Echo Powerline, LLC

Plain-English summary

Echo Powerline crews restored distribution lines in Oklahoma after an ice storm. While workers raised a quarter-mile section of distribution wire beneath an energized 69-kilovolt transmission line, the wire contacted the transmission line; one employee suffered burns and another died from electrocution. Echo used a raised bucket truck as a barrier, but positioned it about 15 feet from the point where the lines crossed. The judge found that a bucket truck can serve as a barrier in some circumstances, but this placement did not physically prevent contact at the only crossover point. Echo also did not use tension-stringing or equivalent measures that provided equal protection. The serious violation was affirmed, and the proposed penalty was reduced for employer size to $11,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.964(b)(1)
• Outcome: The serious power-line contact-prevention citation was affirmed, with an $11,400 penalty.
• Key point: A barrier must physically prevent contact at the actual point of danger; reducing movement elsewhere along a flexible line is not enough.

Full text (OSHRC public release)


Echo Powerline, LLC OSHRC Docket No. 17-1188

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainan t,

v.

ECHO POWERLINE, LLC ,

Respondent.

OSHRC Docket No .
1 7- 1188

Appearances:

Christopher D. Lopez-Loftis , Esq., U.S. Department of Labor, Office of the Solicitor,
Dallas, Texas

For Complainant

Jane H.
Heidingsfelder , Esq. & P.J. Kee , Esq.,
Jones Walker LLP ,
New Orleans, Louisiana

F or Respondent   

Be fore: Administrativ e Law Judge
Peggy S. Ball

DECISION AND ORDER

I. Procedural History

Respondent was hired by the Tri-County
Electric Corporation
in Beaver, Oklahoma ,
to restore downed power lines and poles, which had fallen over during a n ice
storm on
January 21, 2017 . (Tr.
195 ). 
I n a
three- to four-mile
area, Respondent had
12–13
crews working to rehang power lines, repair cross-arms, and re-set or adjust poles. (Tr.
365–66 ). 
O ne of
the
crews, led by
Brad
Brouilette , was rehanging distribution lines along
a dirt roa d
that
terminated at
an intersection with Highway 412
(“worksite”).  Roughly mid-span between two sets of the poles being worked on, a high-power transmission line passed approximately four feet over the top of the distribution lines. (Tr.
184 –186 ; Ex.
C-7 at 2 ).  The crew had successfully h ung
two of the three conductors
and was in the process of hanging the third and final conductor when the crew members heard
somebody yell . (Tr.
75 , 113 ).  Two of the employees working as groundmen 1
fell to the ground, having suffered an electrical shock.  (Tr. 74–75).
One employee suffered burns to
his arms and feet , and the other employee died from electrocution, notwithstanding his coworkers’ efforts to resuscitate him. (Tr.
255 ; Ex. C- 6 ).

Consistent ly
with its obligations under the Occupational Safety and Health Act (“the Act”), Respondent reported the hospitalization and fatality within 24 hours of the incident. (Tr.
196 ; Ex.
C-15 ).  In response, Complainant dispatched Compliance Safety and Health Officer
(CSHO)
Robert Gay
to conduct an inspection. (Tr.
245–46 ).  After the accident, the trucks and equipment had been removed from the worksite,
requiring
CSHO
Gay
to reconstruct what happened based on his interviews with the crew members and what he could observe at the location where the accident occurred. (Tr.
247–53 ; Ex.
C-5 ).  Ultimately, CSHO
Gay
determined Respondent failed to take proper precautions when rehanging the conductors
near
Highway
412
in violation of the Act.  Accordingly, Complainant issued a
Citation and Notification of Penalty , alleging a serious violation of 29 C.F.R. § 1926.964(b)(1) and proposing a penalty of $ 12,675 .

Respondent submitted its Notice of Contest to Complainant,
t hereby initiating the present matter. A trial was held on
July 26, 2018,
in
New Orleans, Louisiana . The following individuals testified: (1)
Brad
Broui l lette , Respondent’s on-site foreman;
(2)
Austin Ducote, a lineman for Respondent; (3)
[redacted] , an apprentice lineman; (4) Mike
Grouvillia , Respondent’s safety director; (5) CSHO Robert Gay; (6) Jeff Reed, Respondent’s general foreman; and (7) Mike
Marcotte, Respondent’s designated expert and Director of Utilities for the City of Alexandria, Louisiana .

Both parties submitted post-trial briefs, which the Court has considered, along with the record evidence, and relevant law.  As will be discussed in depth below, the Court finds Respondent failed to employ adequate measures to minimize the possibility the distribution
wire
would
contact
the energized transmission cable 2
in violation of 29 C.F.R. § 1926.964(b)(1).

II. Stipulations
& Jurisdiction

As indicated in their joint stipulation statement ,
submitted July 1 3 , 2018,
t he parties
agree
the Commission has
jurisdiction over this proceeding
pursuant to
section
10(c) of the Act, 29 U.S.C. § 659(c) ,
and
Respondent
is
an employer engaged in
a business affecting commerce within the meaning of
section
3(5)
of the Act, 29 U.S.C. § 652(5).
Slingluff
v. OSHRC , 425 F.3d 861 (10th Cir. 2005). The remaining stipulation s
merely indicate
agreements about procedural matters involving the issuance of the Citation and related Notice of Contest .

III. Factual Background

The facts of this case are not in
serious
dispute. The factual
challenge
in this case is re-creating the scene of the accident based on the employees’ accounts provided after the fact. While the
particular poles
and cables at issue were still in the same location, the vehicles and people had already been removed from the site by the time CSHO Gay arrived.

While this is not unusual in and of itself, the difficulty lies in assessing the efficacy of certain safeguards based on their proximity to various hazards, which is an important consideration when dealing with high-voltage
power sources.
See, e.g.,
29 C.F.R. § 1926.960(c) (addressing minimum approach distances) . Thus, as reflected below, the Court places substantial weight on the employees’ testimony insofar
as their direct observations are concerned; however, as will be discussed
later , their conclusions are not entitled to the same level of deference.

