ELLER BROTHERS, INC.
OSHRC Docket No. 406
Occupational Safety and Health Review Commission
August 10, 1972
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
BY THE COMMISSION: The Commission has directed review in this case for the purpose of amending the Judge's Report and Order as follows:
The caption in the instant case is hereby amended by deleting the word "Petitioner" and inserting therein the word "Complainant."
The Order is hereby amended by deleting the word "Petitioner" in paragraph numbers 1, 2, 3 and 4 and inserting therein the word "Respondent."
Accordingly, IT IS ORDERED, That the Judge's Report and Order, as amended, is affirmed as the Final Order of the Commission.
[The Judge's decision referred to herein follows]
BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act), to review a non-serious citation and a citation for serious violation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act, and proposed assessment of penalties in the amount of $2,250 upon such alleged violations pursuant to Section 10(a) of the Act.
The citation for serious violation was [*2] issued on January 7, 1972, alleging a violation of four safety standards which were promulgated pursuant to Section 6(a) of the Act. The citation alleged that the respondent was in violation of 29 CFR 1518.400(c)(1), 29 CFR 1518.400(c)(2), 29 CFR 1518.550(a)(15)(i) and 29 CFR 1518.550(a)(15)(iv). On the same date, a non-serious citation was issued to the respondent alleging a violation of 29 CFR 1518.550(a)(4) and 29 CFR 1518.550(a)(8). The notification of proposed penalty proposed a penalty of $550 each for the alleged serious violations and $25 each for the non-serious violations. On January 11, 1972, which was within 15 days of receipt of the Secretary's notice of proposed penalty and citations, the respondent notified the Secretary that it wished to contest the alleged violations set forth in the citation and citation for serious violation.
The Secretary advised the Occupational Safety and Health Review Commission of the notice of contest by respondent. The Commission assigned the case to this judge and an opportunity for hearing pursuant to Section 10(c) of the Act was afforded the respondent. The hearing was held in Nashville, Tennessee, on March 28, 1972. No additional [*3] parties desired to intervene in the proceeding.
The primary issues for consideration relate to whether there has been a violation of the standards found at 29 CFR 1518.400(c)(1), 29 CFR 1518.400(c)(2), 29 CFR 1518.550(a)(15)(i), and 29 CFR 1518.550(a)(15)(iv). If a violation of one or more of the standards occurred, a question arises as to whether the violation or violations were of a serious nature under the criteria of Section 17(k) of the Act. In addition to the alleged serious violations, a determination must be made as to whether respondent committed non-serious violations of 29 CFR 1518.550(a)(4) and 29 CFR 1518.550(a)(8). If respondent is adjudged to have been in violation of any of the standards as alleged, then a determination must be made as to whether the penalties proposed by petitioner for each of the violations is appropriate.
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.
Respondent is a Tennessee Corporation, regularly engaged in the installation of underground sewer lines and other [*4] conduits and in the installation of pumping stations along streets and highways, among other places. In pursuit of its business, respondent regularly orders, receives and uses supplies, materials and equipment produced and supplied by suppliers outside the State of Tennessee. It regularly installs sewer lines and other types of underground pipes and conduits at places outside the State of Tennessee. The respondent employed an average of 25 persons during the year 1971 and the first three months of 1972 (Stip.).
On December 18, 1971, respondent was engaged in the installation of sewer lines and a pumping station at and near Interstate 40 and Charlotte Pike in West Nashville, Tennessee (Stip.; Tr. 18). Approximately 7:45 a.m. on that date, the respondent's superintendent, M.R. Dillard, informed Thomas Smith, Kenneth R. Bugg and Curtis Williamson that they had to remove a large rock from the sewer ditch. The ditch was approximately 16 feet deep (Tr. 78-80). He told them to get the crane in position and to be careful because the high tension wires overhead were hot (Tr. 78-79). After giving his instructions, the superintendent left and went to another job site across [*5] the highway (Tr. 79). He took no steps to have the lines de-energized (Tr. 89) or to designate a person to observe clearance of the crane (Tr. 79).
