeyman status alone did not make the employees qualified without knowledge of the specific installation. All reviewed items were affirmed, with total penalties of $14,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.50(b); 29 C.F.R. § 1926.50(c); 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.416(a)(1); 29 C.F.R. § 1926.416(a)(3); 29 C.F.R. § 1926.416(g)(2)(i)(A).
• Outcome: Training, medical-attention, first-aid, hard-hat, and three electrical-exposure items affirmed for a total penalty of $14,400.
• Key point: Electrical qualifications are specific to the installation, so an employer must inspect the worksite and train employees about the actual energized-line hazards and clearance requirements.

Full text (OSHRC public release)

                          United States of America
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                      1120 20th Street, N.W., Ninth Floor
                         Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 96-169
CMC ELECTRIC, INC. ,
Respondent,

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 673,

             Authorized Employee
             Representative.


                                    DECISION

Before: WEISBERG, Chairman; ROGERS, Commissioner.
BY THE COMMISSION:
Following an employee fatality on August 15, 1995, the Occupational Safety and
Health Administration (“OSHA”) inspected Respondent, CMC Electric, Inc’s (“CMC’s”)
worksite. As a result of the inspection, the Secretary of Labor cited CMC in part for several
serious violations of the construction standards involving employee training, availability of
prompt medical attention, use of hard hats, and employee exposure to an energized power
line. Judge Michael Schoenfeld affirmed the training, medical attention, and hard hat citation

                                                                   1999 OSHRC No. 14

2

items, but vacated the employee exposure items. For the reasons that follow, we affirm all
the citation items on review.1
I. Background
CMC, an industrial electrical contractor, was a subcontractor at a worksite near
Andover, Ohio where a pre-fabricated equipment building and antenna tower were being
built for Northern Ohio Cellular Telephone Company (“Cellular One”). Under the contract,
CMC was to install a grounding system and run underground electrical service wiring from
the building to a utility pole provided by Ohio Edison, attach a conduit to the pole, pull the
wiring up through the conduit, and leave 36 inches of wire out of the top of the conduit for
Ohio Edison to connect to a transformer located towards the top of the pole. The top of the
conduit was to be no higher than 6 inches below the neutral or secondary power line. A
7,200-volt energized line was located 8 feet, 8 inches above the neutral line.
On Thursday, August 10, CMC Superintendent John Smith went to the site and
received the Ohio Edison schematic for the conduit wiring project from the representative
of an engineering company that worked for Cellular One. On Friday, August 11, Smith took
employees Rory Breedlove and Robert Biacofsky to the worksite to install the grounding
system around the building. They would be joined by employee Robert Taylor on Tuesday,
August 15. CMC did not assign a foreman to the site. Breedlove, Biacofsky and Taylor had
all been foremen on previous CMC jobs. Biacofsky testified that if a problem arose during
work, it was to be discussed among themselves. Smith gave the employees the schematic but
did not tell them anything at all about it and did not tell them whether or not they would be
working near energized lines.
On Tuesday, August 15, Taylor and Breedlove worked on attaching the conduit to the
utility pole until approximately 1:30 p.m. The Ohio Edison schematic clearly shows that the
conduit should terminate 6 inches below the neutral or secondary position, and warns against

1
The Commission also directed for review two other-than-serious items, but they were later
withdrawn by the Secretary. These withdrawals were acknowledged by the Commission in
its September 29, 1997 order.
 3

extending the “conduit above the secondary or neutral position at any time” because it “may
result in severe electric shock.” However, the top of the conduit as installed was actually 2
feet, 9 ¾ inches above the neutral line. The conduit had a rope through it that would be used
to pull the wire through once the conduit was attached to the pole. The employees were
going to use a 60 to 70-pound electric winch called a “chugger” to pull the wire through the
conduit. Biacofsky testified that he and Taylor disagreed about whether to mount the chugger
above the conduit and that Taylor climbed up the 24-foot extension ladder that was against
the pole to see if he could mount a pulley above the conduit instead. After reaching the top
of the ladder, Taylor used the bolts on the pole as footholds and climbed approximately 8 or
10 feet further up the pole where he contacted the 7,200-volt power line and was
electrocuted. The schematic does not show the location of this energized line. According to
Biacofsky, neither he nor Taylor thought that there should be an energized line present
because it was their understanding that power would not be brought to the pole until after
they had completed their work.
The following citation items resulted from OSHA’s inspection of the worksite.
II. Serious Citation 1, Item 1

