New River Electrical Corporation

Read the official release (oshrc.gov)

Plain-English summary

New River Electrical used multiple crews to replace underground distribution cable during a planned outage at a residential subdivision. After part of the system was reenergized, a crew moved cable at a transformer without proper testing, tagging, and grounding, which energized new cable being handled at a riser pole. An employee received a 7,650-volt shock and sustained second-degree and third-degree burns. The judge found the crews failed to independently coordinate deenergizing and reenergizing, leave disconnecting means open and tagged, and ensure proper grounds were installed. Foremen knew of their own failures, and New River's safety audits and discipline did not adequately detect or enforce the electrical work rules. The unpreventable-employee-misconduct defense failed because effective enforcement was not shown. The three serious items were grouped because grounding and tagging would have abated the same hazard, and a single $12,934 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.961(b)(4)(ii), 29 C.F.R. § 1926.962(c)(2), and 29 C.F.R. § 1926.962(b).
• Outcome: Three serious electrical safety items grouped and affirmed with a $12,934 penalty.
• Key point: Independent crews must coordinate deenergizing work and verify tags and grounds, especially when field switching can reenergize connected equipment.

Full text (OSHRC public release)


New River Electrical Corporation OSHRC Docket Nos. 18-0523

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.

NEW RIVER ELECTRICAL CORPORATION ,

Respondent.

OSHRC Docket No s .
1 8 - 0523

Appearances:

For Complainant:    Stephanie Adams, Esq., U.S. Department of Labor, Office of the Solicitor, 11240 East 9 th
Street, Suite 881, Cleveland, OH

For Respondent:      Keith Louis
Pryatel , Esq., and Travis
Teare , Esq., Kastner Westman & Wilkins, LLC, 3550 West Market Street, Suite 100, Akron, OH

JUDGE:                     Judge Christopher D. Helms, U.S. Administrative Law Judge

DECISION AND ORDER

I. Procedural History

This case is before the Occupational Safety and Health Review Commission (“Commission”) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §
659(c) (“the Act”) .

On November 6, 2017,
[redacted] , an employee of Respondent, was injur ed when he
and
other employees were preparing an electrical cable for the installation of
an
insulator, also known as a “pothead . ” (Tr. 53, 77-78 ).

T he victim received an electrical shock causing
second-degree burns to
“ his left hand and forearm and third-degree burns to
his right knee and inner thigh area .” (Tr. 91;
see also
Stip. ¶ 9,
Ex s .
C-1,
C-6 , R-1).

In response to the accident,
the Occupational Safety and Health Administration (“OSHA”) conducted an inspection of Respondent’s
worksite . As a result of that inspection, OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent, alleging three serious violations of the Act, with a total proposed penalty of $38,802. Complainant alleges Respondent failed to protect against multiple electrical hazards, including failing to disconnect electrical lines and equipment, to tag the lines and equipment as properly disconnected, and to ensure proper grounding of the lines and equipment.

The tr ial of this matter commenced on October 15, 2019, in Columbus, Ohio, and continued thereafter through October 18, 2019. The following witnesses testified :

· Compliance Safety and Health Officer (“CSHO”) Michael Stowell ,

· Zackery Howard
(formerly, a foreman for Respondent) ,

· Mark Bail (formerly, a foreman for Respondent) ,

· Dennis
Dawsey
(Complainant’s expert) ,

· Wayne Evans (employee for Respondent) ,

· Tanner Reynolds (employee serving as groundman for Respondent) ,
and

· Nick Bar n hart
(Respondent’s superintendent).

For the reasons that
follow,
Item 1 ,
Item 2 ,
and
Item 3 of the Ci t ation
are grouped and affirmed as one citation-item,
and a penalty of $12,934 is assessed
for the grouped citation-item .

II. Stipulations and Jurisdiction

On
October 7,
2019, the parties filed an
Agreed Prehearing Statement . The parties stipulated the Commission has jurisdiction over this proceeding pursuant to Section 10(c) of the Act
and
that, at all times relevant to this proceeding, Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of Sections 3(3) and 3(5)
of the Act, 29 U.S.C. § 652(5). ( Tr.
25 ) . See
Slingluff
v. OSHRC , 425 F.3d 861 (10th Cir. 2005).
In the
Agreed Prehearing Statement , the parties
also
agreed to
several
basic jurisdictional and violation-related facts. In lieu of reproducing all twenty-one stipulations in their entirety, the Court shall refer to individual stipulations as necessary, and in the following form: (“Stip. No. __”). In addition, the stipulations w ere read into the record. (Tr. 10–12).

III. Factual Background

A. Respondent’s crews

On November 6, 2017,
a planned outage was scheduled to take place between 9 :00
a.m. and 3 :00
p.m. to complete the final stages of a three-phase
underground
cable replacement project for the Madison Mill s
subdivision ,
Columbus,
Ohio (“worksite”
or “site” ). 1 (Ex. C-2 ;
Tr. 671-672 ). Respondent’s crew s
were to perform the re-cabling of
at least
30 transformers that fed power to residences in the worksite . (Tr. 198, 200-201; Ex. C- 2
at 1). 2

Some of the cabling in the ground that was to be replaced was several decades old. (Tr. 152, 897-898).

Respondent had
three crews working at the site on November 6, 2017 : two Underground Residential Division (“URD”) crews and one Overhead Riser
c rew (“Riser
c rew) . (Tr. 201 ; Stip. 10 ). Zack Howard
(“Foreman Howard”)
was the foreman of one URD crew , and his apprentice was Wayne Evans. (Tr. 201; Stip. 11). For the second URD crew, Mark Bail
(“Foreman Bail”)
served as the foreman ,
and his apprentice was James Wright. (Tr. 201; Stip. 11). T he Riser crew
was
comprised
of Jim
Castle
(“Foreman Castle”) , who
was the foreman, Tanner Reynolds
as
the groundman, and
[redacted]
as
the apprentice. (Tr. 201, 256; Stip. 11; Ex. R-1).

The project required
t he URD
crews to
switch out old primary cable to new primary cable in at least 30 transformers. ( Ex s .
C-2,
C-6). 3
The new primary cable had already been installed
underground but
had not yet been connected. (Ex. C-2 at 1). The Ri ser crew’s work was to “wreck out”
(i.e. dismantle)
two riser poles
and
build
two
new riser poles , one on the southside of the project and one on the northside of the project . ( Ex s .
C-2,
C-6 ; Tr. 47 ). This work required a power outage from 9 :00
a.m. to 3 :00
p.m. at the subdivision. (Stip. 17;
Ex s .
C-2,
C-6 ; Tr. 202, 369 ). Th e
power outage was accomplished
through communication between the URD foreman, Zack Howard, and
American Electric Power (“ AEP ”) ,
the owner of the electrical lines . (Tr.
67, 335-336,
368- 369).

AEP de-energized the lines and equipment through DDC, the central dispatch arm of AEP, and the outage was scheduled to last from 9:00 a.m. to 3:00 p.m. (Tr. 96, 202, 278 , 879-880 ). Outages of six hours in length are common and is the maximum length that AEP can schedule an outage. (Tr. 878). However, outage lengths are unpredictable, and it is possible to request an extension of
the
outage
time . (Tr. 879-880).

After AEP
de-energized the lines and equipment,
the two URD crew foremen (Zack Howard and Mark
B ail) and the Riser crew foreman (Jim Castle)
went
over
the
work to be performed. (Tr. 203). After the three foremen met, the crews prepared a Job
Site
Assessment (“JSA”) and a Job Hazard Analysis (“JHA”). (Tr. 203-204, 357, 854-855; R-21). In the JSA, the crew
typically
assesses all the risks, assesses what can be done to prevent those risks,
reduces
those risks and assessment s
to writing, and
reviews and signs the JSA. (Tr. 203-204 ; R-21 ). Among other things, the JSA and JHA identified “flashes” and “electrical shock” as potential risks. (Ex.
C-6
at 1). In addition, the JSA and JHA identified “preventative measures” to address the potential risks, including “use all proper PPE, tools, and rubber gloves.” (Ex.
C-6
at 1).

Foreman
Howard testified he informed Superintendent Barnhart that he was not going to be able to complete the work during the six hours of outage time. (Tr. 208). Foreman
Howard further testified that two weeks into the job the “heat was kind of turned up” on the crew to complete the job. (Tr. 199). Thus, he felt that the crew was under pressure to complete the job. (Tr. 293).

Foreman
Howard acknowledged that whether he
oversaw
all the crews on the site was a “gray area.” (Tr. 207). He understood that he was taking the lead on the other URD crew
in
which Mark Bail was the foreman, but that
it
“was never really relayed to [him] ” whether
his supervision extended to
the Riser crew.

(Tr. 207).

However,
Foreman
Howard underst oo d that he was “over the job”, so he surmised that
“maybe [he] was over all the crews working on it.” (Tr. 206-207). Still, based on Respondent’s own incident report, it appears
Foreman
Howard was only in charge of the 2 URD crews, and that Jim Castle
oversaw
the Riser crew. (Ex.
C-6
at 1 -2 ).

B. Work at the site

On November 6, 2017, Respondent’s work at the site began with de-energization of
riser
pole
270/996 (“ south riser ” or “south riser
pole ”).

