SECRETARY OF LABOR,
Complainant,

v.

CONCRETE CONSTRUCTION CO., INC.,
Respondent.

OSHRC Docket No. 82-1210

DECISION

Before: BUCKLEY, Chairman; and CLEARY, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising, out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

Item 1(a) of a citation issued by the Secretary alleged that part of a backhoe operated by Concrete Construction Company came within ten feet of an energized power line, contrary to 29 C.F.R. § 1926.550(a)(15)(i). That standard requires that, unless electrical power lines have been deenergized or insulated, a ten-foot clearance be maintained between the lines and all parts of a crane. Item 1(b) specified that the worker designated by Concrete to observe clearance of the backhoe was assigned additional tasks that prevented him from ensuring that clearance was maintained, in alleged violation of section 1926.550(a)(15)(iv).

That standard requires that, where it is difficult for a crane operator to maintain clearance visually, a person "be designated to observe clearance of the equipment and give timely warning . . . . "[[1]] A hearing was held before Administrative Law Judge Paul L. Brady, who affirmed both items.

As an initial matter, Concrete argues that section 1926.550(a)(15)--a crane standard--does not apply to its backhoe, which it characterizes as excavation equipment. The employer argues that backhoes are covered under a different subpart, Subpart O of Part 1926, which deals expressly with excavation equipment. Concrete cites the Commission's recent decision in Lisbon Contractors, Inc., 84 OSAHRC __, 11 BNA OSHC 1971, 1984-85 CCH OSHD ¶ 26,924 (No. 80-97, 1984), which held that a Caterpillar 235 backhoe identical to the one used here is not a "crane" within the meaning of section 1926.550(a)(9), the crane barricading standard.

Lisbon is not controlling, however, because that decision involved section 1926.550(a)(9). Section 1926.550(a)(15), the section cited in this case, is different from section 1926.550(a)(9) and other sections of the crane standard in that it expressly was made applicable to non-crane equipment, including backhoes, by a provision in Subpart O, section 1926.600(a)(6). Section 1926.600(a)(6) provides that "[a]ll equipment covered by this subpart [Subpart O] shall comply with the requirements of § 1926.550(a)(15) when working or being moved in the vicinity of power lines or energized transmitters."[[2]] It is clear that this Caterpillar 235 backhoe is covered by Subpart O. Section 1926.602(b), a provision within Subpart O, is captioned "Excavating and other equipment" and expressly mentions backhoe attachments at section 1926.602(b)(1). Section 1926.602(b)(3) cross-references several other standards, at least one of which-- Power Crane and Shovel Association Standard No. 3 of 1969, Mobile Hydraulic Excavator Standards, section 2.0.1--specifically covers backhoes. Finally, Concrete states that its backhoe is excavation equipment and asserts that it is covered by Subpart O. We agree and find that section 1926.550(a)(15) applies.

Item 1(a): Section 1926.550(a)(15)(i)--Clearance

Section 1926.550(a)(15)(i) requires that, where electrical distribution or transmission lines have not been deenergized or insulated, the "Minimum clearance between the lines and any part of the crane or load shall be 10 feet." Three electric power lines above Concrete's backhoe were neither deenergized nor insulated. The judge found that the required clearance from energized lines was not maintained, for the backhoe contacted a power line, a fact not in dispute. The only issue on review is whether the Secretary proved that Concrete knew or with the exercise of reasonable diligence could have known of and prevented the violation. See, e.g., Scheel Construction, Inc., 76 OSAHRC 138/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD ¶ 21,263 (No. 8687, 1976). We find that he did.[[3]]

Concrete was putting in a waterline alongside a road in Groveport, Ohio. A Caterpillar 235 backhoe excavator was used to dig a trench and lay pipe sections. The trench was located under three power lines, each carrying 7,620 volts. At one point the lines were about 28 feet above ground level. Given the standard's requirement of a ten foot clearance, Concrete had 18 feet in which to maneuver the entire backhoe under that point. At another point, the three lines hung 22 feet off the ground, leaving only 12 feet in which to maneuver the backhoe. At the time of the alleged violation, approximately 1500-2000 feet of pipe had been laid underneath the power lines. Each section of the steel- lined utility pipe was 20 feet long, 50 inches in diameter, and weighed 11,800 pounds.

