Kiewit Atkinson Kenny
Mixed ruling on tunnel electrical hazards
Apply this to your situation
This order from 1996 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Kiewit Atkinson Kenny was the general contractor for a tunnel construction project on Deer Island in Massachusetts. The judge held that Kiewit could be responsible for hazards created by its electrical subcontractor because Kiewit supervised the worksite and could obtain abatement. She affirmed citations for electrical equipment that was not firmly secured and for failing to bond and ground high-voltage equipment to the tunnel's metal pipes and rails. Those serious violations resulted in penalties totaling $2,600. The judge vacated a lockout item because a nylon tie wrap prevented operation of the breaker without cutting it and therefore served as a lock under the cited standard. She also vacated a defective-rigging item because the Secretary did not prove that the hook had been manufactured with a safety latch.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.403(d)(1), 1926.408(a)(4)(v), 1926.417(d)(3), and 1926.251(a)(1)
- Outcome: Two serious electrical items were affirmed with $2,600 in penalties, and the lockout and rigging items were vacated.
- Key point: A general contractor may be liable for subcontractor-created hazards when its supervisory role gives it the ability to detect and obtain correction of those hazards.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419
Phone: (202) 606-5400
Fax: (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-0830
KIEWITATKINSONKENNY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE I&V JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on April 26, 1996. The decision of the Judge
will become a final order of the Commission on May 28, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 16, 1g96 in order to ermit sufficient time for its review. See
Commission Rule 91,29 e .F.R. 2200.91.
All fkrther pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial IAi ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
. eP7ffP+
Date: April 26, 1996
DOCKET NO. 95-0830
NOTICE IS GIVEN TO THE FOLLOWING:
Frank V. McDermott, Jr.
Acting Re ‘onal Solicitor
Office of t!iY
e Solicitor, U.S. DOL
One Congress Street, 11thFloor
P.O. Box 8396
Boston, MA 02114
Richard D. Wayne, Es .
Hinckley, Allen & Sny3er
One Financial Center
Boston, MA 02111
Barbara Hassenfeld-Rutberg
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, &IA 021094501
00109162222:Ol
UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501
PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
f=TS223-9746 FTS 223-4004
SECRETARY OF LABOR, ..
.
Complainant ’ OSHRC
DOCKET NO. 95-0830
v, -
.
IUEWIT ATKZNSON KENNY, ..
Respondent.
Appearances:
Paul J. Katz, Esq. Richard D. Wayne, Esq.
Office of the Solicitor Hinckley, Allen & Snyder
U.S. Department of Labor Boston, Massachusetts
For Complainant For Respondent
Before: Administrative Law Judge Barbara Hassenfeld-Rutberg
DECISION AND ORDER
This proceeding arises under 0 10(c) of the Occupational Safety and Health Act of 1970,29
USC. 5 65 1, et. seq., (“the Act”), to review citations issued by the Secretary of Labor (%cretary”)
pursuant to 0 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to 5 IO(c)
of the Act.
On March 30,1995, Kiewit Atkinson Kenny (“Kiewit”) was issued two citations stemming
Corn the inspection of a tunnel construction project on Deer Island in Winthrop, Massachusetts. The
first citation alleges sixteen serious violations, all but three of which have been resolved by the
parties or withdrawn by the Secretary (Tr. 4-9; Exhibit J-l).’ The three remaining violations involve
electrical hazards and a total penalty of $6,400 is proposed. The second citation alleges four other-
than-serious violations, three of which have been withdrawn by the Secretary (Tr. 302 ; Exhibit J-1).
No penalty is proposed for the remaining item. Kiewit filed a timely notice of contest and a hearing
was held in Boston, Massachusetts on November 6 and 7, 1995.