Pursuant to the superintendent's instructions, Williamson, Smith and Bugg undertook to remove the large rock from the ditch with the crane, which was operated by Williamson (Tr. 55-56). The crane was hooked to the rock and it appeared that the weight of the rock might tilt it. As a result, the crane was moved to another location, which was under some high tension wires (Ex. 8; Tr. 56, 63). The lines generally ran parallel to the ditch where Smith, Bugg and Williamson were working, but crossed between the two power poles at one point (Ex. 8; Tr. 63, 110). The lines carried 13,500 volts (Tr. 95).
Smith and Bugg were in the ditch, which had water in it (Tr. 56-58). Smith was in the process of inserting a chain through a hole that had been drilled in the rock (Tr. 56-57). Bugg was further down in the ditch, where the water pump was being started, and came up to help Smith (Tr. 57). Smith was directing Williamson as to when to let down the cable so that he could hook the chain to it. (Tr. 60-61, 69, 72). No person was giving Williamson [*6] hand signals or otherwise advising him as to how close the boom of the crane or cable was to the high voltage wires (Tr.60-61). Williamson was aware of the high tension wires (Tr. 70), but he was unable to judge the proximity of the boom and cable to the lines (Tr. 74). No one talked with him about having the lines deenergized (Tr. 75).
As Bugg proceeded to assist Smith in attaching the chain to the cable, he came into physical contact with Smith (Tr. 57). At that time, Williamson noticed that Smith and Bugg fell and rolled off into the ditch out of his sight. Williamson jumped off the crane and ran to the ditch to see what had happened. He looked up and saw that the boom was touching the wires (Tr. 58). There was no insulating link in the cable between the boom on the crane and the hook (Tr. 62). As a result of the accident, Bugg died from electrocution (Ex. 1; Tr. 59). Williamson was unaware that the boom had struck the tension wires until he got out of the crane and looked up (Tr. 61, 69).
At the time of the accident, a sign was posted in the cab of the crane which stated: "Unlawful to operate within six feet of high-voltage wire." The six-feet requirement was [*7] that required by state law (Ex. 3; Tr. 60). There was no sign in the cab indicating that the boom was to be kept ten feet from an energized high transmission line (Tr. 60). However, Williamson was aware that the clearance was ten feet as he had recently attended a safety meeting (Tr. 60). He was also told that morning by the superintendent that he was not to put the boom within ten feet of the wire (Tr. 84). Williamson did not know that he was operating as close as ten feet to the high-tension wires until after the accident (Tr. 66).
The shield or panel on the moving parts inside the cab of the crane operated by Williamson had been removed (Ex. 7; Tr. 62). There were also no illustrated hand signals for the crane operator posted inside the crane or at the job site (Tr. 44, 53, 75, 112). The respondent obtained copies of the hand signals after the accident (Tr. 84-85).
Immediately after the accident on December 18, 1971, the respondent sent a telegram to the Area Director of the Occupational Safety and Health Administration informing him of the fatality (Ex. 4; Tr. 14). As a result of the respondent's telegram, compliance officer Laury K. Weaver, Jr., was assigned [*8] to conduct an investigation and inspection of respondent's workplace at I-40 and Charlotte Pike, Nashville, on December 21, 1971 (Tr. 17, 21). Upon arrival at the site, Weaver contacted the respondent's superintendent and commenced his investigation and inspection (Tr. 37). Subsequent to the inspection, the petitioner on January 7, 1972, issued a Citation alleging two non-serious violations, a Citation For Serious Violation alleging four serious violations and a Notification of Proposed Penalty to the petitioner (Tr. 16, 19-22, 25).
The petitioner proposed a penalty of $550.00 for each of the alleged serious violations and $25.00 for each of the non-serious violations (Tr. 29-30). In arriving at the penalties of $550.00 for each of the serious violations, the petitioner started with an unadjusted penalty of $1,000.00 and allowed a 45-percent reduction. Respondent was allowed a 20-percent reduction for good faith, a 20-percent reduction for previous history and a five-percent reduction for size (Ex. 6; Tr. 29-30). For the two non-serious violations, petitioner commenced with an unadjusted penalty of $100.00, allowed the 45-percent reduction, and reduced it to the nearest $5.00 [*9] to arrive at a proposed penalty of $25.00 (Ex. 6; Tr. 29-30).