The trench was dug in sections 11 or 12 feet wide and was long enough for one piece of pipe to be laid at a time. After digging a new section of trench, the backhoe operator would move the backhoe twenty feet back from the opening, in a line parallel to the road. The operator then rotated the backhoe's superstructure 90 degrees clockwise and extended the backhoe arm about 30-35 feet across the road to where the pipe sections were stored. Concrete had designated an employee to observe the clearance of the backhoe from the overhead power lines and to assist in lowering the pipe section into the trench. The observer would attach a sling around the pipe and hook the sling and pipe to the backhoe bucket. The backhoe operator then dragged the pipe toward the machine until enough leverage was gained to raise the pipe off the ground. The arm could be extended a maximum of about 25 feet and still maintain leverage to raise the pipe. The operator then pivoted the arm with its load back (not quite a full 90 degrees) toward the open trench, moved the backhoe forward until the pipe was next to the trench, again pivoted the arm until the pipe was above the trench, and lowered it into the trench.

While the pipe was suspended near the trench, the observer would grasp the end of the pipe closest to the backhoe to steady it. When the pipe was about to be lowered into the trench, the observer would be standing in front of the backhoe at the edge of the trench. This observer or a worker in the trench would signal the backhoe operator to lower the pipe. The backhoe operator testified that the observer's assistance was necessary to ensure that safe clearance was maintained. In his words: "I told him to watch the wires overhead. And, he'd have to signal me when I got next to the trench because I couldn't watch him and watch the people below [workers in the trench] too." The intrusion into the ten-foot zone occurred as the operator was about to lower a pipe section into the trench in the usual manner. As the arm of the backhoe was swung toward the center of the trench and the 28-foot-high power lines, its knuckle joint made contact with one of the lines, electrocuting the observer.

Before trenching operations were begun, Concrete met with employees of the electric utility. They reviewed the locations of utility poles and underground power lines and discussed ways of ensuring that the trenching operation would not undermine the footings of the poles. The height of the lines, the adequacy of the clearance from them, and the possibility of deenergizing or temporarily insulating the lines were not discussed, because Concrete's representative believed there would be sufficient room for the backhoe to safely perform its work. The electric utility could have deenergized the lines at Concrete's request and at Concrete's expense, as it later did. The record does not show whether the lines could have been insulated.

After the meeting but before it began digging operations, the company also conducted a "dry, run" with the Caterpillar 235. On the basis of "eyeball" estimates during this "dry run," Concrete's job superintendent, Lusignolo, concluded that the wires ranged from 25 to 35 feet in height and that there would be about 13 feet of clearance. The record does not reflect whether the dry run was con ducted under a midpoint, where the lines would hang lowest, or whether a pipe and sling arrangement similar to that being used at the time of the alleged violation were employed. No measurements were taken during the dry run.

At the hearing, the height reached by the backhoe arm, particularly its knuckle joint, became a focus of attention. The operator of the backhoe testified that the knuckle joint was about 18 feet high during the pipe-lowering portion of the operation. Concrete's job superintendent, Lusignolo, estimated that the knuckle joint reached a height of 14 to 15 feet. Concrete also introduced a photograph showing the height of the knuckle joint as 16 feet and the height of two hydraulic lines attached to the backhoe arm's knuckle joint as nearly 18 feet during a purported simulation of the operation.[[4]]

The judge found that the trenching operation was conducted in a manner that Concrete reasonably should have known would encroach on the 10-foot zone around the power lines, as it did. This finding is fully supported by the facts. The sling that Concrete used extended about eight feet from the top of the pipe to the hook on the backhoe. The pipe was over four feet in diameter and was carried one foot off the ground. The height of the rigging and load together was therefore at least thirteen feet. This meant that in order to maintain a 10-foot clearance under a 28-foot-high power line, the operator had only five feet in which to maneuver the arm of the backhoe. Under a 22-foot-high line, there would have been no room at all in which to maneuver without encroaching into the 10-foot zone.[[5]]

That there was no margin for error is apparent from an examination of the specifics of the pipe-lowering operation. Both the backhoe operator and Concrete's superintendent testified that, after the backhoe arm picked up a pipe section but before the backhoe and the pipe moved forward to the open trench, the backhoe arm was extended 25 feet horizontally. Once the pipe was next to the trench, the backhoe arm was pivoted horizontally several feet to the left until the fifty- inch-wide pipe section cleared the edge of the twelve-foot-wide trench.[[6]] The pipe section was then lowered vertically into the trench. The closest energized power line was nearly directly above the trench's centerline.

The operator thought and Concrete argues that the knuckle joint was then 18 feet high. This meant, under the employer's own view, that only inches of clearance from the ten-foot zone were left when the backhoe was operated under lines slightly higher than 28 feet, and that no clearance whatsoever was left when it was operated under 28-foot-high lines. Under 25-foot- high lines, which was the lower end of the range of heights estimated by Concrete's supervisor during the dry run, the backhoe arm assembly would encroach three feet into the ten foot zone. Under the 22-foot height measured in the area in which Concrete was working the backhoe arm would encroach six feet.

