Docket No. 11107

CONSUMERS POWER COMPANY

OSHRC Docket No. 11107

Occupational Safety and Health Review Commission

May 2, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John C. Nangle, Assoc. Regional Solicitor

Charles D. Dawson, Consumer Power Company, for the employer

Mr. R. J. Bruckner, Utility Workers Union of America, Local # 105, for the employees

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A December 2, 1975, decision of Review Commission Judge Sidney Goldstein, attached hereto as Appendix A, n1 is before this Commission for review pursuant to the provisions of 29 U.S.C. § 661(i). That decision held that respondent had violated 29 U.S.C. § 654(a)(2) by failing to take various precautionary measures required by the occupational safety standard codified at 29 C.F.R. § 1926.950(d) when an employee is working within proscribed distances from deenergized lines and equipment which are operated in excess of 600 volts and the means of disconnecting from electric energy is not visibly open or visibly locked out. n2

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n1 Chairman Barnako does not agree to this attachment.

n2 The Judge found that "all designated switches and disconnectors were not tagged," that "tests were not conducted to ensure that lines were deenergized," and that "protective grounds were not applied to disconnected lines upon which work was performed" as required by that standard.

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Review was directed on whether the Judge erred in his findings that Subpart V of Part 1926, Code of Federal Regulations, applied in this case in view of the definition of "construction" contained in 29 C.F.R. § 1926.950(a)(1) and that respondent's employees were endangered by the alleged hazard. Since we find that the requirements of 29 C.F.R. § 1926.950 are inapplicable to the cited working conditions, we reverse the Judge's decision. n3

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n3 It is therefore unnecessary to address the second issue.

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The standards contained in 29 C.F.R. Part 1926 apply to construction work, n4 which is defined in 29 C.F.R. § 1910.12(b) as "work for construction, alteration, and/or repair, including painting and decorating." The standard allegedly violated, 29 C.F.R. § 1926.950(d), is contained in Subpart V of Part 1926, Code of Federal Regulations. At the outset of Subpart V, it is indicated that the standards contained therein are applicable "to the [*3] construction of electrical transmission and distribution lines and equipment." n5 Thereafter the regulation defines construction as follows:

"As used in this Subpart V the term 'construction' includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment."

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n4 29 C.F.R. § 1910.12(a).

n5 29 C.F.R. § 1926.950(a).

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The employees involved in the instant citation were engaged solely in trimming trees. They did not work directly upon electric transmission lines or equipment. Rather they pruned branches from within the aerial basket of an insulated "bucket truck." n6 Employees classified as tree trimmers were neither trained nor permitted to work directly on the utility lines. In fact, they did not even carry the tools needed to work on electrical lines and equipment.

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n6 The "bucket truck" is a standard 2 1/2 ton vehicle with dual wheels and a body customized for insulation and tool handling. A pedestal, containing an insulating ring fabricated of fiberglass designed to protect employees on the ground, is mounted on the truck deck, from which protrudes a steel boom, 15-16 feet long interlocked with a 20-foot fiberglass boom. Atop the insulated hollow fiberglass boom rests an aerial basket or bucket. The bucket and insulating ring are designed to withstand up to 150,000 and 50,000 volts, respectively.

[*4]

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It is abundantly clear that respondent's tree trimmers were not engaged in the erection of new lines or the alteration, repair, conversion, or improvement of existing lines or equipment. Complainant contends that the Judge correctly found that tree trimming provided an improvement in the existing lines. Respondent disagrees and cites definitions of the word "improve" from two dictionaries.

When confronted with a question of whether a gasoline tank constituted a service station, the United States Court of Appeals for the Seventh Circuit stated:

"It should not require a quotation from Webster's Third New International Dictionary, Unabridged . . . to tell the court that a service station 'is a place at which some service is offered.'"

Amoco Oil Co. v. OSAHRC, No. 76-1220 (7th Cir., December 27, 1976). Similarly, we do not need to resort to dictionary definitions to conclude that tree trimming is not an improvement in existing electrical lines. Respondent's employees were not working on the lines and did nothing to them. Their work did not make the lines any better in any way. After the [*5] trimming was completed, the lines were in the same condition as they were before the trimming began.

