OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
SACRAMENTO MUNICIPAL UTILITY DISTRICT
P.O. Box 15830
Sacramento, CA 95852-1830
Sacramento, CA 95852-1830
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, and having taken the petition for reconsideration filed in the above-entitled proceeding by Sacramento Municipal Utility District (Employer) under submission, makes the following decision after reconsideration.
From January 21 through March 29, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at the commissary at McClellan Air Force Base, North Highlands, California (the site). On April 4, 2000, the Division issued to Employer a citation alleging a general violation of section1 2320.2(a) [protective equipment for exposure to exposed energized high voltage installations] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.2 Employer filed a timely appeal.
After a hearing before an administrative law judge (ALJ) of the Board a decision
was issued on December 27, 2000. The decision denied Employers appeal.
On January 31, 2001, Employer petitioned the Board for reconsideration.3
The Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision. The Summary of Evidence on pages four through six of the ALJs decision is incorporated here by reference.
The investigation grew out of an accident in which John Callahan, an employee of Employer was injured while examining a switch. On October 22, 1999, Employer dispatched Art Fern to the site because the commissary parking lot lights went out when a fuse blew due to an electrical problem. Fern put temporary wiring in place to correct the problem until it could be permanently repaired. After temporarily restoring the parking lot lights a cardboard sign was placed on the circuit breaker panel where the accident later occurred. The sign stated Danger¾Hot 480 Volts¾Stay Away SMUD.
On October 25, 1999, Callahan went to the site, which is located in a motor control center, to evaluate the temporary wiring on the fuse box. In the process of checking the wiring, Callahan was injured by an electrical explosion.
Joel Halverson conducted the investigation on behalf of the Division. Halverson had originally been told by Rich Hight, McClellan Air Force Base safety officer, that Fed/OSHA had jurisdiction over the commissary. Later, after having been informed that Fed/OSHA could not exercise jurisdiction, Halverson went to the base and was accompanied by McClellan AFB electrician Ken Davis. When Halverson interviewed Callahan, Callahan stated that he had called Davis because he was unfamiliar with the panels in the motor control center. Callahan intended to evaluate the temporary wiring. Callahan had a wiggy electronic tester, which he used to test the voltage in the circuit breaker fuse. After testing the voltage, he got a screwdriver to test the tension on the metal bar switch that connected to the door to turn the power on or off. The screwdriver slipped and the metal part contacted the connections on the live side causing a dead short across it and explosion.
Ken Davis testified for the Division that he was employed as an electrician and electrical superintendent for McClellan AFB at the time of the accident. On October 25, 1999, Callahan called Davis to ask where the service disconnect was for the commissary parking lot lights. Davis went to the electrical contractor, with Callahan to show him the location of the fuse switch. The contractor is a magnetic device that has 480-volt electrical contacts to control the parking lot lights. The door, depicted in Exhibit 2 leaning against the A/C controls, had been removed. The cardboard sign, was laid up - maybe with tape on the panel as a temporary guard. The sign read: Danger¾Hot 480 Volts¾Stay Away SMUD.
There were black wires going down to the floor from the contractor, which normally would not be there. They went 10 feet to the right of another spare energized switch at the main panel motor control center. The wiring supplied temporary power to the parking lot lights. The subsequent electrical fire caused the blackened burn marks in the panel. The motor control center, which supplies power to the commissary, was energized at 480 volts and operational. The fuse switch in the motor control center for the parking lot lights near the disconnect switch in the panel, was in the on or up position. It had blown due to faulty wiring in the parking lot lighting system. Callahan pulled (removed) the fuses from the switch before working on the panel.
Callahan told Davis that Fern had opened the motor control center panel door, installed the temporary wiring, and put up the cardboard warning sign. Davis observed that the electrical switch¾the metal bar¾was in a closed position, indicating that it was supplying power to the parking lot lights. There is an interlock system, which connects to the door handle and interfaces with the panel that prevents the door from opening when the switch is on. Fern would have had to de-energize the panel to open the door. If the door is open, the interlock system on the back of the door would have to be manually defeated by pushing the internal handle with pliers or a screwdriver to simulate the door being in a closed position.