   The Secretary alleges that CMC violated 29 C.F.R. § 1926.21(b)(2) by failing to

instruct its employees in the recognition of the hazard of working in close proximity to
energized high voltage lines and the regulations applicable to the worksite. The standard
requires that “[t]he employer shall instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his work environment to control or
eliminate any hazards or other exposure to illness or injury.” The Commission has held that
such instructions must address matters specific to the worksite about which a reasonably
prudent employer would have instructed its employees. Pressure Concrete Constr. Co., 15
BNA OSHC 2011, 2016, 1991-93 CCH OSHD ¶ 29,902, p. 40,810-11 (No. 90-2668, 1992).
The only evidence of instruction by CMC was testimony by CMC Vice-President and Safety
Officer Christopher Corfias that there was general training on “electric shock,” “tag-out
procedures,” and “hazard recognition” at weekly “Tool Box Talks.” He testified that the Tool
 4

Box Talks were “not so much to be a training device to teach someone how to handle a
particular hazard” but instead were based on “little synopses or stories about unsafe
conditions or hazard recognition.” There was no evidence of instruction in the recognition
of the hazards involved in working in close proximity to the energized high voltage line
present at this worksite.2 The Ohio Edison schematic, the only detailed information CMC’s
employees were given about the worksite, did not even show the energized line. Although
employees Breedlove and Biacofsky testified that part of their training as journeymen
wiremen was to treat an unknown line as energized, this general admonition falls short of the
standard’s requirement that employees be trained on the regulations applicable to their work
environment and be told what hazards are present at a particular worksite. For example, the
record does not show that CMC had instructed its employees in the requirements of 29
C.F.R. § 1926.416, cited in items 4(a), (b), and (c). Indeed, CMC did not even respond to
the Secretary’s argument that it failed to instruct its employees in these regulations. Yet
section 1926.416, which requires deenergization in certain circumstances and ten feet
clearance from 7,200-volt lines for unqualified persons and two feet for qualified persons in
other circumstances, restricts an employee’s actions substantially more than the admonition
to assume that a line is energized.
CMC argued that the violation was the result of unpreventable employee misconduct.
It bases this argument on its claim that it could not have foreseen that Taylor would climb
to the top of the utility pole. However, this citation item is not based on Taylor’s climbing
up the pole but on CMC’s failure to instruct. For CMC to succeed in its affirmative defense
of unpreventable employee misconduct, it would, as a threshold matter, have to show that
the person assigned to instruct failed to give the instruction. Because CMC makes no such
claim, the defense fails.

2
CMC cites to employee Breedlove’s testimony to support its argument that it had work rules
designed to prevent violations of this standard. However, Breedlove testified that he did not
recall any meetings dealing with working in close proximity to high voltage.
 5

   We therefore find that the Secretary established a violation of 29 C.F.R.

§ 1926.21(b)(2) for CMC’s failure to train its employees regarding the hazard of working in
close proximity to energized high-voltage lines. Because CMC did not contest the penalty
amount proposed by the Secretary and assessed by the judge, and because the penalty
assessed is supported by the record, we affirm the proposed penalty amount of $4,200.
III. Serious Citation 1, Item 2(a)

