Echo Powerline, L.L.C. v. Occupational Safety & Health Review Comm'n
| Decision Date | 03 August 2020 |
| Docket Number | No. 19-60695,19-60695 |
| Citation | 968 F.3d 471 |
| Parties | ECHO POWERLINE, L.L.C., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Eugene Scalia, Secretary, U.S. Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jane Henican Heidingsfelder, John R. Guenard, P.J. Kee, Jones Walker, L.L.P., New Orleans, LA, for Petitioner.
John X. Cerveny, Occupational Safety & Health Review Commission, Washington, DC, Kate S. O'Scannlain, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondent Occupational Safety and Health Review Commission.
Brian Alan Broecker, Kate S. O'Scannlain, U.S. Department of Labor, Office of the Solicitor, Washington, DC, John X. Cerveny, Occupational Safety & Health Review Commission, for Respondent Eugene Scalia, Secretary, U.S. Department of Labor.
Before Davis, Graves, and Duncan, Circuit Judges.
Rehanging downed powerlines poses obvious risks of electrocution and death. To minimize those dangers, an OSHA regulation requires power companies to use "the tension-stringing method, barriers, or other equivalent measures." 29 C.F.R. § 1926.964(b)(1). The point of these precautions is to keep slack, deenergized lines from whipping up and contacting nearby energized lines.
Tragically, though, that is just what happened here. Two employees of petitioner Echo Powerline, L.L.C. ("Echo"), were electrocuted when a line they were rehanging whipped up into an energized line carrying deadly amounts of electricity. The crew had been using Echo's standard precautions—which primarily involve extending a bucket truck's arm as a barrier beneath the energized line. The Occupational Safety and Health Administration ("OSHA") found this inadequate and cited Echo for violating the tension-stringing regulation, and an Administrative Law Judge ("ALJ") upheld the citation. Echo now asks us to overturn the citation, arguing the regulation is unconstitutionally vague. Alternatively, Echo argues it satisfied the regulation because its truck-barrier method is industry custom.
We sometimes require OSHA to prove an employer failed to adhere to "the general practice in the industry." S&H Riggers & Erectors, Inc. v. OSHRC , 659 F.2d 1273, 1285 (5th Cir. 1981). But this treatment is only necessary "to flesh out generally worded [OSHA] regulations in order to avoid notice problems under the due process clause." Brock v. City Oil Well Serv. Co. , 795 F.2d 507, 511 (5th Cir. 1986). Here, the tension-stringing provision is sufficiently precise to repel Echo's vagueness challenge, and evidence of industry custom was unnecessary to establish Echo's violation.
We deny the petition for review.
In January 2017, Echo was hired to restore powerlines downed by an ice storm in Beaver, Oklahoma. One Echo crew was charged with rehanging three, quarter-mile-long parallel lines. These were "distribution lines," which deliver electricity at a relatively low voltage. The lines were deenergized but crossed beneath energized "transmission lines" carrying nearly ten times the electricity. Once restored, the downed lines would have sat only about four feet below the transmission lines.
The crew rehung each line by anchoring one end to a bucket truck near a pole and then using a non-conductive sling to pass the other end to a worker in a truck near the next pole. This allowed the line's free end to drag along the ground before being rehung. The crew took three precautions to prevent downed lines from contacting transmission lines. First, to keep a line from catching on the ground and "whipping" into the transmission line, a truck was parked at the pole nearest the transmission line, with its arm and bucket extended over the distribution line. The bucket itself was not situated directly beneath the transmission line because there was a lineman in the bucket and Echo's safety procedures called for a fifteen-foot space between a lineman and an energized transmission line. Second, the crew shortened the pole from which the distribution line hung that was nearest to the transmission line, such that the distribution line, once rehung, would sit a few feet farther from the transmission line. Third, the crew were given personal protective equipment, including gloves rated to withstand the electricity that normally runs through distribution lines.
The crew successfully rehung two of the three distribution lines. The third line, however, caught on an obstacle on the ground—likely a barbed-wire fence—and whipped up, hitting the transmission line. The resulting shock electrocuted two workers who were pulling the line along the ground. One suffered severe burns, and the other died.
Echo immediately reported the incident to OSHA. After an inspection, OSHA cited Echo for violating 29 C.F.R. § 1926.964(b)(1) (the "tension-stringing provision"):
(1). Tension stringing method. When lines that employees are installing or removing can contact energized parts, the employer shall use the tension-stringing method, barriers, or other equivalent measures to minimize the possibility that conductors and cables the employees are installing or removing will contact energized power lines or equipment.