Furthermore, when the Secretary of Labor promulgated Subpart V of 29 C.F.R. Part 1926, Power Transmission and Distribution, he published the following remarks on the applicability of those standards:

"Applicability. The proposed occupational safety and health standards contained in Subpart V are applicable to the construction of electric transmission and distribution lines and equipment. Some comments were received which recommended that the standards be extended to maintenance work. The comments go beyond the subject matter of this proceeding which is addressed to the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing transmission and distribution lines and equipment." n7

Tree trimming constitutes maintenance work which was performed to prevent the trees from interfering with the lines and thereby interrupting service. Since the Secretary of Labor expressly excluded maintenance from the coverage of Subpart V, we conclude that tree trimming is not covered thereby.

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n7 37 Fed. Reg. 24882 (1972).

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Finally, we note that our conclusion is supported by the findings of a voluntary Industry-Labor Committee. The evidence shows that after the promulgation of Subpart V this Committee was formed, with the approval of the Assistant Secretary of Labor for Occupational Safety and Health, to develop operating and maintenance standards for electric utilities as an expansion of Subpart V. The Committee has discussed proposed rules covering, among other work activities, tree trimming. The Committee foresees the necessity for proposing a standard specifically for tree trimming because, unlike linework, which can be either construction work (e.g., installing a new line) or maintenance/operational work (e.g., repairing existing facilities) depending on the lineman's particular job function, a tree trimmer's job is always the same. Of course, if tree trimming were "construction work," it would clearly be regulated under Subpart V of Part 1926 and there would be no reason for the Committee to include tree trimming under [*7] the new maintenance and operation standard being drafted.

Accordingly, the citation and the penalty assessed therefor are vacated.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, concurring:

I agree that the standards in Subpart V do not apply to the tree trimming work in which Respondent was engaged. As Commissioner Moran points out, the Secretary stated, when he promulgated the standards, that he did not intend Subpart V to apply to maintenance work on transmission and distribution lines. In this case, the tree trimming was routine work intended to prevent trees from interfering with existing power lines. Clearly, such work is akin to maintenance rather than construction of the lines, and is therefore outside the scope of the standard.

In concluding that the standards are inapplicable to Respondent's worksite, I do not place any weight on the fact that the voluntary industry-labor committee to which Commissioner Moran refers considers tree trimming to be outside the scope of Subpart V. That committee played no role in the promulgation of Subpart V, and there is no evidence that any of its members have any special knowledge concerning the intended scope of subpart V at the time it was promulgated. [*8] Accordingly, the interpretation given to Subpart V by that committee is of no assistance in determining the scope of the subpart.

Furthermore, even if the standards in Subpart V are applicable to Respondent's worksite, in my opinion Respondent complied with those standards. Respondent was charged with failing to maintain a 2 1/2 foot clearance between the 41.6 kV line and its employees. n1 Although the line had been deenergized, the Secretary contends that Respondent was obligated to treat the line as energized because it had not been grounded, locked out, and tagged as required by 29 C.F.R. 1926.950(d).

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n1 Respondent was cited, inter alia, for violating 29 C.F.R. 1926.950(c)(1), which provides:

(1) No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V-1, unless:

(i) The employee is insulated or guarded from the energized part (gloves or gloves with sleeves rated for the voltage involved shall be considered insulation of the employee from the energized part), or

(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or

(iii) The employee is isolated, insulated, or guarded from any other conductive object(s), as during live-line bare-hand work.

Table V-1, to which the standard refers, provides for a minimum clearance of 2 1/2 feet when the line voltage is between 35.1 and 46 kV.

[*9]

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I agree that, if the precautions required by 1926.950(d) are not taken, the line must be considered energized, and the precautions specified in 1926.950(c) must be observed. That does not, however, mean that Respondent must comply with the minimum clearance requirement of 1926.950(c), for alternatives to that requirement are permitted. One alternative is that the employee be insulated from conductive objects other than the power line. In this case, the employees were working in an insulated bucket. Respondent's unrebutted evidence showed that the insulation between the bucket and ground would have withstood a voltage higher than 41.6 kV, and that the employees would therefore not have been injured even had they contacted the line. Thus, on this record, there was compliance with the Secretary's standards. See Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 OSHC 1681, 1976-77 OSHD para. 21,098 (1976).

