UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-3166
HARRY PEPPER & ASSOCIATES, INC.,
Respondent.

October 16, 1979

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

This matter is before the Commission on interlocutory appeal of Administrative Law Judge James D. Burroughs’ ruling denying the petition of Florida Power and Light Company (FP&L) to intervene in this proceeding. For the reasons that follow, we conclude that the judge erred; we reverse his ruling and remand.

Following a fatal accident at Respondent’s worksite, Complainant cited Respondent for violation of § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’), alleging that Respondent, while digging an excavation or trench for the installation of a sewer line, allowed a backhoe to be used within 10 feet of electrical transmission lines without taking adequate precautions for employee protection, such as deenergization of the lines, relocating the lines, or providing barrier guards.[*] Complainant further alleged that Respondent employed approximately 17 workers at the jobsite in question, all of whom were affected by the alleged violation.

Respondent denied that it had violated the Act as alleged and also raised a number of specific defenses. Among others, it contended that it had taken ‘such steps as it reasonably could to request Florida Power & Light Company to de-energize or otherwise protect the lines.’

Thereafter, FP&L timely filed its petition for leave to intervene under Commission Rule of Procedure 21, 29 C.F.R. § 2200.21.[†] FP&L asserted that Respondent was working adjacent to energized lines belonging to FP&L at the time of the accident which resulted in this proceeding and that an FP&L distribution line was involved in the accident. In FP&L’s view, the alleged violation raises important questions of law and fact involving not only the interests of Respondent but those of FP&L as well. Specifically, the outcome of this case could directly affect FP&L’s future work practices and procedures concerning the performance of any work adjacent to energized transmission and distribution lines. Even more specifically, FP&L contended that the outcome of this case will bear on the manner in which it will be able to service its customers in the state of Florida with respect to its ability to maintain uninterrupted electrical service when work is performed adjacent to its lines. Lastly, FP&L asserted that its participation would assist the Commission in resolving the issues in the case and would not cause unnecessary delay.

In his order denying FP&L’s petition, Judge Burroughs noted FP&L’s allegations that the case raised issues of law and fact which would involve its interests and that the outcome would affect the manner of its delivery of electrical service. He denied the petition, however, solely on the ground that FP&L ‘has no employees involved in this proceeding.’ FP&L then filed a request under Commission Rule 75 to appeal the judge’s ruling. We granted that request and stayed further proceedings.

FP&L agrees that the judge was correct in stating that FP&L employees were not involved in the fatal accident. Nevertheless, says FP&L, the requirements of the citation that lines be deenergized, relocated, or guarded would directly affect its property rights as well as the operation of its power lines. Therefore FP&L—as well as Respondent—is properly concerned about the potential abatement that this case might require both in terms of work practices that it might have to adopt in the future and its ability to maintain electrical service to its customers when work is performed adjacent to its lines.

Complainant before us renews the objections to intervention he had made to the judge. Specifically, Complainant contends that FP&L was not cited for any violation of the Act, had no employees working at Respondent’s job site, and was not in privity of contract with Respondent. Furthermore, Complainant asserts that deenergization is only one of several methods by which Respondent could have prevented the accident and that FP&L’s only possible interest in this case is potential liability in third-party civil actions that are beyond the Commission’s jurisdiction. Therefore, Complainant concludes that participation by FP&L will unduly delay the hearing and complicate and confuse the issues. In any event, Complainant contends in the circumstances the judge did not abuse his discretion.

Having considered the arguments both of Complainant and FP&L,[‡] we conclude that FP&L’s petition for intervention should be granted.

We have held that the matter of intervention in Commission proceedings is governed exclusively by the Commission Rule of Procedure 21, 29 C.F.R. § 2200.21. Brown & Root, Inc., 79 OSAHRC ___/___, 7 BNA OSHC 1526, 1979 CCH OSHD ¶23,731 (No. 78–127, 1979); appeal filed, No. 79–2802 (5th Cir. Aug. 1, 1979). That rule requires an applicant for intervention to set forth its interest in the proceeding and demonstrate that its participation will assist in determination of the issues in question and not cause unnecessary delay.[§] FP&L has satisfied these requirements.

The parties do not dispute FP&L’s assertions that Respondent was working adjacent to its energized lines and that one such line was involved in the fatal accident in question. Moreover, the abatement methods prescribed by the citation—deenergization or relocation of the lines or the provision of barrier guards—plainly contemplate direct action with respect to FP&L’s lines themselves rather than modifications to Respondent’s work practices that would not be of concern to FL&L. Since these measures involve actions to be performed directly on property belonging to FP&L—its power lines—we agree with FP&L that it has an interest in this proceeding sufficient to satisfy the first requirement of our rule.[**] See Pennsylvania Truck Lines, Inc., OSHRC Docket No. 77–3050 (Sept. 19, 1979).