Respondent had multiple crews working to restore power in the area surrounding Beaver, Oklahoma, after an ice storm came through. Th is case is concerned with
the crews supervised by
Brouil l ette
and
Chris Bassett . 3 The crews began work on the worksite located at
the intersection of
Highway
412
and 4120 in Beaver, Oklahoma .
(Tr. 35). At this location, all three distribution lines
running in
a
north-south
direction
had fallen to the ground as a result of the storm. (Tr.
59, 248, 257–58; Ex. C-5 ). In some cases, this was the result of the crossarms, which previously held the lines in place, falling apart or breaking. (Tr.
249, 257–58 ). Ultimately, it was up to
Brouil l ette ’s
crew to repair and re-hang the lines, repair and/or replace damaged crossarms, and restore power. (Tr.
33 ).

Prior to beginning work,
Brouil l ette
gathered the crews to discuss the plan for re-hanging the distribution lines. (Tr.
56–57 ; Ex.
C-12 ). He addressed how the work would be carried out and the plan for executing the work safely, including
Personal Protective Equipment ( PPE ) , positioning of equipment and people, and the use of barriers. (Tr.
57–62 ; Ex.
C-12 ). Re-hanging the downed lines presented two significant electrical hazards: (1) the downed distribution lines connected to a pole that had additional, energized distribution lines running perpendicularly to them; and (2) approximately two to three spans down from the junction mentioned in (1), energized transmission lines ran over the top of the downed distribution lines. 4
(Tr.
47, 174–75 ; Ex.
C-5 ). Prior to
beginning any work on the downed wire, Respondent had to put various safeguards into place. In the case of the adjacent transmission and distribution lines, Respondent used different methods for guarding against contact with each.

In the case of the adjacent distribution lines, Respondent’s crew placed rubber blankets, also known as “guts”, over the potential points of contact along the energized line. (Tr.
50, 100 ; Ex.
C-5 at 4–7 ). This was standard procedure and in accordance with the dictates of Respondent’s safety manual. (Ex.
C-16 at 87 , ¶21 ). No one in Respondent’s crew was authorized ,
trained , or
qualified to perform work on transmission lines. (Tr.
120, 150, 229 ). This meant
they
could not install the same barriers on the transmission lines as they did
on
the distribution lines, which they were qualified to work on. (Tr.
52 ). Instead,
Broui l lette
designated one of the bucket trucks to serve as a barrier between the yet-to-be-hung distribution lines and the overhanging transmission lines. (Tr.
47 ; Ex.
C-26 at ECHO-00018, C-27, C-28 ). According to
Brouil l ette , the bucket truck, operated by Wayne, 5
was parked at the nearest distribution pole, and its arm and attached bucket were raised over the distribution line to prevent it from whipping upward into the transmission line. (Tr.
70–71 ). He
wanted to make it clear that Wayne was not positioned directly under the transmission line, but instead 15 feet
to the north of
it, consistent ly
with Respondent’s minimum
clearance
distance to a 69kv line. (Tr.
192 ; Ex.
C-17 at 33 ).

In addition to the foregoing safeguards,
Brouil l ette
noticed the distribution pole adjacent to the 69kv lines was too tall,
which
placed the distribution lines too close to the overhanging transmission lines. (Tr.
98 ). Accordingly, he decided to shorten the distribution pole to maintain
a safe
distance
between the distribution and transmission lines . (Tr.
98 ). Further, Respondent’s employees were equipped with various forms of PPE, depending on their respective job duties and
location. T he linemen were all stationed in bucket trucks along the span of distribution wire to be installed , and each of them were equipped with the necessary PPE . (Tr.
87–88, 93 ; Ex.
C- 26 ). The bucket truck s
w ere
grounded and insulated in various locations.
(Tr.
219–220 ). The groundmen, who were responsible for laying out and eventually raising the line to the linem e n, wore electrical gloves rated to
30kv
and sleeves, along with
fire retardant clothing ( “ F RC ” ) .
(Tr.
60–61;
Exs . C-6, C-12 ).

On the day of the accident, as depicted in the diagram created by Mike
Grouvillia , Respondent’s Safety Director, Respondent had
three
bucket trucks
and one digger truck
on site. 6
(Tr.
45–47 ; Ex.
C-2 5 ). Wayne was directed to set his bucket
to
the
north
of the 69kv line and place his boom over the three-phase distribution line to prevent contact with the 69kv line. (Tr.
70–71 ; Ex.
C-25 ). Linemen Taylor
Hukins
and Austin Ducote set their bucket trucks
near
the junction pole where the downed distribution lines
came to a dead end, and another set of energized distribution
lines
ran perpendicular to the downed set. ( Tr. 47, 174–75;
Ex.
C-5 at 6–7) . Hukins
and Ducote
placed rubber line hoses and rubber blankets over the
energized lines . (Tr.
121, 175 ; Ex.
C-5 at 6–7 ). Groundmen
[redacted] ,
Roch
Bordelon,
[redacted] , David Townsend, and Jake Thompson were all stationed near
Hukins
and Ducote. (Ex. C-28).

According to
Broui l lette , the groundmen had to “walk
up ” the wire, which required them to lay out the downed wire in separate strands along the ground before they could be pulled up and laid on the cross-arms of the poles for installation. (Tr. 62–63; Ex. C-25). This prevented the wires from becoming tangled amongst themselves prior to setting them in place. (Tr.
62 ). Meanwhile, the linemen, after installing barriers, set up a hoist and handline system, which allowed the groundmen to pull up the downed distribution line to the linemen, who set the lines into dead-end
shoes that hold the conductor in place on the cross-arm. (Tr.
54–55, 72–73 ). All of this was overseen by
Brouillette
and Bassett, the two crew leaders on the project. Brouillette
stationed himself at the east end of the worksite, closest to the pole where the two sets of distribution lines met; Bassett stationed himself at the far east end, adjacent to Wayne. (Ex. C-28). Both stayed in contact through radio. (Tr.
70, 75 ).

At the time of the accident in this case, the crews had already re-strung the field and center conductors in the manner described above: the groundmen used the handline to lift the conductor to the linemen, who then placed the conductor into the dead-end shoe on the cross-arm. 7
(Tr.
229 ). The lineman used the hoist to pull the conductor to the appropriate level above ground,
taking into account
the appropriate amount of sag. 8
(Tr.
55 ). Before it was raised into the air,
[redacted]
had to splice the broken road conductor. (Tr. 13 6 ). Once he
finished
splicing the broken conductor, he and the other groundmen started to pull on the quarter-mile long conductor to set it in the handline and hoist it up to the linemen. (Tr.
134–138 ). As they were pulling,
[redacted]
began to feel tingling in his hands, like ants crawling on them, and dropped the cable, which snapped back and contacted his arm, sending electrical shock through his body and out of his foot. (Tr.
134 ). Further down the line,
[redacted]
fell to the ground and was unresponsive. None of the other groundmen suffered injury.

