“Docket No. 82-0867 SECRETARY OF LABOR, Complainant, v.GULF STATES UTILITIES COMPANY,Respondent. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL- CIO,LOCAL UNION 2286,Authorized Employee Representative.OSHRC Docket No. 82- 0867DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION.This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(1), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration . It wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).Gulf States Utilities Company (\”Gulf States\”) is a public utility that supplieselectricity in parts of southeastern Texas and southwestern Louisiana. On July 8, 1982, aGulf States line crew was changing certain insulators for a Power line at a site nearVinton, Louisiana. On one pole supporting the power line some of the line-to-poleinsulators had been damaged by vandalism. The Gulf States crew was replacing the damagedporcelain insulators with new epoxy ones, which are less susceptible to damage thanporcelain. There were two other sets of insulators on the same pole, but the crew was notreplacing these insulators because they were not damaged.The crew consisted of five employees, including a foreman, a second-class lineman, and athird-class lineman. When the crew arrived at the worksite, they received a clearanceorder indicating that the power lines had been deenergized. The foreman then discussedwith the crew the procedure by which they would ground the lines at the worksite. Eventhough the lines had been deenergized, it was necessary to ground them on both sides ofthe pole so that any voltage induced in a deenergized line by a parallel energized linewould flow to ground at the worksite and not present a hazard to the employees working atthe pole. The crew used grounding chains, first attached to a neutral or grounded line (orthe ground) and thereafter attached to a conductor–the deenergized power lines. The crewused insulated tools to attach the grounding chains to the conductor.After the damaged insulators had been replaced with new insulators, the crew proceeded toremove the grounding chains. They were to be removed in the reverse order ofinstallation–the last conductor grounded would be the first ungrounded, and so forth. Thecrew was to use insulated tools to detach a grounding chain from a conductor. All of theseprocedures were discussed by the crew just prior to the start of work on the lines.In previously grounding one conductor to another already-grounded one the crew had splicedtwo grounding chains together to form one long enough to make the connection. During theprocess of removing the grounding chains, the conductor end of this spliced chain wasproperly detached from the conductor with an insulated tool. As a result of an error,however, another grounding chain was removed out of order. Because of this error, thespliced chain was no longer attached to a grounded line and one of the linemen, who washolding the spliced chain in his lap while trying to unsplice it, was electrocuted by aflow of current induced in the no-longer-grounded line.After the accident, the Secretary conducted an inspection and issued a citation to GulfStates. The citation alleged that, on or about July 8, 1982, Gulf States violated 29C.F.R. ? 1926.954(e)(2) by failing to remove grounding cables in the reverse order ofinstallation and by failing to use an insulated tool while uncoupling the two splicedgrounding chains.[[1]] Section 1926.954(e)(2) appears in 29 C.F.R. Part 1926, Subpart V,which governs the \”construction\” of electric transmission and distribution linesand equipment. [[2]]Gulf States argued to the judge and now argues to the Commission that the cited standardis inapplicable because the work its employees were performing on electric power lines wasnot \”construction\” but, rather, was maintenance work. Gulf States points outthat the legislative history of Subpart V and Commission precedent indicate thatmaintenance work is not subject to Subpart V. Judge Sparks concluded that the standard wasapplicable because Gulf States’ employees were engaged in \”improvement\” ratherthan maintenance of existing electric transmission and distribution lines and equipment.Review was directed on this issue.[[3]] We reverse Judge Sparks’ decision and vacate thecitation. We find that the work performed on the power lines was maintenance work andtherefore not subject to Subpart V of Part 1926.Section 1926.950(a)(1) states that Subpart V applies to construction and indicates thatconstruction includes improvement. The preamble to the standard makes clear, however, thatthe drafters of Subpart V did not intend construction to cover maintenance work, see 37Fed. Reg. 24882 (1972),[[4]] and the Commission has long upheld this position in itsdecisions. See Mississippi Power & Light Co., 79 OSAHRC 109\/D12, 7 BNA OSHC 2036,2038, 1980 CCH OSHD ? 24,146, p. 29,330 (No. 76-2044, 1979); Consumer Power Co., 77OSAHRC 73\/E8, 5 BNA OSHC 1423, 1425, 1977-78 CCH OSHD ? 21,786, p. 26,190 (No. 11107,1977); Pacific Gas & Electric Co., 75 OSAHRC 40\/B9, 2 BNA OSHC 1692, 1693, 1974-75 CCHOSHD ? 19,431, pp. 23,191-92 (No. 2821, 1975), aff’d mem., 554 F.2d 1070 (9th Cir. 1977).The Secretary does not dispute that the standard is inapplicable to maintenance work; hetakes issue only with Gulf States’ characterization of the work as \”maintenance\”rather than \”improvement.\” The question, then, is whether the work performed byGulf States was improvement or maintenance.In arguing that the work on the day of the alleged violation was \”improvement,\”the Secretary first maintains that replacing damaged insulators is \”improvement\”per se. The Secretary asserts that because a damaged insulator [[4]] does not perform itsfunction of insulating a conductor from its support structure, the work of installing areplacement insulator of even the same sort would \”improve\” the structure.Alternatively, the Secretary argues that the replacement of porcelain insulators withepoxy insulators upgraded the electric lines and thus was itself an\”improvement.\”[[5]]We disagree. The Secretary’s first argument–that the replacement of damaged insulatorswith insulators of any type \”improves\” the lines–is so broad as to make everyimaginable sort of maintenance an \”improvement.\” To adopt it would give noeffect to the Secretary’s own rulemaking decision to exclude maintenance from Subpart V, adecision that the Secretary’s review brief neither mentions nor acknowledges. Replacingdamaged insulators is analogous to replacing spark plugs or light bulbs as they aredamaged or wear out–tasksthat are plainly maintenance. The replacement of the damaged insulators here did notchange the capacity or function of the power lines. Instead, the lines were simplymaintained in the same condition they were before the insulators were damaged. Thisprecisely fits the ordinary meaning of \”maintenance\” as \”[t]he work ofkeeping something in proper condition.