NORTHERN STATES POWER COMPANY

OSHRC Docket No. 12774

Occupational Safety and Health Review Commission

April 20, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Assoc. Regional Solicitor

Harold J. Bagley, Northern States Power Company, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Both charges should be vacated because the National Electric Code is not "reasonably available" to respondent or others in the class of persons affected by the regulations. To find respondent in violation of provisions of that code is inconsistent with the requirements of the Administrative Procedure Act, the objectives of the Occupational Safety and Health Act, and respondent's right to fair treatment. Secretary v. Leader Evaporator, Inc., OSAHRC Docket No. 5225, June 10, 1976 (dissenting opinion). Vacation of those items is also warranted because the citation was not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976.

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding [*3] the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Carlson's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Donald R. McCoy, for the Complainant

Edwin Crossett, (not an attorney) and Harold J. Bagley, (on post-hearing supplemental brief), for the Respondent

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereafter referred to as "the Act". Respondent contests items 2 and 3 of the citation issued March 7, 1975 wherein the complainant Secretary of Labor alleges that on February 18, 1975 respondent violated two articles of the 1971 National Electrical Code (NEC) as adopted by reference in the Secretary's general industry standard codified at 29 CFR 1910.309(a) n1.

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n1 The citation contained several other items of violation which were not contested by respondent and which became final through operation of law under Section 10(a) of the Act. The citation was also amended as to matters which do not affect this present contest.

[*4]

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The two items of violation were alleged to be of a nonserious character by complainant who proposed a civil penalty of $35 for each. Following the context of the citation, further pleadings were filed and the matter came on regularly for hearing at Sioux Falls, South Dakota on June 25, 1975. No employees or their representatives sought party status. Both parties submitted post-hearing briefs.

The contested violations were described in the citation as follows:

Standard, regulations or

section of the Act

Description of Alleged

Item Number

allegedly violated

Violation

2

29 CFR 1910.309(a) and

The electrical terminal

article 502-4(a)(1) of

box which was connected

the 1971 National Elec-

to a pump motor being used

trical Code as adopted

to spray anti-freeze on

thereby

the coal fines conveyor

belt in the coal tower

walkway was not dust

ignition-proof nor

approved for Class II

locations.

3

29 CFR 1910.309(a) NEC

The electrical pump motor

article 502-8(a)

being used to spray

anti-freeze on the

coal fines conveyor belt

in the coal tower walkway

was not dust ignition-

proof or approved for

Class II locations.

[*5]

The standard and the articles of the NEC relevant to the items charged provide as follows:

29 CFR 1910.309 - National Electrical Code. (a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment:

Articles:

* * *

502

Class II Installations

(Hazardous Locations).

* * *

National Electrical Code - 502-4(a)(1): - (1) Fittings and boxes. * * * Fittings and boxes in which taps, joints or terminal connections are made, or which are used in locations where dusts are of an electrically conducting nature shall be dust-ignition-proof and approved for Class II locations.

502-8(a): - Class II, Division 1. In Class II, Division 1 locations, motors, generators and other rotating electrical machinery should be dust-ignition-proof or totally enclosed pipe-ventilated and shall be approved for Class II locations.

I

Respondent by its answer admits that it has employees and engages in a business affecting commerce. Respondent further admits that the conditions cited by the Secretary existed and were violative of the NEC, [*6] but denies that the NEC has application because of an exemption for electrical utilities contained in 29 CFR 1910.308. This case is thus to be resolved by the determination of the single issue of whether the exclusionary language contained in 29 CFR 1910.308(c)(2)(v) applies. As pertinent here, 1910.308 provides:

1910.308 Application.

(c) Scope (1) Covered. The provisions of this Subpart S cover electrical installations and utilization equipment installed or used within or on public and private buildings, structures and other premises . . .

* * *

(2) Not covered, the provisions of this subpart do not cover:

* * *

(v) Installations under the exclusive control of electric utilities for the purpose of communication, metering or for the generation, control, transformation, transmission, and distribution of electric energy, located in buildings used exclusively by the utilities for such purposes or located outdoors on property owned or leased by the utilities on or public highways, streets, roads, etc., or outdoors by established rights on private property.