Davis was not watching Callahan after he saw Callahan remove the cardboard warning sign and look inside the panel. It was Davis understanding, from discussion with Callahan, that Callahan was inspecting the temporary connections to evaluate how to make a permanent repair at a later date. Davis heard an explosion; saw a bright flash; and turned to see Callahans clothing on fire. Callahan had not been wearing any gloves, protective safety glasses or other personal protective equipment at the time. To Davis knowledge, no Employer supervisor or any other personnel had been in the motor control room since the previous Friday, when Davis had last been in the motor control center and Fern had installed the temporary wiring.
1. Did Employer meet its burden of establishing that the Federal Occupational Safety and Health Administration was actively exercising any jurisdiction assigned to it by law over employees working on a federal facility in California?
2. Did Employer violate section 2320.2(a) when the employee worked on energized 480 volt circuit equipment that was accessible, energized and exposed within the meaning of section 2300 without the procedures and personal protective equipment required by section 2320.2(a)?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
1. Employer Did Not Meet Its Burden of Establishing That the Federal Occupational Safety and Health Administration Was Actively Exercising Any Jurisdiction Assigned to It by Law over Employees on a Federal Facility in California.
Jurisdiction is properly vested with the Division in the instant case.
Fed/OSHA has the authority under 29 U.S.C. section 667 to confer its jurisdiction on occupational and health agencies created by the states. Enforcement authority is transferred to the state agency by an operational agreement negotiated between Fed/OSHA and each state seeking to implement its own enforcement program. Once agreement is reached, it is published in the Federal Register and incorporated into the Code of Federal Regulations.
California reached such an agreement with Fed/OSHA in 1989 following the passage of Proposition 97. The agreement, as embodied in the Code of Federal Regulations at 29 C.F.R. section 1952.172, provides that:
. . . [D]iscretionary Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e)) will not be initiated with regard to Federal occupational safety and health standards . . . except as set forth below. (Emphasis added.)
None of the eight exceptions listed in 29 C.F.R. section 1952.172 apply to the facts of this case. The most nearly applicable exception provides:
Private contractors on Federal installations where the Federal agency claims exclusive Federal jurisdiction, challenges State jurisdiction and/or refuses entry to the State; such Federal enforcement will continue at least until the jurisdictional question is resolved at the National level between OSHA and the cognizant Federal agency. (Emphasis added.)
This exception is not applicable to Employer, which is not a private contractor but a public sector governmental entity existing under California law. There is no evidence that the Air Force challenged the Divisions jurisdiction or refused the Division entry to the commissary as contemplated by exception (4) quoted above.
Employer therefore cannot establish what it must show under United Air Lines, Inc. v. Occupational Safety and Health Appeals Board4: that there is a basis in statute or regulation for Fed/OSHA, to exercise jurisdiction over the violation alleged in this case.
It appears that if another agency had been legally vested with health and safety jurisdiction over the site and was actively exercising that jurisdiction, that fact could have been produced. The legal question of course, is who would have the burden to produce the evidence that another agency is actively exercising jurisdiction. Labor Code section 6303 uses the conjunctive and in establishing the elements to the exception i.e. except a place the health and safety jurisdiction over which is vested by law in, and actively exercised by, any state or federal agency other than the division. Because of the use of the conjunction and, both prongs of the exception must be established by Employer.
In the State of California, the Division of Occupational Safety and Health has the power, jurisdiction and supervision over every employment and place of employment in this state.5 Under Labor Code section 6303, place of employment includes any place in the State where employment is carried out and excepts only those places when enforcement is vested in and actively exercised by another state or federal agency.
If we presume that jurisdiction is vested with the Division unless and until an exception is shown, it would seem that the burden of proof lies with Employer to prove that such an exception exists. The case of United Air Lines, supra, teaches that California has actively asserted jurisdiction over all places of employment within California since 1917 and that exceptions to the broad claims of jurisdiction have been narrowly construed.6
In addition, the United Air Lines Court,7 citing Carmona v. Division of Industrial Safety,8 recognized that it has held that the California Occupational Safety and Health Act is to be liberally interpreted to achieve a safe work environment.