According to the testimony at trial, and contemporaneously provided accounts, nobody saw how the previously un-energized distribution wire became energized. The consensus, however, was that the wire, which was flexible, got snagged on something on the ground, causing it to snap upwards towards the 69
kv
line; indeed, there were multiple mentions of a barbed wire fence that
ran along the ground adjacent to the downed lines. (Tr.
119 ,
138–39, 166 , 250 ; Ex.
C-5 ). Though most of those present testified that the road conductor contacted the 69kv line, this was based on deduction not on direct observation.
Respondent’s report indicated
the lines may not have touched but came close enough for the energy to jump from one line to another. (Ex.
C-26 at 3 ).

[redacted]
suffered substantial burns to his
chest
and
feet . As for
[redacted] , his coworkers took turns providing CPR until the ambulance arrived, at which point both
employees
were taken to the hospital. [redacted]
suffered severe burns and was in the hospital for a couple of days . [redacted] , unfortunately, was unable to overcome his injuries
and died at the hospital . Because of the hospitalization and fatality, Respondent contacted OSHA’s
1-800
phone line. (Ex.
C-15 ). CSHO Gay came out on
January 22, 2017 , conducted an inspection ,
and performed interviews. Based on what he learned, CSHO Gay recommended, and Complainant issued, the following citation item.

IV. Discussion

A. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

29 CFR 19 26.964 ( b )(1): Tension stringing method. When lines that employees are installing or removing can contact energized parts, the employer
shall
use the tension stringing method, barriers, or other equivalent
measures
to minimize the possibility that conductors and cables the employees are installing or removing will contact energized power lines or equipment.

On or about January 22, 2017, and at times prior
there to
[sic], the employer did not ensure that employees installing power lines that could contact energized parts utilized the tension-stringing method, barriers, or other equivalent measures to minimize the possibility of contact with live parts. Employees were exposed to electrical shock hazards .

(Ex. C-1) .

To establish a violation of an OSHA standard
pursuant to Section 5(a)(2) of the Act ,
Complainant
must
prove : (1) the standard applies to the facts; (2) the employer failed to comply with the terms of
the
standard; (3) employees
were exposed
to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation ( i.e. , the employer knew
or ,
with the exercise of reasonable diligence ,
could have known of the violative condition).

Atlantic Battery Co. ,
16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Complainant has the burden of establishing each element by a preponderance of the evidence.
See Hartford Roofing Co. , 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

t he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact
but by evidence that has the most convincing force ; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) (emphasis added).

i. The Cited Standard Applies

According to the Scope and Application paragraph for Subpart V—Electric Power Transmission and Distribution, “This subpart . . . covers the construction of electric power transmission and distribution lines and equipment.” 29 C.F.R. § 1926.950(a)(1). ‘Construction’, as used in 1926.950(a)(1), “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.”
Id.
Complainant asserts Respondent was performing construction-related electrical work on the downed distribution lines in a couple of respects: (1) Respondent replaced broken or missing wooden cross-arms with upgraded, new fiberglass cross- arms, thereby
improving
existing electrical equipment; and (2) Respondent altered an existing distribution pole by shortening it to accommodate an overhanging transmission line. (Tr.
98, 249 ).

The Court finds the foregoing activities are
sufficient
to qualify Respondent’s work as construction
for the
purpose of
appl ying
the
Part 1926
e lectrical standards. Likewise, the Court finds the specific section cited, 29 C.F.R. § 1926.964, applies to Respondent’s activities, because it “provides additional requirements for work performed
on or near overhead lines and equipment ” , which is exactly what they were hired to do.
29 C.F.R. § 1926.964( a)(1) (emphasis added). Respondent did not dispute Complainant’s
application of the cited standard.

ii. The Terms of the Standard Were
Violated

As will be discussed throughout this s e ction, the debate over whether Respondent employed
the tension-stringing method is largely semantic. Complainant contends that there is a
singular
tension-stringing method, which is highlighted by the standard’s use of the definite article “the”.
See
29 C.F.R. § 1926.964(b)(1). This method, Complainant contends, requires the use of mechanical equipment that applies constant tension to new wires that are being strung or old ones that are being taken down. Conversely, Respondent contends that the use of handlines to raise the wires to the linemen constitutes
a
tension-stringing method, insofar as it is applied to re-stringing downed lines.
W hile Respondent’s groundmen
we re undoubtedly applying tension to the downed line in order to raise it to the linemen, this is not what
i s
intended by
the
tension-stringing method as
described at 29 C.F.R. § 1926.964(b)(1).

a. History of the Electric Power Standard

The first version of the
Part 1926
electrical power standard was promulgated in
1972, along with
waves of other existing federal
and
national consensus standards , during the initial promulgation of
occupational safety and health standards
under the OSH Act of
1970 .
See
Electric Power Generation, Transmission, and Distribution ; Electrical Protective Equipment, 79 Fed. Reg.
20316 , 20316 (April 11, 2014) . In
199 4 , the Part 1910 Electric Power standard was
updated to
replace out-of-date consensus standards with “a set of performance-oriented requirements that are consistent with the latest revisions” of those standards .
Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment, 59 Fed. Reg. 4320, 4320 (January 31, 1994) . The Part 1926 Electric Power standard , however,
was not modified again for
another 20
years.
Id.

According to the preamble to the Part 1926
final rule,
“OSHA is revising the construction
standard to make it more consistent with the general industry standard and is making
some
revisions to both the construction and general industry requirements.”
Id.
The need for an update was clear after
42 years, and the need for consistency
is rendered plain in any case where the parties dispute whether a
particular employer’s
activities are construction or general industry.
See, e.g.,
29 C.F.R. § 1926. 950(a)(1)( i )
note
( “ An employer that complies with § 1910.269 of this chapter will be considered in compliance with requirements in this subpart that do not reference other subparts of this part ….”) .