(Tr. 133 ; Ex. C-6 at 2 ). First,
Foreman
Castle “pulled the doors” (i.e. removed the fuses) from the north side riser
and stapled the fuses to the pole . (Tr.
133-134 ,
214 , 366-367 ). Foreman
Howard then grounded each of the three cable
phases (A phase, B phase, and C phase)
at the first transformer from
riser pole 644/221 (“north riser” or “ north riser pole ”) . (Tr. 134 -135 ,
139-140 ,
362-364 ;
Ex s . C-2 at 1 ,
C-6 at 2 ).

Then,
Foreman
Howard went to the south riser and removed the fuses, stapled the fuses to the pole, and then put a yellow band around it to secure it. (Tr. 134, 214-215, 366) ( see also
Ex. R-6 at 13).

It was Foreman Howard’s responsibility to bring tags, testers, and grounds for the URD crews, and he testified that he brought those items. (Tr. 209-210). However, it was not Foreman Howard’s responsibility to bring these same items for the Riser crew. (Tr. 210).
Foreman Howard testified that, while he provided tags to
Foreman
Bail and
F oreman Castle, he did not know whether they used any tags on the date of the accident. (Tr. 265). Foreman
Howard did not visually verify any tags or grounds that
Foreman
Castle put in place at the site. (Tr. 211-212). Foreman
Bail
did not see any tags on the date of the
accident,
and he did not use any tags
or grounds . (Tr. 514).

The two URD crews started at approximately ten transformers down the line from the
north
riser pole. (Tr. 213). Here, they began working their way south by testing, cutting out, and plugging in new cable. (Tr. 213). The Riser crew started on the south side of the project at the south riser pole.

(Ex. C-6 at 2). The old south riser pole was
dismantled,
a new
south
riser
pole
was built , and all three phases of the new south riser pole were energized sometime between approximately 11:00 a.m. and 1:00 p.m. (Ex. C-6 at 2; Tr. 232-233) . This energization of the south riser pole served to energize a portion of the loop at the Madison Mills project. (Tr. 380). Foreman Howard testified he was informed AEP wanted to re-energize half of the development so
residents
were not without power during the winter. (Tr. 239). Thus, after the Riser crew completed
its works at the
south
riser pole,
Foreman Howard called Foreman Castle with the Riser crew and gave
the instruction to “stand clear” as the fuses for each phase were being closed
thereby supplying power to half of the development. (Tr. 232-234). At that time, Foreman Howard had not visually verified any tags or grounds put in place by Foreman Castle. (Tr. 211-212).

The initial scope of work
only required the URD crew
to remove the old cable and install new cable for the various transformers. (Tr. 509). During their work,
sometime around 12:00 noon to 12:30 p.m.,
however,
the URD crew discovered a transformer needed replacing. (Tr. 380). T he URD crew found
three additional
transformers that needed to be completely replaced. (Tr. 509-510). Foreman Howard contacted
Superintendent
Barnhart via cellular telephone to inform him new transformers would be needed. (Tr. 380-381). New transformers would be transferred to the project from AEP. (Tr. 381). It generally takes between two to three hours to replace a transformer. (Tr. 702-703).

Foreman Howard and his apprentice, Wayne Evans
(“Apprentice Evans”) , then began re-cabling the second transformer (“Transformer No. 2”) from the north riser pole , which
was located in the backyard of a house in the subdivision . (Tr. 402 ;
Ex s . R-24A , C-6 at 257 ). Testimony regarding whether this transformer was tested for voltage varied . Foreman Howard testified that he tested to see if
Transformer No. 2
was energized, whereas Foreman Bail testified that Transformer No. 2 off the north riser pole was not tested. (Tr. 402, 515). While Foreman Howard testified that he could not recall whether the replacement transformer was grounded, he acknowledge d
that neither he
nor A pprentice Evans tagged the replacement transformer. (Tr. 402, 515).

Foreman Howard was aware that the crew should have grounded and tagged the replacement transformer. (Tr. 230, 257, 263). Respondent’s Safety Manual includes an Electrical Grounding Policy that notes the need to tag and ground electrical equipment. (Ex. R-8
at 591-593). In addition,
Foreman
Howard had been trained on the necessity for tagging electrical equipment. (Ex. R-13 at 567).

After the re -energization ,
both URD
crews relocated to the first transformer
off
the north riser pole (“Transformer No. 1”). (Tr. 396-397 , 563 ). Here, Foreman Howard used a
trackhoe
to clean some brush
from the area and to
bring the replacement transformer to the location . (Tr. 397 ; 56 4 ). Only Foreman Bail and Apprentice Evans worked on Transformer No. 1. (Tr. 397). A rubber protective blanket had been placed on the primary side of the transformer as a safety device. (Tr. 397-398; Ex. R-3A).

Foreman Bail testified that the only way he and Foreman Howard were going to
finish the job within the
allotted
outage time without additional people was to do “hot-swaps.” (Tr. 515-516). A “hot-swap” is when at least one of the cables in a transformer is energized
and
the employees isolate it to remove the case. (Tr. 243). When
hot-swapping , the employees wear personal protective equipment, including rubber gloves and sleeves. (Tr. 557). Until the
URD crews discovered they had t o replace four transformers, there was no need to “hot-swap.” (Tr. 557). Due to the perceived time-constraints,
however,
they proceeded to conduct a “hot-swap” for Transformer No. 1. (Tr 519). W ithout testing or placing grounds, they place d
one of the new electrical cables in the transformer’s feed-through on Transformer No. 1, which then induced electrical current back to the north riser, where the victim ( [redacted] ) was stripping back new cabling to be installed. (Tr. 399-400, 403, 518-519).

The government’s expert, Dennis
Dawsey , testified that the Riser crew would have been expected to place a ground and tag at the riser pole and at Transformer No. 1 when the riser pole was de-energized. (Tr. 683-684). Here, the Riser crew had not grounded and tagged Transformer No. 1. (Tr. 256 ; 683-684 ).

Instead, after the re-energization, the Riser crew began working on the north riser pole. At that time, Transformer No. 1 was being fed power from Transformer No. 2. The URD crews were unaware of where
the Riser crew
was
located
relative to the line and were unaware that, when
the URD crews
began to work on Transformer No. 1, it was energized and transferring power to the lines where the Riser crew was working. (Tr. 256 ; Ex. C-6 at 261 -262 ). [redacted]
was installing an insulator (known as a “pothead”)
when he picked up an energized line
i nsulator
and
was shocked with 7,650 volts of electricity, causing second-degree and third-degree burns. ( Ex s . C-1, C-6, Tr. 91). OSHA’s expert, Dennis
Dawsey , testified that the URD
crew
moved the cable in Transformer No. 1 from the bushing 4
position to the feed-through position, which energized the cable that
[redacted]
was holding. (Tr. 706).

Foreman Bail called Foreman Howard and informed him that
[redacted]
had been electrocuted and injured. (Tr. 251, 519; Ex. C-6 at 257). Foreman Howard then told the URD crew
at Transformer No. 1
to put everything back the way it was (thus, to undo everything that had been done) and he went to the north riser pole area where the accident occurred. (Ex. C-6 at 257-258 ; 404 ).

C. Manipulation /Alteration
of evidence
after the accident

At the north riser pole area, Foreman Howard told Foreman Bail (who is also
Foreman Howard’s
brother-in-law) to “get in” the truck with him, and they both then left the north riser pole area and traveled to Transformer No. 2. (Tr .
405-406). The remainder of the URD crew was left at Transformer No. 1. At Transformer No. 2, Foreman Howard and Foreman Bail
opened the transformer box. (Tr. 406-407). They could see immediately that it was not grounded. (Tr. 407, 576-578). Foreman Howard then use d
a “shotgun stick” to unplug the primary feeds from Transformer No. 2 and “stood it off” ,
thus preventing the transfer of electricity to Transformer No. 1. (Tr. 407-478, 578). Foreman Howard also placed a red-colored hold tag
on Transformer No. 2 . (Tr. 408). Foreman Howard tested and grounded Transformer
No. 2, and then he closed the transformer cabinet . (Tr. 408). Foreman Howard provided a statement to Respondent during its investigation in which he stated that the URD crew tested Transformer No. 1 before beginning the process of replacement. (Tr. 413-414). However, as discussed above, this statement was inaccurate. (Tr. 414).

Superintendent Barnhart
and Mike Bell from AEP went to the site
to participate in the post-accident investigation . (Tr. 409 , 892-894 ). Foreman Howard did not tell Superintendent Barnhart or anyone at the scene that he had altered the setup of Transformer No. 2. (Tr. 409-410). During the course of
the post-accident investigation by Respondent, someone suggested that perhaps the accident occurred due to a “back-feed.” (Tr. 416-417). 5

Foreman Howard supported the “back-feed” theory. (Tr 417).

Apprentice Evans testified he informed Foreman Howard
that
Transformer No. 1 must have been energized
because when he plugged the bushing into the feed-through, it energized back to
[redacted] ’s location. (Tr. 833). In response, Foreman Howard told him: “you keep that to yourself.” (Tr. 833-834).
Eventually,
Respondent’s president, John Ney, asked Foreman
Howard specifically whether he had done anything with respect to Transformer No. 2. (Tr. 425). Foreman Howard
told him “no,” which Foreman Howard admitted at trial was a lie. (Tr. 426).

As part of its investigation of the accident, OSHA also interviewed
Foreman Howard and Foreman Bail. The CSHO met with Foreman Howard at a restaurant and interviewed him. (Tr. 111). During this interview, Foreman Howard did not tell the CSHO that he and Foreman Bail
altered the scene, and specifically did not tell the CSHO that they
went back to Transformer No. 2
after the accident , opened the transformer cabinet, and placed grounds on the transformer. (Tr. 112). He also did not
tell the CSHO during that interview that he had put tags on Transformer No. 2 after the accident. (Tr. 112). However, after this meeting, Foreman Howard informed the CSHO of his manipulation of the evidence. (Tr. 113-114).