\” American Heritage Dictionary 787 (1976).The Secretary’s alternative argument–that the replacement of porcelain insulators withepoxy insulators is itself an \”improvement\”–also mischaracterize the nature ofthe work being done here. The tasks involved in installing replacement epoxy insulatorswere identical to those for installing replacement porcelain insulators. The insulationlevel remained the same with the installation of epoxy insulators. The epoxy insulatorsdid not alter or improve the transmission line’s current-carrying capacity, power-transfercapabilities, voltage rating or any other function.That the epoxy insulators are more damage-resistant does not take the work of Gulf States’employees out of the category of maintenance. The porcelain insulators were not replacedbecause they were more susceptible to damage, but because they were actually damaged. Theywere not replaced as part of a systematic plan for upgrading the porcelain insulators. Infact on the pole in question the linemen replaced only the one insulator which had beendamaged, making no change in two undamaged porcelain insulators on the same pole. Clearlythe main purpose of the work was maintenance or upkeep, not improvement. To hold that thesimple replacement of the damaged insulators in this case was improvement would have thepractical effect of nullifying any exclusion in the standard for maintenance work.[[6]]In conclusion, since the work performed in this case involved maintenance, and notconstruction, of electric transmission and distribution lines, section 1926.954(e)(2) doesnot apply. The citation is vacated.FOR THE COMMISSIONRAY H. DARLING, JR. DATED: November 20, 1985FOOTNOTES: [[1]] The cited standard states:?1926.954 Grounding for protection of employees. (e) Attaching grounds. (1) When attaching grounds,the ground end shall be attached first,and the other end shall be attached and removed by means of insulated tools or othersuitable devices.(2) When removing grounds, the grounding device shall first be removed from the line orequipment using insulating tools or other suitable devices.[[2]] Section 1926.950(a)(1) provides:? 1926.950 General requirements.(a) Application. The occupational safety and health standards contained in this Subpart Vshall apply to the construction of electric transmission and distribution lines andequipment.(1) As used in this Subpart V the term \”construction\” includes the erection ofnew electric transmission and distribution lines and equipment, and the alteration,conversion, and improvement of existing electric transmission and distribution lines andequipment.[[3]] Review was directed on the issues of (1) whether the replacement of theinsulators was maintenance or improvement; (2) whether the cited standard requires aninsulated tool to uncouple spliced grounding chains after the chainshave been removed from the conductor; and (3) whether Gulf States -could have reasonablyanticipated that one of its experienced employees would have removed grounding chains outof sequence, thus creating the hazard of electrocution that occurred here. Since we vacatethe citation on the ground that the replacement of the insulators was clearly maintenance,and thus the cited standard is inapplicable, it is not necessary to reach the other issuesdirected for review.Chairman Buckley would note the following: The record indicates that aninsulated tool was used to remove the spliced grounding chain from the conductor, but notto unsplice the chains. Gulf States contended that the cited standard requires only thatan insulated tool be used for detaching the chain from the conductor and that it does notcover any other task, including other handling of the chain. It argued that the purpose ofdetaching the grounding chain from a conductor is so that it can be handled without aninsulating tool. Gulf States also contended that its safety procedures call for thegrounding procedure required by ? 1926.954(e) and it could not have reasonablyanticipated the employee error (removing the ground out of order) that made it unsafe forthe decedent to handle the spliced cables. The judge found that Gulf States uniformly andeffectively communicated and enforced its work rule requiring that grounding chains beremoved in the inverse order of their placement.[[4]] When the Secretary adopted Subpart V, he explained its applicability asfollows:Applicability. The proposed occupational safety and health standards contained in SubpartV are applicable to the construction of electric transmission and distribution lines andequipment. Some comments were received which recommended that the standards be extended tomaintenance work. The comments go beyond the subject matter of this proceeding which isaddressed to the erection of new electric transmission and distribution lines andequipment, and the alteration, conversion, and improvement of existing transmission anddistribution lines and equipment.[[5]] The Secretary also argues that because the crew had been changing polesand wires as well as insulators during the three or four months preceding the accident,the employees were engaged in work for construction and \”improvement.\” We rejectthis argument. The Secretary’s citation alleged that a violation of the cited standardoccurred on or about July 8. 1982, at which time the crew was only replacing damagedinsulators. The Secretary did not make any charge or present any evidence suggesting thatthis crew violated any safety standards during the conduct of work of a different natureand at other times. In the absence of evidence that the crew failed to abide by theseregulations at other times and on other sites, we limit our inquiry into whether aviolation occurred on or about the date set forth in the citation.[[6]] The Secretary cites several Commission cases in support of hisposition, but the cases are clearly distinguishable All involved far more substantialalterations to the electric power transmission systems than is involved in this case. InMississippi Power, a crew was replacing an entire utility pole with a new larger pole. InPacific Gas, a crew was replacing a rotted wooden pole with a new one, transferring thepower lines to the new pole, replacing two secondary conductors with a duplex conductor,and installing one new transformer in place of two old ones. This reduced the number oflines and transformers needed in the system. In the case before us, only broken porcelaininsulators on one side of a pole were being replaced with epoxy insulators.”