II

A brief review of the facts is necessary to place the legal question presented in the proper perspective. Respondent [*7] is an electric utility company which generates electricity at its coal-fired Lawrence Steam Plant. In the course of an inspection of the plant conducted by complainant's compliance officer on February 18, 1975, he observed two conditions on a spraying unit mounted inside an elevated, enclosed coal conveyor system which he believed to violate the parts of the National Electrical Code heretofore cited.

Worker access to the conveyor is furnished by a walkway within the enclosure. The conveyor carries crushed coal approximately 250 feet from an elevator tower to the plant building proper, where it is used to fire the boilers. When the coal arrives at the plant site it is unloaded from railway cars and generally piled near the tower. The route of the conveyor involves an upward incline.

On frosty mornings coal tended to slip backwards at the incline point of the belt when the conveyor was first started (Tr. 54). Consequently, respondent had installed an electrically operated pump which laid down a spray mixture of a commercial antifreeze and water until the coal was moving freely.

The compliance officer maintained, and respondent does not dispute, that there were sufficient coal [*8] fines or dusts within the conveyor enclosure to constitute it a hazardous "Class II, Division 1 location" under Article 500-5(a) of the NEC.

Thus, the fact that the electrical terminal box used in connection with the spray pump lacked dust-ignition-proof fittings, and the fact that the pump motor itself was not enclosed, led to the inclusion of items 2 and 3, respectively, in the citation.

III

The inference from the record is strong that the conveyor was under the "exclusive control" of respondent company. Such control is one requisite for assertion of the exemption which respondent seeks to invoke. The burden is upon respondent to prove itself within the scope of the exemption. Any question, however, as to whether control was adequately established is resolved in respondent's favor in view of a specification and exposition of the issues in complainant's post-hearing brief which shows complainant was content to assume respondent had such control.

IV

Respondent contends that the intent underlying the exception contained in 29 CFR 1910.308(c)(2)(v) n2 Was sufficiently broad to encompass all electrical equipment situated at the plant site. By supplemental post-hearing brief [*9] filed by counsel, and by argument presented by its lay representative at hearing (Tr. 34-35), respondent suggests that the reason for such a wide exemption is found in an American National Standards Institute code wholly apart from the NEC: the National Electrical Safety Code (NESC, 1973 Edition). Respondent asserts that the NESC, unlike the NEC, deals specifically with the safety of workers in generating facilities such as the Lawrence Steam Plant, and that the NEC exemption provision must therefore be construed with this background in mind. Also stressed is an assertion that only persons of special skills will be working in "installations under the exclusive control of electric utilities".

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n2 The language of the standard was taken almost verbatim from Article 90-2 of the NEC.

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Respondent's position is well summarized by this statement in its supplemental brief:

"This is not the time to pick and choose on how narrowly or broadly to read the exception. The exception certainly applies to an electric generating plant, [*10] including all routine electrical utilitization equipment and applicances therein."

Complainant contends that since the exemptive provision does not end with the phrase "[i]nstallation under the exclusive control of electric utilities . . .", but continues to specify installations used for purposes of ". . . generation, control, transformation, transmission, and distribution of electric energy . . .", it manifests an intent to exempt only those items of equipment which are specifically and uniquely designed to do the things mentioned. The pump motor and terminal box in this case, argues complainant, unlike, say, a generator, distribution relay, or high-voltage transformer, were not peculiarly parts of a generating or distribution system of an electrical utility but merely items of "utilization equipment" n3 employed incidentally to help move coal at a generating plant.

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n3 29 CFR 1910.308(d)(3)(v) defines utilization equipment as: ". . . equipment which utilizes electrical energy for mechanical, chemical, heating, lighting or similar useful purpose."

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In construing the disputed exemption as it applies to this case, it is noted that the key word "installation" is nowhere, so far as I can find, n4 specifically defined in the NEC. Neither, for that matter, is it defined in the NESC; nor is its meaning self-revealing. Respondent, consistent with its position that all electrical equipment at a plant site is excluded, would doubtless insist that the word is used in the same broad sense as in the term "military installation". A study of the NEC, however, leads to the conclusion that the word is frequently and consistently used therein merely in the sense of "something installed" - specifically, electrical equipment. In Article 100 of the NEC the term "equipment" is itself defined as:

"A general term including material, fittings, devices, applicances, fixtures, apparatus and the like used as a part of, or in connection with, an electrical installation" (emphasis added).