Foreman Bail
lied
to Respondent
during its
investigation
by stating
the cable at Transformer No. 2 was in “ stand off .” (Tr. 522-523). 6 He explained he had the opportunity to discuss the matter with Foreman Howard, who informed him what
actually occurred . Thus, Foreman Bail testified that “I made my story match his.” (Tr. 523). Both Foreman Howard and Foreman Bail were terminated from their positions with Respondent. (Tr. 418, 420;
Ex s . R-4, R-5).

IV. Discussion

A. Applicable Law

To establish a violation of an OSHA standard pursuant to 5(a)(2), Complainant must establish (1) the standard applies; (2) the terms of the standard were violated; (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:

The 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).

B. Citation 1, Item 1
(29 C.F.R.
§
1926.961(b)(4)(ii))

1. The Standard Applies

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

29 CFR 1926.961(b)(4)(ii): Each crew shall independently comply with this section and, if there is no system operator in charge of the lines or equipment, shall have separate tags and coordinate deenergizing and reenergizing the lines and equipment with the other crews:

a. On or before November 6, 2017, where employees were preparing an electrical cable for the installation of a pothead, the riser crew and the underground residential distribution crew did not independently ground and tag the cable when deenergizing and reenergizing the system, resulting in the hospitalization of an employee due to the resulting shock.

( See Citation and Notification of Penalty
at
6).

The application subparagraph of this section identifies under what circumstances the
standard applies:

Application.  This section applies to the deenergizing of transmission and distribution lines and equipment for the purpose of protecting employees. Conductors and parts of electric equipment that have been deenergized under procedures other than those required by this section shall be treated as energized.

29 C.F.R. § 1926.961(a).

T he record establishes Respondent was engaged in the deenergizing of transmission and distribution lines and equipment. ( See
Tr. 68-69, 133-134, 161). Thus, 29 C.F.R. § 1926. 961
applies to the work conducted by Respondent at the site. The specific subparagraph (b)(4)(ii) simply notes the
manner in which
a party must comply when there is “no system operator.” Thus, while the standard applies, the central question is whether Respondent complied with subparagraph (b)(4)(ii).

2. V iolation of the standard

The parties have cited to no cases interpreting 29 C.F.R. § 1926. 961
generally or its subparagraphs specifically, and the
C ourt has located no cases addressing the standard. Based on a plain re a ding of the standard, t wo requirements for compliance exist within subparagraph (b)(4)(ii). First, an employer ’s crews
must “independently comply with [the] section.” 29 C.F.R. § 1926.961(b)(4)(ii). This general requirement must be met by any employer irrespective of whether there exists a “system operator in charge of the lines and equipment.”

Second, if there is no “system operator,” each crew of
an
employer must “have separate tags and coordinate deenergizing and reenergizing the lines and equipment with the other crews.” Id . Thus, this second requirement for compliance is needed only when there is no “system operator.” Conversely, if there is a “system operator,” although an employer must comply with subparagraph (b)(4)(ii), in particular the general
obligation
to “independently comply with this section,” compliance can be achieved without the secondary requirement. A “system operator” is defined as “[a] qualified person designated to operate the system or its parts.” 29 C.F.R. § 1926.968.

a. Each crew shall independently comply with the section

Neither party has presented arguments on whether Respondent met the first part of this standard for each crew to “ independently comply with this section.” Based on the citation-items issued in this case, the government suggests such a violation, as it cited Respondent for a violation of a subsection of
§
1926.961 in Item 2 of the Citations. That is, since the government cited Respondent for an alleged violation of 29 C.F.R. § 1926.961(c)(2) in Item 2, if such violation is affirmed, a violation of § 1926.961(b)(4)(ii) in Item 1 would necessarily follow as it would mean a crew did not independently comply with § 1926.961.

Moreover, even absent a violation of Item 2, the violation
cited
in Item 1
is
clear . The crews started work as two independent crews: that is, the two URD crews
served
as one unit and the Riser crew
served
as another unit. (Tr. 684). The Riser crew had the responsibility to ground from the riser pole to Transformer No. 1, yet it failed to identify grounds and tags within the work zone before the start of work. ( Id .). The two URD crews were responsible for grounding the transformers as they proceeded through the day. ( Id .). Indeed, Superintendent Barnhart admitted that it was the responsibility of every employee to verify that protected grounds are in place. (Tr. 934). I t was the responsibility of the two URD crews and the Riser crew to ground or to verify grounds were in place. ( Id .). Thus, one of the two independent crews would place grounds while the other independent crew would visually verify the grounds were placed. (Tr. 934-935). Unquestionably, 29 C.F.R.
§
1926.961 requires an employer to install protective grounds. See
29 C.F.R. § 1926.962(c)(7). As the crews onsite failed
to
ground, and
failed to
verify that grounds were placed, the crews failed to independently comply with

§
1926.961.

b. System operator   

In its
posttrial
brief, the government argues that
“ the
record
is devoid
of any evidence of
a system operator.” (Comp. Brief at 19). It further argues that, even if AEP was the system operator, Respondent
“ failed to identify the person it placed in charge of the
clearance and compliance with testing, grounding and tagging as referenced in 29 [C.F.R.] 1926.961 [(c)] (5-7).” ( Id .).

However , contrary to the government’s assertion, the evidence at trial demonstrates that AEP was
at least
considered the system operator by the foreman on site at the accident (Foreman Howard)
and
Superintendent Barnhart . Foreman Howard agreed that AEP was the system operator on direct and cross-examination. (Tr. 335-336, 355, 465). Likewise, Superintendent
Barnhart
testified that AEP was the system operator. (Tr. 899).

Dennis
Dawsey , the government’s retained expert
witness , likewise
acknowledged that Respondent’s investigation report (Ex. C-6) noted AEP as the system operator. (Tr. 671 : “ It identifies AEP, American Electric Power as the customer and system operator.” ).
Further, i n his direct examination, the government’s expert
witness
again referred to AEP as
the system operator when being questioned on how to switch cables and energize safely:

Q.   How are you allowed to safely switch?  How
is it performed?

A.   The first step is, you know, re-energize
the scenario is to communicate with all crew
members out there that were about to start
energizing equipment.   So
communication is first.   Second is to go in reverse order and
remove your grounds, remove your tags in your work
zone.   And then you communicate with the operator
-- system operator, which would have been AEP,
and
inform them that you ’ re ready to re-energize and
work through the conversation of how that will
occur so they ’ re aware of your re-energizing
process.

(Tr. 693-694) (emphasis added).

The government argues that it is undisputed that there were multiple crew s
working on the same equipment and power lines at the subdivision on November 6, 2017, and that this establishes the standard at issue applies. (Comp. Brief at 20). By the plain language in
subparagraph (b)(4)(ii),
a violation of the second requirement in
29 C.F.R.
§
1926.961(b)(4)(ii) only
occurs
when “there is no system operator in charge of the lines or equipment”
and the employer’s crew do not have separate tags and coordinate deenergizing and reenergizing the lines and equipment with the other crews. While Respondent’s foremen considered AEP as the system operator, and although the government’s expert witness referred to AEP as the system operator, those statements alone do not establish that AEP was a “system operator” under the standard.

The preamble to 29 C.F.R. § 1926.961
explains the difference between a system under control of a system operator
and a system that is not under centralized control:

Some systems are under the direction of a central system operator who controls all switching operations. Other systems (mostly distribution installations) are not under any centralized control. Electric utilities energize and deenergize these systems in the field without the direct intervention of a system operator.
Paragraph (b)(1) of the final rule states that employers must designate one employee in the crew as being in charge of the clearance and must comply with all of the requirements of paragraph (c) if a system operator is in charge of the lines and equipment and of their means of disconnection. (Paragraph (c), which OSHA discusses in detail later, sets procedures that employers must follow when deenergizing lines and equipment.) OSHA is adopting final paragraph (b)(1) as proposed with one clarification. This provision in the final rule makes clear that the employer must designate the employee in charge of the clearance. Final paragraph (c)(1) requires the “designated” employee in charge to request the clearance, and final paragraph (b)(2) (described in the next paragraph in this preamble) requires the employer to designate the employee in charge when there is no system operator.  OSHA included an explicit requirement in final paragraph (b)(1) that the employer designate the employee in charge when there is a system operator to clarify that designating the employee in charge is the employer's responsibility whether or not there is a system operator.

. . .
.

Final paragraph (b)(4)(ii)  provides for the situation in which more than one independent crew is working on the same line or equipment. Under the final rule, in such circumstances: (1) Each crew must follow separately the steps outlined in final paragraph (c); and, (2) if there is no system operator in charge of the lines or equipment, each crew must have separate tags and coordinate deenergizing and reenergizing the lines and equipment with the other crews.  The purpose of the provision is to ensure that a group of workers does not make faulty assumptions about what steps another group took or will take to deenergize and reenergize lines or equipment.