Having concluded that FP&L has shown a sufficient interest in this proceeding, we now consider whether FP&L has satisfied the second requirement of our rule—that its participation will assist in the determination of issues in the case. As we have indicated, actions specifically involving power lines belonging to FP&L are among the abatement methods contemplated by Complainant. Respondent is defending in part on the ground that it had made a reasonable effort to have FP&L institute such measures, thereby putting into issue the feasibility or appropriateness of the abatement methods suggested by Complainant. Indeed, in cases arising under 29 U.S.C. § 654(a)(1), the appropriate abatement method is necessarily in issue. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).[††] Because FP&L presumably is familiar with the physical arrangement of its power lines and the circumstances under which they are energized, it is reasonable to conclude that FP&L would be able to assist substantially in the development of a record and in the presentation of arguments with respect to the question whether abatement methods suggested by Complainant could in fact have been instituted. Therefore, FP&L’s participation would aid in the adjudication of an issue in the case.[‡‡]

Finally, we agree with FP&L that in the circumstances its intervention would not cause unnecessary delay. In determining whether intervention should be disallowed on the grounds of delay, it is proper to consider the nature of the intervenor’s interest and the degree of its assistance to adjudication of the issues. Brown & Root, supra. In this case, FP&L’s interest extends not only to the abatement methods involved in this case but also to work practices that may have to be instituted in future work situations of a similar nature. Because FP&L may be able to assist substantially in the determination of abatement methods both retrospectively and prospectively we conclude that its intervention in this proceeding will not be a source of undue delay.

Nevertheless, we caution that proceedings before the Commission are not to be used as a forum for litigating matters totally unrelated to the citations alleging violations of the Act on which our proceedings are predicated: We are confident, however, that objections to the admission of extraneous evidence and the judge’s rulings thereon will be adequate to insure against abuse of Commission procedures.

Accordingly, the judge’s order on appeal is set aside, and this matter is remanded with instructions that FP&L be permitted to intervene. The stay previously entered is hereby dissolved.

So ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: OCT 16, 1979

[*] Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), requires that every employer ‘furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.’

[†] This rule provides as follows:

(a) A petition for leave to intervene may be filed at any stage of a proceeding before commencement of the hearing before the Judge.

(b) The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues in question, and that the intervention will not unnecessarily delay the proceeding.

(c) The Commission or the Judge may grant a petition for intervention to such an extent and upon such terms as the Commission or the Judge shall determine.

[‡] Respondent filed no response either to FP&L’s petition for intervention before the judge or to its request for permission to file an appeal from the judge’s denial of its petition.

[§] See note 2 supra.

[**] We are not unmindful of Complainant’s argument that deenergization is but one means by which Respondent could have prevented the conditions resulting in the citation. Furthermore, we recognize that the means of abatement specified in the citation are stated only as examples. However, Respondent is affirmatively defending on the ground that it had unsuccessfully attempted to have FP&L take specific actions with respect to the lines themselves. When the merits of this case are heard, it may well develop that Respondent could in fact have prevented the alleged violation by taking measures unrelated to the lines themselves, such as altering its work practices or improving its safety program. At this point, though, it would be purely speculative for us to anticipate that action by FP&L will not be a proper issue in this case. Similarly, it would be speculative to infer at this time as would Complainant that FP&L’s only interest is in the avoidance of potential tort liability.

We also note that Complainant moved before the judge to amend the citation and complaint to allege in the alternative a violation of the standard at 29 C.F.R. § 1926.600(a)(6). This standard requires that when certain mechanized equipment including excavating equipment is working or being moved in the vicinity of power lines or energized transmitters it must comply with 29 C.F.R. § 1926.550(a)(15). The latter standard requires as follows:

Except where electrical when certain mechanized equipment have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with . . . [certain clearance distances specified depending on the amount of voltage]

Since the judge has not as yet ruled on this motion, we express no opinion at this time on whether amendment would be proper. We do, however, observe that direct action with respect to the power lines themselves is a permissible means of abatement under the standard to which Complainant seeks to amend as well as under the § 654(a)(1) charge alleged in the citation and complaint.

[††] See note 5 supra and accompanying text.

[‡‡] We also are not persuaded by Complainant’s further contention that FP&L was not in privity of contract with Respondent. The requirements for intervention under our Rule 21 do not depend on any contractual relationship between the existing parties and a petitioner seeking to intervene. See Brown & Root, supra.

[§§] Fed. R. Civ. P. 24(a) provides:

Rule 24. Intervention.

(a)intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene: or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.