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n4 Regrettably, in a case with seeming industry-wide implications, the efforts of both parties to develop their legal arguments were somewhat limited. For example, respondent, which is not a small enterprise, left the case in the hands of a lay representation until a short, supplemental post-hearing brief was filed through its law department.

[*12]

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The clear implication here is that an installation is a grouping of electrical equipment designed to perform a particular function. Strength is lent this view by the IEEE Standard Dictionary of Electrical and Electronic Terms, 1972 Edition (ANSI C-42 Series) which offers the following definition of "installation" as applied to the industrial control field:

"An assemblage of electric equipment in a given location, designed for coordinated operation, properly erected and wired."

Ordinarily, one would thus be led to conclude that "installation" was used in 29 CFR 1910.308(c)(2)(v) in the customary sense employed in the NEC: to denote merely a grouping or assemblage of electrical equipment. Conversely, it would not have been used to signify exemption for a whole physical plant location whose primary purpose may have been the generation of electricity. One would further conclude, as complainant contends, that mention in the exemption of specific types of electrical installations must mean that all those not named remain covered. This is particularly so because we deal here with an exception or exemption [*13] in a regulation promulgated under a remedial act. Such exceptions must be construed strictly n5. Hence, assemblages of electrical equipment functioning to produce and distribute electrical energy - which are those mentioned in the exemption - would not fall within the regulatory reach of the Secretary under the NEC. On the other hand, equipment which does not create or transmit electrical energy, but merely uses it (i.e., "utilization equipment") would fall outside the exemption - even where located on the general premises of a generating plant and used to further, in one indirect way or another, the ultimate goal of producing electricity.

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n5 Anderson v. Manhattan Lighterage Corp., 148 F.2d 971 (2nd Cir., 1945), Cert. Den. 326 U.S. 722.

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But the question must then be asked: should be existence of the NEC, as respondent contends, cause the exemptive provision to be read in a special light? Respondent maintains, in effect, that when the NEC was formulated, its drafters inserted the provision which is now 29 CFR [*14] 1910.308(c)(2)(v) out of an implied recognition (it is most certainly not express) that safety matters in electric utilities were governed exclusively by the separate set of ANSI standards contained in the NESC. Such a code indisputably exists. Notice of its contents, to the extent that they may legitimately aid in the construction of the Secretary's standard, has been taken as a matter of legislative fact n6.

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n6 As opposed to adjudicative facts under Rule 201, Federal Rules of Evidence (see Advisory Committee's note, subdivision (a)).

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The NESC, unlike the NEC, was not adopted as a part of the Secretary of Labor's general industry standards under provisions of Section 6(a) of the Act. Assuming, however, for purposes of this decision that the dimensions of the electric utility exemption now contained in 29 CFR 1910.308(c)(2)(v) can be understood only by reference to the NESC, the proper result would appear to be no different. Part I of the NESC does indeed deal with safety of "electrical supply stations and equipment". [*15] "Electric supply equipment" is defined in section A as ". . . equipment which produces, modifies, regulates, controls, or safeguards a supply of electric energy". An electric supply station means ". . . any building, room, or separate space within which electric supply equipment is located and the interior of which is accessible, as a rule, only to properly qualified persons" (emphasis added). These definitions are quite narrow.

Respondent's problem is that while the elevated enclosure covering the coal conveyor may arguably have been a "separate space", it contained no electric supply equipment at all. It contained only the conveyor, a walkway, and the antifreeze pump. The latter was obviously a most ordinary piece of utilization equipment n7. The conveyor was remote both in function and physical location from the "electric supply equipment" actually used to generate electricity. The same conveyor system could have been used equally well for various industrial purposes quite unrelated to the production of electricity (Tr. 24-25). Thus, even had the assertedly relevant provision of the NESC been expressly written into 29 CFR 1910.308(c)(2)(v), the exemption would nonetheless [*16] be unavailable here. To hold otherwise would be to conclude that the drafters of the NEC, out of deference to the NESC provisions, carved out an exception for electrical utilities actually broader than the coverage for those utilities provided by the NESC. Such a conclusion would be anomalous indeed.