LAW AND OPINION
The Occupational Safety and Health Act was enacted by Congress on December 29, 1970, with a provision that it was to take effect 120 days after enactment, or as of April 28, 1971. Section 5(a)(2) of the Act provides:
Sec. 5(a) Each employer * * *
(2) shall comply with occupational safety and health standards promulgated under this Act.
Section 6(a) of the Act provides that as soon as practicable, beginning with the effective date of the Act and ending two years after such date, the Secretary shall promulgate standards by adopting any national or Federal standards or by promulgating any revision or modification of such standards.
Pursuant to Section 6(a) of the Act, the Secretary, at 29 CFR 1910.12, adopted and extended the applicability of established Federal standards in effect on construction work as occupational safety and health standards. The standards alleged to have been violated by the respondent were in effect on the date of inspection.
Alleged Violations of 29 CFR 1518.400 (c)(1) and (c)(2) -- Section 1518.400(c)(1) and 1518.40(c)(2) of 29 CFR provide, in pertinent part, [*10] as follows:
(c) Protection of employees: (1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it by effective insulation or other means.
(2) Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the location of such lines, the hazards involved and the protective measures to be taken.
The citation for serious violation described the alleged violation of 29 CFR 1518.400(c)(1) as follows:
Employer failed to have high voltage lines deenergized and grounded or otherwise made safe where employees were permitted to perform work in close proximity to high voltage lines, said failure creating a substantial [*11] probability that death or serious physical harm could result.
The alleged violation of 29 CFR 1518.400(c)(2) was described in the citation for serious violation as follows:
Employer failed to ascertain whether any part of an electric power line was so located that the performance of work could bring any person, tool, or machine into physical or electrical contact therewith. The employer also failed to post and maintain proper warning of the existing hazard and failed to advise employees of hazards involved and protective measures to be taken, said failure creating a substantial probability that death or physical harm could result.
The evidence supports a finding that respondent's employees performed work in close proximity to high voltage lines which were not deenergized, that respondent failed to post and maintain proper warning of the existing hazard and that it failed to advise employees of protective measures to be taken.
On the basis of the facts of record, a determination for petitioner on these two issues would appear warranted. However, Section 1518.400 has limited applicability. Subsection (b) of 1518.400 specifically provides:
Applicability. These regulations apply [*12] only to electrical installations used on the jobsite, both temporary and permanent. * * *
It is readily apparent that 29 CFR 1518.400(c)(1) and (c)(2) apply only to electrical installations used on the jobsite. The Secretary has specifically limited their applicability to apply only in certain situations. They do not have general applicability in the manner intended by petitioner in this case. This case primarily involves crane operations, and nothing in Section 1518.400 indicates that it was intended to apply to crane operations in close proximity to high voltage lines. The operation of cranes in such situations is specifically covered in Section 1518.550 of 29 CFR.
When the Secretary specifically limits the work situations or activities to which his regulations apply, the employer has a right to rely on such representations in determining his future conduct insofar as the regulations are concerned. Anyone reading 29 CFR 1518.400 would reasonably conclude that it had no applicability to crane operations. This is the only interpretation that one can glean from Section 1518.400(b). If an employer is to be determined in violation of a safety or health regulation [*13] under the Act, the cited regulation should put the employer on notice of his obligation to comply.
While respondent has not specifically challenged the applicability of Section 1518.400, a determination for petitioner on the two issues involving this section would make the Commission a party to the unlawful extension of the regulations. A determination for petitioner would, in effect, expand coverage of the regulations by enforcement rather than through the administrative process provided by Section 6 of the Act. This is contrary to the intent of the Act. If petitioner desires that Section 1518.400 apply to crane operations, then he should follow the procedure provided by Section 6(b) of the act in order to modify the section to include crane operations.
