BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

HERMAN WEISSKER, INC.
2631 Riverside Drive
Bloomington, CA 92316

 

                              Employer

 

 

Docket No.

00-R3D5-1462
and 1463

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by the Division of Occupational Safety and Health [Division], makes the following decision after reconsideration.

JURISDICTION

Commencing on March 16, 2000, and continuing through April 21, 2000, a representative of the Division conducted an accident investigation at a place of employment maintained by Herman Weissker, Inc. (Employer) at an underground electrical vault located at Greenleaf and Central, Carson, California (the site). On April 26, 2000, the Division issued citations to Employer alleging serious violations of section1 5157(c)(4) [permit-required confined space program] and section 5157(d)(9) [confined space rescue program], with proposed civil penalties which total $13,500.

Employer filed a timely appeal contesting the existence of the violations, the classifications, abatement requirements, and reasonableness of the proposed penalties. Employer also raised a number of affirmative defenses.

A hearing was held before Barbara E. Miller, Administrative Law Judge (ALJ), in Torrance, California. Ron Medeiros, Attorney, represented Employer. David Pies, Staff Counsel, represented the Division.

On April 17, 2001, the ALJ issued a decision granting Employer's appeal and setting aside the proposed penalties.

On May 16, 2001, the Division filed a petition for reconsideration and requested leave to file a supplemental petition that was filed on July 16, 2001. Employer filed an answer and supplemental answer to the petition. The Board granted the Division’s petition on June 25, 2001.

EVIDENCE

On or about March 12, 2000, there was an electrical explosion at an underground concrete vault owned by Southern California Edison (Edison), a public utility. In order to repair the damage resulting from the explosion, it was necessary to remove a damaged cable. Edison contacted Employer who was under a purchase order (contract) to remove cable from utility structures owned by Edison.

On March 13, 2000, Brad Specht, Employer’s foreman, went to the site and evaluated the project. The vault was underground, 6 foot square, 10 feet deep, and accessible through a round manhole cover at slightly above ground level.

On March 15, 2000, Specht returned with a crew to commence work in the vault. A crew from Edison had been working in the vault most of the morning and remained at the site during Employer’s work activity.

In preparing to remove the cable, Reyes Nunez (Nunez), an employee of Employer, went into the vault to set up a rigging. Upon determining that energized cables were too close to the de-energized cable Employer would be working on, Nunez and Specht concluded that the energized cable had to be moved. Nunez exited the vault and an Edison employee went in and moved the energized line. Once it was determined that the clearances were acceptable, Nunez returned to the vault and handled the cable feed from the floor of the vault. He left the vault but returned again to remove the rigging at which time a flash fire occurred.

Although Employer provided personal protective equipment that Nunez wore, he did not have all of the gear fully zipped and buttoned. He sustained serious burns on his arms, neck and face. Nunez exited the vault on his own. The Edison crew on site provided blankets and performed other measures appropriate in response to an electrical accident.

ISSUE

Does section 5157 apply to Employer’s activity at the site pursuant to the coverage provisions of sections 5156 and 5157?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division argues that the evidence does not support the ALJ’s findings, and the findings of fact do not support the ALJ’s Decision. The ALJ determined that the facts in this case rendered section 5157 for which Employer was cited inapplicable to Employer based upon the scope and applicability provisions in section 5156.

Specifically, the Division maintains that the ALJ erroneously granted Employer’s appeal because it was the Division’s assessment that Employer failed to show by a preponderance of evidence that it falls within one or more of the exceptions to the requirements of section 5157 for which it was cited; namely, that Employer was engaged in activity constituting “construction operations,” or alternatively, “electric utility operations within underground vaults” pursuant to section 5156(b)(2) which rendered section 5157 inapplicable. The Division asserts that the evidence rather establishes that Employer’s work of removing electrical wire was neither a “construction operation” nor an “electric utility operation,” and the ALJ’s finding that Employer’s activity was so is contrary to the evidence and applicable law.

There is no apparent factual dispute regarding the actual activity performed by Employer at the time of the accident. The Division’s petition essentially challenges the ALJ’s interpretations of the cited safety order and provisions governing its applicability, and the application of such interpretation to the facts.

Employer was not Engaged in Activity Covered by Section 5157 Governing Permit-Required Confined Spaces.

Employer was cited for serious violations of section 5157(c)(4) [permit-required confined space program] and section 5157(d)(9) [permit-required confined space rescue program]. Section 5157 is contained in Article 108 – Confined Spaces, of Group 16 – Control of Hazardous Substances, of the General Industry Safety Orders.

The scope and applicability of the Confined Spaces Safety Orders is contained in section 5156 which states, in relevant part:

(a) Scope. This Article prescribes minimum standards for preventing employee exposure to confined space hazards, as defined by Section 5156(b), within such spaces as silos, tanks, vats, vessels, boilers, compartments, ducts, sewers, pipelines, vaults, bins, tubs, and pits.

(b) Application and definitions.