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I would agree with Administrative Law Judge Goldstein that the tree trimming was "construction" under section 1926.950(a)(1). We are not concerned [*10] with "construction" in a generic sense. Here, the regulatory definition of "construction" includes not only the erection of new electric transmission lines but also their "improvement," a very broad term. I agree with Judge Goldstein that trimming the trees results in an "improvement" of the lines.

But assuming arguendo the correctness of the majority's determination that the cited construction standard is inapplicable to tree trimming operations adjacent to power lines, n8 I would amend the citation pursuant to Fed. R. Civ. P. 15(b) to conform to the evidence establishing a failure to comply with the general industry standard published at 29 CFR § 1910.180(j)(1)(i). n9 The essential facts of a failure to maintain a safe distance from energized lines have been alleged and proved. The evidence reveals that, although the power line was deenergized, it was not grounded. Indeed, when asked by one of his linemen to ground and tag the lines, respondent's line crew foreman denied the request, claiming that deenergizing the lines afforded sufficient protection.

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n8 I disagree with that portion of the lead opinion stating:

Of course, if tree trimming were "construction work," it would clearly be regulated under Subpart V of Part 1926 and there would be no reason for the Committee to include tree trimming under the new maintenance and operation standard being drafted.

The promulgation of new standards can also be intended to preempt the applicability of existing construction standards by adopting standards specifically geared to the particular problems encountered in tree trimming. See United Telephone Company of the Carolinas, Inc., 42 BNA OSHC 1644, 1976-77 CCH OSHD para. 21,043 (No. 4210, 1976).

n9 That standard reads as follow:

§ 1910.180 Crawler locomotive and truck cranes.

(j) Operating near electric power lines.

(1) Clearances. Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:

(i) For lines rated 50kv. or below, minimum clearance between the linesand any part of the crane or load shall be 10 feet.

[*11]

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Moreover, the evidence establishes that none of the insulating devices used on the crane prevented employees from coming into contact with the power line. Michael Creger, a tree trimmer, testified that both a branch and a conductive pruner that he was holding came in contact with the line. n10 Creger also testified that, although insulating barriers are placed around the trucks when working on energized lines in order to protect employees on the ground, no such barricades were used on the day of inspection. The standard at § 1910.180(j)(1)(i) requires the use of insulating barriers not attached to the crane to prevent contact with the lines. No such barriers were used during the trimming operations. Finally, the truck used by respondent to accomplish the pruning work constitutes a form of truck crane n11 to which the requirements of § 1910.180(j)(1)(i) apply. See note 6 supra.

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n10 Testimony by another employee, David Hill, established that insulated gloves were available for use on energized lines. There is no evidence, however, establishing that the tree trimmers were wearing the gloves during the course of their work. This evidence refutes the dictum in the concurring opinion stating that, had the cited standard been applicable to respondent, there would have been no violation because of respondent's compliance with § 1926.950(c). See Utilities Line Constr. Co., 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976), where a Commission majority found that § 1926.950(c) had been violated when an employee stepped out of an insulated bucket and touched an energized power line without wearing insulated gloves. In that case the item was vacated, however, because the employee's actions contravened an effectively enforced work rule.

n11 A "truck crane" is defined as follows:

§ 1910.180 Crawler locomotive and truck cranes.

* * *

(a) Definitions applicable to this section.

(3) A "truck crane" consists of a rotating superstructure with powerplant, operating machinery and boom, mounted on an automotive truck equipped with a powerplant for travel. Its function is to hoist and swing loads at various radii.

[*12]

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Because I would decide this matter on the basis of a standard not raised by either party, I would allow the parties an opportunity to show good cause why the pleadings should not be amended. Kaiser Aluminum & Chemical Corp., 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976).

