Harry C. Crooker & Sons, Inc.

Plain-English summary

A foreman operated an excavator with its boom six to seven feet from an energized 240-volt service drop while performing street reconstruction work. The applicable construction standard required at least ten feet of clearance. The ALJ held that the general-industry electrical rule did not displace the construction rule and that the line's plastic covering was not proven to be effective insulation. The employer also failed to prove infeasibility because it did not rebut a proposed compliant work method, contact the utility before the inspection, or use other feasible protective measures. The serious citation was affirmed, and the stipulated $2,800 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.600(a)(6), incorporating 29 C.F.R. § 1926.550(a)(15)(i)
• Outcome: The serious citation was affirmed, and a penalty of $2,800 was assessed.
• Key point: A construction employer that cannot maintain required power-line clearance must prove infeasibility and still use feasible alternative protection.

Full text (OSHRC public release)

                      OCCUPATIONAL AND HEALTH REVIEW COMMISSION
                        1120 20th Street, N.W., Ninth Floor
                          Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 06-1735
HARRY C. CROOKER & SONS, INC.
Respondents.

APPEARANCES:

Merle D. Hyman, Esq. James A. McCormack, Esq.
Office of the Solicitor Taylor, McCormack & Frame, LLC
U.S. Department of Labor 4 Milk Street, Suite 302
John F. Kennedy Federal Building Portland, Maine 04101
Room E-375
Boston, Massachusetts 02203 For the Employer
For the U.S. Department of Labor

BEFORE: Covette Rooney
Administrative Law Judge

                              DECISION AND ORDER


   This case is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651­
678 (“the Act”), to review a citation issued by the Secretary of Labor (“Secretary”). The citation
alleges that respondent, Harry C. Crooker & Sons, Inc. failed to comply with 29 U.S.C.
§1926.600(a)(6)1 which requires compliance with 29 C.F.R. §1926.550(a)(15)2
A hearing was held in Portland, Maine on April 24, 2007. The parties have filed both
opening and reply briefs and this case is now ready for disposition.

                                        BACKGROUND
     The basic facts are not in dispute and were largely stipulated by the parties3. Respondent

1
§1926 .600 Equ ipment.
(a) Gen eral requiremen ts.
* * *
(6) All equipment covered by this subpart shall comply with the requirements of §1926.550(a)(15) when
working or b eing moved in the vicinity of po wer lines or energized transmitters.

2
§ 192 6.550 Cra nes and derricks.
(a) General
* * *
(15) Exc ept where electrical distribution and tra nsmissio n lines have be en de energized a nd visib ly
grounded at point of work o r where insulating barriers, not a p art of or an attac hment to the equipment or ma chinery,
have been erected to p revent physical contact with the line s, equip ment or ma chines shall be operated proximate to
power lines only in accordance with the following:
(i) For lines rated 50 kV or below, minimum clearance between the lines and any part of the crane or load
shall be 10 feet
3
The stipulations were agreed upon prior to trial and are found in the Joint Pre-trial Statement dated April 10. 2007.
(Tr. 24 ). The stipulations, as amended, stated:
(a) Crooker pipe crew foreman and 17 year employee Tracy Thomas was operating the 330 Cat Excavator, whose
boo m was within 6-7 feet of an energized 2 40 volt service dro p line at location on Jordan Avenue, Brunswick,
Maine, on or about May 16, 2006.
(b )Harry C. Crooker & Sons is engaged in business affecting interstate commerce.
(c) Respondent has not applied to OSHA for a variance from comp liance with 29 C.F.R. 192 6.600(a)(6) which
references 29 C.F.R. 1926.550(a)(15 ).
(d) Respondent has an office and place of business at 103 Lewiston Road, Topsham, Maine.
(e) On May 16, 2007, Compliance Officer Steven Warner conducted an inspection of Respondent’s worksite at
59 J ordan Ave., Brunswick, M e.
(f) If a violation of 29 CFR 1926.600 (a)(6) is found, the proposed penalty of $2800 is appropriate.
(g) 1) Title Title 35-A MRSA sec 751 et seq is a M aine statute entitled “Overhea d H igh-Voltage Line Safety
Act”.
2) Respo ndent’s 330 CAT Excavato r is “covered equip ment” as de fined in se c 752(1) of the abov e Act.
3) The above Act precludes covered equipment from coming within “10 feet of an overhead high-voltage
line” during construction activities.
4) An “overhead high-voltage line” is defined in the above Act as “all above-ground bare or insulated
electrical cond uctors of voltage in ex cess of 600 volts measured between a conduc tor and the ground,
that are owned or op erated by a transmission and distribution utility’ with some excep tions no t factually
relevant to this matter.
5) H arry C. Crooker & Sons is a “p erson ” as defined by sec 752 (3) of the abo ve Act.
(h) On or about May 16, 2006, Harry C. Crooker & Sons was involved in a project
replacing storm drain, water and sewer pipe on both sides of Jordan Avenue underneath sidewalks, paving the
road and sidewalks, and installing granite curb.
(i) The owner of the above project was the Town of Brunswick, Maine.