Alleged Violations of 29 CFR 1518.550(a)(15)(i) and (a)(15)(iv). -- Section 1518.550(a)(15)(i) and (a)(15)(iv) of 29 CFR provide as follows:
(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded 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, [*14] 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 ten feet:
(iv) A person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual means;
The Citation for serious violation described the alleged violation of 29 CFR 1518.550(a)(15)(i) as follows:
The employer failed to require the crane operator to maintain ten feet of clearance between high voltage lines (13 kv) and the crane, said failure creating a substantial probability that death or serious physical harm could result.
The evidence is unequivocally clear that 29 CFR 1518.550(a)(15)(i) was violated. The crane operator, Curtis Williamson, testified that when he jumped off the crane and ran to the ditch, he noticed that the boom of the crane was touching the wires (Tr. 58, 61). It is obvious that the boom would not have been touching the wires if the ten-foot clearance had been observed. Williamson also testified that he knew that [*15] he was in violation of the regulation after the accident (Tr. 66). The state inspector, Charles B. Rogers, arrived at the accident scene at approximately 10:00 a.m. on the date of the accident (Tr. 93). He testified that his inspection indicated that the crane had not been moved since the accident and that its location was such that it still could have caused the accident (Tr. 95).
The crux of this issue is whether the violation should be attributed to the respondent. There is no dispute that the crane operator had knowledge that it was a violation to operate within ten feet of the high voltage lines (Tr. 60, 66-67). He had attended a safety meeting held on December 4, 1971, where this requirement had been discussed (Tr. 60, 65-66). On the morning of the accident, he was advised about the hazard of the high voltage lines and was aware of their location (Tr. 70, 74, 78, 84). He knew the high voltage wires were in close proximity to the ditch (Tr. 64-65). Thus, one might inquire as to what additional responsibility an employer has in such situations?
The Act places a heavier responsibility on the employer than it does the employee. The Senate Committee on Labor and [*16] Public Welfare in reporting favorably on the bill stated that "[F]inal responsibility for compliance with the requirements of this act remains with the employer." (S. Rept. No. 91 -- 1282, 91st Cong., 2nd Sess., page 11 (1970)). Exactly what is required of the employer by having final responsibility for compliance is not detailed in the Act or legislative history.
It seems obvious that the employer is put to a higher standard than merely informing an employee of the regulation and hazard involved. He is charged with the ultimate duty of furnishing a safe workplace for the employee. This undoubtedly implies that the employer will take whatever action is necessary to accomplish the job in a safe manner. In order to safely accomplish a job, it would appear undisputed that the employee must have adequate assistance. It does little good to warn an employee of a hazard if the employer then lets him undertake the job without adequate assistance to accomplish it in a safe manner.
The facts reveal that the superintendent left Bugg, Smith and Williamson to accomplish the job of removing a rock from a ditch 16 feet deep by the use of a crane. He specifically ordered them to [*17] get the crane in position and knew that it had to be operated under the high voltage wires. These instructions placed Williamson in the position of having to watch the men, the cable, the boom and the high voltage lines from the cab of the crane. Yet, it supposedly did not occur to the superintendent that Williamson might need assistance in observing clearance of the high voltage wires.
The superintendent testified that Williamson could see the rock and the two men in the ditch and that there was no necessity for a signalman. He based this observation on the premise that no signalman is needed whenever the operator is in visual contact with what he is lifting or lowering. He appeared to completely discount the hazard in this case, namely the high-voltage lines. It would seem obvious that additional precautions should be taken when operating under high-voltage wires. Yet, the superintendent exhorted his warning of the hazard and left the men on their own.
The superintendent indicated that a person standing on the bank would not be able to watch the wires and boom and, at the same time, watch what the men were doing in the ditch (Tr. 80). How then did he expect the crane operator [*18] to observe the whole operation without assistance? The crane operator had to watch the wires, boom, cable, men and at the same time, operate the controls. This was a most difficult task for the crane operator.