79 Fed. Reg.
20316,
20503 (Apr. 11, 2014) . Certainly, here, Respondent’s foremen considered AEP as the system operator . Similarly,
the government’s expert referred to AEP as a system operator
during a portion of his testimony . However, the evidence shows that AEP was not in control of “all switching operations,” and that Respondent would “ energize and deenergize these systems in the field without the direct interventio n” of AEP . The preamble makes clear that the purpose of the standard is to ensure coordinated deenergizing and reenergizing of lines and equipment when there are multiple crews and there is no system operator controlling all switching operations. See
79 Fed. Reg.
20316,
20503 (Apr. 11, 2014). The condition that the standard seeks to avoid is precisely the scenario in this case: multiple crews deenergizing and energizing equipment and lines without the direct intervention of a system operator in control of all switching operations.

Accordingly, the Court finds that the government has met its burden of establishing that Respondent violated this standard.

3. Employee exposure to the violative condition

The evidence in this case establishes
Respondent’s
employees were exposed to electrical hazards from the failure to
comply with the requirements in § 1926.961. The employees were required to test, ground, and tag equipment . These measures were required because of the
electrical hazards present and the employees’ proximity to the hazards. Moreover, the injury sustained in this case by
[redacted]
evinces the exposure to Respondent’s employees .

Accordingly, the
C ourt finds that the employees were exposed to the hazard identified in this citation-item.

4. Employer knowledge of the violative condition

The Secretary maintains that Respondent had actual knowledge of the violative condition through the knowledge of its foremen on site. (Comp. Brief at 22). As support for this contention, the government notes Forem a n Howard knew that the URD crew was supposed to test, ground, and tag the transformers the crews worked on, but that he was taught by other forem e n that deviating from safety standards when in a rush was acceptable. (Comp. Brief at 22-23). The Secretary further argues that Foreman Castle also failed to test, tag, and ground.

In addition, the Secretary argues that even if the company did not have actual knowledge of the violative condition, Respondent could have known of the failure to ground due to the company’s own safety policy requiring a grounding plan. (Comp. Brief at
24 ). Specifically, the Secretary states that, since there was no approved grounding plan for the work at the site and as the employees were pressured to rush to complete the work, it
was reasonably expected that employees would deviate from Respondent’s safety policy and
violate the standard. (Comp. Brief at
23-24 ).

The question of whether a supervisor’s own misconduct can be imputed to an employer is one fraught with contention. The Commission has held that a supervisor’s knowledge of their own malfeasance constitutes knowledge that is imputable to the employer. Dover Elevator Co ., 16 O.S.H. Cas. (BNA) 1281, 1993 O.S.H. Dec. (CCH) P 30148, 1993 WL 275823 (OSHRC
1993). Accord, Dana Container, Inc ., 25 O.S.H. Cas. (BNA) 1776, 2015 WL 7459426 (OSHRC 2015). However, several circuit courts of appeal have taken contrary positions.

Respondent points out that it may appeal to one of three circuit courts under the Act: the circuit in which the violation occurred, the circuit in which Respondent’s principal office is located, and the District of Columbia Circuit. (Resp. Brief at 19 n.25). Thus, Respondent suggests that this
C ourt should apply the Fourth Circuit’s precedent as Respondent is headquartered in Cloverdale, Virginia. ( Id .).

In the Fourth Circuit, a
supervisor’s misconduct must be foreseeable for a violation to be imputed to the employer. Ocean Elec. Corp. v. Sec. of Labor , 594 F.2d 396 (4th Cir. 1979). In contrast, the Sixth Circuit, in agreeing with the Commission’s decision, has found that a supervisor’s own violation may be imputed to the employer. Danis -Shook Joint Venture XXV v. Sec. of Labor , 319 F.3d 805, 812 (6th Cir. 2003). The District of Columbia Circuit has not yet issued an opinion on the issue. Thus, Respondent argues that the law to apply is dependent on the circuit to which the case may be appealed. (Resp. Brief at 19 n.25). “Where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied
that circuit’s precedent in deciding a case, even though it may differ from the Commission’s precedent.”.
Kerns Bros. Tree
Srvc . , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000), 2000 WL 294514 at *4.

However, here, unlike in
Kerns Bros . Tree
Srvc .,
supra , there is no clear indication to where any appeal would be taken. While Respondent suggests an appeal would be made in the Fourth Circuit, Respondent of course does not speak for the government, which may bring an appeal elsewhere, such as in either the Sixth
Circuit or the District of Columbia Circuit.

When differences in the law exist between relevant circuits,
the Commission may apply its own precedent. See
Bethlehem Steel Corp. , 9 BNA OSHC 1346 , 1349n.12 (No. 76-3444, 1981) (consolidated);  Raybestos Friction Materials Co. , 9 BNA OSHC 1141,1143 (No. 80-2793 , 1980) . Based on Commission precedent, a supervisor’s knowledge of their own malfeasance is imputable to the employer. Dover Elevator Co ., 16 O.S.H. Cas. (BNA) 1281, 1993 O.S.H. Dec. (CCH) P 30148, 1993 WL 275823. The
foremen of the crews in this case failed to independently comply with § 1926.961. The foremen were certainly aware of their own conduct and their failure to take these necessary steps. In addition,
Respondent directed
its
crews to the worksite and thus was aware that multiple crews were working on equipment and lines. Further, although Respondent’s foremen considered AEP as a system operator, the foremen knew that their respective crews were energizing and deenergizing the systems in the field without the direct intervention of AEP. Accordingly, Respondent had actual knowledge of the violations as imputed by the knowledge of the foremen.

In addition, even if the
C ourt applied Fourth Circuit precedent to this issue, the
C ourt finds that
the violations by Respondent’s foremen were foreseeable . Foreman Bail had been in his position as a foreman for only one day prior to the accident. In addition, the crews were under time constraints, were behind schedule, needed additional help to complete the project in the allotted time, and were aware that the superintendent was dissatisfied with the delay.

The company’s primary method for supervising foremen was through safety audits. (Tr. 908). However, the company only conducted site safety
audits
once per month. There was testimony on the duration of the safety audits. Foreman Howard indicated the safety audits lasted from one to three hours, and Superintendent Barnhart stated that they could last up to five
hours. (Tr. 351-352, 909). However, Foreman Bail testified that the safety audits lasted only
minutes. (Tr. 531).

Superintendent Barnhart indicated that the company disciplined employees for safety policy violations, (Tr. 873), and he specifically testified that employees are disciplined for not testing if equipment is energized and for not grounding, (Tr. 874). However, despite working for Respondent for fifteen years, including serving as a foreman, general foreman, and superintendent, he later testified that he
was unaware of any incident in which employees or foremen did not test or ground. ( Tr. 948). Moreover, he admitted that he had never disciplined an
employee for failing to test, tag, or ground equipment. (Tr. 933-934).

The
C ourt finds that Respondent’s safety program was lacking. There is a dearth of formal disciplinary records for work rule violations pertaining to electrical hazards. Most of the disciplinary records for the years 2015 through 2018 (prior to the accident) concerned drug and/or alcohol offenses, tardiness and absenteeism, or violations discovered after an accident or damage to property. ( See generally
Ex s . R-9, R-10, R-11, R-12). Of the approximately 238 pages of disciplinary records admitted into evidence, only approximately 16 pages related to safety violations discovered without an apparent accident or property damage. ( See
Ex s . R-9 at 2, 49; R-10 at 98, 103-104, 106, 111, 144-145; R-11 at 183, 187, 191, 212, 222, 225-226). Of these, only three concerned work rule violations related to electrical hazards. ( See
Ex. R-10 at 103, 106, 144-145).

The adequacy of a safety program is
dependent on a variety of factors, including
the
amount of job-training received by supervisors, employee competence and experience, safety records, practicality of supervision, and degree of dangerous and hazardous work . Here, the electrical work being conducted was highly dangerous, and one of the supervisors onsite had
been a supervisor for only one day. In addition, Foreman Bail was only vaguely familiar with the grounding policy, did not receive any additional training once he became a foreman, and was not aware of the tagging policy. (Tr. 512-513). Further ,
no grounding plan existed for the job on the site and the JSA/JHA did not mention grounding or tagging to eliminate hazards. (Tr. 211; Ex. R-21). I n consideration of this evidence, the
C ourt finds that Respondent’s safety program was
inadequate
and that Respondent
knew or could
have known of the violati ve condition
through the exercise of reasonable diligence. Accordingly, Citation 1, Item 1 is affirmed.

C. Citation 1, Item 2
(29 C.F.R. § 1926.961(c)(2)

1. The Standard Applies

For Citation 1, Item 2, Complainant alleges a serious violation of the Act as follows:

29 CFR 1926.962(c)(2): Open disconnecting means. The employer shall ensure that all switches, disconnectors, jumpers, taps, and other means through which known sources of electric energy may be supplied to the
particular lines
and equipment to be deenergized are open. The employer shall render such means inoperable, unless its design does no t
so permit, and then ensure that such means are tagged to indicate that employees are at work:

a. On or before November 6, 2017, where employees were preparing an electrical cable for the installation of a pothead, the disconnecting means in the loop were not open, had not been made inoperable, and were not tagged, which resulted in serious injuries and hospitalization of an employee from electrical shock.

( See Citation and Notification of Penalty
at
7).

Respondent argues that the specific subparagraph cited, 29 C.F.R. § 1926.962(c)(2), does not apply as the cabling was not “particular lines and equipment to be deenergized.” (Resp. Brief at 15). Respondent maintains that the
AVD
in the citation identifies the “cable for the installation of a pothead,” but that this is not actually “particular lines and equipment to be deenergized.” (Resp. Brief at 15).

