OSHRC Docket No. 15388

Occupational Safety and Health Review Commission

January 18, 1978


Before: CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Regional Solicitor

Hamilton Doherty, Jr., for the employer



BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold, issued May 13, 1976, is before the Commission pursuant to 12(j) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. Judge Gold affirmed a citation alleging a serious violation of the standard published at 29 CFR 1926.500(a)(15)(i), n1 requiring a minimum clearance of 10 feet between energized electrical transmission lines rated 50 kV. or below and any part of a crane or its load. The Judge assessed an $850 penalty for the violation. The citation was issued following the investigation by the Occupational Safety and Health Administration of an accident involving the electrocution of an employee working for Bill's Painting Company, a painting contractor that had leased respondent's crane and operator for the purpose of painting the side of building.

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n1 1926.550 Cranes and derricks.

(a) General requirements.

* * *

(15) Except where electrical distribution lines have been deenergized and visibly grounded at point of work 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 power lines only in accordance with the following:

(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[.]


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On the day of the accident the operator positioned the crane alongside the east wall of the building that was to be painted. The two painters assigned to the job decided to spray paint the east wall of the building from the basket of the crane, with a painter in the basket using a spray nozzle attached to a hose leading from a compressor on the ground. The second painter remained on the ground. Signals were improvised between the painters and the crane operator to indicate when the operator should raise and lower the basket.

Immediately before the accident, one of the painters was working from the basket of the crane at a distance between 10 and 15 feet above a transformer from which energized high voltage lines extended. The transformer system had a voltage of 13,800 volts. It was located directly in front of the building to be painted and was surrounded by a chain link fence with signs warning of the danger. At the moment of the accident, the painter working at the compressor heard a loud "pop" and turned toward the wall of the building. He saw the other painter fall to the bottom of the basket [*3] and observed sparks shooting from the spray nozzle on the end of the hose.

The surviving painter testified that he had not received any instructions from the crane operator about the transformer system. The painter knew of the transformer's presence and the potential danger involved. He testified, however, that he believed the wires were coated with some material that would insulate them in some manner.

The crane operator testified that on the day in question he did not specifically discuss the transformer with the painters, although they discussed the high voltage lines, which the crane operator recognized as being energized. The operator did not believe that the hose was under his control at any time. Rather, he considered it to be controlled exclusively by the painter in the basket.

An electrician who examined the site approximately two weeks after the accident testified that he observed a mark on one high tension line leading to the transformer, which he believed was a burn mark resulting from contact with some material. A consulting engineer, who was called by complainant as an expert witness, testified that he had examined the spray paint hose and that his inspection [*4] revealed a hole about midway along the length of the hose. He opined that the hole was caused by electrical current passing through the wall of the hose when it touched one of the high voltage wires, allowing current to pass through the liquid paint inside the hose. In this manner current was carried to the nozzle and the decedent in one direction and to the crane and the ground in the other direction. The expert testified that there was no danger to the crane operator as long as he sat still in the crane cab. If he touched any other object or person immediately around the crane, however, he also could have been exposed to the danger of electrocution. Respondent's vice-president testified that, although respondent had no formal safety program, training concerning crane usage near high voltage lines was conducted for respondent's crane operators by their union.

Neither party contends that the crane or the basket ever came within the cited standard's proscribed 10 foot distance from the energized line. Rather, the evidence clearly establishes and Judge Gold found that the hose came within 10 feet of the wires and in fact contacted a wire. Accordingly, whether there is a violation [*5] of the standard depends in part upon whether the hose is part of the "load." Respondent argues that inasmuch as the hose was not attached to the basket, but was held and controlled by the painter in the basket, it cannot be considered part of the load. Judge Gold found that the hose was part of the load, and we adopt that conclusion.

Judge Gold held,

The hose was part of the crane load and, as such, was controlled by the crane operator, and had to be kept at least 10 feet from the wires, in accordance with the requirements of the standard at 29 CFR 1926.550(a)(15)(i), a duty which rested upon Respondent, acting through its employee, the crane operator.

The interpretation urged by respondent would be contrary to the standard's clear purpose of prohibiting any part of the crane and any object carried by the boom from approaching too close to a power line. The term "load" must be construed to effect this manifest purpose. See Alfred S. Austin Construction Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1975-76 CCH OSHD para. 20,650 (No. 4809, 1976).

Respondent's second contention is that, assuming the hose is part of the load, respondent should not be held responsible for the [*6] hose contacting the line because the hose was controlled by the painters. Respondent argues that the crane operator kept the basket more than 10 feet from the wires and that the painters swung the hose into the danger zone. Respondent argues that the Commission decisions in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976), require reversal of the Judge's affirmance of the citation. In those cases the Commission held that certain affirmative defenses are available to employers that neither created nor controlled hazards to which employees have been exposed on multi-employer construction worksites. Assuming arguendo that respondent's worksite was the type to which these defenses are applicable, the Commission finds that the decisions in those cases do not apply here because respondent did exercise control over the hazard. As the employer of the crane operator, who operated the crane and positioned the load, respondent was responsible for the positioning of the entire load, including the hose. [*7] Respondent had a duty to ensure that all parts of the load, including those parts used by the painters, did not come within 10 feet of the energized equipment. A contary conclusion would not afford employees the protection contemplated by the cited standard.

Respondent excepts to the Judge's ruling that respondent was remiss in its duty to provide adequate safety training. In order to fulfill that duty respondent was under an obligation to determine what were the the specific hazards peculiar to the worksite and the job being performed, and to give specific instructions to the operator so that such hazards could be avoided. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 20,607 (No. 9118, 1977). Respondent, however, made no effort to assess the general safety of the worksite and the hazards presented by the job to be performed. Rather, it relied solely on its employees' union to instruct its members about safety.

In affirming Judge Gold's finding of a violation, the Commission observes that the Judge's finding that respondent had a specific duty to supply an observer is not essential to his decision. Although the standard at 29 CFR [*8] 1926.500(a)(15)(iv) contains a requirement for a designated observer, respondent was not cited for violating that standard. However, the Judge's finding is illustrative of at least one alternative which respondent could have used to assure compliance with the requirement of the standard. See Enfield's Tree Service, Inc., supra.

Judge Gold also ruled that respondent's duty to ascertain the nature of hazards associated with the worksite in order to protect employees was owed to its own employee, the operator, as well as to the painting contractor's employees. Respondent contends that its only duty was to the crane operator and that it did not fail in its duty to him because he was not exposed to the hazard. The Commission affirms the Judge's ruling. First, the consulting engineer's expert testimony that the operator could have been electrocuted if he had touched anything adjacent to the door of the cab establishes access to a hazard. See Lidstrom, Inc., 76 OSAHRC 40/E6, 4 BNA OSHC 1041, 1975-76 CCH OSHD para. 20,564 (No. 3433, 1976); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976). Second, the [*9] Commission has held that an employer on a multi-employer construction site who has created or controls a hazard is liable even if only employees of another contractor are exposed. Jackson Construction Co., 77 OSAHRC 137/C14, 5 BNA OSHC 1608, 1977-78 CCH OSHD para. 21,981 (No. 13843, 1977); Anning-Johnson Co., supra; Grossman Steel & Aluminum Corp., supra.

Finally, respondent objects to the Judge's finding that the violation was serious and to his assessment of an $850 penalty for the violation. The Commission finds that the Judge correctly determined that the probability of death or serious injury was substantial and that respondent should have known of the violation. Moreover, the Commission finds that the Judge properly considered the 29 USC 666(i) criteria and affirms his assessment of an $850 penalty for the violation.

The Judge's decision is affirmed.