This interplay
between the previous standard and the modified 1910 standard is on display
in the
application of
the
standard at issue
to
this case.
See
79 Fed. Reg. at 20522.
According to the preamble, “ [T]he Agency used existing § 1910.269(q), rather than existing § 1926.955, as the base document in developing § 1926.964. However, OSHA also proposed requirements for § 1926.964
that the Agency took from existing § 1926.955
pertaining specifically to construction work. ”
Id . Ultimately, OSHA sought to
“combine and simplify the construction requirements for stringing overhead lines ” in a way that “will be easier for employers and employees to understand.”
Id.
a t 20523. With that in mind,
OSHA promulgated § 1926.964(b) with the intent that it s sub paragraphs
serve as the “primary protection to employees installing conductors.”
Id.
at 20524.

The goal of the cited standard , 1926.964(b)(1),
is to “minimize the possibility
that conductors and cables the employees are installing or removing will contact energized power lines or equipment.”
29 C.F.R. § 1926.964(b)(1).
An employer engaged in the installation or removal of overhead lines
can accomplish this goal in one of three ways : ( 1) the tension-stringing method, as the subparagraph is entitled; (2)
barriers; or (3) equivalent measures.
Id.
Prior to addressing the
issue
of whether Respondent utilized any of the enumerated methods, however, Respondent called into question
what would constitute
adequate “minimization” of the hazard, as it were.
While Respondent
implemented some measures, which undoubtedly
served to reduce
the hazard, the Court finds
reduction is not the equivalent of “minimizing” , as that term is commonly understood , when such a standard is seen as the “primary protection” for employees installing conductors.

“Minimize”,
though not defined in the standard ,
is commonly understood to mean “ to reduce something to the smallest possible level or amount ”.
See
Cambridge Dictionary
(def .
“minimize” )
available at
https://dictionary.cambridge.org/us/dictionary/english/minimize
(Cambridge Univ. Press 2019) . As the definition makes clear, to ‘minimize’
contemplates
more than merely
reducing
the amount of something. As applied to this case ,
it
means reducing
the possibility of contact with an energized line
to the smallest amount possible.
As
applied to the measures employed by Respondent
to address the transmission line , the Court finds
they
failed to m inimize the possibility of contact .

1. Respondent Did Not Use the Tension
   Stringing Method

The cited standard , which is entitled “Tension stringing method”, requires the use of
the
tension stringing method, barriers, or equivalent measures to prevent the line being installed from contacting energized lines or equipment. 29 C.F.R. § 1926.964(b)(1).
Unfortunately, the standard does not define what the tension stringing method is. Complainant contends the tension stringing method refers to the use of mechanical equipment to maintain tension on the line throughout the
process of installation or removal. Accordingly, Complainant
argues
Respondent’s use of a handline, although it applies tension to the line in a sense, does not qualify as the tension stringing method. Respondent, on the other hand, has called into question whether the tension stringing method is limited to the use of mechanical tensioning equipment, or whether the simple application of tension while re-hanging lines constitutes a tension stringing method.
Based on the Court’s review of the
language of the standard, related standards, the preamble to the final rule, and associated case law, the Court finds Complainant’s interpretation of the standard is the appropriate one. 9

Initially, Respondent took the position that it did not use the tension-stringing method because it could not use mechanical tensioning equipment to re-string a downed line. (Tr.
87,
377–78 ). Upon further reflection, Respondent changed its position to assert that it was using
a
tension stringing method by using the handline to raise the line up to the lineman, who would ultimately set it in place. 10
(Tr.
86, 147, 377 ). To Respondent, the handline applied tension to the line, which was attached at the farthest post from the
highway , th r ough the use of manpower—literally, someone pulling on the end of the wire. (Tr.
79–80 ). As will be shown, however,
Respondent’s initial position of
asserting it was not using the tension stringing method because of the nat ure of its work
in this
particular instance
is more consistent with the facts .

“When determining the meaning of the standard, the Commission must first look to its text and structure.”
The Davey Tree Expert Co. , 2016 WL 845440 at *1 (No. 11-2556) (citing
Superior
Masonry Builders Inc. , 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003)). If the meaning of the standard’s language is “sufficiently clear” the inquiry ends.
Unarco
Comm. Prods. , 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993). However, if “the meaning of the regulatory language is not free from doubt”, the standard is ambiguous.
Martin v. OSHRC (CF&I Steel Corp.) , 499 U.S. 144, 150–51 (1991). “A
regulation
is ‘ ambiguous’
as applied to a particular dispute or circumstance when more than one
interpretation
is ‘plausible’ and ‘the text alone does not permit a more definitive reading.”’
Exelon Generation Co. v. Local 15, Int'l Bhd. of Elec. Workers , 676 F.3d 566, 570 (7th Cir. 2012) (citing
Chase Bank USA, N.A. v. McCoy , 562 U.S. 195, 207 (2011)). However, “a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”
FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132 (2000). As such, the disputed provision should first be read within the context of the
standard as a whole . If the ambiguity cannot be resolved,
the next step is to review contemporaneous legislative histories of the standard.
Gen. Motors Corp. , 17 BNA OSHC 1217
(No. 91-2973
et al. , 1995). If the question
remains
unsettled, the n the
Court will defer to Complainant’s interpretation of the standard insofar as it is reasonable.
Id.
(citing
Kiewit Western Co. ,
16 BNA OSHC 1689, 1693 (No. 91–2578, 1994)).

Although the term “tension stringing method” is not anywhere defined in the regulations, there are clues to its meaning both within the standard itself and in adjacent, related standards. First, the standard uses the definite article “the” to qualify “tension - stringing method”. A definite article is used to signify
a particular, singular
noun, as opposed to the generalized, indefinite article “a”.
See
Cambridge Dictionary ,
supra
(defining “the” as a definite article “used before a noun to
refer to a particular thing
because it is clear which thing is intended ”) (emphasis added) . Thus, whatever the tension stringing method is, it is something specific and unique.

As previously noted,
Complainant contends the plain language refers to a mechanical process whereby machines known as tensioners and pullers are used to string new electrical lines. These machines utilize a series of drums and brakes to reel out (or in, as the case may be) electrical line, while consistently maintaining tension on the line
during the course of
installation (or removal). (Tr.
384–85 ; Ex.
C-31 ).
See also
Davis H. Elliot Co., Inc. , 26 BNA OSHC 1851 (No. 15-0799, 2017) (ALJ Phillips) (describing, in detail, the tension-stringing process) . Complainant ’s argument, however, relies less on the actual language of the standard and focuses instead on
case law that addresses the foregoing terminology. While that analysis has bearing on the reasonableness of Complainant’s interpretation, it does not aid in the plain language analysis.