Appendix A

DECISION

This is an action by the Secretary of Labor to affirm his Citation and proposed penalty issued by the Occupational Safety and Health Administration to Consumers Power Company (sometimes hereinafter referred to as the Respondent). The controversy arose after an employee of the Respondent complained to the Administration of an alleged unsafe work practice, and a Compliance Officer for the Agency inspected the employment area. The Respondent forwarded a Notice of Contest to the Citation; and, after a Complaint and Answer were filed with this Commission, a hearing was held in Detroit, Michigan.

The Citation charged that the:

"Employer failed to provide, maintain and enforce the proper clearance from energized conductors for their employees.

Ref. An employee was allowed to approach closer [*13] than two and onehalf (2 1/2) feet to 45.6 K V conductors."

in violation of 29 CFR 1926.950(c)(1)(i)(ii); 2(d)(i)(iii)(iv)(v) providing as follows:

"(c) Clearances

The provisions of subparagraph (1) or (2) of this paragraph shall be observed.

(1) No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V-1, unless:

(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or

TABLE V-1
ALTERNATING CURRENT-MINIMUM DISTANCES
Voltage range	Minimum working
(phase to phase)	and clear hot
kilovolt	stick distance
2.1 to 15	2ft. 0 in.
15.1 to 35	2ft. 4 in.
35.1 to 46	2ft. 6 in."

"(d) Deenergizing lines and equipment

(1) When deenergizing lines and equipment operated in excess of 600 volts, and the means of disconnecting from electric energy is not visibly open or visibly locked out, the provisions [*14] of subdivisions (i) through (vii) of this subparagraph shall be complied with:

(i) The particular section of line or equipment to do deenergized shall be clearly identified, and it shall be isolated from all sources of voltage.

(iii) After all designated switches and disconnectors have been opened, rendered inoperable, and tagged, visual inspection or tests shall be conducted to insure that equipment or lines have been deenergized.

(iv) Protective grounds shall be applied on the disconnected lines or equipment to be worked on.

(v) Guards or barriers shall be erected as necessary to adjacent energized lines."

The Secretary's Complaint amended the description of the alleged violation and standard, regulation, or section of the Act allegedly violated to read:

"Failed to provide, maintain, and enforce the proper clearance between its employees and deenergized lines that the Respondent was obligated to treat as energized lines due to its failure to observe the precautions specified in 29 CFR 1926.950(d)

(Ref. At the rear and south of 234 S. Johnson, Pontiac, Michigan, where employees of the Respondent were engaged in trimming trees, an employee of the Respondent approached closer [*15] than 2 feet 6 inches to a 41.6 K V line) (29 CFR 1926.950(b)(2); c (1)(i)(ii); 2(d)(i)(iii)-(v)."

The added section 29 CFR 1926.950(b)(2) is quoted below:

"(b) Initial inspections, tests, or determinations

(2) Electric equipment and lines shall be considered energized until determined to be deenergized by tests or other appropriate methods or mean."

The facts may be briefly summarized. In September 1974 the Respondent assigned a work crew to trim trees on South Johnson Street in Pontiac, Michigan. The senior member of the crew visited the work site to familiarize himself with the task and noted that the trees to be trimmed were close to a transmission line of over 40,000 volts. Without experience in working around lines of high voltage, he consulted with a veteran lineman and union steward regarding operating procedures and was informed that if the task required the crew to be closer than two feet six inches to the wire it would have to be deenergized, tagged, and grounded before work could commence. This advice was verified by reference to the Company safety manual.

On the day the work was to be performed, the tree trimmer requested the Company foreman to ground, tag, and [*16] test the line to make certain it was deenergized. The foreman declined to follow this procedure but assured the crew that the line was deenergized or killed, and that no other precautions were necessary. He also denied a request that the switches be tagged on the ground that the Company did not do so for tree trimmers.

To avoid employment complications, the tree trimmer performed his duty without the requested safety measures, working while stationed in a fiberglass basket on a truck. From time to time the tree trimmer came within two feet of the subtransmission line and on at least two occasions the bucket contacted the wire.