Respondent further argues that the standard applies only for “known sources of electrical energy [that] may be supplied to the particular lines and equipment.” ( Id .). Thus, Respondent reasons that the standard does not apply, as Respondent claims the two URD crew s
and the Riser crew were unaware that there were any sources of electricity that could run from Transformer No. 1 to the cabling that
[redacted]
was stripping. ( Id . at 15-16).

However, Respondent’s argument s
relate to whether a violation exists, not whether the standard itself applies. As explained in
section
IV( B ) ,
supra , the requirements under 29 C.F.R. § 1926.621 apply
“to
the deenergizing of transmission and distribution lines and equipment for the purpose of protecting employees.” 29 C.F.R. § 1926.621(a).
Here, the evidence demonstrates Respondent was engaged in the deenergizing of transmission and distribution lines and equipment. ( See
Tr. 68-69, 133-134, 161). Thus, 29 C.F.R. § 1926.621 applies to the work conducted by Respondent at the site. T he specific subparagraph (c)(2)
simply
notes additional requirement s
for compliance
placed on an employer under the section as it relates to deenergizing lines and equipment.

Thus, here, the
C ourt finds that the standard applies. However, the question of whether there was a “known source of electrical energy” is still a crucial one as it relates to whether Respondent violated the standard.

2. V iolation of t he standard

a. “Known sources of electric energy”

The standard at issue is under the construction standards. Neither party has cited to any case interpreting this standard and the
C ourt has been unable to locate any such case. However, a similar standard exists under the general industry standards, specifically 29 C.F.R. §
1910.269(m)(3)(ii), which has been addressed in other trials before the Commission. That general
industry standard provides as follows:

The employer shall ensure that all switches, disconnectors, jumpers, taps, and other means through which known sources of electric energy may be supplied to the
particular lines
and equipment to be deenergized are open. The employer shall render such means inoperable, unless its design does not so permit, and then ensure that such means are tagged to indicate that employees are at work.

29 C.F.R. § 1910.269(m)(3)(ii). In
Pike Electric, Inc. , the administrative law judge determined that the salient question of whether there was a violation rested on whether the generator at issue was a “known” source of energy. Pike Electric, Inc. , 21 O.S.H. Cas. (BNA) 2153, 2007 O.S.H.D. (CCH) P 32917, 2008 WL 962965 at *6. While the
C ourt is not bound by the rationale in this decision, the
C ourt finds the reasoning persuasive.

Respondent argues the URD crews and the Riser crew were unaware of any sources of electricity that could run from Transformer No. 1 to the cabling
[redacted]
had stripped. (Comp. Brief 15-16). Respondent
contends Complainant must prove
it
had
actual knowledge of sources of electric energy for there to be a violation. This is a narrow view of the word “known.” While the employees may not have had specific knowledge that sources of electricity could run from Transformer No. 1, the employees (including the foremen) certainly should have known of the potential for such electric energy. 7

Indeed, Respondent’s safety policy requires testing, tagging, and grounding. These measures are in place to address such potentialities. Further, Foreman Castle has previously energized the south riser pole, and thus he was aware part of the system was energized. (Ex. C-4
at 3 ; Tr. 687) . Thus, there was the potential for a
“back-feed ,” in which a home portable generator connected to a house could feed electricity back through the cables. ( Id . ; Tr. 136-137, 770-772 , 892-893,
). 8
Moreover,
Respondent prepared a JHA, which identified risks including “electrical shocks.” (Ex. R-21).

Given the work being performed, Respondent should have known of the sources of electric energy for purposes of compliance with the standard. While the
C ourt finds that the sources of electric energy were “known” as it relates to compliance with the standard, this does not
remove
the government
of its
obligation to establish knowledge by Respondent of the hazardous conditions cited.

b. “ Particular lines and equipment to be
de energized”

Even if there were “known sources of electric energy,”
Respondent argues
that the AVD in the citation identifies the “cable for the installation of a pothead”
(i.e. an insulator),
but that this is not actually “particular lines and equipment to be deenergized.” (Resp. Brief at 15). Thus,
Respondent
argues that the specific subparagraph cited, 29 C.F.R. § 1926.962(c)(2), does not apply as the cabling was not “particular lines and equipment to be deenergized.” (Resp. Brief at 15).

The term “equipment” as it pertains to electric equipment is “[a] general term including material, fittings, devices, appliance, fixtures, apparatus, and the like used as part of or in connection with an electrical installation.” 29 C.F.R. § 1926.968. The cable for the installation of the insulator/pothead fits within this broad definition of “equipment.” Thus,
in part,
the
question is whether the cable for the installation of the insulator was to be deenergized. 9

Respondent argues that the cable had never been energized, and thus could not be deenergized.

According to
Foreman Bail , the
cable had never been energized:

Q.    Was the cable that
[redacted]
was holding
one of the new cables that had been bored into the
earth and was read y
to be affixed to the north
riser?

A.   That ’ s
correct.

Q.  
So that was a cable that had
never before
b een energized, correct?

A. Correct.

Q.  It was a cable that eventually, as the
work had progressed, was going to be energized ,
correct?

A.  Correct.

(Tr. 597 ).
In addition, Tanner Reynold’s testimony reflects that the first time the cable that
[redacted]
held became energized was at the time of the accident. (Tr. 848). Superintendent Barnhart also testified that the cables that
[redacted]
had been working on throughout the day were not energized prior to the accident. (Tr. 898-899).

The CSHO likewise acknowledged that the cabling that was held by
[redacted]
at the time of the accident had never been energized:

Q. Now, the cabling that was being held by
[redacted]
back at the riser area, that was new
cabling, correct?

A.  
That ’ s
correct.

Q.   That cabling had never been energized
before the event that happened here?
A.  
That ’ s
correct.

Q.   It was cabling that in the future,
h opefully, was going to be energized once it got
hooked at the riser, correct?

A.  
That ’ s
correct.

Q.   Now, there came a point in time, once the
south riser had been wrecked out and rebuilt and
recabled
up, that part of the Madison Mills loop
was energized, correct?

A.  
That ’ s
correct.

(Tr. 152-154). Similarly, the government’s expert witness testified that the cable that was held by
[redacted]
at the riser pole at the time of the accident was newly laid cable, had never been energized, and was to be energized in the future. (Tr. 786).

Certainly, the AVD of the citation notes that employees were preparing an electrical cable for installation of a pothead. However, irrespective of whether the specific cable
[redacted]
held had never been energized,
a violation exists as it pertains to the citation-item if
any equipment or other means
(not just the cable being worked on by
[redacted] )
through which known sources of electricity could be supplied to lines and equipment to be deenergized. If so, a violation of the standard would be shown, although the question of employee exposure to the hazard would remain .

T he government’s brief is silent on the issue of whether the equipment identified in the citation-item
and the AVD
was to be deenergized. Rather, the government summarily argues that “[ i ]n the process of confirming that active power lines are de-energized the crews would need to confirm the power source was inoperable by testing it, grounding it
and placing a tag
to alert others there was work going on in the area.” (Comp. Brief at 26).

There is no question that the cable that
[redacted]
worked on was energized, resulting in his injury. However, upon review of the record, it is equally clear that the cable he worked on was not “to be deenergized” as it was new cable that had never been energized before
the time of the accident . This finding is supported by the testimony of numerous witnesses, including the
testimony of Foreman Bail, Superintendent Barnhart, the CSHO, and the government’s own testifying
expert witness .

However,
insisting that
the “new cable”
being worked on by
[redacted]
was somehow
distinct f rom all other equipment
to which it was attached
strains the purpose of the standard and the Act. While t he AVD in the Citation notes
that “employees were preparing an electrical cable,” the AVD further explains that
the
violative condition as
“ the
disconnecting means in the loop were not open,
had not been made inoperable, and were not tagged.” Thus, the AVD
does
not
isolate the violative condition to merely the cable being handled by
[redacted]
at the time.

Foreman Howard provided the following explanation of the URD crews’ work relating to the transformers:

So
this is a transformer after the old
cable has been removed.  So our job to switch over,
as we call it, is you go to each span of cable, the
old cable that is before and after, say, this
transformer -- so the transformer before this and
the transformer after this -- and you unplug the
cable, test it, ground it, make sure that it is not
-- there's no energy in this transformer
whatsoever.

After you do so, you go back to this
transformer, you pull off each individual – you
know, you pull off H1A, you put it in the
feed-through, and then you test it with a TAG 200
test to make sure there ’ s no voltage present, and
then you plug the ground into it to take it to
ground potential, zero volts.  

And then once that is at ground
potential, you can take a pair of cable cutters
down at the very bottom of the transformer, at the
base of the ground, and you can ratchet-cut the
cable in two, unplug it, discard it.

And then the cable
that ’ s
due to
replace it, the brand-new cable, jacket and
concentric cable, you plug it into the transformer
itself to replace that span that you just cut out.

(Tr. 221-222 ) (referencing Ex. R-3A) .

Thus,
the new cable itself is being plugged into equipment that needs to be deenergized.

Here, as the new cable that
[redacted]
held was clearly energized, the equipment to which it was attached was likewise energized. Respondent’s argument that new cable was separate from other
“particul ar lines and equipment to be deenergized” fails. This new cable was part of a whole. Whether viewed as new cabling attached to energized sources that should have been deenergized or whether viewed as part of the energized source itself is an abstract discussion that misses the salient point. Employees working with such cabling must also work with the equipment to which it is attached, and as that equipment must be deenergized, it constitutes “particular lines and equipment to be deenergized.”

