Danella Construction Corporation of Florida, Inc. (ALJ decision, April 4, 1994)

Plain-English summary

Danella Construction was installing telephone lines in Lake Worth, Florida, and used a boom truck to place an eight-foot trench shield. OSHA alleged that the company failed to have competent-person inspections and operated the boom within 10 feet of energized overhead lines. The judge found that two competent persons inspected the site before work and that one remained onsite throughout the operation. OSHA took no measurements of the boom's distance from the lines and relied on a compliance officer's visual estimate from a distance. Two employees who were closer to the operation testified that the boom stayed outside the 10-foot zone. The judge found that OSHA did not prove either violation and vacated both items.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2) and 1926.550(a)(15).
• Outcome: Vacated. The competent-person-inspection and power-line-clearance items were vacated.
• Key point: A visible overhead-line hazard does not by itself prove an inadequate inspection, and an unsupported distant estimate did not establish that the boom breached the required clearance.

Full text (OSHRC public release)

&j@NTED smE8 or AMIERUCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW [email protected] two 20th Sttwt, NM - 9th Fbor
~ingt~, DC 2003+m@

%gi$kZitF
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0648
DANELLA CONS’IRUCI’ION CORP. OF FL,IN
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the above referenced case was docketed with the Commission on Mar cr 3,1994. The decision of the Judge will become a final order of the Commission on April 4,1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY ‘IHE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or befixe March 23 1994 in order to rmit sud cient time for its review. See Commissibn Rule 91, 29 C.fi. 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
ExecutiveSecretary
Occupational Safety and Health
ReMew Commission
1120 20th St. N.W., Suite 980
Washington,
.
D.C. 20036-3419
Petitioning parties shail also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%‘&or, U.S. Dck
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party havmg questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMION
.
/

Date: March 3, 1994
DOCKET NO. 93-0648
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, m.
‘:
Counsel for Re *od Trial Liti’ation
Office of the So1 ‘dtor, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Don McCoy, Es l

Assoc. Re onal 5 elicitor
Office of tEe Solicitor, U.S. DOL
Federal Building, Rm. 407B
299 East Broward Boulevard
Ft. Lauderdale, FL 33301

David E. Jones, Es uire
Ogletree, De&ins, % ash, Smoak &
Stewart
3800 One Atlantic Center
1201 West Peachtree Street, N. w.
Atlanta, GA 30309 .

Paul L Brady
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

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For Respondeat
Fbr aMnplainant

Before: AdministrativeLaw Judge Paul L Brady

DECISION AND ORDER

This pmcecding is brought pursuant to section 10 of the Occupational safety and Health Act (Act) to contest a citation issued by the Secretary of Labor (Secretary) pursuant N to section 9(a) of the Act.
The underlying facts in this case are not in dispute. On November 23, 1992, respondent, Danella Construction Corporation of Florida, Inc. (Danella), was engaged to ias&ll.telephone communication lines at the corner of Congress and Sixth Awnues in lalt;c Worth,Fldda The work on that day invoked the shoring of a trench using an &foot shield IIV~&wm being lifted with a boom truck An inspection of the worksite at that &e resulttd in the issuance of the citation@ Prior to commencement of the hearing on the merits, the Secretary mwed to withdraw item 2 of the citation and amend item 3. Both motions were granted, and item 3 was amended to allege a willful violation with a proposed penalty of $S,ooO.
meged Serious Violation of 29 C.F.R. i 192GWb~

The standard, which pertains to accident prevention, requires the employer to “provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.” The citation alleges that frequent and regular inspections of the work area were not made by a designated person in the following instances:
(a) Employees were permitted to work under energizd power wires.
(b) Failing to contact power company to provide a safe work area.
(d) Competent person failed to inspect the work site while shoring a trench.

In his posthearing briec the Secretary concedes that competent persons had conducted an inspection of the worksite. The evidence shows that Messrs. Steven Pascale and Nolan Marks, competent persons, inspected the worksite on November 23,1992, prior to commencement of the shoring operation. Also, Nolan Marks remained on the site throughout the day. The Secretary argues that the inspection of the worksite was deficient because it failed to disclose that use of the crane in an area with overhead wires presented a hazard to employees. It is pointed out that the inspection report (Exh. R-6) makes no mention of the overhead wires.
The evidence establishes that the standard’s requirements have been met. There is no dispute the site was inspected by competent persons prior to commencement of work on the first day. In addition, a competent person was present during the entire period work was being performed.