The evidence at the hearing further disclosed that the wire had not been tagged, grounded, or tested. The tree trimmer could see one but not both sources of power because the line stretched approximately 10,000 feet. Under these conditions, a witness for the Complainant testified there was a hazard because of static electricity or the possibility of the wire falling into some energized conductor. He also pointed out that the purpose of tagging was to warn that employees were working on the line, and that it should therefore not be energized prematurely. [*17]

In a deposition taken prior to the hearing, the operating manager, Transmission and Distribution, American Electric Power Company, related that in his opinion subpart V of the regulations in question did not cover tree trimming operations, a view apparently shared by a Voluntary Industry-Labor Committee for the development of an operating and maintenance standard for electric utilities.

In summary, therefore, this case presents a situation wherein tree trimmers employed by the Respondent were permitted to work within two feet six inches of deenergized lines operated in excess of 600 volts; wherein the means of disconnecting from electrical energy were not visibly open or visibly locked out (one end being approximately 10,000 feet away); wherein all designated switches and disconnectors were not tagged; wherein tests were not conducted to ensure that lines were deenergized; and wherein protective grounds were not applied to the disconnected lines upon which work was performed.

On the foregoing evidence the Complainant contends that the Respondent was in violation of the regulations and that the Citation should be affirmed. The Respondent, on the other hand, argues that there was [*18] no violation of the standards in question for the reasons shown below:

A. The Secretary's pleadings were defective in that they fail to adequately inform the Respondent of the nature of the charge.

B. The Secretary's Complaint establishes that the conduct complained of does not violate the standard in question.

C. The standard does not apply because Respondent's employees were engaged in tree trimming, were not engaged in construction, and thus were not covered by Subpart V of Part 1926.

D. Part 1926.950(c)(1) and Table V-1 do not apply because Respondent's employee was isolated, insulated, and guarded from other conductive objects by the insulated boom boom and basket of the bucket truck from which he was working.

C. Respondent's employee was not exposed to any hazard.

In its brief the Respondent alleges that it was prepared to answer a claim regarding proper clearance from energized lines and suggests that it should not be penalized for failure to follow proper deenergizing procedures because the pleading did not state such a claim with particularity as required by Section 9(a) of the Act and Rule 33(a)(2) of the Commission Rules of Procedure. It appears, however, that [*19] the Secretary's theory of the case is based upon at least two points. The original charge as contained in the Citation stated that the employer failed to maintain proper clearance from energized conductors for its employees. That charge was made on the basis of the regulation 1926.950(b)(2) which provides that electric lines shall be considered energized until determined to be deenergized by tests and other appropriate means. The main thrust of the Complainant's case is in the Complaint which amended the Citation, which furnished further details of the violation, and which expanded the regulations upon which the Citation was originally based. Thus 1926.960-2-(d)(i)(iii)-(iv) was added, a standard requiring action to be taken when working near deenergized lines operated in excess of 600 volts. The allegation in the Complaint is considered to be fair and adequate notice of the Secretary's intent to press such a claim.

Contrary to the Respondent's allegations, the pleadings in this cause establish that the Respondent was not taken by surprise in these proceedings. For example, in Paragraph IV of its Answer the Respondent agreed that the electric transmission line in question was [*20] not energized and urged that the Citation be declared null and avoid for specified reasons. Inasmuch as the Respondent addressed itself to the Complainant's charges, it cannot now complain that it was taken by surprise. Furthermore, at the hearing evidence on the particular point was introduced by the Complainant, and the Respondent's attorney cross-examined witnesses on the issue involving deenergized wire.

Illuminating on this point is the recent case of Secretary v. Allis-Chalmers Co. OSAHRC Docket No. 5599, issued October 17, 1975, where the Review Commission cited with approval the case of National Realty & Construction Co. v. OSAHRC, 489 F. 2d 1257 (D.C. Cir. 1973) which held:

"So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled [*21] if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors (emphasis added; foot-notes omitted)."

In the case at bar the Secretary satisfied the "fair notice" test and complied with Section 9(a) of the Act and the Commission regulations by notifying the Respondent of the nature of the violation, of the standards involved, and of the time and place of the alleged violation. There thus appears to be no prejudice to the Respondent's cause by the pleadings in this case.

