Illinois Power Co. v. Occupational Safety and Health Review Commission, 79-1721

• Decision Date: 15 February 1980
• Docket Number: No. 79-1721,79-1721
• Citation: 632 F.2d 25
• Parties: 1980 O.S.H.D. (CCH) P 24,538 ILLINOIS POWER COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Sec'y of Labor, Etc., Respondents. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 25

632 F.2d 25

1980 O.S.H.D. (CCH) P 24,538

ILLINOIS POWER COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray

Marshall, Sec'y of Labor, Etc., Respondents.

No. 79-1721.

United States Court of Appeals, Seventh Circuit.

Heard Feb. 15, 1980.

Decided April 29, 1980. ^*

Opinion June 13, 1980.

Harley Hutchins, Mayer, Brown & Platt, Chicago, Ill., for petitioner.

Domenique Kirchner, Dept. of Justice, Washington, D. C., for respondents.

Before CUMMINGS, SPRECHER and TONE, Circuit Judges.

CUMMINGS, Circuit Judge.

On September 8, 1978, pursuant to Section 9(a) of the Occupational Safety and Health Act (29 U.S.C. § 658(a)), the Secretary of Labor issued a citation and notification of penalty to Illinois Power Company charging that the Company had violated Section 5(a)(1) of the Act. ¹ The citation stated that on or about August 8, 1978:

"(a)n employee was allowed to begin work on upgrading of an existing electrical service located between transformer station No. 10930 and a residence located at No. 30, South 97th Street, Belleville, Illinois before all live or grounded conductors and surfaces with which the employee could possibly make contact (except that portion of the conductor on which work was to be done) were covered with approved insulating devices or de-energized and grounded or the employee effectively isolated, insulated, or guarded from such conductive objects."

The citation alleged that the violation was serious under Section 17(k) of the Act. ² It also set September 14, 1978, as an abatement date and proposed a penalty of $640.

On September 28, the Company filed a notification of intent to contest the citation under Section 10(c) of the Act (29 U.S.C. § 659(c)). Consequently the Secretary of Labor filed a complaint with the Occupational Safety and Health Review Commission on October 30, 1978. After two days of hearings, a judge of the Review Commission concluded that the Company had indeed violated Section 5(a)(1) of the Act and that the violation was serious within the meaning of Section 17(k) of the Act. The judge thus affirmed the September 8 citation. After the full Commission denied the Company's petition for discretionary review, the judge's decision became final under Section 12(j) of the Act (29 U.S.C. § 661(i)) and the Company filed a petition here to review the Commission's order under Section 11(a) of the Act (29 U.S.C. § 660(a)). We now affirm the Commission's order upholding the Secretary's citation and enforce the order requiring abatement and payment of the $640 penalty.

The citation in this case arose out of an inquiry by the Secretary following the electrocution death of journeyman lineman Sydney Stevenson. On August 7, 1978, Stevenson was working as part of a two-man crew on upgrading some residential service lines at the location described in the citation. The job of upgrading residential service requires the replacing of old service lines between a particular house and a service pole, to which lines of secondary voltage are connected. These lines carrying secondary voltage, commonly described as voltage under 300 volts, are usually "uncovered" in that they lack insulation. While working on the lines on what was considered a "normal" job, Stevenson was wearing leather gloves and a hard hat, but took no further precautions against the uncovered lines. Thus he did not use rubber gloves, a rubber line hose or insulating blankets to protect himself from contact with the secondary voltage. The Company's safety manual requires a lineman to use such protective covering in just such a situation, though the Company apparently did not strictly enforce the rule, leaving it to each lineman to decide when covering is necessary.

Eugene Richard, also a journeyman lineman, was leadman of the crew and was aware of Stevenson's work near uncovered lines. Richard did not see how the electrocution occurred and a subsequent restaging of the accident failed to reveal the cause of the accident. According to the findings of the hearing judge, however, Stevenson's position while working in a nest of 110 volt to 220 volt lines from an insulated boom bucket readily permitted him to complete a circuit between various of the lines, allowing electricity to flow through him. That result was admittedly one that could cause death. The hazard was apparently increased by the fact that Stevenson was perspiring at the time.

There is no rule of the Occupational Safety and Health Administration (OSHA) prescribing the use of covering in working with secondary voltage, but there was testimony at the hearings that the practice of companies in the industry is to require such covering. A Commission expert testified at the hearing that Stevenson's position at the time of the accident was one of a "high hazard" and that the hazard was not lessened by the fact that the voltage was less than 300 volts. Company expert Gail Relph testified that it is amperage and not voltage that creates the danger and that there was sufficient amperage in the lines to kill (Resp. Exh. 8 at 14, 38), but that he did not regard it as particularly hazardous for a trained lineman to perform the job with the secondary lines uncovered. There was some dispute whether any lineman had previously been killed by contact with secondary voltage lines. Relph's testimony was itself equivocal, stating on direct examination that he did not know of anyone having been killed in his company, and on cross-examination that linemen in the industry had been killed "very, very few times" (Resp. Exh. 8 at 14, 39). It was uncontested that no other Illinois Power employee had been killed working in a position similar to Stevenson's, but that one employee had five years earlier been burned while working on a similar job.

The hearing judge's 42-page opinion detailing these and other facts surrounding the accident concluded that permitting Stevenson to work on these lines without protective covering was a violation of the Act and that the violation was serious. The Company now challenges that decision on two closely related grounds. First, it asserts that the judge simply failed to apply the standards supplied by the Act for determining whether a violation has occurred. Second, even if the judge did make the appropriate findings, the Company states there was not substantial evidence in the record to support those findings. We reject both contentions.

Section 5(a)(1) of the Act sets forth three elements that the Secretary must prove to sustain a violation. First, the employer must have failed to render its workplace free of a hazard. Second, the hazard must be one that is "recognized." Lastly, the hazard must be one that is causing or is likely to cause death or serious physical harm. The Company insists that the hearing judge found a violation of the Act without determining that the supposed hazard was one that met the last of these criteria. It notes that the hearing judge's conclusions of law do not employ the "causing or likely to cause" language of Section 5(a)(1) of the Act, and that the judge found only that the hazard in question "could" cause death. These conclusions cannot be read in isolation, however, and a brief review of the decision as a whole clearly demonstrates that the hearing judge applied the correct standards.

First, the hearing judge repeatedly refers to the language of Section 5(a)(1) and he must be presumed to be aware of its directives. Second, in the Discussion section of his report the hearing judge explicitly sets out the criteria noted above and acknowledges that the complainant must prove more than that the offending condition is hazardous. He thus noted that the hazardous condition must be one "causing or likely to cause death or serious bodily harm" (App. 1 at 33). Moreover, the judge considered and expressly rejected the Company's argument that the hazard involved here failed to meet this criterion and at one point explicitly stated that the deceased employee had been exposed to the risk of serious injury or death (App. 1 at 37). Finally, the hearing judge supported his conclusions by reference to testimony and evidence in the record. Thus he noted the testimony of the expert witnesses regarding the cause of Stevenson's death and the support provided by a knowledge of basic physical law. In addition, he specifically found in his findings of fact that in working in the configuration he did, Stevenson was in a "high hazard" position, as...