We find that, had Concrete exercised reasonable diligence, it could have known of and prevented the violation. Concrete was conducting a series of operations under three energized power lines that it knew varied in height and were close enough to pose a grave danger. It elected not to have the lines deenergized by the local power company and chose instead to maintain a ten-foot clearance from the lines. Yet, with a minimum of foresight and effort, Concrete could have discovered that its rigging arrangement and pipe-laying procedure left no room in which to maneuver the backhoe arm even assuming the accuracy of its own estimate of the height of the lines, the height. reached by the backhoe arm and its ability to maneuver the machine precisely within very narrow limits. In fact, Concrete's backhoe could not be operated with such precision, as evidenced by the fact that its knuckle joint contacted a line that was nearly 28 feet high, at least ten feet higher than any of Concrete's witnesses thought the knuckle joint would be. The circumstances of this case demonstrate that Concrete failed to exercise reasonable diligence in maintaining a ten-foot safety margin. We therefore affirm item 1(a).

Item 1(b): Section 1926.550(a)(15)(iv)--Observer

Section 1926.550(a)(15)(iv) requires that "[a] person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual, means[.]" Chairman Buckley and Commissioner Cleary are divided over whether, the observer requirement was violated.

Commissioner Cleary agrees with the judge's finding that the employer failed to comply with the standard. In Commissioner Cleary's view, the standard requires more than the mere provision of an observer. It requires that the observer not be assigned additional duties that prevent him from assuring that no part of the equipment or its load comes within ten feet of energized power lines. Here, Concrete's job superintendent assigned its observer the additional task of assisting the backhoe operator in lowering the pipe into the trench by having him steady the load and guide it into the trench. The so-called observer appears to have been, in actuality, a helper or rigger. The backhoe operator testified without contradiction that when a pipe section was about to be lowered into the trench--the moment when the backhoe boom was closest to the power line --it was "crucial" that the attention of the observer be directed at the pipe. In Commissioner Cleary's view, this unrebutted testimony establishes that the employer did not designate a person to "observe clearance" and "give timely warning" to the backhoe operator within the meaning of the standard.[[7]] In any event, as the Commission's discussion of the clearance violation demonstrates, Concrete had set up its pipe-laying procedure in such a way that repeated violations of the ten-foot safety zone were inevitable. Its "observer" could therefore have reasonably been expected to give warning only of impending contact with a power line, rather than intrusion into the safety zone. So hollow a "designation" of an observer violates the standard. Commissioner Cleary would therefore affirm item 1(b).

In Chairman Buckley's view, the judge erred in affirming this citation item. Contrary to the Secretary's argument to the judge, the standard does not require that an observer have no other, duties to perform and that he devote all his attention to observing clearance. The standard requires only that an employee be designated to observe clearance and give timely warning. The record does not show that this was not done. Although the Secretary claimed that an observer was assigned duties that prevented him from adequately ensuring that clearance was maintained, the record shows at most that he had some other duties to perform. During the pipe-laying operation, the observer would, in the operator's words, "glance" at the workers in the trench. The record does not show that the observer's other duties prevented him from effectively carrying out his task of observing clearance. At most it shows that he was required to perform separate tasks during the operation. That these tasks did not interfere with each other is demonstrated by the job superintendent's unrebutted testimony that he occasionally substituted for the observer and was able both to maintain the required clearance and steady the pipe. Furthermore, the observer was positioned where he could clearly and closely observe the proximity of the overhead power lines to the slowly-moving arm of the backhoe. At the point where the pipe would be lowered into the ground and the observer's gaze would shift to the pipe fitters in the trench, the arm of the backhoe had already reached the point at which it was closest to the power lines. There is no evidence to support a finding that the observer could not timely warn the operator that the backhoe arm was within ten feet of the overhead wires. At most it can be inferred from the fact of the accident that, warning was given or that a warning was given but ignored. Yet, neither inference could support a finding that the observer's duties, if properly discharged, precluded a timely warning. Accordingly, Chairman Buckley would conclude that the judge erred in finding a violation of section 1926.550(a)(15)(iv).

To resolve this impasse and to permit this case to proceed to a final resolution, the members have agreed to affirm this portion of the judge's disposition but accord it the precedential value of an unreviewed judge's decision.[[8]] See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979). The judge assessed a total penalty of $500 for both the clearance and observer violations. Chairman Buckley would assess a penalty of $500 for the clearance violation alone and would assess no penalty with respect to the observer item, which he ordinarily would vacate. Commissioner Cleary agrees with the judge's combined assessment. Accordingly, the two Commissioners affirm the judge's decision with respect to citation item 1(b) but accord this affirmance the precedential value of an unreviewed judge's decision. The judge's decision with respect to citation item 1(a) is affirmed without qualification. A total penalty of $500 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: JAN 25 1985