Respondent’s formulation seems to suggest that the application of tension, alone, is what makes the tension stringing method unique as a method to install or remove wire. While Respondent’s interpretation of
tension-stringing
is simple, its simplicity undermines the specificity
indicated
by the standard’s use of the definite article. The installation of wires appears to require the application of tension as a matter of course, regardless of the method applied ; w ires, whether new or old,
have to
be pulled between the poles in order to be installed.

As told by all of Respondent’s employees, whether that is accomplished with mechanical pullers and tensioners, ground pulls by hand, or handlines and hoists,
tension is applied to the line.

T he
specific
method employed depends on the job at hand. (Tr.
384 ).

At this worksite, where Respondent was working with previously downed wire, the crew could not use mechanical tensioning equipment because that equipment is only designed for taking line
off of
a spool or putting it back on. (Tr.
384–85 ). Thus, they separated and dragged the downed
line between the poles upon which the wires were to be hung. (Tr.
62–63 ). Only
after
the lines were laid out did Respondent’s crew apply tension to the line
to
raise
it to the linemen above. Given the variety of ways in which tension appears to be applied to the wire during installation, Respondent’s interpretation proves to be too expansive if the standard’s use of the definite article is to have any meaning.
See, e.g.,
Davis H. Elliot , 26 BNA OSHC 1851
(addressing the safeguards necessary for ground pulling a wire);
Williams Constr. Inc. , 13 BNA OSHC 1834 (No. 87-0637, 1988) (ALJ Child) (addressing
treating the wire as energized in lieu of tension-stringing).

Further undermining Respondent’s approach is
that
the definite article only applies to
the tension stringing method , which itself is
one of multiple ways to comply with 1926.964(b)(1). Stated in the disjunctive, “or”, the standard provides employers with an opportunity to accomplish the same level of protection through alternative means, such as barriers or “other equivalent measures”.
29 C.F.R. § 1926.964(b)(1).

If an employer cannot use
tension stringing —whether due to lack of equipment, as in this case, or because its use is inadvisable—then the employer has the option to use barriers or equivalent measures so long as they accomplish the same level of protection. See
Williams , 13 BNA OSHC 1834
(discussing how treating the line as energized was the preferable method to tension-stringing under the circumstances) . The availability of alternatives to the tension - stringing method within the standard also implies
its
uniqueness: the standard is a specification standard, requiring the use of
tension-stringing , unless
tension-stringing
is not available. If
tension-stringing
is not available, the standard becomes a performance standard, which allows the employer to choose the appropriate measures
to
provide
equivalent protection.
See
Warnel
Corp. , 4 BNA OSHC 1034 (No. 4537, 1976) (describing three types of standards: specification standards, performance standards, and hybrid specification/performance standards , such as the one described here ).

There is nothing in the standard or related definitions
per se
to
exclude
a handline, which is a mechanical implement that relies primarily on manpower,
as a tension-stringing implement .
Handlines are specifically referenced in paragraph 1926.964(c), governing live-line barehand work,
but only as a restriction against their use between the aerial bucket and the ground.
See
1926.964(c)(16). However, just because a handline’s use is restricted in this context does not, by virtue of its location in the regulations, exclude it as a tension-stringing method.
Given this
lingering
ambiguity, the Court must look to
“contemporaneous regulatory
history ” of the standard .
See
Gen. Motors Corp. , 17 BNA OSHC 1217 .

While the lack of clari fication
within the standard leads to the conclusion the term is ambiguous, the preamble and Complainant’s consistent interpretation of the term “tension stringing method” clarify any lingering doubt
as to its meaning . In the preamble to the final rule, which was issued in 2014, OSHA stated, “Paragraph (b)(1) requires employer to take precautions to minimize the possibility that conductors and cables, during installation and removal, will contact energized power lines or equipment.” 79 Fed. Reg. at 20523. In order to minimize the possibility of contact, paragraph (b)(1) “requires employers to do so by stringing conductors using the tension-stringing method (which
keeps
conductors
off the ground
and clear of energized circuits)
. . . . ”
Id.
at 20523–20524 (emphasis added). Thus, not only is the tension-stringing method a specific manner of installing electrical wire, it is one that is accomplished in a
particular way : maintaining enough tension so that the electrical wire does not touch the ground during the course of installation.
T ensioning and pulling equipment prevent electrical wires from getting tangled in the underbrush or adjacent structures, such as fences , by maintaining tension on the line
at all times .
(Tr.
355–56 ). By maintaining mechanical tension, the line is never allowed to touch the ground. 11
(Tr.
258–59 ).

The purpose of the tension-stringing method is to control the flexible line and avoid the type of hazard that came to fruition in this case: underbrush
and fencing
along the ground that can snag the line and cause it to violently release into adjacent, energized lines.
Although Respondent’s crew utilized tension to raise the wire
for eventual installation , the foregoing illustrates the crew did not use the tension-stringing method.

As indicated in the standard, and clarified in the preamble, the tension-stringing method requires wires to be kept off the ground and clear of energized circuits.
See
79 Fed. Reg. at 20524.
Brouil l ette
recounted
that
a
tension-string er
could not be used to re-hang old wire; instead, he testified
how the wires were laid out on the ground and untangled from each other prior to raising them to the cross-arms. (Tr.
63 ). Th is is not
tension-stringing . If tension
was
the only qualifier for the
particular method
discussed, then nearly every method for pulling or raising a wire would count as the tension-stringing method, even though the standard clearly mandates a singular methodology.

Based on the testimony, the only time the line was kept clear of the ground
wa s when it was being lifted, by handline, to the linemen in the aerial buckets. (Tr.
63 ). Because it was on the ground, it was thereby exposed to the snags and other obstacles the tension-stringing method , as described in the preamble,
is designed to avoid. Accordingly, the Court finds Respondent did not utilize the tension-stringing method.

This conclusion is buttressed by
case law addressing the use of tension-stringing, in which neither the Court nor the parties before it
were
operating under a cloud of confusion as to the proper meaning of the term.
See, e.g.,
Williams ,
13 BNA OSHC 1834
&
Davis H. Elliot , 26 BNA OSHC 1851 .