                                                         2

is engaged in a business affecting interstate commerce (Stipulation (b)). On May 16, 2006,
compliance officer Steven Warner conducted an inspection of respondent’s worksite in
Brunswick, Maine, where it was engaged in a street reconstruction project. The project required
new storm drainage and underdrain on both sides of the road, sewer and water rehabilitation,
new granite curbing, new sidewalks, and new gravel base for the entire road and new paving (Tr.
86, Stipulation (h)). The worksite was dynamic and moved as the project progressed (Stipulation
(j)). Equipment used included several different sized backhoes, a couple of front-end loaders, at
least one or two bulldozers, motor graders, pavers, rollers of assorted sizes and pavement
reclaimers (Tr. 87). The compliance officer observed respondent’s pipe crew foreman and 17
year employee Tracy Thomas operating a 330 Cat Excavator, whose boom was within 6-7 feet of
an energized 240 volt service drop line that fed electricity from the main distribution line to a
home on Jordan Avenue, Brunswick, Maine. (Stipulation (a)). The service drop line was 14 feet
above the ground. (Respondent Exhibit (hereinafter” Ex. R”) 6, p.5) However, much of the
equipment, including the excavators was over 11 feet tall (Tr. 88). As a result of the compliance
officer’s observations, respondent was issued a citation alleging a serious violation of 29 C.F.R.
§1926.660(a)(6).4 A penalty of $2,800.00 was proposed.

                                       DISCUSSION
       A. Is the cited Construction Industry standard inapplicable because a more

specifically applicable General Industry standard applies?
“Construction work” is defined at 29 C.F.R. §1926.32(g) as “work for construction,
alteration, and/or repair, including painting and decorating.” There is no dispute that the
respondent’s activities on the day of the inspection constituted “construction work.” Nevertheless,

(j) The nature of the work done at the Jordan Avenue project involved a dynamic job site that moved as the
project progressed.
(k) The project required compliance with trenching standards promulgated by OSHA.

4
Respondent was originally issued Citation 1, item 1 for a violation of 29 CFR 1926.550 (a)(15)(i) on June 5, 2006.
OSHA withdrew that citation on September 18, 2006 and reissued on September 19, 2006 to allege a violation of 29
CFR 1926.600(a)(6) which requires compliance with the requirements of 1926.550(a)(15). Due to a typographical
error, the actual citation listed the standard as 1920.600(a)(6) with a correct instance description. Complainant filed
an uno ppo sed m otion to amend the citation and com plaint to corre ctly identify the standa rd as 1 926 .600 (a)(6). Said
motio n was granted in January, 20 07.