2
Although
the secretary argues the inspection was deficient in not revealing a hazard,
the standard’s hguage
does not prcscriiii the manner in which an inspection should be
conducted. However, if Mous
conditions are found, the “competent person,” as defined
in 8 1926.32(Q shall have “authorization to take prompt corrective measures to eliminate them.” The f&t that work was being performed in the general area of overhead lines cannot be considered substantial evidence to prwe a violation The mere presence of an alleged hazard does not establish a violation of this standard. The evidence fails to show that the requirements of the standard have not been met.
The standard was not violated as alleged.

Alleged Violation of 29 C.F.R. S 1926.55(Ka>(l5]

The standard provides that:
(15) Except where electrical distribution and transmission lines have been deenergized and vis~%iygrounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to powerlines only in accordance with the fobwing

(i) For lines rated 50 kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet;

The alleged violation is &2WiIxd in the citation as follows:
Equipment was operated where part of the equipment was within 10 feet of electrical distribution or transmission lines rated 50 kV or below that had not been de-energized and visibly grounded, nor had insulating barriers not a part oE, or an attachment to, the equipment been erected to prevent physical c o nta c t with th e lines.. . l

Mr. Joseph DiMartino, safety and health compliance officer, conducted the inspection that gave rise to the issuance of the citation. He testified that, while driving his car along Congress Avenue at the intersection of Sixth Avenue, he observed a crane being operated with the tip of the boom close to overhead electrical lines. DiMartino stopped his car and took photographs from a distance of approximately 100 feet. He estimated the boom to be

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Mr. Pascale, DaneIla%safety inspector, indicated that m the morning of the5 inspection, be and foreman Marks discus& the overbead ekctrid lines on the w&site.
They conchded their work would not be withinthe Wfwt danger zone of the lines vr. 143, 149). Soon after the crane began to place the shoring plate or sbkid in the tre&h, it became necessary to re-position the crane nearer to the truck. Mr. Marh observedthe re-positioningand location of the boom and determined they were ‘Wwhcre near the power lines”(Tr. 255256). At no time did he see the boom tipwithin 10 feet ofthe wetid
lines
(Tr.265). HettatedthatinmovingcloQertotheload,thekngthofthekKnnwas shortened causing less possibilityof reaching tbe lines vr. 262463).
Mr. GeorgeDunnaway, a laborer who was helping guide the shield into the trench, testified the boom did not come witbin 10 feet of the overhead lines. He also stated, TUe was watching the wires at all times, that’s why be couldn’t get no higher on account of the wires. We seen the wires. We was staying away from the wires* (Tr. 286289).
Tbe central question is whether the minimumclearance of 10fett between the boom and overhead lines was maintained. No actual measurements were taken, and tbe secretary’s evidence of the violation was based on the inspecting office& estimate of a 20fmt clearance whichhe made at a distance of approximately 10 feet. It is noted that the visual approximationswere made at ground level of the moving boom which wzu in an

• “fbe photographs depicting the scene were recefvedinto evidence m Complainanti bhiiits 1 through 8.
  No actual measwemts were taken at tk -

4
v--
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. * *
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elmted position. Danella refbtes the inspector’s observations with the testimony of two emplayea who were much closer in proximityto the boom and its operation.
Wbik there was considerablediscussionof the crediiiilityof some witnesses, it is cl- the Secretary has fkiled to establisb the violationby a preponderance of crediiile evidence.
The Secretary’sonly testimonyregarding the distance consistedof a visual estimate. Danella adequately refI&edthe estimate with the testimony of two witnesses who were in a better position to make more accurate estimates Tbe evidence does not establish the violation as alleged.

FINDINGS OF FACI’
AND CONCLUSIONS OF L,AW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rules of Civil Procedure 52(a).

ORDER

Based on the foregoing decision, it is hereby ORDERED:
The citation alleging violations of 29 CF.R. 0 1926.20(b)(2)and 0 1926.55O(a)(l5) is hereby vacated.

/s/ Paul L Brady
PAUL L BRADY
Judge

Date: February 22, 1994