I&wit serves as general contractor for the ongoing tunnel project and at the time of the
inspection, had at least 150 employees present at the work site (Tr. 13, 299). These employees
included tunnel boring machine operators and safety supervisors who performed regular safety
surveys of the worksite (Tr. 13014,25026,32,54,74-75, 132,35,292). Given that much of their
work extends throughout the tunnel, many of Kiewit’s own personnel may have been exposed to
some, if not all, of the hazardous conditions alleged herein (Tr. 32.33,54). But even if Kiewit’s own
employees were’not exposed, Kiewit may be held responsible for the exposure of other employees
present at the site. As the project’s general contractor, Kiewit is charged with overseeing the entire
worksite and ensuring that safe working conditions are being practiced by the various subcontractors
hired for the project (Tr. 13-14,70,135,291-92,295.98). As such, Kiewit is in a position, by virtue
of its supervisory role, to obtain the abatement of hazardous conditions created or controlled by
another employer (Tr. 25-26,32,54, 75). See,
e.g., Grossman Steel & Aluminum Corp., 4 BNA
OSHC 1185, 1188, 1975-76 CCH OSHD 720,691 (No. 12775, 1976) (“The general contractor is
well situated to obtain abatement of hazards, either through its own resources or through its
supervisory role with respect to other contractors”); Anning-Johnson Co., 4 BNA OSHC 1193,1199,
1975-76 CCH OSHD 7 20,690 (NO. 3694,1976) (general contractor on multi-employer worksite has
sufficient control over entire project to take necessary steps to assure compliance).
At the hearing, Frank Gagnon, Kiewit’s electrical supervisor, described himself as the
company’s liaison with the project’s electrical subcontractor, Mass-Reid Electric (“Mass-Reid”) (Tr.
192). He acknowledged that it is part of his job to not@ Mass-Reid whenever a hazardous electrical
condition is discovered and to ensure that the condition is abated (Tr. 192, 246-47). He also
indicated that while Mass-Reid is responsible for performing all scheduled maintenance on the
l The settlement agreement is approved and incorporated herein (Exhibit J-l).
2
project’s electrical equipment, it is Kiewit who ensures that the maintenance program is being
completed (Tr. 201-02,212-l 3,292). Kiewit even provides Mass-Reid with the tags and locks used
to lockout electrical equipment (Tr. 209-12). Thus, the fact that Kiewit employees are contractually
prohibited from performing any type of electrical work themselves does not lessen Kiewit’s
obligation as general contractor to address those hazards which may tiect the safety of the jobsite
as a whole (Tr. 32,73075,120.21, 192093,201-02,21 l- 12,221,291-92). Id. Accordingly, I find
that Kiewit may properly be held responsible for those violations which it reasonably could have
been expected to prevent or abate by reason of its supervisory capacity.
Serious Citation 1. Item 5
Under this item, the Secretary alleges violation of 29 C.F.R. 0 1926.403(d)( 1) which requires,
in r&va.nt part, all electrical equipment to be firmly secured to the surface on which it is mounted.
According to the Secretary, three pieces of electrical equipment located in different areas of the
tunnel were not properly secured in the manner required. Two instances of violation involve tunnel
lighting contactors, 12” x 12” metal boxes which essentially serve as light switches (Tr. 17-l 8,21,
24). The first contactor was hung f?om a railing with two nylon tie wraps strung through its “ears”
at the top of the box and thus it could swing (Tr. 17-l 8,28, 138; Exhibit C-2). It had three cables
running into it - one plug-connected and two directly wired (Tr. 1%19,21, 116-17 ). The second
contactor was resting unattached on top of a large transformer and also had one plug-connected cable
and two hard wired cables running into it (Tr. 23024,28, 116-l 7; Exhibit C-3). The third instance
of violation involves a large, 30 KV transformer with feet which was sitting on top of a grating floor
of a raised metaI platform about seven feet off the ground (Tr. 30, 130, 132-33, 138,232-33). The
transformer itself was approximately four feet high, three feet wide, and weighed at least 200 pounds
(Tr. 30-3 1,34,232). William Cohen, the compliance officer, for the Occupational Safety and Health
Administration (“OSHA”) testified that the transformer was not secured and was unstable because
it was resting on top of a one-inch diameter cord (Tr. 30, 129.31,233.35).
Kiewit does not dispute that the transformer and two contactors were not secured in the
manner required by the cited standard. However, Kiewit claims that these pieces of equipment are
temporary and therefore, do not need to be secured. Kiewit argues that these items are not intended
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to remain inside the tunnel permanently, but will be removed once the construction project is
completed; thus they contend the items should be are considered as only temporary installations fTr.