                                                        3

respondent argues that the cited construction industry standard is inapplicable to its worksite.
According to respondent, the general industry standard at 29 C.F.R. §1910.333 should have been
cited because, under §1926.600(a)(6), compliance was infeasible. Specifically, respondent notes
that §1910.333(a)(1) requires that live parts to which employees may be exposed be deenergized
“unless the employer can demonstrate that deenergizing introduces additional or increased
hazards or is infeasible due to equipment design or operational limitations.” Respondent contends
that this feasibility consideration is specifically applicable here where, as will be discussed infra,
it argues that due to the height of the equipment, it was not feasible to maintain a 10 foot
clearance from the service drop lines. (Respondent’s Brief at 15).
Respondent also points to other provisions of §1910.333 where, it argues, under
circumstances specifically applicable here, it is not required to maintain a 10 foot clearance. For
example, respondent notes that §1910.333(c)(3)(ii) permits “qualified”5 persons to operate within
the 10 foot barrier. Indeed, for lines carrying 300 volts or less, “qualified” operators are advised
merely to “avoid contact.” (Respondent’s Brief at 16).
Respondent also points to an Interpretive Letter issued by the Secretary on December 7,
1999 wherein, it is claimed, the Secretary specifically stated that §1910.333(c)(3)(iii) applies to
the operation of mechanical equipment, such as cranes, near overhead power lines.
(Respondent’s Brief at 15).
Finally, respondent recognizes that 29 C.F.R. §1910.5(c)(1) states that:

            If a particular standard is specifically applicable to a condition, practice,
     means, method, operation, or process, it shall prevail over any different general
     standard which might otherwise be applicable to the same condition, practice,
     means, method, operation or process.

5
A “qualified person” is defined a t §191 0.399 as:
“one familiar with the constructio n and operation o f the equ ipme nt and the hazards involved.”
However, §1910.332(b)(3) also states that for purposes of compliance with §§1910.331-1910.335:
Additional requirem ents for qua lified persons. Qualified persons (i.e. those permitted to work on or near
exposed energized parts) shall, at a minimum, be trained in and familiar with the following:
(i) Th e skills and techniq ues necessary to distinguish exp osed live parts from other p arts of electric
equipme nt.
(ii) The skills and techniques necessary to determine the nominal voltage of exposed live parts, and
(iii) The clearance distances specified in §1910 .333(c) and the corresponding voltages to which the
qualified person will be exposed.

Respondent asserts that its operator was a “qualified person.” However, given the disposition of this case, it is not
necessary to d etermine whe ther the o perator was “qualified” within the me aning o f the stand ard.

                                                       4

However, respondent calls attention to §1910.5(c)(2) which states that
On the other hand, any standard shall apply according to its terms to any
employment and place of employment in any industry, even though particular
standards are also prescribed for the industry, as in subpart B or subpart R of this
part, to the extent that none of such particular standards applies.

   Respondent interprets 29 C.F.R. §1910.5(c)(2) as modifying §1910.5(c)(1) to allow the

general industry standard to apply where it is not feasible to apply the specific industry standard.
(Respondent’s Brief at 12).
Respondent’s arguments are without merit. There is no disagreement that, under
§1910.5(c)(1), standards promulgated for a specific industry preempt general industry standards
that address the same conditions. Daniel Construction Co.,10 BNA OSHC 1549, 1554-55 (No.
16265, 1982). However, respondent notes that “[i]t is well settled that a general standard
prescribing compliance action is not preempted by a specific standard unless both address the
same particular hazard.” Brock v. Williams Enterprises of Georgia, Inc and OSHRC, 832 F.2d
567, 570 (11th Cir. 1987). While respondent’s recitation of the law is correct, the fault in its
argument is that both standards address the same hazard: the hazard of electrocution by contact
with power lines. That it may be infeasible to comply with the specific industry standard does
not mean that the standard does not address the hazard.
Moreover, respondent’s interpretation of §1910.5(c)(2) as allowing the application of a
general industry standard when it is impractical to apply a similar standard promulgated for a
specific industry, finds no support in either the regulations or the case law. Contrary to
respondent’s assertion, the purpose of §1910.5(c)(2) is to make it clear that the general industry
standard applies only when no specific industry standard addresses the condition.
As noted by the Third Circuit:
The general safety standards complement the specific safety standards. . .
by filling the interstices necessarily remaining after promulgation of the specific
standards. The Secretary cannot be expected to have anticipated every
conceivable hazardous situation in promulgating specific standards.