Further, Respondent found during its internal investigation that the only tags placed on the site were placed on Transformer No. 2 by Foreman Howard
after
the injury. (Tr. 936-937). Foreman Howard assumed that the URD crews had placed tags, but he never verified the placement of tags on the jobsite. (Tr. 367, 402). Foreman Bail likewise did not use tags. (Tr. 514). Moreover, the Riser crew did not place tags on the site, and Foreman Castle did
not personally
test or verify grounds. (Tr. 259, 300-301, Ex. R-1).

In view of the foregoing, the Court finds that
the government has
met its
burden of showing that Respondent has violated the standard at issue.

3. Employee exposure to the violative condition

Given the failure to tag lines and equipment in violation of the standard, Respondent’s employees were exposed to an electrical hazard. The employees were working in proximity to electrical equipment that should have been deenergized. Yet, the crews failed to
deenergize
means through which known sources of electrical energy could be supplied and failed to ensure that such means were tagged to indicate that employees were at work. Further,
[redacted] ’s injury demonstrates the exposure to Respondent’s employees. Accordingly, the
C ourt finds that the employees were exposed to the hazard identified in this citation-item.

4. Employer knowledge of the violative condition

As discussed in part IV(B)(4),
supra , the government has met its burden of showing that Respondent had knowledge of the violative condition. Respondent’s foremen were aware of their own actions and inactions, and thus had knowledge that the equipment and other means through which electricity could be supplied were not rendered
inoperable, and
were aware that such means were not tagged. Indeed, the foremen knew that no tags were placed on the jobsite. T he only tags
used were
placed on Transformer No. 2 by Foreman Howard
after
the injury to
[redacted] . (Tr. 936-937). Foreman Bail and Foreman Castle likewise did not place tags.
(Tr. 259, 300-301, 514, Ex. R-1.

Moreover, even absent actual knowledge of the condition, Respondent had constructive knowledge of the condition. See generally
p art IV(B)(4),
supra . Accordingly, the government has met its burden of establishing Respondent’s knowledge of the violative condition.

D. Citation 1, Item 3
(29 C.F.R. § 1926.962(b))

Complainant alleged a serious violation of the Act in Citation
1,
Item 3 as follows:

General. For any employee to work transmission and distribution lines or equipment as deenergized, the employer shall ensure that the lines or equipment are deenergized under the provisions of  § 1926.961  and shall ensure proper grounding of the lines or equipment as specified in paragraphs (c) through (h) of this section. However, if the employer can demonstrate that installation of a ground is impracticable or that the conditions resulting from the installation of a ground would present greater hazards to employees than working without grounds, the lines and equipment may be treated as deenergized provided that the employer establishes that all of the following conditions apply:

a. On or before November 6, 2017, where employees were preparing electrical cables for the installation of potheads, the ends of the cables were not grounded at the transformer, resulting in the connection of the cable at the transformer, resulting in the hospitalization of an employee as a result of the electrical shock.

( See Citation and Notification of Penalty
at
8).

1. The Standard Applies

This standard ’s application section states that “[t]h is section applies to grounding of transmission and distribution lines and equipment for the purpose of protecting employees.” 29 C.F.R. § 1962.962(a). The evidence
establishes that Respondent was engaged in the deenergizing of transmission and distribution lines and equipment. ( See
Tr. 68-69, 133-134, 161). Further, the evidence reflects that AEP deenergized the lines and equipment, and then both URD crews and the Riser crew went over the work to be performed. (Tr. 203). As part of this process, Respondent’s crews must ground and tag the lines. Foreman Howard acknowledged that
the crews were
required
to tag, ground, and test
all
the transformers
on which
the crews were working . (Tr. 230).

While this standard provides that an employer may demonstrate that installation of grounds is impracticable or would pose a greater hazard, Respondent has neither asserted nor made such a showing. Accordingly, the standard applies.

2. Alleged violation of the standard

As proof of Respondent’s noncompliance with the standard, the government argues that Respondent had a policy requiring
grounding but
failed to comply with it. (Comp. Brief at 30-31). However, a failure to follow the company’s policy does not establish a violation of the standard here. Rather, the government must show that, for employees working transmission and distribution lines or equipment as deenergized, Respondent failed to ensure that the lines or equipment are deenergized
and grounded . See
29 C.F.R. § 1926.962(b) .

Neither
Foreman Howard
nor
Foreman Bail use d
grounds. Foreman Howard acknowledged he was responsible for and
brought
grounds for the URD crews, (Tr. 209-210, 334), but
that
he never placed grounds
on the lines or equipment before work began. (Tr. 363). Similarly, Foreman Bail testified that he did not use grounds on the date of the accident. (Tr. 514).

Respondent’s internal investigation of the incident also found that no grounds were used. (Ex. C-6 at 260 -261 ). Superintendent Barnhart acknowledged that it was the responsibility of both URD crews and the Riser crew to ground or verify grounds at the jobsite. (Tr. 934 -935 ). In view of this evidence, the
C ourt finds that the government has shown that the standard was violated.

3. Employee exposure to the violative condition

The evidence in this case establishes
Respondent’s
employees were exposed to electrical hazards
because they failed t o ensure lines and equipment were deenergized and grounded.

The employees were required to test, ground, and tag equipment, and to use the necessary personal protective equipment such as rubber gloves and blankets. These measure s
were required because of the electrical hazards presen t and the employees’ proximity to the hazards.

Accordingly , the
C ourt finds that the employees were exposed to the hazard identified in this citation -item .

4. Employer knowledge of the violative condition

The Secretary maintains that Respondent had actual knowledge of the violative condition through the knowledge of its foremen on site. (Comp. Brief at 32). As support for this contention, the government notes that the foremen failed to test, ground, and tag equipment, and that each foreman’s own knowledge is imputed to Respondent. ( Id .).

In addition, the Secretary argues that even if the company did not have actual knowledge of the violative condition, Respondent could have known of the failure to ground due to the company’s own safety policy requiring a grounding plan. (Comp. Brief at 32). Specifically, the Secretary states ,
since
there was no approved grounding plan for the work at the site and
as
the employees were pressured to rush to complete the work, it was expected that employees
“might take a shortcut” and thus violate the standard. (Comp. Brief at 32-33).

For the reasons discussed
in part IV(B)(4),
supra ,
irrespective of whether precedent from the Fourth Circuit or the Sixth Circuit is applied, the knowledge of the foremen in this case is imputed to Respondent. Accordingly, the Court finds that Respondent knew or could have know n
of the presence of the violation through the exercise of reasonable diligence.

E. The violation s
were
serious

Under section 17(k) of the Act, for a violation to be properly classified as “serious,” there must be “a substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k) . Complainant need not show that there was a substantial probability that an accident would
actually occur ;
rather, the government
need s
only
to
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).
Here, t he
violation s
at issue result ed
in the victim receiving a significant electrical shock, which caused both second-degree and third-degree burns.
The violation s are
properly classified as serious.

F.
Affirmative Defense of Employee Misconduct

Respondent contends that the citations should be vacated due to the employee misconduct defense. (Resp. Brief at 21-31). In order to prevail on a claim of unpreventable employee
misconduct, Respondent must show: (1) it has established work rules designed to prevent the violation; (2) it has adequately communicated those rules to its employees; (3) it has taken steps to discover violations of the rules; and (4) it must effectively enforce the rules when violations are detected.
Am. Eng’g & Dev. Corp. , 23 BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). In other words, it is incumbent upon Respondent to “demonstrate that the actions of the employee were a departure from a uniformly and effectively communicated and enforced
workrule
[sic].”
Archer-Western Contractors Ltd. , 15 BNA OSHC 1013 (No. 87-1067, 1991) .

1. Established work rules and adequate communication of the
   rules

a. Work rules

Respondent has electrical safety rules in place. ( See
Ex. R-8).

Foremen Howard acknowledged the work rules pertaining to testing, grounding, and tagging electrical equipment. (Tr. 317, 391, 436). Indeed, the
government’s expert witness testified
that
Respondent had work rules and that he was not critical of them:

Q.    Have you had an opportunity to review the New River safety manual?

A.   Yes.

Q.   You will agree with me you reviewed that before October 23, 2018?

A.   Correct.

Q.   Did you use that manual in reaching any of your conclusions that
we’re
discussing today?

A.   Yes.

Q.   Are you critical of the safety manual at all?

A.   I am not critical of the safety manual.

(Tr. 676-677).

Accordingly, the
C ourt finds that Respondent has met its burden of showing that it
has
established work rules designed to prevent the
pertinent
violation .

b. Communication of work rules

The evidence presented demonstrates that Respondent’s work rules were adequately communicated to its employees. Foreman Howard testified to his knowledge of the work rules. ( Tr. 317, 391, 436). He was educated on these rules through the American Line Builders Apprenticeship Training Program (“ALBAT”), the OSHA 10 training, and electrical transmission and distribution (“ET&D” )
training. (Tr. 316-318; Ex. R-13 at
322- 323). In the ET&D training, he was taught the importance of grounding, where to ground and when to ground. (Tr. 317). In addition, Foreman Howard received training from AEP regarding testing and grounding, and specifically that if equipment has not been tested or grounded then it is to be considered energized. (Tr. 319-320). He received training from Respondent on transformers, and had to demonstrate use of proper PPE, use proper tools for outer insulations, and could ensure that grounds and neutrals were terminated properly. (Tr. 324; Ex. R-13 at 565-566) . Foreman Howard also received training on switching ,
tagging , and grounding . (Tr. 325 -326 ; Ex. R-13 at 567 , 569 ). He additionally testified that he received a copy of Respondent’s safety policy, that he understood the policy, and that equipment is to be treated as energized if it is not tested and grounded. (Tr. 328-333 ;
see also
Ex. R-8 ). Foreman Howard further testified that if a conductor is not first tested and then grounded, it is to be treated as energized:

Q.  In writing the policy of New River, with
respect to electrical grounding, was that
“ All
previously energized conductors shall be considered
energized until confirmed to be de-energized by
meter testing and proper NREC grounds are installed
as prescribed in Item F below. ”

Do you see that?

