Wisconsin Electric Power Company v. Occupational Safety and Health Review Commission and the Secretary of Labor ( 1978 )

TONE, Circuit Judge.

The Occupational Safety and Health Review Commission found that Wisconsin Electric Power Company had committed a serious violation of § 5(a)(1), 29 U.S.C. § 654(a)(1), of the Occupational Safety and Health Act, 84 Stat. 1590 (1970), by failing to protect employees working on the ground from accidental contact with an energized truck working on high-tension lines, thus not complying with 29 C.F.R. § 1926.-955(a)(6)(ii). In this review proceeding under § 11(a), 29 U.S.C. § 660(a), we order enforcement.

On September 5,1973, Harry Schreiner, a lineman employed by the company, was electrocuted while a member of a three-man crew assigned to raise three overhead primary electrical wires from old to new poles at a worksite in Brookfield, Wisconsin. He, another lineman, and the crew foreman were working with two of the company’s trucks, which were equipped with booms for lifting men and materials. One was an “electric line truck,” a multi-purpose truck to which was attached a utility trailer containing miscellaneous equipment. The second truck was a “bucket truck” with a large bucket attached to its boom.

The high energy wire to be raised would be attached to the boom of the electric line truck and manually guided by one of the linemen, standing in the bucket of the bucket truck. The other lineman would operate the boom of the electric line truck, leaving the foreman free to supervise from the ground. In the course of raising the wires one by one, one or both booms could come in contact with one of the other stationary wires, in which event the entire piece of equipment would be energized unless there was effective insulation.

Schreiner was the lineman who operated the electric line truck controls. On the day in question he became ill, and the foreman took his place. Although warned by the foreman to stay away from the equipment, Schreiner was touching the trailer attached to the electric line truck when the truck’s boom touched an overhead primary wire. This energized the equipment, and Schreiner was electrocuted. It was stipulated that neither truck was grounded or barricaded.

An OSHA compliance officer, after inspecting the worksite, cited the company for a serious violation of 29 C.F.R. § 1926.-955(a)(6)(H), and hence the Act, for failing either to ground or to barricade the truck. Following a timely contest of the citation pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c), the Secretary filed a formal complaint before the Review Commission. The company denied the allegation. The case was submitted on stipulated facts to an administrative law judge, who vacated the citation. Discretionary review under § 12(j), 29 U.S.C. § 661(i), was granted by the Commission, which, with one member dissenting, reversed the ALJ’s decision, found the company in serious violation of the Act for failure to comply with § 1926.-955(a)(6)(H), and assessed a $600 penalty.

The company argues that the applicable section of the regulations was not § 1926.-955(a)(6)(ii) but § 1926.952(c)(2), which was complied with. An alternative contention is that the regulations are so vague and confusing that the company could not reasonably have foreseen the applicability of § 1926.955(a)(6)(ii), and they therefore violate the due process clause of the Fifth Amendment.

The regulations that govern the work in question here are found in subpart V, entitled “Power Transmission and Distribution,” of the Safety and Health Regulations for Construction, 29 C.F.R. § 1926.950 et seq. Subpart V begins with a section prescribing general standards, § 1926.950, and then goes on to prescribe standards on tools and protective equipment, § 1926.951, and mechanical equipment, § 1926.952; on material handling, § 1926.953; and on grounding, § 1926.954. Then follow three sections dealing with types of construction work, work on overhead lines, § 1926.955, work on underground lines, § 1926.956, and work in energized substations, § 1926.957. Other sections not relevant here, §§ 1926.958 and 1926.959, and a definitional section, § 1926.-960, complete the subtitle. Not surprisingly, the sections on equipment, which focus on the physical condition of the equipment and the manner in which it should be operated, overlap to some extent with the sections on types of construction work, which focus on how the work is to be conducted. The provision the company contends is applicable appears in the section dealing with mechanical equipment, § 1926.952; the provision the Secretary asserts is in the section dealing with work on overhead lines, § 1926.955.

The provision on which the company relies and its context are as follows:

§ 1926.952 Mechanical equipment.

(c) Derrick trucks, cranes and other lifting equipment. (1) All derrick trucks, cranes and other lifting equipment shall comply with Subpart N and 0 of this part [not here applicable] except:

(ii) Derrick truck (electric line trucks) shall [the rest is not relevant] .