   The Secretary alleges that CMC violated section 1926.50(b), which requires that

“[p]rovisions shall be made prior to commencement of the project for prompt medical
attention in case of serious injury.” The term “medical attention” is clarified by section
1926.50(c)3, which states that “[i]n the absence of an infirmary, clinic, hospital or physician,
that is reasonably accessible in terms of time and distance to the worksite,” there shall be
available “a person who has a valid certificate in first-aid training.” Under this definition, an
employer can comply with section 1926.50(b) by making provisions for prompt medical
attention by a medical services provider reasonably accessible to the worksite prior to
commencement of the project. An employer can comply with section 1926.50(c) by having
available at the worksite a person with a valid certificate in first aid training. The record
shows that after the accident occurred, an unidentified “operating engineer” drove down the
2 to 3 mile gravel road leading from the worksite, then down a country road to a farmer’s
house and had him call 911. The Andover Volunteer Fire Department received the operating
engineer’s call at 2:20 p.m. and responded to the accident within sixteen minutes. The first
seven to eight minutes of the sixteen minutes was spent at the station trying to get the first
vehicle to start and the final eight minutes was the time needed to reach the worksite
approximately ten miles away in a back-up vehicle.4 The judge affirmed the serious citation

3
CMC had been cited for violations of both sections 1926.50(b) and (c). The judge found that
CMC had violated both standards but that they involved “substantially the same conduct.”
He found a single violation and assessed the proposed penalty of $3,000 based on the penalty
factors discussed for Serious Citation 1, Item 1.
4
The Secretary claims that the sixteen minutes it took for the rescue squad to respond did not
(continued...)
 6

based on CMC’s failure to comply with either the prompt medical attention or first aid
requirements. For the reasons that follow, we affirm the judge.
There is no evidence in the record that CMC made provisions prior to commencement
of the project for prompt medical attention.5 Moreover, the medical attention that was
available through the Andover Fire Department cannot be characterized as prompt in view
of its distance from the worksite. CMC calculates that under a best-case scenario, it would
take five minutes for the Andover volunteers to assemble and that it took “five or six
minutes” for the volunteers to reach the worksite. Even if we were to agree with CMC’s
calculations, this would leave a minimum of ten minutes response time. Under our holding
in Love Box Co., 4 BNA OSHC 1138, 1142, 1975-76 CCH OSHD ¶ 20,588, p. 24,630 (No.
6286, 1976), this would be too long.
In addition, there was no one with a valid first-aid certificate available at the worksite
for the first two days CMC employees were working there. All three of the CMC employees
assigned to the site had received first-aid certification upon finishing their apprenticeship.
The CPR portion was valid for a year and the remainder of the certification was valid for two
years. Breedlove and Biacofsky, who completed their apprenticeships in 1987, had not had
valid first-aid certification for several years. Taylor, who had completed his apprenticeship

4
(...continued)
include the five minutes to get the squad together. However, the five minutes to assemble the
squad must have been included in the sixteen minutes because the record shows that the call
was received at 2:20 p.m. and that the rescue squad arrived at the worksite at 2:36 p.m.
Although CMC claims that “ten or eleven minutes” were due to difficulties on the part of the
Andover Fire Department, the transcript pages it cites shows that 8 minutes were due to their
difficulties with the equipment.
5
CMC argues that it complied with the standard because it provided the employees with a
cellular phone with which they could call 911. However, giving employees a cellular phone
clearly does not amount to a provision for the “prompt medical attention” required by the
standard, particularly when the response time for the fire company to reach the worksite was
too long.
 7

in mid-1994, was current except for his CPR component. However, he was not at the
worksite for the first two days of the job.6
We therefore find that the Secretary established a serious violation of 29 C.F.R.
§ 1926.50(b) for CMC’s failure to provide for prompt medical attention in case of serious
injury. CMC did not contest the $3,000 penalty proposed by the Secretary and assessed by
the judge, and the penalty assessed is supported by the record. We therefore affirm the
penalty amount of $3,000.
IV. Serious Citation 1, Item 3

   The Secretary alleges that CMC violated 29 C.F.R. § 1926.100(a) by failing to ensure

that its employees were wearing hard hats. The standard requires that “[e]mployees working
in areas where there is a possible danger of head injury from . . . electrical shock and burns,
shall be protected by protective helmets.” Although CMC requires that employees wear hard
hats on the construction site at all times, the record shows that employees did not wear hard
hats on several occasions. Taylor was not wearing a hard hat when he was electrocuted.
Biacofsky and Breedlove both had worked on this site without a hard hat. The judge based
his finding of a violation of the standard on his determination that the three employees had
not worn their hard hats, that the record indicates that this was one of a number of instances
in which CMC’s employees did not comply with the hard hat requirement, and that the
employees were never disciplined for not wearing their hard hats. For the reasons that
follow, we affirm the judge.
In order to prove a violation of the standard, the Secretary must show that (1) the cited
standard applies, (2) there was a failure to comply with the cited standard, (3) employees had