Evidence Code section 500 states that, [e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or non-existence of which is essential to the claim for relief or defense that he is asserting. As noted in the Law Revision Commission comments to Evidence Code section 500, [s]ection 500 does not attempt to indicate what facts may be essential to a particular partys claim for relief or defense. The facts that must be shown to establish a cause of action or a defense are determined by the substantive law, not the law of evidence.
With this background in mind, the Appeals Board believes that the ALJ applied the proper jurisdictional test and burden of proof in this case; ruling that the burden of proof was on Employer to establish any exception to the states jurisdiction.
The Appeals Board has previously held that the California Occupational Safety and Health Act of 1973 (Act, Labor Code §§ 6300 et seq.) must be interpreted to include, rather than exclude, all employments and places of employment within the State, and that any exemption from coverage or protection must be narrowly construed. J. S. Brower & Associates, Inc.9 As stated in Brower:
Employments and places of employment within the State are all properly subject to the Divisions jurisdiction, except for those that are subject to comparable coverage by another State or Federal agency. A party who claims the benefit of the exception, like any defense, has the burden of proving its entitlement thereto (cf. San Diego Unified School District, OSHAB 74-208, Decision After Reconsideration (Jan. 23, 1975); Monterey Abalone Farms, OSHAB 75-786, Decision After Reconsideration (Mar. 15, 1977)), including as a minimum that the competing agency shares the same policy and purpose as the Cal-OSHA program by the promulgation and enforcement of regulations that detail safety and health protection for specific working conditions of a class of persons that include employees.
The Board believes that the Division had the initial burden to establish that the commissary at McClellan AFB was a place of employment in this state pursuant to Labor Code sections 6307 and 6303. The undisputed testimony of Joel Halverson and Ken Davis establish that the commissary was within the State of California.
Even if it had been established that a federal statute or regulation existed which granted jurisdiction to Fed/OSHA or another federal agency over the commissary at McClellan AFB, the analysis could not stop there. Under principles of cooperative federalism enunciated in Shea-Kiewit-Kenny10, Employer would have to show that Fed/OSHA or another agency not only had authority vested in it to enforce occupational health and safety standards at the commissary, but that it had not ceded any of that authority to the State of California.11
In this case, the parties differ as to which party has the burden of proof regarding whether or not the Division has jurisdiction to issue a citation in the instant case. Employer contends that the Decision inappropriately concluded that the Division properly asserted jurisdiction at a place of employment maintained by Employer at the commissary located at McClellan AFB, California.
The Division contends that it properly exercised jurisdiction over the place of employment because on February 24, 2000, Joel Halverson, the Division inspector, was advised by his District Manager, William Estakhri, that Fed/OSHA had surrendered jurisdiction to the Division. According to Mr. Halverson, Air Force Base Safety Officer, Rich Hight, had advised Mr. Estakhri of this event.
Neither party presented credible evidence that the health and safety jurisdiction over the commissary at McClellan AFB was vested by law in another state or federal agency. That evidence could have been supplied by a citation to an appropriate federal or state statute or regulation, if one existed, that covered the facts of this case.
The only evidence that suggests that some color of federal jurisdiction may have existed in this case was the testimony of Joel Halverson that he had initially been advised by Air Force Base Safety Officer Rich Hight that the area in question was under Fed/OSHA jurisdiction. There is no evidence to suggest that Mr. Hights original assertion was supported by any law or regulation or that Mr. Hight was correct in his original assumption that Fed/OSHA had exclusive jurisdiction over the site. Nor was there any credible evidence that Mr. Hight was correct in his subsequent assertion that Fed/OSHA did not have jurisdiction over the site because Employer was a municipal corporation.
Joseph Del Rios, another Air Force Base Safety Officer, testified that Mr. Hight had initially advised him that Fed/OSHA had exclusive jurisdiction with regard to any inspection at the base commissary. Hight later told Del Rios that he (Hight) had called Fed/OSHA and then had told the Division that Fed/OSHA had no jurisdiction because Employer was a municipal organization.