   Dravo v. OSAHRC and Marshall, 613 F.2d 1227, 1234 (3d Cir. 1980).

   Clearly, §1910.5(c)(2) was not intended as a convenience to the employer to enable it to

                                              5

pick and chose the standard with which compliance would be easiest. To hold otherwise would
add a level of subjectivity in the application of the standards that would only confuse employers
in their attempt comply with the Act.
The interpretative letter of Dec. 12, 1999 does not mandate a different result. Respondent
correctly notes that the letter states that §1910.333(c)(3)(iii) applies to the operation of
mechanical equipment, such as cranes, near overhead power lines. (Respondent’s Brief at 15). A
complete reading of the letter, however, makes it clear that it applies to such equipment only
when not engaged in construction work.

   B. Did Respondent establish that it was in compliance with the standard because the

service drop lines were appropriately insulated?
Respondent next asserts that the service drop line was insulated and, therefore in
compliance with §1926.550(15), which requires that an appropriate clearance from power lines
be maintained
Except where 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 equipment or machinery, have been erected
to prevent physical contact with the lines. . . (emphasis added)

   Explicitly written as an exception to the standard, respondent has the burden of

establishing that it applies. Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1522 (No. 90­
2866, 1993). Respondent has not met its burden.
OSHA Interpretation Letter of August 9, 2004 states that whether factory-installed
insulation can be a sufficient “insulating barrier” depends on two factors: (1) whether the
employer has sufficient information to confirm that the factory-installed insulation is sufficient
to prevent the passage of current and is intact, and (2) whether, in light of the circumstances
(including the type of equipment and tools being used) it is reasonably foreseeable that the
insulation would be damaged while doing the work.
Respondent notes that the covering on the line was rated at 600 volts (Tr. 75). Therefore,
it asserts that the covering constituted insulation of the service drop lines, which carried only 240
volts. While respondent established that the covering on the lines was rated at a level that would
constitute insulation within the meaning of the exception, it failed to adduce any evidence that

                                               6

the condition of the line was such that it was capable of providing the rated insulation. As the
Secretary also noted in her Interpretation of August 9, 2004: “[i]n most cases the employer will
not be able to determine if such a line has sufficient insulating properties (both with respect to
the type of insulation and its condition) to prevent electric shock without consulting the utility
owner-operator.”
In her Affidavit of May 3, 2007, Carol Purinton, the Service Center Manager for the
Brunswick District of Central Maine Power Company (CMP) attested that the two current
carrying lines that comprise CMP’s triplex service drops have a plastic covering factory rated to
600 volts. However, she also stated that “CMP’s work practice is to consider the service drop as
not insulated, requiring personnel to maintain established clearance or use appropriate personal
protective equipment. CMP does not consider the plastic covering as protection for its
employees, members of the public or contactors working near these lines.” (Ex. R-12)(emphasis
in original).6
Respondent’s own witness, OSHA consultant and former compliance officer Skip Hoyt
stated in his report that “[s]ervice entrance lines are manufactured with insulation suitable for the
voltage they carry. However, the insulation breaks down with climatic exposure and over several
years the insulation may crack or even break off the lines. Therefore, the utilities and OSHA
treat all service entrance lines as uninsulated.” (Ex R-9 at 3). (emphasis added) He concluded:
“There are too many variables associated with this type of exposure to predict the
consequence of contact with a service entrance by a heavy piece of construction equipment such
as a crane, backhoe or truck. The prudent rationale is to expect the worse and abate
accordingly.” (Ex. R-9 at p.4)(emphasis added).
Moreover, in his report, OSHA Compliance Assistance Coordinator, Kenneth Mastrullo,
noted that “It is standard utility practice that service drop conductors are covered not insulated.
The covering on this type of power line has no insulating value and provides no protection for
workers against electrical shock or electrocution.” (Ex C-1 at 3). He also stated that “[t]ypically,
the electric power lines are covered, which does not provide safety for workers. The covering on
the electric power lines provide extended life for the equipment and does not provide safety for