The circumstances of this case necessitated that additional assistance be made available to the crane operator to insure compliance with the regulation. While the crane operator could see the high voltage lines, he was unable to judge the clearance between the boom and the wires. The respondent should have reasonably foreseen the inability of the crane operator to maneuver under the high tension wires and be fully cognizant of the men, the cable and the location of the boom and high voltage lines at the same time. The failure by respondent to provide assistance to the crane operator to judge the clearance between the boom and the high voltage lines directly attributed to his violation of the ten-foot clearance.
The Citation for serious violation described the alleged violation of 29 CFR 1518.550(a)(15)(iv) as follows:
Employer failed to designate a person to observe clearance of the equipment (crane) so that timely warning could be given when too close to higr [*19] voltage wires, said failure creating a substantial probability that death or serious physical harm could result.
The uncontroverted evidence clearly reflects that section 1518.550(a)(15)(iv) was violated. The crane operator testified that no person was designated to assist him in observing clearance of the crane with the high voltage wires (Tr. 60-61). The superintendent also testified that he did not designate a signalman because the crane operator had visual contact with what he was lifting (Tr. 79).
The regulation requires that a person be designated to observe clearance where it is difficult for the operator to maintain the desired clearance by visual means. The crane operator testified that he was unable to judge the clearance between the boom and the high voltage wires. The superintendent testified that a person standing on a bank would have difficulty in watching the wires, boom and the men at the same time. If he was of the opinion that someone not concerned with operating the crane would have difficulty, then he should have recognized that the crane operator would have difficulty in maintaining the desired clearance by visual means.
This leaves for determination [*20] the question of whether the violations were serious violations as contended by petitioner. Section 17(k) of the Act requires that the Commission base an adjudication that a violation is deemed a serious violation upon findings of fact which support "a substantial probability that death or serious physical harm could result" from the charged condition or practices. Mere proof of violation, with nothing more, proves only a non-serious violation. Section 17(k) further provides that the violation is not serious if the employer is both unaware of the facts constituting the violation and even with reasonable diligence could not have known of it.
The respondent was well aware of the hazards of working under high voltage lines. It reminded the employees of the hazard, but failed to provide adequate assistance to them to perform the job in a safe manner. It had actual knowledge that no person was designated to assist the crane operator in observing clearance of high voltage lines, and with the use of reasonable diligence, could have foreseen that the ten-foot clearance regulation would be violated.
The violations were of such a nature that there was a substantial probability that death [*21] or serious physical harm could result since the crane did not have an insulator link. This is amply demonstrated by the fact that Kenneth R. Bugg was electrocuted.
Alleged Violations of 29 CFR 1518.550(a)(4) and (a)(8). -- Section 1518.550(a)(4) and (a)(8) of 29 CFR provide as follows:
(a)(4) Hand signals to crane and derrick operators shall be those prescribed by the applicable ANSI standard for the type of crane in use. An illustration of the signals shall be posted at the job site.
(8) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating, or other moving parts or equipment shall be guarded if such parts are exposed to contact by employees, or otherwise create a hazard. Guarding shall meet the requirements of the American National Standards Institute B 15.1-1958 Rev., Safety Code for Mechanical Power Transmission Apparatus.
The Citation for non-serious violations described the alleged violations of 29 CFR 1518.550(a)(4) as follows:
The employer failed to post an illustration of hand signals to crane and derrick operators at the job site.
The alleged violation of 29 CFR 1518.550(a)(8) was described [*22] as follows:
Moving equipment in cab of crane subject to contact with crane operator was not guarded.
The evidence is clear that the respondent violated both of these standards. The compliance officer testified that his inspection disclosed that no hand signals were posted at the job site and that the operator of the crane was exposed to moving parts inside the cab of the crane. His testimony was corroborated by the crane operator. Respondent offered no evidence disputing their testimony.
APPROPRIATENESS OF PENALTIES
Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate [*23] penalty. See Secretary of Labor v. Nacirema Operating Company, Inc.,
The compliance officer testified that he commenced consideration of the four alleged serious violations with the statutory maximum penalty of $1,000.00 which is authorized in the Act for a serious violation and then applied a 45-percent reduction. This reduction was arrived at by allowing the respondent a 20-percent reduction for good faith, a 20-percent reduction on the respondent's history of previous violations and a 5 percent reduction for size.