In any event, the Division did subsequently exercise jurisdiction and appears to have done so based upon the information supplied by employees of McClellan Air Force Base, i.e. Rich Hight and Ken Davis to employees of the Division. Indeed Davis testified that he accompanied and showed Mr. Halverson the motor control center room because Mr. Halverson was not familiar with the area.
The Board finds that the Division acted properly.
Employer has failed to satisfy its burden of going forward with the showing required by Brower.12 While jurisdiction over health and safety matters on military installations such as McClellan may be vested by law in Fed/OSHA, Employer failed to prove that Fed/OSHA was actively exercising its jurisdiction or elected to do so after receiving the report of an accident at the commissary. Employers argument is rejected.
2. Employer Violated Section 2320.2(a) when an Employee Worked on 480-Volt Circuit Equipment That Was Accessible, Energized and Exposed within the Meaning of Section 2300 without the Procedures and Personal Protective Equipment Required by Section 2320.2(a).
A myriad of evidence supports the ALJ's conclusion that Callahan worked on exposed energized electrical equipment in violation of section 2320(a). Section 2320(a) states:
(a) Work shall not be performed on exposed energized parts of equipment or systems until the following conditions are met:
(1) Responsible supervision has determined that the work is to be performed while the equipment or systems are energized.
(2) Involved personnel have received instructions on the work techniques and hazards involved in working on energized equipment.
(3) Suitable personal protective equipment has been provided and is used. Approved insulated gloves shall be worn for voltages in excess of 250 volts to ground.
(4) Suitable barriers or approved insulating material shall be provided and used to prevent accidental contact with energized parts.
(5) Suitable eye protection has been provided and is used.
(6) Where required for personnel protection, suitable barricades, tags, or signs are in place.
In this case, Employers main contention appears to be that Callahan was not working on exposed energized electrical equipment.
Section 2300 defines the terms as follows:
Exposed. (As applied to live parts) Capable of being inadvertently touched or approached nearer than a safe distance by a person. It is applied to parts not suitably guarded, isolated, or insulated. (See Accessible and Concealed.)
Accessible is defined in relevant part as:
(C) Safely. Not exposing persons installing, operating, maintaining, or inspecting electrical apparatus to serious risks of tripping or falling or of coming in contact with energized electrical parts . . . (emphasis added)
Energized Parts (Live Parts). Parts which are of a potential different from that of the earth, or some conducting body which serves in place of the earth.
The photographic evidence shows that the panel was exposed energized electrical equipment. The black wires connected the electrical conductor with a spare energized switch. The black wire was temporary and was used because the commissary parking lot lights went out when a fuse blew due to an electrical problem on October 22, 1999.
Normally, the system is inoperable if the door is open. There is an interlock system, which connects to the door handle and interfaces with the panel that prevents the door from opening when the switch is on. That system had been manually defeated by pushing the internal handle to simulate the door being in a closed position.
Callahan was working on this exposed energized electrical equipment when Davis heard an explosion, saw a bright flash, and turned to see Callahans clothing on fire.
Employer contends that Callahan was not working on the exposed energized electrical equipment but was merely inspecting it. Employers contention is rejected. Employers interpretation of Royal Electric Company13 is also misplaced. In Royal Electric, supra:
Employer, an electrical contractor, was hired to replace underground wiring for a runway lighting system at the Long Beach airport. Its foreman at the site reached into an underground electrical vault to remove a de-energized conductor. Other conductors in the vault were still energized. The foreman apparently touched a defective splice in a high-voltage line with his bare hand and suffered serious injuries. He thought the splice was on a low-voltage or ground wire because it was wrapped with black electrical tape. Federal Aviation Agency rules prohibit the use of this type of insulation for high voltage applications.
The manhole where the de-energized circuit was located contained two or three other high voltage circuits for runway lighting. The injured employee was a foreman for Royal Electric and had many years of experience in installing runway lighting systems in manholes. He had examined all of the wiring before reaching into the manhole and had concluded that the wiring appeared to be properly insulated against an electrical shock. None of the wires or conductors in the manhole were tagged to identify their voltage or purpose.