6
This exhibit was acc epted into the re cord after comple tion of the hearing.

                                                           7

the workers.” (Ex. C-1 at 5).7
Finally, at the hearing, Skip Hoyt testified that CMP considered their service drop lines
to be uninsulated for “liability purposes.” (Tr. 82). Hoyt elaborated:
They want to make sure that anybody that could potentially contact one of
their service drops treats it as an uninsulated line so that if there’s an accident
they’re not liable.
(Tr. 82).
This judge is not prepared to say that covered lines that are not sufficient to be deemed
insulated for liability purposes are sufficient when the lives of employees are at stake.
Accordingly, I find that respondent failed to establish that the covering on the service
drop lines provided insulation sufficient to constitute an exemption from the cited standard.

                                   C. Prima Facie Case
     To establish that an employer violated a standard, the Secretary must prove as part of her

prima facie case that :1) the standard applies to the cited conditions; 2) the terms of the standard
were violated; 3) one or more of the employer’s employees had access to the cited conditions;
and 4) the employer knew or with the exercise of reasonable diligence, could have known of the
violative conditions. Ormet Corporation, 14 BNA OSHC 2134, 2135 (No. 85-0531, 1991); North
Berry Concrete Corp., 13 BNA OSHC 2055, 2056 (No. 86-0163, 1989).
As found supra, the cited standard applies to the condition. Moreover, there is no dispute
that respondent operated its 330 Cat Excavator within the 10 foot clearance required by the
standard.(Stipulation (a), Tr. 8, 15). The record also establishes that respondent’s foreman, Tracy
Thomas, was operating the excavator. (Stipulation (a)). The actual or constructive knowledge of
a foreman or other supervisory employees can be imputed to the employer. A.P. O’Horo Co., 14
BNA OSHC 2004, 2007 (No. 85-0369, 1991). Finally, respondent does not dispute that its
employees were exposed to the conditions. (Stipulation (a)). Had the excavator boom contacted
the crane, the results could have been death or serious physical harm, including electrocution
(Tr. 29-30, 35). Accordingly, the Secretary met her burden and established a prima facie
violation of the standard. Although the Secretary established a prima facie violation, respondent

7
At the hearing, Mastrullo testified that he determined that he determined that the line was not properly insulated by
exam ining a p hoto of it through a magnifying glass. The record does not ind icate wh at he observ ed to lead him to
that conclusion. Acc ordingly, in reac hing my decisio n, I give no weight to that statement.

                                                       8

argues, as an affirmative defense, that the citation should be vacated because compliance with
the cited standard was infeasible.

     D. Did Respondent establish as an affirmative defense that compliance with the

cited standard was infeasible?
To establish the affirmative defense of infeasibility, the burden is on the employer to
show that “(1) the means of compliance prescribed by the applicable standard would have been
infeasible, in that (a) its implementation would have been technologically or economically
infeasible or (b) necessary work operations would have been technologically or economically
infeasible after its implementation, and (2) there would have been no feasible alternative means
of protection.” Southern Pan Services Co., 21 BNA OSHC 1274, 1278 (No. 99-0933, 2005);
Star Brite Construction Co., 19 BNA OSHC 1687, 1690 (No. 95-0343, 2001); V.I.P. Structures,
Inc., 16 BNA OSHC, 1873, 1874 (No. 91-1167, 1994).
If literal compliance is not feasible, the employer must abate or reduce the hazard insofar
as possible, even if exact compliance is not possible. Peterson Brothers Steel Erection Co. v.
SOL, 26 F.3d 573, 579 (5th Cir. 1994). The burden is on the employer to establish either that an
alternative protective measure was used or that there were no feasible alternative measures.
Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC 1218, 1228 (No. 88-821,
1991).
It is respondent’s contention that given the low height of the service drop line (14 feet), it
was not feasible for its excavator and other machinery to maintain a clearance while performing
the necessary work. (Respondent’s Brief at 20). However, compliance officer Steve Warner
testified that there was a method that would enable it to perform the necessary work while
maintaining the required clearance. The compliance officer, testified that compliance could have
been achieved by moving the excavator further from the wire, then moving it out to the spoil pile
in the center of the road and crawling around under the south side of the wire, where it was
highest, and over to the east side where the spoil pile could be dragged out and placed into a
front end loader to finish the job (Tr. 109, 116, 126; Ex. C-4).
At the hearing, respondent introduced no evidence to rebut the compliance officer’s
testimony. Rather it attacked his experience; and focused especially on the fact that he never