Next the Respondent contends that tree trimming operations are not covered by the construction standards, and in suppost of this position it refers to the deposition of a registered professional engineer who holds such an opinion and who adds that a labor-industry group in this field shares his view.

In this connection Section 2(b) of the Act provides that it is the purpose of Congress to assure so far as possible every working man and woman in the Nation safe working conditions. The regulation in question does not distinguish between tree trimmers and lineman or other individuals who may be working around energized or deenergized lines in construction work. In the definition [*22] of construction, the standard includes the improvement of existing electric transmission and distribution lines and equipment. Under Respondent's theory a tree trimmer would be excluded from coverage or protection; but before that classification of worker is excluded from the shelter of the Act, there should be clear statutory intention to this effect. None has been called to our attention. In fact, it has been frequently held that the law should be given a liberal interpretation to accomplish the good of the legislation. It is so stated in Brennan v. O.S.A.H.R.C. & Gerosa Inc. 491 F. 2d 1340, 1343 (2d Cir. 1974) where the Court held that it "* * * is especially important that these regulations be construed to effectuate Congressional objectives."

Furthermore, there is testimony to the effect that tree trimming was an improvement to existing transmission and distribution lines, and that the Company trimmed trees to maintain continuity of service, objectives within the meaning of the Regulation concerning application of the standards.

With due consideration to the view of the Respondent's expert who was of the opinion that the regulation did not encompass tree trimming [*23] operations, I conclude that a liberal view of the statute requires that all employees of the Respondent working around transmission lines, regardless of title or job description, are entitled to the protection of the regulation. This view is buttressed by the case of Secretary v. Pacific Gas & Electric Co. 16 OSAHRC 200, wherein the Commission ruled that the term "construction" in Regulation 1926.950(a) included transferring three primary conductors from a rotted pole to a new pole, replacing two secondary conductors, and installing a new transformer in place of two old transformers.

In Part D of its brief the Respondent argues that Regulation 1926.950(c)(1) and Table V-1 do not apply in this case because its employee was isolated, insulated, and guarded from other conductive objects. Even if it is assumed-without deciding - that the Respondent is correct in its interpretation, the fact remains that the company did not follow the requirements of the regulation concerning work around deenergized lines.

The Respondent also urges that the tree trimmer was not exposed to any hazard; but the record does not support this conclusion. A deenergized line does not necessarily mean [*24] no hazard is involved. If the Respondent were correct in this assumption, there would be no need to include in the Regulations procedures to be followed in working near such lines. Nor would the Respondent place in its safety manual specific practices to follow in activity around deenergized lines. Thus in its safety instructions there is a caution that:

"* * * work may be performed on de-energized lines after following the approved procedure of identification, de-energizing, testing, tagging, and grounding."

The hazard involved in this case was explained by the Compliance Officer, a former safety analyst for a power company and trouble line foreman for many years, who pointed out that the rule in the industry was that all conductors are considered energized until proven differently. He also testified that there was the hazard of static electricity and falling wires on some energized conductors. In his opinion grounding was thus necessary to prevent this hazard. On the foregoing it is concluded that the Complainant proved the hazard in this case. It is not necessary to have the first accident for the Complainant to establish this point.

In its Answer the Respondent also [*25] contended that the Citation should be dismissed because it was not issued with reasonable promptness, relying upon a Commission decision on this point. But the case of Brennan v. Chicago Bridge & Iron, 514 F. 2d 1082 (7th Cir. 1975) disposes of this argument, and the matter was not pursued in its brief. There also appears to be no quarrel with respect to the proposed penalty.

From the foregoing, and on the basis of the record in this case, I find that the Respondent, at the time and place charged by the Complainant, did not observe the precautions required by the regulation found at 29 CFR 1926.950(d) when it permitted a tree trimmer to work within two six inches of deenergized lines operated in excess of 600 volts. It is also concluded the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter; and that the Respondent is an employer as defined in Section 3 of the Occupational Safety and Health Act of 1970.

Based upon these findings of fact and conclusions of law, it is hereby ordered that the Citation dated November 12, 1974 and the proposed penalty therefore, be affirmed.

Date: December 2, 1975

Sidney Goldstein, Judge, [*26] OSAHRC