115,225, 234).2 But Kiewit has failed to prove that temporary equipment is specifically excluded
from the requirements of 6 1926.403(d)(l). There is nothing in Article 305, the temporary wiring
section of the National Electric Code (NEC) cited by Kiewit, to suggest that such equipment need
not be secured in the manner required under NEC 8 1lo-13 and duplicated in the cited standard (Tr.
115, 13 1). Thus, temporary or not, this equipment should have been secured in accordance with 6
1926.403(d)( 1).
Similarly, there is nothing in the record to support Kiewit’s claim that the cited pieces of
equipment are meant to be portable and therefore, do not need to be secured (Tr. 226-27). The
compliance officer testified that unlike a mobile distribution unit, such as a “spider”, this equipment
is not intended to be portable (Tr. 116, 128-29, 137038,226). This is consistent with the fact that
the transformer and one of the contactors have not been moved from their positions for the past two
years (Tr. 28.30,239). Furthermore, it would be a true stretch of the imagination to characterize a
200.pound transformer as a portable piece of equipment designed to be e-asily moved from one
location to another (Tr. 3 1). Even if this equipment were portable, Kiewit has failed to identify any
standard or NIX section which exempts portable equipment from the requirements of the cited
standard.
According to the compliance officer, all three of these pieces of equipment should have been
firmly secured in order to protect against the damage that accidental movement GUIcause (Tr. 27,
3%35, 126-27). The evidence indicates that the first contactor was free to swing back and forth from
its two connection points and the second contactor could have fallen from its position atop a
transformer (Tr. 17, 19,24025, 128 ; Exhibits C-2 & C-3). Similarly, the cited unstable transformer
sitting on a raised platform was capable of tipping over if struck by a locomotive car or used as
stepping stool by an employee (Tr. 30-32, 138-39). The compliance officer also testified that an
employee performing work on a piece of electrical equipment that is not secure could come into
*It is worth noting that at the time of the hearing, only one of the contactors has been removed from
the tunnel since its installation in 1994; the transformer, also placed in the tunnel in 1994, is not expected
to be removed until the summer of 1996 (Tr. 239).
4
contact with a live circuit if the equipment should move or slide around (Tr. 19-22, 24.25,27).
Although it is expected that the electricians on site would only work on equipment that has been
properly deenergized, the compliance officer noted that for certain procedures, such as testing the
circuits, the equipment must remain energized (Tr. 19,126-27,227.30). Given these circumstances,
I find that the cited equipment posed an electrical hazard. Since these conditions were not hidden
and could, with reasonable diligence, have been noticed by a Kiewit safety supervisor during a
routine safety inspection, Kiewit should have known that these hazards existed.
At the hearing, Gagnon, Kiewit’s electrical supervisor, provided extensive testimony
regarding the tunnel’s electrical system and the safeguards in place at the time of the inspection.
These measures include a pilot or ground check system which monitors for breaks in the tunnel’s
primary feed of 13,800 volts, and several vacuum breakers positioned throughout the tunnel to
distribute the 13,800 volts and monitor for overcurrent (Tr. 94-96, 195.200,203-05,249-50,2’71-
-
73). According to Gagnon, if the flow of current surges or is broken, these systems respond by
im.n&ately cutting the feed of 13,800 volts (Tr. 196-98,204-06,249.50,267,279). Gagnon also
identified an independent tripping device which monitors the current for the 660/480/120 voltage
systems connected to the tunnel boring machine (Tr. 200-01). Finally, he indicated that an assured
grounding system, as well as a ground fault circuit interrupter (GFCI) program on all 120 volt
&c&s, are used at the tunnel site (Tr. 198099,201,02,268.69,271.72,276.77,282). While these
systems provide employees working in the tunnel with some level of protection from electrical
hazards, they address those hazards primarily associated with the main feed of 13,800 volts, not
systems operated at lower voltage levels (Tr. 249050,267,3 11-12). Moreover, these precautions are
meant to serve in addition to, not in place of, the requirements of the cited standard (Tr. 145). There
was no evidence of a waiver asked for by Kiewit. Accordingly, the violation is aEiiirmed.