(1) For operations and industries not identified in subsection (b)(2), the confined space definition along with other definitions and requirements of section 5157, Permit-Required Confined Spaces shall apply.

(2) The confined space definition along with other definitions and requirements of section 5158, Other Confined Space Operations shall apply to:

(A) Construction operations regulated by section 1502;
...; or
(G) Electric utility operations within underground vaults. See section 2700 for a definition of vault.

The Division argues that section 5157 directly applies to the situation at hand based upon the definition of “confined spaces” contained in section 5157(b). For purposes of section 5157, “confined spaces” means a space that:

(1) Is large enough and so configured that an employee can bodily enter and perform assigned work; and

(2) Has limited or restricted means for entry or exit (for example, tanks vessels, silos, storage bins, hoppers, vaults, and pits are spaces that may have limited means of entry.); and

(3) Is not designed for continuous employee occupancy.

The Division’s argument, however, contradicts section 5156(b)(1) and fundamentally fails to give effect to the coverage provision of section 5157. Section 5157(a) states:

(a) Scope and application. This section contains requirements for practices and procedures to protect employees from the hazards of entry into permit-required confined spaces. This section applies to employers, as specified in section 5156(b)(1).

Section 5156(b)(1) provides that the confined space definition along with other definitions and requirements of section 5157 shall apply for operations and industries not identified in subsection (b)(2). If the operations fall within subsection (b)(2), then they cannot be governed by section 5157.

We find that a plain reading of the application provisions contained in sections 5156(b)(1) and 5157(a) compel an interpretation that the permit-required confined space definitions and requirements provided in section 5157 do not apply to those identified operations--namely, construction operations, agricultural operations, marine terminal operations, telecommunication manholes and unvented vaults, grain handling facilities, natural gas utility operations, or electric utility operations, as described in section 5156(b)(2).

Thus, while section 5157 contains requirements for practices and procedures to protect employees from the hazards of entry into permit-required confined spaces and the vault in this case may fall within the definition of a “confined space” under the section, the application of the section is expressly limited to employers whose operations and industries are not identified in section 5156(b)(2).2

Regarding the operations raised in the instant case, the ALJ found that the operation Employer was engaged in was an “electric utility operation” (section 5156(b)(2)(G)). Also, the ALJ found that Employer’s activities constituted a “construction operation” (section 5156(b)(2)(A)). Pursuant to the coverage provisions discussed above, a determination that Employer’s activity at the site falls under either of these operations renders section 5157 inapplicable to employer.

“Electric utility” is not specifically defined in the regulations. In the absence of a special definition, the ordinary meaning of words will apply. (The Herrick Corporation, Cal/OSHA App. 99-786, Decision After Reconsideration (Dec. 18, 2001). “Utility” is “…4. a) something useful to the public, esp. the service of electric power, gas, water, telephone, etc. b) a company providing such a service...” (Webster’s New World Dictionary of the American Language, 2nd ed., 1974, p. 1565)3

The word “operation” as a noun means “1. the act, process, or method of operating 2. the condition of being in action or at work 3. a process or action that is part of a series in some work.” (Webster’s New World Dictionary of the American Language, 2nd ed., 1974, p. 997)

Using these definitions, we hold that an “electric utility operation” within the meaning of section 5156(b)(2)(G) is work, or a process that is part of some work, that pertains to an activity of a company or business providing electric power service to the public.

We find that the activity Employer performed at the site was an “electric utility operation” under the above definition. Employer was removing electric cable from a vault owned and operated by Edison, a public utility. The vault contained both energized and de-energized electric cable. Employer’s employee was in the vault to remove rigging used to remove the cable which was previously cut and de-energized by Edison. We conclude that Employer’s removal of damaged electric cable from Edison’s vault was part of the work by Edison in providing electric power service to the public.

We agree with the ALJ that the removal of the cable was essential to the repair and restoration of electric service that is the business of Edison. The fact that the cable being removed by Employer was de-energized is not determinative of the activity being an “electric utility operation.” Employer performed the subject activity under a contract with Edison. We find that the activity remained an electric utility operation which did not change simply because Edison elected to contract out the removal of damaged electric cable from its vault.4

The Division maintains that the ALJ erroneously determined that Employer was engaged in an “electric utility operation.” The Division agued that in order for the activity to be an electric utility operation,5 the high voltage provisions of the Electrical Safety Orders in Title 8 must apply since section 5156(b)(2)(G) incorporates the definition of “vault” contained in section 2700. The Division maintains that since the “application” provisions of section 2706 render the High Voltage Safety Orders inapplicable to installations of conductors, equipment and assorted enclosures subject to the jurisdiction of the California Public Utilities Commission that are owned, operated and maintained by an electric utility (§ 2706(a)(2)), then section 5158 would not apply because the site was owned by a public utility.6 It essentially concludes that section 5157 would apply (and not section 5158) since “electric utility operations” identified in section 5156(b)(2)(G) incorporates the substantive coverage provisions, including the exception contained in section 2706(a)(2), of the High Voltage Safety Orders.

