Pennsylvania Power & Light Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 15 June 1984
• Docket Number: No. 83-3263,83-3263
• Citation: 737 F.2d 350
• Parties: 11 O.S.H. Cas.(BNA) 1985, 1984-1985 O.S.H.D. ( 26,938 PENNSYLVANIA POWER & LIGHT COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 350

737 F.2d 350

11 O.S.H. Cas.(BNA) 1985, 1984-1985 O.S.H.D. ( 26,938

PENNSYLVANIA POWER & LIGHT COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond

J. Donovan, Secretary of Labor, U.S. Department of

Labor, Respondents.

No. 83-3263.

United States Court of Appeals,

Third Circuit.

Argued March 7, 1984.

Decided June 15, 1984.

Stephen C. Yohay (argued), Robert E. Williams, McGuiness & Williams, Washington, D.C., for petitioner.

Robert L. Baum, Peter B. Kelsey, Edward H. Comer, William L. Fang, Washington, D.C., for amicus curiae Edison Elec. Institute.

Domenique Kirchner (argued), Francis X. Lilly, Deputy Sol. of Labor, Frank A. White, Associate Sol., for Occupational Safety & Health, Dennis K. Kade, Counsel for Appellate Litigation, Washington, D.C., Marshall H. Harris, Regional Sol., U.S. Dept. of Labor, Philadelphia, Pa., for respondents.

OPINION OF THE COURT

Before HUNTER and BECKER, Circuit Judges, and HOFFMAN, ^* District Judge.

JAMES HUNTER, III, Circuit Judge.

The Occupational Safety and Health Administration ("OSHA") issued a citation charging petitioner Pennsylvania Power & Light Company ("PP & L") with a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 ("the Act"), 29 U.S.C. Sec. 654(a)(2) (1976). OSHA charged that PP & L had failed to comply with the "grounding" regulations set forth at 29 C.F.R. Sec. 1926.955(a)(6)(ii) (1983), resulting in the death of a PP & L lineman. That citation was upheld by an Administrative Law Judge ("ALJ"), whose order was affirmed by the Occupational Safety and Health Review Commission ("the Commission"). PP & L now petitions this court, pursuant to section 11(a) of the Act, 29 U.S.C. Sec. 660(a) (1982), to review the Commission's final decision. Although we agree with respondent, the Secretary of Labor ("the Secretary"), that a PP & L employee violated the cited regulation and that PP & L's work rules did not precisely implement that regulation, we hold that the record does not contain substantial evidence to support a finding that PP & L failed to exercise reasonable diligence to discover and prevent employee violations of the OSHA standard. Accordingly, we will grant the petition for review and reverse the Commission's order.

I

OSHA cited PP & L for irregularities at the work place which resulted in the electrocution death of Willard Hankee. ¹ On May 18, 1979, Hankee served as the crew-leader of a three-man crew of PP & L first-class linemen. His crew was assigned to install a new utility pole in order to raise the sagging lines between two existing poles. Two days earlier Hankee had visited the job site with his immediate supervisor, the roving multi-crew foreman, for the purpose of discovering any safety problems and devising a work plan.

Hankee's crew, which included Louis Schwartz and Martin Gusick, arrived at the job site on the morning of May 18 with a "bucket truck" and a "digger line truck." The digger line truck was equipped with a mechanical boom that was operated from a platform at the rear of the truck. The truck boom was equipped with an auger that was to be used for digging the hole into which the new utility pole would be set. The boom could be used to lift the auger into position and to set utility poles and install equipment on them. The bucket truck at the job site was parked a short distance from the utility lines on which work was to be performed. That truck contained the equipment that the crew would use on the job.

Schwartz parked the digger line truck in a position that would facilitate digging a hole and setting a new pole. The rear of the truck faced the sagging lines. The digger truck's boom was positioned in a cradle above the cab of the truck. It would have been necessary to rotate the boom to the rear of the truck or to lift the boom in an overhead arc in order to position the auger for digging.

The topmost line of the four sagging lines was energized, conducting power at 7.2 kilovolts. Hankee and Schwartz agreed that it would be necessary to pull the energized line away from the digger truck and to secure the line out of the reach of the boom in order to perform their job safely. To that end Hankee directed Schwartz and Gusick to obtain fiberglass poles or "hot sticks" from the bucket truck to be used for "tagging out" the energized line and tying it down approximately fifteen feet from the site of the new pole.