In this case, the panel Callahan was looking at had not been de-energized. In fact, Art Fern, another employee of Employer, had placed signs on the connector and motor control panel warning that they had not been de-energized. Both signs warned Danger¾Hot 480 Volts¾Stay Away SMUD. It is obvious from the exhibits that hot wire was running from the conductor to the panel. Callahan knew that power existed between the sites. He used a wiggy, an electronic tester, to test the voltage in the circuit breaker fuse. He used a screwdriver to test tension on the metal bar switch that connects to the door to turn the power on or off.
Callahan was clearly working on an exposed piece of energized electrical equipment within the definition of exposed enunciated in section 2300. The entire panel that Callahan worked on was exposed in that it is capable of being inadvertently touched or approached nearer than a safe distance by a person. Also, the parts were not suitably guarded, isolated or insulated to preclude the existence of the hazard. The Board therefore finds that a violation of section 2320.2(a) was established.
Employer contends that under Royal Electric, supra, no violation of section 2320.2(a) can be found because Callahan had not intended to work directly on the exposed panel, and therefore was not working on an exposed electrical part. The Board in Royal Electric rejected the Divisions argument that working on meant working on or near the exposed part. The Board noted that the safety order used the term working on exposed equipment. The Board further noted that other safety orders in the Electrical Safety Orders, sections 2940.1 and 2940.7(b), used the words working on or near exposed equipment. On this basis it was concluded that the Standards Board had meant the words work on to apply only when the employee was expected to perform operations directly on the exposed equipment.
Royal Electric was decided under sections 2940(b) and 2943(d)(3) of the Electrical Safety Orders. Sections 2940(b) and 2943(d)(3) of the Electrical Safety Orders are included in Group 2, the High Voltage Electrical Safety Orders which have different language than section 2320.2(a). The safety orders before the Board in Royal Electric have no application in this case.
Sections 2943(d)(3) and 2940(b) are not sufficiently analogous to section 2320.2(b) to be persuasive in its interpretation. Section 2940(b) requires the use of such safety devices and safeguards as may be necessary to make the employment or place of employment safe, but does not expressly require the use of insulated gloves. Section 2943(d)(3), which the Board found not to have been violated in Royal Electric, requires that rubber gloves be worn when working on exposed conductors or equipment energized at 7,500 volts or less. Section 2320.2(a) incorporates all requirements for personal protective equipment and safety procedures, including the requirement that suitable gloves be worn when employees are working on energized systems.
To the extent, if any, that Royal Electric has been interpreted to suggest that section 2320.2(a) does not apply to workers who are working around or near live parts that are capable of being touched or approached nearer than a safe distance by a person, that interpretation is rejected. Any worker who works on exposed energized equipment or near enough that he/she is capable of inadvertently touching or approaching nearer than a safe distance is a covered worker under that regulation.
DECISION AFTER RECONSIDERATION
The ALJs decision is reinstated and affirmed. Employers petition is denied. A general violation of section 2320.2(a) is found.
BILL DUPLISSEA, Member
MARCY V. SAUNDERS, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - March 14, 2001
otherwise indicated, all section references are to Title 8, California Code
2 No civil penalty was proposed because the violation occurred on October 25, 1999. Effective prior to January 1, 2000, Labor Code section 6432 provided that governmental entities were not subject to civil penalties.
3 The caption of the petition incorrectly showed the docket number as 99-R2D1-1136.
4 (1982) 32 Cal.3d 762.
5 Labor Code section 6307.
6 Pages 767- 768.
7 At pg. 771.
8 (1975) 13 Cal.3d 303.
9 OSHAB 77-1315, DAR (Oct. 17, 1980).
10 OSHAB 94-2768, DAR (July 23, 1999).
11 See also Dalton Construction Co., OSHAB 83-723, DAR (June 21, 1984) and Fred A. Arnold, Inc., OSHAB 76-175, DAR (July 26, 1977).
12 See also General Production Service of California, Inc., OSHAB 79-153, DAR (Jan. 28, 1981).
13 OSHAB 91-949, DAR (June 15, 1993).