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n7 Section A of the NESC defines utilization equipment as ". . . equipment, devices, and connected wiring which utilize electric energy for mechanical, chemical, heating, lighting, testing, or similar purposes and are not a part of supply equipment, supply lines, or communication lines" (emphasis added).

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In summary, when the words of the exemptive provision of the Secretary's standard are interpreted under the ordinary rules of statutory construction with no heed to the NESC, the cited equipment does not fit within the exemption. However, the facts in this case are such that, were the very provisions of the NESC regarding electrical generating facilities read into the Secretary's standard, the cited equipment would [*17] still lie outside of the area of exemption owing to a combination of the function and location of such equipment n8. Respondent has failed to sustain its affirmative burden of showing entitlement to the exemption.

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n8 It is to be noted that no attempt has been made in this decision to make an ultimate determination of whether the cited standard must be interpreted in a special way because of the NESC. I have, in a consideration arguendo, rejected the notion that that code purports to cover all electrical equipment within the gates of a generating plant, since the relevant portion, Part I, contains a narrow definition of "electrical supply stations". It is noted, however, that Rule 101 of the NESC does purport to cover not only electric supply equipment but utilization equipment as well-if it is located within what the code defines as an electrical supply station. Any full determination of the proper impact, if any, of the NESC as an aid in construing the electric utility exemption in 1910.308 must therefore await a proper case - one where cited utilization equipment is located in an electric supply station.

[*18]

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V

In his testimony (Tr. 24-31) the compliance officer indicated that in arriving at the proposed penalty of $35 for each of the contested items of violation consideration was given to respondent's size, its prior history relative to violation, its good faith, and the gravity of the violations. The undisputed evidence shows that respondent is a large employer; that the equipment in question was not frequently used; that there was some history of prior violation; and that there was no reason to question respondent's good faith. Additionally, it showed that the non-conforming electrical devices could have precipitated a fire or explosion with injury consequences ranging from negligible to severe, depending upon the circumstances. The factors considered by the compliance officer are those generally mandated by Section 17(j) of the Act for assessment of penalties. Having weighed the evidence in the light of the statutory criteria, I conclude that a penalty of $35 for each violation is appropriate.

FINDINGS OF FACT

Upon the entire record herein the following findings of ultimate fact are entered: [*19]

1. Respondent is an electric utility which at the times material hereto operated, under its exclusive control, a plant for the generation of electricity at a place near Sioux Falls, South Dakota.

2. On February 18, 1975 an enclosed, elevated coal conveyor system, running between an elevator tower and a building containing steam boiler and generating equipment, had within it an electric pump motor used to spray antifreeze.

3. The conveyor system enclosure was a location containing combustible dusts in quantities sufficient to permit ignition or electrical conduction.

4. The aforementioned pump motor lacked dust-ignition-proof features specified for hazardous dust locations by Article 504-8(a) of the National Electrical Code; and a terminal box used in connection with such pump lacked similar features as specified in Article 502-4(a)(1) of the National Electrical Code.

5. Lack of the protective features mentioned above exposed certain of respondent's employees to harm from fire, explosion, or coal-dust-conducted electrical shock.

CONCLUSIONS OF LAW

Upon the entire record herein and pursuant to the determinations heretofore made in the body of this decision, it is concluded: [*20]

1. That the Commission has jurisdiction to decide this contest.

2. That the pump motor and terminal box which were the subject of the contested items in the citation did not qualify for exemption as installations or parts of installations under 29 CFR 1910.308(c)(2)(v) and were hence subject to the provisions of the National Electrical Code as adopted by reference in 29 CFR 1910.309.

3. That, on February 18, 1975 respondent was, as alleged in items 2 and 3 of the citation herein, in violation of Articles 502-4(a)(1) and 502-8(a) of the National Electrical Code as adopted by 29 CFR 1910.309(a).

4. That $35 is an appropriate penalty for each of such violations.

ORDER

In accordance with the foregoing, it is hereby ORDERED that the contested items of the citation are affirmed, and that an aggregate civil penalty of $70 is assessed in connection therewith.

Dated: December 29, 1975

John A. Carlson, Judge, OSAHRC