In Nacirema Operating Company, Inc., The Commission indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. The record does not indicate what consideration, if any, was given to the gravity of the violation by the petitioner.
Section 17(b) of the Act prohibits an assessment of a penalty in excess of $1,000.00 for a serious violation. After due consideration of the four criteria provided by Section 17(j) of the [*24] Act, it is concluded that the penalty of $550.00 for the violation of 29 CFR 1518.550(a)(15)(i) is appropriate. However, as to the violation of 29 CFR 1518.550(a)(15)(iv), the penalty of $550.00 does not give adequate consideration to the gravity of the violation. After due consideration of the four criteria, with proper emphasis on the gravity of the violation, it is concluded that a penalty of $900.00 is appropriate for the violation of 29 CFR 1518.550(a)(15)(iv).
"The gravity of a particular violation can range from de minimus, where there is very low potential for injury or occupational illness, to severe, where death or serious physical injury would be likely." Nacirema Operating Company, Inc., supra. The facts indicate that there was a severe potential for injury in this case. The superintendent was aware of the hazardous condition and made no reasonable effort to eliminate the condition. No steps were taken to deenergize the high voltage lines and additional assistance was not provided to insure the safety of the men. Yet, the superintendent knew that the crane was operating in a confined area under the high voltage lines. He merely gave his warning and [*25] left the men on their own.
The violation of 29 CFR 1518.550(a)(15)(iv) is considered to be the more severe of the two serious violations. The failure to designate a person to observe clearance contributed more directly to the accident and to the violation of 29 CFR 1518.550(a)(15)(i). If the respondent had designated a person to assist in observing clearance between the boom and the high voltage wires, the tragic accident would probably have been avoided and there probably would not have been a violation of the ten-foot clearance requirement.
After due consideration of the four criteria provided by Section 17(j) of the Act, it is concluded that the penalty of $25.00 proposed for each of the non-serious violations of 29 CFR 1518.500(a)(4) and 29 CFR 1518.500(a)(8) is appropriate.
The Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., This same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., OSHRC Docket No. [*26] 250. In both cases, small monetary penalties were eliminated by the Commission.
In J.E. Chilton Millwork & Lumber Company, Inc., supra, and General Meat Company, Inc., supra., the evidence reflected that the violations had been abated. The evidence in this case does not indicate that these two violations have been abated and for this rason, it is believed the small monetary penalty is warranted.
CONCLUSIONS OF LAW
1. The respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The respondent is, and at all times material hereto was, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.
3. Sections 1518.400(c)(1) and (c)(2) of 29 CFR are not applicable to the operations of respondent which were being conducted by it on December 18, 1971, at I-40 and Charlotte Pike, Nashville, Tennessee.
4. The respondent took no steps to have the high-voltage lines deenergized or to provide a person to assist the crane [*27] operator in observing clearance of the equipment with the high-voltage lines. The respondent knew or should have known that it would be difficult for the crane operator to maintain the ten-foot clearance by visual means.
5. Respondent violated 29 CFR 1518.550(a)(15)(i) and (a)(15)(iv). Such violations were serious violations within the meaning of Section 17(k) of the Act, as there was a substantial probability that death or serious physical harm could have resulted.
6. Respondent violated 29 CFR 1518.550(a)(4) and (a)(8) and such violations were non-serious violations.
Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, IT IS ORDERED:
1. That the petitioner was not in violation of 29 CFR 1518.400(c)(1) and (c)(2) and is not liable for the penalty of $550 proposed for each of these alleged violations;
2. That the petitioner was in violation of 29 CFR 1518.550(a)(15)(i) and (a)(15)(iv) and the violations were serious violations as alleged;
3. That the petitioner is liable for a penalty of $550.00 for the violation of 29 CFR 1518.550(a)(15)(i) and is liable for a penalty of $900.00 for the violation of 29 CFR 1518.550(a)(15)(iv); [*28] and
4. That the petitioner was in violation of 29 CFR 1518.550(a)(4) and (a)(8) and is liable for the penalties of $25.00 asserted for each of the violations.