In
Williams Construction ,
the employer was hired to replace a
distribution
pole to comply
with new federal standards.
Williams Constr. ,
13 BNA OSHC 1834 . The new, higher pole required the crew to replace the existing lines, which stretched for one span across the Clark Fork River near Paradise, Montana.
Id.
During the course of
the job, one of the crew members was fatally electrocuted, which prompted OSHA to cite
the employer
for its failure to use the tension-stringing method. 12
Id.
The employer
opted not to use tension-stringing because , in its estimation, the additional hazards imposed by tension-stringing did not justify its use under the circumstances; namely, that there could be “excessive oscillation” using a tension-stringer on a one-span job.
Id.
at
*7 . Instead, the crew opted to treat the wire as energized, which came with its own set of
necessary safeguards.
Id.
An expert supported this method as appropriate for the conditions, though he did note that the tension-stringing method would have prevented the wire from becoming snagged under the surface of the river.
Id.
Ultimately, t he court agreed with
the employer that tension-stringing was not required under the circumstances.
Id.

Just as interesting as how
the court and parties in
Williams
referred to tension-stringing as a method for raising a power line is how they did not characterize
the work
the
employer was
actually doing . According to the factual narrative, based on the testimony provided, the line at issue was being raised and controlled
using
tag lines, ropes, pulleys, and
handlines .
Id. Notwithstanding the fact that the employer in
Williams
was using the exact same equipment as Respondent did here, at no time was OSHA, the employer, or the court under the impression that Williams was employing the tension-stringing method.

Similarly, in
Davis H. El liot ,
the
parties had the same understanding of tension-stringing. Based on the presentation of
evidence , the court
understood tension-stringing
as “the mechanized
pulling of conductive wire through previously-installed stringing blocks attached to a series of power poles.”
Davis H. Elliot ,
26 BNA OSHC 1851
at n.148 . Further supporting this concept ,
the employer argued— in an attempt to
show compliance with the cited standard — ground pulling was an “equivalent method” used to minimize contact
with energized lines .
Id.
(citing 29 C.F.R. § 1910.269(q)(2)). 13
Just like
Williams , the employer
in
Davis H. Elliot
admitted it was not using tension-stringing
but attempted to show compliance through “equivalent measures”.
Id.
The
Court does not see a meaningful distinction between the activities of Respondent in this case and the respondents in
Williams
or
Davis H. Elliot .
Accordingly, the Court finds Respondent was not using the tension-stringing method.

2. Respondent’s Barriers Were Insufficient to Minimize the
   Hazard Imposed by the 69kv Transmission Line

As an alternative to tension-stringing, 1926.964(b)(1) provides employers with the option to install barriers to minimize the possibility of contact with energized wires. A barrier, according to the
definitions
section of Subpart V,
is
“[a] physical obstruction that prevents contact with energized lines or equipment or prevents unauthorized access to a work area.” 29 C.F.R. § 1926.968. According to
Respondent’s employees and its designated expert ,
the industry uses bucket trucks as barriers
under certain circumstances .
(Tr.
73–74, 99 ,
417 ). Although CSHO Gay disputes a bucket truck
is a sufficient barrier under the standard , his
experience
was limited to a one-year stint
as a groundman, which
pales in comparison to the experience
of Respondent’s
linemen, groundmen, and expert that testified in this case .
(Tr.
33–35, 299–301, 363, 408 ).
The Court has no reason to doubt the testimony of Respondent’s witnesses on this account, and thus finds a bucket truck, under certain circumstances, can serve as a barrier. The key question is whether Respondent’s bucket truck, as a barrier, minimized the hazard . The Court finds it did not.

The only requirement of a barrier is
that it “physically prevents” contact with energized lines.
See
29 C.F.R. § 1926.968 (def. “barrier”),
79
Fed. Reg.
at 20524
(barriers “physically prevent one line from contacting another”). Insofar as the boom and bucket of a bucket truck are utilized to accomplish such a result, it could conceivably be a barrier. 14
However, merely because a bucket truck can
qualify
as
a
barrier in a general sense does not mean its use under the facts of this case render s
it sufficient to minimize the hazard.
T he
way
Respondent
used and oriented this
particular bucket
truck was inadequate
to minimize
the hazard presented by the overhead transmission lines.

Of
particular concern
to the Court
is
the
lateral
distance separating the truck from the overhanging hazard.
(Tr.
73 ).
According to
Grouvillia , who performed Respondent’s investigation , the bucket truck was not directly between the two lines—indeed, this would have been difficult given only four feet separated the lines
when fully installed .
(Tr.
190 ). Instead, the bucket was parked over the top of the distribution line, roughly 15 feet to the
north
of the crossover in the direction of the junction pole. (Tr.
71 ; Ex. C-28).
There was
no barrier
between
or placed upon
either of
the
two lines
that would
“physically
prevent ”
the distribution
line
from
contacting the live transmission
line at the point where
they
crossed.
See, e.g.,
79
Fed. Reg.
at
20524
(discussing
rope nets and guards as barriers that “physically prevent one line from contacting another” ). (Tr.
190 ) .
While the line
was
hooked into a dead-end shoe
at the end of the three-span set of poles , 15
it
was only “laid up” on the post
adjacent to the transmission line , was still sagging to the ground in between poles,
and had yet to be
laid up
on the junction pole where the two linemen were waiting to receive it .
(Tr.
62–63, 93 ; Ex.
C- 27 at ECHO-00270 ).

According to
[redacted] , the crew was handling roughly
a
quarter- mile
of cable, which he characterized as
“ flexible ” and “not heavy” . (Tr.
138–39 ).
This not only left ample space for the cable to rebound upwards, but it also meant there was an ample amount of cable
capable of
rebound ing .