A.   Yes.

Q.   And you understood that was New River ’ s
policy with respect to testing and grounding?

A.   Yes.

Q.  And that is just a verbatim reiteration,
if
it ’ s
not tested, if it ’ s not grounded, it ’ s
considered live?

A.   Correct.

Q.   And at the Madison Mills project, the URD
crews, including your crew, had TAG 200 meters to
test, correct?

A.   Yes, sir.

Q.   And at the Madison Mills project on
November 6, 2017, the URD crews had grounds to
apply, correct?

A.   Yes.

(Tr. 333-334).

Foreman Bail also received training on the work rules. ( See
Ex. R-14). He testified that

he received a copy of Respondent’s safety policy, reviewed it, and was trained on it. (Tr. 487-488) . He testified that he was aware of the rule that if something is not tested and grounded, then it should be considered energized. ( See
Tr. 541-542).
Further,
he testified that his brother-in-law, Foreman Howard, instructed him on Respondent’s “way of doing things,” and
that
he understood that they were not allowed to disregard any safety protocols. (Tr. 536-537).

Superintendent Barnhart also chronicled the safety
training
that he
received and
reiterated that equipment should be considered energized if it is not tested and grounded . (Tr. 873). He explained that he had received ALBAT training, OSHA 10 and OSHA 20 training, ET&D training, and annual training from AEP on switching and tagging. (Tr. 868-869).   
   In addition,
alteration of the evidence after the accident by
Foreman Howard and For e man Bail, as referenced in
part
III(C),
supra , demonstrates their awareness of and understanding of Respondent’s safety policies. Indeed,
OSHA’s expert witness acknowledged that the fact that the two foremen went back to Transformer No. 2 shows that they knew when to ground. (Tr. 790-792).

Certainly, the training provided to the employees was not solely provided by Respondent. As the government notes an employer may not rely on an employee’s prior training and experience as the sole means of protecting its employees. ( See
Comp. Brief at 36, citing
Pride Oil Well Serv ., 15 BNA OSHC 1809, 1815 (No. 87-692, 1992). However, as shown herein, training by other entities was in addition to, not in substitution for, training provided by Respondent. Accordingly, the
C ourt finds that Respondent has met its burden of showing that its work rules were adequately communicated to its employees.

2. Ine ffective steps to discover violations of work rules

The
Secretary argues that the widespread instances of misconduct by multiple foremen is a strong indication that Respondent had a lax safety policy. (Comp. Brief at 34). Further, the government expert witness testified to what he perceived as the lapse in safety culture at the company. Supervisory misconduct is strong evidence of a lax safety program, as supervisors are responsible for the protection of the employees. Archer-Western
Contractors, Ltd . , 15 BNA OSHA 1013, 1017 (O.S.H.R.C.),
1991 O.S.H.D. (CCH) P 29317, 1991 WL 81020
at *5
(1993) . See
also
GEM Indus., Inc. , 17 BNA OSHC 1861, 1865, 1995-97 CCH OSHD ¶ 31,197, p. 43,690 (No. 93-1122, 1996) (“Where all the employees participating in a particular activity violate an employer ’ s work rule, the unanimity of such noncomplying conduct
suggests ineffective enforcement  of the work rule.”),  aff'd ,  149 F.3d 1183 (6th Cir. 1998) ;  Jensen Constr. Co. , 7 BNA OSHC 1477, 1480, 1979  CCH OSHD ¶ 23,664, p. 28,695 (No. 76-1538, 1979) (“[A] supervisor's breach [of] a company safety policy is strong evidence that the implementation of the policy is lax.”).  Here, multiple
foremen
failed to
ensure that the lin es or equipment
were
deenergized and to ensure proper grounding.

According to Superintendent Barnhart, the primary method of supervising foremen is through “job site audits.” (Tr. 908). Respondent had a
safety team from the company
that
would conduct “safety audits” in which random and unannounced safety checks would be performed. (Tr. 350). During these safety audits, the person conducting the review would see whether employees were complying with Respondent’s policies and safety procedures. (Tr. 350-351 ;
see also
Ex. R-25 (Respondent’s jobsite evaluations in 2017) ). This safety team would show up at a site approximately once per month , observe
all
the employees,
and would be on-site for one to
five
hours. 10 (Tr. 351-352 , 909 ). The safety personnel
would
inspect the site and the work, point out if there
was
a safety violation, and pursue disciplinary measures if there
was
a serio u s
offense . (Tr. 279). However, as discussed in
part
IV(E)(3),
infra , nearly
all
the safety violations found by Respondent were discovered only after an accident or property damage. ( See generally
Ex s . R-9, R-10, R-11, R-12). Moreover, the evidence was lacking on what the company did with the safety audits. ( See
Tr. 932).

In
Thomas Industrial Coatings, Inc. ,
the Commission held that an employer in a scaffolding case had failed to take reasonable steps to discover violations of its work rules when the two supervisors inspected the scaffolding only twice within 12 workdays. Thomas Industrial Coatings, Inc. ,
23 O.S.H. Cas. (BNA) 1521 (O.S.H.R.C.A.L.J.), 2010 O.S.H.D. (CCH) P 33111, 2010 WL 5128947 at
*10 . The Commission further held that it was not reasonable to rely on the two supervisors to inspect the conditions , because
the supervisors were the same employees who supervised the unsafe installation of the scaffold in the first place. Id . In the instant matter, no evidence was presented on whether the worksite had been inspected by Respondent prior to the accident . Further, Respondent was aware, through Superintendent Barnhart, that the scope of the job had changed as the crews discovered that four transformers needed to be replaced. The government’s expert witness explained that a new JSA/JHA should have been prepared at that point. (Tr. 695-696). Notwithstanding the change in scope of the work and the time constraints imposed on the crews,
no one from Respondent other than the foremen responsible for the crews inspected the work.

Given the gravity of potential harm, the violations by multiple supervisors/foremen here,
the change in the scope of the work,
and that most of the safety violations found by Respondent were identified only after an accident or property damage, the
C ourt considers safety inspections of only once per month inadequate . Accordingly, Respondent has failed to prove that it has taken effective steps to discover violations of its work rules .

3. Ine ffective enforcement of work rules

In part, Respondent relies on its termination of Foreman Howard and Foreman Bail as support for its position that it maintains effective enforcement of work rules. (Resp. Brief at 30). Although post-accident discipline in this case show s
some effort was made to enforce work rules, this after -the-fact disciplinary measure does not establish that Respondent took any attempt to enforce its work
rules
prior to the accident. “An
effective safety program cannot wait until an accident has occurred to enforce a work rule designed to prevent that type of accident. ‘One purpose of the Act is to prevent the first accident.’” Western Massachusetts Electric Co ., 9 O.S.H. Cas. (BNA) 1940 (O.S.H.R.C.), 1981 O.S.H.D. (CCH) P 25470, 1981 WL 18785
at
*7
(1981) ( citing  Lee Way Motor Freight, Inc. v. Secretary of Labor , 511 F.2d 864, 870 (10th Cir. 1975) .

Superintendent Barnhart testified that Respondent’s safety policy is enforced. (Tr. 873). He has worked for Respondent for fifteen years, and served in several positions including foreman, general foreman, and superintendent during that time. (Tr. 869). He
testified
that employees are disciplined
if they fail to test whether a piece of equipment is energized
and for not grounding
lines and equipment . (Tr. 874). However,
although he has worked for the company for fifteen years,
Superintendent Barnhart acknowledged that he had never disciplined an employee for failing to test, tag, or ground equipment. (Tr. 933-934).

Moreover, even though he testified that employees are disciplined for not testing and grounding, (Tr. 874), he later testified that he was unaware of any incident in which employees or foremen did not
test or ground :

THE COURT :  And during, I guess -- well, your
tenure as the general foreman
and also
as a
superintendent, are you aware of any incidents
where employees -- other than this incident.  I
don ’ t
mean the accident that occurred here.  But
are you aware of any other incidents where
employees or foremen
didn ’ t
ground?

THE WITNESS:  I am not aware of it, no.

THE COURT :  Okay.  Or
didn ’ t
test?

THE WITNESS:  I ’ m not aware of it.

THE COURT :  Or didn ’ t place tags?

THE WITNESS:   I ’ m not aware of it, no.

(Tr. 948).

Foreman Howard explained that during his four years with the company
there
had been safety audits that discovered failure to ground equipment and the employees responsible were disciplined. (Tr. 292-293 ). He testified that during his tenure at the company, there had been two or three
incidents
where employees were caught not using grounds and were suspended. (Tr. 292-293). Indeed, t he company’s record for the years preceding the accident shows that the company disciplined employees for
violations of certain
work rule violations. ( See
Ex s . R-9, R-10, R-11, R-12). However, overwhelming ly, the disciplinary actions taken were for:

1. drug/alcohol offenses
   ( see
   Ex s .
   R-9 (2016 disciplinary records) at 10, 17, 29, 72; R-10 (2016 disciplinary records) at 123, 130; R-11 (2017 disciplinary records) at 197 ) .