Hankee was at the rear of the digger truck talking to the owner of the property abutting the job site when he dispatched Gusick and Schwartz to the bucket truck. Hankee knew that the hot sticks and rope were to be used to tag out the energized line, although the record does not reflect an express understanding that the boom would not be moved until the linemen returned with the equipment.

While Gusick and Schwartz were assembling the equipment at the bucket truck, the property owner called to them that their "buddy was down." The linemen rushed to the digger line truck. There they discovered Hankee lying on the ground at the rear of the truck. One foot remained on the platform from which the mechanical boom was operated. An arc of electricity passed from Hankee's foot to the ground. The boom of the truck was no longer in its cradle atop the cab; it had been swung around to the rear of the truck and now rested on the energized overhead line. Hankee died as a result of the accident.

The digger line truck had not been grounded prior to moving the boom, nor had the work area been barricaded. There is no evidence that the boom or controls malfunctioned on the day of Hankee's death.

OSHA investigated Hankee's electrocution death and issued a citation charging PP & L with two serious ² violations of OSHA workplace regulations. The first item charged PP & L with failing to post a watchman at the job site when the boom was being moved, in violation of 29 C.F.R. Sec. 1926.550(a)(15)(iv) (1983). The second item charged PP & L with operating lifting equipment "near" an energized line without first grounding the lifting equipment or, as an alternative precaution, barricading the work area and complying with the regulations for working with energized equipment. The OSHA investigator identified 29 C.F.R. Sec. 1926.955(a)(6)(ii) (1983) [hereinafter referred to as section 955(a)(6)(ii) ] as the regulation governing the second item.

PP & L contested both charges. After a hearing the ALJ vacated the charge dealing with the absence of a watchman, ³ but determined that PP & L had committed a serious violation of section 955(a)(6)(ii). PP & L was fined $250.00. PP & L moved the ALJ to reopen the record to receive additional evidence that the interpretation of the "ground or barricade" regulation offered by the Secretary in this case was unworkable and inconsistent with prior interpretations of that regulation. The ALJ denied PP & L's motion. A panel of the Commission, with one commissioner dissenting, affirmed the ALJ's orders upholding the section 955(a)(6)(ii) citation and refusing to reopen the record. The case now comes before us on PP & L's petition for review.

II

PP & L is charged with a serious violation of section 5(a)(2) of the Act. See supra ote 2. That section directs "[e]ach employer ... [to] comply with occupational safety and health standards promulgated under this chapter." 29 U.S.C. Sec. 654(a)(2) (1982). PP & L is charged with violating a regulation that dictates safety precautions in the electrical power industry when utilizing mechanical lifting devices in construction work on or with energized power lines.

The cited regulation provides:

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

....

[ (6) ](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.

29 C.F.R. Sec. 1926.955(a) (1983) (emphasis added).

There is no dispute that Hankee failed to comply with section 955(a)(6)(ii). Whatever definition may be given to the term "near" in the regulation, in this case the boom of the digger line truck actually made contact with the overhead power line. Therefore, the literal terms of the regulation were clearly violated. We find no error in the Commission's additional determination that Hankee's conduct posed a substantial risk of death or serious injury, thus satisfying the initial requirement, under section 17(k) of the Act, for a finding that a serious violation occurred. See supra note 2.

The charge that PP & L committed a serious violation of section 5(a)(2) cannot stand, however, on a simple showing that a single employee failed to comply with a regulation. The Act does not impose strict liability on employers for isolated and idiosyncratic instances of employee misconduct. We have held that the purposes of the Act are best served by limiting citations for serious violations to conduct that could have been foreseen and prevented by employers with the exercise of reasonable diligence and care. Brennan v. OSHRC (Hanovia Lamp), 502 F.2d 946, 951-52 (3d Cir.1974). ⁴

The Act itself provides the basis for our reasoning. The statement of congressional purpose contained in the Act evidences an intent to ensure worker safety only "so far as possible." 29 U.S.C. Sec. 651(b) (1982); see Hanovia Lamp, 502 F.2d at 951. "The duty was to be an achievable one." National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265-66 (D.C.Cir.1973). Thus, the Act should not be construed to impose a civil penalty without fault on an employer "for the results of idiosyncratic, demented, or perhaps suicidal self-exposure of employees to recognized hazards." Hanovia Lamp, 502 F.2d at 951. Moreover, section 17(k) of the Act specifies that an employer cannot be cited for a serious violation if the...