Further highlighting the inadequacy of Respondent’s efforts to address the hazard of the transmission lines is the
manner in which
it addressed the adjacent, energized distribution lines on the junction pole. As illustrated in the photographic exhibits, Respondent placed rubber blankets/guts over each of the adjacent lines and extended that protection out
8
feet
on both sides of the pole . (Tr.
100 ; Ex.
C- 5 at 6–8 ). Thus, there was a barrier that physically prevented contact with the energized line
at the potential point of contact:
if the
line to be installed
whip ped
upwards, it would strike the rubber barrier. Respondent did not install barriers
on the transmission lines because they did not have crew members qualified to
work on
them .
Thus, i n lieu of hiring someone to barricade the transmission lines, Respondent opted to use
a single
bucket truck , which Wayne could not operate any closer than 15 feet
from
the transmission lines due to Respondent’s self-imposed minimum
clearance
distance. There was nothing in between the two lines at the potential point of contact. 16

Considering the foregoing circumstances, the Court finds Respondent failed to institute adequate barriers to address the specific hazard of the transmission lines. 17 It is one thing to reduce the potential for a hazard to occur; it is quite another to minimize that possibility.
See Davis H. Elliot ,
26 BNA OSHC 1851 at *48
(rejecting argument implying a reduction in hazard is equivalent to minimizing the hazard).
Although the bucket truck would prevent the line from bouncing
upwards at the point where it was located,
t he truck was not located underneath the
potential point of contact, i.e., the
transmission line . According to the trial testimony, the
distribution
line, which was
a quarter-mile
long and flexible, was not fastened anywhere but the post farthest from the junction pole; elsewhere it was
merely laid up
on the crossarm or stretched out across the ground. Along the entire distribution line being worked on, there was a single point at which it could rebound into an energized 69kv transmission line. Respondent opted to place a bucket truck over the top of the distribution line 15 feet to the
north
of this point. While this positioning may have been appropriate from the standpoint of Respondent’s minimum approach distance requirements,
there was nothing to
physically
prevent the remaining portion of the line from bouncing upwards at the point where the transmission line cross ed
over, or at any other point along the three spans of line.

3. Respondent Did Not Employ “Equivalent Measures” to Address the Hazard

As an alternative to tension-stringing or barriers, the cited standard allows an employer to institute “equivalent measures” to minimize the possibility of contact with energized power lines.
See
29 C.F.R. § 1926.964(b)(1). This term, of course, is also undefined; however, the onus is on Respondent to
adopt measures that provide protection equal to tension-stringing and/or barriers.

To illustrate, the Court will briefly recount t he two cases cited above , both of which
provide examples of how employers have
attempted to utilize (with varying degrees of success)
“equivalent measures”
to
comply with the standard.

In
Williams , the crew opted to treat the line as energized—even though it was not—during the
period of time
they were working on it.
Williams ,
13 BNA OSHC 1834 . To treat the line as energized meant to “barricade, insulate or isolate yourself from the line, and insulate, isolate your equipment from the line where nobody, the public or the people that are working the job, will make
accidental contact . ”
Id.
at
*7
(quoting with approval to safety director for Montana Power Company) .

The ALJ found the employer took adequate steps to safeguard its employees by treating the installed line as
energized and
found the
fatality that occurred was the result of employee misconduct.
Id.

The employer in
Davis H. Elliot
attempted something similar; however, the ALJ found
the employer’s efforts wanting. Davis’ crew
performed a ground pull of the wire to be installed,
during the course of
which, the wire rebounded upward into an overhead, energized power line.
Davis H. Elliot , 26 BNA OSHC 1851 . Davis argued the distance between the overhead line and the ground was a
sufficient
barrier to prevent accidental contact.
Id. The ALJ disagreed and found
“[t]here is no equivalent protection when the wire being ground-pulled is close enough to contact the energized line.”
Id. Accordingly, the ALJ concluded that ground-pulling, as executed by Davis, was not equivalent to tension-stringing or the use of insulating barriers and found Davis violated the standard. 18

While Respondent instituted multiple measures to address the various hazards present at the worksite, the only measure s
in place to address the potential for contact with the transmission line
were
the bucket truck
and rubber gloves that were not rated for the highest level of voltage to which Respondent’s employees were exposed . As the Court concluded above, the truck, alone, was insufficient as a barrier to minimize the hazard.
The Court does not find Respondent, aside from the insufficiently protective gloves, implemented any additional, equivalent measures to
prevent exposure to the high-voltage transmission line. Accordingly, the Court finds the terms of the standard were violated.

iii. Respondent’s Employees Were Exposed to the Hazard

To establish exposure,
Complainant “must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”
Fabricated Metal Prods., Inc. , 18 BNA OSHC 1072 (No. 93-1853, 1997) (citing
Rockwell Int’l Corp. , 9 BNA OSHC 1082 (No. 12470, 1980) &
Gilles &
Cotting , Inc. , 3 BNA OSHC 2002 (No. 504, 1976).
Respondent’s
groundmen , including
[redacted]
and
[redacted] , were handling the downed distribution line when it whipped upward and contacted the energized transmission line. At that time, the lines were not outfitted with barriers, nor were Respondent’s employees properly equipped with gloves designed to withstand the highest voltage to which they could be exposed. Accordingly, the Court finds Respondent’s employees were exposed to the hazard.

iv. Respondent Knew of the Hazardous Condition

“To establish knowledge, the Secretary must prove that the employer knew or, with the exercise of reasonable diligence, should have known of the conditions constituting the violation.”
Central Florida Equip. Rentals, Inc. , 25 BNA OSHC 2147 (No. 08-1656, 2016). To satisfy this burden, Complainant must show “knowledge of the
conditions
that form the basis of the alleged violation; not whether the employer had knowledge that the conditions constituted a hazard.”
Id.
“Although the Secretary has the burden to establish employer knowledge of the violative conditions, when a supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary satisfied his burden of proof without having to demonstrate any inadequacy or defect in the employer’s safety program.”
Dover Elevator Co. , 16 BNA OSHC 1281 (No. 91-862, 1993);
see also Dana Container , 25 BNA OSHC 1776 (No. 09-1184, 2015) (citing
Dover
for same proposition).

R espondent’s worksite was supervised by Brad
Broui l lette .
Brouil l ette
was responsible for developing a work safety plan and for conveying the elements of that plan to his subordinates. (Tr.
35–36, 55 ; Ex.
C-12 ). Part of the plan required
Brouil l ette
to serve as the “required observer” for the worksite. (Ex.
C-12 ). Brouil l ette’s
testimony illustrates he was aware of all relevant hazards on the worksite, including the location where the transmission lines crossed over the distribution line being installed.
Because
Brouil l ette
was Respondent’s on-site foreman, the Court finds his knowledge is properly imputed to Respondent.

v. The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not show that there was a substantial probability that an accident would
actually occur ; he need only show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC , 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is death or serious physical harm, a violation of the regulation is serious. Mosser Construction , 23 BNA OSHC 1044 (No. 08-0631, 2010);
Dec-Tam Corp ., 15 BNA OSHC 2072 (No. 88-0523, 1993).

V. One of Respondent’s employees suffered severe burns requiring hospitalization, and another was fatally electrocuted as a result of his exposure to the hazard.

The violation was serious.