Section 17(k) of the Act, 29 US-C. 0 666(k), provides that a violation is “serious” ifthere
is “a substantial probability that death of serious physical harm could result” from the violation. In
order to establish that a violation should be characterized as serious, the Secretary need not establish
that an accident is likely to occur, but must show that in the event of an accident, it is probable that
death or serious physical harm could OCCUT.Flintco Inc., 16 BNA OSHC 1404,1405,1993 CCH
OSHD T[30,227 (No. 92-1396,lW). There is no question that an electrical hazard poses the threat
5
of serious physical harm or even death. Here, this hazard was exacerbated by the fact that the tunnel
environment is damp and wet (Tr. 21-22, 34, 207). AS the compliance officer indicated, if an
unsecured piece of equipment short-circuits due to accidental damage or moves while being worked
on such that contact with a live circuit is made, an employee may suffer serious burns or even
electrocution (Tr. 19-2 1,23,X, 34-35). Accordingly, this violation was properly characterized as
serious.
Pursuant to 5 17(j) of the Act, the Commission is authorized to assess each violation an
appropriate penalty, giving due consideration to the size of the employer, the gravity of the violation,
the good faith of the employer, and the employer’s history of previous violations. Merchant’s
Masonry, Inc., 17 BNA OSHC 1005,1006-07,1995 CCH OSHD 7 30,635 (NO. 92-424,1994). The
most significant of these factors is the gravity of the violation, which includes the number of exposed
employees, the duration of exposure, the precautions taken to prevent injury, and the degree of
probability that an injury would OCCULId.
The Secretary has proposed a penalty of $1,600 for this violation. For some reason, the
Secretary has chosen not to introduce any evidence whatsoever regarding -the calculation of the
penalties proposed for the items in dispute. Thus, an independent analysis of the relevant penalty
criteria is required. First, I find that the gravity of the violation is low. Exposure to these conditions
was essentially limited to those employees who had direct access to the cited equipment, specifically
the electricians, and in some instances, Kiewit’s safety supervisors. The duration of exposure and
the probability of injury is ako low given that most of the work to be performed would only be done
once the equipment was deenergized. In addition, I find that equipping the electrical system with
several levels of safety features and dedicating one employee to coordinate Kiewit’s efforts with
Mass-Reid demonstrates good faith on Kiewit’s part. After carefully weighing these facts in light
of the record as a whole, I find a penalty of $1000.00 to be reasonable and appropriate under the
circumstances.
Serious Citation 1. Item 12
Under this item, the Secretary alleges violation of 0 1926.408(a)(4)(v) which requires, in
relevant part, that the nonenergized metal parts of electrical equipment operating at over 600 volts
6
be bonded and grounded to all metal pipes and rails at the portal and at intervals not exceeding 1000
feet throughout the tunnek3 Contrary to testimony from Gagnon, this standard is applicable to the
tunnel project pursuant to 0 1926*408(a)(4)(i) which states:
The provisions of this paragraph apply to installation and use of high-
voltage power distribution equipment which is associated with
tunnels and which is portable and/or mobile, such as substations,
trailers, cars, mobile shovels, draglines, hoists, drills, dredges,
compressors, pumps, conveyors, and underground excavators.
(Tr. 50.51,215.16).
The compliance officer testified that the tunnel contained electrical equipment, such as
transformers, disconnect switches, and pump controllers, containing nonenergized metal parts.
These non-energizied metal parts were not bonded to the metal pipes which supply water and air to
the head of the tunnel or the metal rails which carry the locomotive through the tunnel (Tr. 41-43,
45,52, 109-l 1,308; Exhibit R-3). Bonding these components would require physically connecting
them with a wire that would allow the potential between these parts to be the same, i.e the bond
would eliminate the chance of electricity being carried throughout the tunnel (Tr. 43,45,47-48,5 1,
53054,308.09).
