EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of Herman Weissker, Inc. - Decision After Reconsideration

Following an electrical explosion in an underground concrete vault owned by Southern California Edison, Employer was contacted to remove de-energized cabling. An employee assigned to remove de-energized cables re-entered the vault to remove the rigging when a flash fire occurred and he sustained serious burns. The ALJ dismissed the citation on the grounds that the cited sections 5157(c)(4) [permit-required confined space program] and 5157(d)(9) [permit-required confined space rescue program] did not apply to the activity Employer was engaged in. The Board held that section 5156(b)(1), by its terms, only allows the requirements of section 5157 to apply to operations and industries not identified in 5156(b)(2), i.e., if the operations fall within subsection (b)(2), then they cannot be governed by section 5157. The Board found that the activity Employer performed at the site was an “electric utility operation” which, 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. The Board also rejected the argument that in order for an activity to be an electric utility operation, the high voltage provisions of the Electrical Safety Orders must apply since section 5156(b)(2)(G) incorporates the definition of “vault” in section 2700 and section 2706 renders the High Voltage Safety Orders inapplicable to installations of equipment subject to the jurisdiction of the PUC, as here, that are owned, operated, and maintained by an electric utility. Rather, section 5156(b)(2)(G) only incorporates the definition of “vault” in section 2700 and simple incorporation of a word does not constitute incorporation of the other substantive provisions absent language manifesting a contrary intent. The Board further rejected the argument that section 5157 should be interpreted to be applicable were the hazards set forth in that section more precisely and completely address the hazards than do those set forth in section 5158. However, where the Standards Board has used unambiguous and clear language, the Appeals Board is not inclined to disregard express language excepting from the application of section 5157 operations and industries not identified in section 5156(b)(2). The Board affirmed the ALJ’s decision granting Employer’s appeals.

HERMAN WEISSKER, INC., 00-1462
May 10, 2002