Accordingly, the Court shall AFFIRM Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.964(b)(1 ). Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act requires the Commission give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s prior history of violations. Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury.
J.A. Jones Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993). It is well established that the Commission and its judges conduct
de novo
penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria. Valdak
Corp ., 17 BNA OSHC 1135 (No. 93-0239, 1995);
Allied Structural Steel , 2 BNA OSHC 1457 (No. 1681, 1975).

Complainant proposed a penalty of
$12,675. According to CSHO Gay,
he assessed the citation as high gravity and high probability. This assessment was predicated on the fact that death or serious injury were the most likely injuries
that could result from exposure ,
and that the probability of such an occurrence was high given the lack of adequate protection between the transmission and distribution lines. That such an unfortunate incident occurred reinforces this conclusion. Complainant did not provide any discounts for good faith, history, or size. While the Court generally agrees with Complainant’s assessments as being supported by the record, the Court does not agree with Complainant’s decision not to award a discount for size. According to
Grouvillia , Respondent has roughly 70 employees, or nearly one-quarter of what would be considered a large employer under Complainant’s Field Operations Manual.
(Tr. 158). Size,
unlike good faith or history, has nothing to do with the character of the employer or its attempts to comply; rather, it merely reflects a considered judgment that smaller
employers
are likely less able to afford penalties towards the top of the scale
than their larger counterparts .
As such, the Court shall apply
a
10% discount
based upon Respondent’s size, to which the Court must give due consideration .
See R.G. Friday Masonry Inc. , 17 BNA OSHC 1070, 1075 (No. 91-2027, 1995); 29 U.S.C. § 666(j).

Accordingly, a penalty of $11,400 shall be assessed.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item 1
   is
   AFFIRMED, and a penalty of
   $11,400
   is ASSESSED .

SO ORDERED

/s/ ____          P eggy S. Ball          Judge, OSHRC

Date:
June 18, 2019

Denver, Colorado            

"

1 . A groundman is a
gofer, of sorts. According to Marcotte,
Respondent’s expert,
when he worked as a groundman, he sent the tools up, pulled the ropes out, pulled handlines, raised conductors, and generally helped raise materials and tools to the linemen. (Tr. 410).

2 . The case law, standards, and testimony tend to use the following terms interchangeably: cable, wire, conductor, phase, and lines. While trying to remain consistent, the Court uses some of those terms interchangeably, as well.

3 . Although two foremen were present at the worksite, Mr. Bassett did not testify, and very little evidence was introduced regarding his presence at the site. Accordingly, the remainder of this decision will simply refer to Mr.
Brouillette as the individual in charge of the worksite.

4 . A distribution line carries 7200 volts, whereas a transmission line carries 69,000 volts, typically expressed as 7.2kv and 69 kv, respectively. (Tr.
47).

For clarification, the transmission lines remained at their original height, roughly 24 feet above the ground
and carry electricity to substations. (Tr.
47, 186). According to
Michael Grouvillia, when the distribution lines were at normal height, the transmission lines were located about four feet above them. (Tr.
184–186).

5 . Wayne’s real name is Blake Hunley.

6 . The diagram was created with input based on post-accident interviews. (Ex.
C-25). Another diagram created by
Brouilette
at trial reflects a similar orientation of trucks and employees. (Tr.
66–67; Ex.
C-28).

7 . The poles and attached cross-arms house three conductors, also referred to as phases, and a neutral conductor. (Tr.
103). The names of the phases relate to their orientation on the cross-arm; thus, the “field” phase is located next to the open field, the “center” phase runs down the middle, and the “road” phase runs adjacent to the road. (Tr.
103).

8 . Sag is essentially a bow in the line, which allows for some degree of flexibility between poles.
(Tr.
48–49).

9 . Respondent did not assert the affirmative defense of lack of proper notice; however, because its argument has the effect of calling the operative term, “tension stringing method”, into question, the Court must analyze the issue accordingly.

10 . Complainant took the position that such a change
caused undue prejudice to his case. While Complainant’s frustration is understandable, Respondent is free to change its theory of the case at any time through the course of litigation
insofar as
it arises out of the same “conduct, transaction, or occurrence”. See Metwest, Inc. , 22 BNA OSHC 1066 at *5 (No. 04-0594, 2007) (describing the test for permitting an amendment to a cause of action).
In fact, Respondent could renege on a previous denial in discovery
based on newly discovered information.
Arguments and case theories can change to conform to the evidence.

11 . The Court also notes that there was no debate or confusion over the use of the term “tension-stringing method” during the Notice and Comment period preceding the issuance of the final rule.
See generally
79 Fed. Reg. at 20524.

12 . Because the events of this case occurred in 1986, Respondent was governed by the previous version of the electrical power standards for construction.
See Williams Constr. ,
13 BNA OSHC 1834
(citing 29 C.F.R. § 1926.955(d)(2)
effective until
July 9, 2014). As discussed above, both the predecessor and current standards require the use of the tension-stringing method.

13 . As previously noted, 1926.964(b) and 1910.269(q) are functionally equivalent and use identical language.

14 . By so holding, the Court is not ruling that bucket trucks should be used as such; only that Complainant failed to prove bucket trucks could not be used as a barrier at all.

15 . This was also referred to as the “take-off” pole, presumably to indicate that it was where the work of rehanging the wire began.

16 . Some witnesses testified about induced energy or jumping, such that the lines at issue would not have to touch, but only come close enough, to transfer electricity from the live line to the de-energized one. Though it was referenced in some contemporaneous accounts and at trial, the Court was not presented with enough information to opine further on it; however, the extent
to which
such potential exists highlights the importance of considering the
possibility of
contact.

17 . Respondent also characterized the gloves
worn by the crew members as barriers. (Tr.
124). While that may be the case
under a different set of circumstances—as with the bucket truck—the voltage rating was limited to 30kv, which is less than half of the voltage running through the transmission line. (Tr.
125). This is not an adequate barrier.

18 . When determining the proper meaning of “equivalent measures”, the ALJ relied on the standard’s requirements for tension-stringing, which cross-reference a separate set of requirements within the standard cited.
See Davis H. Elliot ,
26 BNA OSHC 1851
(citing 29 C.F.R. § 1910.269(q)(2)(ii)).

The Court need not rely on these equivalent measures, as neither the bucket truck nor the rubber gloves, either individually or in tandem, were sufficient to minimize the possibility of contact with the transmission line.