6
CMC argued in its petition for discretionary review (but not in its brief before the
Commission) that the Secretary failed to prove a violation of the standard because she failed
to prove that “other persons on the site did not have a valid Red Cross Certificate.” Because
CMC did not make this argument in its brief we consider it to have been abandoned. See
StanBest, Inc., 11 BNA OSHC 1222, 1224 n.4, 1983-84 CCH OSHD ¶ 26,455, p. 33,618 n.4
(No. 76-4355, 1983).
 8

access to the violative condition, and (4) the cited employer either knew or could have
known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical
Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No.
78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (lst Cir. 1982). It is undisputed that the
standard applies and that CMC violated the standard by its employees’ failure to wear their
hard hats at this site. The Secretary also must prove that CMC knew or could have known,
with the exercise of reasonable diligence, of the existence of the violative conditions. E.g.,
Gary Concrete Products, Inc., 15 BNA OSHC 1051, 1052, 1991-93 CCH OSHD ¶ 29,344,
p.39,449 (No. 86-1087, 1991).
To show knowledge, the Secretary need not show that a supervisor actually saw the
violative condition. She may show constructive knowledge if CMC could have discovered
the violative conditions with the exercise of reasonable diligence. Hackney, Inc., 16 BNA
OSHC 1806, 1994 CCH OSHD ¶ 30,486 (No. 91-2490, 1994). Here, there was no foreman
on the site and Superintendent Smith was only present on occasion. Although Smith testified
that he had not seen any of the employees at this site without a hard hat, he acknowledged
that on at least four occasions from January to August of 1995 he had seen employees
without hard hats. When Smith saw employees without a hard hat, he told them to put one
on.
The fact that there was no supervisor on this site to monitor for safety violations does
not establish, by itself, a lack of reasonable diligence. However, we note that Smith had
observed at least four previous failures to wear hard hats over the preceding months and that
he never did more than tell people to put on hard hats. More importantly, all three employees
had not worn them on this site, and all three were CMC supervisors on other projects.
Therefore, we conclude here that CMC’s safety program was lax, see Daniel Constr. Co.,
10 BNA OSHC 1549, 1552, 1982 CCH OSHD ¶ 26,027, p. 32,672 (No. 16265, 1982), and
that CMC was not reasonably diligent. CMC’s reliance on Standard Glass Co., 1 BNA
OSHC 1045, 1971-73 CCH OSHD ¶ 15,146 (No. 259, 1972) is misplaced. In that case, the
 9

Commission vacated a citation under this standard where two employees failed to wear hard
hats because the period of violation was “isolated and brief” (less than five minutes), the
employer “made an earnest effort to assure that the hard hats would be worn,” and that
“employees could expect reprimand if the instructions of respondent that hard hats be worn
were violated.” 1 BNA OSHC at 1046, 1971-73 CCH OSHD at p. 20,219. Here, all three
CMC employees at this site failed to wear hard hats and there was evidence of a number of
occasions at other sites where CMC’s employees failed to wear hard hats. Yet, unlike
Standard Glass, there was little evidence of an earnest effort to ensure compliance or that
employees could expect reprimand if they failed to wear hard hats.
Accordingly, we find that the Secretary has established a serious violation of 29
C.F.R. § 1926.100(a) based on CMC’s failure to ensure that its employees wore hard hats.
CMC did not contest the penalty amount proposed by the Secretary and assessed by the
judge, and the penalty is supported by the record. We therefore affirm the penalty amount
of $3,000.
V. Serious Citation 1, Items 4(a), 4(b), and 4(c)
These citations, all of which arise from the circumstances of the accident, allege that
CMC permitted its employees to work in close proximity to an energized power line in
violation of 29 C.F.R. § 1926.416(a)(1), failed to determine whether the power line was
energized in violation of 29 C.F.R. § 1926.416(a)(3), and allowed unqualified employees to
work within ten feet of an unguarded energized power line in violation of 29 C.F.R.
§ 1926.416(g)(2)(i)(A)7. The judge vacated all three items. He apparently believed that these
three violations would not have occurred if CMC had properly instructed its employees. We
reverse the judge and affirm all three items.
Item 4(a) alleged a violation of section 1926.416(a)(1) because CMC allowed its
employees to work in close proximity to the energized line. CMC defends on the basis that