2. tardiness and absenteeism
   ( see
   Ex s . R-9 at 15, 22, 24-26, 30, 36, 40-41, 48, 54-56, 63, 66, 70, 74; R-10 at 81-82, 84, 96, 110, 117-118, 120, 129, 131-137, 142, 146, 148, 152-153, 155-156, 159, 169; R-11 at 185, 188-189, 194, 198-200, 207-209, 220-221, 224, 227, 229; and R-12 at 235, 240 ) .

3. violations
   discovered after an accident or damage to property or equipment
   ( see
   Ex s . R-9 at 7, 9, 12, 14, 16, 19-21, 37-39, 43, 44, 46, 52, 57-60, 65 , 72-73 ; R-10 at 77, 80, 83, 85-86, 87-94, 99, 104,
   109,
   114-115, 119, 124-126, 128, 149-151, 154, 157-158, 160-163, 170-172; R-11 at 174-181, 190, 192-193, 201-202, 204-206, 213, 223, 230, 232-233, 238-239; R-12 at 236, 241-242 ) .

In total, Respondent’s disciplinary records for the years 2015 through 2018
( prior to the accident )
totaled a pproximately 238 pages of materials. T here were few documented disciplinary actions for work rule violations without an apparent accident or property damage. Indeed, only approximately 16 pages of the 238 pages of material related to safety violations
discovered
without an apparent accident or property damage . ( See
Ex s . R-9 at 2, 49 ;
R-10 at 98, 103-104,
106, 111, 144-145; R-11 at 183, 187, 191, 212, 222, 225-226 ) . Of these, only three concerned work rule violations related to electrical hazards
and all three occurred in 2016 :

1. a second offense resulting in an eight-day suspension for cutting energized control cable in station without checking for voltage (Ex. R-10 at 103 );

2. a
   first offense resulting in demotion for working on ungrounded equipment/line (Ex. R-10 at 106); and

3. a
   suspension for failing to wear proper PPE when entering a primary zone. (Ex. R-10 at 144-145).

Thus, while Foreman Howard testified that employees had been disciplined for failure to ground equipment, (Tr .
292-293), the documentary evidence of such discipline is scant. See e.g.
Broan-Nutone
Storage Solutions, LP ,
3 O.S.H. Cas. (BNA) 1954 (O.S.H.R.C.A.L.J.), 2011 O.S.H.D. (CCH) P 33163, 2011 WL 4634271, at *8 (2011) (ALJ finding disciplinary records focusing primarily on employees damaging products, rather than safety concerns, insufficient to show attempts to monitor compliance or enforce safety policies).

The government’s expert witness testified to “blind spots” in Respondent’s audits. (Tr. 816-817). Mr.
Daws ey
testified that based on the audit records, it appeared that the company was not looking at grounds, tags, and deenergized zones, because there were many references to “n/a” on audit forms concerning these issues. ( Id .).

In order to
have an effective
safety program, an employer must make
“a diligent effort to discover and discourage violations of safety rules by
employees.”  Paul Betty d/b/a Betty Bros. , 9 BNA OSHC 1379, 1383 (No. 76-4271 , 1981).

In the absence of such evidence, the Commission has held that the employer “could not have enforced its work rules effectively.”  Am. Sterilizer Co. , 18 BNA OSHC 1082 (No. 91-2494 , 1997) (citing  Tampa Shipyards, Inc. , 15 BNA OSHC
1533, 1539 (No. 86-360 , 1992)) . As discussed herein, Respondent ’s
efforts in this regard were deficient and it has failed to meet its burden of showing effective enforcement of work rules. Accordingly, Respondent’s affirmative defense of unpreventable employee misconduct fails.

G. Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act requires the Commission
to
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 $12,934 for each of the three citation-items at issue. Thus, Complainant proposed a total penalty of $ 38,802. As discussed herein,
the Court affirms
all three citation-items . H owever ,
the Commission has held that violations may be found duplicative when the standard cited required the same abatement measures, or where the abatement of one citation item will necessarily result in the abatement of the other item as well. Rawson Contractors, Inc .,
20 O.S.H. Cas. (BNA) 1078 (O.S.H.R.C.), 2002 O.S.H.D. (CCH) P 32657, 2003 WL 1889143
at *5 n.5. In the instant case, the CSHO stated that all the citation - items were related violations, contributed to the same hazard, and that the abatement was no
different for any of the violations. (Tr. 92). The CSHO further testified that grounding and tagging would have abated
all
the hazards identified in the citation-items. (Tr. 89-90). The government did not provide evidence refuting th e s e
representation s . In view of this testimony
and the record as whole, the Court finds that the
three citation-items
should be grouped as one citation - item. Complainant
had
proposed a penalty of $12,934
for each item , because failure to follow the standard s
could result in bodily injury or death. (Tr. 89). [redacted]
received an electrical shock causing
second-degree burns to “his left hand and forearm and third-degree burns to his right knee and inner thigh area.” (Tr. 91;
see also
Stip. ¶ 9,
Ex s . C-1, C-6, R-1). Complainant proposed no discounts to Respondent given the company’s size
(over 250 employees) ,
lack of positive or negative
inspection
history in the past five years, and the gravity of the violation. (Ex. C-2; Tr. 79) . Upon consideration of the proposed penalty,
other than grouping
Item, 1,
Item 2 and Item 3,
t he
C ourt sees no reason to depart from Complainant’s assessment . As such, Complainant’s proposed penalty of $1 2,934
is appropriate and shall be assessed
for the grouped items ( Item 1,
Item 2 ,
and Item 3).

V. Order

Based upon the foregoing Findings of Fact and Conclus ions of Law, it is ORDERED

that:

1. Item
   1, Item
   2 , and Item 3
   of Citation 1
   are
   GROUPED;

2. Grouped Item
   1, Item
   2 ,
   and Item 3
   of Citation 1
   is
   AFFIRMED, and a total penalty
   of $12,934 is ASSESSED .

SO
ORDERED.

/s/ Christopher D. Helms         

Christopher D. Helms                                                               

D ate: Se ptember 11, 2020

Denver, Colorado            

"

1
As noted in the Citations, the inspection site was 3887 Marsha Drive, Columbus, Ohio.

2
The evidence differed on the exact number of transformers that needed new cabling. OSHA noted that 35 transformers needed new cabling (Ex. C-2 at 1), while certain witness testimony claimed that 39 needed new cabling (Tr. 501), and other testimony claimed that 65 transformers needed new cabling, (Tr. 203). Accordingly, for purposes of this decision, the number of transformers needing new cabling will be referenced as “at least 30 transformers.”

3
Both Complainant and Respondent reference Exhibit R-1 in their
posttrial
briefs. ( See
Comp. Brief at 4; Resp. Brief at 2). However,
Exhibit R-1
was never admitted into evidence. (Tr. 796). Based upon
a
colloquy by counsel at trial, it appears that this exhibit
(Ex. R-1) , however, is a duplicate of Exhibit C-6. (Tr.796-797).

4
A “bushing” is “[a]n insulating structure that includes a through conductor or that provides passageway for such a conductor, and that, when mounted on a barrier, insulates the conductor from the barrier for the purpose of conducting current from one side of the barrier to the other.” 29 C.F.R. § 1926.968.

5
The CSHO explained that a “back-feed” can occur when a residential owner wires a generator into an outlet so it feeds the entire house. (Tr. 137). At that point, electricity is feeding into the whole house through the circuit breaker box and back to the transformer. (Tr. 137). The government’s expert explained that a “back-feed” can occur when you have “only one phase of [a] transformer bank de-energized, the other two phases can still support energy and feed back into that other phase that is damaged.” (Tr. 631).

6
Placing a transformer in “stand off” would prevent current from going into the cabling that fed to the north riser. (Tr. 404-405; 496-497).

7
The preamble to the standard explains that lines and equipment are subject to reenergization through means other than normal energy sources. “ For example, lightning can strike a line and energize a deenergized conductor, or unknown cogeneration sources not under the control of the employer can energize a line. Additionally, some deenergized transmission and distribution lines are subject to reenergization by induced voltage from nearby energized conductors or by contact with other energized sources of electrical energy. ” 79 Fed. Reg.
20316,
20502 (Apr. 11, 2014).

8
While the government’s expert witness testified that there was no evidence in OSHA’s file that a back-feed occurred, the expert witness did note there was such a risk.

9
“Deenergized” means “[f]ree from an electrical connection to a source of potential difference and from electric charge; not having a potential that is different from the potential of the earth.” 29 C.F.R. § 1926.968. In addition, as a note to the definition of “deenergized,” the section states that “[t]he term applies only to current-carrying parts, which are sometimes energized (alive).” Id .

10
Respondent points out that the government’s expert witness testified that when he previously performed job site safety audits, he would usually spend one to two hours at a worksite, and at that time, he personally conducted safety audits only approximately once per month. (Tr. 781-782). However, Respondent neglected to acknowledge that the expert also stated that for other positions, the audits were more frequent: “[w]e had requirements where they were done so many per month, so many per quarter. So I guess it averages to about, per supervisor, once a week; per manager, twice a month; for me, once a month.” (Tr. 781). Further, in contrast to Foreman Howard’s and Superintendent Barnhart’s testimony, Foreman Bail testified that the safety audits would only last “[u]sually just a couple of minutes. Not very long.” (Tr. 531).