                                               9

operated any of the machinery in question (Tr. 112, Respondent’s Reply Brief at 7). At the
hearing, I took note of the compliance officer’s lack of hands-on experience with the machine
and held that I would accord his testimony the appropriate weight (Tr. 115). In its brief,
respondent asserts that this alternative method of operation “is technically impossible and
ultimately unsafe” for a series of “self-evident reasons.” (Respondent’s Reply Brief at 6). While
respondent finds it “self evident” that the compliance officer’s suggestion was infeasible and
dangerous there is nothing in the record to support this conclusory statement.
Although the compliance officer had no hands-on experience with the machinery at issue,
he has 27 years experience and has conducted over 2000 inspections, including over 200 that
involved trenches (Tr. 110-111). He was familiar with the operation of the equipment through
extensive OSHA training, and has “been to every school OSHA has to offer.” (Tr. 113).
I find that the compliance officer’s training and experience qualified him to offer his
opinion as to alternative methods of operation and that his opinion is entitled to some weight.
While I might have accorded more weight to contrary testimony from and experienced operator,
such testimony was never offered, leaving the compliance officer’s testimony to stand
unrebutted. On this record, therefore, I must conclude that the Secretary established that there
was a feasible means of complying with the standard. Accordingly, respondent’s affirmative
defense of infeasibility is rejected.8
Assuming, arguendo, that the compliance officer’s suggested method of operation to
achieve literal compliance with the standard was not feasible, I would find that respondent failed
to establish that it undertook feasible alternative measures to protect its employees from the
hazard addressed by the standard. As noted, supra, in order to prevail on the affirmative defense
of “infeasibility,” the burden is on the employer to demonstrate that it either attempted to comply
with the standard insofar as feasible or undertook feasible alternative measures to protect its
employees from the hazards addressed by the standard.

8
In support of its defense of infeasibility, respondent argues that given the low elevation of the drop lines and the
height of its machinery, it could not even bring its machinery onto the site without violating the clearance
requirements of the construction standards. (Respondent’s Brief at 19). This is a red herring. Respondent was not
cited for failure to maintain appropriate clearance while traveling to the site. Rather it was cited for violating the
clearance requirements when working at the site. The re is no indication that the Secretary wo uld find it appropriate
to cite a clearance violation while traveling to the site and to presume so is mere speculation. Indeed, such a citation
would involve a different standard (§1926(a)(15)(iii)), have to stand on its own merits, and is not relevant to the
failure to m aintain p roper clearance while wo rking.

                                                       10

The Secretary asserts that one of the alternative measures to maintaining a proper
clearance is to have the lines deenergized (Tr. 27). It is undisputed that, prior to the inspection,
respondent made no effort to have the lines deenergized (Tr. 96). However, it is respondent’s
position that deenergization was not a feasible alternative. It notes that, in her affidavit of May 1,
2007, Carol Purinton stated that CMP requires as much as 2-3 weeks prior notice for
deenergization and that such a method is the least preferred method of protection. (Ex. R-12).
Indeed, Purinton could not remember an instance where deenergization was requested for the
type of job at issue. Respondent’s Superintendent testified that, although he did not attempt to
have the lines deenegized before the inspection, he did call CMP to deenergize some lines one
week before the hearing, but that CMP refused to do so (Tr. 96-97).
In her affidavit, Carol Purinton outlined procedures for responding to a request for
deenergization. In sum, once a request is received, an appointment is scheduled for the matter to
be handled by a line supervisor or safety specialist. Depending on the time of the year, workload
and resources it could take a few days for this to be arranged. Purinton also noted that “While
CMP has historically not been disconnecting service(s) for road/sewer jobs, if this practice
becomes the norm, CMP is concerned that it could result in an increase in customer complaints
because of the outages incurred and from contractors because of the potential delays in
responding to their requests.” (Ex. R-12 at 4).
She stated that, if the lines are to be deenergized, a line crew may be scheduled to
disconnect the lines while the contractor did his work. CMP would likely bill the contractor for
such costs.9 Also, notice would also have to be given to the customers. The length of the notice
depends on the duration of the interruption and number of customers affected. If the interruption
affects more than 10 customers or lasts more than 3 hours, reasonable notice is 3 days if feasible,
but 24 hours at a minimum. In other cases, reasonable notice means as soon as possible. (Ex R­
12 at 2-3).
However, Purinton also stated that, if contacted about working near energized lines, a
determination would be made, after consulting with the job foreman as to what work they will be

