Valley Electric Company of Mount Vernon, and its successors

Plain-English summary

Valley Electric performed electrical remodeling work at Whidbey Island Naval Air Station in Washington. OSHA cited three energized distribution panels because cardboard flaps covered them instead of permanent metal covers. The judge found that screwed-in dead fronts prevented accidental contact with the energized bus bars and lug connections. Because employees carrying pipe through the area could not accidentally reach the live parts, the judge vacated the citation and proposed $1,875 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.403(i)(2)(i)
• Outcome: Serious electrical-panel guarding citation vacated and no penalty assessed
• Key point: OSHA did not prove employee exposure where the dead fronts made accidental contact with energized parts effectively impossible.

Full text (OSHRC public release)

                                               United States of America
                     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                          1244 Speer Boulevard, Room 250
                                           Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                             v.                             OSHRC DOCKET NO. 00-1600

VALLEY ELECTRIC COMPANY OF MOUNT
VERNON, and its successors,
Respondent.

APPEARANCES:

        For the Complainant:
                 Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

        For the Respondent:
                 Aaron K. Owada, Esq., Williams, Kastner, & Gibbs, Tacoma, Washington

Before: Administrative Law Judge: Benjamin R. Loye

                                           DECISION AND ORDER

        This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
At all times relevant to this action, Respondent, Valley Electric Company of Mount Vernon, and
its successors (Valley), maintained a place of business at Whidbey Island Naval Air Station,
Washington, where it performed the electrical work on a remodeling project. Valley admits that it is an
employer engaged in a business affecting commerce and is subject to the requirements of the Act.
On July 26, 2000 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Valley’s Whidbey Island work site. As a result of that inspection, Valley was issued a
citation alleging violation of 29 CFR §1926.403(i)(2)(i) of the Act, and proposing a penalty of
$1,875.00. By filing a timely notice of contest Valley brought this proceeding before the Occupational
Safety and Health Review Commission (Commission).
The case was designated for E-Z trial, and on February 9, 2001, a hearing was held in Seattle,
Washington. No briefs are required in E-Z proceedings, and this matter is ready for disposition.
 Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 1926.403(i)(2)(i): Live parts of electric equipment operating at 50 volts or more were not
guarded against accidental contact by cabinets or other forms of enclosures, or by any of the following
means: (A) by location in a room, vault, or similar enclosure that is accessible only to qualified persons;
(B) by partitions or screens so arranged that only qualified persons will have access to the space within
reach of the live parts; (C) by location on a balcony, gallery, or platform so elevated and arranged as to
exclude unqualified persons; (D) by elevation of 8 feet or more above the floor or other working surface
and so installed as to exclude unqualified persons:

    (a) Third Floor Main Power Distribution Panel, East Wing: On or about July 26, 2000 and at
    times prior thereto, the electrical power panel was energized at 120/208 volts and the energized
    parts were covered with cardboard.

    (b) Second Floor Main Power Distribution Panel, East Wing: On or about July 26, 2000 and at
    times prior thereto, the electrical power panel was energized at 120/208 volts and the energized
    parts were covered with cardboard.

    (c) Sub-Basement Main Power Distribution Panel: On or about July 26, 2000 and at times prior
    thereto, the electrical power panel was energized at 120/208 volts and the energized parts were
    covered with cardboard.

Facts
OSHA Compliance Officer (CO) David John Baker testified that during his inspection of
Valley’s Whidbey work site he observed the three cited power distribution panels, which are located in
the sub-basement, and in the hallways of the second and third floors (Tr. 13-15; Exh. C-1). Each panel
is located in a recessed box or “can” along with bundles of insulated wires (Tr. 84; Exh. C-1). The
panels consist of live bus bars, carrying between 100 and 150 amps (Tr. 17-19, 27, 119-21). A dead
front shield is firmly screwed into the back of the can over the bus bars. Openings are cut into the dead
front; breaker switches protrude through the openings (Tr. 50, 87, 92; Exh. C-1 and R-1, fig. 7).
Flipping the breaker switches creates a circuit between the 1/4" lug nut associated with that breaker and
the live bus bars (Tr. 50, 53, 56, 100-02, 117-120; Exh. R-1, fig. 7). The lug nut is also located behind
the dead front (Tr. 93). If a breaker is closed, its lug nut and any wires or equipment connected to that
lug nut are energized (Tr. 117-21).
Alan DeMarco, a journeyman electrician at the Whidbey work site (Tr. 82), testified that, at the
time of the inspection, the bus bars were live, and one breaker was closed on each panel (Tr. 84). While
the entire panel was shut down, the first 1/4 inch of a single insulated power cord was stripped and the
wires attached to the lug nut (Tr. 88). After the circuit was re-energized, the temporary cord provided
power and ground fault circuit protection for the renovation project (Tr. 84-86; Exh. C-1, R1-F2 and