7
Section 1926.416 has been amended and no longer includes subsection (g). See 61 Fed. Reg.
41738, August 12, 1996.
 10

no one “permitted” or required Taylor to be in the area and Taylor did not tell anyone that
he intended to go towards the energized line. These contentions are without merit. Taylor
was near the energized line because his job required him to find a location above the conduit
to mount the pulley. He might not have needed to go that far up the pole, but climbing up the
pole was within the scope of his work and it did not violate any CMC work rule.8 Moreover,
as we discussed in Item 1, CMC did not have any work rules or other instructions for this
site, let alone one that would have met the requirements of this standard and prevented an
employee from working in such proximity to the power line that the employee could contact
it in the course of his work. CMC had not even taken the preliminary step of inspecting the
worksite to determine whether such hazards were present.
Item 4(b) alleged a violation of section 1926.416(a)(3) because CMC did not check
to see before work began whether an energized line was so located that the performance of
work may bring a “person, tool, or machine” into contact with it. The record does not show
that anyone from CMC checked the worksite9 and the Ohio Edison schematic provided to the
employees did not show the energized line. CMC argues that “performance of the work in
question should not have brought Taylor closer than eight or nine feet from the line,”10 but

8
CMC’s argument that Taylor’s actions constituted unpreventable employee misconduct fails
because of its lack of a work rule to eliminate employee exposure to the energized line. See,
e.g., Gary Concrete (unpreventable employee misconduct defense rejected where employer
failed to prove that it had established “work rules designed to prevent the cited violation”;
Gary’s instructions “too general” to inform the employee of “how to prevent the violation
of the standard which resulted in his death.”)
9
CMC’s safety manual states that “the Safety Officer and the Job Foreman will schedule and
conduct regular safety inspections of the job site,” but there was no foreman on this site and
the safety officer did not testify about this item.
10
Corporate Secretary and Project Manager Emanuel Corfias testified that an inspection of
the lines was “not required” and that “it was immaterial to us whether that overhead line was
energized or de-energized” because there would not have been a hazard “[h]ad the work been
installed per the drawing, and done in the fashion in which we normally do our work.” As
(continued...)
 11

the language of the standard requires the employer to “ascertain by inquiry or direct
observation, or by instruments” whether an energized circuit is so located that an employee
might contact it.11 CMC did none of these things.
Item 4(c) alleged a violation of 1926.416(g)(2)(i)(a) because CMC’s “unqualified”
employees worked within ten feet of the energized line. The judge vacated this item because
he found that the employees were “qualified” within the meaning of the standard, even
though he found that the employees at the site did not understand the Ohio Edison schematic
or realize that working above the conduit as it was incorrectly installed was an electrocution
hazard. The judge based his finding that the employees were “qualified” not on their specific
knowledge of this worksite and its hazards but on their being journeymen wiremen.12
However, the Preamble to the Final Rule on Electrical Standards for Construction, 51 Fed.
Reg. 25,294 (July 11, 1986) at p. 25,307 states that “[f]or the purposes of Subpart K,