Gagnon maintains that the tunnel’s electrical system is bonded and grounded by its pilot or
ground check system. Under this system, he explained, every load center is first bonded to the main
feed cable at 1,500-foot intervals and then grounded to the platform on which it sits; because the
platf&-rns rest on steel rods which are driven into the earth, they are “grounded” by a path to earth
(Tr. 2 17,219-21,241.42,272,277-78). Gagnon admitted that bonding these components in this
way does not conform with the cited standard (Tr. 242). He also acknowledged that at the start of
the tunnel project, Kiewit had begun to bond in the manner required by $ 1926.408(a)(4)(v), but
subsequently discontinued this practice and apparently removed the initial bonding (Tr. 5 l-52,109,
253-54; Exhibit R-3).
By Kiewit’s own admission, it has not complied with 0 1926.408(a)(4)(v), nor did it apply
3According to 5 1926.408(a), this requirementapplies to all circuits and equipment operated at over
600 volts. AS noted supra, the current running throughout the tunnel was 13,800 volts (Tr. 53).
7 -.
for a waiver. Moreover, while its alternative bonding system presumably provides some level of
protection with regard to the specific components involved, e.g. the load centers and the platforms,
the system does not address the key aspects of the cited standard - the nonenergized metal parts of
electrical equipment and the metal pipes and rails running the length of the tunnel (Tr. 309). As the
compliance officer indicated, if a 480 volt wire came in contact with one of these pipes, electrical
current could be carried throughout the tunnel (Tr. 47-48, 3 10). Should an employee come into
contact with that current, he may suffer serious burns or even electrocution (Tr. 48, 53).
Accordingly, I find that a serious violation of $ 1926.408(a)(4)(v) has been established.
The Secretary has proposed a penalty of $2,000 for this violation. Although exposure to this
condition extended to any employee working throughout the tunnel who might come into contact
with the metal pipes or metal rails, I find that the gravity of the violation remains low given that the
likelihood of an injury occurring is remote. Also, for the same reasons indicated supra with regard
to the previous violation, Kiewit should receive credit for good faith. Thus, based upon an
independent analysis of the penalty criteria set forth at 8 17(j) of the Act, I find that a penalty of
$1,600 is reasonable and appropriate under the circumstances.
Serious Citation 1. Item 13
Under this item, the Secretary alleges violation of 5 1926.417(d)(3) which requires, in
relevant part, that a lock and tag be placed on each disconnecting means used to deenergize circuits
and equipment on which work is to be performed. According to the compliance officer, a 480 volt
water pump in need of repair had been disconnected Tom a breaker panel which was tumed off and
tagged, but not locked out (Tr.
55-56,65066,75,146-47; Exhibit C-7).4 After removing the pump,
4There was some question at the hearing regarding whether the breaker panel had a cover and if so,
whether the cover was open or closed at the time of the inspection. After some initial uncertainty, the
complianceoff&r recalled that the panel had a cover which was partially open when he approached the area
during the walkaround inspection (Tr. 119-20, 157058,306.07). The presence of a door is consistent with
the fact that given the conditions of the tunnel, the panel showed relatively few signs of extensive moisture
or dirt (Tr. 207-08, 289-90). However, rust marks do appear to the right of the breaker switch and the
handmade, cardboard sign seems too large to have allowed a cover to shut completely over the face of the
panel (Exhibit C-7). As such, I am inclined to believethe compliance off&r’s testimony that the cover was
(continued...)
the cable which connected the pump to the breaker panel was coiled and hung on the wall, its end
encased in plastic and tape in order to keep moisture out (Tr. 56-59,68-69,98-99, 145-46; Exhibit
C-6). The cable was not within sight of the breaker panel (Tr. 59, 69). The compliance officer
testified that since the breaker was still connected to an energized source and was not locked out, it
could be accidentally switched on, thus energizing the cable (Tr. 58.59,62,66-67,77, 147-48, 153.
54).
As pictured in Exhibit C-7, the breaker panel had two “tags” attached to it. One was a
handwritten, cardboard sign which read “Danger Leave Off’ (Tr. 75-76; Exhibit C-7).