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R1-F8). Only the point at which the temporary cord was attached to the lug nut was live (Tr. 93). The
live connection was located behind the dead front (Tr. 93, 124).
When complete, the recessed panel-boards are covered with a permanent metal cover which can
only be opened by removing the screws that hold it in place (Tr. 87, Exh. C-1; R-1, fig. 7). DeMarco
testified, however, that permanent metal cover would pinch the power cord running from the panel (Tr.
88). Valley, therefore, tied cardboard flaps over the panel-boards while they were in use (Tr. 14-15, 29,
48; Exh. C-1). The cardboard flaps were marked, indicating that they covered “hot” 120/208 panel
boards (Tr. 61; Exh. C-1).
CO Baker testified that the cited panels were not guarded to prevent employee contact with live
parts (Tr. 16). CO Baker maintained that employees carrying pipe through the sub-basement, and
second and third floor halls could inadvertently knock into the cardboard flaps covering the panels, or
pierce the flaps with piping (Tr. 31-34, 69). Baker believed that the employees, or the pipe could come
in contact with the energized portions of the power panels (Tr. 31-34). Baker stated that contact with
between 100 and 150 amps could result in electrical shock, and burns, and that arcing from the panel
could cause combustible materials in the area, including the cardboard flap, to ignite (Tr. 31-34).
Alan DeMarco testified that, with the dead front in place, it was impossible to accidentally
access any of the live portions of the panels (Tr. 94-96, 124). On cross examination Baker admitted
that an employee could not contact either the live bus bars, or the energized lug, unless the dead front
was knocked off, or the employee wrapped his hand around the dead front (Tr. 52, 66, 99). Baker
believed a small diameter pipe, 1" to 2", could fit behind the dead front (Tr. 52, 66); however, Valley
demonstrated at the hearing that it would be impossible for the six to eight foot sections of pipe being
installed to inadvertently slip behind the panel-board in its recessed can (Tr. 66-67, 96, 98). Only the
dead front and the back of the can are accessible (Tr. 96). DeMarco testified that there is no way for
the back of the can to become energized without shorting out the entire panel (Tr. 97).
Discussion
The cited standard provides:
Guarding of live parts. (i) Except as required or permitted elsewhere in this subpart, live parts
of electric equipment operating at 50 volts or more shall be guarded against accidental contact
by cabinets or other forms of enclosures, or by any of the following means. . .

   In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a

preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either

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knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 1991-93 CCH OSHD ¶29239 (No. 87-1359, 1991).
It is undisputed that the cited standard applies, in that live electrical equipment in excess of 50
volts was in operation behind the panels’ dead front. The Secretary has established that the cited
standard applies.
It is not clear, however, that Valley’s failure to use a plywood1, or metal cover over the dead
front constitutes a violation of the cited standard. The dead front on the panel board, though neither a
cabinet or enclosure, did provide protection against accidental contact with any of the panel boards’ live
parts. The definition of “dead front,” found at §1926.449 Definitions applicable to this subpart, is
“Without live parts exposed to a person on the operating side of the equipment.”
Assuming, arguendo, that the standard specifically requires guarding by means of a cabinet or
enclosure, the Secretary must still establish that employees were within the “zone of danger” posed by
the hazardous condition “. . .in the course of their assigned work duties, their personal comfort activities
while on the job, or their normal means of ingress-egress to their assigned work places. . .” Gilles &
Cotting, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ¶20,448 (No. 504, 1976); see also,
Armour Food Co., 14 BNA OSHC 1817,1824, 1990 CCH OSHD ¶29,088(No. 86-247, 1990). Valley
established that the possibility of an employee accidentally contacting a live part was non-existent. It
was demonstrably impossible for an employee to get a piece of pipe into the can behind the dead front.
In order to contact either a bus bar or the single energized circuit, an employee would have to
deliberately reach behind the dead front. A violation cannot be based on the possibility of such
idiosyncratic behavior on the part of an employee.
Because the evidence establishes that employees working in the area were not exposed to the
danger of accidentally contacting any of the cited panel’s live parts, the cited violation must be vacated.
ORDER

1. Citation 1, item 1, alleging violation of §1926.403(i)(2)(i) is VACATED.

                                                            Benjamin R. Loye
                                                            Judge, OSHRC
   

   Dated:

       1
           The proposed abatement method was substitution of stationary plywood for the cardboard flaps (Tr. 68).
   
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