The Division’s argument is severely misplaced. Section 5156(b)(2)(G) only incorporates the definition of “vault” contained in section 2700.7 In the absence of language manifesting a contrary intent, a simple incorporation of a definition of a word does not constitute incorporation of the other substantive provisions within the same article containing the definition. Section 5156(b)(2)(G) simply incorporates the definition of “vault” in section 2700—nothing more. Since the substantive provisions of the High Voltage Safety Orders do not apply to a determination that Employer’s activity is an “electric utility operation,” then the Division’s reliance upon the applicability provisions contained in the High Voltage Safety Orders contained in section 2706 is misplaced.8

Contrary to the position advanced by the Division, a simple resort to the respective “confined space” definitions contained in section 5157 and 5158 does not determine applicability of the respective sections. The scope and applicability provisions governing the article must be followed prior to application of the definitions because section 5156(b)(1) makes the confined space definition and requirements of section 5157 applicable only for operations and industries not identified in section 5156(b)(2).

The Division also asserts that section 5157 should be interpreted to be applicable where the hazards set forth in section 5157 more precisely and completely address the hazards that exist at the particular site than do the hazards set forth in section 5158,9 citing Hood Corporation, Cal/OSHA App. 83-0093, Decision After Reconsideration (Feb. 14, 1986) and Dave Peeler Printing & Decorating, Cal/OSHA App. 77-1222, Decision After Reconsideration (Aug. 28, 1981).

The above cases cited by the Division are distinguishable since they illustrate an entirely different doctrine used to determine which of potentially applicable safety orders are to be applied when the same hazard is addressed by both orders. In the instant case, sections 5157 and 5158 address different safety hazards with respect to “confined spaces” which are also differently defined in the respective sections by the Occupational Safety and Health Standards Board (Standards Board). The resolution of this case is fundamentally based upon interpretation and application of the coverage provisions of sections 5156(b) and 5157(a).10

Where the Standards Board has used unambiguous and clear language in excepting from the application of section 5157 (both its “definitions and requirements”) operations and industries not identified in section 5156(b)(2), we are not inclined to disregard such express language. Nor are we inclined to rewrite the coverage provisions of the safety orders, which is within the sole authority of the Standards Board.

Since we find that the activity Employer was engaged in at the site was an “electric utility operation” pursuant to section 5156(b)(2)(G), section 5157 was inapplicable to Employer under the terms of section 5156(b)(1) and 5157(a).11

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision granting Employer’s appeals and setting aside the proposed civil penalties.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: May 10, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Section 5156(b)(2) provides that the confined space definition along with other definitions and requirements of section 5158 apply to the seven identified operations.
3 The word “utility” is not specifically defined in the Public Utilities Code. In the Public Utilities Code, several descriptions of activities are deemed a “public utility.” For example, “[w]hen any person or corporation performs any service for, or delvers any commodity to, any person, private corporation, municipality, or other political subdivision of the state, that in turn either directly or indirectly, mediately or immediately, performs that service for, or delivers that commodity to, the public or any portion thereof, that person or corporation is a public utility …” (Public Utilities Code section 216(c))
4 Also notable is that, as the evidence established, Edison retained some control over the operation. It prepared the site for the cable removal operation, performed heat and gas testing, had moved some energized cable which was determined by Employer to be too close to the de-energized cable after the work began, had its crew present during Employer’s performance of the operation, and assisted in providing emergency response to the injured employee. And Employer’s employees were prohibited from working in the vault unless Edison personnel were in the immediate vicinity.
5 If Employer’s activity is an electric utility operation pursuant to section 5156(b)(2)(G), section 5157 would be inapplicable to Employer since it was engaged in an operation identified in section 5156(b)((2).
6 We note that while electric utility operations are excepted from the permit-required confined space requirements of section 5157, electric utilities are governed by the Article 36 - Work and Operating Procedures, including section 2943 [work on or in proximity to underground high voltage cables, conductors, or equipment which includes manholes, vaults or similar structures]. (See § 2706(a), Exception No. 2)
7 “Vault” is “[a] room (including manholes) of fire-resistant construction, primarily used to house electrical equipment.” (§ 2700, Definitions)
8 The Division cannot bootstrap the substantive provisions of the High Voltage Safety Orders to achieve a targeted application of provisions of the Confined Spaces Orders in disregard of the explicit scope and coverage provisions of the latter orders.
9 We note that the definition of “confined space” in section 5158(b) differs from that in section 5157.
10 We make no determination that section 5158 applies to Employer. Employer was not cited for a violation of section 5158. Our holding is based upon the determination that under the facts of this case section 5157 is inapplicable to Employer because the section does not apply to operations identified in section 5156(b)(2) which includes electric utility operations of which Employer was engaged at the site.
11 Since we find that section 5157 is inapplicable, we need not address whether the activity was a “construction operation” pursuant to section 5156(b)(2)(A).