K M & M, a Joint Venture

Plain-English summary

K M & M was constructing a sewer tunnel in Cleveland shale, a formation known to contain combustible methane. OSHA alleged that lighting and other electrical equipment in the tunnel was not approved as intrinsically safe under the general construction electrical standard for hazardous locations. The Commission held that the more specific underground-construction standard addressed the same ignition hazard and imposed conflicting requirements, so it preempted the general standard. The Secretary acknowledged that the operation was at most potentially gassy, and the record did not show noncompliance with the tunnel standard. The Commission vacated the willful citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.407(b) and 1926.800.
• Outcome: Vacated. The willful citation under the general hazardous-location electrical standard was vacated.
• Key point: A specific tunnel standard preempts a general construction electrical standard when both address the same hazard through conflicting requirements.

Full text (OSHRC public release)

                             UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              One Lafayette Centre
                        1120 20th Street, N.Wa - 9th Floor
                           Washington, DC 20036-3419




                                              ..

SECRETARY OF LABOR, ..

                 Complainant,

          v.                                            OSHRC Docket No. 89-3403
                                              0
                                              a

KM&M,AJOINTWNTURE, ..

                 Respondent.




                                     DECISION

BEFORE: FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
At issue is whether the portions of the underground construction standard, 29 C.F.R.
0 1926.800, that a dd ress electrical hazards preempt the general electrical standard for
construction, 29 C.F.R. 9 1926.407(b), cited here by the Secretary.’ The Commission faced
this identical question in McNa& Conrtr, & Tkuz&ing Co., Do&et No. 90-2337 (July
13,
1994). As in McNaUy, we find that the specific tunneling standard, section 1926.800,

lThis case was voted upon before Chairman Weisberg joined the Commission. Accordingly,
Chairman Weisberg did not participate in this case in order not to further delay the issuance
of this decision.

’ That standard provides:

  8 1926.407 Hazardous (classified) locations.

  ibj hemica imtallatiom. Equipment, wiring methods, and installations of
  equipment in hazardous (classified) locations shall be approved as intrinsically
  safe or approved for the hazardous (classified) location or safe for the
  hazardous (classified) location.

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preempts the cited general electrical standard, section 1926.407(b). Accordingly, we vacate
the citation.
The cited tunnel, a part of the Southwest Interceptor sewage project in Cleveland,
Ohio, was dug in Cleveland shale, a geological formation known to contain the combustible
gas methane. The Secretary alleges that K M & M, A Joint Venture (“K M & M”) violated
section 1926.407(b) because “[wliring methods of 120 volt lighting equipment and electricaJ
equipment . . . in hazardous (classified) location [of the tunnel] were not approved as
intrinsically safe.” The Secretary alleges that K M & M’s tunneling operation required
electrical equipment approved for Class I, Division 2 locations as defined at section 1926.449
and classified the tunnel construction as a “potentially gassy” operation, as delined in section
1926.800. K M & M argues that the specific requirements of section 1926.800 should prevail
over the general language of section 1926.407 and that it was in compliance with the
requirements of section 1926.800.
Administrative Law Judge James D. Burroughs found that section 1926.800(~)~
makes section 1926.407 applicable to tunneling operations. He noted that for a Class I,
Division 2 location, the Secretary must determine the quantity of gas invoked and the
amount of ventilation in the worksite in order to prove that the quantity of gas is sufficient
to produce a “flammable or combustible concentration,” as required by section 1926.407.
Continental Oil Co., 11 BNA OSHC 2114,1984 CCH OSHD 126,993 (No. 79-570-E, 1984).
The judge found that sections 1926.407 and 1926.449 do not set forth any criteria for making
this determination, but that section 1926.800 “does provide guidelines in determining a
hazardous classification applicable to a tunnel.” The judge also found that “[slince section
1926.800 specifically applies to the construction of tunnels, its language in regard to
hazardous classification takes precedence over the general provisions of sections 1926.407(b)
and 1926.449.” The judge vacated the citation because the Secretary failed to prove that
the working area was “potentially gassy?

2 Section 1926.800(s), which is entitled “[e]lectrical safety,” provides as follows: “This
paragraph applies in addition to the general requirements for electrical safety which are
found in Subpart K of this part.” Sections 1926.800(s)(1) through (3) discuss the
requirements for electric power lines, lighting circuits, and oiMlled transformers.
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       Although we also vacate the citation, we do SO on the basis of our holding in Mc~al2jt

l
that the specific standard, section 1926.800, preempts the application of the general
standard, section 1926.407(b) for electrical equipment in “potentially gassy” underground
operations. We reached this conclusion not only because section 1926.800 addresses the
same hazard as section 1926.407 but also because these two standards set forth conflicting
requirements rather than complementary ones. If an employer simultaneously complied with
the two standards at issue here, it would not only be taking different steps to abate the same
hazard, but section 1926.407 would effectively preempt section 1926.800.
The judge’s finding that section 1926.800(s) permits the application of section
1926.407 might be plausible if the provision could be read in isolation, but it is not tenable
when read together with the remainder of section 1926.800, which, as discussed in McNally,
speaks directly to electrical ignition hazards in tunnels. Section 1926.800(s) is consistent with
the proposition that a provision in section 1926.800 that specifically addresses a hazard
preempts a general provision in Subpart K Indeed, within the context of the language of
section 1926.800 in effect at the time these citations were issued, we find it difficult to read
section 1926.800(s) as more than a saving clause. We find no basis for the judge’s conclusion
that a Class I, Division 2 location under sections 1926.407 and 1926.449 is defined by
reference to section 1926.800.
Our holding would ordinarily require that we consider whether amendment of the
citation to allege noncompliance with section 1926.800 would be appropriate. However, we
conclude that it is unnecessary for us to make that determination here. The Secretary
acknowledges that the tunnel construction was at most a “potentially gassy” operation, and
there is no evidence in the record that K M & M failed to meet the provisions of section
1926.800 that address such operations.
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                                    III. Order
    For the reasons given above, we vacate the Secretary’s citation alleging a willful   .

violation of 29 C.F.R. 5 1926.407(b).

                                             Edwin G. Foulke, Jr.
                                             Commissioner




                                             Velma Montoya
                                             Commissioner

Date& 3~1~ 13, 1994