10
(...continued)
constructed, the conduit’s opening was 5 feet, 10 1/4 inches away from the energized line.
Had the conduit been constructed as shown in the Ohio Edison schematic, the distance would
have been closer to nine feet. The fact that the conduit was installed closer to the energized
line than it should have been would not absolve CMC of the violations of the standards cited
in these subitems. While it might have made it less likely that Taylor would have approached
the energized line had the conduit opening been further away from it, Taylor still would have
had to find a position somewhere above the conduit opening to attach the pulley, and it
would still be foreseeable for an employee to approach the energized line while looking for
a location to mount the pulley, especially in the absence of any rule not to do so.
11
The preamble is evidence of a regulation’s intent. See American Sterilizer Co., 15 BNA
OSHC 1476, 1478, 1991-93 CCH OSHD ¶ 29,575, pp. 40,015-16 (No. 86-1179, 1992)
(preamble as “best and most authoritative statement of the Secretary's legislative intent” for
standard susceptible to different interpretations). The Preamble to the Final Rule on
Electrical Standards for Construction, 51 Fed. Reg. 25,294 (July 11, 1986) at p. 25,315 states
that section 1926.416(a)(3) requires “that action must be taken to determine the location of
and to protect employees from energized circuits.”
12
The judge found that the employees were qualified because “a journeyman wireman who
was aware of the presence of a high-voltage line would also be aware of the hazards of
working in proximity to it.”
 12

knowledge of the installation in question is necessary before a person can be considered
‘qualified’” and that the knowledge must be “specific” to the installation in question.13 Under
this interpretation, the employees would not be considered qualified within the meaning of
the standard because they did not know of the energized line. If the employees were not
qualified under the standard cited in item 4(c), 29 C.F.R. § 1926.416(a)(1), they could come
no closer than ten feet from the energized line. Because the conduit would have been within
ten feet of the energized line even if it was constructed properly, a violation of that standard
is shown.
Having found that the Secretary established that the three standards applied and that
CMC’s employees had access to the violations committed by CMC, we also conclude that
CMC had knowledge of the violations. It is clear that reasonable diligence required that
CMC determine whether an energized line was present on this worksite and where its
employees were going to be working in relation to that line. Automatic Sprinkler Corp. of
America, 8 BNA OSHC 1384, 1387-8, 1980 CCH OSHD ¶ 24,495, p. 29,926 (No.76-5089,

13
The preamble gives the following example of a “qualified person”:

   [R]evised § 1926.405(a)(2)(iii) prohibits access of other than qualified persons
   to temporary installations of equipment over 600 volts. It is clear from the
   proposed definition of “qualified person” that an individual would need to be
   familiar with the construction and operation of those installations, and with the
   associated hazards, in order to be allowed access to them. This would not
   necessarily require a person with an advanced degree or certificate; indeed, the
   mere fact that a person possessed such a degree or certificate would not
   automatically make him or her “qualified” in a particular situation under
   Subpart K. Based on the proposed definition, an electrical engineer who was
   not familiar with the installation would not be considered qualified for the
   purposes of § 1926.405(a)(2)(iii), despite having an engineering degree. . . .
   For the purposes of Subpart K, knowledge of the installation in question is
   necessary before a person can be considered “qualified;” such specific
   knowledge is not an absolute requirement under the general construction
   definition. . . . in § 1926.32(l).

51 Fed. Reg. at 25,307.
 13

1980); See also Mosser Constr. Co., 15 BNA OSHC 1408, 1414, 1991-93 CCH OSHD
¶ 29,546, p. 39,907 (No. 89-1027, 1991)(reasonable diligence requires adequate supervision
of employees and the formulation and implementation of adequate training programs and
work rules). CMC had ample opportunity to discover the energized line, but failed to do so.
We therefore find that the Secretary established that CMC violated 29 C.F.R.
§ 1926.416(a)(1) because it permitted its employees to work in close proximity to an
energized power line, 29 C.F.R. § 1926.416(a)(3) because it failed to determine whether the
power line was energized, and 29 C.F.R. § 1926.416(g)(2)(i)(A) because CMC allowed
unqualified employees to work within 10 feet of an unguarded energized power line. The
Secretary proposed a combined penalty of $4,200 for the three subitems. CMC did not
contest the proposed penalty amount and the penalty is supported by the record. Therefore,
we affirm the penalty of $4,200.
VI. Order
Accordingly, Serious Citation 1, Items 1, 2(a), 3, 4(a), 4(b) and 4(c) are affirmed. A
total penalty of $14,400 is assessed.

                                                     /s/
                                                     Stuart E. Weisberg
                                                     Chairman


                                                     /s/
                                                     Thomasina V. Rogers

Dated: April 26, 1999 Commissioner