9
There is no evidence that any costs passed to respondent would render compliance economically infeasible.
Similarly, requiring respondent to have the lines deenergized would not render it noncompetitive since all employers
bidd ing for the job would have to consider the costs o f compliance. See State Sheet Metal Co., 16 BNA OSHC 1155,
1161 (Nos. 90-1620 & 90-2894, 1993)

                                                    11

performing and the appropriate means of protection. Denergization is the least favored option.
Other options include covering up the lines, relocating the lines, or no action if the contractor
can maintain the 10 foot clearance by other methods, such as using different equipment. (Ex. R­
12 at 2).
Purinton’s affidavit establishes that, even if CMP determined that deenergization was
not feasible, a line supervisor would consider other options to reduce or eliminate the
electrocution hazard.10 The critical point here is that, prior to the inspection, respondent made no
attempt to contact CMP, and therefore failed to take the necessary first step to having the utility
assist it to achieve at least feasible alternative compliance. Having failed to contact CMP to
determine, at a minimum, what feasible alternative methods of protection could be utilized,
respondent cannot now assert that no such feasible means of alternative abatement existed.
While such methods may not include deenergization, the process of determining a feasible
alternative method of abatement cannot begin until CMP is first notified. Here, respondent never
contacted CMP.
I also note that, in his report, respondent’s witness, Skip Hoyt, observed that respondent
could have satisfied OSHA by using a trained and authorized observer to ensure that the
equipment never came with 4-6 feet of an energized line.11 (Ex. R-9 at 4). Although I venture no
opinion as to whether the appointment of an observer would have avoided a citation, I do note
that such a measure would have constituted a feasible means of alternative abatement. Again,
however, respondent took no such action.
Not only has respondent failed to establish that there were no feasible means of
alternative abatement, but to the contrary, the record clearly demonstrates that there were several
steps respondent could have taken to, at least, minimize the hazard to its employees. It failed to
undertake any of these measures and, therefore, has not established the affirmative defense of
“infeasibility.”

10
W hen seeking an alternative method of abatement, employers must exercise some creativity in seeking to achieve
com pliance. Star Brite Construction Co 19 BNA OSH C at 1691.
11
Hoyt noted that §1926.550 (a)(15(iv) permits use of an observer under certain circumstances. That standard
provides:
A pe rson shall be d esignated to obse rve clearanc e of the e quipment and give timely warning for all
ope rations where it is difficult for the o perator to m aintain the desired clea rance by visible
means…

                                                      12

PENALTY
The parties stipulated that, if a violation is affirmed, the proposed penalty of $2,800.00 is
appropriate. (Stipulation (f)). There is nothing in the record to indicate that the penalty is
inappropriate under section 17(j) of the Act , 29 U.S.C. 666(j).

            FINDINGS OF FACT AND CONCLUSIONS OF LAW
     All findings of fact and conclusions of law relevant and necessary to a determination of

the contested issues have been found specially and appear in the decision above. See Rule 52(a)
of the Federal Rules of Civil Procedure.

                                    ORDER
     Accordingly, it is ORDERED that the serious citation for violation of 29 U.S.C.

§1926.600(a)(6) is AFFIRMED and a penalty of $2,800.00 is ASSESSED.

                                            _/s/_____________________________
                                                     Covette Rooney
                                                    Judge, OSHRC

Dated: September 4, 2007
Washington, DC

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