\ The second
- a laminated, preprinted tag used for lockout purposes - was attached directly to the breaker switch
with a nylon tie wrap (Tr. 76; Exhibit C-7). Kiewit contends that the nylon tie wrap served as a
“lock” to the extent that it secured the breaker switch in the same manner as a padlock. Accorciing
to Gagnon, the ends of a nylon tie wrap lock together and the tie wrap could not have been removed
Corn the panel without cutting it off (Tr. 210-l 1). The compliance officer confirmed that breaker’s
switch could not be thrown without removing the tie wrap by cutting it off (Tr. 76-77, 149-50).
The compliance officer asserts that the cited standard must be interpreted as requiring the
lock used to lockout a disconnecting to be an actual padlock that opens with a key, however, there
is nothing in the standard to suggest that this is the case (Tr. 150).5 Section 1926.417(d)(3)
4(. .continued)
partially open when he observed the panel.
s The lockout/tag out standard for construction contains no definitions, but the corresponding general
industry St&ad defines both “lockout” and “lockout device”. Under 5 1910.147(b), lockout is defined as:
The placement of a lockout device on an energy isolating device, in
accordance with an established procedure, ensuring that the energy
isolating device and the equipment being controlled cannot be operated
until the lockout device is removed.
Lockout device is defined as:
A device that utilizes a positive means such as a lock, either key or
combination type, to hold an energy isolating device in a safe position and
prevent the energizing of a machine or equipment. Included are blank
flanges and bolted slip blinds. (Emphasis added).
. (continued...)
9
specifically states that “[t]he
lockshall so as to prevent persons from operating the
be attached
disconnecting means unless they resort to undue force or the use of tools.” Since the nylon tie wrap
locks into place and would have prevented individuals from operating the breaker panel %nless they
-resor@j] to undue force or the use of tools”, I agree that the tie wrap served as a lock for lockout
purposes. The nylon tie wrap coupled with the two tags warning against energization provided the
protection required by the cited standard. As such, the alleged violation must be vacated.
Other than Serious Citation 2. Item 3
Under this item, the Secretary alleges violation of 0 1926.25 l(a)( 1) which requires, in
relevant part, that defective rigging equipment be removed from service. According to Jean Man&,
an OSHA Assistant Area Director, for Health, who participated in the subject inspection, a hook
connected to a mooring and supporting a pulley which tows cars carrying materials through the
tunnel did not have a safety latch, a positive locking device which would have covered the area from
the base of the hook to its tip (Tr. 163-66; Exhibits C-8 & R-4). Without such a latch, Manoli
testified that the hook could have slipped from its mooring, potentially injuring employees in the
area (Tr. 164).
Manoh maintains that the hook is defective because it is manufactured with a safety latch
yet the one cited did not have one (Tr. 167-71). There is nothing in the record, however, to support
the claim that the cited hook is of the type manufactured with a safety latch. Manoli acknowledged
that there are some hooks which are not manufactured with such latches (Tr. 170-71). Moreover,
one of l&wit’s safety supervisors testified that this hook in particular was manufactured withouta
safety latch and in order to obtain one, the latch would have to be ordered from the manufacturer
separately as an option to the hook itself (Tr. 292-93). There is no evidence to indicate that the hook
was present and required when manufactured and then was missing at the time of the inspection,
thus the alleged violation must be vacated.
Neither definition precludes the use of an alternative means of locking out an energy source to comply with
these standards.
10
FINDINGS OF FACT AND CONCLUSIONS OF LAW
All findings of fact relevant and necessary to a determination of the contested issues have
been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure.
Proposed findings of fact or conclusions of law inconsistent with this decision are denied.
ORDER
Serious citation 1) item 5, alleging violation of 29 C.F.R. 5 1926.403(d)( 1) is AFFIRMED
and a penalty of $1000.00 is assessed.
Serious citation 1, item 12, alleging violation of 29 C.F.R. 9 1926.408(a)(4)(v) is
AFFIRRI;[EDand a penalty of $1,600 is assessed.
Serious citation 1, item 13, alleging violation of 29 C.F.R. § 1926.417(d)(3) is VACATED.
Other than serious citation 2, item 3, alleging violation of 29 C.F.R. 6 1926.251(a)( 1) is
VACATED.
BARBARA L. HASSENFELb-RUTBERG
Judge, OSHRC
Date: April 18, 1996
Boston, Massachusetts
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