(2) With the exception of equipment certified for work on the proper voltage [not argued to be the case here], mechanical equipment shall not be operated closer to any energized line or equipment than the clearances set forth in § 1926.950(c) unless:

(i) An insulated barrier is installed between the energized part and the mechanical equipment, or

(ii) The mechanical equipment is grounded, or

(iii) The mechanical equipment is insulated, or

(iv) The mechanical equipment is considered as energized.

The company asserts, and we shall assume, that methods (i) and (iii) were being used when Schreiner was killed.

The provision on which the Secretary relies and its context are as follows:

§ 1926.955 Overhead lines.

(а) Overhead lines. (1) When working on or with overhead lines the provisions of paragraph (a)(2) through (8) of this section shall be complied with in addition to other applicable provisions of this sub-part.

(5) . . .

(ii) Equipment and machinery operating adjacent to energized lines or equipment shall comply with § 1926.952(c)(2).

(б) . . .

(ii) Lifting equipment shall be bonded to an effective ground or it shall be considered energized and barricaded when utilized near energized equipment or lines.

Neither of the requirements of (a)(6)(ii) was met on the occasion of Schreiner’s fatal accident.

Arguing that § 1926.952(c)(2) applies because compliance with that standard was directed by § 1926.955(a)(5)(ii), the company asserts that both cited provisions refer to “derrick trucks,” which are defined as “electric line trucks” in § 1926.952(c)(l)(ii).^* It argues further that ‘.‘lifting equipmént,” the term used in § 1926.955(a)(6)(ii), which is not defined in the regulations, “presumably means A-frames, cranes and the like.” Somewhat inconsistently, the company goes on in its next argument to assume that “lifting equipment” is broad enough to include the electric line truck, the argument being that the Commission erroneously relied on a general standard when a specific standard is applicable. Diamond Roofing Co. v. OSHA, 528 F.2d 645 (5th Cir. 1976), cited in support of the principle that the more specific controls is not quite in point, but the principle may be conceded.

Which of the two standards is the more specific in this case depends upon whether the focus is on the kind of equipment or the kind of use to which the equipment is put. Section 1926.952(c)(2) does refer to electric line trucks, as well as other lifting equipment, and it in terms applies whenever the equipment is operated for any purpose within a specified distance of any energized line or equipment. Section 1926.955, however, including paragraph (a)(6)(ii), applies “[w]hen working on or with overhead lines,” paragraph (a)(1). Although paragraph (a)(5)(ii) incorporates § 1926.952(c)(2) by reference, it does so with respect to “[equipment and machinery,” which is less specific than “[Tjifting equipment,” the subject of (a)(6)(ii). We think, despite the company’s assertion to the contrary in one of its arguments, that an electric line truck is clearly a kind of lifting equipment. See § 1926.952(c) (“derrick trucks [which means ‘electric line trucks,’ paragraph (c)(ii) ], cranes and other lifting equipment” [emphasis supplied]). When these several provisions are read together then, they can reasonably be interpreted to mean that when lifting equipment (which term includes an electric line truck) is used in working on or with overhead lines, it must be grounded or barricaded, as required by § 1926.955(a)(6)(ii); when other kinds of equipment and machinery are so used, the more lenient provisions of § 1926.-952(c)(2) apply; and, when the work is not on overhead lines, and lifting equipment is operated near any energized line or equipment, the latter provision also applies. The rationale advanced by the Secretary for this interpretation, viz., that when lifting equipment is used in working on or with overhead lines it is likely to become energized despite insulation or an insulated barrier, and grounding or barricading the equipment is necessary to protect employees on the ground, is reasonable. In fact, the danger described is illustrated by what happened in this case.

Congruent determinations by the Secretary and the Commission that the standards are applicable are entitled to great weight. Budd Co. v. OSHRC, 513 F.2d 201, 204-205 (3d Cir. 1975); Clarkson Construction Co. v. OSHRC, 531 F.2d 451, 457 (10th Cir. 1976). In this case, moreover, those determinations seem to us to be correct.

Revision of the regulations by any competent draftsman would greatly improve their clarity, but they are not, in our opinion, incomprehensibly vague, and the company’s constitutional argument must therefore be rejected. We have considered the company’s other contentions and find them to be without merit.

ORDER ENFORCED.

* “Electric line truck” is defined in the definitional section to mean

a truck used to transport men, tools, and material, and to serve as a traveling workshop for electric power line construction and maintenance work. It is sometimes equipped with a boom and auxiliary - equipment for setting poles, digging holes, and elevating material or men.

§ 1926.960(q).