Echo contested the citation. An ALJ held a hearing in July 2018 and subsequently affirmed the citation.
As relevant here, the ALJ rejected Echo's argument that the method its crew used, sometimes called "hand-lining," constitutes the tension-stringing method. Although hand-lining does involve "the simple application of tension while re-hanging lines," the ALJ reasoned that the "tension-stringing method requires wires to be kept off the ground and clear of energized circuits."1 According to the ALJ, this accords with industry usage of the term "tension-stringing method," which typically involves a mechanical device called a "tension stringer." A tension stringer releases powerlines from a spool while keeping them under constant tension, in order to keep them above the ground. The ALJ held that to qualify as tension stringing, the method in question must keep the line off the ground and clear of all energized lines. Here, Echo's method involved stringing the lines out on the ground and applying tension only to lift them up to the poles.
The ALJ also rejected Echo's argument that its bucket truck served as a "barrier." The ALJ acknowledged Echo's evidence, including expert testimony, that "the industry uses bucket trucks" as barriers, and it found that "under certain circumstances," a bucket truck can serve as a "barrier" under the tension-stringing provision. But the ALJ found that, as situated, Echo's truck failed to "minimize the possibility" of contacting the transmission line because it "was not directly between" the downed line and the transmission line. The truck was positioned fifteen feet from the intersection of the distribution and transmission lines and far closer to one end of the downed line than the other, leaving "ample space for the cable to rebound upwards" as well as "an ample amount of cable capable of rebounding." The ALJ suggested that the crew should have instead had rubber blankets, sometimes called "guts," hung on the transmission lines.2
Finally, the ALJ held Echo failed to implement any "equivalent measure" to minimize risk of contact. The only additional measure Echo used—providing groundmen with rubber gloves not rated for transmission-voltage contact—was insufficient.
The Occupational Safety and Health Review Commission ("OSHRC")3 denied discretionary review of the ALJ's decision. Echo now petitions for our review.
We have jurisdiction over Echo's petition under 29 U.S.C. § 660. "Though the ALJ's order became final only when the Commission declined to conduct discretionary review, we apply the same standard of review to the final decision here as we would if the Commission had directly issued its own decision." Sanderson Farms, Inc. v. OSHRC , 964 F.3d 418, 422 (5th Cir. 2020) (quoting Excel Modular Scaffold & Leasing Co. v. OSHRC , 943 F.3d 748, 753 (5th Cir. 2019) ). We conclusively accept the ALJ's findings of fact "if they are supported by ‘substantial evidence on the record considered as a whole.’ " Southern Hens, Inc. v. OSHRC , 930 F.3d 667, 674 (5th Cir. 2019) (quoting 29 U.S.C. § 660(a) ). We review the ALJ's legal conclusions only "to determine whether they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Id. at 675 (quoting 5 U.S.C. § 706(2)(A) ).
To establish a violation of the Occupational Safety and Health Act ("OSH Act"), OSHA must prove by a preponderance of evidence that (1) the cited standard applies, (2) the employer failed to comply with the standard, (3) the harmed employee had access to the noncompliant conditions, and (4) the employer had actual or constructive knowledge of the violation. Southern Hens , 930 F.3d at 675 (quoting Sanderson Farms, Inc. v. Perez , 811 F.3d 730, 734 (5th Cir. 2016) ). On appeal, Echo raises two related arguments. First, it argues that, as applied here, the tension-stringing provision is unconstitutionally vague. Second, it argues that the ALJ erred by ignoring evidence that its use of a bucket truck as a precautionary measure adhered to industry custom.4 These arguments overlap somewhat because, as we explain below, our court looks to evidence of industry practice to avoid vagueness problems with certain generally worded OSHA regulations. See, e.g. , S&H Riggers , 659 F.2d at 1285 ; B&B Insulation, Inc. v. OSHRC , 583 F.2d 1364, 1367 (5th Cir. 1978). For clarity's sake, however, we address each argument separately.
We first consider Echo's vagueness challenge and conclude the tension-stringing provision is not unconstitutionally vague.
Due process requires OSH Act standards to "carry[ ] ‘sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ " B&B Insulation , 583 F.2d at 1368 (quoting United States v. Petrillo , ...
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